Nielsen v. Commissioner of Social Security Administration

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UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
Amber Nielsen,
Plaintiff
-vs-
Commissioner of Social Security
Administration,
Defendant.
CV-25-1751-PHX-SHD (JFM)
Report & Recommendation
Plaintiff seeks review under 42 U.S.C. § 405(g) of the final decision of the
Commissioner of Social Security who denied her supplemental security income disability
benefits under the Social Security Act.
This matter is now ripe for consideration. Accordingly, the undersigned makes the
following proposed findings of fact, report, and recommendation pursuant to Rule 72(b),
Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(10), Local Rules
of Civil Procedure.
A. SUMMARY OF THE CASE
Plaintiff, born in 1992, has asserted that she became disabled as of December 29,
2021, based on a combination of mental and physical impairments. She has no past
relevant work.
In a decision issued April 29, 2024, the ALJ found changed circumstances and new
and material evidence to justify new findings from prior final denials. The ALJ found
Plaintiff generally eligible for benefits given her non-employment. The ALJ found
Plaintiff had the following severe impairments: schizophrenia, post-traumatic stress
disorder (PTSD), fibromyalgia, bilateral sensorineural hearing loss, asthma, depression,
and bipolar disorder. The ALJ also found the following non-severe impairments: pre-
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diabetes, GERD, IBS, hyperlipidemia, and obesity. Migraines were determined to be a
non-medically determinable impairment. The ALJ found no combination of impairments
that established disability under the listings. In doing so, the ALJ found no medically
equivalent listing for Plaintiff’s fibromyalgia. The ALJ concluded the “Paragraph B”
mental impairments criteria unsatisfied, having found moderate limitations in all four
areas: information; interactions; concentration, persistence and pace; and adaptation and
self-management.
The ALJ found Plaintiff had the residual functional capacity to perform medium
work, except she had the following additional limitations: “she can never climb ladders,
ropes or scaffolds, can frequently climb ramps and stairs, frequently balance, stoop, kneel,
crouch and crawl, can have occasional time around noise, must avoid fumes, can perform
simple, routine and repetitive tasks and can have no more than occasional exposure [to]
co-workers and the public.” Available jobs included: motor vehicle assembler.
Plaintiff argues that the ALJ erred by failing to articulate clear and convincing
reasons to discount Ms. Nielsen’s symptom testimony regarding the Paragraph B criteria.
In particular, Plaintiff alleges the ALJ erred in addressing the concentration, persistence
and pace criteria and the adaptation and self-management criteria, and by relying on
unpersuasive objective records and in relying on activities of daily living at a level not
applicable to the workplace.
B. APPLICABLE LAW
1. Standards Of Review
Reviewed Decision - In this instance, because the Appeals Council denied review,
the ALJ’s decision is the final decision of the agency, and the decision now under review.
20 C.F.R. § 404.981.
Bases for Reversal - The court may set aside the agency’s disability determination
only if the determination is not supported by substantial evidence or is based on legal error.
Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007).
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The phrase “substantial evidence” is a “term of art” used throughout
administrative law to describe how courts are to review agency
factfinding. Under the substantial-evidence standard, a court looks to
an existing administrative record and asks whether it contains
sufficient evidence to support the agency's factual determinations.
And whatever the meaning of “substantial” in other contexts, the
threshold for such evidentiary sufficiency is not high. Substantial
evidence, this Court has said, is more than a mere scintilla. It
means—and means only—such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.
Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (quotations, alterations and citations
omitted).
Limited to ALJ’s Reasoning - In reviewing the ALJ’s decision, neither the parties
nor the Court can manufacture their own reasons to support the decision made by the ALJ.
“We review only the reasons provided by the ALJ in the disability determination and may
not affirm the ALJ on a ground upon which he did not rely.” Garrison v. Colvin, 759 F.3d
995, 1010 (9th Cir. 2014); see also SEC v. Chenery Corp., 318 U.S. 80, 87 (1943) (“The
grounds upon which an administrative order must be judged are those upon which the
record discloses that its action was based.”); Connett v. Barnhart, 340 F.3d 871, 874 (9th
Cir. 2003) (“We are constrained to review the reasons the ALJ asserts. It was error for the
district court to affirm the ALJ's credibility decision based on evidence that the ALJ did
not discuss.”).
But in identifying the ALJ’s reasons, the Court is not constrained solely by the
ALJ’s organization of his opinion, and can make reasonable inferences reading the
decision as a whole. Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989).
