Rohn v. Commissioner Social Security Administration

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

SANDRA R.,1 Case No. 3:20-cv-01563-JR

Plaintiff, OPINION AND ORDER

v.

COMMISSIONER OF SOCIAL

SECURITY ADMINISTRATION,

Defendant.

RUSSO, Magistrate Judge:

Plaintiff Sandra R. brings this action for judicial review of the final decision of the

Commissioner of Social Security (“Commissioner”) denying her application for Title II Disability

Insurance Benefits under the Social Security Act. All parties have consented to allow a Magistrate

Judge enter final orders and judgement in this case in accordance with Fed. R. Civ. P. 73 and 28

U.S.C. § 636(c). For the reasons set forth below, the Commissioner’s decision is reversed, and this

case is remanded for further proceedings.

1 In the interest of privacy, this opinion uses only the first name and initial of the last name of the

non-governmental party or parties in this case. Where applicable, this opinion uses the same

designation for a non-governmental party’s immediate family member.

PROCEDURAL BACKGROUND

Born in March 1962, plaintiff alleges disability beginning April 1, 2015,2 due to congestive

heart failure, edema, obesity, back and memory problems, dystonia, restless leg syndrome, sleep

apnea, post-traumatic stress disorder (“PTSD”), and depression. Tr. 177, 196. Her application was

denied initially and upon reconsideration. On December 11, 2019, a hearing was held before an

Administrative Law Judge (“ALJ”), wherein plaintiff was represented by counsel and testified, as

did a vocational expert (“VE”). Tr. 29-68. On December 27, 2019, the ALJ issued a decision

finding plaintiff not disabled. Tr. 13-23. After the Appeals Council denied her request for review,

plaintiff filed a complaint in this Court. Tr. 1-6. On March 8, 2023, this case was reassigned to the

Judicial Officer below (doc. #19).

THE ALJ’S FINDINGS

At step one of the five step sequential evaluation process, the ALJ found plaintiff had not

engaged in substantial gainful activity “from her amended onset date of April 1, 2015, through her

date last insured of June 30, 2019.” Tr. 15. At step two, the ALJ determined the following

impairments were medically determinable and severe: “lumbar degenerative disc disease;

osteoarthritis; and morbid obesity.” Id. At step three, the ALJ found plaintiff’s impairments, either

singly or in combination, did not meet or equal the requirements of a listed impairment. Tr. 19.

Because she did not establish presumptive disability at step three, the ALJ continued to

evaluate how plaintiff’s impairments affected her ability to work. The ALJ resolved that plaintiff

had the residual function capacity (“RFC”) to perform sedentary work as defined in 20 C.F.R. §

404.1567(a) except: “no ropes, no ladders, no scaffolds, no kneeling, no crawling; all other postural

2 Plaintiff initially alleged disability as of January 31, 2015, but amended the onset date at the

hearing to correspond to her earnings history. Tr. 13, 37-38, 177.

are occasional; avoid concentrated exposure to extreme heat, extreme cold, vibrations, heights,

hazards, and heavy equipment; and she is limited to semi-skilled jobs not exceeding SVP 4.” Tr.

20.

At step four, the ALJ determined, based on the VE’s testimony, that plaintiff was capable

of performing her past relevant work as a data entry clerk. Tr. 23.

DISCUSSION

Plaintiff argues the ALJ erred by: (1) failing to find her mental impairments severe at step

two; (2) discrediting her subjective symptom statements; and (3) improperly assessing the medical

opinions of Gregory Cole, Ph.D., Scott Kaper, Ph.D., and Joshua Boyd, Psy.D.3

I. Step Two Finding

Plaintiff contends the ALJ erred at step two by “failing to find [her] mental impairments

(including depression and PTSD) were ‘severe.’” Pl.’s Opening Br. 7 (doc. 13). At step two, the

ALJ determines whether the claimant has an impairment, or combination of impairments, that is

both medically determinable and severe. 20 C.F.R. § 404.1520(c). An impairment is medically

determinable if it is diagnosed by an acceptable medical source and based upon acceptable medical

evidence. 20 C.F.R. § 404.1521. An impairment is severe if it significantly limits the claimant's

ability to do basic work activities. 20 C.F.R. § 404.1522.

