Slusher v. Commissioner of Social Security Administration

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Kim L. Slusher, No. CV-20-02038-PHX-SPL

10 Plaintiff, ORDER

11 v.

12 Commissioner of Social Security Administration, 13 Defendant. 14

15 16 Plaintiff Kim L. Slusher seeks judicial review of the denial of her application for 17 disability insurance benefits under the Social Security Act, 42 U.S.C. § 405(g). Before the 18 Court are Plaintiff’s Opening Brief (Doc. 19), Defendant Commissioner of Social Security 19 Administration’s Answering Brief (Doc. 22), Plaintiff’s Reply Brief (Doc. 26), and the 20 Administrative Record (Doc. 16). Upon review, the Court reverses and remands the 21 Administrative Law Judge’s decision (AR1 at 23–35). 22 I. BACKGROUND 23 On May 10, 2017, Plaintiff filed a Title II application for disability insurance 24 benefits, alleging a period of disability beginning on November 1, 2012 (AR at 26). Her 25 claim was initially denied on September 29, 2017, and again upon reconsideration on 26 February 9, 2018. (Id.). Plaintiff testified at an administrative hearing on November 21, 27 2019 (AR at 58–77), after which the Administrative Law Judge (“ALJ”) found Plaintiff

28 1 Administrative Record (see Doc. 16). 1 was not disabled from November 1, 2012 through December 31, 2018 (AR at 23–35). On 2 July 24, 2020, the Appeals Council denied Plaintiff’s request for review and adopted the 3 ALJ’s decision as the agency’s final decision. (AR at 6). 4 The Court has reviewed the medical evidence in its entirety and will discuss the 5 pertinent medical evidence in addressing the issues raised by the parties. Upon considering 6 the medical records and opinions, the ALJ evaluated Plaintiff’s disability based on the 7 following medically determinable impairments: degenerative disc disease and 8 osteoporosis. (AR at 29). Ultimately, the ALJ concluded that Plaintiff “was not disabled 9 under sections 216(i) and 223(d) of the Social Security Act through December 31, 2018, 10 the date last insured.” (AR at 34). 11 II. LEGAL STANDARD 12 A person is considered “disabled” for the purpose of receiving social security 13 benefits if they are unable to “engage in any substantial gainful activity by reason of any 14 medically determinable physical or mental impairment which can be expected to result in 15 death or which has lasted or can be expected to last for a continuous period of not less than 16 12 months.” 42 U.S.C. § 423(d)(1)(A). In determining whether to reverse an ALJ’s 17 decision, the district court reviews only those issues raised by the party challenging the 18 decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). The Court may set 19 aside the Commissioner’s disability determination only if it is not supported by substantial 20 evidence or is based on legal error. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). 21 Substantial evidence is relevant evidence that a reasonable person might accept as adequate 22 to support a conclusion. Id. To determine whether substantial evidence supports a decision, 23 the Court must consider the record as a whole and may not affirm simply by isolating a 24 “specific quantum of supporting evidence.” Id. (citation omitted). Generally, “[w]here the 25 evidence is susceptible to more than one rational interpretation, one of which supports the 26 ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 27 954 (9th Cir. 2002). 28 To determine whether a claimant is disabled for purposes of the Act, the ALJ 1 follows a five-step process. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 2 20 C.F.R. § 404.1520(a)). The claimant bears the burden of proof on the first four steps, 3 and the burden shifts to the Commissioner at step five. Id. At the first step, the ALJ 4 determines whether the claimant is presently engaging in substantial gainful activity. 5 § 404.1520(a)(4)(i). At step two, the ALJ determines whether the claimant has a “severe” 6 medically determinable physical or mental impairment. § 404.1520(a)(4)(ii). At step three, 7 the ALJ considers whether the claimant’s impairment or combination of impairments meets 8 or medically equals an impairment listed in the regulations.2 § 404.1520(a)(4)(iii). If so, 9 the claimant is automatically found to be disabled. Id. If not, the ALJ determines the 10 claimant’s residual functional capacity (“RFC”). §§ 404.1520(e), 416.920(e). At step four, 11 the ALJ determines whether the claimant’s RFC precludes her from performing her past 12 relevant work. § 404.1520(a)(4)(iv). If so, the ALJ proceeds to the fifth and final step, 13 where they determine whether the claimant can perform any other work in the national 14 economy based on the claimant’s RFC, age, education, and work experience. 