Not Limited to ALJ’s Record Citations – The ALJ is not mandated to provide
record citations, but rather to provide reasons. So long as the purported “facts” underlying
those reasons find support in the record, the ALJ’s decision must be sustained. “Thus, it
is clear that both this court and the district court may look to any evidence in the record
regardless of whether it has been cited by the Appeals Council.” Walker v. Sec'y of Health
& Hum. Servs., 884 F.2d 241, 245 (6th Cir. 1989). See also 4 Soc. Sec. Law & Prac. §
55:67 (2022). Indeed, the reviewing court may reverse “only if the ALJ's decision was not
supported by substantial evidence in the record as a whole.” Molina v. Astrue, 674 F.3d
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1104, 1110 (9th Cir. 2012) (emphasis added).
On the other hand, “[t]hough the ALJ need not address every piece of evidence, he
must articulate, at some minimum level, his analysis of the record so that the reviewing
court can follow his reasoning.” Johansen v. Barnhart, 314 F.3d 283, 287 (7th Cir. 2002).
“If the reviewing court has no way of evaluating the basis for the ALJ's decision, then ‘the
proper course, except in rare circumstances, is to remand to the agency for additional
investigation or explanation.’” Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013)
(quoting Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985)). See also
Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) (“We are constrained to review the
reasons the ALJ asserts. It was error for the district court to affirm the ALJ's credibility
decision based on evidence that the ALJ did not discuss.” (emphasis added)). Thus, a
decision supported only by a bare reference to “the record” would justify remand, even if
some portion of the record might support the decision, if the decision did not otherwise
make clear the ALJ’s reasons.
Harmless Error - “A decision of the ALJ will not be reversed for errors that are
harmless.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). An error is harmless if
there remains substantial evidence supporting the ALJ’s decision and the error does not
affect the ultimate nondisability determination. Molina, 674 F.3d at 1115. An error is
harmless if it either “occurred during a procedure or step the ALJ was not required to
perform,” or if it “was inconsequential to the ultimate nondisability determination.” Stout
v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006). Harmlessness does not
require the court to determine what ultimate decisions the ALJ would have made if the
error had not been committed, but only to ask whether the remaining bases for the decision
are sufficient to support the decision. Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d
1155, 1162 (9th Cir. 2008).
2. Evaluation of Mental Impairments
In evaluating functional limitations from mental impairments, the agency considers
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criteria that “represent the areas of mental functioning a person uses in a work setting.
They are: Understand, remember, or apply information; interact with others; concentrate,
persist, or maintain pace; and adapt or manage oneself.” 20 C.F.R. § Pt. 404, Subpt. P,
App. 1. ¶ 12.00(A)(2)(b).1 But see id. at ¶¶ 12.00(A)(2), 12.00(A)(3), 12.00(B)(4) (Listing
12.05 (intellectual disorder, f/k/a “mental retardation”) uses unique ratings system). See
also 20 C.F.R. § 416.920a(c)(4).
In evaluating mental impairments, the regulations describe a specific rating system:
When we rate your degree of limitation in these areas (understand,
remember, or apply information; interact with others; concentrate,
persist, or maintain pace; and adapt or manage oneself), we will use
the following five-point scale: None, mild, moderate, marked, and
extreme. The last point on the scale represents a degree of limitation
that is incompatible with the ability to do any gainful activity.
20 C.F.R. § 416.920a(c)(4).
To satisfy the “paragraph B” criteria, the mental impairments must result in one
extreme limitation or two marked limitations in a broad area of functioning. 404-P ¶¶
12.00(A)(2)(b) and 12.00(E). An extreme limitation is the inability to function
independently, appropriately, or effectively, and on a sustained basis. Id. at 12.00(F)(2)(e).
A marked limitation is a seriously limited ability to function independently,
appropriately, or effectively, and on a sustained basis. Id. at 12.00(F)(2)(d). A moderate
limitation is one where the claimant has a fair ability to function in the area independently,
appropriately, effectively, and on a sustained basis. Id. at 12.00(F)(2)(c).
3. Evaluation of Symptoms Testimony
A “finding that a claimant's testimony is not credible must be sufficiently specific
to allow a reviewing court to conclude the adjudicator rejected the claimant's testimony on
permissible grounds and did not arbitrarily discredit a claimant's testimony regarding pain.
General findings are insufficient; rather, the ALJ must identify what testimony is not
credible and what evidence undermines the claimant's complaints.” Brown-Hunter v.
1 Hereinafter, 20 C.F.R. § Pt. 404, Subpt. P, App. 1. Is referenced as “404-P”
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Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (citations and quotations omitted). “As we have
previously recognized, a reviewing court should not be forced to speculate as to the
grounds for an adjudicator's rejection of a claimant's allegations of disabling pain.”
