Yun v. Commissioner of Social Security Administration

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Nicole Yun,
Plaintiff,
v.
Commissioner of Social Security
Administration,
Defendant.
No. CV-25-00090-TUC-JAS (BGM)
REPORT AND RECOMMENDATION
Pursuant to 42 U.S.C. § 405(g), Plaintiff Nicole Yun seeks judicial review of a final
decision by the Commissioner of Social Security. (Doc. 1.) This matter was referred to
Magistrate Judge Bruce G. Macdonald for a report and recommendation and has been fully
briefed. (See Docs. 11, 17, 19, 20.) Based on the administrative record (AR) and the
parties’ briefs, the Magistrate Judge recommends that the District Judge, upon his
independent review, grant Plaintiff’s complaint, reverse the Commissioner’s decision, and
remand the matter for the calculation and award of benefits.
PROCEDURAL HISTORY
On February 13, 2023, Plaintiff filed an application for disability insurance benefits
under Title II of the Social Security Act (the Act). (AR 215-27.) Plaintiff alleged she had
been disabled and unable to work since December 15, 2022, due to anxiety and depression,
fibromyalgia, knee and back pain, migraine headaches, memory and concentration
problems, hypoglycemia, hypothyroidism, and gastrointestinal issues. (AR 215, 219.)
Prior to December 2022, Plaintiff worked as an accountant for approximately fifteen years.
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(AR 226.) Plaintiff’s disability application was denied upon initial review, (AR 101-10),
and upon reconsideration, (AR 1-7). After denial of reconsideration, Plaintiff requested a
hearing before an administrative law judge (ALJ). (AR 141-42.)
Administrative Hearing
On May 7, 2024, Plaintiff’s administrative hearing was held. (AR 80.) After the
hearing, ALJ Vivian McAneney found that Plaintiff had the severe impairments of anxiety,
depression, osteoarthritis of the knees, fibromyalgia, myofascial pain syndrome, cervical
spondylosis, and cervical/thoracic/lumbar enthesopathy. (AR 19.) The ALJ determined
that Plaintiff had the residual functional capacity (RFC) to perform sedentary work with
limitations. (AR 24.) The ALJ also determined that Plaintiff could perform work that
existed in significant numbers in the national economy. (AR 34-35.) The ALJ concluded
that Plaintiff was not disabled under the Act. (AR 35.) The Appeals Council subsequently
denied Plaintiff’s request for review. (AR 1.)
District Court Complaint
On February 21, 2025, Plaintiff filed the complaint at hand requesting that the Court
find her disabled or remand the case to the Commissioner for further proceedings. (Doc.
1 at 2.) Plaintiff asserts that the ALJ’s conclusions and factual findings are unsupported
by substantial evidence and erroneous. (Id.) On March 6, 2025, this case was referred to
the undersigned Magistrate Judge for a report and recommendation. (Doc. 11.) On
April 21, 2025, the Commissioner filed the administrative record. (Docs. 12-14.) On
July 7, 2025, Plaintiff filed her opening brief. (Doc. 17.) On August 6, 2025, the
Commissioner filed his answering brief, (Doc. 19); and on August 20, 2025, Plaintiff filed
her reply, (Doc. 20). This Report and Recommendation follows.
BACKGROUND
Born in June 1977, Plaintiff was forty-five years old when she filed for disability
insurance benefits. (AR 215.) Plaintiff has a high school diploma and earned a bachelor’s
degree in business administration. (AR 85, 628.) For nearly fifteen years, Plaintiff worked
as an accountant for several large accounting firms. (AR 226.) Despite her continuous
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employment history, Plaintiff has suffered from severe medical conditions since as early
as adolescence. (See e.g., AR 767.) Plaintiff reported experiencing depression since the
age of twelve, (id.); and her medical records reflect she has been prescribed a number of
antidepressants over the past twenty years, (AR 691, 718, 767, 1609, 1615-16).1 Over a
similar period of time, Plaintiff has suffered from lower back pain, (AR 392, 713),
fibromyalgia, (AR 379, 381), osteoarthritis of the knees, (AR 65, 365), chronic migraines,
(AR 365, 382), lumbar spondylosis, (AR 365, 382), spinal enthesopathy, (AR 380, 695),
and self-reported periods of cognitive decline, (AR 503, 635). Plaintiff has also undergone
a spinal diskectomy, (AR 391), total knee arthroplasty, (AR 47), and cortisone and gel knee
injections, (AR 392).
CLAIM EVALUATION
To determine whether a claimant is disabled under the Act, an ALJ follows a five-
step sequential evaluation. Ford v. Saul, 950 F.3d 1141, 1148 (9th Cir. 2020). The burden
of proof is carried by the claimant at steps one through four. Id.
At step one, the ALJ determines whether the claimant is engaged in “substantial
gainful activity.” Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Substantial gainful activity
is “work done for pay or profit that involves significant mental or physical activities.”
Ford, 950 F.3d at 1148 (quoting 20 C.F.R. 404.1520(a)(4)(i)). If the claimant is not
engaged in substantial gainful activity, the evaluation proceeds to step two. Bowen, 482
U.S. at 140. At step two, the ALJ determines whether the claimant has a “medically severe
impairment or combination of impairments.” Id. at 140-41. An impairment is “severe” if
it significantly limits the claimant’s “physical or mental ability to do basic work activities.”
Ford, 950 F.3d at 1148 (quoting 20 C.F.R. § 404.1522(a)). If the claimant has a medically
severe impairment or combination of impairments, the evaluation proceeds to step three.
Bowen, 482 U.S. at 141. At step three, the ALJ determines whether the medically severe
impairment meets or equals one of the Act’s listed impairments. Id. If the severe
1 Plaintiff was prescribed Prozac from 2006 to 2012; Seroquel in 2011; Cymbalta and
Wellbutrin in 2013; Depakote in 2014; Xanax in 2020; Abilify, BuSpar, Pristiq, and
Trazadone in 2023; and Effexor in 2024.