The step two threshold is low; the Ninth Circuit describes it as a “de minimus screening

device to dispose of groundless claims.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996)

(citation omitted). As such, any “error at step two [is] harmless [if] step two was decided in [the

3 Plaintiff additionally contends that the RFC failed to account for “evidence relevant to the effects

of” her “emotional lability, including anger outbursts, irritability, and tearfulness or crying,” and

“stress upon her mental functioning or tiredness and low energy.” Pl.’s Opening Br. 21-22 (doc.

13) (internal citations omitted). Because plaintiffs’ RFC argument is premised on allegedly

wrongfully rejected evidence, it is reiterative and contingent upon the other allegations of error.

claimant’s] favor with regard to other ailments.” Mondragon v. Astrue, 364 Fed. Appx. 346, 348

(9th Cir. 2010) (citing Burch v. Barnhart, 400 F.3d 676, 682 (9th Cir. 2005)).

Here, the ALJ found that plaintiff had a number of medically determinable and severe

physical impairments at step two. Tr. 15. Concerning plaintiff’s depression and PTSD, the ALJ

determined they were medically determinable but not severe because the “medical evidence of

record is inconsistent with severe mental impairment.” Tr. 17. The ALJ then went on to continue

the sequential evaluation process and formulated an RFC that considered evidence and allegations

pertaining to plaintiff’s mental impairments. Tr. 20-23. Under well-established case law, any

alleged error at step two error was harmless.4 See, e.g., Buck v. Berryhill, 869 F.3d 1040, 1048-49

(9th Cir. 2017).

II. Plaintiff’s Testimony

Plaintiff contends the ALJ erred by discrediting her testimony concerning the extent of her

mental impairments.5 When a claimant has medically documented impairments that could

4 This is especially true given that plaintiff does not argue that her mental impairments meet or

equal a listing at step three, even when all the allegedly wrongfully rejected evidence is credited

as true, nor does she maintain that the other mental impairments acknowledged by Drs. Boyd and

Cole – i.e., anxiety and somatic symptom disorder – resulted in different or additional limitations.

Tr. 96-97; see generally Pl.’s Opening Br. (doc. 13). Nevertheless, the Court agrees with plaintiff

that moderate impairments are generally “sufficient to meet the ‘severe impairment’ standard,”

particularly where, as here, those limitations are essentially supported by every medical source of

record. Natasha D. v. Saul, 2019 WL 4573487, *3 (C.D. Cal. Sept. 20, 2019) (collecting cases).

5 Plaintiff also challenges the ALJ’s rejection of her need for an assistive device, but her briefing

is silent concerning her other her physical impairment testimony. Pl.’s Opening Br. 30-33 (doc.

13); see also Pl.’s Reply Br. 14 (doc. 17) (solely addressing the impact of Dr. Cole’s opinion on

her subjective symptom testimony). However, plaintiff did not actually testify to needing an

assistive device at the hearing – rather, the ALJ observed that she had “a large walking stick” and

asked if it was “homemade,” to which plaintiff responded: “yes.” Tr. 43. Thus, in his decision, the

ALJ acknowledged that plaintiff “appeared at the hearing with a cane” but, consistent with the

medical evidence, noted that it “is not required and was not prescribed.” Tr. 20, 22. That is,

plaintiff’s cane use was longstanding and intermittent, and her medical providers emphasized that

it was a useful tool when she was feeling dizzy or unstable. See Tr. 526-31 (during a December

reasonably be expected to produce some degree of the symptoms complained of, and the record

contains no affirmative evidence of malingering, “the ALJ can reject the claimant’s testimony

about the severity of . . . symptoms only by offering specific, clear and convincing reasons for

doing so.” Smolen, 80 F.3d at 1281 (internal citation omitted). A general assertion the claimant is

not credible is insufficient; the ALJ must “state which . . . testimony is not credible and what

evidence suggests the complaints are not credible.” Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir.

