Harden

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

SCOTT H.,1

Case No. 3:25-cv-00895-AB

Plaintiff,

OPINION & ORDER

v.

COMMISSIONER, SOCIAL SECURITY

ADMINISTRATION,

Defendant.

Rory Linerud

Linerud Law Firm

PO Box 5734

Salem, OR 97304

Attorney for Plaintiff

Susanne Luse

Assistant United States Attorney

District of Oregon

1000 SW Third Avenue, Suite 600

Portland, OR 97204

1 In the interest of privacy, this Opinion uses only the first name and the 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.

Katherine B. Watson

Special Assistant United States Attorney

Law & Policy, Program Litigation 1

Social Security Administration

6401 Security Boulevard

Baltimore, MD 21235

Attorneys for Defendant

BAGGIO, District Judge:

Plaintiff Scott H. brings this action seeking judicial review of the Commissioner’s final

decision to deny disability insurance benefits (“DIB”) and supplemental security income (“SSI”).

This Court has jurisdiction pursuant to 42 U.S.C. § 405(g) (incorporated by 42 U.S.C. §

1383(c)(3)). The Court reverses the Commissioner’s decision and remands this case for further

administrative proceedings.

PROCEDURAL BACKGROUND

Plaintiff applied for DIB and SSI on December 9, 2019, alleging an onset date of

September 30, 2012.2 Tr. 20.3 Plaintiff’s date last insured (“DLI”) is September 30, 2014. Tr.

154. His application was denied initially and on reconsideration. Tr. 252-61, 263-68.

On October 6, 2021, Plaintiff appeared with counsel for a hearing before an

Administrative Law Judge (“ALJ”). Tr. 71. On October 27. 2021, the ALJ found Plaintiff not

2 Plaintiff’s application in this case initially claimed an alleged onset date of October 9,

2019, because of a prior application for benefits that was denied on October 8, 2019. Tr. 147,

154-55. This onset date postdates Plaintiff’s DLI. Due to Plaintiff’s unrepresented status in the

underlying administrative proceedings, however, the ALJ gave Plaintiff “the benefit of

consideration of the entire time period” dating back to the September 2012 onset date Plaintiff

claimed in his prior application. Tr. 17.

3 Citations to “Tr.” refer to the page(s) indicated in the official transcript of the

administrative record, filed herein as Docket No. 7.

disabled. Tr. 239. The Appeals Council granted review and remanded the case for additional

consideration of the medical opinion evidence. Tr. 246-48.

On July 25, 2023, Plaintiff appeared without counsel for an additional hearing before the

same ALJ. Tr. 40. On March 11, 2024, the ALJ again found Plaintiff not disabled. Tr. 32. The

Appeals Council denied review. Tr. 1.

FACTUAL BACKGROUND

Plaintiff alleges disability based on lumbar spine spondylosis, ADHD, HIV, HPV,

depression, PTSD, bipolar II disorder, generalized anxiety, chronic low back pain, and past drug

addiction. Tr. 482. At the time of his alleged onset date, he was 37 years old. Tr. 30. He has a

high school education and past relevant work experience as a “construction worker II,” “sales

clerk,” and “public relations representative.” Tr. 30.

SEQUENTIAL DISABILITY EVALUATION

A claimant is disabled if they are unable to “engage in any substantial gainful activity by

reason of any medically determinable physical or mental impairment 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), 1382c(a)(3)(A). Disability claims are evaluated according to a five-step

procedure. See Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009) (in

social security cases, agency uses five-step procedure to determine disability). The claimant

bears the ultimate burden of proving disability. Id.

In the first step, the Commissioner determines whether a claimant is engaged in

“substantial gainful activity.” If so, the claimant is not disabled. Bowen v. Yuckert, 482 U.S. 137,

140 (1987); 20 C.F.R. §§ 404.1520(b), 416.920(b). In step two, the Commissioner determines

whether the claimant has a “medically severe impairment or combination of impairments.”

Yuckert, 482 U.S. at 140–41; 20 C.F.R. §§ 404.1520(c), 416.920(c). If not, the claimant is not

disabled. Id.