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impairment does not meet or equal one of the listed impairments, the evaluation proceeds
to step four. Id. Between steps three and four, the ALJ assesses the claimant’s residual
functional capacity. Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1222-23 (9th Cir.
2009). A claimant’s residual functional capacity is what the claimant can do despite her
physical and mental limitations. 20 C.F.R. § 404.1545(a)(1). At step four, the ALJ
determines whether the severe impairment prevents the claimant from performing her past
work. Bowen, 482 U.S. at 141. If the claimant cannot perform her past work, the
evaluation proceeds to step five. Id. at 142. At step five, the burden shifts to the ALJ to
show that the claimant is able to perform other work in the national economy in view of
her age, education, work experience, and RFC. Tackett v. Apfel, 180 F.3d 1094, 1100 (9th
Cir. 1999). The ALJ’s decision becomes the Commissioner’s final decision if the Appeals
Council denies a request for review. Sims v. Apfel, 530 U.S. 103, 106-07 (2000).
ADMINISTRATIVE DECISION
At step one of the five-step sequential disability evaluation, the ALJ determined that
Plaintiff had not engaged in substantial gainful activity since her December 15, 2022
application date. (AR 19.) At step two, the ALJ found that Plaintiff had the medically
determinable severe impairments of osteoarthritis of the knee, fibromyalgia, myofascial
pain syndrome, cervical spondylosis, cervical/thoracic/lumbar enthesopathy, anxiety, and
depression. (Id.) At step three, the ALJ determined that Plaintiff’s impairments did not
meet or medically equal one of the listed impairments under the Act. (AR 21.) The ALJ
next assessed that Plaintiff had the RFC to perform sedentary work with limitations. (AR
24.) The limitations were that Plaintiff could perform routine tasks with detailed but
uninvolved instructions; she could have no contact with the public, incidental interactions
with coworkers, and occasional interactions with supervisors; and Plaintiff could encounter
occasional changes in work processes or tasks. (Id.) At step four, the ALJ determined that
Plaintiff was unable to perform any past relevant work. (AR 34.) At step five, the ALJ
concluded that there were jobs that existed in significant numbers in the national economy
that Plaintiff could perform such as optical assembler, toy and equipment assembler, and
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grader/sorter. (AR 35.) The ALJ therefore determined that Plaintiff was not disabled. (Id.)
LEGAL STANDARD
Federal court review of social security decisions is limited. Treichler v. Comm'r of
Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014). The Commissioner’s denial of
benefits may be set aside only when his findings are “based on legal error or are not
supported by substantial evidence in the record as a whole.” Schneider v. Comm'r of Soc.
Sec. Admin., 223 F.3d 968, 973 (9th Cir. 2000). “Substantial evidence is more than a mere
scintilla but less than a preponderance—it is such relevant evidence that a reasonable mind
might accept as adequate to support the conclusion.” Orteza v. Shalala, 50 F.3d 748, 749
(9th Cir. 1995). In determining whether the Commissioner’s findings are supported by
substantial evidence, courts are to consider the record as a whole, “weighing both the
evidence that supports and the evidence that detracts from the Commissioner’s
conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). Where the evidence
is susceptible to more than one rational interpretation, the decision of the Commissioner
must be upheld. Andrews v. Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995). The court
reviews only those issues raised by the challenging party when deciding whether to reverse
the Commissioner’s decision. Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001).
DISCUSSION
Plaintiff argues that the Commissioner’s disability determination was erroneous for
three reasons. (Doc. 17 at 2.) She asserts the ALJ erred by: (i) improperly evaluating her
symptom testimony; (ii) improperly rejecting Dr. Nicole Newingham’s medical opinion;
and (iii) failing to include moderate mental limitations in the residual functional capacity
assessment and her hypothetical question to the vocational expert. (Id. at 17-28.) Plaintiff
requests that the Court find that she is entitled to disability insurance benefits or remand
her case for further administrative proceedings. (Doc. 1 at 2.) The Court finds that the
ALJ improperly rejected Plaintiff’s symptom testimony, failed to support her rejection of
Dr. Newingham’s medical opinion with substantial evidence, and failed to include
moderate mental limitations in Plaintiff’s RFC and the ALJ’s hypothetical question to the
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vocational expert. The ALJ’s disability determination should be vacated and Plaintiff’s
case remanded for the calculation and award of benefits.
I . Symptom Testimony Improperly Discounted
Plaintiff first argues that the ALJ erred by failing to properly evaluate her symptom
testimony. (Doc. 17 at 20-24.) The Court agrees.
When a claimant has a medically determinable impairment that could reasonably be
expected to produce the pain or other symptoms alleged, and the record fails to contain
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.”
Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996). The clear and convincing standard
is the most demanding required in Social Security cases. Garrison v. Colvin, 759 F.3d 995,
1015 (9th Cir. 2014). Under this standard, the ALJ must identify what testimony is not
credible and provide evidence that undermines those specific claims. Ghanim v. Colvin,
763 F.3d 1154, 1163 (9th Cir. 2014). The findings, “properly supported by the record,
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.” Bunnell v. Sullivan, 947 F.2d 341, 345-46 (9th Cir.
1991) (cleaned up). If the ALJ fails to provide specific, clear, and convincing reasons for
discounting a claimant’s symptom testimony, then her determination is not supported by
substantial evidence. Ferguson v. O’Malley, 95 F.4th 1194, 1199 (9th Cir. 2024).
A. Plaintiff’s Symptom Testimony
On May 7, 2024, Plaintiff testified at length about the severity of her symptoms.