15 § 404.1520(a)(4)(v). If not, the claimant is disabled. Id. 16 III. ANALYSIS 17 Plaintiff argues that (1) the ALJ erred in finding her mental impairments were not 18 severe at step two of the sequential evaluation (Doc. 19 at 7–9), and (2) the ALJ failed to 19 provide valid reasons for discounting her subjective symptom testimony (Id. at 9–15). 20 Plaintiff further argues the case should be remanded for a computation of benefits, rather 21 than further proceedings. (Id. at 15–16). For the following reasons, the Court reverses the 22 ALJ’s decision and remands the case for further proceedings. 23 A. Step Two of the Sequential Evaluation 24 As previously stated, at step two of the five-step sequential disability analysis, the 25 ALJ determines whether the claimant has a “severe” medically determinable physical or 26 mental impairment. 20 C.F.R. § 404.1520(a)(4)(ii). This “requires an assessment of the 27 28 2 The impairments “listed in the regulations” are found in Appendix 1 to Subpart P of 20 C.F.R. Part 404. 1 functionally limiting effects of an [impairment or combination of impairments] on an 2 individual’s ability to do basic work.” Social Security Ruling (“SSR”) 96-3P, 1996 WL 3 374181, at *1 (July 2, 1996). The claimant’s age, education, and work experience are not 4 considered at step two; instead, the only question is whether the claimant’s impairment or 5 combination of impairments significantly limits the claimant’s physical or mental ability 6 to do basic work activities. 20 C.F.R. § 404.1520(c). “Basic work activities are ‘abilities 7 and aptitudes necessary to do most jobs, including, for example, walking, standing, sitting, 8 lifting, pushing, pulling, reaching, carrying or handling.’” Smolen v. Chater, 80 F.3d 1273, 9 1290 (9th Cir. 1996) (citing 20 C.F.R. § 404.1520(b)). The step-two severity determination 10 is “a de minimis screening device to dispose of groundless claims.” Id. An impairment is 11 not considered severe “if it is merely a slight abnormality (or combination of slight 12 abnormalities) that has no more than a minimal effect on the ability to do basic work 13 activities.” Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (quotation omitted). 14 Whenever the impairment at issue at step two is a mental impairment, the 15 regulations require the use of a “special technique” to determine whether the impairment 16 is severe. 20 C.F.R. § 404.1520a(a)). Under the special technique, the first step is to 17 evaluate the claimant’s “pertinent symptoms, signs, and laboratory findings to determine 18 whether [he or she has] a medically determinable mental impairment(s).” 19 § 404.1520a(b)(1). If so, the next step is to “rate the degree of functional limitation 20 resulting from the impairment(s).” § 404.1520a(b)(2). The degree of functional limitation 21 is rated based on “the extent to which [the claimant’s] impairment(s) interferes with [his or 22 her] ability to function independently, appropriately, effectively, and on a sustained basis.” 23 § 404.1520a(c)(2). The regulations provide four broad functional areas in which the degree 24 of functional limitation is to be rated: (i) understand, remember, or apply information; 25 (ii) interact with others; (iii) concentrate, persist, or maintain pace; and (iv) adapt or 26 manage oneself. § 404.1520a(c)(3). The degree of limitation in each of the four functional 27 areas is rated on a five-point scale: none, mild, moderate, marked, and extreme. 28 § 404.1520a(c)(4). Under the regulations, if the degrees of limitation are rated as “none” 1 or “mild,” the claimant’s limitations are “generally” concluded to be non-severe, “unless 2 the evidence otherwise indicates that there is more than a minimal limitation in [the 3 claimant’s] ability to do basic work activities.” § 404.1520a(d)(1). An ALJ is required to 4 incorporate this special technique into his or her written decision and to include a specific 5 finding as to the degree of limitation in each of the four functional areas. § 404.1520a(e)(4). 6 Here, the ALJ found that Plaintiff had two severe impairments: degenerative disc 7 disease and osteoporosis. (AR at 29). The ALJ found that Plaintiff’s other impairments— 8 irritable bowel syndrome, acid reflex, and adjustment disorder with depressed mood and 9 anxiety—were non-severe.3 (Id.). As to Plaintiff’s mental impairments specifically, the 10 ALJ found that the “anxiety and depression, considered singly and in combination, did not 11 cause more than minimal limitation in [Plaintiff]’s ability to perform basic mental work 12 activities.” (AR at 30). The ALJ reasoned that Plaintiff’s depression was “stable,” her 13 memory was “normal,” her insight and judgment were “good,” and that Plaintiff was “alert 14 and oriented.” (Id.). The ALJ also relied on the examination and medical opinion of Dr. 15 Jessica Leclerc, whose findings the ALJ determined to be consistent with the medical 16 evidence in the record. (AR at 31). Perhaps most importantly, the ALJ “considered the four 17 broad areas of mental functioning” set out in the regulations and made a specific finding 18 as to each area. (AR at 30). With respect to “understanding, remembering, or applying 19 information,” the ALJ found that Plaintiff had no limitation.4 (Id.). The ALJ also found no

