UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO SHERRY GAY P.,1
Plaintiff, Case No. 4:23-cv-00542-CWD v. MEMORANDUM DECISION AND ORDER LELAND DUDEK, Acting Commissioner of Social Security Administration,2
Defendant.
INTRODUCTION Plaintiff filed a Complaint for judicial review of the Commissioner’s denial of her application for disability and disability insurance benefits under Title II of the Social Security Act. (Dkt. 1.) The matter is fully briefed and at issue. (Dkt. 12, 17, 18.) Having reviewed the Complaint, the parties’ memoranda, and the entire administrative record
1 Plaintiff’s name is partially redacted in compliance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case Management of the Judicial Conference of the United States. 2 Leland Dudek was named Acting Commissioner of Social Security Administration on February 19, 2025. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Leland Dudek will be substituted as the Defendant in this suit. No further action needs to be taken to continue this suit by reason of the last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g). (AR), the Court will remand3 the decision of the Commissioner as explained below. BACKGROUND
On July 27, 2020, Plaintiff protectively filed a Title II application for a period of disability and disability insurance benefits, alleging disability beginning on May 21, 2020. (AR 17.) At the time of the alleged disability onset date, Plaintiff was 57 years of age. (AR 28.) The application was denied initially and on reconsideration. A hearing was conducted by video on February 24, 2023, before an Administrative Law Judge (ALJ).
(AR 17.)4 After considering testimony from Plaintiff and a vocational expert (VE), the ALJ issued a written decision on May 17, 2023, finding Plaintiff had not been under a disability from May 21, 2020, through the date of the decision. (AR 17 – 30.) The Appeals Council denied Plaintiff’s request for review, making the ALJ’s decision final. See 42 U.S.C. § 405(h). Plaintiff timely appealed the Commissioner’s decision to the
Court on December 4, 2023. (Dkt. 1.) The Court has jurisdiction to review the ALJ’s decision pursuant to 42 U.S.C. § 405(g). STANDARD OF REVIEW 42 U.S.C. § 405(g) provides for judicial review of the Social Security Administration’s disability determinations: “The court shall have the power to enter…a
3 All parties have consented to the jurisdiction of a magistrate judge to hear and decide all matters in this proceeding. (Dkt. 7.) 28 U.S.C. § 636(c); Fed. R. Civ. P. 73. 4 The hearing was conducted with the consent of the Plaintiff via video due to the Coronavirus Pandemic of 2019. (AR 17). judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” The Court must uphold
the ALJ’s decision unless: (1) the decision is based on legal error, or (2) the decision is not supported by substantial evidence. Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017). Substantial evidence is “‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). This requires “more than a mere scintilla” of evidence. Id.
The Court must consider the administrative record as a whole. Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). It must weigh both the evidence that supports, and the evidence that does not support, the ALJ’s conclusion. Id. If the ALJ’s decision is based on a rational interpretation of conflicting evidence, the Court will uphold the ALJ’s finding. Carmickle v. Comm’r of Soc. Sec. Admin., 533
F.3d 1155, 1165 (9th Cir. 2008). It is unnecessary for the ALJ to “discuss all evidence presented.” Vincent on Behalf of Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) (citation omitted) (emphasis in original). The ALJ must, however, explain why “significant probative evidence has been rejected.” Id. THE ALJ’S ANALYSIS
Disability is the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). The ALJ engages in a five-step sequential inquiry5 to determine whether a claimant is disabled within the meaning of the Act. 20 C.F.R. §§ 404.1520 and 416.920; Lounsburry v. Barnhart, 468 F.3d 1111, 1114
(9th Cir. 2006) (discussing Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999)). At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since the alleged onset date of May 21, 2020. (AR 20.) At step two, the ALJ found Plaintiff suffers from the following medically determinable, severe impairments: “bilateral knee dysfunction (post-remote bilateral total knee arthroplasty with revision in 2018), chronic obstructive pulmonary disease
(COPD)/pulmonary fibrosis, obesity, and osteoarthritis of the left shoulder.” Id. The ALJ found symptoms caused by Plaintiff’s obstructive sleep apnea, gastroesophageal reflux disease, left hip bursitis, non-alcoholic steatohepatitis with cystitis, mild polycythemia vera, hand fracture, and psoriatic arthritis did not significantly limit her physical or mental ability to perform basic work activities. (AR 21.) The ALJ found symptoms
related to Plaintiff’s right-hand fracture in November 2020 did not persist for twelve consecutive months. Id. The ALJ concluded also that Plaintiff’s anxiety disorder did not
5 Kennedy v. Colvin, 738 F.3d 1172, 1175 (9th Cir. 2013), sets forth the five-step review process as follows: “The five-step process for disability determinations begins, at the first and second steps, by asking whether a claimant is engaged in ‘substantial gainful activity’ and considering the severity of the claimant’s impairments. See 20 C.F.R. § 416.920(a)(4)(i)-(ii). If the inquiry continues beyond the second step, the third step asks whether the claimant’s impairment or combination of impairments meets or equals a listing under 20 C.F.R. pt. 404, subpt. P, app. 1 and meets the duration requirement. See id. § 416.920(a)(4)(iii). If so, the claimant is considered disabled and benefits are awarded, ending the inquiry. See id. If the process continues beyond the third step, the fourth and fifth steps consider the claimant’s ‘residual functional capacity’ in determining whether the claimant can still do past relevant work or make an adjustment to other work. See id. § 416.920(a)(4)(iv)-(v).” cause more than minimal limitations in her ability to perform basic mental work activities, and is therefore non-severe. Id.
