Burger v. Commissioner of Social Security Administration

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Richard Burger, Jr.,
Plaintiff,
v.
Commissioner of Social Security
Administration,
Defendant.
No. CV-25-00075-TUC-AMM (JR)
REPORT & RECOMMENDATION
Plaintiff Richard Burger, Jr. (“Burger”), pursuant to 42 U.S.C. §§ 405(g) and
1383(c), seeks judicial review of a final decision by the Commissioner of the Social
Security Administration (the “Commissioner”). (Doc. 1.) This matter, on referral to the
undersigned United States Magistrate Judge for Report and Recommendation, is ripe for
decision. (Docs. 15, 16, 17, 20, 22, 23.) Burger seeks remand for reconsideration of the
evidence. (Doc. 20 at 2.) As more fully set forth below, the undersigned recommends that
the district court remand the agency for reconsideration of the evidence.
BACKGROUND
Procedural Background
On September 9, 2022, Burger filed an application for Supplemental Security
Income (“SSI”) benefits alleging disability beginning on September 9, 2022. (AR 20.)
Burger’s application was denied both initially and on reconsideration. (Id.) On March 19,
2024, Administrative Law Judge Laura Speck Havens issued an unfavorable decision. (AR
Case 4:25-cv-00075-AMM Document 26 Filed 11/25/25 Page 1 of 18

- 2 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
20-32.) On January 28, 2025, the Social Security Administration Appeals Council denied
Burger’s request for review and adopted the ALJ’s unfavorable decision as the agency’s
final decision. (AR 1-3.)
Relevant Factual Background1
Burger was 21 years old at the time his application was filed. (AR 31.) He is a high
school graduate. (AR 30.) He has no past relevant work history. (AR 30.)
As a high school student, Mr. Burger received academic accommodations under a
section 504 accommodation plan due to a diagnosis of ADHD. (AR 347-348.) However,
he still struggled. (AR 348.) An evaluator in 2016, when Mr. Burger was just starting high
school, observed significant discrepancy between his verbal and nonverbal abilities with
verbal ability as a strength. (AR 348.) He was diagnosed with a nonverbal learning disorder
and traits of ADHD. (AR 348.) It was recommended that Mr. Burger remained in the
resource room for core subject area; take tests in a small group setting with opportunity for
breaks and extra time; regular breaks throughout the day to help with attention and focus
on assignments; and help with starting tasks along with frequent chick-ins to make sure he
is on track. (AR 348-349.)
As Mr. Burger grew, he received individual training within the home to address
limited focus and attention, limited concentration, limited memory, and distractibility. (See
AR 641.) His coach described him as alert, high energy, and fidgeting with his hands. (AR
642.) He told his coach that he had lost a job at Walmart (which he had obtained via
vocational rehabilitation) because of a lack of hours. (AR 642.) However, his job developer
revealed that Mr. Burger had behaved belligerently to his supervisor, refusing to clean up
a mess he had made. (AR 643.) His coach continued to work with him in the home to
address limited focus and attention, limited concentration, limited memory, and
distractibility and taught Mr. Burger practical skills such as the “three second rule,” giving
people at least three seconds to talk if they pause in the middle of saying something. (AR
650.) He was encouraged to practice driving with advice on basic safety, such as being
1 The relevant factual background is primarily taken from Plaintiff’s opening brief to which
no objection has been made.
Case 4:25-cv-00075-AMM Document 26 Filed 11/25/25 Page 2 of 18

- 3 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
mindful of speed and surroundings. (AR 650.) He was also encouraged to volunteer at the
Humane Society to build employment-related skills and learn how to manage symptoms
on the job. (AR 650.)
Shortly after the start of the COVID-19 pandemic, in April 2020, Mr. Burger’s
psychiatrist noted in a telephonic visit that Mr. Burger was articulate but overinclusive in
his speech and thought processes. (AR 561.) Mr. Burger was frustrated with social
distancing but was stable in functioning, although he had made no progress with searching
for a job even with the help of vocational rehab. (AR 561.) In July 2020, Mr. Burger had
obtained a job through vocational rehab as a courtesy clerk at Food City. (AR 563.)
However, his grandparents were helping him organize himself to get ready in the mornings,
and his grandmother stated that Mr. Burger had been increasingly argumentative and short
tempered, in addition to having difficulty staying on topic in conversation. (AR 563.) In
August 2020, his provider indicated that ADHD symptoms were well controlled, but an
additional diagnosis of generalized anxiety disorder was also appropriate. (AR 564.)
By September 2020, Mr. Burger’s anxiety had worsened as he perseverated on his
biological father’s disapproval of his current job. (AR 566.) Mr. Burger’s grandfather noted
a consistent pattern of Mr. Burger either unable or unwilling to follow directions with
household chores or yard work. (AR 566.) Symptoms improved in October 2020 as Mr.
Burger had been helping his grandfather more and continued his employment as a courtesy
clerk, and his family planned a trip to Mexico to celebrate his behavioral success. AR 568.
However, Mr. Burger did express a desire to transfer to a different grocery store because
of a language barrier between himself and other employees. (See AR 386-387.) A transfer
was scheduled for January 2021. (AR 387.) In November 2020, Mr. Burger was working
ten hours per week at Food City and helping his grandfather at various jobsites. (AR 388.)
Mr. Burger explained that he could not function without his medication. (AR 388.) He had
failed his driver’s test (AR 388), but he was able to pass the second time he took the test
(AR 394).
In January 2021, Mr. Burger’s grandmother expressed concern that Mr. Burger had
Case 4:25-cv-00075-AMM Document 26 Filed 11/25/25 Page 3 of 18