Bunnell v. Sullivan, 947 F.2d 341, 346 (9th Cir. 1991)
A two-step process applies for addressing claimant’s assertions of symptoms:
First, the ALJ must determine whether the claimant has
presented objective medical evidence of an underlying impairment
which could reasonably be expected to produce the pain or other
symptoms alleged. In this analysis, the claimant is not required to
show that her impairment could reasonably be expected to cause the
severity of the symptom she has alleged; she need only show that it
could reasonably have caused some degree of the symptom. Nor must
a claimant produce objective medical evidence of the pain or fatigue
itself, or the severity thereof.
If the claimant satisfies the first step of this analysis, and there
is no evidence of malingering, the ALJ can reject the claimant's
testimony about the severity of her symptoms only by offering
specific, clear and convincing reasons for doing so.
Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017) (quoting Garrison v. Colvin, 759
F.3d 995, 1014-15 (9th Cir. 2014)). See also Soc. Sec. Ruling 16-3p Titles II & Xvi:
Evaluation of Symptoms in Disability Claims, SSR 16-3P (Oct. 25, 2017); 29 C.F.R. §
416.929.2
C. APPLICATION OF LAW
1. Parties Arguments
Plaintiff argues disability under Mental Disorder Listings 12.03 (schizophrenia
spectrum and other psychotic disorders), 12.04 (depressive, bipolar and related disorders),
and, belatedly, 12.06 (anxiety and obsessive-compulsive disorders). Significantly to the
issues raised in this appeal, Plaintiff does not assert disability under Listing 12.05
(intellectual disorder). Plaintiff argues the ALJ erred in finding only moderate limitations
in the Paragraph B criteria of concentration, persistence and pace (herein “CPP criteria”)
and adapting or managing oneself (herein “AMO criteria”). In particular, Plaintiff argues
2 Defendant acknowledges the Ninth Circuit’s “clear and convincing” standard, but argues
it conflicts with the “substantial evidence” standard in 42 U.S.C. § 405(g). (ABrf. at 5, n.
1.)
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her symptoms testimony demonstrated “marked” limitations, and the ALJ erred by:
a. relying on the results of a single “Folstein Mini-Mental Status Exam,”
which measures only contemporaneous cognitive ability in a 5 to 10
minute time frame, and does not consider the relevant effects of
Plaintiff’s mental impairments that affect the CPP criteria, such as
disturbances of mood and concentration (OBrf at 11-12);
b. relying on unadorned findings of cooperativeness during exams and
lack of need for redirection at the hearing to find an ability to regulate
in a work setting (id. at 13);
c. failing to meaningfully address medical evidence of limited
functioning (id. at 13-14); and
d. relying on evidence of activities of daily living and work attempts to
discredit symptoms testimony when those activities were not at a
level transferrable to a work setting (id. at 14-16).
Defendant argues that in finding a non-disabling “degree of psychological
impairment,” the ALJ properly relied on: (a) objective exam findings on memory,
concentration, logic, and cooperation (ABrf. at 5-6); (b) Plaintiff’s course of treatment (id.
at 6-7); (c) Plaintiff’s activities (id. at 7); and (d) the ALJ’s personal observations (id. at
7-8). Defendant further argues the Folstein Mini Mental Status Exam was objective
evidence of Plaintiff’s function (id. at 8-9) and Plaintiff relies only on her subjective
complaints and unexplained assertions that her activities did not counter those complaints
(id. at 9).
Plaintiff replies that most findings referenced by Defendant do not contradict her
symptoms testimony, which she did not contend resulted from deficits in memory or
cooperation, but because of her emotional lability, avoidance and amotivation. (RBrf. at
1-2.) Plaintiff argues the cited objective evidence does not contradict her allegations, and
that the asserted activities do not counter them. (Id. at 2-3.)
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2. Applicable Regulations
The regulations describe the CPP area as follows:
3. Concentrate, persist, or maintain pace (paragraph B3). This area
of mental functioning refers to the abilities to focus attention on work
activities and stay on task at a sustained rate. Examples include:
Initiating and performing a task that you understand and know how
to do; working at an appropriate and consistent pace; completing
tasks in a timely manner; ignoring or avoiding distractions while
working; changing activities or work settings without being
disruptive; working close to or with others without interrupting or
distracting them; sustaining an ordinary routine and regular
attendance at work; and working a full day without needing more than
the allotted number or length of rest periods during the day. These
examples illustrate the nature of this area of mental functioning. We
do not require documentation of all of the examples.
404-P ¶ 12.00(E)(3).