(AR 87-96.) Plaintiff began by confirming that since December 2022, she had been
approved for private short-term and long-term disability benefits through her previous
employer. (AR 87.) Plaintiff stated that her major depressive disorder, generalized anxiety
disorder, chronic knee, hip, and back pain, and migraine headaches prevent her from being
a functioning employee. (Id.) Plaintiff testified that her depression negatively affects her
energy level, mood, focus, and concentration. (AR 88.) Plaintiff recalled that there are
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days when she cannot get out of bed, does not bathe, has difficulty completing household
chores, and gets easily irritated and confused. (AR 88, 94.) She also testified that despite
her recent left knee replacement surgery, her knees cause her a great deal of pain, her right
knee needs to be replaced, and her knees make it impossible to stand or walk for continuous
periods of time. (AR 89.) Plaintiff explained that walking, standing, lifting, and bending
inflames her back and that the inflammation makes simple tasks like driving or doing
laundry take longer than normal. (AR 91.) Plaintiff stated that when she has a migraine
headache, she goes to her bedroom, shuts the blinds, places an ice pack on her face, takes
her medication, and lays in the dark. (AR 93.) When pressed by the ALJ, Plaintiff
estimated she could stand 5 minutes before needing to sit, walk 10 minutes at most, and
lift a 10-pound box once or twice per day. (AR 90-91.) Plaintiff also testified that she
spends ninety percent of the day laying down. (AR 94.)
B. Skewed Record Analysis
In analyzing the severity of Plaintiff’s symptoms, the ALJ dissected discrete parts
of Plaintiff’s longitudinal medical history to create an inaccurate portrayal of the severity
of Plaintiff’s symptoms. (See AR 25-31.) For example, to refute the severity of Plaintiff’s
right knee pain, which Plaintiff described as “chronic,” “sharp,” and “stabbing,” (AR 87,
89), the ALJ referenced a single December 13, 2022 orthopedic note. (AR 25). Based on
the note, the ALJ concluded:
Orthopedic notes from December 13, 2022, show that the claimant’s right
knee pain was not severe in intensity. It did not substantially limit her
activities of daily living. Walking tolerance was not significantly reduced.
Pain and restriction of function were tolerable. She was found not to be an
appropriate candidate for knee replacement.
(Id.) (internal citation omitted).
The ALJ’s conclusion was one-sided because she failed to mention portions of the
same record that indicated that “[r]ight knee pain” was one of the primary reasons for
Plaintiff’s visit and that x-rays of Plaintiff’s right knee demonstrated “significant
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degenerative joint disease of the knee.” (AR 654-55.) The ALJ also failed to mention
contemporaneous medical records that indicated Plaintiff’s “knees are clearly that of a[n]
arthritic elderly person and should be treated as such,” (AR 65), and more recent medical
records indicating Plaintiff’s right knee has “advanced bone-on-bone arthritis” with
“complete loss of the medial joint space, sclerotic bone, and osteophytes,” (AR 47). The
ALJ further failed to acknowledge that while Dr. Deirmengian, Plaintiff’s orthopedic
surgeon, initially documented that Plaintiff was not an appropriate candidate for right knee
replacement surgery, (AR 655), subsequent notes from his office indicated that Plaintiff
was “tentatively scheduled” for right knee surgery in November 2023, (AR 664).
C. Medical History Mischaracterization
In addition to erroneously rejecting the severity of Plaintiff’s symptom testimony
by cherry-picking Plaintiff’s longitudinal medical history, the ALJ also mischaracterized
Plaintiff’s records to minimize her symptoms. For example, to summarize the severity of
Plaintiff’s musculoskeletal impairments, the ALJ determined:
[Plaintiff’s] left knee was problematic such that [she]underwent a total knee
arthroplasty in May 2023. She demonstrated improvement, and she does not
use an assistive device for ambulation. With respect to her spine, she has
ongoing pain in the lumbar region and groin, but her medication regimen
improved functionality and activities of daily living to 50 percent
improvement.
(AR 31.)
The Court agrees with Plaintiff’s contention that while she may have demonstrated
temporary improvement after knee replacement surgery, Plaintiff’s longitudinal medical
history demonstrates that her improvement was short lived. (Doc. 17 at 17-18.) Plaintiff’s
post-operative physical therapy notes indicate ongoing pain, numbness, and reduced
flexibility in her left knee. (AR 677-78, 681-84, 688-89.) Another progress note indicates
that Plaintiff had “a long recovery” due to knee and thigh pain; that she complained of
significant groin pain after surgery; and that in addition to groin pain, Plaintiff continued
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to have pain in the lumber and midthoracic regions of her spine. (AR 748.) Further medical
documentation reveals that Plaintiff suffered a post-operative labral tear of her left hip joint
and experienced persistent hip pain, tenderness of the iliopsoas, and a noticeable limp. (AR
783, 1086). An August 4, 2023 record from Dr. Daniel Skubick indicates Plaintiff has —
“at most”—50% pain relief with medication and that “medications improved [her]
functionality and activities of daily living to 50%” when taken. (AR 742.) That assessment
is not the same as the 50% improvement in daily living activities that the ALJ contends.
D. Unsupported Symptom Evaluation
In addition to mischaracterizing Plaintiff’s medical documentation to improperly
discredit the severity of Plaintiff’s physical symptoms, the ALJ failed to support her
characterization of Plaintiff’s mental health condition and symptoms with substantial
evidence. For example, the ALJ determined:
Regarding mental functioning, the claimant’s history shows assessments of
major depressive disorder and anxiety. Prior to the alleged onset date, she
declined medication/therapy for depression. She was taking Xanax for
anxiety. Although it reportedly was not well controlled, she declined further
evaluation with behavioral health/therapy.
(AR 27) (internal citation omitted).
The ALJ’s finding begins with the unfounded assertion that “[p]rior to the alleged
onset date, [Plaintiff] declined medication/therapy for depression.”2 (Id.) The assertion is
belied by medical records documenting Plaintiff’s extensive antidepressant medication
history, (see, e.g., AR 363, 509, 1472), including a psychiatric progress note that explicitly
states Plaintiff “[s]tarted antidepressants in her late teens …. including Zoloft, Prozac,
[and] Lexapro,” and she was on the medications “long term but stopped because they were
not helping,” (AR 1623). Moreover, one of the two medical records that the ALJ references
to support her medication noncompliance assertion indicates that Plaintiff previously took
antidepressants and experienced “[n]o improvement with multiple SSRI’s in the past.”