1993). The reasons proffered must be “sufficiently specific to permit the reviewing court to

conclude that the ALJ did not arbitrarily discredit the claimant’s testimony.” Orteza v. Shalala, 50

F.3d 748, 750 (9th Cir. 1995) (internal citation omitted). In other words, the “clear and convincing”

standard requires an ALJ to “show [their] work.” Smartt v. Kijakazi, 53 F.4th 489, 499 (9th Cir.

2022).

Thus, in formulating the RFC, the ALJ is not tasked with “examining an individual’s

character” or propensity for truthfulness, and instead assesses whether the claimant’s subjective

symptom statements are consistent with the record as a whole. SSR 16-3p, available at 2016 WL

1119029. If the ALJ’s finding regarding the claimant’s subjective symptom testimony is

“supported by substantial evidence in the record, [the court] may not engage in second-guessing.”

Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (internal citation omitted). The question is

not whether ALJ’s rationale convinces the court, but whether the ALJ’s rationale “is clear enough

that it has the power to convince.” Smartt, 53 F.4th at 499.

2017 physical evaluation with Mahnaz Ahmad, M.D., plaintiff reported that she “[s]ometimes uses

a cane when she feels particularly unstable,” but it “was not prescribed to her” and she “has not

received any physical therapy or any imaging of her back”), 574 (plaintiff stating to her neurologist

in December 2016 that she has “a cane which she uses ‘sometimes’”); see also Tr. 235 (plaintiff’s

friend indicating in October 2017 that she had been using a cane for 15 years). Accordingly, the

Court does not find reversible error in regard to this issue, especially given that the RFC limits

plaintiff to a limited range of sedentary work.

At the hearing, plaintiff testified she was unable to perform her past data entry work

“because I have lack of concentration [and] a temper and I have pain and body issues that don't

adjust to a workplace.” Tr. 58. In expanding upon her mental limitations, plaintiff stated that, for

the five years prior to “being laid off[, …] I couldn't keep things straight.” Tr. 41. Plaintiff indicated

that she “always had the difficulties,” but that they have “progressively gotten worse” after her

grandmother passed away in 2015. Tr. 51, 53. She stated further: “My emotions are not set

anymore” and endorsed problems with anger, memory, and being around people. Tr. 42, 56-58. In

terms of daily activities, plaintiff testified that she drives her husband to the store but does not go

inside and does not complete any household chores; she spends her time sitting in her chair with

the television on in the background and “go[ing] on Facebook.” Tr. 48-49. She indicated that she

stopped doing craft projects in June 2018 because she “lack[ed] motivation.” Tr. 46-47.

After summarizing their hearing testimony, the ALJ determined that plaintiff’s medically

determinable impairments could reasonably be expected to produce some degree of symptoms, but

her “statements concerning the intensity, persistence and limiting effects of these symptoms are

not entirely consistent with the medical evidence and other evidence in the record for the reasons

explained in this decision.” Tr. 21. In particular, the ALJ cited to the non-severity of plaintiff’s

mental impairments, and her ability to drive, “shop at Winco and the Grocery Outlet,” and “sit . .

in her chair throughout the day” as supporting the RFC for a limited range of sedentary work. Tr.

20. Additionally, the ALJ noted that the record belied plaintiff’s testimony that she lacked

motivation to complete crafts. Id. Finally, the ALJ found that the medical record did not support

plaintiff’s allegations of restrictions in concentration, social functioning, and memory. Tr. 21.

The ALJ is correct that the record undermines plaintiff’s statements concerning crafting.

See Molina v. Astrue, 674 F.3d 1104, 1112-13 (9th Cir. 2012) (“[e]ven where [daily] activities

suggest some difficulty functioning, they may be grounds for discrediting the claimant’s testimony

to the extent that they contradict claims of a totally debilitating impairment”) (citations omitted).

The record reflects that, as of October 2017, plaintiff spent time daily sewing and making jewelry.

Tr. 211, 231, 233. In December 2017, plaintiff reported “[s]he does [a] significant amount of

crafting with her hands just jewelry making.” Tr. 548. In July 2018, plaintiff continued to report

crafting activities to her treating mental health provider, Dr. Cole. Tr. 604. In March 2019, she

likewise reported doing “a lot of crafts.” Tr. 722.

