Volpe v. Commissioner of Social Security Administration

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Michael Volpe,
Plaintiff,
v.
Commissioner of Social Security
Administration,
Defendant.
No. CV-25-00194-TUC-JCH (JR)
REPORT & RECOMMENDATION
Plaintiff Michael Volpe (“Volpe”), pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3),
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. 14, 15, 18, 19, 22.) Volpe seeks remand for immediate calculation and award of
benefits, or in the alternative, remand for further hearing. (Doc. 1 at 2.) As set forth below,
the undersigned recommends that the district court dismiss the complaint.
BACKGROUND
Procedural Background
On May 10, 2022 Volpe filed an application for Supplemental Security Income
(“SSI”) alleging disability beginning on July 1, 1998.1 (AR 18.) On June 24, 2022, Volpe
1 On June 24, 2022, Volpe also filed an application for adult child disability benefits. (Doc.
18 at 2.) However, Petitioner admits the ALJ correctly found that record evidence does not
exist for the time between ages 18 to 22, and does not allege the ALJ erred with respect to
the denial of childhood disability benefits. (Doc. 18 at 3; AR 21-22.)
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filed an application for child’s insurance benefits based on disability. (AR 18.) In both
applications Volpe alleged disability beginning on July 1, 1998. (AR 18.) Volpe’s
applications were both denied initially on February 6, 2023, and upon reconsideration on
September 18, 2023. (AR 18.) On July 11, 2024, Administrative Law Judge Melinda
Yurich (“ALJ”) issued an unfavorable decision. (AR 18-29.) On April 8, 2025, the Social
Security Administration Appeals Council denied Volpe’s request for review and adopted
the ALJ’s unfavorable decision as the agency’s final decision. (AR 1-3.)
Relevant Factual Background2
Volpe was born in 1989 and is currently 36 years old years old, or “a younger
individual” according to the Social Security Administration (“SSA”). (AR 28.) He has a
high school education and completed one year of college. (AR 28, 258.) He has no relevant
past work. (AR 28.) His threshold is less than sedentary under the Vocational Rules
(Appendix 2 to 20 CFR § 404). (AR 92.)
Volpe’s alleged disability is related to traumatic brain injuries suffered in childhood
playing sports, as well as in adulthood resulting from car accidents. (AR 257, 458.) He also
alleges mental conditions of post-traumatic stress disorder, ADHD, depression, and OCD;
and physical conditions including rheumatoid arthritis, cellulitis, sleep apnea, hepatitis C,
elbow pain, migraines, and GERD. (AR 257.) The ALJ found that the only severe
impairment was degenerative joint disease of the right ankle and foot following an injury
and surgery. (AR 22.)
Medical Record Summary
Volpe has a history of intravenous drug use in early adulthood. He engaged in
methadone treatment for several years. (See AR 2050-164.) Random urine drug testing
shows that Volpe’s last regular use of drugs such as cocaine, heroin, and fentanyl was in
November 2022, although with some isolated relapses since. (See AR 2242-50.)
In May 2021, Volpe lost control of his vehicle and struck a guardrail. (AR 821.) He
hit his head and shattered his right heel. (AR 821). A non-contrast MRI of the brain was
2 The factual background is primarily taken from Plaintiff’s opening brief to which no
objection has been made.
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unremarkable in December 2021. (AR 448.) However, an EEG showed diffuse background
slowing and disorganization, indicative of widespread encephalopathy but not specific for
that condition. (AR 449-50.)
Also in December 2021, Volpe went to COPE Community Services for psychiatric
treatment. (AR 1078.) In January 2022, Volpe visited a brain function specialist at Amen
Clinic in Los Angeles, CA. (AR 456-80.) Findings were consistent with prior brain injury.
(AR 468-69.) In May 2022, Mr. Volpe’s mental health practitioner suggested moving Mr.
Volpe to Chalet House. (AR 1065.) In June 2022, Mr. Volpe endorsed improvement with
medications. (AR 1067.) He had been living in a hotel and couch-surfing until paperwork
for Chalet House was approved, where people would be willing to cue him to perform
activities of daily living and take him to his medical appointments. (AR 1067.) However,
Chalet House declined to accept Volpe based on an assertion from another provider that he
could dress and care for himself. (AR 1039.) Instead, a group home in Sahuarita, the Oasis,
agreed to take him. (AR 1040.) He was still in a hotel in August 2022 but preparing to go
to the Oasis for services, where he would stay for up to 60 days. (AR 1072.) After several
days at the Oasis, Volpe “got proactive in his health and went to ER at TMC for his stomach
issues.” (AR 1043, 1097.) He was doing “well” at the beginning of September 2022. (AR
1044.) However, shortly thereafter, he tested positive for cocaine and was discharged. (AR
1045.) He admitted drug use to his counselor and asked that his mother not be informed.