- 4 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
had difficulty learning the rules to board games over the holidays. (AR 395.) In addition,
Burger ran out of his ADHD medication, but his grandparents saw no difference in his
behaviors on or off the medication. (AR 570.) His doctor decided to try taking Burger off
medications. (AR 571.)
Burger was content with a second job he had obtained to supplement his income
because “it provides variety.” (AR 397.) He expressed boredom as a courtesy clerk and
was encouraged to discuss other types of available work at his employer with his coworkers
to get a better idea of what type of work he may be qualified and interested in doing. (AR
403.) His job coach assisted him with looking for new job, although Mr. Burger could not
explain what he wanted from a job. (AR 405, 407, 408.) The job coach attempted to help
Mr. Burger prepare for an interview at Burger King but noted that Mr. Burger had difficulty
understanding the differences between his current job at the grocery store and different
jobs in the fast-food industry, observing that Burger was hyper focused and fixated on
finding new work and quitting his current job regardless of whether he had new
employment lined up. (AR 408.) In addition, the job coach observed that Mr. Burger could
not identify what he liked about his current job; nor did he understand that he had
accommodations in the workplace. (AR 408; see also AR 413 (disorganized thought
process, distractible and needing redirection, poor insight and judgment).)
At his next medication management appointment in April 2021, Burger’s
grandmother observed that Mr. Burger had been short tempered, easily frustrated, and “has
a hard time letting things go.” (AR 572.) The doctor noted that Burger was “able to function
well without psychiatric meds.” (AR 572.) Burger was gaining weight; he was overeating
with no indication of any ability to control portion sizes. (See AR 425.) Burger’s anger and
loss of focus worsened over the next month, and he admitted to getting annoyed easily.
(AR 574.) The doctor restarted the ADHD medication at a lower dose. (AR 575.)
In May 2021, Burger revealed that he had been terminated from his job. (AR 431.)
He had started a fire at work but could not explain why. (AR 432.) He lacked insight into
the severity of his actions. (AR 432.) Mr. Burger’s grandfather revealed that this was the
Case 4:25-cv-00075-AMM Document 26 Filed 11/25/25 Page 4 of 18

- 5 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
second time that month Mr. Burger had lit a fire. (AR 432.) The job coach suggested that
Burger hold off on competitive employment and encouraged him to engage in informal
work with his family since he would need constant supervision. (AR 432.) Burger’s case
manager expressed confusion and concern that Burger had not reported this incident to her,
disclosing only that he had been terminated for low job performance such as not cleaning
up broken eggs and being late to work. (AR 434.)
Burger expressed no changes between his feelings on medication or off it and had
poor insight into his mood and the reasons around his behaviors. (AR 576.) His prescriber
reinstated Mr. Burger’s previous medications for ADHD and anxiety. (AR 577.) However,
this had no effect on Mr. Burger’s ability to understand the severity of his actions at his
place of employment. (See AR 437.) He expressed no remorse or concern regarding starting
the fire. (AR 439.) He had also intimidated his grandmother and was engaged in heightened
inappropriate sexual behaviors. (AR 439.) It was determined that Burger would work with
his family doing general labor where he could be continually supervised. (AR 439.)
Burger’s anger continued to increase. (AR 441.) Burger also explained that he did not want
to talk to his doctor about what was going on. (AR 445.)
In July 2021, Burger and his grandmother shared with the doctor that Burger had
been irritable and making poor choices, such as going on pornographic websites, breaking
objects in anger, fidgeting, and losing focus while assisting his grandfather with cleaning
out apartments. (AR 578.) His case manager pointed out that a crisis team might be
dispatched to the home if Burger could not be stabilized in his acting out. (AR 449.)
Recovery services were increased. (AR 452.) With help, Burger’s grandparents set
additional boundaries for him. (See AR 455, 456.) This intervention, along with increasing
the amount he worked with his family was helpful as Burger reported symptom
management was improved without access to the Internet and was receptive to
conversations about the changes that had been made. (AR 458.)
Burger still had difficulty controlling his behavior around others, and his uncle did
not want to continue working with him. (AR 460.) In September 2021, while his
Case 4:25-cv-00075-AMM Document 26 Filed 11/25/25 Page 5 of 18