In step three, the Commissioner determines whether the claimant’s impairments, singly

or in combination, meet or equal “one of a number of listed impairments that the [Commissioner]

acknowledges are so severe as to preclude substantial gainful activity.” Yuckert, 482 U.S. at 141;

20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is conclusively presumed disabled; if

not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.

In step four, the Commissioner determines whether the claimant, despite any

impairment(s), has the residual functional capacity (RFC) to perform their “past relevant work.”

20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant can perform past relevant work, the

claimant is not disabled. If the claimant cannot perform past relevant work, the burden shifts to

the Commissioner. In step five, the Commissioner must establish that the claimant can perform

other work. Yuckert, 482 U.S. at 141–42; 20 C.F.R. §§ 404.1520(e)–(f), 416.920(e)–(f). If the

Commissioner meets their burden and proves that the claimant can perform other work that

exists in the national economy, then the claimant is not disabled. 20 C.F.R. §§ 404.1566,

416.966.

THE ALJ’S DECISION

At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful

activity after his alleged onset date. Tr. 20. Next, at steps two and three, the ALJ determined that

Plaintiff has the following severe impairments: “lumbar degenerative disc disease, depression,

anxiety, trauma disorder, and substance abuse disorder.” Tr. 20. However, the ALJ determined

that Plaintiff’s impairments did not meet or medically equal the severity of a listed impairment.

Tr. 21. At step four, the ALJ concluded that Plaintiff has the residual functional capacity to

perform medium work as defined in 20 C.F.R. §§ 404.1567(c) and 416.967(c) with the following

limitations:

[T]he claimant can frequently climb, balance, stoop, kneel, crouch, and crawl. He

should have no exposure to hazards. He can understand, remember, and carry out

simple instructions and can use judgment to make simple work-related decisions.

He can deal with occasional changes in a routine work setting. He can occasionally

interact with coworkers and the public.

Tr. 22. Because of these limitations, the ALJ concluded that Plaintiff could not perform his past

relevant work. Tr. 30. But at step five, the ALJ found that there are jobs that exist in significant

numbers in the national economy that Plaintiff can perform, such as “hospital cleaner,” “hand

packager,” “automobile detailer,” “housekeeping cleaner,” and “small products assembler.” Tr.

31. Thus, the ALJ concluded that Plaintiff is not disabled. Tr. 32.

STANDARD OF REVIEW

A court may set aside the Commissioner’s denial of benefits only when the

Commissioner’s findings “are based on legal error or are not supported by substantial evidence

in the record as a whole.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (internal

quotation marks omitted). “Substantial evidence means more than a mere scintilla but less than a

preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to

support a conclusion.” Id. (citation and internal quotation marks omitted). The court considers

the record as a whole, including both the evidence that supports and detracts from the

Commissioner’s decision. Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). “Where

the evidence is susceptible to more than one rational interpretation, the ALJ’s decision must be

affirmed.” Vasquez, 572 F.3d at 591 (internal quotation marks and brackets omitted); see also

Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (“Where the evidence as a whole can

support either a grant or a denial, [the court] may not substitute [its] judgment for the ALJ’s.”)

(internal quotation marks omitted).

DISCUSSION

This appeal challenges the ALJ’s formulation of Plaintiff’s residual functional capacity

(“RFC”). The RFC is the most a person can do despite their physical or mental limitations. 20

C.F.R. §§ 404.1545, 416.945. In formulating an RFC, the ALJ must consider all medically

determinable impairments, including those that are not “severe,” and evaluate “all of the relevant

medical and other evidence,” including the claimant’s testimony. Id.; Social Security Ruling

(“SSR”) 96-8p. An ALJ errs when they provide an incomplete RFC ignoring “significant and

probative evidence.” Hill v. Astrue, 698 F.3d 1153, 1161-62 (9th Cir. 2012) (noting that the error

is not harmless when an ALJ fails to discuss significant and probative evidence favorable to a

claimant’s position because when the RFC is incomplete, the hypothetical question presented to

the vocational expert is incomplete and, therefore, the ALJ’s reliance on the vocational expert’s

testimony is improper).