(AR 1923.) He ended up going to his mother’s home. (AR 1046.)
Following his discharge from the Oasis, Volpe was mostly able to maintain sobriety
(see AR 2248-50), but he still had symptoms of post-traumatic stress disorder and mild
neurocognitive disorder. For example, a consultative examiner in December 2022 observed
flat, apathetic affect and found she had to repeatedly prompt Volpe to expand on his
answers. (AR 1152.) In January 2023, his ankle specialist observed that he appeared older
than his stated age and had poor hygiene as well as difficulty with recalling past events.
(AR 2345.) Another consultative examiner performing a battery of neuropsychological
tests in June 2023 observed word-finding difficulty, sad mood and affect, and severely
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impaired cognitive flexibility. (AR 2445-47.) This examiner posited that the source of
Volpe’s impairments on objective testing was multifactorial, including past drug use,
untreated sleep apnea, chronic PTSD, depression, anxiety, and history of traumatic brain
injury. (AR 2447.)
Summary of Hearing Testimony
Volpe’s description of his mental difficulties at the hearing was vague and mostly
centered around the blackout that he had in 2021 that caused an automobile accident. (AR
48-49.) However, he also described needing a friend to help him with his schoolwork so
he could “understand stuff” and surmised that without their assistance, “I’d probably miss
a lot of appointments.” (AR 53-54.) He endorsed falling asleep in class and having
assistance in taking notes, as well as extra time on assignments (AR 54-55).
Summary of the ALJ’s Decision
For the purposes of the Social Security Act, a claimant is disabled if he is unable “to
engage in any substantial gainful activity by reason of any medically determinable physical
or mental impairment which can be expected to result in death or which has lasted or can
be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §
423(d)(1)(A). To determine whether a claimant meets this definition, the ALJ employs a
five-step sequential evaluation. 20 C.F.R. § 404.1520(a); 20 C.F.R. § 416.920(a). The ALJ
considers: (1) whether the claimant is engaged in “substantial gainful activity”; (2) whether
the claimant has a “severe, medically determinable physical or mental impairment ... or a
combination of impairments that is severe” and that has lasted for more than 12 months;
(3) whether such impairment “meets or equals” one of the listings in the regulations; (4)
whether the claimant can still do his or her “past relevant work” given their residual
functional capacity (“RFC”); and (5) whether the claimant “can make an adjustment to
other work.” 20 C.F.R. § 404.1520(a)(4)(i)-(v); 20 C.F.R. § 416.920(a)(4)(i)-(v). At steps
four and five, the ALJ determines a claimant's RFC. Garrison v. Colvin, 759 F.3d 995,
1011 (9th Cir. 2014). The burden of proof is on the claimant at steps one through four but
shifts to the Commissioner at step five. Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219,
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1222 (9th Cir. 2009).
Here, the ALJ applied the five-step sequential framework to determine that Volpe
is not disabled. At step one, the ALJ determined that Volpe has not engaged in substantial
gainful activity since July 1, 1998. (AR 21.) At step two, the ALJ determined that Volpe
suffers from the severe impairment of “degenerative joint disease of the right ankle and
foot, status post closed displaced fracture of the right calcaneus and surgery.” (AR 21.) At
step three, the ALJ determined Volpe does not suffer from an impairment or combination
of impairments that met or equaled a listed impairment. (AR 24.) After step three but before
four, the ALJ determined Volpe’s RFC as follows:
[T]he claimant has the residual functional capacity to perform
light work as defined in 20 CFR 404.1567(b) and 416.967(b)
except with the following limitations: he can stand and walk
up to 4 hours a day and sit up to 6 hours a day; occasionally
push, pull and operate foot controls with the right lower
extremity; can occasionally climb and crouch; can frequently
balance as that term is defined in the Dictionary of
Occupational Titles (DOT), stoop, kneel, and crawl; and must
avoid concentrated exposure to hazards such as unprotected
heights and dangerous moving machinery. Occasionally is
defined as occurring from very little up to one-third of the time,
or approximately 2 hours in an 8-hour workday. Frequently is
defined as occurring from one-third to two thirds of the time or
approximately 6 hours in an 8-hour workday.
(AR 24.) At step four, the ALJ determined that Volpe has no past relevant work. (AR 28.)
At step five, the ALJ found Volpe is able to perform other jobs that exist in significant
numbers in the national economy. (AR 28.)
