1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Juana Moore, No. CV-22-00550-TUC-RM (JR)
10 Plaintiff, REPORT AND RECOMMENDATION
11 v.
12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Plaintiff Juana Moore (“Moore”) brings this action pursuant to 42 U.S.C. §§ 405(g) 16 and 1383(c)(3), seeking judicial review of a final decision by the Commissioner of the 17 Social Security Administration (“Commissioner”). (Doc. 1.) This matter, on referral to the 18 19 undersigned United States Magistrate Judge for Report and Recommendation, is ripe for 20 decision.1 (Doc. 15, 24, 26.) As more fully set forth below, the Magistrate Judge 21 recommends that the district court reverse the Administrative Law Judge’s (“ALJ”) 22 23 decision and remand the matter to the agency for further proceedings. 24 BACKGROUND 25 Procedural History 26 27 On March 16, 2020, Moore protectively filed a Title II application for disability and 28 1 Moore did not file a reply brief and the time for filing a reply brief has elapsed. 1 disability insurance benefits alleging a disability onset date of March 4, 2017. 2 (Administrative Record “AR” 24.) More’s claim was denied initially on May 18, 2020, and 3 denied on reconsideration on August 17, 2020. (AR 102-114 (initial denial); AR 116-128 4 5 (reconsideration denial).) A hearing was held before an ALJ on May 6, 2021. (AR 43-67.) 6 In a decision dated November 8, 2021, the ALJ determined Moore was not disabled. (AR 7 24-36.) On November 8, 2022, the Appeals Council denied review thus making the ALJ’s 8 9 decision final for judicial review. (AR 1-6.) See 42 U.S.C. §§ 405(g), 1383(c)(3). 10 Brief Relevant Factual Background 11 Moore was born in 1967 and holds a GED. (AR 268, 67-68.) She stopped working 12 13 in January 2015. (AR 67-68.) She has past work as an assembler, custodian and office 14 worker. (AR 268.) 15 Moore was referred by her primary care provider to Amany Hararah, Psy. D., for 16 evaluation and treatment. (AR 625.) On June 7, 2017, Dr. Hararah recorded Moore as 17 18 stating, “I need to get myself into some counseling. I need [to] start dealing with my pas[t]. 19 It has gotten to the point, where it’s getting to be to[o] much for me to handle . . .[.]” Id. 20 (emphasis omitted.) Dr. Hararah recorded Moore’s complaints as depression including 21 22 depressed mood, crying spells, insomnia, irritability, decreased concentration[,] trauma 23 including recurrent memories/thoughts, distressing dreams, flashbacks, hyperviligence, 24 avoidance and exaggerated startle response. (AR 625-626.) 25 26 On June 21, 2017, Moore is recorded by Dr. Hararah as “seeking services to address 27 depression.” (AR 668-669.) Dr. Hararah recorded Moore’s symptoms as “anxiety 28 including excessive worry, restlessness, muscle tension, hypervigilance [and] depression 1 including depressed mood, anhedonia, crying spells, insomnia, decreased energy, guilt, 2 decreased concentration.” (AR 669.) Dr. Hararah noted “sleep issues[,] including difficulty 3 falling asleep, difficulty staying asleep and non-restorative sleep.” Id. Dr. Hararah recorded 4 5 that Moore has a history of outpatient individual therapy. Id. On mental status exam, Moore 6 is recorded as alert, well groomed, tearful, pleasant and cooperative and guarded, with 7 depressed mood and fair insight. (AR 671.) Dr. Hararah diagnosed Moore with post- 8 9 traumatic stress disorder (“PTSD”) and referred her to “the acute PTSD group.” (AR 671- 10 672.) 11 On August 2, 2017, Dr. Hararah saw Moore for a psychiatric follow-up visit. (AR 12 13 643-647.) Dr. Hararah recorded that “pt reported that her symptoms have slightly 14 improved.” (AR 643.) Dr. Harrah recorded that Moore continues to experience anxiety and 15 flashbacks and that she also has dreams of getting into a car accident with her daughter and 16 ex-husband chasing them. Id. Dr. Hararah referred Moore to “the anxiety group as a start” 17 18 with an intent to transition her to the trauma group and eventually to the PTSD group. Id. 19 On August 9, 2017, Dr. Hararah saw Moore via telehealth. (AR 1306-1310.) Dr. 20 Hararah recorded that Moore reported “taking Effexor 75 mg since Monday and has not 21 22 noticed a positive difference.” (AR 1306.) Moore is recorded as having more difficulties 23 with sleep and middle of the night awakenings due to nightmares surrounding a history of 24 trauma. Id. Dr. Hararah assessed Moore as, inter alia, scoring 51-60 on the DSM Axis V.2 25 26 2 Axis V is for reporting the clinician's judgment of the individual's overall level of 27 functioning. A score of 51-60 indicates “Moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, 28 occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers).” See https://www.edwardpierce.net/super/Axis5.htm (last visited Nov. 14, 2023). 