Here, Plaintiff argues that the ALJ erred in three ways: (1) failing to include the state

agency physicians’ limitation to “short” instructions in the RFC; (2) failing to include the state

agency physicians’ limitation to “short and simple tasks” in the RFC; and (3) creating an

irreconcilable conflict between her analysis of Plaintiff’s social limitations and the RFC. Because

the Court agrees with Plaintiff that the ALJ failed to include all of Plaintiff’s limitations in the

RFC, the Court remands this case for further proceedings.

I. Limitation to Short Instructions

Plaintiff first argues that the ALJ erred in failing to include a limitation to “short”

instructions in the RFC. Pl.’s Br. 5, ECF No. 8. This limitation comes from the opinions of two

state agency medical providers. Sergiy Barsukov, Psy.D., evaluated Plaintiff’s mental

impairments at the initial level. Tr. 180. In his assessment, Dr. Barsukov concluded Plaintiff was

moderately limited in his ability to understand, remember, and carry out detailed instructions

with no limitation in his ability to carry out or remember very short and simple instructions. Tr.

183. He specifically opined that Plaintiff “is capable of understanding/remembering short/simple,

but not detailed or complex instructions” due to depression and anxiety symptoms. Tr. 183.

Joshua J. Boyd, Psy.D., assessed Plaintiff’s limitations on reconsideration. Tr. 198. He

determined Plaintiff had the exact limitations identified by Dr. Barsukov. Tr. 201-02.

The ALJ found that that “the assessments from Drs. Boyd and Barsukov are consistent

with the objective clinical evidence, the claimant’s level of daily functioning, and his sporadic

and routine course of mental health treatment.” Tr. 29 (“[T]he undersigned finds the opinions of

Drs. Boyd and Barsukov to have persuasive value . . . .”). The ALJ, however, never explicitly

discussed the doctors’ opinions that Plaintiff has moderate limitations in his ability to

understand, remember, and carry out instructions. And in the RFC, the ALJ only limited Plaintiff

to understanding, remembering, and carrying out simple instructions. Tr. 22; see also Tr. 61

(describing hypothetical to the vocational expert consistent with the RFC). She did not include a

limitation to “short” instructions that are neither detailed nor complex.

In Leach v. Kijakazi, the ALJ’s hypothetical to the vocational expert failed to include a

limitation that the ALJ later incorporated into the RFC. 70 F.4th 1251, 1256 (9th Cir. 2023).

Specifically, the ALJ asked the vocational expert “whether jobs existed for a person who can

carry out ‘simple job instructions.’” Id. But the RFC included a limitation to both short and

simple instructions. Id. The Ninth Circuit concluded that it was a harmful error for the ALJ to

rely on the vocational expert’s testimony. Id. Specifically, the circuit court noted that a limitation

to “short, simple instructions” appeared to be inconsistent with level-two reasoning, which was

required by the jobs identified by the vocational expert. Id. (noting that level-two reasoning

requires an individual to “[a]pply commonsense understanding to carry out detailed but

uninvolved written or oral instructions”).

While this case involves a conflict between the opinion evidence and the RFC rather than

a conflict between the vocational expert’s hypothetical and the RFC, the Court finds that the

circuit court’s analysis in Leach is instructive here. The ALJ in this case found the opinions of

Drs. Boyd and Barsukov persuasive and did not reject their opinions as to Plaintiff’s capacity to

“understand[]/ remember[] short/simple, but not detailed or complex instructions.” But both the

RFC and hypothetical failed to account for the providers’ limitation to “short” instructions that

were neither detailed nor complex. And there is an apparent unexplained conflict between a

limitation to short instructions and level-two reasoning, which requires an individual to “[a]pply

commonsense understanding to carry out detailed but uninvolved written or oral instructions.” 4

Four of the five jobs identified by the vocational expert require reasoning level two, and the ALJ

did not resolve this conflict at the hearing. See “Cleaner, Hospital,” DOT 323.687-010, 1991 WL

672782; “Packager, Hand,” DOT 920.587-018, 1991 WL 687916; “Automobile Detailer,” DOT

915.687-034, 1991 WL 687878; “Assembler, Small Products I,” DOT 706.684-022, 1991 WL

679050. While “[s]ome level-two jobs . . . might be consistent with a limitation to following only

short, simple instructions,” the record is incomplete on this issue because the vocational expert

4 Each job in the Dictionary of Occupational titles is assigned a “reasoning development”

level, which is a six-tiered scale from level-one (simplest) to level-six (most complex) reasoning.