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). 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). “Substantial” evidence means “more than a mere scintilla,”
but it is “less than a preponderance.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007)
(internal citation omitted). That is, “substantial evidence” is “such relevant evidence as a
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reasonable mind might accept as adequate to support a conclusion.” Burch v. Barnhart,
400 F.3d 676, 679 (9th Cir. 2005) (internal citation omitted). In determining whether
substantial evidence supports the ALJ's decision, the Court considers “the administrative
record as a whole, weighing both the evidence that supports and the evidence that detracts
from the” ALJ's conclusions. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). “If the
evidence can reasonably support either affirming or reversing the Secretary's conclusion,
the court may not substitute its judgment for that of the Secretary.” Id. at 720-21. The
“court must consider the entire record as a whole and may not affirm simply by isolating a
specific quantum of supporting evidence.” Orn, 495 F.3d at 630 (internal quotations and
citations omitted). The Court reviews “only the reasons provided by the ALJ in the
disability determination and may not affirm the ALJ on a ground upon which he did not
rely.” Id.
ISSUES ON REVIEW
Volpe raises two issues for review. (Doc. 18 at 2.) First, Volpe claims the ALJ
committed materially harmful error by failing to articulate clear and convincing reasons to
discount Volpe’s symptom testimony. (Id.) Second, Volpe claims the ALJ committed
materially harmful error by failing to adequately articulate the supportability and
consistency of opinion evidence. (Id.)
ANALYSIS
1. Testimony regarding non-medically determinable impairments
Volpe argues the ALJ committed materially harmful error by rejecting his symptom
testimony of his alleged severe mental impairments without clear and convincing reasons
as required by law. (Doc. 18 at 6-7.) The Commissioner defends the ALJ’s determination,
asserting that the ALJ rationally found that the objective evidence contradicted Plaintiff’s
subjective complaints regarding his alleged mental impairment. (Doc. 19 at 6.)
The SSA uses a two-step process for evaluating an individual’s symptoms. SSR 16-
3p, 2016 WL 1119029, *3. In Step One, the ALJ must determine whether the individual
has a medically determinable impairment “that could reasonably be expected to produce
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the individual’s alleged symptoms.” Id. However, “Under [SSA] regulations, an
individual's statements of symptoms alone are not enough to establish the existence of a
physical or mental impairment or disability.” Id. at *2.Only where a claimant has provided
objective medical evidence of an impairment that could reasonably produce the alleged
symptoms does the ALJ evaluate the intensity and persistence of the symptoms at Step
Two. See SSR 16-3p, 2016 WL 1119029. “An ALJ cannot be required to believe every
allegation of disabling [symptoms], or else disability benefits would be available for the
asking, a result plainly contrary to [the Social Security Act].” Fair v. Bowen, 885 F.2d 597,
603 (9th Cir. 1989).
Here, Volpe challenges the ALJ’s discounting of “difficulties with comprehension
secondary to brain injury and other mental health issues that interfere with his ability to
timely perform tasks without substantial assistance,” and his symptoms related to traumatic
brain injury (TBI). (Docs. 18 at 7-8; 22 at 1.) However, the ALJ determined there was not
enough objective medical to support TBI as a medically determinable mental impairment,
stating “Traumatic brain injury was noted in the record, but objective diagnostic tests of
the brain were normal and EEG study revealed mild background slowing, which was not
etiologically specific.” (AR 22.) “If an individual alleges symptoms, but the medical signs
and laboratory findings do not substantiate any medically determinable impairment capable
of producing the individual's alleged symptoms, [the ALJ] will not evaluate the individual's
symptoms at step two of [the SSA’s] two-step evaluation process.” SSR 16-3p, 2016 WL
1119029, *3. Accordingly, because the ALJ determined that the objective medical findings
did not substantiate Volpe’s claims of TBI, the ALJ need not discuss Volpe’s symptoms
thereof to any extent. Id.
Further, because Volpe does not challenge the ALJ’s determination that his TBI was
not a medically determinable impairment, only that the ALJ improperly discounted his
symptom testimony, such argument is deemed waived. See Nadon v. Bisignano, 145 F.4th
1133, 1138 (9th Cir. 2025) (finding a claimant forfeited arguments by not acknowledging
the ALJ’s applicable reasoning).