1 (AR 1307.) 2 On October 6, 2017, Nathan Edmundson, Psy. D., conducted a consultative 3 examination. (AR 1284-1289.) Moore’s chief complaint is recorded as, “PTSD, fear of 4 5 being alone . . . Claimant reported symptoms of frequent sadness, nightmares, and 6 increased anxiety associated with past traumas.” (AR 1284.) Dr. Edmundson recorded that 7 Moore reported “having to deal with ‘so many things all my life, since a child.’” Id. Dr. 8 9 Edmundson recorded that Moore reported crying frequently and “seeing a doctor at Kaiser 10 for her mood.” Id. Dr. Edmunson recorded that Moore reported being abandoned by her 11 mother and sent to live with her grandparents as a child, after her half-brother died, due to 12 13 the emotional impact that her half-brother’s death had on her mother. (AR 1284-1285.) She 14 also reported suffering physical abuse by her previous husband. (AR 1284.) Her mood is 15 recorded by Dr. Edmundson as being “up and down” and the record reflects that Moore 16 suffered suicidal ideation in the past. (AR 1285.) 17 18 Dr. Edmunson recorded Moore’s diagnoses as PTSD and major depressive disorder, 19 moderate. (AR 1287.) He also opined, inter alia, that Moore is moderately limited in her 20 ability to complete a normal workday or workweek without interruptions resulting from 21 22 her psychiatric conditions “as [her] depression occurs regularly.” (AR 1288.) Dr. 23 Edmunson opined that Moore is mildly to moderately limited in her ability to interact with 24 coworkers and with the public due to her “PTSD, anxiety, and depressive symptoms.” Id. 25 26 Dr. Edmunson opined that Moore is moderately limited in her ability to “deal with the 27 usual stresses encountered in [a] competitive work environment” due to her “PTSD, 28 anxiety, and depression.” Id. Dr. Edmunson also opined that Moore is mildly limited in her 1 ability to perform work activities on a consistent basis reasoning that “depression 2 contributes to some distractibility evident by [Moore’s] difficulty with attention and 3 concentration tasks.” (AR 1288.) Dr. Edmunson opined that Moore’s “memory difficulties 4 5 may require a supervisor to repeat instructions or provide prompts periodically throughout 6 the day.” Id. Dr. Edmunson provided a narrative opinion as follows: 7 Given the claimant’s psychiatric and treatment history and results of this 8 evaluation, it appears that the mental health symptoms may be chronic in 9 nature. Given the current diagnosis, it appears that the claimant’s current mental health condition may not abate on its own within a one-year period. 10 The claimant presented as polite and cooperative, but moderately depressed 11 and anxious. She has long standing depressive symptoms along with anxiety and nightmares related to her PTSD symptoms. She is likely to have 12 difficulty tolerating stressful work environments due to her mental health 13 symptoms, have difficulty making regular and consistent work attendance due to depression, and she is lily (sic) to have some difficulty interacting with 14 [the] general public due to anxiety, social avoidance, and her PTSD symptoms. It appears claimant functions best in having distractions to occupy 15 her mind. Because of this, it is likely a manageable workload could be helpful 16 for her psychologically as long as it does not add significant stress. With medication and continued comprehensive health care, claimant is likely to 17 show improvement and her prognosis is fair. 18 (AR 1288-1289.) (emphasis in original). 19 20 The ALJ’s Decision 21 At step one, the ALJ determined that Moore had not engaged in substantial gainful 22 activity since March 4, 2017, the alleged onset date, through June 30, 2019, her date last 23 24 insured. (AR 26.) At step two, the ALJ determined that Moore suffered from the severe 25 impairments of degenerative disc disease, rotator cuff tendinosis without tear, epicondylitis 26 of the left elbow, status post left elbow extensor carpi radialis brevis debridement with 27 tendon repair, and status post left radial tunnel release. Id. At step three, the ALJ 28 1 determined Moore did not suffer from an impairment or combination of impairments that 2 met or equaled a listed impairment. (AR 27-28.) After step three but before step four, the 3 ALJ determined Moore’s residual functional capacity (“RFC”) as follows: 4 5 [T]he claimant ha[s] the [RFC] to perform light work as defined in 20 CFR 404.1567(b) except the claimant can occasionally push and pull with the left 6 upper extremity, occasionally reach overhead with the left upper extremity, 7 frequently claim ramps and stairs, never climb ladders, ropes, and scaffolds, and occasionally crawl. 8