However, concerning plaintiff’s ability to shop or engage appropriately with others, the

ALJ mischaracterized both plaintiff’s subjective symptoms statements and the record. See Reddick

v. Chater, 157 F.3d 715, 722-23 (9th Cir. 1998) (ALJ’s “paraphrasing of record material” was “not

entirely accurate regarding the content and tone of the record” and did not support an adverse

credibility finding). Notably, at the hearing plaintiff explained that she does not go into the store

and instead waits in the car while her husband shops. Although, as of October 2017, plaintiff went

into stores independently a couple times per week and spent time with friends, however, there is

no indication that these activities persisted after that date. Tr. 211, 231, 233.

Further, beginning in January 2019, plaintiff experienced an increase in anger issues – i.e.,

“she got so mad that she scared herself” – which continued through the date last insured. Tr. 655,

660. As addressed in greater detail in Section III, plaintiff’s depressive symptoms are well-

documented and persisted throughout the adjudication period, despite occasional symptom

remission. In fact, in the year leading up to the date last insured, plaintiff began having suicidal

thoughts, such that her primary care physician – John Nelson, M.D. – had her sign an anti-suicide

contract in October 2019. Tr. 657, 664, 668, 721.

Turning to the ALJ’s remaining rationale, “whether the alleged symptoms are consistent

with the medical evidence,” “an ALJ cannot reject a claimant’s subjective pain or symptom

testimony simply because the alleged severity of the pain or symptoms is not supported by

objective medical evidence.” Lingenfelter v. Astrue, 504 F.3d 1028, 1040 (9th Cir. 2007) (citations

omitted). That is, the ALJ may not rely exclusively on the lack of corroborating medical evidence

to discount a claimant’s hearing testimony where, as here, the ALJ’s other reasons for finding that

testimony unreliable are not supported by substantial evidence. See Brown v. Colvin, 2014 WL

6388540, *5-6 (D. Or. Nov. 13, 2014) (reversing the ALJ’s credibility finding where the only

rationale supported by substantial evidence was inconsistency with the medical record).

In sum, the ALJ neglected to provide a clear and convincing reason, supported by

substantial evidence, for affording less weight to plaintiff’s subjective symptom testimony

concerning her mental limitations. The ALJ’s decision is reversed as to this issue.

III. Medical Opinion Evidence

Plaintiff next asserts the ALJ improperly discredited the opinion of Drs. Cole, Boyd, and

Kaper. Where, as here, the plaintiff’s application is filed on or after March 27, 2017, the ALJ is no

longer tasked with “weighing” medical opinions, but rather must determine which are most

“persuasive.” 20 C.F.R. §§ 404.1520c(a)-(b), 416.920c(a)-(b). “To that end, there is no longer any

inherent extra weight given to the opinions of treating physicians . . . the ALJ considers the

‘supportability’ and ‘consistency’ of the opinions, followed by additional sub-factors, in

determining how persuasive the opinions are.”6 Kevin R. H. v. Saul, 2021 WL 4330860, *4 (D. Or.

6 As the Ninth Circuit recently explained, “[u]nder the revised regulations . . . a medical source’s

relationship with the claimant is still relevant when assessing the persuasiveness of the source’s

opinion.” Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022). The new regulations nonetheless

“displace our longstanding case law requiring an ALJ to provide” different levels of reasoning

Sept. 23, 2021). The ALJ must “articulate . . . how persuasive [they] find all of the medical

opinions” and “explain how [they] considered the supportability and consistency factors.” Id. At a

minimum, “this appears to necessitate that an ALJ specifically account for the legitimate factors

of supportability and consistency in addressing the persuasiveness of a medical opinion.” Id.

A. Dr. Cole

Plaintiff initiated care with Dr. Cole in 2014, although the record before the Court does not

contain any chart notes or treatment records. Tr. 444-47. In September 2017, Dr. Cole authored a

letter in support of plaintiff’s application for disability benefits. Tr. 447. At that time, the doctor

identified plaintiff’s diagnoses as: “pervasive depressive disorder, unspecified anxiety disorder,

PTSD, and a chronic pain disorder (somatic symptom disorder).” Id. In terms of symptoms, Dr.