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The ALJ found that Volpe’s medically determinable mental impairments were
“neurocognitive disorder, ADHD, mood disorder, substance-induced mood disorder, GAD
and PTSD [which] do not cause more than a minimal limitation in his ability to perform
basic mental work activities, whether considered singly or in combination, and are
therefore non-severe.” (AR 22-23.) Upon review, the hearing transcript does not reflect
any direct testimony relating to Volpe’s medically determinable mental impairments of
neurocognitive disorder, ADHD, mood disorder, substance-induced mood disorder, GAD,
nor PTSD outside of the brief explanation of his traumatic brain injury and its alleged
effects. (See AR 37-63.)
In his reply Volpe argues that the “limiting effects of all medically determinable
impairments, including those that are non-severe, must be included in the residual
functional capacity.” (Doc. 22 at 3.) When forming the RFC, “the ALJ was required to
‘assess the nature and extent of [his] mental limitations and restrictions’ and whether they
‘reduce [his] ability to do past work and other work.’” Woods v. Kijakazi, 32 F.4th 785,
794 (9th Cir. 2022) (quoting 20 C.F.R. § 404.1545(c)). District courts have held that as
long as the ALJ states that the determined RFC assessment “reflects the degree of limitation
[she] found in the ‘paragraph B’ mental function analysis,”, such boilerplate language “is
sufficient to carry the burden imposed by the Regulations.” Tyler M.E. v. O'Malley, 2024
WL 1887052, at *4 (C.D. Cal. Apr. 29, 2024) (citations omitted); DeLuna v. O'Malley,
2024 WL 4133621, at *8 (E.D. Cal. Sept. 10, 2024) (applying Woods and concluding ALJ
did not err in when the ALJ stated that the RFC assessment “reflects the degree of
limitation...found in the ‘paragraph B’ mental function analysis”). Here, the ALJ
sufficiently considered Volpe’s medical records and assessed him mental functioning in
four broad areas known as the “paragraph B” criteria. (AR 23-24); see also 20 C.F.R. pt.
404, subpt. P, app. 1 § 12.00.A.2.b. Accordingly, pursuant to the Ninth Circuit’s ruling in
Woods, the ALJ did not err in this case because she explicitly stated: “The following
residual functional capacity assessment reflects the degree of limitation I have found in the
‘paragraph B’ mental function analysis.” (AR 24.)
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For the reasons stated above, the undersigned recommends the district judge deny
Plaintiff’s first ground for relief.
2. Dr. Hermosillo-Romo’s “Medical Opinion”
Plaintiff argues that the ALJ committed harmful error when she failed to address the
supportability and consistency factors when determining David Hermosillo-Romo, Ph.D.’s
medical evaluation finding Plaintiff has a serious impairment to his “cognitive flexibility”
was unpersuasive. (Doc. 18 at 11-12.)
Included in the record reviewed by the ALJ is Dr. Hermosillo-Romo’s
neuropsychological evaluation of Plaintiff. (AR 2443-48.) Dr. Hermosillo-Romo’s clinical
impression of Plaintiff based on his evaluation reads:
On standardized examination, Mr. Volpe is presenting with
mild to severe deficits in some facets of executive function
(i.e., working memory span, cognitive processing speed, and
cognitive flexibility), in the setting of an otherwise
unremarkable level of neurocognitive functioning. The
examination finds evidence of normal memory functioning,
which is inconsistent with the memory problems reported in
interview. It is possible [] that his executive function deficits
interfere with normal memory functioning in the busier natural
social environment of his day to day life. He is also presenting
with a moderately severe anxiety disorder, severe depression
disorder, and moderately severe posttraumatic stress disorder
(PTSD). Isolated hoarding and obsessive compulsive
tendencies are observed at home.
His level of adaptive functioning is said to be unremarkable.
He has been looking for employment but [is] unable to find one
that matches his occupational interests or his cognitive and
physical endurance. His driving is precluded by severe daytime
hypersomnia. He limits his driving, as he is afraid of dozing off
while driving. He was diagnosed with obstructive sleep apnea
in 2022 but he is not compliant with CPAP treatment.
The etiology of his current level of neuropsychological
functioning is likely to be multifactorial, ranging from his past
history of heroin and opioid abuse in general, currently
untreated obstructive sleep apnea, chronic untreated
posttraumatic stress disorder, chronic course of his current
anxiety and depression disorders, past history of multiple
concussions and traumatic brain injuries with loss of
consciousness, hepatitis C, and headache. His brain magnetic
resonance imaging on June 16, 2021 revealed no abnormality
(AR 2447.)
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Defendant argues that Dr. Hermosillo-Romo's evaluation is not a medical opinion,
because he did not opine any work performance limitations. (Doc. 19 at 12.) This Court
agrees.
