1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Kayla Moore, No. CV-21-00101-TUC-CKJ
10 Plaintiff, ORDER
11 v.
12 Commissioner of Social Security Administration, 13 Defendant. 14 15 This matter was referred to Magistrate Judge Maria S. Aguilera, pursuant to Rules 16 of Practice for the United States District Court, District of Arizona (Local Rules), Rule 17 (Civil) 72.1(a). On July 14, 2022, the Magistrate Judge issued a Report and 18 Recommendation (R&R). She recommends that the Court affirm the denial of disability 19 benefits issued by the Social Security Administration (Commissioner). For reasons 20 explained below, the Court does not adopt this recommendation. Instead, the Court 21 remands the case back to the Commissioner for reconsideration of Plaintiff’s Residual 22 Functional Capacity (RFC) and eligibility for disability benefits. 23 STANDARD OF REVIEW 24 The duties of the district court in connection with a R&R by a Magistrate Judge are 25 set forth in Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The 26 district court may “accept, reject, or modify, in whole or in part, the findings or 27 recommendations made by the magistrate judge.” Fed.R.Civ.P. 72(b); 28 U.S.C. § 28 636(b)(1). Where the parties object to a R&R, “‘[a] judge of the [district] court shall make 1 a de novo determination of those portions of the [R&R] to which objection is made.’” 2 Thomas v. Arn, 474 U.S. 140, 149-50 (1985) (quoting 28 U.S.C. § 636(b)(1)). 3 This Court's ruling is a de novo determination as to those portions of the R&R to 4 which there are objections. 28 U.S.C. § 636(b)(1)(C); Wang v. Masaitis, 416 F.3d 992, 5 1000 n. 13 (9th Cir.2005); United States v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th 6 Cir.2003) (en banc). To the extent that no objection has been made, arguments to the 7 contrary have been waived. Fed. R. Civ. P. 72; see 28 U.S.C. § 636(b)(1) (objections are 8 waived if they are not filed within fourteen days of service of the R&R), see also McCall 9 v. Andrus, 628 F.2d 1185, 1187 (9th Cir. 1980) (failure to object to Magistrate's report 10 waives right to do so on appeal); Advisory Committee Notes to Fed. R. Civ. P. 72 (citing 11 Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974) (when no timely 12 objection is filed, the court need only satisfy itself that there is no clear error on the face of 13 the record in order to accept the recommendation)). 14 The parties were sent copies of the R&R and instructed that, pursuant to 28 U.S.C. 15 § 636(b)(1), they had 14 days to file written objections. See also, Fed. R. Civ. P. 72 (party 16 objecting to the recommended disposition has fourteen (14) days to file specific, written 17 objections). The Court has considered the objections filed by the Plaintiff, and the parties’ 18 briefs considered by the Magistrate Judge in deciding the merits of Plaintiff’s appeal of the 19 Commissioner’s decision finding her not disabled. 20 R&R & OBJECTIONS 21 The Plaintiff objects to the R&R for two reasons. First, Plaintiff argues that the 22 Magistrate Judge failed to recognize the ALJ erred by failing to account for Plaintiff’s 23 “marked” limitations in interacting with others and instead applied only moderate 24 limitations. Second, the Magistrate Judge erred by concluding the ALJ accounted for all 25 Plaintiff’s symptoms and found her not disabled when instead the ALJ found the Plaintiff’s 26 statements concerning severity were not entirely consistent with the medical evidence and 27 other evidence in the record. In her Opening Brief, the Plaintiff argued that the ALJ 28 improperly discounted Plaintiff’s symptom testimony because he failed to offer specific, 1 clear and convincing reasons for rejecting claimant’s testimony about the severity of her 2 symptoms. (Opening Brief (Doc. 22) at 11-18.) 3 Plaintiff, who was 21 years old, filed her application for disability insurance benefits 4 in 2016, seeking coverage from an onset date of May 2012 through the last insured date of 5 June 30, 2014. The issue is whether Plaintiff is disabled, defined as: the inability to engage 6 in any substantial gainful activity by reason of any medically determinable physical or 7 mental impairment or combination of impairments that can be expected to result in death 8 or that has lasted or can be expected to last for a continuous period of not less than 12 9 months. (Decision issued June 1, 2020 (Decision) (Doc. 19-3) at 15.)1 10 The R&R fails to summarize the record in any detail, and this Court does not intend 11 to do so here—except for those portions of the record set out by the Administrative Law 12 Judge (ALJ) in the decision. 