Cole identified: “depressed mood/emotional lability, diminished motivation, anxiety

symptoms/panic attacks, agitation/anger problems, financial difficulties, conflict with family and

friends, pain problems exacerbated by stress, sleep difficulties, suicidal thoughts without an active

plan, dealing with various losses/deaths, and flashbacks/bad dreams and hypervigilance re:

[history] of sexual abuse.” Id. He opined “[b]ehavioral progress has been intermittent and

prognosis is guarded,” and that plaintiff’s “problems managing pain, balance problems, emotional

lability, diminished frustration tolerance, and level of anxiety would be the factors which would

interfere with her vocational success.” Id.

In January 2018, Dr. Cole authored a second letter to provide a “status [of plaintiff’s

treatment] to social security.” Tr. 532. In particular, Dr. Cole stated:

[Plaintiff] has continued to be actively involved in therapy on a monthly basis with

her last mental health counseling on 1/8/18. She continues to experience symptoms

associated with all the diagnoses previously noted. Her emotional state continues

(i.e., “clear and convincing” or “specific and legitimate”) based on a hierarchy of medical sources.

Id. at 787.

to be depressed, and recently she has presented as being increasingly labile with

diminished motivation. Focus of therapy has been on attempting to assist the client

with opening up social/avocational outlets, and she has begun engaging in

avocational activities, including make jewelry. It is still not believed, however, that

the client is currently competitively employable.

Id.

In July 2018, Dr. Cole completed a “Psychodiagnostic Evaluation.” Tr. 600-04. Dr. Cole

premised his assessment on a clinical interview, behavioral observations, the review of certain

records, and a battery of objective tests. Tr. 600. In terms of mental health symptoms, plaintiff

reported “that she has been ‘feeling down off and on for years,’” with diminished energy levels,

concentration, and sleep. Tr. 602. Plaintiff also reported “[s]ome feelings of hopelessness, but no

suicidal ideation”; “[s]ome problems with anger”; hypervigilance and flashbacks; and anxiety

“‘trying to be on time, being around unfamiliar people, being in new situations, and when I’m in

pain.’” Tr. 602-03. In terms of daily activities, plaintiff indicated that she engages in limited self-

care (i.e., brushing her teeth twice per week and showering twice per month), and no chores or

errands (except for folding laundry once every two months and shopping in stores twice per year).

Tr. 604. In terms of hobbies, plaintiff remarked that she enjoys “watching YouTube, listening to

music, seeing her friends once a month, and creating jewelry and journals.” Id.

Dr. Cole observed plaintiff to be emotionally labile, with fair insight and judgment, but

otherwise noted that she presented in an appropriate manner. Tr. 602. Objective testing revealed

no significant deficits and “there was no evidence of poor effort or of inconsistency.” Tr. 602-03.

“On the Beck Depression Inventory-II, [plaintiff] received an overall score of 59, which was

indicative of a severe level of self-reported depression symptomatology.” Tr. 603. Based on this

assessment, Dr. Cole listed plaintiff’s diagnoses as “Major Depressive Disorder, Recurrent

Episode-Severe; Unspecified Anxiety Disorder; [PTSD] without Dissociative Symptoms; and

Somatic Symptom Disorder, with Predominant Pain, Persistent-Severe.” Tr. 604. In the

“Discussion” portion of his report, Dr. Cole specified:

It is evident that [plaintiff] could benefit from follow-up psychological services,

and behavioral medication management, considering her behavioral

symptomatology. Results of this evaluation indicated that [plaintiff] did not exhibit

any significant problems in the areas of attention and concentration. She also was

noted to have average immediate memory capability; however, her delayed

memory ability was considered to be slightly below average. The client was able to

sustain simple tasks, and no problems completing a simple multiple-step task were

observed. From the results of this evaluation, if [plaintiff] pursues a vocational

placement in the near future, then it is presumed that her: emotional lability, level

of anxiety, and problems managing pain, would be the primary factors, which

would impact her overall level of vocational success. In the latter area, further

medical evaluation is suggested to determine [plaintiff’s] specific physical

limitations.

Id.

