United States District Court, D. Arizona
G. Campbell, United States District Judge.
Ramona Baker, now substituted by her husband, Andrew Baker,
seeks review under 42 U.S.C. § 405(g) of the final
decision of the Commissioner of Social Security which denied
her disability insurance benefits under sections 216(i) and
223(d) of the Social Security Act. Because the ALJ's
decision contains reversible error, the Court will remand for
was 49 years old at the time of her death on March 29, 2017.
Doc. 15-1. Plaintiff previously worked as a collections
clerk, babysitter, and server. A.R. 215. On April 24, 2012,
Plaintiff applied for disability benefits, alleging
disability beginning October 15, 2011. A.R. 184. On March 13,
2015, Plaintiff appeared and testified at a hearing before
the ALJ. A.R. 36-78. A vocational expert also testified.
Id. On August 10, 2015, the ALJ issued a decision
that Plaintiff was not disabled within the meaning of the
Social Security Act. A.R. 13-25. This became the
Commissioner's final decision when the Appeals Council
denied Plaintiff's request for review on November 15,
2016. A.R. 1-5.
district court reviews only those issues raised by the party
challenging the ALJ's decision. See Lewis v.
Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). The Court
may set aside the Commissioner's disability determination
only if the determination is not supported by substantial
evidence or is based on legal error. Orn v. Astrue,
495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is
more than a scintilla, less than a preponderance, and
relevant evidence that a reasonable person might accept as
adequate to support a conclusion considering the record as a
whole. Id. In determining whether substantial
evidence supports a decision, the Court must consider the
record as a whole and may not affirm simply by isolating a
“specific quantum of supporting evidence.”
Id. (internal citations and quotation marks
omitted). As a general rule, “[w]here the evidence is
susceptible to more than one rational interpretation, one of
which supports the ALJ's decision, the ALJ's
conclusion must be upheld.” Thomas v.
Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citations
omitted). Harmless error principles apply in the Social
Security context. Molina v. Astrue, 674 F.3d 1104,
1115 (9th Cir. 2012). An error is harmless if there remains
substantial evidence supporting the ALJ's decision and
the error does not affect the ultimate nondisability
is responsible for resolving conflicts in medical testimony,
determining credibility, and resolving ambiguities.
Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.
1995). In reviewing the ALJ's reasoning, the Court is
“not deprived of [its] faculties for drawing specific
and legitimate inferences from the ALJ's opinion.”
Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir.
The ALJ's Five-Step Evaluation Process.
determine whether a claimant is disabled for purposes of the
Social Security Act, the ALJ follows a five-step process. 20
C.F.R. § 404.1520(a). The claimant bears the burden of
proof on the first four steps, and the burden shifts to the
Commissioner at step five. Tackett v. Apfel, 180
F.3d 1094, 1098 (9th Cir. 1999). To establish disability, the
claimant must show that (1) she is not currently working, (2)
she has a severe impairment, and (3) this impairment meets or
equals a listed impairment or (4) her residual functional
capacity (“RFC”) prevents her performance of any
past relevant work. If the claimant meets her burden through
step three, the Commissioner must find her disabled. If the
inquiry proceeds to step four and the claimant shows that she
is incapable of performing past relevant work, the
Commissioner must show in the fifth step that the claimant is
capable of other work suitable for her RFC, age, education,
and work experience. 20 C.F.R. § 404.1520(a)(4).
one, the ALJ found that Plaintiff met the insured status
requirements of the Social Security Act through December 31,
2016, and that she had not engaged in substantial gainful
activity since October 15, 2011. A.R. 15. At step two, the
ALJ found that Plaintiff had the following severe
impairments: “obesity, recurrent deep vein thrombosis
(DVT) and pulmonary embolisms (PE), status post filter
placement, left knee arthrosis, hypertension/coronary artery
disease, status post pacemaker, generalized anxiety disorder,
depressive disorder with anxious features not otherwise
specified, and unspecified neurocognitive disorder.”
Id. The ALJ also noted the following medically
determinable but non-severe impairments: “headaches,
hypothyroid, chronic obstructive pulmonary disease
(COPD)/asthma/acute bronchitis with a history of tobacco
abuse, upper respiratory infection, acute diverticulosis,
lower spine spondylosis, thoracic scoliosis, left
mastoiditis, otitis media, left ankle fracture, and
nephrolithiasis without obstruction.” A.R. 16. At step
three, the ALJ determined that Plaintiff did not have an
impairment or combination of impairments that meets or
medically equals a listed impairment. Id. At step
four, the ALJ found that Plaintiff had the RFC to perform
less than the full range of light work, and was unable to
perform any past relevant work. A.R. 18-23. At step five, the
ALJ found that, considering Plaintiff's age, education,
work experience, and RFC, there were jobs that exist in
significant numbers in the national economy that Plaintiff
could perform. A.R. 23-24.
argues the ALJ's decision is defective because it is
based on legal error and is not supported by substantial
evidence. Doc. 15. Specifically, Plaintiff argues that the
ALJ's mental and physical RFC assessments are not
supported by substantial evidence, and that the ALJ erred in
discrediting the physical symptom testimony of Plaintiff and
her husband, Anthony Baker. Id.
making the mental RFC determination, the ALJ relied on the
opinions of two examining psychologists, Drs. Michael Rabara
and Greg Peetoom. A.R. 22-23. He assigned the opinions great
weight, and noted that they were “complete, ”
“well-supported by objective” techniques, and
“largely consistent with the record as a whole.”