13 Plaintiff, a younger individual, had a stroke shortly before being discharged from 14 the military. She was treated in Korea, and the VA treatment notes reflect that on May 12, 15 2012, she was admitted for acute care as follows: “Three-week history of inability to speak, 16 does not appear to be emotionally troubled by this "la belle indifference." Patient is 17 otherwise neurologically intact, is able to indicate by texting on her iPhone, is able to 18 enunciate "uh-huh" and "ummm". She is not SI or HI. I think she has somatization d/o or 19 other psychogenic d/o and that her loss of voice is not organic in nature. She was seen by 20 social worker who made an urgent mental health appointment for Monday at 9am, which 21 she agreed to attend. . . . Diagnosis: Aphasia Likely due to somatization d/o NOS.” Id. at 22 20. She indicated losing her ability to speak while stationed in Korea “but did not seek 23 treatment for three weeks. During that time, she was released from duty, returned to the 24 United States and was living alone in an apartment for two weeks.” Id. (cleaned up). 25 Claimant was examined on May 24, 2012, and “reported living independently in an 26 apartment and did not appear to be distressed about her inability to speak. She had a 27 generally unremarkable mental status examination except for blasé affect, apathetic mood 28 1 See CM/ECF documents and page citations. 1 and poor insight. She was diagnosed with a personality disorder and somatoform disorder.” 2 Id. (cleaned up). 3 In September 2012, Plaintiff underwent an evaluation for speech therapy, with a 4 brain MRI reflecting chronic appearing infarct with encephalomalcia of the left frontal and 5 temporal jobs. Id. Claimant reported her speech had returned and she estimated about 45% 6 improvement; she was enrolled in one class at PCC and wanted to pursue acting when her 7 speech returned. Id. “Speech language pathologist Jillian Golder noted the claimant had no 8 evidence of word finding difficulties. Ms. Golder noted 80% intelligibility in speech, 9 supplemented by writing to clarify. Further therapy was recommended to improve her 10 speech.” Id. 11 In October 2012, Plaintiff was referred for a psychiatric evaluation in October 2012 12 secondary to a November 2011 military sexual assault. She reported alcohol was involved, 13 and she couldn’t remember the incident because she blacked out. Although she notified the 14 authorities immediately and a rape kit was completed, the perpetrator was not prosecuted. 15 Like her reaction to the stroke, “she indicated she had no concerns or symptoms related to 16 the incident. Claimant indicated she was attending school and did not require any treatment. 17 She was assigned a GAF of 75.” Id. 18 In April 2013, at the insistence of her providers, she was examined for psychiatric 19 impairment. She reported the sexual assault. “She presented in a child like manner, had 20 inappropriate affect at times, poor insight and fair judgment but otherwise had an 21 unremarkable mental status examination.” Id. at 21. These provider notes are as follows: 22 in June 2013, she reported trying to get a job but was having difficulty due to poor speech 23 and lack of job skills, indicated poor sleep but noted playing video games with a friend in 24 the middle of the night, mental status examination same with a GAF of 58, referred for a 25 work therapy consultation for employment services; in July 2013, she continued to report 26 poor sleep due to her cats and their feeding schedule, feeling angry and stressed causing 27 her to cry. Id. 28 1 In August 2013, Plaintiff underwent a work therapy consultation, reported living 2 independently with a roommate, described her limiting factor as her inability to speak 3 properly, relied on a bus for transportation, applied for customer service jobs at Gamestop 4 and Hot Topic with a long-term goal of being an actress, reported having no physical 5 limitations for employment. The social