2 Plaintiff’s alleged disability onset date is December 15, 2022. (AR 215.)
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(AR 509.) The ALJ follows her erroneous finding with another selective determination
that while Plaintiff was taking medication for anxiety, the anxiety was not well controlled
and Plaintiff “declined further evaluation with behavioral health/therapy.” (AR 27.) This
determination omits the relevant portion of the supporting record that explains that Plaintiff
declined further evaluation because she tried behavioral health and/or therapy in the past
without success. (AR 509.) Finally, the ALJ’s summary of mixed-result psychiatric notes,
(see AR 27-31), followed by the cursory conclusion that Plaintiff’s “mental status findings
are otherwise consistently unremarkable,” (AR 31), fails to constitute the specific, clear,
and convincing evidence required to appropriately reject a claimant’s symptom testimony.
See Smartt v. Kijakazi, 53 F.4th 489, 499 (9th Cir. 2022) (cleaned up) (“[T]he clear and
convincing standard requires an ALJ to show his work”); Brown-Hunter v. Colvin, 806
F.3d 487, 494 (9th Cir. 2015) (finding harmful error where ALJ failed to identify testimony
she found not credible and “link that testimony to the particular parts of the record
supporting her non-credibility determination”).
The ALJ’s selective reference to minimizing medical documentation, her omission
of relevant evidence in Plaintiff’s longitudinal medical history, and her mischaracterization
of Plaintiff’s medical records to improperly discount Plaintiff’s symptom testimony
constitutes reversible error. See Lannon v. Comm'r of Soc. Sec. Admin., 234 F. Supp. 3d
951, 960 (D. Ariz. 2017) (remanding for benefits after proclaiming ALJs must review the
entire record and cannot cherry-pick evidence to support findings). The same can be said
for the ALJ’s failure to support her symptom rejection with substantial evidence. See
Attmore v. Colvin, 827 F.3d 872, 879 (9th Cir. 2016) (remanding for benefits where ALJ
erroneously focused on temporary periods of claimant’s improvement that were not
representative of continuing severity of symptoms); Garrison, 759 F.3d at 1018
(remanding for benefits after observing ALJ improperly singled out temporary periods of
well-being to discredit claimant). As such, the Commissioner’s disability determination
should be reversed and Plaintiff’s case remanded for the calculation and award of benefits.
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E. Counterarguments Unavailing
In response to Plaintiff’s argument that the ALJ improperly discounted her symptom
testimony, the Commissioner asserts that Plaintiff’s disagreement with the ALJ’s
interpretation of evidence is insufficient to establish error, that Plaintiff’s failure to quickly
recover from her total knee replacement surgery was her own fault, and that Plaintiff’s
daily living activities serve to undermine the severity of her symptoms. (Doc. 19 at 4-8.)
The Commissioner’s arguments are unavailing because as the previous examples
clearly demonstrate, the ALJ blatantly ignored or misconstrued relevant evidence to
minimize Plaintiff’s symptom testimony. The Commissioner’s assertions that Plaintiff’s
symptoms were a result of her noncompliance with a home exercise program and that her
daily living activities undermine the veracity of her testimony are post-hoc rationalizations
that the ALJ never mentioned in her decision and are raised for the first time on appeal.
(See AR 26-31); Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1225 (9th Cir. 2009)
(“Long-standing principles of administrative law require us to review the ALJ’s decision
based on the reasoning and factual findings offered by the ALJ—not post hoc
rationalizations that attempt to intuit what the adjudicator may have been thinking.”). As
such, the Commissioner’s counterarguments are meritless and should be denied.
II. Dr. Newingham’s Opinion Improperly Rejected
Plaintiff next argues that the ALJ erred by failing to support her rejection of Dr.
Newingham’s June 2023 medical opinion with substantial evidence. (Doc. 17 at 24-27.)
The Court agrees.
“Under the new regulations, an ALJ cannot reject an examining or treating doctor’s
opinion as unsupported or inconsistent without providing an explanation supported by
substantial evidence.” Kitchen v. Kijakazi, 82 F.4th 732, 739 (9th Cir. 2023) (cleaned up).
“The [ALJ] must articulate how persuasive [she] finds all of the medical opinions from
each doctor or other source and explain how [she] considered the supportability and
consistency factors in reaching these findings.” Woods v. Kijakazi, 32 F.4th 785, 792 (9th
Cir. 2022) (cleaned up). “Supportability concerns how a medical source supports a medical
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opinion with relevant evidence, while consistency concerns how a medical opinion is
consistent with the evidence from other medical and nonmedical sources.” Kitchen, 82
F.4th at 740 (cleaned up). For disability applications filed after March 27, 2017, “[t]here
is no longer a hierarchy of medical opinions that determines how the opinions are
weighed.” Id. Since an ALJ is not required to take medical opinions at face value, she
may consider the quality of the explanation when determining how much weight to give
an opinion. Ford v. Saul, 950 F.3d 1141, 1155 (9th Cir. 2020). “While an opinion cannot
be rejected merely for being expressed as answers to a check-the-box questionnaire, the
ALJ may permissibly reject check-off reports that do not contain any explanation of the
bases of their conclusions.” Id.
According to Plaintiff’s medical records, Dr. Newingham has been her primary care
physician since June 2, 2022. (See AR 512.) On June 23, 2023, Dr. Newingham drafted a
medical source statement of ability to do work-related activities for Plaintiff. (AR 659-
60.) Dr. Newingham determined that Plaintiff could sit for 0-2 hours, stand for less than 1
hour, rarely lift up to 10 pounds, and that Plaintiff’s symptoms would constantly interfere
with her attention and concentration and she would likely be absent four days or more per
month due to her impairments. (Id.) Dr. Newingham based her assessment on objective
findings and clinical observations, which included depressed/anxious affect; slow
movements; difficulty concentrating with conversation; and frequent position changes
every 5 minutes secondary to pain. (AR 660.)