9 (AR 29.) At step four, the ALJ determined that Moore is capable of performing her past 10 relevant work as a bag loader and janitor. (AR 35.) Consequently, the ALJ found that 11 Moore was not under a disability at any time from March 4, 2017, her alleged onset date, 12 13 through June 30, 2019, her date last insured. (AR 36.) 14 STANDARDS OF REVIEW 15 “The ALJ is responsible for determining credibility, resolving conflicts in medical 16 testimony, and for resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th 17 18 Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989)). The findings 19 of the Commissioner are meant to be conclusive if supported by substantial evidence. 42 20 U.S.C. § 405(g). Substantial evidence is “more than a mere scintilla but less than a 21 22 preponderance.” Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (quoting Matney v. 23 Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)). The court may overturn the decision to 24 deny benefits only “when the ALJ’s findings are based on legal error or are not supported 25 26 by substantial evidence in the record as a whole.” Aukland v. Massanari, 257 F.3d 1033, 27 1035 (9th Cir. 2001). This is so because the ALJ “and not the reviewing court must resolve 28 conflicts in the evidence, and if the evidence can support either outcome, the court may not 1 substitute its judgment for that of the ALJ.” Matney, 981 F.2d at 1019 (quoting Richardson 2 v. Perales, 402 U.S. 389, 400 (1971)); Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 3 1190, 1198 (9th Cir. 2004). The Commissioner’s decision, however, “cannot be affirmed 4 5 simply by isolating a specific quantum of supporting evidence.” Sousa v. Callahan, 143 6 F.3d 1240, 1243 (9th Cir. 1998) (citing Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 7 1989)). Reviewing courts must consider the evidence that supports as well as detracts from 8 9 the Commissioner’s conclusion. Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975). 10 ISSUES ON REVIEW 11 Moore raises three issues for review. (Doc. 24 at 3.) First, she urges that the ALJ 12 13 erred in evaluating her treating physicians’ opinions thereby resulting in an improper RFC. 14 Id. at 4-10. Second, she urges that the ALJ erred in failing to assign limitations due to her 15 knee pain. Id. at 10-15. Third, she urges that the ALJ improperly assessed her mental 16 limitations. Id. at 15-18. The Commissioner defends the ALJ’s decision. (Doc. 26.) As 17 18 more fully explained below, the Court agrees with Moore on her third issue. Remand for 19 further administrative proceedings is recommended. 20 ANALYSIS 21 22 Moore makes two arguments in support of her claim that the ALJ improperly 23 assessed her mental impairments. First, she urges that the ALJ erred in finding at step two 24 that her mental impairments are non-severe.(Doc. 24 at 15.) Second, she urges that the ALJ 25 26 failed to consider her mild impairment in concentrating, persisting or maintaining pace in 27 formulating her RFC. Id. at 17. 28 … 1 Mental Limitations Finding 2 “An impairment or combination of impairments may be found ‘not severe only if 3 the evidence establishes a slight abnormality that has no more than a minimal effect on an 4 5 individual's ability to work.’” Webb v. Barnhart, 433 F.3d 683, 686–87 (9th Cir. 2005) 6 (quoting Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996)). “If an adjudicator is unable 7 to determine clearly the effect of an impairment or combination of impairments on the 8 9 individual's ability to do basic work activities, the sequential evaluation should not end 10 with the not severe evaluation step.” Webb, 433 F.3d at 687 (quoting S.S.R. No. 85–28 11 (1985)). “Step two, then, is a ‘de minimus screening device [used] to dispose of groundless 12 13 claims,’ Smolen, 80 F.3d at 1290, and an ALJ may find that a claimant lacks a medically 14 severe impairment or combination of impairments only when his conclusion is ‘clearly 15 established by medical evidence.’” Webb, 433 F.3d at 687 (quoting S.S.R. 85-28). 16 At step two, the ALJ found that Moore’s mental limitations are not severe. (AR 28.) 