20 3 Plaintiff does not contend that the ALJ erred in finding that her irritable bowel 21 syndrome and acid reflex were non-severe. The only issue before this Court, then, is whether the ALJ erred in determining that Plaintiff’s mental impairments were non-severe. 22 4 To the extent Plaintiff argues that the ALJ overlooked evidence with respect to the 23 first functional area (understanding, remembering, or applying information), the Court is unpersuaded. Plaintiff refers to her performance on the mini mental status examination 24 (“MMSE”) as evidence that her limitations in the first functional area are greater than the ALJ acknowledged. (Docs. 19 at 7 & 26 at 3). Specifically, Plaintiff points to her inability 25 to copy a figure, her poor word recall (she responded “I forgot” when asked to recall three words), and her failure on the three-stage command (she was asked to take the paper in her 26 right hand, fold it in half, and place it on the table; she incorrectly took the paper in her left hand). (Docs. 19 at 7 & 26 at 3; AR at 391). 27 This Court finds that the ALJ appropriately considered all aspects of the MMSE 28 when he found that Plaintiff had “no limitation” in understanding, remembering, or applying information. The ALJ acknowledged Plaintiff’s less-than-perfect MMSE score 1 limitations with respect to “interacting with others” and “adapting or managing oneself.” 2 (Id.). As to the third functional area—"concentrating, persisting, or maintaining pace”— 3 the ALJ found that Plaintiff had a “mild” limitation. (Id.). The ALJ explained his findings 4 for each functional area, citing to specific evidence from the record. (Id.). After analyzing 5 Plaintiff’s limitations, the ALJ concluded that Plaintiff’s medically determinable mental 6 impairments were non-severe because they caused no limitation in three of the functional 7 areas and only mild limitations in the other. (AR at 31). 8 This Court finds that the ALJ did not err in determining that Plaintiff’s mental 9 impairments were non-severe because the ALJ expressly incorporated the special 10 technique for evaluating mental impairments in accordance with the regulations. The ALJ 11 made a finding—either “no limitation” or “mild limitation”—as to each of the four 12 functional areas. And while this alone would probably have been sufficient, the ALJ went 13 further and provided an explanation for each of the four findings. See Hoopai v. Astrue, 14 499 F.3d 1071, 1077–78 (9th Cir. 2007) (holding that it was sufficient for ALJ to simply 15 make a specific finding in each of four areas and rejecting argument that ALJ was required 16 to document considerations underlying those findings); Keyser v. Comm’r of Soc. Sec. 17 Admin., 648 F.3d 721, 726 (9th Cir. 2011) (holding ALJ erred by failing to make specific 18 finding as to degree of limitation in any of four functional areas); Burrell v. Astrue, No. 19 CV 11-00766-PHX-NVW, 2012 WL 1413310, at *8 (D. Ariz. Apr. 24, 2012) (finding no 20 error where ALJ employed special technique in determining whether claimant’s mental 21 impairments were severe); Hackleton v. Saul, No. 19-CV-02242-WVG, 2021 WL 22 1102450, at *10 (S.D. Cal. Mar. 23, 2021) (rejecting argument that ALJ was required to 23 do anything more than make a finding as to the four functional areas); Sandoval v. Saul,

24 (25/30) and that she was “unable to recall any of the three words.” (AR at 30). Despite this, the ALJ found that there was enough other evidence for a finding that she had no limitation. 25 (Id.). Even assuming the ALJ should have found some limitation—perhaps a “mild” limitation—due to Plaintiff’s MMSE performance, it would not have changed the outcome 26 because the ALJ still found no limitations in two of the functional areas and only a mild limitation in the other. (Id.). In other words, even assuming mild limitations existed in two 27 of the four functional areas, this would not be enough under the regulations for a finding that Plaintiff’s mental impairments were necessarily severe. See 20 C.F.R. § 28 404.1520a(d)(1) (“If we rate the degrees of your limitation as ‘none’ or ‘mild,’ we will generally conclude that your impairment(s) is not severe. . . .”). 1 No. 19-CV-1477-WVG, 2020 WL 4347514, at * (S.D. Cal. July 28, 2020) (“The ALJ is 2 not required to document the reasons underlying these findings or make any more specific 3 findings regarding the claimant’s functional limitations.”). 