At step three, the ALJ determined that Plaintiff did not have an impairment or combination of impairments which meets or is medically equal to the severity of a listed impairment. (AR 23.) At step four, the ALJ concluded that Plaintiff retained the residual functional capacity (RFC) to perform sedentary work as defined in 20 C.F.R. § 404.1567(a),6 with the following limitations:
[Claimant can] only occasionally operate foot controls with the left lower extremity; she can only frequently balance, as defined by the Selected Characteristics of Occupations (SCO); she can only occasionally climb ramps and stairs, but she can never climb ladders, ropes, or scaffolds; she can only occasionally stoop kneel, crouch, and crawl; she can only frequently reach overhead with the non-dominant left upper extremity; she must avoid concentrated exposure to vibration and pulmonary irritants, such as fumes, odors, dusts, and gases; and she must avoid all exposure to unguarded moving mechanical parts and unprotected heights.
(AR 24.) The ALJ found Plaintiff capable of performing her past relevant work as a receptionist. (AR 28.) Nonetheless, at step five, the ALJ found there are other jobs that exist in the national economy that Plaintiff could perform, considering her age, education, work experience, transferable skills, and RFC, such as: reception clerk, registration clerk,
6 Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met. 20 C.F.R. § 404.1567(a) and referral clerk. (AR 28 – 29.)The ALJ therefore found Plaintiff had not been under a disability from the alleged onset date of May 21, 2020, through the date of the decision.
(AR 30.) ISSUES FOR REVIEW
1. Whether the ALJ erred at step two by finding Plaintiff’s mental impairment, psoriatic arthritis, and right-hand index finger impairment to be non-severe.
2. Whether the RFC is supported by substantial evidence where the ALJ failed to account for Plaintiff’s mental limitation as part of the RFC.
DISCUSSION In the context of Plaintiff’s argument regarding her mental impairments, she presents two discrete questions. (Dkt. 12 at 1.) First, whether the ALJ erred at step two in finding Plaintiff’s mental impairments to be non-severe. Second, whether the ALJ erred by not considering Plaintiff’s non-severe mental impairments when assessing her RFC prior to step four. (Dkt. 10 at 21.) Because the Court finds an adequate basis for remand on the ground that the ALJ failed to consider Plaintiff’s mental impairments when evaluating the RFC, the Court will address this issue out of turn and will not reach Plaintiff’s alternative arguments. See Hiler v. Astrue, 687 F. 3d 1208, 1212 (9th Cir. 2012) (“Because we remand the case to the ALJ for the reasons stated, we decline to reach [Plaintiff’s] alternative grounds for remand.”). 1. The ALJ’s Evaluation of Plaintiff’s Mental Impairments As it relates to mental health disorders, step two requires the ALJ to consider a claimant’s functioning in four broad mental domains that encompass all or almost all human thought and activity. Known as the “paragraph B” criteria, these domains include: (i) understanding, remembering, and applying information; (ii) interacting with others;
(iii) concentrating, persisting, and maintaining pace; and (iv) adapting or managing oneself. 20 C.F.R. § 404.1520a(b)-(c). The ALJ must rate the claimant’s degree of limitation in these areas using a five-point scale: none, mild, moderate, marked, or extreme. 20 C.F.R. § 404.1520a(c)(4). An “extreme” limitation represents “a degree of limitation that is incompatible with the ability to do any gainful activity,” whereas degrees of limitation rated as “none” or “mild” generally reflect a non-severe
impairment. Id. at § 404.1520a(c)(4)-(d)(1). Here, the ALJ concluded at step two that Plaintiff’s anxiety disorder was a medically determinable mental impairment, but that it was non-severe because it did not cause more than minimal limitations in her ability to perform basic mental work activities. (AR 21.) Specifically, the ALJ found Plaintiff to have mild limitations in each
of the four mental domains. (AR 22 – 23.) First, the ALJ found that Plaintiff has no more than a mild limitation in the functional area of understanding, remembering, or applying information. (AR 22.) In support of this finding, the ALJ referred to Plaintiff’s function report, where she reported the ability to care for cats, pick up around the house, handle personal care, prepare meals,
vacuum, sweep, wash dishes, perform some lawn work, drive, shop in stores, go hunting and fishing two to three times a year, handle finances, and watch TV. (AR 22, 252-56.) The ALJ also pointed to treatment records showing Plaintiff was able to provide information about her health, describe her work history, follow instructions from providers, comply with treatment, and respond to questions from providers. (AR 22.) Plaintiff was also observed with normal cognition during an examination. (AR 22, 691.)