17 18 The ALJ assessed Moore’s mental limitations as required by 20 C.F.R. pts. 404.1520a, 19 416.920a. (AR 27-28.) In doing so, the ALJ determined that Moore has: (1) no limitation 20 in understanding, remembering, or applying information; (2) no limitation in interacting 21 22 with others; (3) mild limitation in concentrating, persisting, or maintaining pace; and (4) 23 no limitation in adapting or managing herself. Id. 24 As explained below, this Court finds that the ALJ failed to support with substantial 25 26 evidence her determination that Moore has no limitation in her ability to understand, 27 remember, or apply information and that she also has no limitation in her ability to interact 28 with others, and that she is mildly limited in her ability to concentrate, persist or maintain 1 pace. This Court finds no error with respect to the ALJ’s finding that Moore has no 2 limitation in her ability to adapt and manage herself. 3 Understanding, Remembering and Applying Information 4 5 As mentioned, the ALJ determined that Moore has no limitation in her ability to 6 understand, remember and apply information. (AR 27.) In reaching this determination the 7 ALJ relied on a portion of Dr. Edmunson’s evaluation wherein Dr. Edmunson found that 8 9 Moore “exhibited adequate fund of knowledge, fair memory, intact linear[] and logical 10 thought processes, and unremarkable thought content.” Id. citing AR 1287. The ALJ also 11 purportedly cited to three records that she determined evidence “mental status 12 13 examinations [that] show that the claimant had intact recent memory.” Id. citing AR 634, 14 671, 1547. This Court examines the evidence relied upon by the ALJ in reverse. 15 A review of AR 634, 671 and 1547 reveal that they are all the same record of 16 Moore’s June 21, 2017 visit with Dr. Hararah. The ALJ’s citation gives the appearance that 17 18 three distinct medical records support her finding that mental status examinations (plural) 19 show that Moore had recent intact memory when that is not the case. Significantly, and not 20 mentioned by the Commissioner, less than two months later, on August 9, 2017, Moore is 21 22 recorded by Dr. Hararah as scoring 51-60 on the Global Assessment of Functioning scale. 23 This scoring demonstrates that Dr. Hararah determined that Moore has moderate difficulty 24 in social, occupational or school functioning. (AR 1307.) 25 26 As mentioned above, the ALJ also relied upon a portion of Dr. Edmundson’s report. 27 In doing so, the ALJ also appears to have failed to consider Dr. Edmunson’s report as 28 whole. It is true that Dr. Edmunson recorded that Moore exhibited adequate fund of 1 knowledge, fair memory, intact linear and logical thought processes, and unremarkable 2 thought content. However, Dr. Edmunson also opined that Moore is mildly limited in her 3 “ability to perform work activities on a consistent basis . . . as depression contributes to 4 5 some distractibility evident by her difficulty with attention and concentration tasks.” Dr. 6 Edmunson further explained that Moore’s “memory difficulties may require a supervisor 7 to repeat instructions or provide prompts periodically throughout the day.” (AR 1288.) The 8 9 ALJ’s decision does not reflect that she considered these opinions by Dr. Edmunson in 10 reaching her determination that Moore has no limitation in her ability to understand, 11 remember and apply information. 12 13 In light of the foregoing, this Court finds that the ALJ’s determination that Moore 14 has no limitation in her ability to understand, remember and apply information is not 15 supported by substantial evidence. 16 Social Interaction 17 18 The ALJ determined that Moore has no limitation in her ability to interact socially 19 with others. (AR 27.) The ALJ supports her determination with Moore’s adult function 20 report and a record from a November 28, 2016 hospital visit. Id. citing 295-296 (function 21 22 report), 725 (November 28, 2016 record of hospital visit). 23 The ALJ accurately records Moore’s self-report in her adult function report that she 24 has no difficulty getting along with family, friends or others. The ALJ also accurately notes 25 26 that Moore also indicated that she goes out alone, shops in stores, and is active in her 27 church. 28 However, this Court finds the ALJ’s erroneously relied on the record of Moore’s 1 hospital visit. As mentioned above, Moore’s alleged disability onset date is March 4, 2017. 2 The November 28, 2016 hospital visit record relied upon by the ALJ predates March 4, 3 2017. This Court finds that the ALJ’s reliance on a medical record generated before the 4 5 relevant time period is insufficient to support a finding that Moore has no limitation in her 6 ability to interact with others. 