- 6 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
grandparents were gone for two weeks and Burger was unsupervised, he made a blowtorch
with a lighter and a can of spray paint. (AR 580.) He also stole his grandmother’s
underwear. (AR 580.) His doctor suggested that finding structure to Burger’s days would
be best to cut down on impulsivity and poor judgment behaviors. (AR 581.)
Burger was designated eligible for SMI services in October 2021. (AR 773.) His
evaluator indicated that he needed assistance in caring for himself; that his needs must be
provided or arranged for by others; that he was seriously disruptive to family and/or the
community; that he was pervasively or imminently dangerous to others’ bodily safety; that
he requires a structured or supervised work or school setting; and that he requires structured
environment and for others to care for him. (AR 767-768.)
In November 2021, Burger started services with COPE Community Services. (AR
904.) He had assaulted his grandfather and been arrested and charged with domestic
violence. (AR 907.) His concentration was poor; his speech rapid; his mood anxious; and
his insight and judgment were poor. (AR 908.) He was diagnosed with schizophrenia and
oppositional defiant disorder, and prescribed Depakote. (AR 937.) After he reacted in a
rage after his television broke, his prescriber at COPE added Zyprexa and Concerta to his
medication regimen. (AR 939-940.)
By January 2022, Burger had stopped taking Concerta and was taking Zyprexa at
half dose. (AR 1169.) His illness was considered stable. (AR 1170.) Burger’s grandparents
reported that Zyprexa had decreased outbursts. (AR 1150.) Burger’s domestic violence
charge was still pending, and the court postponed hearing until February 2022. (AR 1150.)
Burger was ordered to participate in domestic violence classes. (AR 1100.) In April 2022,
Burger expressed remorse for his violent behavior. (AR 1105.) His insight into his mental
health conditions was limited. (AR 1105.) He also performed community service at the
Salvation Army. (AR 1107.) The medications stabilized Burger’s mood and employment
services were scheduled to begin one’s volunteer work ended. (AR 1107.)
Burger applied for disability in June 2022, and the claim was allowed. (AR 64.)
However, the application was for disabled adult child benefits under title II only, and
Case 4:25-cv-00075-AMM Document 26 Filed 11/25/25 Page 6 of 18

- 7 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
because Burger’s mother was already receiving the family maximum, Burger could not
receive benefits. (See Doc. 20-1.) Burger reapplied for title XVI benefits in September
2022. (See AR 63.) This application was denied; examiners noted that Burger “appeared to
have worked after prior allowance” (AR 64) and, since Burger’s condition had stabilized
in his current medication regimen, he was not disabled (See AR 67-70). Earnings records
indicate that Burger earned $1034 in 2022. (AR 190.)
Throughout 2022 and 2023, treatment records reflect that Burger was doing well on
olanzapine and Depakote. (See AR 1187-1291.) At hearing, Burger described “helping out
my grandpa” as work activity, assisting with cleaning up properties for sale. (AR 42.)
Burger did not know anything about being diagnosed with schizophrenia. (AR 43.) He
clarified that he had been a courtesy clerk at Basha’s over the course of nearly a year. (AR
45-47.) His “self-employment” reflected work he had performed for his uncle. (AR 47-48.)
Burger endorsed difficulty concentrating, paying attention, and staying focused for
extended periods of time. (AR 51.) He indicated that he could pay attention to any
individual task on the computer for 15 to 20 minutes. (AR 51.) He stated that his
medications help with his moods and concentration. (AR 52.) Burger explained that he had
been working with his grandfather since 2022, and he described his attitude when he started
working with his grandfather as “a phase in my life where I just didn’t want to do anything.”
(AR 53.) He explained that his grandfather would explain each task that he performed to
him and reminded him to stay on task when he got distracted. (AR 53.) He estimated that
he was not safe when he drove. (AR 54.) He indicated that his life was very much the same
from one day to the next. (AR 56.)
A vocational expert (“VE”) testified that a worker who required repetition of
instructions, prompts, and cues with each change in task, once or twice per day, would be
considered to be in a sheltered workshop. (AR 59.) The VE also testified that frequent
check-ins from supervisors would also eliminate mainstream jobs. (AR 60.)
//
//
Case 4:25-cv-00075-AMM Document 26 Filed 11/25/25 Page 7 of 18