Second, the ALJ found that Plaintiff has a mild limitation in interacting with others. The ALJ based this finding on Plaintiff’s self-reports that she had no problem getting along with others, the ability to shop in stores, and spend time with others. (AR 22, 255-57.) The ALJ also noted that evidence in the record showed Plaintiff had a good rapport with providers, was described as pleasant and cooperative, and appeared comfortable during appointments. (AR 22, 429, 691, 709, 1423, 1426, 1429, 1434.)
Third, the ALJ found Plaintiff has a mild limitation in concentrating, persisting, or maintaining pace. (AR 22.) The ALJ cited again to Plaintiff’s activities set forth in her function report. (AR 22.) Further, the ALJ found the record failed to show an inability to complete testing assessing concentration and attention, and again pointed to the record finding Plaintiff to have normal cognition. (AR 22.)
Last, the ALJ found that Plaintiff has a mild limitation in the functional area of adapting or managing oneself. (AR 23.) The ALJ once again noted the activities she described in her function report and pointed to objective evidence showing Plaintiff had appropriate grooming and hygiene, got along with providers and staff, had a normal mood and affect, and no problems with temper control. (AR 23, 887, 932, 1000, 1071,
1125, 1221, 1277.) After making the findings regarding Plaintiff’s mental limitations in all four of the broad mental domains, the ALJ acknowledged that: [T]he limitations in the “paragraph B” criteria are not a residual functional capacity assessment but are used to rate the severity of mental impairments at steps 2 and 3 of the sequential evaluation process. The mental residual functional capacity assessment used at steps 4 and 5 of the sequential evaluation process requires a more detailed assessment. The following residual functional capacity assessment reflects the degree of limitation the undersigned has found in the “paragraph B” mental function analysis.
(AR 23.)
The ALJ later included largely the same analysis in the context of considering whether the state agency medical consultants’ opinions are persuasive: State agency medical consultants found that the claimant had no severe mental impairment and only mild limitations in each of the “paragraph B” criteria (Exh. B3A, B5A). These findings are supported by a reasonable explanation. Further, the lack of significant mental health treatment, the normal examinations, and the claimant’s ability to care for cats, pick up around the house, handle personal care, prepare meals, vacuum, sweep, wash dishes, perform some lawn work, drive, shop in stores, handle finances, and watch TV are reasonably consistent with the nonsevere mental findings. Therefore, the prior administrative medical findings of no severe mental impairment are persuasive.