7 This Court also finds that Moore’s adult function report, now standing alone, is not 8 9 substantial evidence to support her determination that Moore has no limitation in her ability 10 to interact with others. Significantly, the ALJ appears to have failed to consider Dr. 11 Edmunson’s opinion regarding Moore’s capacity for social interaction. (AR 1285-1289.) 12 13 Dr. Edmunson opined that “[w]ith ability to interact with coworkers and with the public, 14 [Moore] is mildly to moderately limited due to her PTSD, anxiety, and depressive 15 symptoms.” (AR 1288.) Dr. Edmunson also opined that Moore’s “ability to accept 16 instruction from supervisors . . . is mildly limited in that her depression, PTSD, and 17 18 associated anxiety could cause instructions to be interpreted as [a] negative reflection on 19 her ability and ultimately lead to crying spells.” Id. 20 On balance, this Court determines that the ALJ’s reliance solely on Moore’s adult 21 22 function report while ignoring Dr. Edmunson’s opinion formed after his consultation 23 examination, is insufficient to support a finding at step two that Moore has no limitation in 24 her ability to interact with others. 25 26 Concentration, Persistence and Pace 27 The ALJ found that Moore is mildly limited in her ability to concentrate, persist or 28 maintain pace. (AR 28.) The ALJ supported her finding by noting that Dr. Edmunson 1 recorded that Moore was able to recite four digits forward and two in reverse, that she was 2 able to spell “world,” and that although she had difficulty subtracting by threes, it was 3 likely because of Moore’s difficulties with the English language. (AR 28.) The ALJ also 4 5 relied upon her finding that “[e]lsewhere in the record . . . [Moore] had good impulse 6 control, logical thought processes, and normal thought content.” Id. citing AR 634 (Dr. 7 Hararah’s June 21, 2017 record), 671 (Dr. Hararah’s June 21, 2017 record), 1547 (Dr. 8 9 Hararah’s June 21, 2017). 10 Taking the ALJ’s cited evidence in reverse, the ALJ cited the same June 21, 2017 11 record of Moore’s visit with Dr. Hararah three times thus making it appear that her finding 12 13 is supported by multiple separate medical records rather than one single medical record 14 that is contained in the AR multiple times.3 Additionally, while highlighting Dr. 15 Edmunson’s finding that Moore was able to recite four digits forward and two in reverse, 16 that she was able to spell “world,” the ALJ appears to have neglected to consider Dr. 17 18 Edmunson’s other specific opinions. For instance, Dr. Edmunson also opined that Moore 19 is mildly limited in her ability to perform work activities on a consistent basis and that she 20 is moderately limited in her ability to complete a normal workday or workweek without 21 22 interruptions as a result of her psychiatric condition namely, depression. (AR 1288.) 23 The ALJ also failed to mention and grapple with Dr. Hararah’s August 9, 2017 24 scoring of Moore at 51-60 on the Global Assessment of Functioning scale. Dr. Hararah’s 25 26 scoring indicates that she opined that Moore has moderate difficulty in social, occupational 27 3 (As noted above, the ALJ also cited Dr. Hararah’s June 21, 2017 medical record three 28 times in support of her finding that Moore has no limitation in her ability to understand, remember and apply information.) 1 or school functioning. (AR 1307.) 2 In light of the foregoing, this Court finds that the ALJ’s determination that Moore 3 is mildly limited in her ability to concentrate, persist or maintain pace is not supported by 4 5 substantial evidence. 6 Ability to Adapt and Manage Oneself 7 The ALJ determined that Moore has no limitation in her ability to adapt and manage 8 9 herself. (AR 28.) In reaching this determination, the ALJ relied upon Moore’s adult self- 10 function report. Id. citing AR 295-294. In her adult self-function report, Moore reported 11 that she is able to bathe and dress herself, prepare simple meals, do household chores, drive 12 13 and go out alone, and manage her personal finances. (AR 295-294.) Neither Dr. 14 Edmunson’s report, nor medical records from Dr. Hararah, provide any evidence to the 15 contrary. Moore has not pointed to any evidence to the contrary. This Court determines 16 that the ALJ’s finding that Moore has no limitation in her ability to adapt and manage 17 18 herself is supported by substantial evidence. 19 The Commissioner argues that the ALJ was correct in her step two finding by urging 20 that the ALJ correctly noted that Dr. Edmunson observed Moore had no diminution of daily 21 22 functioning due to her mental health impairments. (Doc. 26 at 13.) The Commissioner 23 points out that Dr. Edmunson recorded that Moore “denied having limitations with daily 24 living resulting from psychiatric, emotional, and/or cognitive issues.” Id. citing AR 1286. 