4 Although the ALJ did not err in finding Plaintiff’s mental impairments non-severe, 5 the ALJ was still required to consider Plaintiff’s mental impairments when determining 6 Plaintiff’s RFC between steps three and four. See 20 C.F.R. § 404.1545(a)(2) (“We will 7 consider all of your medically determinable impairments of which we are aware, including 8 your medically determinable impairments that are not ‘severe’ . . . when we assess your 9 residual functional capacity.”); see also Buck v. Berryhill, 869 F.3d 1040, 1048–49 (9th 10 Cir. 2017) (“In assessing RFC, the adjudicator must consider limitations and restrictions 11 imposed by all of an individual’s impairments, even those that are not ‘severe.’ . . . The 12 RFC therefore should be exactly the same regardless of whether certain impairments are 13 considered ‘severe’ or not.”). Here, Plaintiff asserts that the ALJ failed to consider her 14 mental impairments during his RFC analysis. (Doc. 19 at 9). In response, Defendant 15 contends just the opposite—that the ALJ properly considered and discussed Plaintiff’s 16 mental impairments while determining Plaintiff’s RFC. (Doc. 22 at 7–8, 9). 17 This Court has previously found error where an ALJ failed to consider mild 18 limitations identified at step two in her RFC analysis. Solomon v. Cmm’r of Soc. Sec. 19 Admin., 376 F.Supp.3d 1012, 1020–21 (D. Ariz. 2019). Like in this case, the ALJ in 20 Solomon found at step two that the claimant’s mental impairments were non-severe 21 because the claimant had either no or mild limitations in each of the four broad functional 22 areas. Id. at 1020. In determining the plaintiff’s RFC, however, the ALJ gave “no 23 indication” that she considered the claimant’s “mild limitations in his social functioning, 24 concentration, persistence, and pace.” Id. at 1021. The Solomon Court found the omission 25 “particularly notable”—and harmful—because the ALJ may have decided differently at 26 steps four and five had she considered the claimant’s limitations in concentration, 27 persistence, and pace. Id. 28 Similarly, in Michele M. v. Saul, the United States District Court for the Southern 1 District of California found that the ALJ erred by not considering—or not clarifying 2 whether she considered—the claimant’s non-severe mental impairments when determining 3 her RFC. No. 19-cv-00272-JLB, 2020 WL 1450442, at *7 (S.D. Cal. Mar. 25, 2020). In 4 Michele M., the ALJ found that the claimant had medically determinable mental 5 impairments of depression, PTSD, and anxiety. Id. at *5. The ALJ considered the four 6 broad functional areas, finding that the claimant had “(1) mild limitations in understanding, 7 remembering, or applying information; (2) mild limitations in interacting with others; (3) 8 mild limitations in her ability to concentrate, persist, or maintain pace; and (4) mild 9 limitations in her ability to adapt or manage herself.” Id. As a result, the ALJ found that 10 the mental impairments were not severe. Id. Near the end of her step two discussion, ALJ 11 acknowledged that 12 [t]he limitations identified in the “paragraph B” criteria are not 13 a residual functional capacity assessment but are used to rate the severity of mental impairments at steps 2 and 3 of the 14 sequential evaluation process. The mental residual functional 15 capacity assessment used at steps 4 and 5 of the sequential evaluation process requires a more detailed assessment by 16 itemizing the various functions contained in the broad categories found in paragraph B of the adult mental disorders 17 listings in 12.00 of the Listing of Impairments (SSR 96-8p). 18 Therefore, the following residual functional capacity assessment reflects the degree of limitation I have found in the 19 “paragraph B” mental function analysis.5 20 21 Id. at *6 (emphasis added). The court found that, “[d]espite this acknowledgement, and 22 despite [the ALJ’s] recognition that in determining an individual’s RFC, an ALJ must 23 ‘consider all of the claimant’s impairments, including impairments that are not severe,’” 24 the ALJ assigned Plaintiff an RFC without considering any of her mental restrictions. Id. 25 The court recognized that “consideration of ‘the limiting effects of all impairments’ does 26 not necessarily require the inclusion of every impairment into the final RFC if the record