See Dictionary of Occupational Titles, App. C., 1991 WL 688702 (4th Ed. 1991). For

comparison here, the first level requires an individual to “[a]pply commonsense understanding to

carry out simple one- or two-step instructions” and “[d]eal with standardized situations with

occasional or no variables in or from these situations encountered in the job.” Id.

was not asked about an individual so limited. Leach, 70 F.4th at 1257. In sum, the ALJ erred in

her formulation of the RFC and failed to resolve an apparent inconsistency between the jobs

identified by the vocational expert and the limitations identified by the doctors that were

erroneously omitted. Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996, 1004 (9th Cir. 2015)

(“Because the ALJ did not recognize the apparent conflict between Rounds’ RFC and the

demands of Level Two reasoning, the [vocational expert] did not address whether the conflict

could be resolved.”).

II. Limitation to Short and Simple Tasks

Plaintiff also argues that the ALJ erred in failing to include a limitation to short and

simple tasks in the RFC. Pl.’s Br. 9. Again, Plaintiff’s task limitations come from the opinions of

Drs. Boyd and Barsukov. In assessing Plaintiff’s “sustained concentration and persistence”

limitations, both doctors found that Plaintiff was moderately limited in his ability to carry out

detailed instructions and to maintain attention and concentration for extended periods. Tr. 183,

202. They specifically stated that Plaintiff “is capable of sustaining [concentration, persistence,

and pace] for short/simple, but not detailed or complex tasks” due to his mental health. Tr. 184,

202.

In her decision, the ALJ noted that the doctors “opined that the claimant retains the

ability to sustain concentration, persistence, and pace for short and simple tasks.” Tr. 29; see also

Tr. 22 (noting moderate limitation in “concentrating, persisting, or maintaining pace”). As noted

in Section I above, the ALJ found the opinions of the doctors both persuasive and consistent with

the record. Tr. 29. The RFC, however, does contain any limitation in Plaintiff’s ability to carry

out complex or detailed tasks, nor does it address Plaintiff’s ability to concentrate, persist, or

maintain pace. See Tr. 22.

The Court agrees with Plaintiff that the ALJ has erred in failing to address Plaintiff’s

limitations in carrying out certain tasks. The Court cannot conclude that on this record a

limitation to simple instructions—which the medical providers linked to Plaintiff’s ability to

understand and remember—encompasses a limitation to short and simple tasks—which relates to

Plaintiff’s ability to maintain concentration, persistence, and pace. See Tr. 183, 201-202 (mental

RFC assessment describing “understanding and memory” limitations separately from “sustained

concentration and persistence limitations”). Further, even assuming the Court could agree with

the Commissioner that “tasks” and “instructions” are not meaningfully different terms, see Def.’s

Br. 6, ECF No. 11, as noted above the ALJ has failed to address the limitation to “short”

instructions that was included in the RFC, see supra Part I. As the ALJ failed to include any

limitation in Plaintiff’s ability to complete tasks in both the RFC and the hypothetical to the VE,

the ALJ erred. See Robbins v. Social Sec. Admin., 466 F.3d 880, 886 (9th Cir. 2006) (holding the

RFC must include all “limitations supported by substantial evidence”).

III. Social Limitations

Plaintiff argues that the ALJ’s assessment of Plaintiff’s capacity to interact with

supervisors is internally inconsistent, focusing primarily on one sentence in the ALJ’s opinion

where the ALJ suggested the RFC would include limitations on Plaintiff’s interactions with

supervisors. Pl.’s Br. 12. The ALJ discussed Plaintiff’s ability to interact with others a few times

throughout her decision. The ALJ repeatedly noted that Plaintiff has been able to appropriately

engage with treating and examining physicians. Tr. 21, 28-29. The ALJ cited these interactions

as the basis for the RFC and for discounting Dr. Boyd and Dr. Barsukov’s opinions that Plaintiff

is limited in his ability to interact with supervisors:

[T]he undersigned finds that the claimant’s documented ability to interact

appropriately with his numerous treatment providers to be persuasive evidence that

he could interact appropriately with supervisors. Accordingly, the residual

functional capacity does not limit interaction with supervisors as proffered by Drs.