- 8 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Summary of the ALJ’s Decision
At step one, the ALJ found that Plaintiff has not engaged in substantial gainful
activity (“SGA”) since the application date, September 9, 2022. (AR 23.)
At step two, the ALJ determined that Plaintiff has the severe impairments of
schizophrenia, ADHD, depression, anxiety, and intellectual disability, which significantly
limit Burger’s ability to perform basic work activities. (AR 23.)
At step three the ALJ determined that Burger does not have an impairment or
combination of impairments that meets or medically equals the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1. (AR 23.)
Regarding the “B criteria” of the listings 12.03, 12.04, 12.05, 12.06, and 12.15, the
ALJ found that Mr. Burger had moderate limitations in the domain of understanding,
remembering, or applying information; mild limitations in the domain of interacting with
others; moderate limitations in the domain of concentrating, persisting, or maintaining
pace; and mild limitations in the ability to adapt or manage herself. (AR 25.)
The ALJ also found that the “C criteria” were not satisfied. (AR 25, 28-29.) The
ALJ found that the medical record does not show that Mr. Burger is capable of only
marginal adjustment. (AR 28-29.)
After step three, but before step four, the ALJ determined Burger has the residual
functional capacity to perform a full range of work at all exertional levels but with the
following non-exertional limitations: Plaintiff can understand, remember, and carry out
simple repetitive routine tasks only. (AR 25.)
Finally, the ALJ determined that considering Plaintiff’s age, education, work
experience, and residual functional capacity, there are jobs that exist in significant numbers
in the national economy that Plaintiff can perform. (AR 30-31.) Therefore, the ALJ
determined that Plaintiff has not been disabled since the application date. (AR 32.)
ISSUES ON REVIEW
Plaintiff raises two (2) issues for review. (Doc. 20 at 2.) First, Plaintiff argues that
the ALJ’s analysis of the “paragraph C” criteria of the 12.00 listings is insufficient and
Case 4:25-cv-00075-AMM Document 26 Filed 11/25/25 Page 8 of 18

- 9 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
unsupported by substantial evidence. Second, Plaintiff argues that the ALJ’s RFC finding
fails to include all limitations shown by the record.
STANDARD OF REVIEW
This Court reviews only those issues raised by the party challenging the ALJ's
decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). “The ALJ is
responsible for determining credibility, resolving conflicts in medical testimony, and for
resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (citing
Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989)). The findings of the
Commissioner are meant to be conclusive if supported by substantial evidence. 42 U.S.C.
§ 405(g). Substantial evidence is “more than a mere scintilla but less than a
preponderance.” Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (quoting Matney v.
Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)). In reviewing the decision of the ALJ, the
Court will not overturn the ALJ's decision “unless it is either not supported by substantial
evidence or is based upon legal error.” Luther v. Berryhill, 891 F.3d 872, 875 (9th Cir.
2018). This is because the ALJ “and not the reviewing court must resolve conflicts in the
evidence, and if the evidence can support either outcome, the court may not substitute its
judgment for that of the ALJ.” Matney, 981 F.2d at 1019 (quoting Richardson v. Perales,
402 U.S. 389, 400 (1971)); Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1198
(9th Cir. 2004). The Commissioner's decision, however, “cannot be affirmed simply by
isolating a specific quantum of supporting evidence.” Sousa v. Callahan, 143 F.3d 1240,
1243 (9th Cir. 1998) (citing Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)).
Reviewing courts must consider the evidence that supports as well as detracts from the
Commissioner's conclusion. Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975).
A claimant is “disabled” for the purpose of receiving benefits if she is unable to
engage in any substantial gainful activity due to an impairment which has lasted, or is
expected to last, for a continuous period of at least twelve months. 42 U.S.C. §
423(d)(1)(A); 20 C.F.R. § 404.1505(a). “The claimant bears the burden of establishing a
prima facie case of disability.” Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995); Smolen
Case 4:25-cv-00075-AMM Document 26 Filed 11/25/25 Page 9 of 18