A. Supportability Determination Unsupported By Substantial Evidence
In rejecting Dr. Newingham’s medical opinion as unpersuasive, the ALJ offered the
conclusory assertion that Dr. Newingham’s observations failed to adequately support the
degree of limitation that she assigned to Plaintiff’s physical and mental functioning. (AR
32.) The ALJ also surmised that Dr. Newingham appeared to have relied on Plaintiff’s
self-report in assessing her limitations. (Id.) The ALJ’s conclusory assertions, however,
fail to constitute the substantial evidence required to reject a physician’s opinion about a
claimant’s physical and mental limitations. See Embrey v. Bowen, 849 F.2d 418, 421-22
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(9th Cir. 1988) (“The ALJ must do more than offer [her] conclusions. [She] must set forth
[her] own interpretations and explain why they, rather than the doctors’, are correct.”).
Even under the new regulations, an ALJ cannot reject a treating doctor’s opinion as
unsupported or inconsistent without providing an explanation supported by substantial
evidence. Kitchen, 82 F.4th at 739; see also Baker v. Comm'r of Soc. Sec. Admin., No. CV-
21-08084, 2022 WL 2390945, at *3 (D. Ariz. July 1, 2022) (rejecting ALJ’s medical
opinion evaluation where ALJ cited no record evidence to suggest opinion was
unsupported and failed to articulate how the physician’s clinical observations were
inconsistent or unsupported by the record).
Here, the ALJ failed to reject the supportability of Dr. Newingham’s opinion in a
manner that created a logical bridge between the evidence and the ALJ’s conclusion. See
Maske v. Comm’r of Soc. Sec. Admin., No. CV-18-04891, 2020 WL 813768, at *5 (D. Ariz.
Feb. 19, 2020) (finding error in medical opinion rejection where ALJ “failed to build a
logical bridge between the evidence and her conclusion”). While the medical opinion was
partially limited to check-box assessments, “assessments that are substantiated by a
physician’s treatment records may be entitled to consideration that an otherwise
unexplained opinion would not receive.” Id. at *4 (citing Garrison, 759 F.3d at 1013). Dr.
Newingham’s treatment records are replete with reference to the severity of Plaintiff’s
symptoms and conditions. (See, e.g., AR 496 (observing that Plaintiff’s recurrent major
depressive disorder was “not well controlled” and that Plaintiff was “not able to work due
to severe symptoms”); AR 499 (observing Plaintiff “[w]ill likely need long term disability
given severity of anxiety/depression”); AR 1126 (observing significant fibromyalgia pain;
Plaintiff “cannot walk/stand for more than minutes at time[;]” and worsening cognitive
impairment); and AR 1469 (observing hair loss, migraines, anxiety, cognitive impairment,
and severe episode of recurrent major depressive disorder).) As such, the administrative
record fails to support the ALJ’s conclusory determination that Dr. Newingham’s opinion
is unsupported. See Woods, 32 F.4th at 788 (quotation marks and citation omitted) (“Under
the substantial-evidence standard, [reviewing courts] look to the existing administrative
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record and ask whether it contains sufficient evidence to support the [ALJ’s] factual
determinations.”). Finally, the ALJ’s hypothesis that Dr. Newingham relied on Plaintiff’s
“self-report in assessing limitations” fails to constitute the substantial evidence required to
discount a physician’s medical opinion. See Embrey, 849 F.2d at 422 (“[I]t is incumbent
on the ALJ to provide detailed, reasoned, and legitimate rationales for disregarding the
physicians’ findings.”); see also Ghanim, 763 F.3d at 1162 (“[W]hen an opinion is not
more heavily based on a patient’s self-reports than on clinical observations, there is no
evidentiary basis for rejecting the opinion.”). The Commissioner’s decision should
therefore be reversed and this case remanded for the calculation and award of benefits.
B. Consistency Determination Unsupported By Substantial Evidence
The record also demonstrates that the ALJ erred in her consistency determination
by failing to support it with substantial evidence. (See AR 32-33.) The ALJ determined
that Dr. Newingham’s medical opinion was inconsistent because: (i) July 23, 2023
treatment notes show that Plaintiff reported her pain was improving; (ii) the same notes
contain clinical findings that were otherwise unremarkable; (iii) the unremarkable findings
are consistent with an ability to perform a range of full time sedentary work; (iv) progress
notes throughout the period at issue show that Plaintiff’s associations were intact, her
thought process was logical and goal directed, and there was no abnormal thought content;
(v) to the extent Dr. Newingham’s medical leave letters constitute medical opinions, any
statements about Plaintiff’s ability to work is an issue reserved to the Commissioner; and
(vi) Dr. Newingham failed to provide articulation about the evidence that was either
valuable or persuasive in accordance with 20 C.F.R. § 404.1520(c). (Id.) None of these
reasons, however, constitute the requisite substantial evidence to reject a medical opinion
about a claimant’s physical and mental work limitations as inconsistent.
To begin, as Plaintiff argues and the Court once again finds, the ALJ cherry-picked
Plaintiff’s longitudinal medical history to reject Dr. Newingham’s opinion as inconsistent.
(See Doc. 17 at 25 (“[T]he ALJ’s consistency analysis … was impermissibly selective.”).)
The ALJ recounted that one of Dr. Newingham’s treatment notes showed Plaintiff reported
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improving pain and had a swollen left knee with healing sutures, but that Dr. Newingham’s
“clinical findings were otherwise unremarkable.” (AR 32.) This determination is overly
selective and mischaracterizes the evidence. Plaintiff actually reported that her “pain was
improving but not great,” that her anxiety “significantly worsened since surgery,” and that
she was experiencing panic attacks “all the time.” (AR 1126.) The clinical findings also
indicate that Plaintiff was in “[s]ignificant pain” related to her fibromyalgia and that she
could not continue with meaningful work because she could not “walk/stand for more than
minutes at [a] time.” (Id.) The same progress note indicates that Plaintiff had worsening
cognitive impairment, that her spinal enthesopathy was “likely contributing to [her]
ongoing migraine and fibromyalgia pain,” and that her recurrent major depressive disorder
was “[s]ignificantly debilitating … with cognitive changes/memory loss that is
worsening.” (Id.) As such, Dr. Newingham’s treatment notes are consistent with her
June 23, 2023 opinion and contradict the ALJ’s erroneous determination that the “findings
are consistent with an ability to perform a range of full[-] time sedentary work.” (AR 32.)