27 5 In the present case, the ALJ made this exact same acknowledgement (AR at 31) 28 but—like the ALJ in Michele M.—failed to follow through on it by actually considering Plaintiff’s non-severe mental restrictions in the RFC analysis. 1 indicates the non-severe impairment does not cause a significant limitation in the plaintiff’s 2 ability to work.” Id. at *7 (citation and internal quotations omitted). However, the court 3 nonetheless found error because it could not “discern definitively from the hearing decision 4 whether the ALJ considered Plaintiff’s non-severe mental impairments and any 5 corresponding limitations before assigning Plaintiff an RFC without any mental 6 restrictions.” Id. 7 Here, the ALJ’s RFC analysis fails to address how his assessment of Plaintiff’s non- 8 severe mental impairments factored into his RFC determination. As in Michele M., the ALJ 9 here made the same vague and conclusory assertion at step two that his subsequent RFC 10 analysis “reflects the degree of limitation that [he] has found in the ‘paragraph B’ mental 11 function analysis.” (AR at 31). And—again, as in Michele M.—the ALJ here then failed to 12 include any reference to Plaintiff’s mental limitations in the RFC analysis. (AR at 31–34). 13 The ALJ’s RFC analysis begins with the general assertion that “[i]n making this finding, 14 [the ALJ] has considered all symptoms and the extent to which these symptoms can 15 reasonably be accepted as consistent with the objective medical evidence and other 16 evidence.” (AR at 31). The RFC analysis also acknowledges that Plaintiff “reported 17 difficulty . . . remembering information, completing tasks, concentrating, understanding 18 information, and following instructions,” alluding to some of the mental limitations the 19 ALJ identified at step two. (AR at 32). Nothing else in the ALJ’s RFC analysis can be 20 construed as a consideration of Plaintiff’s mild mental limitations in concentrating, 21 persisting, or maintaining pace. Instead, the RFC analysis focuses first on Plaintiff’s 22 physical impairments and how they match up with the medical record, and second on the 23 persuasiveness of three medical opinions from the record. (AR 32–34). While the ALJ may 24 have very well considered Plaintiff’s non-severe mental impairments in his RFC analysis, 25 “this is merely speculative, as the ALJ does not provide this explanation [himself].” 26 Michele M., 2020 WL 1450442, at *8 (citing Treichler v. Comm’r of Soc. Sec. Admin., 775 27 F.3d 1090, 1103 (9th Cir. 2014) (“[A court] cannot substitute [its] conclusions for the 28 ALJ’s, or speculate as to the grounds for the ALJ’s conclusions. Although the ALJ’s 1 analysis need not be extensive, the ALJ must provide some reasoning in order for [the 2 court] to meaningfully determine whether the ALJ’s conclusions were supported by 3 substantial evidence.”)). 4 As in Solomon and Michele M., the ALJ here identified specific, non-severe mental 5 limitations at step two and then erred by failing to consider—or at least making it clear that 6 he considered—those limitations in his RFC determination. The Court finds this error to 7 be harmful because the ALJ’s conclusion that Plaintiff could perform light work may have 8 been different had Plaintiff’s limitations in concentration, persistence, and maintaining 9 pace been considered in the determination. See Dela Cruz v. Colvin, No. CV 13-06286- 10 DFM, 2014 WL 2865076, at *2–3 (C.D. Cal. June 24, 2014) (cited by Solomon) 11 (remanding because ALJ failed to assess all of claimant’s medically determinable 12 impairments in RFC analysis); Hutton v. Astrue, 491 Fed. Appx. 850, 851 (9th Cir. 2012) 13 (cited by Michele M.) (“Further, while the ALJ was free to reject [the claimant’s] testimony 14 as not credible, there was no reason for the ALJ to disregard his own finding that [the 15 claimant’s] non[-]severe PTSD caused some ‘mild’ limitations in the areas of 16 concentration, persistence, or pace.”); Palafox v. Saul, No. CV 19-1517 SS, 2020 WL 17 752153, at *5 (C.D. Cal. Jan. 10, 2020) (cited by Michele M.) (“Here, the ALJ found that 18 Plaintiff had mild limitations in ‘understanding, remembering, or applying information,’ 19 and in ‘concentrating, persisting, or maintaining pace.’ However, the ALJ gave no 20 indication that he considered these limitations in determining Plaintiff’s RFC.”). 21 B. Subjective Symptom Testimony 22 Plaintiff argues that the ALJ erred in discounting Plaintiff’s subjective symptom 23 testimony. (Doc. 19 at 9–15). In evaluating a claimant’s testimony, the ALJ is required to 24 engage in a two-step analysis. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). First, 25 the ALJ must decide whether the claimant has presented objective medical evidence of an 26 impairment reasonably expected to produce some degree of the symptoms alleged. Id. If 27 so, and there is no evidence of malingering, the ALJ can reject the testimony regarding the 28 severity of the symptoms only by providing specific, clear, and convincing reasons for the 1 rejection. Id. Here, the ALJ recognized Plaintiff’s reported symptoms as difficulty lifting, 2 squatting, bending, standing, reaching, walking, sitting, kneeling, climbing stairs, 3 remembering information, completing tasks, concentrating, understanding information, 4 and following instructions. (AR at 32). Plaintiff also reported back and leg pain. (Id.). In 5 the first step, the ALJ found that Plaintiff’s “medically determinable impairments could 6 reasonably be expected to cause the alleged symptoms.” (Id.). However, at the second step, 7 the ALJ concluded that Plaintiff’s statements about the intensity, persistence, and limiting 8 effects of those symptoms were “not entirely consistent with the medical evidence and 9 other evidence in the record.” (Id.). 