- 10 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
v. Chater, 80 F.3d 1273, 1289 (9th Cir. 1996).
DISCUSSION
1. The ALJ committed reversible error when determining Plaintiff did not
meet the “paragraph C” criteria of the relevant 12.00 listings.
Plaintiff argues that the ALJ erred by failing to make specific factual findings in
support of his determination that the “C criteria” are not met. (Doc. 20 at 13.) Specifically,
Plaintiff asserts that the ALJ committed legal error by relying on evidence of Plaintiff’s
activities of daily living to support a determination that Plaintiff has the ability to adapt to
changes in his environment or demands not already a part of his daily life. (Id. at 14.)
Plaintiff urges that the “C criteria” are met because there is a documented history of mental
disorders for at least two years, and that record evidence supports finding Plaintiff as only
capable of marginal adjustment. (Id. at 13-14.)
The Commissioner argues ALJ properly supported his finding that the “paragraph
C” criteria are not satisfied asserting that the ALJ “rejected the argument given the totality
of the evidence.” (Doc. 22 at 5.) The Commissioner also claims “the ALJ discussed
Plaintiff’s activity level, including that he is independent in activities of daily living.” (Id.)
As explained below, the Court agrees with Burger that the ALJ's finding that the “paragraph
C” criteria are not met is not supported by substantial evidence.
Legal Standard
At step three, the ALJ considers whether one or more of the claimant's impairments
meets or equals a listed impairment identified in 20 C.F.R. Pt. 404, Subpt. P, App. 1.
Jessica B. v. Comm'r of Soc. Sec., 2019 WL 850954, at *4 (E.D. Wash. Jan. 30, 2019)
(citing 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii); Tackett, 180 F.3d at 1098). If a
claimant has an impairment or combination of impairments that meets or equals a listed
impairment, the claimant is presumed disabled. Jessica B., 2019 WL 850954, at *4 (citing
Lewis, 236 F.3d at 512)). “An ALJ must evaluate the relevant evidence before concluding
that a claimant's impairments do not meet or equal a listed impairment.” Jessica B., 2019
WL 850954, at *4 (quoting Lewis, 236 F.3d at 512). “A boilerplate finding is insufficient
Case 4:25-cv-00075-AMM Document 26 Filed 11/25/25 Page 10 of 18

- 11 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
to support a conclusion that a claimant's impairment does not do so.” Jessica B., 2019 WL
850954, at *4 (quoting Lewis, 236 F.3d at 512).
An ALJ must follow a special technique to evaluate the claimant's symptoms and
rate his functional limitations in determining whether a mentally impaired claimant meets
a listed impairment. Jessica B., 2019 WL 850954, at *4 (citing 20 C.F.R. § 404.1520a(a)).
“An ALJ is required to consider: (1) whether specific diagnostic criteria are met
(‘paragraph A’ criteria); and (2) whether specific impairment-related functional limitations
are present (‘paragraph B’ and ‘paragraph C’ criteria).” Jessica B., 2019 WL 850954, at *4
(citing 20 C.F.R. § 404.1520a(b)). “The ‘paragraph A’ criteria substantiate medically the
presence of a particular mental disorder.” Jessica B., 2019 WL 850954, at *4 (citing 20
C.F.R. Pt. 404, Subpt. P, App. 1 § 12.00(A)(2)(a)). “The paragraphs B and C criteria
describe impairment-related functional limitations that are incompatible with the ability to
do any gainful activity.” Jessica B., 2019 WL 850954, at *4.
“The paragraph C criteria are an alternative to the paragraph B criteria under listings
12.02, 12.03, 12.04, 12.06, and 12.15.” Jessica B., 2019 WL 850954, at *5 (citing 20 C.F.R.
Pt. 404, Subpt. P, App. 1 § 12.00(G)(1)). “To satisfy the paragraph C criteria, a claimant
must show that [his] mental impairment(s) has existed for at least two years, and that (1)
[he] relied ‘on an ongoing basis, upon medical treatment, mental health therapy,
psychosocial support(s), or a highly structured setting(s), to diminish the symptoms and
signs of [his] mental disorder,’ and (2) despite [his] diminished symptoms and signs of
[his] mental disorder, [he] has achieved only ‘marginal adjustment,’ meaning ‘minimal
capacity to adapt to changes in [his] environment or to demands that are not already part
of [his] daily life.’” Jessica B., 2019 WL 850954, at *5 (quoting 20 C.F.R. Pt. 404, Subpt.
P, App. 1 § 12.00(G)(2)(b)-(c)).
Analysis
In determining that Burger did not satisfy the “paragraph C” criteria, the ALJ stated:
The representative argued that the claimant met the “paragraph
C” criteria of the mental listings; however, the undersigned
rejects this argument because the totality of the medical
evidence shows the claimant can do simple repetitive routine
Case 4:25-cv-00075-AMM Document 26 Filed 11/25/25 Page 11 of 18