The regulations describe the AMO area as follows:
4. Adapt or manage oneself (paragraph B4). This area of mental
functioning refers to the abilities to regulate emotions, control
behavior, and maintain well-being in a work setting. Examples
include: Responding to demands; adapting to changes; managing
your psychologically based symptoms; distinguishing between
acceptable and unacceptable work performance; setting realistic
goals; making plans for yourself independently of others; maintaining
personal hygiene and attire appropriate to a work setting; and being
aware of normal hazards and taking appropriate precautions. These
examples illustrate the nature of this area of mental functioning. We
do not require documentation of all of the examples.
404-P ¶ 12.00(E)(4).
3. Plaintiff’s Testimony
The ALJ summarized Plaintiff’s administrative allegations regarding her mental
symptoms:
In her Function Report-Adult, the claimant reported that she has panic
attacks resulting in physical illnesses (Exhibit C7E page 7). She has
reported interpersonal conflicts at previous employers, difficulties
distinguishing between reality and perception, fear, paranoia,
depression, anhedonia, and difficulty dealing with others. (Id.) …
During her clinical interview with Kari Coelho, PsyD in August
2022, the claimant reported that she does not have a lot of close
friends, does some online gaming, is irritable, demonstrates, low
frustration tolerance in interactions with others, has a long history of
interpersonal and relationship issues, and has PTSD from sexual
assault from her father who assaulted her from a young age until 16
years old (Exhibit C4F page 2). She also endorsed auditory
hallucinations, erratic, impulsive and scary behaviors for which [she]
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takes psychotropic medications and receives consistent mental health
treatment.
(AR 23.)
At the hearing with the ALJ, Plaintiff testified that her employment was precluded
by panic attacks with hyperventilation, vomiting, urinary incontinence, crying, auditory
hallucinations, blackouts, and depression resulting from the demands of the work
environment. (AR 39-40.) She testified to breakdowns in anticipation of going to work,
being disciplined for mistakes resulting from “hyper focus on my situation,” daily
breakdowns at work even on a part time schedule. She described being unable to shower
for weeks due to the overwhelming sensations of the enclosed space, darkness, noise and
pain from the water spray. She asserted she does not often leave the house, even to shop
for groceries, having groceries or meals delivered instead, prefers video appointments to
avoid leaving home, and to avoid people she does not go to the movies or out often to eat.
She attempted bowling with her mother but left after 15-20 minutes because of her mental
condition. She reported constant auditory hallucinations, which escalate when she is
stressed or her mediations are off, and can result in an episode of psychosis and attacks on
others. She testified to regularly interrupted sleep, resulting grogginess, and lack of
motivation to clean or cook. (AR 39-47.)
Plaintiff described starting therapy when three or four years old due to her emotions
being limited to anger, she began seeing a therapist weekly at around 13 years old, and has
been in some form of mental health treatment since. She normally sees a therapist weekly,
and a psychiatrist monthly. She benefits from her treatment, and has trouble coping when
not able to see a therapist regularly. (AR 41-42.)
4. ALJ’s Decision
The ALJ found Plaintiff had only moderate limitations in the CPP area. The ALJ
reasoned:
With regard to concentrating, persisting or maintaining pace, the
claimant has a moderate limitation. On mental status examinations,
concentration is assessed by tasks such as having you subtract serial
sevens or serial threes from 100. In psychological tests of intelligence
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or memory, concentration is assessed through tasks requiring short-
term memory or through tasks that must be completed within
established time limits. The claimant submitted to a consultative
examination with Karl Coelho, PsyD in August 2022 (Exhibit C5F).
The examiner noted the claimant was anxious and had psychomotor
agitation, but thought processes were organized, logical, coherent
and easy to follow (Id. at page 4). There were no signs of perceptual
abnormalities including hallucinations or delusions. She was fully
oriented, her attention and concentration were fair, fund of
information was fair and she had adequate fund of knowledge. She
was functioning in the average range of intellect and her insight and
judgment were fair. She ultimately earned a 30/30 on the Folstein
Mini-Mental Status Exam (MMSE) (Id.). The claimant’s
performance suggests an ability to sustain focused attention and
concentration sufficiently long to permit the timely and appropriate
completion of tasks. Moreover, the undersigned finds the foregoing
evidence demonstrates the claimant has abilities to focus attention on
work activities and stay on task at a sustained rate.