A.R. 23. Plaintiff asserts that the ALJ's mental RFC
determination and ultimate finding of nondisability are
inconsistent with these opinions, and that the ALJ gave no
reason for rejecting any part of either opinion. Doc. 15 at
Rabara performed a psychological assessment of Plaintiff on
January 29, 2014, and diagnosed her with unspecified
depressive disorder with anxious features and unspecified
neurocognitive disorder. A.R. 2057-63. He opined that
Plaintiff had “moderate difficulty carrying out
detailed instructions, sustaining her concentration,
performing activities within a schedule[, ] sustaining an
ordinary routine, and completing a normal work day at a
consistent pace.” A.R. 2063. Plaintiff cites the
following testimony from the hearing and argues that Dr.
Rabara's opinion establishes disability:
[Plaintiff's Counsel]: And if a person were to have
difficulty sustaining an ordinary routine and completing a
normal work day at a consistent pace, would that person be
able to maintain work?
[Vocational Expert]: No.
responds that the hypothetical posed by Plaintiff's
Counsel “is not a complete statement of Dr.
Rabara's opinion” because Dr. Rabara opined to
“moderate difficulty, ” while the hypothetical
simply assumed “difficulty.” Doc. 25 at 7 (citing
SSA Program Operations Manual System (POMS) DI
24510.065(B)(1)(c), available at
But the POMS section cited by Defendant instructs agency
medical consultants not to include nonspecific
qualifying terms such as “moderate” in the RFC
narrative because “[s]uch terms do not describe
function and do not usefully convey the extent of capacity
limitation.” POMS DI 24510.065(B)(1)(c). The POMS
section does not regulate the terms that can be used in
hypotheticals posed to vocational experts. The hypothetical
above fairly restates Dr. Rabara's opinion and avoids use
of the term “moderate.”
next argues that the hypothetical took one sentence of Dr.
Rabara's opinion out of context, and that the ALJ's
RFC determination adequately incorporated the overall
findings of the opinion. Doc. 25 at 5-6. The relevant portion
of the RFC assessment states that Plaintiff is “limited
to understanding, remembering and carrying out simple
instructions and performing simple routine repetitive tasks;
and she can only have superficial interaction with co-workers
and no direct public contact.” A.R. 18. Defendant
asserts that even where an ALJ assigns an opinion great
weight, he need not incorporate the opinion verbatim into the
RFC. Doc. 25 at 5-6 (citing Rounds v. Comm'r Soc.
Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015);
Chapo v. Astrue, 682 F.3d 1285, 1288 (10th Cir.
2012) (“[T]here is no requirement in the regulations
for a direct correspondence between an RFC finding and a
specific medical opinion on the functional capacity in
question.”); Turner v. Comm'r of Soc.
Sec., 613 F.3d 1217, 1222-23 (9th Cir. 2010)).
Rounds, the court held that the ALJ had adequately
incorporated the opinions of two doctors where the ALJ relied
on the portions of the opinions containing “specific
imperatives” and narratives rather than the
“treatment recommendations” or
“checkbox” general conclusions. 807 F.3d at
1005-06. The court explained that “the ALJ is
responsible for translating and incorporating clinical
findings into a succinct RFC.” Id. at 1006.
Specifically, one doctor opined that the claimant had
“moderate limitations in her ability to accept
instructions and respond appropriately to criticisms from
supervisors.” Id. at 1005. The ALJ translated
this to the plaintiff being limited to “one to two step
tasks with no public contact, no teamwork and limited
coworker contact.” Id. at 1006. Similarly, in
Turner, the claimant's treating doctor opined
that the claimant had “marked limitations in social
functioning.” 613 F.3d at 1223. The court held that the
ALJ had sufficiently incorporated this general observation by
limiting the claimant to jobs with no public contact and
where it would be recognized that he works best alone.
the ALJ in this case was not required to incorporate each
sentence of Dr. Rabara's opinion verbatim into the RFC.
Rather, he was required to translate Dr. Rabara's
clinical findings into a concise RFC (or explain his reasons
for rejecting certain findings). But unlike the ALJs in
Rounds and Turner who rephrased the general
clinical findings into concrete functional limitations, the
ALJ here simply ignored Dr. Rabara's conclusions
regarding certain functional capacities. The RFC is silent on
Dr. Rabara's opinion that Plaintiff has limited ability
to sustain concentration, follow a schedule or routine, and
maintain a consistent pace. See A.R. 2062. The RFC
cannot be characterized as a fair translation because it does
not mention any limitation in these categories. See Brink
v. Comm'r Soc. Sec. Admin., 343 Fed.Appx. 211, 212
(9th Cir. 2009) (“The Commissioner's contention
that the phrase ‘simple, repetitive work'
encompasses difficulties with concentration, persistence, or
pace is not persuasive.”); Stubbs-Danielson v.
Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008) (“[A]n
ALJ's assessment of a claimant adequately captures
restrictions related to concentration, persistence, or pace
where the assessment is consistent with restrictions
identified in the medical testimony.”). Moreover, Dr.
Peetoom, whose opinion was also afforded great weight,
similarly opined that Plaintiff was limited in concentration
and pace, as explained below. See A.R. 876.
Peetoom evaluated Plaintiff on November 7, 2012, and
diagnosed her with generalized anxiety disorder. A.R. 871-76.
He opined that in many respects Plaintiff was oriented and
“able to essentially function independently, ”
but found that she may require “instructions to be
repeated due to off task behavior” and
“additional supervisory intervention” to stay
focused on job-related tasks “due to preoccupation with
medical issues.” A.R. 876. He noted that Plaintiff
scored 29 out of 30 on the mini-mental state examination.
A.R. 873. He also noted that during the evaluation Plaintiff
was frequently focused on medical issues rather than the
questions he asked, and that hypochondriasis was a
“potential diagnosis, ...