- 12 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
task work and does not show that the claimant is capable of
only marginal adjustment, i.e., that he has a minimal capacity
to adapt to changes in his environment to demands that are not
already part of his daily life, as will be explained in more detail
below.
Later in her opinion, the ALJ explained that determination:
The undersigned finds that the evidence fails to establish the
presence of the "paragraph C" criteria. Though the medical
evidence of record shows mental health treatment that
diminishes the symptoms and signs of the claimant’s mental
disorder, it does not show that he is capable of only marginal
adjustment, i.e., that he has a minimal capacity to adapt to
changes in his environment to demands that are not already part
of his daily life. The claimant lives with his mother and
grandparents, and he works with his grandfather.
(AR 28.)
Here, the ALJ made no specific findings, nor is her determination supported by
substantial evidence. Instead, the ALJ simply restated the “paragraph C” criteria and
summarily determined that the evidence does not meet those criteria because Burger lives
with family members and works with his grandfather. Further, the ALJ’s discussion of the
“paragraph B” criteria also does not provide the necessary factual foundation upon which
her conclusion regarding the “paragraph C” criteria could be discerned as did not she
discuss any of the “paragraph C” criteria specifically when evaluating listings 12.03, 12.04,
and 12.06. (See AR 23-24.) This is error. See e.g., Katherine M. v. Kijakazi, 2022 WL
19975282, at *7 (N.D. Cal. Nov. 23, 2022) (finding “the ALJ's failure to explain his
conclusion [that the ‘paragraph C’ criteria are not met’] renders his ‘paragraph C’
determination not supported by substantial evidence”); J.A. v. Kijakazi, 2022 WL 2181693,
at *14 (N.D. Cal. June 16, 2022) (holding that “ALJ's failure to explain his ‘paragraph C’
determination again leaves the Court to guess why the longitudinal record did not suffice
to satisfy C1 and C2”); Needham v. Berryhill, 2019 WL 5626641, at *3 (N.D. Cal. Aug. 2,
2021) (holding that “[w]ithout identifying a basis for his decision—which, if provided, this
court could evaluate in light of earlier-assessed evidence—the ALJ has not made sufficient
findings upon which a reviewing court may know the basis for the decision”) (internal
Case 4:25-cv-00075-AMM Document 26 Filed 11/25/25 Page 12 of 18

- 13 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
quotations omitted); Jessica B., 2019 WL 850954, at *4-5 (holding boilerplate findings
without discussion of evidence is insufficient for a “paragraph C” determination).
Further, the fact that Burger “lives with his mother and grandparents, and he works
with his grandfather” is not necessarily indicative of his ability to adapt to changes in his
environment. See Plas v. Comm’r Soc. Sec. Agency, 2021 WL 3668380, at *5-6 (D. Ariz.
June 22, 2021), report and recommendation adopted, 2021 WL 363790 (D. Ariz. July 27,
2021) (“If Plas were living alone, one might reasonably assume that taking care of a pet
and attending to one’s activities of daily living entail some ability to adapt to changes….
Plas, however, does not live alone. He lives with his mother, so the court cannot make that
assumption.” (emphasis in original).). Here, as in Plas, Burger lives with family members
and is independent in his activities of daily living.
This Court is persuaded by the court's reasoning in Plas, that Burger's highly
structed living situation in conjunction with his independence in his activities of daily
living are not demonstrative of his ability to adapt to changes in his daily life where record
evidence demonstrates that Burger has difficulty adapting to changes in his daily life. For
example, Burger works only with close supervision of his grandfather, who sets each task
for him and frequently checks in. (AR 59-60.) Other workplace opportunities have not been
successful, which at one point resulted in Burger being terminated for setting fires at a job
and not notifying anyone (AR 432-439), an incident which resulted in his vocational coach
no longer being willing to place Burger with a private employer. (See AR 432.) Such
documentation of “episodes of deterioration in functioning” could result a contrary
determination of the second “paragraph C” criteria pursuant to the regulations. 20 C.F.R.
§ Pt. 404, Subpt. P, App. 1, § 12.00(G)(2)(c).
The Commissioner points to other evidence in the record to support the ALJ’s
determination that the “paragraph C” criteria were not met. First, the Commissioner points
to the fact “Plaintiff specifically stated on more than one occasion in 2023 that he was
doing well and medications were effective.” (Doc. 22 at 5.) While this assertion addresses
one prong of the “paragraph C” determination—that claimant relies on medical treatment
Case 4:25-cv-00075-AMM Document 26 Filed 11/25/25 Page 13 of 18