worker, Allison Davis, indicated that although the 6 claimant had some speech difficulty, she was understandable; she assigned a GAF score of 7 60. Claimant apparently missed her follow-on appointment, due to report of oversleeping, 8 and her employment services case was closed. Id. 9 In August 2013, Plaintiff underwent a neurological examination secondary to 10 employment services. “Dr. Steven Rapcsak found no physical limitations including normal 11 gait, normal strength and normal reflexes. He recommended speech therapy to improve her 12 speech limitations.” Id. 13 “During her August 20, 2013, counseling appointment, claimant reported she 14 applied for a job online providing nude photos, which she believed would help raise her 15 self esteem.” Id. Social worker, Sue Dolence, warned her of the consequences of this type 16 of activity, and “noted the claimant displayed ‘magical thinking’ about the matter. 17 Claimant also reported she tried to return to college but was unable to pass assessment test, 18 which the social worker noted appeared inconsistent with a prior report that she was taking 19 a college course at Pima County. Ms. Dolence suggested claimant undergo further 20 psychological testing however after she failed to follow up on scheduling an appointment 21 and the referral was closed.” Id. (cleaned up). 22 On January 15, 2014, Plaintiff was again evaluated for speech therapy. She excused 23 her previous failure to follow through with therapy because she did not want to complete 24 the therapy activities; she reported wanting to start therapy so she could pursue acting. She 25 indicated she tried to apply for work at a department store but was denied due to her speech 26 limitations. “Speech pathologist Robin Mirante found mild verbal apraxia characterized by 27 intermittent mostly medial substitutions, vowel distortions and difficulty sound sequencing 28 increasing complex words and multi-syllable words,” which could be improved if Plaintiff 1 slowed her rate but she was reluctant to do so; claimant had no difficulty understanding 2 and while she reported difficulty with concentration at times, claimant reported she could 3 read for two hours at a time, depending on the subject matter. Ms. Mirante found no 4 evidence of comprehension difficulties or difficulty following directions. Prognosis was 5 good with practice. Id. at 21-22. 6 Claimant followed up February 5, 2014, reporting she had not been doing practice 7 exercises because she was moving and cleaning. She reported “looking for jobs at places 8 like Game stop, Hot Optic, Spencer’s and Target because they were more likely to hire 9 someone with her hair color (tinted purple) and a lip piercing.” Id. at 22 (cleaned up). She 10 was referred for vocational rehabilitation services for job placement assistance. Id. 11 On May 12, 2014, Plaintiff underwent formal psychiatric testing related to 12 vocational rehabilitation. She reported being depressed since the age of 12. Objective 13 testing found as follows: “Overall, Pt exhibited strengths and weaknesses relative to her 14 age peers in terms of attention and memory skills, demonstrates working memory deficits, 15 difficulty repeating numbers in the reverse order, difficulty with simple analogies such as 16 ‘collar is to neck as watch is to... (wrist)’ and ‘on is to start, as off is to... (stop).’ Her 17 performance on this measure is suggestive of reduced linguistic cognitive flexibility. 18 Visual auditory learning (30 minutes post immediate recall), Pt scored within normal 19 limits; verbal ability lies within one standard deviation from the mean; whereas cognitive 20 efficiency lies two standard deviations below the mean. Per results, Pt's primary area of 21 weakness is in working memory and generative naming. Difficulty with generative naming 22 is also suggestive of reduced cognitive flexibility and word retrieval.” Id. (cleaned up). 