The ALJ goes on to find Dr. Newingham’s opinion inconsistent because progress
notes “throughout the period at issue” are consistent with “no more than moderate
limitation [in] concentration.” (AR 32.) Dr. Newingham had determined that Plaintiff’s
experience of pain or other symptoms was severe enough to constantly interfere with the
attention and concentration needed to perform simple work tasks and that Plaintiff would
need time off because of, at least in part, her inability to concentrate on job duties. (AR
660.) To support the ALJ’s inconsistency finding, the ALJ references medical records
from counselor Mary Aldrich and nurse practitioner Tiara Reid that allegedly show that
Plaintiff’s associations were intact, her thought process was logical and goal directed, and
she had no abnormal thought content. (AR 32.) A total review of the referenced records,
however, shows consistency rather than inconsistency with Dr. Newingham’s opinion.
On February 6, 2023, Mary Aldrich conducted a psychiatric diagnostic evaluation.
(AR 621-24.) Aldrich observed that Plaintiff had an anxious, depressed, and frustrated
mood; a tearful affect; tangential associations; racing thoughts; and that Plaintiff was easily
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distracted with limited insight and had impaired occupational functioning. (AR 623-24.)
Seven days later, Aldrich observed that Plaintiff had an anxious and depressed mood; weak
gait; rapid/pressured speech; tangential associations; racing thoughts; and was easily
distracted with limited insight. (AR 1483.)
On February 23, 2023, Aldrich observed that Plaintiff had an irritable, frustrated,
and depressed mood; restricted affect; weak gait; slow/halting speech; and that she was
easily distracted, had poor insight, moderately impaired judgment, and impaired
occupational functioning. (AR 633-34.) On subsequent psychotherapy visits throughout
the period at issue, Aldrich and Reid reported Plaintiff had a depressed mood, (AR 636,
643); blunted or dysphoric affect, (AR 636, 643, 650); weak gait (AR 636, 643, 650);
slow/halting speech (AR 636, 643, 650); mildly impaired memory, (AR 639, 647, 650);
loose associations, (AR 643, 650); slowed thought process, (AR 636, 643, 650); was easily
distracted or had difficulty sustaining attention, (AR 636, 640, 643, 647, 650); displayed
poor insight and impaired judgment, (AR 636, 643, 650); and had impaired occupational
functioning, (AR 637, 644, 651).
As such, the ALJ’s random selection of clinical observations that indicate temporary
intact associations, logical thought processes, and no abnormal thought content fails to
constitute the substantial evidence required to reject as inconsistent a physician’s opinion
on a claimant’s concentration and attention levels. See Ghanim, 763 F.3d at 1161-62
(ruling that isolated improved symptom observations “must be read in context of the overall
diagnostic picture the provider draws”); Lester v. Chater, 81 F.3d 821, 833 (9th Cir. 1995),
as amended (Apr. 9, 1996) (“Occasional symptom-free periods … are not inconsistent with
disability); cf. Garrison, 759 F.3d at 1018 (ruling that the ALJ “improperly singled out a
few periods of temporary well-being from a sustained period of impairment and relied on
those instances” to discredit the plaintiff).
Finally, the ALJ’s assertion that she can reject Dr. Newingham’s statements about
whether Plaintiff is able to work because that is an issue reserved to the Commissioner is
unavailing because it fails to constitute the substantial evidence required to demonstrate
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Dr. Newingham’s medical opinion is unsupported or inconsistent. Under 20 C.F.R. §
404.1527, the guidelines for evaluating opinion evidence for claims filed before March 27,
2017, a medical opinion on an issue reserved to the Commissioner, i.e., whether a claimant
is disabled or unable to work, is not a medical opinion. 20 C.F.R. § 404.1527(d). However,
the new guidelines for evaluating opinion evidence fail to carry over that language. See 20
C.F.R. § 404.1520c. Regardless of which regulatory framework applies, while an ALJ is
not bound by the uncontroverted opinions of a claimant’s physicians on the ultimate issue
of disability, the ALJ “cannot reject [the opinions] without presenting clear and convincing
reasons for doing so.” Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 1993). In this case,
clear and convincing reasons are supplanted by substantial evidence, see Woods, 32 F.4th
at 787 (reiterating that the decision to discredit any medical opinion must simply be
supported by substantial evidence), and the ALJ failed to provide substantial evidence to
reject the medical opinion of Dr. Newingham. The Commissioner’s decision should
therefore be reversed and this case remanded for the award and calculation of benefits.
III. RFC Assessment Inconsistent with Medical Evidence
Plaintiff’s final argument is that the ALJ erred by failing to account for moderate
limitations in concentration, persistence, or pace (CPP) in the residual functional capacity
assessment and that the ALJ also erred by failing to include all of Plaintiff’s mental
functioning limitations in her hypothetical question to the vocational expert (VE). (Doc.
17 at 27-28.) The Court agrees.
A claimant’s RFC is the ability to do physical and mental work activities on a
sustained basis despite limitations from any impairments. 20 C.F.R. §§ 404.1545(a)(1) and
416.945(a)(1). To determine a claimant’s RFC, an ALJ must consider all relevant evidence
in the record, including medical records, lay evidence, and the effects of symptoms,
including pain, that are reasonably attributable to the claimant’s medical conditions.
Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006). An RFC that fails to take
into account all of a claimant’s limitations is “defective.” Valentine v. Comm'r Soc. Sec.
Admin., 574 F.3d 685, 690 (9th Cir. 2009). “[T]he scope of the RFC plays a crucial role
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in the ALJ’s determination of whether an individual is disabled and entitled to benefits
under the [Act]. Laborin v. Berryhill, 867 F.3d 1151, 1153 (9th Cir. 2017).
In addition to assessing the claimant’s residual functional capacity, “an ALJ may
pose hypothetical questions to a VE in order to determine whether employment
opportunities exist in significant numbers in the national economy, given the claimant’s
RFC, age, education, and work experience.” Norris v. Colvin, 160 F. Supp. 3d 1251, 1281
(E.D. Wash. 2016). Hypothetical questions posed to a VE must set out all of the claimant’s
limitations and restrictions. Bray, 554 F.3d at 1228. “If an ALJ’s hypothetical does not
reflect all of the claimant’s limitations, then the expert’s testimony has no evidentiary value
to support a finding that the claimant can perform jobs in the national economy.” Id.