(AR 21 (emphasis added).)3
The ALJ found Plaintiff had only moderate limitations in the AMO area. The ALJ
reasoned:
As for adapting or managing oneself, the claimant has experienced a
moderate limitation. The claimant has unremarkable mental health
treatment and has not been hospitalized during the adjudicatory
period due to a severe decline in cognitive or social function. She was
cooperative with the consultative examiners and she was
cooperative, attentive, responsive and did not require redirection at
the hearing on her application for benefits (See Exhibits C4F and
C5F). As noted above, providers have also routinely described the
claimant as pleasant and/or cooperative suggesting she retains
sufficient ability to adapt and/or manage herself in a work setting
(Exhibits C2F pages 4, 17, 34, 58, 63, 84, 85; C6F pages 18 and 25;
C8F pages 3, 6, 14, 20, 25, 26, 31, 44, 45, 57, 62, 64; C9F pages 9,
10, 11, 15, 16, 17, 18, 23, 24, 28, 29, 30, 35, 36, 42, 50; C10F pages
50 and 57; C12F pages 10, 11, 12, 13, 21, 22, 23, 29, 30, 31, 37, 38,
39, 45, 46, 54, 55, 63; C13F pages 13, 25, 29, 31, 35, 56, 59, 67, 73,
78, 79, 84; C15F pages 63, 70). The undersigned finds the foregoing
demonstrates the claimant has abilities to regulate emotions, control
behavior, and maintain well-being sufficiently in a work setting with
limited social interaction as articulated in the residual functional
capacity.
(AR 21-22 (emphasis added).)
/ /
3 The ALJ referenced Dr. Coelho’s psychological assessment as being in “Exhibit C5F.”
(AR 21.) To the contrary, that record is an internal medicine evaluation by Dr.
Cunningham. Dr. Coelho’s assessment is at “Exhibit C4F.” This citation error does not
materially affect the ALJ’s decision or rationale.
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5. Analysis of Rejection of Symptoms Testimony
a. Unconvincing Reasons
For the following reasons, the undersigned concludes that of the factors cited by
the ALJ related to the CPP area, there were only two arguably relevant ones: (a) the first
is the findings by Dr. Coelho that Plaintiff had fair “attention and concentration;” and (b)
the Folstein MMSE score. (AR 21.)
All the rest of the specific findings listed dealt with the “information” (or
“cognitive”) area, described as:
1. Understand, remember, or apply information (paragraph B1). This
area of mental functioning refers to the abilities to learn, recall, and
use information to perform work activities. Examples include:
Understanding and learning terms, instructions, procedures;
following one- or two-step oral instructions to carry out a task;
describing work activity to someone else; asking and answering
questions and providing explanations; recognizing a mistake and
correcting it; identifying and solving problems; sequencing multi-
step activities; and using reason and judgment to make work-related
decisions.
404-P, ¶ 12.00(E)(1). This includes the ALJ’s findings that Plaintiff’s “thought processes
were organized, logical, coherent and easy to follow,” “no signs of perceptual
abnormalities,” “oriented,” “fund of information,” “intellect,” and “insight and judgment.”
(AR 21.)
Defendant fails to explain how any of these findings bear on Plaintiff’s ability to
“focus attention on work activities and stay on task at a sustained rate,” 404-P ¶
12.00(E)(3), or to “regulate emotions, control behavior, and maintain well-being in a work
setting,” 404-P ¶ 12.00(E)(4). Rather, they demonstrate, at most, Plaintiff’s ability to at
least momentarily “[u]understand, remember or apply information.” Id. at ¶ 12.00(E)(1).
b. Folstein MMSE
The ALJ relied on the Plaintiff’s perfect score on the Folstein MMSE in addressing
the CPP criteria. Defendant argues this test is “probative evidence of inconsistency with
allegations of marked limitations.” (ABrf. at 8-9.) But, Defendant fails to explain how a
momentary “status” exam by a supportive provider constitutes a “clear and convincing”
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reason to reject Plaintiff’s symptoms testimony on the CPP and AMO criteria, both of
which are not concerned with momentary abilities, but the ability to exhibit abilities in the
work setting, over the course of a work week with the pressures associated with performing
in that setting.
Defendant’s cited cases do not close the gap. (See ABrf. at 9.) In Franchino v.
Comm'r of Soc. Sec. Admin., CV-20-08144-PCT-GMS, 2021 WL 5755358 (D. Ariz. Dec.
3, 2021), aff'd sub nom. Franchino v. Kijakazi, 2022 WL 16548014 (9th Cir. Oct. 31,
2022), Judge Snow simply recounted a 30/30 score on an MMSE as relevant evidence in
a claim based on a lack of concentration from “fibromyalgia ‘fog’” leading to memory and
concentration problems. But “relevant” evidence does not necessarily constitute a “clear
and convincing reason.”
In Pennock v. Comm'r of Soc. Sec. Admin., CV-19-8191-PCT-DWL, 2020 WL
6796768, at *4 (D. Ariz. Nov. 19, 2020), Judge Lanza simply described the MMSE as
“assess[ing] Plaintiff’s memory and cognitive functions.” Plaintiff does not rely on such
deficiencies.