Under the revised 2017 SSA regulations, when reviewing an ALJ's decision to reject
a medical source's opinion, a court must determine whether the ALJ “considered the
supportability and consistency factors” and, if so, whether substantial evidence supports
the ALJ's decisions concerning those factors. Woods, 32 F.4th at 792. Yet, these
requirements apply only to the ALJ's evaluation of medical opinions, and not all medical
source statements qualify as opinions. Windish v. Comm'r of Soc. Sec. Admin., 2023 WL
6568185, *7 (D. Ariz. Oct. 10, 2023) (citing Hale v. Kijakazi, 2022 WL 14654959, *6 (D.
Mont. Oct. 25,2022) (“An ALJ must discuss statements by a medical source that qualify as
‘medical opinions’ ... [but] is not required to address statements by a medical source that
do not qualify as medical opinions.”) (citations omitted)). The 2017 SSA regulations define
a “medical opinion” as:
A medical opinion is a statement from a medical source about
what you can still do despite your impairment(s) and whether
you have one or more impairment-related limitations or
restrictions in the following abilities: ... (i) Your ability to
perform physical demands of work activities, such as sitting,
standing, walking, lifting, carrying, pushing, pulling, or other
physical functions (including manipulative or postural
functions, such as reaching, handling, stooping, or crouching);
(ii) Your ability to perform mental demands of work activities,
such as understanding; remembering; maintaining
concentration, persistence, or pace; carrying out instructions;
or responding appropriately to supervision, co-workers, or
work pressures in a work setting; (iii) Your ability to perform
other demands of work, such as seeing, hearing, or using other
senses; and (iv) Your ability to adapt to environmental
conditions, such as temperature extremes or fumes.
Id. (quoting 20 C.F.R. § 404.1513(a)(2)).
Dr. Hermosillo-Romo’s clinical impression does not satisfy the statutory definition
of a “medical opinion,” because it does not describe what Plaintiff can still do despite his
impairments. Id. (citing Dorsey v. Comm'r of Soc. Sec. Admin., 2023 WL 6058505, *5 (D.
Ariz. Sept. 18, 2023)) (“The statement in Dr. Subbarao's treatment note does not qualify as
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a ‘medical opinion’...because it does not address Plaintiff's functionality.”); Brayden B. v.
Comm'r, Soc. Sec. Admin., 2023 WL 5606981, *4 (D. Or. Aug. 30, 2023) (“[The physician]
did not provide any description of what Plaintiff could still do despite his urticaria. Nothing
in the record or Plaintiff's briefing shows where [the physician] identified what Plaintiff
can do despite his limitations; the sum total of the opinion is that his urticaria and dermatitis
‘keep him from working.’ Because that is not a ‘medical opinion’ that requires independent
analysis under the regulations, the Court finds the ALJ did not err by failing to analyze [the
physician's] opinion.”) (citations omitted); Rodin v. Comm'r of Soc. Sec., 2023 WL
3293423, *18–19 (E.D. Cal. May 5, 2023) (“[N]otably absent are specific opinions
concerning what Plaintiff is capable of doing, and specific functional limitations....
Accordingly, the Court finds the ALJ was not required to evaluate [the physician's]
treatment notes as a ‘medical opinion’ under the relevant regulations.”). Here, Plaintiff
points out Dr. Hermosillo-Romo stated Plaintiff had a severe impairment of “cognitive
flexibility,” but cannot point to any further discussion by Dr. Hermosillo-Romo where he
opines on such impairment directly limits Plaintiff’s functionality in the workplace. (Doc.
22 at 4.) While Plaintiff argues that the finding of such severe impairment in an of itself is
work-preclusive utilizing additional sources, (id.), the record reflects that such description
is not found in Dr. Hermosillo-Romo’s medical evaluation. (See AR 2443-48.)
Consequently, the Court agrees with Defendant's assertion that Dr. Hermosillo-
Romo’s evaluation regarding Plaintiff does not constitute a “medical opinion” under the
regulations. Thus, although the ALJ chose to discuss Dr. Hermosillo-Romo’s evaluation in
her written decision, she was not required to do so, nor was she required to articulate how
supportability and consistency factors, supported by substantial evidence, influenced her
decision to reject the statement. See Rotondo v. Comm'r of Soc. Sec. Admin., 2024 WL
4929937, at *7 (D. Ariz. Dec. 2, 2024); 20 C.F.R. § 404.1520b(c)(3)(i).
//
//
//
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RECOMMENDATION
For the foregoing reasons, it is RECOMMENDED that the district court DISMISS
the complaint with prejudice. 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-194-JCH.
Dated this 13th day of March, 2026.
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