(cleaned up). Hypotheticals posed to a VE are upheld as long as they are supported by
substantial evidence. Martinez v. Heckler, 807 F.2d 771, 774 (9th Cir. 1986).
Here, the ALJ failed to take into account all of Plaintiff’s mental functioning
limitations in fashioning the RFC and in presenting her hypothetical question to the VE.
The ALJ’s residual functional capacity assessment provides:
[T]he undersigned finds that the claimant has the residual functional capacity
to perform sedentary work as defined in 20 CFR 404.1567(a) except
occasional postural activities except no kneeling, crawling, orc limbing of
ladders/ropes/scaffolds; occasional exposure to extreme cold, wetness,
vibration, and hazards; routine tasks with detailed but uninvolved
instructions; no contact with the public, incidental interactions with
coworkers, and occasional interactions with supervisors; and occasional
changes in work processes or tasks.
(AR 24.)
The ALJ fashioned an RFC and posed a hypothetical question to the VE that are not
in line with the evidence in Plaintiff’s longitudinal medical history and are not supported
by substantial evidence. While the RFC provides that Plaintiff is capable of completing
“routine tasks with detailed but uninvolved instructions,” and the ALJ posed a hypothetical
question using the same assumption, (AR 96), the administrative record includes opinions
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from physicians the ALJ found to be persuasive that indicate Plaintiff has the mental
capacity “to manage, understand, and complete simple one or two step tasks,” (AR 109);
that she can meet “the basic mental demands to complete 1-2 step tasks on a sustained
basis,” (AR 117); and that Plaintiff is limited to carrying out “very short and simple
instructions,” (AR 123). The ALJ failed to explain why she omitted these limitations in
fashioning the RFC and posing her hypothetical question. (See AR 33-34 (discussing the
persuasive medical opinions of Drs. Melissa Franks and Timothy Ostrich).) As such, the
ALJ’s RFC and hypothetical question fail to include the limitations outlined in the medical
evidence and are defective and unsupported by substantial evidence. See Norris, 160 F.
Supp. 3d at 1282 (ruling RFC and hypothetical question unsupported by substantial
evidence where ALJ failed to incorporate all of claimant’s limitations as stated in
improperly rejected opinions); Milavong v. Comm'r of Soc. Sec., No. 1:24-CV-00278, 2025
WL 553341, at *4 (E.D. Cal. Feb. 19, 2025) (“An ALJ errs when they do not explain why
they did not adopt all findings or limitations from a persuasive opinion.”); Crystal K. v.
Kijakazi, No. CV 23-2415, 2023 WL 12144170, at *5 (C.D. Cal. Nov. 1, 2023) (finding
error where ALJ failed to account for opinion that plaintiff was limited to simple one-to-
two step tasks in RFC that provided plaintiff could perform “simple, routine, and repetitive
tasks” and was therefore capable of performing Level Two reasoning occupations).
Additionally, as Plaintiff contends, the RFC fails to contain the moderate limitations
regarding concentrating, persisting or maintaining pace that the ALJ determined at step
three of the disability evaluation. (see AR 23.) While the ALJ adopted the findings of
counselor Aldrich and nurse practitioner Reid that Plaintiff was easily distracted and had
difficulty concentrating, (AR 23), the ALJ failed to include these limitations in the RFC or
explain why the limitations were omitted. In fact, the ALJ failed to address the opinions
of Reid or Aldrich at all. (See AR 17-35.) The ALJ also adopted Dr. Kyle Culver’s
November 17, 2023 findings that Plaintiff was able to manage her own money and that she
worked with reflection and deliberation, but she failed to include Dr. Culver’s findings that
Plaintiff had impaired attention and concentration in the RFC. This was error.
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In Perkins v. Colvin, 45 F. Supp. 3d 1137, 1154 (D. Ariz. 2014), the court
encountered a similar situation. In Perkins, the ALJ accepted a physician’s opinion that
the plaintiff had moderate limitations in concentration, persistence, and pace, but the RFC
only limited the plaintiff to jobs that required the ability to perform “simple, unskilled
tasks.” Id. at 1154. The court ruled that the RFC was incomplete because it did not
adequately reflect the physician’s opinion regarding the plaintiff’s limitations that the ALJ
had assigned great weight. Id. Here, the same can be said for the limitations given by the
persuasive opinions of Drs. Franks and Ostrich. Additionally, while the ALJ determined
Dr. Culver’s opinion was only “somewhat persuasive,” (see AR 33), the ALJ improperly
rejected Dr. Culver’s findings that Plaintiff had moderate to marked limitations in
“carry[ing] out instructions,” and the “ability to make judgments on complex work-related
decisions,” (AR 772). The ALJ rejected the findings because she found the internal
language used to support the determinations to be “inconsistent” with the findings. (AR
33.) This singular conclusion fails to represent the substantial evidence required to reject
a physician’s medical opinion on a claimant’s mental functioning limitations. See Embrey,
849 F.2d at 421-22 (“The ALJ must do more than offer [her] conclusions. [She] must set
forth [her] own interpretations and explain why they, rather than the doctors’, are correct.”).
Even if the ALJ had not improperly rejected Dr. Culver’s more severe findings, the ALJ
left intact Dr. Culver’s opinion that Plaintiff had “significant memory issues” and her
“[f]air to guarded” prognosis “given the severity and chronicity of [Plaintiff’s] psychiatric
symptoms and the impact they appear to be having on her memory.” (AR 771.)
The Commissioner’s argument that the RFC accounted for Plaintiff’s moderate
limitations in concentration, persistence, or pace in that it provided she was capable of
“routine tasks with detailed but uninvolved instructions,” and “occasional changes in work
processes or tasks” is unavailing. (Doc. 19 at 14.) The Commissioner references Terrey
v. Berryhill, 696 F. App’x 831, 833 (9th Cir. 2017) (unpublished), to support his argument
and for the unrelated proposition that unskilled work accounts for moderate limitations in
concentration and attention. (Id. at 15.) Terry is distinguishable from the case at hand.