(AR 27.) Plaintiff argues that the ALJ erred by failing to include any mental health limitations in the RFC. Pl.’s Brief at 12 – 13. (Dkt. 12.) Citing Craig H. v. Kijakazi, No. 22-cv-800-AJB(LR), 2023 WL 4679342 (S.D. Cal. July 21, 2023), Plaintiff contends the ALJ is required to consider the limiting effects of her impairments – even ones that are non-severe – in formulating Plaintiff’s RFC. Plaintiff faults the ALJ for failing to make a more detailed assessment of Plaintiff’s mental functions in formulating her RFC, which ultimately contained no analysis of any of the mental limitations assessed in the step two analysis. Id. After finding that Plaintiff had mild mental limitations in each of the four mental domains, and finding the state agency medical consultants’ opinions persuasive, the Plaintiff contends the ALJ’s failure to include any restrictions related to these
limitations in her RFC amounts to reversible error. Id. In response, Defendant insists that when an ALJ finds a plaintiff’s mental impairments are non-severe and only mildly limiting at step two, the ALJ is not required to incorporate mental limitations in the RFC. Def.’s Brief at 6. (Dkt. 17.) Citing to Woods v. Kijakazi, 32 F. 4th 785 (9th Cir. 2022), as well as other cases decided by district courts in the Ninth Circuit, Defendant essentially argues that any mental limitations deemed
non-severe need not be included in the RFC. Def.’s Brief at 6. 2. Applicable Law An RFC “is an assessment of an individual’s ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis.” SSR 96-8p, 1996 WL 374184, at *1 (July 2, 1996). “RFC is what an individual can still do
despite his or her limitations.” Id. In determining a claimant’s RFC, the ALJ must consider “all of the relevant medical and other evidence.” 20 C.F.R. § 416.945(a)(3). If a claimant has more than one impairment, the ALJ must consider the limiting effects of all impairments, including “medically determinable impairments that are not ‘severe.’” 20 C.F.R. § 416.945(a)(2). “The RFC therefore should be exactly the same regardless of
whether certain impairments are considered ‘severe’ or not.” Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017) (emphasis omitted). Thus, a claimant generally cannot be prejudiced by the ALJ’s failure to consider a particular impairment as severe at step two, as long as the ALJ finds that the claimant has at least one severe impairment, and still addresses the non-severe impairment when considering the claimant’s RFC. See id. As noted above, at step two of the five-step disability evaluation, the ALJ must
consider the four broad functional areas of mental functioning set forth in the regulations for evaluating mental disorders (the “paragraph B criteria). See 20 C.F.R. § 404.1520a(c)(3) (listing the “four broad functional areas in which [the Agency] will rate the degree of [a claimant’s] functional limitation” in evaluating mental impairments); 20 C.F.R. Part 404, Subpart P, Appendix 1. An ALJ’s assessment of a claimant’s limitations under the paragraph B criteria, however, is not the same as an RFC assessment, which
requires “a more detailed assessment:” While similar evidence may be used in both assessments of Plaintiff’s mental impairments, they are distinct, and limitations assessed in the context of the paragraph B assessment are not necessarily transferrable to the more detailed assessment required when formulating the RFC. The ALJ’s task when assessing the RFC is not to provide an adequate explanation for how the RFC accommodates the ALJ’s paragraph B’s findings, but rather to perform a new, more detailed assessment incorporating all the relevant evidence.
JW U. C. v. Comm’r Soc. Sec., No 2:19-CV-00090-DWC, 2019 WL 3451515, at *2 (W.D. Wash. July 31, 2019) (citing SSR 96-8p, 1996 WL 374184, at *4) (noting that the limitations identified in the paragraph B criteria are not an RFC assessment, but are used to rate the severity of mental impairments at steps two and three of the evaluation process and that the mental RFC assessment used at steps four and five requires “a more detailed assessment.”). 3. Analysis After finding Plaintiff has mild limitations in each of the four broad functional
areas, the ALJ acknowledged that the limitations are not a residual functional capacity assessment, and reflect only the degree of limitation found in the paragraph B mental function analysis. (AR 23.) Yet, despite the ALJ’s acknowledgment that a mental RFC assessment “requires a more detailed assessment” than the one made in step two, the ALJ’s discussion of Plaintiff’s RFC is devoid of any analysis of Plaintiff’s mild mental limitations. (AR 24 – 28.) See Craig H., 2023 WL 4679342 at *12 (citing Patricia C. v.