Moreover, courts in this circuit have recognized that mental status examination
findings are not always relevant to the ability to maintain concentration, persistence and
pace in the work setting. See Merrill-Russell v. Comm'r of Soc. Sec. Admin., CV019-0331-
PHX-JJT, 411 F. Supp. 3d 503, 510 (D. Ariz. 2019) (“maintaining good concentration
throughout a medical examination does not necessarily equate to good concentration and
pace at a sustained level”). See also Finkley v. Colvin, 2014 WL 897347, at *5 (W.D.
Wash. Mar. 6, 2014) (concluding mental status exams insufficient to reject symptoms
testimony on CPP criteria because they failed to address ability to maintain concentration
“on a regular and sustained basis”).
c. Other Objective Medial Evidence
Defendant asserts the objective medical evidence supports the ALJ’s decision,
arguing Plaintiff’s “examiners consistently found intact memory, normal concentration,
logical thought process, and cooperative behavior (Tr. 20-21, 24, 433, 450, 474, 479, 500,
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547, 673, 676, 684, 690, 775, 783, 790, 796, 802, 808, 886, 995, 1005, 1013, 1021, 1028,
1037, 1044-45, 1125, 1136, 1142, 1153, 1232).” (ABrf. at 5.)
The only category of these findings that are relevant to the CPP criteria is the
finding of “normal concentration.” The only category of these findings relevant to the
AMO criteria are those finding “cooperative behavior.”
- AR 474, 479, 500, 547/886,* 673, 676, 684, 775, 1125, 1136 make no reference
to concentration or other factors relevant to the CPP criteria. These records do
reflect Plaintiff was “cooperative”, but these records also include reports of
“anxious,” “psychomotor agitation,” “tense and restless,” “paranoia,”
“anxiety,” decreased stress and paranoia from quitting job, present suicidal
ideation.
- AR 20-21 is the ALJ’s discussion of the CPP and AMO criteria, which is quoted
above. AR 24 is a reference by the ALJ to Coelho’s finding that Plaintiff’s
“attention and concentration were fair” and providers describing Plaintiff as
“cooperative.” But the ALJ’s conclusions and findings are not themselves
evidence.
- AR 433/450/690/1142/1153* is an exam note from 11/28/21 of “Mental Status
Exam” findings of “Concentration is within normal limits,” “adequately
groomed,” and “cooperative.”
- AR 783/790/796/802/808/995/1005/1013/1021/1028/1037* is an exam note
from 4/11/23, with a finding of “Concentration: good.”
- AR 1044-45 is an exam note from 2/14/23 with a finding of “Concentration:
fair” and “casually groomed.”
- AR 1232 contains only demographic information.
* Notes that are duplicates of each other are joined by “/”.
Other records not cited by Defendant similarly provide only reports on momentary
concentration and cooperativeness, including:
- AR 420 and 426 are notes from 12/27/21 reporting Plaintiff was “cooperative.”
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- AR 517 is an exam note from 8/22/22 noting “her attention and concentration
are fair,” she was “cooperative in her behavior,” although anxious and agitated.
- AR 825/1053 is an exam note from 1/11/23 with a finding of “Concentration:
good.”
- AR 855 is an exam note from 6/1/22, with “Attention and Concentration”
marked “Intact.”
However, none of these notes engage in any discussion or offer any evidence that the
evaluation was based on anything more than Plaintiff’s momentary presentation during the
course of the visit. Defendant fails to explain how the context of a mental health exam,
particularly for a person who has spent a significant portion of their life involved in mental
health treatment, would yield a presentation comparable to the stresses of the work
environment.
Here, a review of the entire medical record has not revealed any evaluations more
significant than observations over the course of visit and a single Folstein MMSE.
d. Treatment Limited
Defendant points to Plaintiff’s course of treatment, arguing Plaintiff had
“unremarkable mental health treatment that did not include any hospitalizations or other
treatment for severe declines in Plaintiff’s mental health.” (ABrf. at 6-7 (citing AR 21, 23-
24.) The ALJ did not rely on this finding to assess the CPP criteria, only the “adapting or
managing oneself” criteria. (AR 21.) This court is “constrained to review the reasons the
ALJ asserts,” Connett, 340 F.3d at 874, and Defendant offers no reason for the court to
infer this subsequent finding was the basis for the earlier CPP determination.