23 As of July 14, 2014, Plaintiff was released from therapy “after having gained 24 maximum benefit from speech therapy.” She was able to solve math problems with two 25 denominations of coins like seven nickels and two quarters with 60% accuracy. If given an 26 opportunity to check her work, she increased accuracy to 90%. With three denominations, 27 she demonstrated difficulty remembering the amount and denominations, with 40% 28 accuracy even with repetition. When allowed to write an external memory cue, accuracy 1 increased to 80%. She was able to self-correct four of her responses during the activity, 2 demonstrating good self-monitoring. Id. 3 “On October 8, 2014, shortly after her date last insured, the claimant underwent an 4 extensive psychological evaluation.” Id. at 23. She reported the above history, generally, 5 adding that “she had attended five counseling sessions but stopped after the counselor tried 6 to talk her out of posting nude photographs on the internet. She reported paranoia, mistrust 7 and social isolation; After a 3.5 hour examination, as well as review of the claimant’s chart 8 and objective test results, Katherine Brazaitis, psychology intern overseen by Staff 9 Psychologist, Nadine Cole, specifically rejected the diagnosis of somatoform disorder.” Id. 10 (cleaned up). 11 “Rather, claimant was found to have paranoid personality disorder, borderline 12 personality disorder and persistent depressive disorder. Evaluator Brazaitis found that the 13 claimant would likely benefit from vocational rehabilitative service, anger management 14 treatment, and general therapy. Plaintiff reported paranoia, mistrust and social isolation; 15 Plaintiff was observe to be fully oriented, alert, had appropriate eye contact, was open and 16 forthcoming during the examination and at times appeared markedly anxious.” Id. (cleaned 17 up). 18 At the hearing on December 3, 2019, Medical Expert (ME), Dr. Debra Pollack, 19 testified that the evidence supported the claimant’s allegation of an infarct in the left frontal 20 lobe, which would affect her dominant right side, occurring in May 2012. The ME accepted 21 Plaintiff’s report that initially she was unable to speak, which improved over time and now 22 Plaintiff has some speech impediment, but her speech was clear and understandable at the 23 hearing. The ME relied on medical notes from Dr. Pollack regarding Plaintiff’s complaints 24 of neck and back pain, with MRI’s being unremarkable. The ME confirmed “a cognitive 25 disturbance,” which according to Dr. Pollack indicated Petitioner “should have limited 26 contact with the public, can perform simple 1-2 step tasks only and should avoid exposure 27 to unprotected heights (ladders, ropes, scaffolds).” Id. at 19. The ME specified that 28 “limitations provided in the consultative examination of Dr. Maryanne Belton would be 1 accommodated by limitation to simple 1-2 step tasks.” Id. Regarding the use of a cane, the 2 record was unclear as to why she was falling and the evidence did not reflect a condition 3 that would warrant the use of a cane as that is generally for balance problems, not to prevent 4 falling, and she did not start using a cane until well after the relevant period of time for 5 determining disability. Id. 6 This is the record provided by the ALJ in the decision. He concluded the Plaintiff 7 has the following severe impairments: neurocognitive disorder caused by a stroke, 8 depressive disorder, anxiety disorder, paranoid personality disorder and borderline 9 personality disorder. He concluded that she had no single impairment or combination of 10 impairments that met or medically equaled the severity of one of the listed impairments. 11 Therefore, the ALJ had to determine whether the Plaintiff has the RFC to perform the 12 requirements of her past relevant work and if not, whether she is able to do any other work 13 considering her RFC, age, education, and work experience. If claimant is able to work, she 14 is not disabled. 15 In concluding the Plaintiff had no single impairment or combination of impairments 16 rendering her disabled, the ALJ opined, “[w]ith regard to her mental impairments, the 17 claimant has moderate limitations in understanding, remembering and applying 18 information; in ability to concentrate, persist or maintain pace; in ability to adapt and 19 manage oneself. She has marked limitation in social interaction with others.” Id. at 18. 20 Based on this finding of a “marked” limitation in social interaction with others, the Plaintiff 21 challenges the ALJ’s RFC as reflecting only moderate limitations, not marked limitations. 