The ALJ did not evaluate Dr. Cole’s opinions in formulating the RFC, except to note that

his July 2018 “psychological consultative examination showed no problems with attention and

concentration.” Tr. 20-23. However, at step two, the ALJ did provide a more detailed discussion

of Dr. Cole’s opinions, concluding that his 2017 and 2018 treatment statements were

“unpersuasive” because they were “vague,” “unsupported by Dr. Cole’s treatment records,” and

“of little use because they provide no statement of functional limitation.” Tr. 17. To the extent Dr.

Cole indicated plaintiff could not work, the ALJ determined this “matter [is] reserved to the

Commissioner.” Id.

Moreover, the ALJ resolved that plaintiff’s “lack of problems with attention and

concentration, average immediate memory, and slightly below average intellectual ability and

delayed recall [as revealed via Dr. Cole’s July 2018 evaluation] are consistent with . . . no more

than mild limitation in the four domains of mental functioning.” Tr. 17-18. In so finding, the ALJ

emphasized plaintiff’s “minimal and intermittent pattern of psychiatric treatment in the form of

prescribed Zoloft and Bupropion from John Nelson, M.D.,” and her statement “that she, ‘Stays

busy during the day and maintains a large household.’” Id.

The ALJ’s rationale for rejecting Dr. Cole’s opinions is improper. Initially, the fact that

plaintiff was unable to obtain (or Dr. Cole failed to produce) Dr. Cole’s chart notes is not a valid

reason to find his medical opinions less persuasive. This is especially true given the tone and

content of the record. Significantly, Dr. Cole is plaintiff’s longstanding mental health provider and

the record makes clear that plaintiff sought regular counseling with him – i.e., once per month over

a course of years – and also tried psychotropic medications beyond just Zoloft and Buproprion,

which did not materially improve her symptoms and/or caused side-effects. See, e.g., Tr. 246, 447,

462, 464, 467, 474, 478-81, 485, 532, 652, 654, 662, 668, 670.

It is equally clear from the record that Dr. Nelson was working in conjunction with Dr.

Cole to treat plaintiff’s mental health impairments. Id.; see also Tr. 456, 458, 466, 468, 472, 655,

657, 660, 664 (plaintiff reporting ongoing mental health symptoms to Dr. Nelson, and Dr. Nelson

observing plaintiff to “irritable,” “tearful,” “stressed,” or “crying”). In addition, Dr. Nelson

regularly assessed plaintiff using the PHQ-9 scale, wherein she typically rated above 20, indicating

severe depression.7 Tr. 456, 652, 657, 660, 663-64, 668. This is consistent with Dr. Cole’s July

2018 finding of severe depression, which the ALJ essentially ignored. Tr. 603-04.

7 The PHQ-9 “refers to a specific patient health questionnaire that . . . is an instrument for making

criteria-based diagnoses of depressive and other mental disorders commonly encountered in

primary care.” Salina S. v. Kijakazi, 2022 WL 3700880, *5 n.3 (D. Idaho Aug. 25, 2022) (citation

and internal quotations and brackets omitted). “PHQ-9 scores are generally interpreted as follows:

minimal depression (0-4); mild depression (5-9); moderate depression (10-14); moderately severe

depression (15-19); severe depression (20-27).” Id. at n.4 (citation omitted). Although ALJs are

not “required to universally credit PHQ-9 scores or let them drive the disability analysis,” they

must still “acknowledge the PHQ-9 scores and weigh them against the other evidence.” Id. at *8

n.6. Here, the ALJ wholly ignored plaintiff’s PHQ-9 scores, which were assessed by both Dr.

Nelson and other provides, which further lends credence to plaintiff’s allegations of error.

And, as discussed in Section III(B), the state agency consulting sources – i.e., Drs. Boyd

and Kaper – both opined that plaintiff was moderately impaired in “[t]he ability to carry out

detailed instructions [and] to maintain attention and concentration for extended periods,” such that

she should be “limited to simpler tasks as she cannot sustain more complex ones over the course

of a full work day/week.” Tr. 82, 101-02; see also Tr. 78 (Dr. Kaper denoting there is “general

agreement among [plaintiff’s] key providers of some cognitive deficits/difficulties managing her

attention . . . what we do have on file does support limiting her to simpler tasks”); Tr. 468 (Dr.