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In Terry, the relevant medical opinion found the plaintiff had “moderately severe”
limitation in his abilities to understand, carry out, and remember instructions,” “[r]espond
to customary work pressures,” and “[p]erform complex tasks,” and “mild” limitation in his
abilities to “relate to other people,” “[p]erform simple tasks,” and “[p]erform varied tasks,”
and stated that supervision was required for the claimant to work. 696 F. App’x at 833.
The ALJ in that case translated these limitations into an RFC for “simple and unskilled
work” that was to be checked by a supervisor “two or three times a day.” Id. Both
translations are far more restrictive than the “routine tasks with detailed but uninvolved
instructions,” and “occasional changes in work processes or tasks” offered in this case.
Furthermore, the Court does not interpret Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174
(9th Cir. 2008), upon which Terry is based, to mean that any translation of a medically
diagnosed limitation by an ALJ should automatically be upheld, “particularly where the
ALJ offers no indication as to how [she] concluded that a particular translation was the
most appropriate.” Coleman v. Berryhill, No. 2:17-CV-1069, 2018 WL 4352943, at *5
(E.D. Cal. Sept. 12, 2018). Here, there is no indication in the record how the ALJ arrived
at the challenged translation. (See AR 17-35.) The Commissioner’s decision should
therefore be reversed and this case remanded for the calculation and award of benefits.
IV. Remand For Benefits Appropriate
Plaintiff requests that the Court find she is entitled to benefits or remand her case
for a further hearing. (Doc. 1 at 2.) The Court recommends the ALJ’s decision be vacated
and the case remanded to the Commissioner for the calculation and award of benefits.
“The decision whether to remand a case for additional evidence, or simply to award
benefits is within the discretion of the court.” Sprague v. Bowen, 812 F.2d 1226, 1232 (9th
Cir. 1987). Whether an action is remanded for an award of benefits or for further
proceedings depends on the likely utility of additional proceedings. Harman v. Apfel, 211
F.3d 1172, 1179 (9th Cir. 2000). If additional proceedings can remedy defects in the
original administrative proceeding, a social security case should be remanded for additional
evidence. Revels v. Berryhill, 874 F.3d 648, 668 (9th Cir. 2017). However, where: (i) “the
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record has been fully developed and further administrative proceedings would serve no
useful purpose;” (ii) “the ALJ has failed to provide legally sufficient reasons for rejecting
evidence, whether claimant testimony or medical opinion;” and (iii) “the improperly
discredited evidence were credited as true, the ALJ would be required to find the claimant
disabled on remand,” courts remand for an award of benefits. Id. (cleaned up).
Here, all three conditions have been met. There is no need to further develop the
record or convene a second administrative hearing. The current record includes over 1,600
pages of relevant information detailing Plaintiff’s treatment over the past six years. (AR
1-1640.) Plaintiff’s primary physician repeatedly observed the severity of Plaintiff’s
mental and physical conditions and offered the opinion that Plaintiff required complete
time off given her worsening pain, frequent position changes every five minutes, and
inability to concentrate on her job duties. (AR 660.) The ALJ failed to provide legally
sufficient reasons to reject Plaintiff’s symptom testimony and Dr. Newingham’s June 23,
2023 medical opinion that Plaintiff’s conditions were debilitating. The ALJ also erred by
improperly rejecting parts of Dr. Culver’s medical opinion, failing to discuss the opinions
of counselor Aldrich and nurse practitioner Reid, and failing to include all of Plaintiff’s
limitations in the RFC and her hypothetical question to the vocational expert. It would
serve no purpose to remand this case to the Commissioner with instructions similar to the
regulations the ALJ has been unable to follow. Finally, if the improperly discredited
evidence were credited as true—especially Plaintiff’s symptom testimony—the ALJ would
be required to find Plaintiff disabled on remand.
Relevant precedent demonstrates that a district court has discretion to remand a
disability case to the agency for payment of benefits in situations similar to the one at hand.
See, e.g., Revels, 874 F.3d at 669 (remanding for benefits where ALJ failed to provide
legally sufficient reasons to reject opinion of claimant’s treating rheumatologist and for
improperly rejecting claimant’s symptom testimony); Benecke v. Barnhart, 379 F.3d 587,
594 (9th Cir. 2004) (finding district court abused its discretion by remanding case for
further proceedings where “ALJ erred in discounting the opinions of [the claimant’s]
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treating physicians, relying on his disbelief of [the claimant’s] symptom testimony as well
as his misunderstanding of fibromyalgia”); Trevizo v. Berryhill, 871 F.3d 664, 682 (9th
Cir. 2017) (remanding for benefits where ALJ erred in rejecting opinion of claimant’s
treating physician and her subjective symptom testimony); Sprague, 812 F.2d at 1232
(remanding for benefits where substantial evidence failed to support ALJ’s decision and
no legitimate reasons justified disregarding treating physician’s opinion). As such, the
ALJ’s disability determination should be vacated and this case remanded to the
Commissioner for the calculation and award of benefits.
RECOMMENDATION
The Magistrate Judge recommends that the District Judge, upon his independent
review, grant Plaintiff’s complaint, (Doc. 1), vacate the ALJ’s decision, and remand this
case to the Commissioner for the calculation and award of benefits. Under Federal Rule
of Civil Procedure 72, any party may serve and file written objections within fourteen (14)
days of being served with a copy of this Report and Recommendation, and a party may
respond to another party’s objections within fourteen (14) days after being served with a
copy. Fed. R. Civ. P. 72(b)(2). No replies shall be filed unless leave is granted by the
District Judge. If objections are filed, the parties shall use the following case number:
25-CV-90-JAS. Failure to file timely objections to any factual or legal determination of
the Magistrate Judge may result in waiver of the right of de novo review.
Dated this 26th day of January, 2026.
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