22 The RFC, which Plaintiff challenges, is as follows: Plaintiff “has the ability to 23 perform a full range of work at all exertional levels but with the following nonexertional 24 limitations: Due to her history of stroke, claimant should have no exposure to hazards such 25 as ladders, unprotected heights and moving machinery. She has the mental capacity to 26 perform work where interpersonal contact is only incidental to the work performed, i.e., 27 that interpersonal contact may be routine, but claimant is not frequently required to consult 28 with or involve co-workers and public contact is not a primary component of the work. 1 Such public contact that occurs is limited to that which is merely incidental to the job and 2 generally brief, infrequent and superficial. Performed tasks limited to tasks consistent with 3 unskilled work. No production or fast paced work.” Id. (emphasis added). 4 The Court does not address whether physical limitations in Plaintiff’s ability to 5 navigate work hazards affects Plaintiff’s ability to perform a full range of work, but notes 6 that the ALJ asked the ME: “Would there be any physical limitations for your RFC in terms 7 of whether sedentary, light or medium work would apply?” She answered that the Plaintiff 8 could certainly do “light work.” (Administrative Record (AR), Hearing TR 12/3/2019 9 (Doc. 19-3) at 67-68) (emphasis added). The ME also testified to further limitations related 10 to “speech/cognitive disturbance and those would be to have limited contact with public, 11 both in person and on the phone, and simple one and two-step tasks only.” Id. at 67 12 (emphasis added). Without any explanation, the ALJ’s RFC includes neither “light work” 13 nor “one and two-step tasks.” 14 The ALJ asked the ME whether there was any support in the medical record that the 15 Plaintiff “would need memory aides, like day planners, check lists to assist in organization 16 and retrieval of queues?” She replied in the negative if things were kept simple as she 17 suggested (one and two-step tasks). Id. at 69. 18 The ALJ asked the Vocational Expert (VE) to consider the following: “That 19 claimant is limited to a range of light work where all hazards such as ladders, ropes, 20 scaffolding, unprotected heights, moving machinery are removed, that she’s allowed to use 21 an assistive device and has the mental capacity to perform work where interpersonal 22 contact is only incidental to the work performed, i.e., that it may not be routine, the claimant 23 is frequently – and is not frequently required to consult with coworkers or the public and 24 public contact is not a primary component of the job. Such public contact that occurs is 25 merely incidental to the job, brief, infrequent, and superficial. Performed tasks are limited 26 to simple one to two-step tasks and claimant is allowed to use memory aides. Supervision 27 need not be direct but readily available. Minimal changes permitted. No production work. 28 Would there be jobs for a person with that degree of limitation?” Id. at 83. 1 The VE responded in the negative because of the indication for a device- guessing 2 the use of a cane? The VE continued that the Petitioner would be more appropriately placed 3 “in a sedentary capacity along with the one to two-step tasks that further limits her.” Id. at 4 84. But the need for memory aids sounds more like someone who needs to be in a sheltered 5 environment or supported work setting with an accommodation, which would not be a 6 competitive work environment. Id. 7 On May 5, 2020, the ALJ held a supplemental hearing “in part because of a defect 8 in a hypothetical that was posed” and some problems with trying to fit it to the situation 9 when he went to write the decision; he wanted clarification in the information that he had 10 before writing the decision. ((AR, Hearing TR 5/5/2020 (Doc. 19-3) at 32.) The ALJ 11 described the need to clarify the RFC without considering an assistive device, the cane, 12 because the period of eligibility predated the use of the cane. Id. at 34-37. The Plaintiff’s 13 attorney correctly noted that the VE opined “what was largely work preclusive was the 14 memory aids and readily available supervision sounding like sheltered work and that’s – 15 regardless of whether a cane was necessary or not.” Id. at 37. 