25 26 The Commissioner also points out that Dr. Edmunson recorded that Moore does not need 27 help with preparing meals, that she is able to make change at the store and that she spends 28 her day reading, doing light gardening and housework, and watching television. Id. While 1 an accurate representation of a portion of Dr. Edmunson’s report, the Commission ignores 2 Dr. Edmunson’s more specific, details opinions on Moore’s ability to function in the 3 workplace from a psychological standpoint. See AR 1287-1288. 4 5 The Commissioner also cites to a November 27, 2016 record from Jerry Chung Lee, 6 M.D., that notes that Moore screened negative for depression. (Doc. 26 at 14, citing AR 7 709.) This medical record from Dr. Lee is from Moore’s visit to the hospital for abdominal 8 9 pain, nausea, vomiting and flu like symptoms. (AR 708.) There is no indication that Dr. 10 Lee performed any diagnostic screening for depression at this hospital visit. Id. This record 11 was also generated prior to Moore’s alleged onset date of March 4, 2017 and is thus of 12 13 limited, if any, probative value. 14 The Commissioner also cites Dr. Hararah’s August 2, 2017 record representing that 15 Moore’s symptoms “had improved.” (Doc. 26 at 14.) However, this August 2, 2017 16 medical record states, “[s]ince last visit, pt reported that her symptoms have slightly 17 18 improved.” (AR 643.) (emphasis added.) This medical record further records that Moore 19 “[c]ontinues to experience anxiety and flash backs[,]” and that she suffers “nightmares that 20 are very distressing.” Id. The Commissioner also points to a reference in this medical 21 22 record that notes, “since the last visit these symptoms have been stable.” (AR 658.) 23 However, just prior to this “symptoms have been stable” language, Dr. Hararah’s August 24 2, 2017 medical record notes that Moore’s chief complaint is addressing her symptoms 25 26 involving anxiety. Id. The term “stable” indicates that something is not likely to change or 27 28 1 come to an end suddenly.4 Accordingly, examining the August 2, 2017 medical record as 2 a whole, Dr. Hararah’s use of the word “stable” indicates Dr. Hararah’s opinion is that 3 Moore’s anxiety is unlikely to change suddenly. 4 5 In sum, this Court finds that the ALJ’s determinations at step two that Moore has no 6 limitation in her ability to understand, remember or apply information and that she has no 7 limitation in her ability interact with others, and that she is mildly limited her in ability to 8 9 concentrate, persist or maintain pace are not supported by substantial evidence. 10 Harmful Error 11 Having found error, the curt must determine whether the error is harmful. Harmless 12 13 error has been described as whether “the ALJ’s error did not materially impact [her] 14 decision.” Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1054–55 (9th Cir. 2006). See 15 also Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006) (holding that an error 16 is harmless if it was “inconsequential to the ultimate non[-]disability determination[.]” 17 18 (internal quotation marks omitted)). 19 This Court determines that the ALJ’s error is not harmless. As mentioned above, 20 “[s]tep two . . . is a de minimus screening device [used] to dispose of groundless claims[.]” 21 22 Smolen, 80 F.3d at 1290. (internal quotations omitted.) An ALJ may find that a claimant 23 lacks a medically severe impairment or combination of impairments only when his 24 conclusion is ‘clearly established by medical evidence.” Webb, 433 F.3d at 687 (quoting 25 26 S.S.R. 85-28) (internal quotations omitted.) As explained above, this Court finds that the 27
28 4 See, e.g., https://www.collinsdictionary.com/us/dictionary/english/stable-condition (last visited Nov. 15, 2023). 1 ALJ’s conclusions that Moore has no limitation in her ability to understand, remember or 2 apply information and that she has no limitation in her ability interact with others, and that 3 she is mildly limited her in ability to concentrate, persist or maintain pace are not clearly 4 5 established by the medical evidence. 