Nelson observing that plaintiff has some “obvious . . . short term memory issues”), 569 (plaintiff

reporting “‘foggy brain’, poor memory [that] seems to be getting worse” to her neurologist in

February 2017). Stated differently, Dr. Cole’s July 2018 statements that plaintiff has “slightly

below average” delayed memory and can “sustain simple tasks, and [showed] no problems

completing a simple multiple-step task” can be read in accord with the opinions of Drs. Boyd and

Kaper, and does not necessarily support the ALJ’s finding that plaintiff is capable of more complex

tasks. Tr. 604.

Concerning plaintiff’s activities of daily living, the record reflects that plaintiff regularly

engaged in craft activities during the adjudication period, but there is otherwise a dearth of

evidence concerning household tasks or chores. Cf. Treviso v. Berryhill, 871 F.3d 664, 676 (9th

Cir. 2017) (absent specific details about claimant’s childcare responsibilities, “those tasks cannot

constitute ‘substantial evidence’”). The evidence that does exists implies that plaintiff performed

a limited range of such activities and on a sporadic basis. See, e.g., Tr. 48-49, 209-10, 231-33, 604;

see also Lester v. Chater, 81 F.3d 821, 833 (9th Cir. 1995) (“[o]ccasional symptom-free periods –

and even the sporadic ability to work – are not inconsistent with disability”). Thus, substantial

evidence does not support the ALJ’s determination that plaintiff engaged in minimal or intermittent

mental health treatment, or otherwise spent a substantial portion of her day maintaining her

household.8

Although the ALJ is correct that Dr. Cole’s 2017 and 2018 letters do not provide a

functional assessment, they are not so vague as to absolve the ALJ from addressing their

particularities. Indeed, Dr. Cole outlined plaintiff’s diagnoses, treatment history, and symptoms

that impose barriers to employment, including emotional lability, anxiety, and problems with

motivation and frustration tolerance. 447, 532. As the Social Security Rulings makes clear:

[O]pinions from any medical source on issues reserved to the Commissioner must

never be ignored. The adjudicator is required to evaluate all evidence in the case

record that may have a bearing on the determination or decision of disability,

including opinions from medical sources about issues reserved to the

Commissioner. If the case record contains an opinion from a medical source on an

issue reserved to the Commissioner, the adjudicator must evaluate all the evidence

in the case record to determine the extent to which the opinion is supported by the

record.

SSR 96-5p, 1996 WL 374183, *3. The ALJ simply failed to follow this ruling, and instead relied

on isolated statements at the exclusion of the numerous medical records that supported plaintiff’s

mental health claim. The ALJ therefore erred as to Dr. Cole.

8 There is only a single chart note in the 700-plus page record that mentions plaintiff staying busy

during the day or maintaining a household. See Tr. 553-55 (plaintiff reporting in July 2017 to her

neurologist that she “stays busy during the day making jewelry and maintains a large household”).

During that appointment, plaintiff’s provider noted that she has a diagnosis “of PTSD and regularly

follows up with a mental health professional,” and had improved depressive symptoms “since

trying the medical marijuana.” Id. However, as addressed herein, the record reflects that this

improvement in mental health symptoms was not sustained. See Benton v. Comm’r of Soc. Sec.

Admin., 2022 WL 2071980, *4 (D. Ariz. June 9, 2022) (“[a]s the Ninth Circuit has previously

discussed, the presence of waxing and waning of symptoms during the treatment period do not

necessarily indicate an ability to maintain employment, nor do some symptoms improving negate

a treating provider’s opinion”). In other words, “[t]his sole reference does not constitute substantial

evidence.” Ellefson v. Colvin, 2016 WL 3769359, *4 n.3 (D. Or. July 14, 2016).

B. Drs. Kaper and Boyd

Dr. Kaper rendered his opinion in January 2018, and Dr. Boyd adopted Dr. Kaper’s

assessment in July 2018 shortly after Dr. Cole’s “Psychodiagnostic Evaluation” was completed.