16 After hearing more testimony from the Plaintiff, the ALJ decided to “stay with the 17 prior vocational testimony” and propose a couple of new hypotheticals. He asked the VE 18 to consider the capability of performing a range of light work, excepting hazards like 19 ladders and moving machinery, and to not do production or fast-paced work. The Plaintiff’s 20 mental capacity limitations were restated as they were stated at the December 3, 2019, 21 hearing. He changed the hypothetical by adding “performed tasks are limited to those 22 consistent with unskilled work and omitted the limitation of one and two-step tasks. Id. at 23 53. This time the VE responded that there was one job in the DOT2 which could be 24 performed by such a person: janitor/cleaner. Id. When the need for memory aids was added 25 into the hypothetical, the VE responded that “supported employment [] is not competitive.” 26 Id. at 54. 27 28 2 Dictionary of Occupational Titles. 1 The ALJ rejected the need for a sheltered work environment. He was not persuaded 2 that the Plaintiff had “poor insight and judgment, poor motivation, personality tendencies 3 to be passive yet hostile, and difficulty comprehending her own deficiencies, [and] all 4 speak to a person who needs a sheltered environment in order to succeed in the workplace.” 5 (Decision (Doc, 19-3) at 23. He found that “claimant may experience some of the 6 aforementioned symptomology,” but “she has also been able to live independently, and at 7 times with a roommate, navigate the bus system on her own, apply for jobs and attend 8 physician appointments.” Id. The ALJ concluded that the “degree to which her symptoms 9 may be limiting have been accommodated by the residual functional capacity outlined in 10 paragraph five.” Id. “In sum, the [] residual functional capacity assessment is supported by 11 the opinions of the state agency experts and the medical evidence of record. There is no 12 treating source opinion that the claimant is more limited than as provided in the above 13 residual functional capacity assessment.” Id. at 24. A review of the state agency expert 14 opinions reflect they opined the Plaintiff has “moderate” limitations in memory and social 15 interaction with others. (AR (Doc. 19-4) Ex. 2A at 3-13: Disability Determination 16 Explanation, 1/18/2016, and Ex. 4A at 15-26: Reconsideration Disability Determination 17 Explanation, 04/06/2017.) 18 According to the Objection, the ALJ’s RFC describes moderate limitations which 19 do not coincide with his step three assessment that Plaintiff has “marked” limitation in 20 social interaction with others. The Plaintiff refers to cases where the type of limitations 21 imposed here by the ALJ were imposed where a person had “moderate” social interaction 22 limitations, meaning their ability to interact with others was “fair” as compared to 23 “marked,” meaning “seriously limited.” (Opening Brief (Doc. 22) at 10 (citing Listings 24 12.00)). See Shaibi v. Berryhill, 883 F.3d 1102, 1107 (9th Cir. 2017) (interacting 25 occasionally with coworkers and supervisors was consistent with doctor’s opinion that 26 social limitations were moderate, rather than mild or marked); Fowler v. Berryhill, No. 27 1:17-CV-01253-EPG, 2018 WL 611660, at *2 (E.D. Cal. Nov. 21, 2018) (finding 28 limitation to “occasional interaction with the general public, coworkers, and supervisors 1 did not fully adopt physician’s opinion of “marked” limitation); Jack W. v. Comm'r, No. 2 3:19-CV-00507-CL, 2021 WL 879043, at *16 (D. Or. Mar. 9, 2021) (finding of no public 3 contact and occasional contact with coworkers and supervisors did not adequately 4 encompass well-supported opinion that claimant had marked limitations in ability to 5 respond appropriately with supervisors, get along with coworkers, and maintain socially 6 acceptable behavior). The Court recognizes that the medical opinions in this case are of a 7 moderate impairment and accepts these cases only for the purpose of showing that there is 8 a disparity between moderate and marked limitations. 