Saul, Case No. 19-cv-00636-JM-JLB, 2020 WL 4596757, at *13 (S.D. Cal. Aug. 11, 2020)). Accordingly, the Court’s analysis of these mental impairment findings must be confined to the ALJ’s step two analysis, which was solely related to the Plaintiff’s degree of limitation with respect to each of the four paragraph B functional areas. See id. (citing Darren Jeffrey C. v. Kijakazi, Case No. 3:21-cv-01012-AHG, 2022 WL 4474261, at *10
(S.D. Cal. Sept. 26, 2022) (the Court’s analysis of the ALJ’s assessment of the claimant’s mental limitations was confined to the ALJ’s step two discussion “because the ALJ expressly stated that his later RFC assessment ‘reflects the degree of limitation [ ] found in the paragraph B mental function analysis’ at step two, and he did not discuss Plaintiff’s mental limitations elsewhere in the opinion.”)). Courts within the Ninth Circuit have
found reversible error where the ALJ failed to at least consider mild mental limitations when assessing the claimant’s RFC. Id. (citing Aida I. v. Saul, No. 3:19-cv-00476-AJB- RNB, 2020 WL 434319, at *4–5 (S.D. Cal. Jan. 28, 2020), report and recommendation adopted, 2020 WL 1905356 (S.D. Cal. Apr. 17, 2020) (collecting cases)). Nonetheless, Defendant contends that courts in the Ninth Circuit do not require the ALJ to incorporate non-severe mental limitations in the RFC, citing Woods v. Kijakazi,
32 F. 4th 785 (9th Cir. 2022). The Court finds Woods distinguishable. There, the ALJ assessed and evaluated the plaintiff’s mental limitations at step four by addressing and rejecting a medical opinion containing certain mental limitations. Woods, 32 F.4th at 794). The court found that the ALJ’s rejection of this medical opinion was proper. After properly rejecting the medical opinion relating to the plaintiff’s mental limitations, the ALJ determined there were no mental limitations left to include in the RFC. Woods is
consistent with the authority cited above. While the ALJ does not necessarily need to incorporate non-severe limitations into the RFC, the ALJ must consider those limitations in the analysis underlying the formulation of the RFC. See, e.g., Hutton v. Astrue, 491 F. App’x 850 (9th Cir. 2012) (regardless of severity, the ALJ must consider non-severe mental impairments when
determining RFC); DeLuna v. O’Malley, No. 1:23-CV-00902-HBK, 2024 WL 4133621, at *8 (E.D. Cal. Sept. 10, 2024) (no error where the ALJ expressly stated that the RFC assessment reflected the degree of limitation found in the paragraph B mental function analysis); Kathryn A. C. v. Kijakazi, No. 1:23-CV-00002-DCN-REP, 2024 WL 1298363, at *3 (D. Idaho Mar. 26, 2024) (finding the ALJ did not err because the ALJ not only
incorporated the degree of limitation found in the Paragraph B analysis in the RFC evaluation, he also provided a factual basis for his conclusion that the evidence identified no specific mental limitations); Tyson v. Kijakazi, No. 1:21-CV-00688-BAM, 2023 WL 2313192, at *5 (E.D. Cal. Mar. 1, 2023) (finding no error when the ALJ expressly stated that the RFC reflected the degree of limitation found in the Paragraph B analysis); Medlock v. Colvin, No. CV 15-9609-KK, 2016 WL 6137399, at *5 (C.D. Cal. Oct. 20,
2016) (the ALJ may not rely on boilerplate language and must actually review the record and specify reasons supported by substantial evidence for not including limitations caused by a non-severe impairment in the RFC). It is error, however, if the ALJ fails to include any analysis or statement of how Plaintiff’s non-severe mental impairments were factored into the RFC assessment. Mercado v. O’Malley, No. 2:22-CV-02155 AC, 2024 WL 967619, at *4 (E.D. Cal. Mar.
6, 2024) (finding error where the ALJ did not consider limitations caused by non-severe medically determinable mental impairment in the formulation of the RFC); David Allan G. v. Comm’r of Soc. Sec., No. 1:21-CV-00162-DKG, 2023 WL 2479921, at *4 (D. Idaho Mar. 10, 2023) (finding the ALJ erred by failing to include some discussion in the written decision reflecting that she considered all of the plaintiff’s medically
determinable impairments, specifically his mild mental impairments, in fashioning the RFC). Here, unlike in Woods, the ALJ did not reject the opinions of the state agency medical consultants who opined on Plaintiff’s mental impairments. (AR 27.) The ALJ’s discussion at step four analyzed whether the medical opinions finding no severe mental
impairment were persuasive, and essentially restated the analysis of the paragraph B criteria without explaining why the limitations were not incorporated in the RFC. (AR 27.) “Simply repeating the findings included in the discussion of the paragraph B criteria, without further explanation, is not sufficient to show that the requisite ‘more detailed assessment’ was actually conducted by the ALJ.” Craig H., 2023 WL 4679342 at *13. The ALJ did not properly consider whether Plaintiff’s mild limitations in the four
broad functional areas, or paragraph B criteria, should be included in the RFC. Had the ALJ done so, these non-exertional limitations may have led to a more restrictive RFC; the ALJ was required to specifically assess them at step four. Remand is therefore required. ORDER NOW THEREFORE IT IS HEREBY ORDERED that: 1) The decision of the Commissioner of Social Security is REVERSED.
2) This action shall be REMANDED to the Commissioner for further proceedings consistent with this opinion. 3) This Remand shall be considered a “sentence four remand,” consistent with 42 U.S.C. § 405(g) and Akopyan v. Barnhart, 296 F.3d 852, 854 (9th Cir. 2002).