6 If the ALJ had rendered a finding that Moore is limited to any degree in her ability 7 to understand, remember or apply information or that she is limited to any degree in her 8 9 ability to interact with others the ALJ would have would have been required to consider 10 these limitations in formulating Moore’s RFC. This is because in formulating an RFC, an 11 ALJ is required to consider all of a claimant’s medically determinable impairments, even 12 13 those that are not severe. See 20 C.F.R. 404.1545(a)(2) (“We will consider all of your 14 medically determinable impairments of which we are aware, including your medically 15 determinable impairments that are not “severe,” as explained in §§ 404.1520(c), 404.1521, 16 and 404.1523, when we assess your residual functional capacity.”).5 17 18 In light of the foregoing, this Court determines that the ALJ’s error in assessing 19 Moore’s mental limitations at step two as explained above is not harmless. 20 Consideration of Moore’s Mild Limitation in Formulating the RFC 21 22 Assuming, arguendo, that the ALJ’s error at step two in assessing Moore’s mental 23 limitations6 is not harmless (and as explained above this Court finds otherwise), this Court 24 also finds that the ALJ erred in failing to consider Moore’s mild limitation in her ability to 25
26 5 Under 20 C.F.R. pt. 404.1545(a)(2) the ALJ is required to consider her finding that Moore 27 is mildly limited her in ability to concentrate, persist or maintain pace in determining Moore’s RFC. As discussed infra, this Court finds that the ALJ failed to do so. 28 6 (except the ALJ’s determination regarding Moore’s ability to adapt and manage herself) 1 concentrate, persist or maintain pace in formulating the RFC. Moore argues that she is, by 2 the RFC formulation, “not even limited to simple, unskilled tasks, [and i]s assigned no 3 mental health limitations whatsoever.” (Doc. 24 at 17.) This Court construes Moore’s 4 5 argument as being that the ALJ erroneously failed to consider her mild limitation in her 6 ability to concentrate, persist or maintain pace in formulating her RFC. The Commissioner 7 does not squarely address Moore’s assertion. (Doc. 26 at 12-15.) For the reasons set forth 8 9 below, the Court agrees with Moore. 10 As mentioned above, an ALJ is required to consider all of a claimant’s medically 11 determinable impairments, even those that are not severe, in formulating a claimant’s RFC. 12 13 See 20 C.F.R. 404.1545(a)(2). As also mentioned above, the ALJ determined that Moore 14 is mildly limited in her ability to concentrate, persist or maintain pace. (AR 28.) However, 15 the ALJ's decision provides no indication that she considered Moore’s mild limitation in 16 her ability to concentrate, persist or maintain pace in determining Moore’s RFC. (AR 29- 17 18 35.)7 The entirety of the ALJ’s RFC formulation discussion is devoted to Moore’s physical 19 impairments. Id. 20 Because there is no indication from the ALJ’s decision that she considered Moore’s 21 22 mild limitation in her ability to concentrate, persist and maintain pace in formulating the 23 RFC, this Court finds that the RFC is not supported by substantial evidence. See Solomon 24 v. Comm'r of Soc. Sec. Admin., 376 F. Supp. 3d 1012, 1021 (D. Ariz. 2019) (finding error 25 26 27 7 The ALJ included a limitation to “simple, routine work” in a hypothetical posed to the VE. See AR 60. However, without any explanation, the ALJ failed to include this “simple, 28 routine work” limitation in the RFC formulation. (AR 29.) 1 where the ALJ’s order provides no indication that the ALJ considered the claimant’s mild 2 limitation in social functioning and concentration, persistence and pace when evaluating 3 the claimant’s RFC) (citing Ghanim v. Colvin, 763 F.3d 1154, 1166 (9th Cir. 2014) 4 5 (holding that “[i]n determining a claimant's residual functional capacity, the ALJ must 6 consider all of a claimant's medically determinable impairments, including those that are 7 not severe.”); De La Cruz v. Colvin, 2014 WL 2865076, *2-3 (C.D. Cal. 2014) (remanding 8 9 because ALJ failed to assess all of the claimant's medically determinable impairments in 10 the RFC analysis); Winter-Duncan v. Astrue, 2012 WL 1641891, *4 (W.D. Wash. 2012) 11 (same)). See also Hutton v. Astrue, 491 Fed. Appx. 850, 850 (9th Cir. 2012) (holding the 12 13 ALJ erred “in failing to include Hutton’s post-traumatic stress disorder . . . in his 14 hypotheticals to the vocational expert at Step Five,” after finding it caused the claimant 15 “‘mild’ limitations in the areas of concentration, persistence, or pace”); Silvester H. v. 16 Kijakazi, Case No. 5:20-cv-02503-SP, 2022 WL 4466717, at *7-8 (C.D. Cal. Sept. 26, 17 18 2022) (collecting cases and finding that “[d]espite the ALJ's assurances, the opinion does 19 not include any discussion or analysis of how plaintiff's non[-]severe mental impairments 20 were factored into the RFC determination, and the RFC itself does not contain any non[- 21 22 ]exertional limitations . . . For this reason, it is not clear to the court that in determining 23 plaintiff's RFC the ALJ actually considered the mild limitations across the functional areas 24 found at step two.”). 