10 The ALJ’s decision to discount Plaintiff’s symptom testimony was based on the 11 following evidence: (i) Plaintiff received an epidural steroid injection which provided her 12 with 80% relief of her leg pain in 2016; (ii) Plaintiff appeared pleasant, well nourished, and 13 not in acute distress during two examinations in November and December 2017; 14 (iii) Plaintiff reported she felt “good overall” during a November 2018 examination; and 15 (iv) Plaintiff’s gait was “good” at two examinations in September and December 2017. 16 (AR at 32–33). The ALJ also noted that Plaintiff originally declined back surgery after she 17 was declared a candidate for the procedure in 2017. (AR at 32). 18 The primary issue with the ALJ’s reasoning is that it fails to specifically identify the 19 testimony that this evidence undermines. Instead, the ALJ merely makes the broad and 20 conclusory assertion that Plaintiff’s statements “about the intensity, persistence, and 21 limiting effects of her symptoms” were inconsistent with this evidence. (Id.). The Ninth 22 Circuit has held that “an ALJ does not provide specific, clear, and convincing reasons for 23 rejecting a claimant’s testimony by simply reciting the medical evidence in support of his 24 or her residual functional capacity determination.” Brown-Hunter v. Colvin, 806 F.3d 487, 25 489 (9th Cir. 2015). Instead, “the ALJ must specifically identify the testimony she or he 26 finds not to be credible and must explain what evidence undermines the testimony.” 27 Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001); see also Bunnell v. Sullivan, 28 947 F.2d 341, 345 (9th Cir. 1991) (an ALJ’s findings “must be sufficiently specific to allow 1 a reviewing court to conclude the [ALJ] rejected the claimant’s testimony on permissible 2 grounds and did not arbitrarily discredit [the] claimant’s testimony.”); Smolen, 80 F.3d at 3 1281 (“The ALJ must state specifically which symptom testimony is not credible and what 4 facts in the record lead to that conclusion.”). Here, the ALJ fails to meaningfully explain 5 what portion of Plaintiff’s symptom testimony is undermined by the above evidence, let 6 alone how that evidence actually contradicts or undermines Plaintiff’s reported symptoms. 7 The ALJ’s reasoning—which only recites certain medical evidence supporting the ALJ’s 8 conclusion—is simply not specific enough to allow this Court to conclude that the ALJ’s 9 discounting of Plaintiff’s symptom testimony was based on permissible grounds rather than 10 upon arbitrary reasoning. 11 Moreover, even if the Court were to read between the lines of the ALJ’s decision, 12 it is unclear how the above evidence is sufficient to discount Plaintiff’s symptom 13 testimony. The epidural injection provided Plaintiff with 80% relief of her leg pain over a 14 few-week span in 2016, (AR at 611), but it is unclear how this fact alone undermines 15 Plaintiff’s other symptoms such as back pain and her difficulties in—among other things— 16 lifting, squatting, standing, walking, remembering information, completing tasks, and 17 understanding information. In fact, during the same September 2017 examination in which 18 it was noted that the 2016 epidural injection relieved her leg pain, Plaintiff reported that 19 she was still suffering from chronic back pain, that the pain was aggravated by extended 20 periods of sitting, standing, walking, certain back movements, lifting, and carrying, and 21 that the injections were “less and less effective” in relieving her low back pain. (AR at 22 607). 23 Similarly, the fact that Plaintiff appeared pleasant, well nourished, with a good gait, 24 and not in acute distress during certain examinations in late 2017 does not necessarily 25 discount any of Plaintiff’s testimony about the intensity, persistence, and limiting effects 26 of her symptoms, particularly those symptoms and effects related to her chronic conditions. 