- 14 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
to diminish the signs of the mental disorder—it does not explain the second—whether
despite claimant’s diminished symptoms from the medication he has only achieved
“marginal adjustment.” 20 C.F.R. § Pt. 404, Subpt. P, App. 1, Listing 12.00(G)(2)(c).
Second, the Commissioner argues that “[a] State agency medical consultant also
found the evidence did not establish that Plaintiff did not meet or medically equal a listing,
and in particular, that the paragraph C criteria were not satisfied.” (Doc. 22 at 5) The Court
reviews the reasons the ALJ asserts in support of his decision. Connett v. Barnhart, 340
F.3d 871, 874 (9th Cir. 2003). Nothing in the ALJ’s analysis of Burger’s “paragraph C”
criteria references the opinion of the State agency medical consultant. If the ALJ fails to
make findings regarding a severe impairment, the Court cannot simply substitute its own
findings and conclusions. Treichler v. Comm'r of Social Security, 775 F.3d 1090, 1103 (9th
Cir. 2014).
A finding that the “paragraph C” criteria are satisfied would result in a determination
that Burger meets or functionally equals a listed impairment at step three and would result
in a disabled determination. Accordingly, the Court concludes that the ALJ's error at step
three is not inconsequential to the disability analysis and is not harmless. See Stout v.
Comm'r Soc. Sec. Admin., 454 F.3d 1050, 1055–56 (9th Cir. 2006).
2. The ALJ committed error when discounting Plaintiff’s symptom testimony
without articulating clear and convincing reasons supported by substantial
evidence.
Plaintiff argues that the ALJ improperly discounted his testimony that he needs
more supervision than is available in a competitive workplace. (Doc. 20 at 16.) Plaintiff
asserts that the ALJ did not adequately explain why the allegation was not supported by
the record. (Id.)
Legal Standard
Where a claimant has provided objective medical evidence of an impairment that
could reasonably produce the alleged symptoms, the ALJ evaluates the intensity and
persistence of the symptoms. See SSR 16-3p, 2016 WL 1119029. The ALJ is required to
Case 4:25-cv-00075-AMM Document 26 Filed 11/25/25 Page 14 of 18

- 15 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
evaluate whether a claimant’s statements about his symptoms are consistent with the
objective medical evidence and the other evidence in the record. See 20 C.F.R. pt.
404.1529(c)(2), (3); SSR 16-3p, 2016 WL 1119029. The ALJ must make specific findings
about a claimant’s allegations, properly supported by the record and sufficiently specific
to ensure a reviewing court that the claimant’s subjective testimony was not arbitrarily
discredited. See Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (citing Bunnell v.
Sullivan, 947 F.2d 341, 345-46 (9th Cir. 1991) (en banc)). Unless there is affirmative
evidence that a claimant is malingering, an ALJ’s reasons for discounting the claimant’s
testimony regarding the severity of his symptoms must be “clear and convincing.” Reddick
v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). “If the ALJ's . . . finding is supported by
substantial evidence, [a court] may not engage in second-guessing.” Kelly L. K. v. Saul,
2021 WL 3269981, at *6 (C.D. Cal. July 30, 2021) (citation omitted).
Analysis
Here, the ALJ discounted Burger’s testimony as to the intensity, persistence, and
limiting effects of his symptoms because they were not fully supported by the objective
medical evidence and not consistent with Burger’s claimed activity levels. (AR 28-29.)
Specifically, the ALJ found:
As for the claimant’s statements about the intensity,
persistence, and limiting effects of his symptoms, and the
testimony at the hearing, they are not fully supported by the
objective medical evidence because the claimant’s symptoms
improved with medication management and counseling and his
mental status examinations have been benign throughout (See,
e.g., Ex’s 15F/85-86; 18F/12-13; 19F/36, 55). During the
hearing, claimant admitted that he has no problem sleeping and
that he takes Depakote and Zyprexa, with no side effects. He
admitted that he watches YouTube on the computer and can
pay attention for about 15-20 minutes. Although he has alleged
poor concentration and attention, he admitted at the hearing
that the medications help with concentration and moods. He
admitted that he receives no reminders to bathe and that he
bathes daily. He testified that he has three friends, who treat
him “fine”. Before he was on medication, he acknowledged
that he felt angry and had trouble with the law. After he began
taking medication, he acknowledged that he stabilized. When
there is change, he admitted that he pushes through with the
change. He also admitted that, when he works with his
grandfather, he is instructed for each task.
Case 4:25-cv-00075-AMM Document 26 Filed 11/25/25 Page 15 of 18