Moreover, Defendant fails to explain how a lack of acute treatment is relevant to a
determination on the CPP and AMO criteria under Paragraph B, both of which focus on
the effects of mental limitations in the context of work. Defendant cites to a single district
court case, Sandoval v. Saul, 2020 WL 4347514 (S.D. Cal. July 28, 2020), for the
proposition that a lack of hospitalization is relevant. In that case, the judge cited limited
treatment as one basis to support a finding of all mild limitations from a 50 year old’s three
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years with anxiety and depression.
In making this finding, the ALJ stated that Plaintiff “has no history
of inpatient psychiatric hospitalization,” had “non-emergent and
limited treatment for mental health including medications and
therapy,” and Plaintiff's “mental status exams were generally
unremarkable aside from a depressed and anxious mood.”
Id. at *20. The district judge cited no authority for relying on the limited treatment.
Moreover, Plaintiff’s case is easily distinguishable based on the severity of her
diagnoses, which the ALJ identified as including schizophrenia, post-traumatic stress
disorder (PTSD), depression, and bipolar disorder. Moreover, Plaintiff’s mental health
treatment began while she was a preschooler, and has persisted throughout her life, with
constant and regular treatment, including psychotropic medications and therapy.
Defendant cites to Dittmer v. Comm’r Soc. Sec., 2024 WL 967439, at *8 (E.D. Cal.
Mar. 6, 2024), for the proposition that limited treatment can undermine fibromyalgia
complaints. The cited portion of Dittmer does not reflect the court’s ruling, but simply
quotations from the ALJ’s opinion. However, the district judge did observe that “an
unexplained failure to pursue or follow treatment” can be a relevant consideration in
rejecting symptoms testimony. Id. at *7 (citing various Ninth Circuit cases). But here
Plaintiff has consistently sought treatment, and there is no suggestion she inappropriately
turned down recommended treatment.
One of the cases cited in Dittmer is instructive. In Tommasetti v. Astrue, 533 F.3d
1035, 1039 (9th Cir. 2008) the court found the rejection of symptoms testimony
appropriate where the claimant “did not seek an aggressive treatment program and did not
seek an alternative or more-tailored treatment program after he stopped taking an effective
medication due to mild side effects.” Here, neither the ALJ nor Defendant offer any
explanation how the lack of hospitalizations or other treatment for severe declines
diminish Plaintiff’s credibility. There is no suggestion that hospitalization had been
recommended (or was even available), or that Plaintiff’s reported symptoms would
require, justify or even benefit from treatment beyond what she sought.
/ /
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e. Observations by ALJ
Defendant points to the ALJ’s personal observations of Plaintiff. (ABrf. at 7-8
(citing AR 21, 24, and 116).) In the course of discussing the “adapting and managing
oneself” criteria, the ALJ observed the record reflected Plaintiff had not required
redirection “at the hearing on her application for benefits.” (AR 21 (citing Exh. C4F
(8/2/22 Psychological Examiner Report) and C5F (8/31/22 Physical Examiner Report)).)
Neither the ALJ nor Defendant explains how Plaintiff’s ability to participate in a 29 minute
hearing (AR 34, 52) translates to the work environment, in light of Plaintiff’s description
of her symptoms as not precluding any participation in work, only an inability to deal with
it on a sustained and consistent basis.
f. Activities
Defendant next points to Plaintiff’s activities (“including part-time work”) as
support for the ALJ’s conclusion. (ABrf. at 7 (citing AR 23-24).) Here, the only discussion
by the ALJ of activities relevant to Plaintiff’s mental health was in connection with
determining the RFC, and included references to her: (a) preparation of her typed Function
Report-Adult; and (b) handling her finances. (AR 24.)
But the ALJ did not relate these to the CPP or AMO criteria. And Defendant offers
no explanation how these very limited activities, with no apparent time constraints, are
transferable to a job setting. A claimant “does not need to be ‘utterly incapacitated’ in
order to be disabled.” Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001). Such
activities are only relevant if they are “transferable to the work setting with regard to the
impact of [the impairing symptoms]” and taking account of the ability to “concentrate on
work despite the [impairing symptoms] or could engage in similar activity for a longer
period given the [symptoms] involved.” Id.
Recognizing that “disability claimants should not be penalized for
attempting to lead normal lives in the face of their limitations,” we
have held that “[o]nly if [her] level of activity were inconsistent with
[a claimant's] claimed limitations would these activities have any
bearing on [her] credibility.” Reddick v. Chater, 157 F.3d at 722
(citations omitted); see also Bjornson v. Astrue, 671 F.3d 640, 647
(7th Cir.2012) (“The critical differences between activities of daily
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living and activities in a full-time job are that a person has more
flexibility in scheduling the former than the latter, can get help from
other persons ..., and is not held to a minimum standard of
performance, as she would be by an employer. The failure to
recognize these differences is a recurrent, and deplorable, feature of
opinions by administrative law judges in social security disability
cases.” (citations omitted)).