27 See Mitchell v. Saul, No. 2:18-cv-01501-GMN-WGC, 2020 WL 1017907, at *7 (D. Nev. 28 Feb. 13, 2020) (“Moreover, the court agrees with Plaintiff that notations that Plaintiff was 1 healthy ‘appearing’ and in no ‘acute’ distress do not distract from the findings regarding 2 Plaintiff’s chronic conditions.”). A review of the September and November 2017 3 examination reports underscores this point. Although Plaintiff’s gait was good (AR at 609) 4 at the September examination, Plaintiff nonetheless reported chronic back pain, as 5 described above. (AR at 607). And in November, while it is true that Plaintiff’s general 6 appearance was described as “in no acute distress, well developed, well nourished,” the 7 entire basis for the visit was “severe” lower back pain and discomfort, with Plaintiff rating 8 the pain as a six out of ten. (AR 617). See Toni D. v. Saul, No. 3:19-cv-820-SI, 2020 WL 9 1923161, at *6 (D. Or. Apr. 21, 2020) (“Although an ALJ may consider a claimant 10 presenting in no acute distress in assessing the weight given to a claimant’s subjective 11 testimony, an ALJ may not simply cherry-pick evidence to show that a claimant is not 12 disabled; rather, the ALJ must consider the evidence as a whole in arriving at a conclusion 13 based on substantial evidence. . . . The ALJ cherry-picked statements in Plaintiff’s medical 14 records that she presented in no acute distress while ignoring statements in those same chart 15 notes describing ongoing, intense back pain.”). More broadly, the ALJ failed “to highlight 16 any part of Plaintiff’s testimony that is discredited or contradicted by the lack of acute 17 distress in the medical records.” Quiroz v. Comm’r of Soc. Sec. Admin., No. CV-16-02728- 18 PHX-DLR, 2017 WL 4250607, at *3 (D. Ariz. Sept. 26, 2017). “It is certainly possible, 19 and courts have found, that a person can suffer disabling chronic pain that never manifests 20 as acute.” Id. (citing Dorsett v. Colvin, No. 16-cv-1101-PHX-DGC, 2017 WL 840694, at 21 *17 (D. Ariz. Mar. 3, 2017); Petty v. Astrue, 550 F.Supp.2d 1089, 1099 (D. Ariz. 2008)). 22 The same issue arises with another of the ALJ’s reasons for discounting Plaintiff’s 23 symptom testimony—that Plaintiff reported feeling “good overall” during a November 24 2018 examination. (AR at 33). At that examination, it is true that Plaintiff reported feeling 25 “good overall.” (AR at 724). However, as Plaintiff points out, the appointment concerned 26 her gastroesophageal reflux disease (“GERD”) and was unrelated to Plaintiff’s other 27 medical issues such as her back pain. It is entirely conceivable that Plaintiff’s reports of 28 feeling “good overall” were in reference to her GERD, not to her back pain or other 1 unrelated conditions and symptoms—especially given that Plaintiff’s back pain was 2 ongoing throughout this time period. 3 Defendant argues that this Court should affirm because the ALJ found that 4 Plaintiff’s subjective symptom testimony conflicted with the medical opinion evidence. 5 (Doc. 22 at 16–17). The Court is unpersuaded by this argument because it is not clear that 6 the ALJ actually made such a finding. The ALJ’s discussion of medical opinion evidence 7 is found at the end of the ALJ’s RFC analysis. (AR at 33–34). In three consecutive 8 paragraphs, the ALJ discusses the medical opinions of Dr. Richard Palmer (consultative 9 examiner), Dr. Melvin Roberts (state agency consultant), and Dr. Carol Hutchinson (state 10 agency consultant at the reconsideration level). (Id.). Defendant now asserts that these 11 discussions “considered the conflict between the medical opinion evidence and Plaintiff’s 12 subjective complaints.” (Doc. 22 at 16). 13 Upon review of the ALJ’s discussion of medical opinion evidence, however, this 14 Court finds that the ALJ never explicitly addressed how the medical opinion evidence 15 contradicted or undermined Plaintiff’s symptom testimony. Instead, for each of the three 16 medical opinions, the ALJ merely discussed what portions of the opinion he found 17 persuasive—without any discussion of or contrast to Plaintiff’s own symptom testimony. 18 (AR at 33–34). The ALJ began each paragraph by listing the doctor’s findings as to 19 Plaintiff’s limitations. (Id.). Next, the ALJ characterized those findings as either 20 (i) consistent with or supported by the medical evidence (and therefore persuasive) or 21 (ii) not consistent with or supported by the medical evidence (and therefore not persuasive). 22 (Id.). The medical evidence to which the ALJ compared the opinion testimony was merely 23 the same “cherry-picked” evidence discussed above—that Plaintiff received epidural 24 injections that provided her with 80% relief of her leg pain and that Plaintiff reported 25 feeling “good overall” in November 2018—or the general facts that Plaintiff had 26 degenerative disc disease and a limited range of motion. (Id.). This analysis of each medical 27 opinion’s persuasive value was formulaic, unthorough, and arguably predetermined—the 28 ALJ appeared to have an idea in mind of Plaintiff’s limitations, and simply accepted as 1 persuasive those portions of each medical opinion that aligned with the ALJ’s own finding. 2 However, the adequacy of this analysis is not the present issue before this Court. Instead, 3 the ALJ’s analysis of the medical opinions is relevant only to the extent that the ALJ used 4 it to show “specific, clear, and convincing reasons” to reject Plaintiff’s symptom testimony. 