As noted above, both Drs. Kaper and Boyd indicated that plaintiff had moderate impairments in

regard to sustained concentration and persistence that resulted in a limitation to simple, routine,

tasks. Tr. 78, 82, 97, 101-02.

The ALJ found the state agency consulting source opinions “somewhat persuasive.” Tr.

18. Specifically, the ALJ resolved that “their finding of moderate limitation in concentrating,

persisting, or maintaining pace is inconsistent with Dr. Cole’s psychological consultative

examination, which showed ‘no problems with attention and concentration.’” Id.

As addressed herein, the medical evidence uniformly supports the presence of severe

mental impairments that result in functional restrictions not reflected in the RFC. In fact. Dr. Boyd

expressly reviewed Dr. Cole’s assessment and nonetheless concluded that a limitation to simple

tasks due to cognitive deficits was warranted. Accordingly, the ALJ committed reversible error in

regard to the opinions of Drs. Boyd and Kaper. See Stout v. Comm’r Soc. Sec. Admin., 454 F.3d

1050, 1054 (9th Cir. 2006) (only mistakes that are “non-prejudicial to the claimant or irrelevant to

the ALJ’s ultimate disability conclusion” are harmless).

IV. Remedy

The decision whether to remand for further proceedings or for the immediate payment of

benefits lies within the discretion of the court. Harman v. Apfel, 211 F.3d 1172, 1176-78 (9th Cir.

2000). The issue turns on the utility of further proceedings. A remand for an award of benefits is

appropriate when no useful purpose would be served by further administrative proceedings or

when the record has been fully developed and the evidence is insufficient to support the

Commissioner’s decision. Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1090-1100

(9th Cir. 2014). The court may not award benefits punitively and must conduct a “credit-as-true”

analysis on evidence that has been improperly rejected by the ALJ to determine if a claimant is

disabled. Strauss v. Comm’r of Soc. Sec. Admin., 635 F.3d 1135, 1138 (9th Cir. 2011); see also

Dominguez v. Colvin, 808 F.3d 403, 407-08 (9th Cir. 2015) (summarizing the standard for

determining the proper remedy).

As discussed above, the ALJ committed harmful legal error by failing to properly evaluate

evidence from plaintiff and Drs. Cole, Kaper, and Boyd. Further proceedings would nonetheless

be useful regarding the extent of plaintiff’s allegedly disabling mental impairments, such that

crediting the wrongfully rejected evidence as true and/or remanding for the immediate payment of

benefits is improper.

On one hand, it is undisputed that plaintiff’s mental health impairments are longstanding,

and have persisted at significant levels since the alleged onset date, despite regular and continuing

treatment. On the other hand, plaintiff worked for many years with these same mental impairments

and plaintiff’s most recent psychological evaluation – i.e., Dr. Cole’s July 2018 “Psychodiagnostic

Evaluation” – is seemingly internally inconsistent and difficult to reconcile with Dr. Cole’s earlier

opinions, especially in the absence of any treatment notes. Furthermore, the record suggests that

plaintiff may have engaged in a wider slate of daily activities earlier in the adjudication period.

Accordingly, the record is ambiguous concerning if/when plaintiff’s mental impairments became

disabling.

As such, further proceedings are required to resolve this case. See Treichler, 775 F.3d at

1099 (except in “rare circumstances,” the proper remedy upon a finding of harmful error is to

remand for further administrative proceedings). Given the ambiguity surrounding any potential

disability onset date, coupled with the complex and longstanding nature of plaintiff’s mental health

conditions, the use of a medical expert specializing in psychology would be helpful. Additional

efforts should also be made to obtain plaintiff’s mental health counseling and treatment records

from Dr. Cole. Therefore, upon remand, the ALJ must seek out additional records and a

consultative exam and, if necessary, reweigh the medical and other evidence of record, reformulate

plaintiff’s RFC, and obtain additional VE testimony.

CONCLUSION

For the reasons stated above, the Commissioner’s decision is REVERSED, and this case is

REMANDED for further proceedings.

IT IS SO ORDERED.

DATED this 23rd day of March, 2023.

/s/ Jolie A. Russo

Jolie A. Russo

United States Magistrate Judge