9 The Court does not accept the Magistrate Judge’s assertion that the social security 10 terms moderate and marked are fluid. In short, these are terms of art, included in various 11 social security regulations, administrative guidelines, and listings, to be used uniformly 12 when determining whether a person is disabled or not. See (Objection (Doc. 29) at 2 (citing 13 Heckler v. Campbell, 461 U.S. 458, 461 (1983) (discussing need for uniformity in use of 14 Medical-Vocational Guidelines)). The two terms are not fungible. While the Commissioner 15 asserts that the “marked” finding at step 3 is not determinative of the RFC developed in 16 step 4, the Plaintiff correctly points out that the ALJ offers no reason or explanation for 17 finding she “has marked limitation in social interaction” when considering whether her 18 impairment meets or equals one of the listed criteria for disability but finds it poses only 19 moderate limitations to her RFC to work. 20 The ALJ does not explain why he limited the RFC to tasks consistent with 21 “unskilled” work instead of to “simple one and two-step tasks only.” As noted above the 22 “one and two-step tasks only” limitation was given by the ME at the hearing. It is especially 23 important because the ME explained her opinion that memory aids were not necessary 24 depended on “if things were kept simple as she suggested.” Supra. at 9. The hypothetical 25 given to the VE during the December 3, 2019, hearing included the “one and two-step tasks 26 only” limitation and resulted in the conclusion that there were no jobs she could perform 27 because of the need for an assistive device. The confusion between which assistive device, 28 the cane or memory aides, led to the supplemental May 5, 2020, hearing, whereat the ALJ 1 changed the hypothetical to omit the cane, changed the limitation to light work, and 2 changed “simple one and two-step tasks only” to unskilled work. Then, the VE found only 3 one job in the DOT that could be performed: janitor/cleaner. 4 Unskilled work encompasses jobs involving only one and two-step tasks. 5 “‘Unskilled work,’ however, as used by the DOT and the Commissioner’s regulations, does 6 not necessarily conflate with jobs that involve only simple one-to two-step instructions.” 7 Gonzales v. Astrue, 10-CV-1330-SKO, 2012 WL 14002 *13 (January 4, 2012). These are 8 two distinct considerations, with “unskilled” speaking more to the issue of the level of 9 vocational preparation necessary to perform the job rather than the issue of the job’s 10 simplicity. Id. Important to Plaintiff’s case, not all “unskilled” jobs are limited to the 11 simplest level of work involving only one or two step instructions. Id. at *10-14 (collecting 12 cases reflecting approaches taken by the district courts in the Ninth Circuit). See also Meissl 13 v. Barnhart, 403 F. Supp.2d 981 (Calif. 2005); Hackett v. Barnhart, 395 F.3d 1168, 1176 14 (10th Cir. 2005); Lucy v. Chater, 113 F.3d 905, 909 (8th Cir. 1997). 15 The Court finds that the ALJ failed to give any reason for why he adopted moderate 16 limitations in the RFC when he had concluded Plaintiff had marked impairments in 17 interacting with others. The impact of this omission in the record is compounded by the 18 ALJ’s failure to explain why the RFC included “unskilled work” instead of “only one and 19 two-step tasks.” 20 The Court does not agree with the Plaintiff’s second objection to the R&R. The 21 Magistrate Judge did not conclude that the ALJ based the RFC on an accounting of all the 22 Plaintiff’s symptoms. The Magistrate Judge found “that the ALJ accounted for the relevant 23 parts of Plaintiff’s symptom testimony.” (R&R (Doc. 28) at 4.) In other words, the RFC 24 was based on a finding that “the claimant’s medically determinable impairments could 25 reasonably be expected to cause the alleged symptoms; however, the claimant’s statements 26 concerning the intensity, persistence and limiting effects of these symptoms are not entirely 27 consistent with the medical evidence and other evidence in the record for the reasons 28 explained in this decision.” (Decision (Doc. 19-3) at 19-20.) 1 The Court finds, however, that the ALJ failed to explain his accounting in the 2 decision. Instead, he included a recitation of the record as summarized above. The ALJ 3 concluded: “The undersigned finds the claimant has the above residual functional capacity 4 assessment, which is supported by the totality of the medical evidence, objective findings, 5 and the opinions of the individuals who have had the opportunity to assess the claimant 6 and her abilities, as well as the subjective allegations of the claimant. Furthermore, her 7 symptoms are not so severe as to prohibit her from performing all basic work activities. 