5 And given that the ALJ makes no mention of Plaintiff’s symptom testimony at all, this 6 Court cannot find that such testimony can be discounted on the grounds that it conflicted 7 with the medical opinions.6 8 Defendant cites two other reasons that it asserts support the ALJ’s decision to 9 discount Plaintiff’s symptom testimony; however, these other reasons were not actually set 10 forth by the ALJ. The Court may only affirm the ALJ on grounds that were actually set 11 forth in the ALJ’s decision. See Marsh v. Colvin, 792 F.3d 1170, 1172 (9th Cir. 2015) 12 (citation omitted). First, Defendant points to instances in the record where it was noted that 13 Plaintiff’s gait, muscle tone, musculoskeletal examination, and strength were “normal.” 14 (Doc. 22 at 14). Although the ALJ does refer to September and December 2017 15 examinations in which Plaintiff’s gait was noted as “normal,” (AR at 33 (citing to AR 609 16 & 739)), the ALJ does not mention any of the other examination findings listed by 17 Defendant. Therefore, the Court cannot affirm the ALJ on the basis of these other 18 examination findings. Second, Defendant argues that evidence of Plaintiff’s daily activities 19 was inconsistent with—and therefore discrediting of—her symptom testimony. (Doc. 22 20 at 17). Plaintiff, of course, disputes this. (Docs. 19 at 13 & 26 at 8–9). However, the ALJ 21 did not refer to Plaintiff’s daily activities at all in discounting Plaintiff’s symptom 22 testimony in his RFC analysis. Instead, the only reference to daily activities—in the entire 23 ALJ decision—is found in the ALJ’s step two analysis, in the context of the fourth area of 24 mental functioning. (AR at 30). It follows that this Court cannot affirm the ALJ on the basis 25 of Plaintiff’s daily activities. This Court can only affirm the ALJ’s discounting of 26 27 6 Because the ALJ failed to meaningfully explain what parts of Plaintiff’s symptom testimony were discredited by the medical opinions and why, this Court does not reach 28 Plaintiff’s argument that some of the medical opinions were “stale” and did not reflect the most recent medical evidence. (Doc. 26 at 8). 1 Plaintiff’s symptom testimony on grounds that the ALJ based its own decision upon. And 2 as explained above, such grounds were insufficient in the present case. This Court finds 3 that the ALJ erred in discounting Plaintiff’s symptom testimony without providing specific, 4 clear, and convincing reasons to do so. 5 IV. REMAND FOR FURTHER PROCEEDINGS 6 This Court finds that the ALJ erred by (i) failing to include Plaintiff’s non-severe 7 mental limitations in the RFC analysis and (ii) discounting Plaintiff’s symptom testimony 8 without providing specific, clear, and convincing reasons to do so. The Court further finds 9 that these errors were harmful. The only question remaining is whether this case should be 10 remanded for further proceedings or for an award of benefits. 11 Once a court has determined an ALJ’s decision contains harmful error, the decision 12 whether to remand a case for additional evidence or for an award of benefits is within the 13 discretion of the court. Reddick v. Chater, 157 F.3d 715, 728 (9th Cir. 1998); Swenson v. 14 Sullivan, 876 F.2d 683, 689 (9th Cir. 1989). “If additional proceedings can remedy defects 15 in the original administrative proceedings, a social security case should be remanded. 16 Where, however, a rehearing would simply delay receipt of benefits, reversal [and an award 17 of benefits] is appropriate.” Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981). 18 “Remand for further proceedings is appropriate where there are outstanding issues that 19 must be resolved before a determination can be made, and it is not clear from the record 20 that the ALJ would be required to find claimant disabled if all the evidence were properly 21 evaluated.” Hill v. Astrue, 698 F.3d 1153, 1162 (9th Cir. 2012) (citing Vasquez, 572 F.3d 22 at 593). 23 Here, it is not clear from the record that the ALJ would be required to find Plaintiff 24 disabled if all the evidence were properly evaluated using the proper standards. Therefore, 25 the Court, in its discretion, finds that a remand for further proceedings is appropriate. 26 /// 27 /// 28 /// 1 Accordingly, 2 IT IS ORDERED that the December 5, 2019 final decision of the Commissioner || of Social Security is vacated and remanded to the Commissioner of the Social Security Administration for further proceedings consistent with this order. 5 IT IS FURTHER ORDERED that the Clerk of Court shall enter judgment || accordingly and terminate this action. 7 Dated this 28th day of February, 2022. 8

10 United States District kudge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

-17-