- 16 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
(AR 28.) The ALJ further determined:
As for the claimant’s statements about the intensity,
persistence, and limiting effects of his symptoms, and
testimony at the hearing, they are not consistent with the
claimant’s acknowledged activities level. He is independent in
activities of daily living (hearing testimony). At the hearing,
claimant admitted that he does self-care without assistance;
does household chores, i.e., take out the trash and wash dishes;
shops; uses the internet for about 4-5 hours a day; watches
television for about 1-2 hours a day; hangs out with friends;
goes out to eat or to the movies or plays video games with
friends; and spends time with family. He has a valid driver’s
license but does not own a car. He alleges he does not feel safe
driving.
(AR 29.)
Plaintiff argues that the ALJ did not explain how the factors addressed in her
determination were inconsistent with Burger’s allegation that he requires more supervision
than is available in a competitive workplace. (Doc. 20 at 16-17.) The Court agrees. 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[.]” Bunnell,
947 F.2d at 345–46 (citation and internal quotation marks omitted). “General findings are
insufficient; rather, the ALJ must identify what testimony is not credible and what evidence
undermines the claimant's complaints.” Reddick, 157 F.3d at 722 (citation and internal
quotation marks omitted); see also Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir.
2001) (“the ALJ must specifically identify the testimony she or he finds not to be credible
and must explain what evidence undermines the testimony” (emphasis added)). Here, the
ALJ failed to connect the fact that Burger’s “symptoms improved with medication
management and counseling” with his alleged disability that he requires supervision to stay
on task. In fact, the ALJ found in her determination that Burger needs to be instructed for
each task when he works with his grandfather but provided no evidence nor reasoning as
to why such finding contradicts his allegations. The ALJ never identified a specific part of
Burger’s testimony related to a symptom she found was contradicted, instead relying on a
general statement that “the intensity, persistence, and limiting effects of his symptoms”
Case 4:25-cv-00075-AMM Document 26 Filed 11/25/25 Page 16 of 18

- 17 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
and factual findings that were not consistent with the medical evidence. See Brown-Hunter
v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015) (“Because the ALJ failed to identify the
testimony she found not credible, she did not link that testimony to the particular parts of
the record supporting her non-credibility determination. This was legal error.”)
Further, Plaintiff argues that the ALJ’s reliance on his daily activity level to
determine that he is not disabled was not clear and convincing. (Doc. 20 at 19.) The Court
agrees. “The mere fact that a plaintiff has carried on certain daily activities…does not in
any way detract from [his] credibility as to [his] overall disability.” Vertigan v. Halter, 260
F.3d 1044, 1050 (9th Cir. 2001). Further, “[o]nly if the level of activity were inconsistent
with [Burger’s] claimed limitations would these activities have any bearing on [his]
credibility.” Reddick, 157 F.3d at 722. Here, the ALJ failed to articulate how Burger’s
activity level in his daily activities contradict his allegations of needing constant
supervision, behavioral problems, or concentration related to his disability. Further, the
hearing testimony reveals Burger requires assistance with many daily chores and activities,
including doing the laundry, shopping for groceries, and driving. (See AR. 49, 54.) Also,
as above, the ALJ committed error by failing to identify specific testimony which she found
not credible, nor link such testimony to her review of the record. See Brown-Hunter, 806
F.3d at 494.
Accordingly, this Court finds that the ALJ’s reasons for discounting Plaintiff’s
testimony, in the absence of a finding of malingering, were not clear and convincing nor
supported by substantial evidence. See Luther, 891 F.3d at 875.
//
//
//
//
//
//
//
Case 4:25-cv-00075-AMM Document 26 Filed 11/25/25 Page 17 of 18

- 18 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
RECOMMENDATION
For the foregoing reasons, it is RECOMMENDED that the district court
REVERSE the decision of the Administrative Law Judge and REMAND the matter to the
Commissioner for further proceedings. Pursuant to Federal Rule of Civil Procedure
72(b)(2), any party may serve and file written objections within fourteen days of being
served with a copy of the Report and Recommendation. A party may respond to the other
party’s objections within fourteen days. No reply brief shall be filed on objections unless
leave is granted by the district court. If objections are not timely filed, they may be deemed
waived. If objections are filed, the parties should use the following case number: 4:25-cv-
75-AMM.
Dated this 25th day of November, 2025.
Case 4:25-cv-00075-AMM Document 26 Filed 11/25/25 Page 18 of 18