Garrison v. Colvin, 759 F.3d 995, 1016 (9th Cir. 2014).
The ALJ also referenced that Plaintiff was “employed part-time.” (AR 23 (citing
Exh. C5F at 1 (“currently works at a PetSmart call center”).) But this was in the context
of discussing her “diffuse body pain.” (Id.) Moreover, as argued by Plaintiff (RBrf. at 3),
her cited employment attempts at PetSmart ended with her loss of the job due to her
symptoms. (AR 48-49.)
g. Conclusion
In sum, Defendant fails to show that the ALJ’s rejection of Plaintiff’s symptoms
testimony on the CPP and AMO criteria was based on specific, clear and convincing
reasons, supported by the record.
Defendant offers nothing to suggest that, if Plaintiff’s symptoms testimony on the
CPP criteria were accepted, Plaintiff would not have been found to have a “marked” or
even an “extreme” limitation in this area.
6. Harmlessness
Harmless error principles apply in the Social Security context. Molina v. Astrue,
674 F.3d 1104, 1115 (9th Cir. 2012). “A decision of the ALJ will not be reversed for
errors that are harmless.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). An error
is harmless if there remains substantial evidence supporting the ALJ’s decision and the
error does not affect the ultimate nondisability determination. Molina, 674 F.3d at 1115.
Harmlessness does not require the court to determine what ultimate decisions the ALJ
would have made if the error had not been committed, but only to ask whether the
remaining bases for the decision are sufficient to support the decision. Carmickle v.
Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008).
Defendant makes no argument the errors were harmless. If the ALJ, absent the
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identified errors, were required to provide a “marked” limitation on both the CPP and
AMO criteria, or an “extreme” limitation on one of them, then it appears a finding of
disability could be required. Accordingly, the Court should find the errors harmful.
7. Remedy
Upon review of the Commissioner's decision denying benefits, this Court has
“power to enter ... a judgment affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the cause for a
rehearing.” 42 U.S.C. § 405(g).
“[I]n appropriate circumstances courts are free to reverse and remand a
determination by the Commissioner with instructions to calculate and award benefits.”
Garrison v. Colvin, 759 F.3d 995, 1019 (9th Cir. 2014). The Ninth Circuit applies the
credit-as-true rule, which requires the following three factors to be satisfied for an
immediate award of benefits: (1) the record has been fully developed and further
administrative proceedings would serve no useful purpose; (2) the ALJ has failed to
provide legally sufficient reasons for rejecting evidence, whether claimant testimony or
medical opinion; and (3) the ALJ would be required to find the claimant disabled if the
improperly discredited evidence were credited as true. Id. at 1020. Courts may “remand
for further proceedings when, even though all conditions of the credit-as-true rule are
satisfied, an evaluation of the record as a whole creates serious doubt that a claimant is, in
fact, disabled.” Id.
Plaintiff calls for a remand for reconsideration. Apart from denying reversible
error, Defendant does not address the appropriate remedy.
The undersigned does not find the requirements for application of the credit-as-
true rule have been met. The record is undeveloped on the effects of Plaintiff’s ability to
sustain employment given her claimed symptoms. In particular, it is unclear whether
marked or extreme limitations would apply.
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D. RECOMMENDATION
IT IS THEREFORE RECOMMENDED:
(A) The final decision of the Commissioner of Social Security be REVERSED.
(B) This matter be REMANDED to the Commissioner for REHEARING.
(C) The Clerk be directed to enter JUDGMENT accordingly.
EFFECT OF RECOMMENDATION
This recommendation is not an order that is immediately appealable to the Ninth
Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of
Appellate Procedure, should not be filed until entry of the district court's judgment.
However, pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall
have fourteen (14) days from the date of service of a copy of this recommendation within
which to file specific written objections with the Court. Thereafter, the parties have
fourteen (14) days within which to file a response to the objections. Failure to timely file
objections to any findings or recommendations of the Magistrate Judge will be considered
a waiver of a party's right to de novo consideration of the issues, see United States v.
Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)(en banc), and will constitute a waiver
of a party's right to appellate review of the findings of fact in an order or judgment entered
pursuant to the recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143,
1146-47 (9th Cir. 2007).
In addition, the parties are cautioned Local Civil Rule 7.2(e)(3) provides that
“[u]nless otherwise permitted by the Court, an objection to a Report and Recommendation
issued by a Magistrate Judge shall not exceed ten (10) pages.”
Dated: March 9, 2026
25-1751r RR 26 02 11 re SSA Appeal.docx
James F. Metcalf
United States Magistrate Judge
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