Boyd and Barsukov.

Tr. 29. Elsewhere in her decision, however, the ALJ suggested that the RFC would include

limitations on Plaintiff’s ability to interact with supervisors:

As the record shows he has repeatedly exhibited appropriate interpersonal behavior

toward treatment providers, the undersigned finds it shows he could interact

appropriately with supervisors. Nevertheless, in consideration of his psychological

symptoms, the residual functional capacity has limitations regarding interaction

with coworkers and supervisors.

Tr. 28 (emphasis added).

The Court disagrees with Plaintiff that this apparent inconsistency is a harmful error in

the ALJ’s decision. The ALJ’s decision not to include a limitation on interactions with

supervisors in the RFC is supported by substantial evidence—namely, the ALJ’s decision to

discount the source of this limitation. Indeed, Plaintiff does not challenge the ALJ’s conclusion

that the reviewing providers’ opinions were not persuasive because they were not consistent with

medical evidence demonstrating that he could appropriately engage with treating providers.

Plaintiff instead focuses on the ALJ’s first decision, wherein the ALJ did limit Plaintiff’s ability

to interact with supervisors, and argues that “his capacity to interact with others has not

improved since the ALJ’s prior determination in 2021 . . . .” Pl.’s Br. 16. But Plaintiff cites no

evidence in support of this point. And as the Commissioner points out, see Def. Br. 9, the

medical record on remand from the appeals council expanded significantly, see Tr. 2134-3228.

The ALJ discussed these more recent mental health records in her opinion. Tr. 27-28.

Accordingly, the Court finds that the ALJ did not err in finding that Plaintiff did not have any

limitations in his ability to interact with supervisors. See Alekseyevets v. Colvin, 524 Fed. Appx.

341, 344 (9th Cir. May 2, 2013) (quoting Chavez v. Bowen, 844 F.2d 691, 694 (9th Cir. 1998))

(“Although the first ALJ’s RFC findings are entitled to some ‘res judicata consideration,’ the

Chavez presumption does not prohibit a subsequent ALJ from considering new medical

information and making an updated RFC determination.”).

IV. Remand

Taken together, the ALJ’s errors in this case are harmful and warrant remand. “An error

is harmless only if it is ‘inconsequential to the ultimate nondisability determination.’” Lambert v.

Saul, 90 F.3d 1266, 1278 (9th Cir. 2020) (quoting Brown-Hunter v. Colvin, 806 F.3d 487, 494

(9th Cir. 2015)). Here, the Court cannot conclude that the ALJ’s omission of limitations from the

RFC were inconsequential to the ultimate nondisability determination. Without vocational expert

testimony, the Court cannot determine whether an individual limited to “short, simple”

instructions could perform any of the four jobs identified by the vocational expert that require

level-two reasoning. See Leach, 70 F.4th at 1257 (“[B]ecause the ALJ omitted the qualifying

adjective ‘short’ when posing the question to the vocational expert, . . . the ALJ erred by relying

on the vocational expert’s testimony, and the error was not harmless.”). The Court also cannot

conclude on this record whether an individual limited to short, simple tasks could perform the

sole remaining job identified by the vocational expert. See “Cleaner, Housekeeping,” DOT

323.687-014, 1991 WL 672783; see also Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219,

1228 (9th Cir. 2009) (quoting DeLorme v. Sullivan, 924 F.2d 841, 850 (9th Cir. 1991)) (“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.’”). Remand for further proceedings is therefore appropriate in this case.5

5 Though Plaintiff seeks an award of benefits in the final page of his brief, see Pl.’s Br.

20, he does not provide any analysis of whether an award of benefits is warranted in this case.

CONCLUSION

Based on the foregoing, the Commissioner’s decision is REVERSED and REMANDED

for further administrative proceedings.

IT IS SO ORDERED.

DATED this 14th day of April, 2026.

AMYM. BAGGI

United States District Judge

The Court also finds that, in light of the incomplete record, a remand for award of benefits would

be inappropriate here.

13 — OPINION & ORDER