25 26 Harmful Error 27 Having found error, this Court must determine whether the error is harmful. An 28 error is harmless if it was “inconsequential to the ultimate non[-]disability 1 determination[.]”Robbins, 466 F.3d at 885 (holding that an” (internal quotation marks 2 omitted)). This Court cannot determine whether the outcome at step four (or five, which 3 was not reached in this case) would be the same had the ALJ not erred. See generally, Aida 4 5 I. v. Saul, Case No. 3:19-cv-00476-AJB-RNB, 2020 WL 434319, at *4-5 (S.D. Cal. Jan. 6 28, 2020) (holding that “the [c]ourt cannot determine how the VE would have testified had 7 the specific mild functional limitations to which Dr. Nicholson had opined been included 8 9 in the hypotheticals posed.”). This Court determines that the ALJ’s failure to consider 10 Moore’s mild limitation in her ability to concentrate, persist or maintain pace in her RFC 11 formulation is not harmless. 12 13 Remand is Recommended 14 Upon finding the ALJ committed reversible error, the district court has the 15 discretion to remand or reverse and award benefits. Mack v. Saul, No. 1:18-cv-01287- 16 DAD-BAM, 2020 WL 2731032, at *3 (E.D. Cal. May 25, 2020) (citing McAllister v. 17 18 Sullivan, 888 F.2d 599, 603 (9th Cir. 1989)). The Ninth Circuit Court of Appeals has held 19 that, “[g]enerally, we direct the award of benefits in cases where no useful purpose would 20 be served by further administrative proceedings, or where the record has been thoroughly 21 22 developed.” Mack, 2020 WL 2731032, at *3 (quoting Ghokassian v. Shalala, 41 F.3d 1300, 23 1304 (9th Cir. 1994)). “Where . . . an ALJ makes a legal error, but the record is uncertain 24 and ambiguous, the proper approach is to remand the case to the agency.” Treichler v. 25 26 Comm’r of Social Sec. Admin., 775 F.3d 1090, 1105 (9th Cir. 2014); see also Garrison v. 27 Colvin, 759 F.3d 995, 1021 (9th Cir. 2014). 28 1 This Court determined that remand to the Commissioner is required so that the ALJ 2 may first consider whether Moore is limited in her in her ability to understand, remember 3 or apply information and whether she is limited in her ability to interact with others in light 4 5 of the evidence contained in the AR as discussed above. Remand is also required so that 6 the ALJ may consider in her RFC formulation, in the first instance, Moore’s mild limitation 7 in her ability to concentrate, persist or maintain pace. 8 9 Moore’s Remaining Issues 10 As explained above, this Court finds that remand to the Commissioner is 11 appropriate. On remand, Moore’s other claims brought for review should also be 12 13 considered. See Augustine ex rel. Ramirez v. Astrue, 536 F. Supp. 2d 1147, 1153 n.7 (C.D. 14 Cal. 2008) (determining that “th[e] [c]ourt need not address the other claims plaintiff raises, 15 none of which would provide plaintiff with any further relief than granted, and all of which 16 can be addressed on remand.”); Slover v. Kijakazi, Case No. 1:21-cv-01089-ADA-BAM, 17 18 2023 WL 5488416, at *5 (E.D. Cal. Aug. 23, 2023) (declining to address claimant’s 19 remaining arguments upon finding error requiring remand); Hiler v. Astrue, 687 F.3d 1208, 20 1212 (9th Cir. 2012) (holding that “because we remand the case to the ALJ for the reasons 21 22 stated, we decline to reach [the claimant’s] alternative ground for remand”). 23 RECOMMENDATION 24 For the foregoing reasons, it is RECOMMENDED that the district court 25 26 REVERSE the decision of the Administrative Law Judge and remand the matter to the 27 Commissioner for further administrative proceedings. Pursuant to Federal Rule of Civil 28 Procedure 72(b)(2), any party may serve and file written objections within fourteen days || of being served with a copy of the Report and Recommendation. A party may respond to 2 the other party’s objections within fourteen days. No reply brief shall be filed on objections 3 4 unless leave is granted by the district court. If objections are not timely filed, they may be || deemed waived. If objections are filed, the parties should use the following case number: ©} 4:22-ev-550-RM. 7 g Dated this 16th day of November, 2023. 9 10 .
12 Hofforable Jacqueline M. Rateau 3 United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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