8 The residual functional capacity set forth above addresses the claimant’s symptoms to the 9 degree supported by the evidence.” Id. at 23. 10 The ALJ follows this conclusion by noting that state agency consultants concluded 11 she was capable of unskilled work; another consultive examination was done almost five 12 years after her date last insured and thus not particularly instructive, and he rejected any 13 need for sheltered employment because she was able to live independently and at times 14 with a roommate, could navigate the bus system on her own, could apply for jobs and attend 15 physician appointments. Beyond these statements there is no discussion, analysis, or 16 assessment of the record. In other words, the ALJ failed to give the reasons for choosing 17 between the limitation of “unskilled” work given by the state agency consultants and the 18 more refined opinion by the ME, who reviewed the entirety of the record including those 19 of the agency consultants, which limited the Plaintiff to performing “only one to two-step 20 tasks.” As explained above, this “blunderbuss” approach is error, especially in this case 21 where the facts reflect a need to split very fine hairs. Gonzales, 2012 WL 14002 at * 11. 22 Under the DOT, there is a distinction between level 1 reasoning ability to “[apply 23 commonsense understanding to carry out simple one-or two-step instructions. . . . ” and 24 level 2 ability to carry out detailed but uninvolved written or oral instructions. . . . or level 25 3 to carry out instructions furnished in written, oral, or diagrammatic form. . . .” Unskilled 26 work encompasses all three but clearly the Plaintiff’s reasoning abilities do not. Id. at *9. 27 The Court finds that the ALJ committed legal error at step four in developing the 28 RFC for the Plaintiff including, without any explanation, “moderate” instead of “marked” 1 limitations in interacting with others and replaced the limitation of “only one and two-step 2 tasks” with “unskilled” work. This error carried over to step five in the hypothetical the 3 ALJ proffered to secure the VE testimony that the Plaintiff has the ability to perform one 4 job, janitor/cleaner, under the DOT. Even with the supplemental hearing, the ALJ failed to 5 clarify ambiguity in the record related to the Plaintiff’s RFC. He failed to give reasons for 6 his conclusion that Plaintiff could perform a full range of unskilled work. The Court does 7 not reach the issue of whether he gave clear and convincing reasons for rejecting evidence 8 that she needed a sheltered work environment. As noted by the ME, the simplicity of the 9 work tasks determines the Plaintiff’s ability to perform them without memory aids. As the 10 record stands reported in the decision, the ALJ’s finding that Plaintiff is not disabled is not 11 supported by substantial evidence. The Court does not adopt the Magistrate Judge’s 12 recommendation to affirm the decision by the Commissioner. 13 The Court remands the case to the Commissioner for further development of the 14 record, including but not limited to looking at the relationship between Plaintiff’s 15 limitations in interacting with others and her ability to perform only simple one and two- 16 step tasks. 17 CONCLUSION 18 After de novo review of the issues raised in Plaintiff’s Objection, the Court does not 19 agree with the findings of fact and conclusions of law made by the Magistrate Judge in the 20 R&R. The Court does not adopt the R&R. For reasons explained in this Order, the Court 21 remands the case to the Commissioner. 22 Accordingly, 23 IT IS ORDERED that after a full and independent review of the record, in respect 24 to the objections, the Magistrate Judge's Report and Recommendation (Doc. 28) is not 25 adopted by the Court. 26 IT IS FURTHER ORDERED that the case is REMANDED to the Commissioner 27 of the Social Security Administration. 28 ///// 1 IT IS FURTHER ORDERED that the Clerk of the Court shall enter Judgment, || accordingly, and close this case. 3 Dated this 13th day of September, 2022. 4 Ce LE Aaegamses 6 Honorable Cin . J6fgenson , United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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