United States District Court, D. Arizona
DOUGLAS L. RAYES, UNITED STATES DISTRICT JUDGE
Eric Schoebel seeks judicial review of the Commissioner of
the Social Security Administration's decision to deny his
application for a period of disability, disability insurance
benefits, and supplemental security income. Plaintiff argues
that the Administrative Law Judge (“ALJ'”)
erred by failing to include limitations in the area of
concentration, persistence, and pace in Plaintiff's RFC
and in hypothetical questions to the vocational expert
(“VE”), improperly discounting Plaintiff's
symptom testimony, and improperly weighing the opinions of
Plaintiff's nurse practitioner.
Court has jurisdiction pursuant to 42 U.S.C. § 405(g)
and 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 ALJ's determination
will be upheld unless it contains harmful legal error or is
not supported by substantial evidence. Orn v.
Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Having
reviewed the parties' briefs and the administrative
record, the Court reverses and remands for further
ALJ erred in failing to incorporate any additional limitation
for concentration, persistence, and pace into the RFC.
See Lubin v. Comm'r of Soc. Sec. Admin., 507
Fed. App'x 709, 712 (9th Cir. 2013). The ALJ found that
Plaintiff suffered moderate difficulties in maintaining
concentration, persistence, or pace. (A.R. 22.) The ALJ,
however, did not include this limitation in Plaintiff's
RFC or in the hypothetical question to the VE. (Id.
24, 54-55.) “The ALJ must include all restrictions in
the [RFC] determination and the hypothetical question posed
to the [VE], including moderate limitations in concentration,
persistence, or pace.” Lubin, 507 Fed.
App'x at 712 (citing 20 C.F.R. §§ 404.1545,
416.945; Magallanes v. Bowen, 881 F.2d 747, 756 (9th
the ALJ's RFC states that Plaintiff “can only
occasionally understand, remember, and carry out complex and
detailed job limitations, ” it is unclear whether this
restriction captures the limitation in concentration,
persistence, or pace found by the ALJ. The work described by
the VE might still require the pace and concentration
Plaintiff lacks. See Brink v. Comm'r Soc. Sec.
Admin., 343 Fed. App'x. 211, 212 (9th Cir. 2009).
Because the ALJ's hypothetical question to the VE did not
reflect all of Plaintiff's non-exertional limitations,
“the expert's testimony has no evidentiary value to
support a finding that [Plaintiff] can perform jobs in the
national economy.” DeLorme v. Sullivan, 924
F.2d 841, 850 (9th Cir. 1991).
also challenges whether there is substantial evidence
supporting the ALJ's mental RFC assessment that Plaintiff
“can occasionally, understand, remember, and carry out
complex and detailed job instructions” and “can
only occasionally interact with co-workers, the public, and
supervisors.” (Doc. 12 at 17.) These findings are
adequately explained and supported by substantial evidence.
For instance, the ALJ gave partial weight to the examining
psychologist and state agency psychologist who opined that
Plaintiff had minimal limitations.
ALJ provided specific, clear, and convincing reasons for
discounting Plaintiff's testimony concerning the severity
of his symptoms. See Smolen v. Chater, 80 F.3d 1273,
1281 (9th Cir. 1996). Plaintiff reported that he gets anxious
around people, has trouble concentrating, has limited
short-term memory, and has no attention span. Plaintiff also
stated that on bad days he is bedridden, which happens three
to four days a week. The ALJ reasonably found that
Plaintiff's testimony was inconsistent with the objective
medical evidence. See Rollins v. Massanari, 261 F.3d
853, 857 (9th Cir. 2001). For example, despite
Plaintiff's contention that he had issues with attention
span and concentration, Plaintiff's psychological
evaluation and the overwhelming balance of his treatment
notes demonstrate the opposite. The ALJ also reasonably
discounted Plaintiff's testimony because it is
inconsistent with his daily activities. See Bray v.
Comm'r Soc. Sec. Admin., 554 F.3d 1219, 1221 (9th
Cir. 2009). For example, Plaintiff testified that being
around people caused him great problems and anxiety, yet he
attended group-counseling sessions daily and enjoyed routine
ALJ gave germane reasons, supported by substantial evidence
in the record, for affording little weight to the opinion of
Plaintiff's nurse practitioner, Salvacion
Powell.See Molina v. Astrue, 674 F.3d
1104, 1111 (9th Cir. 2012). Powell opined that Plaintiff has
slight limitations in his ability to understand, remember,
and carry out short, simple instructions, and moderate
limitations in making judgment on simple work-related
decisions. (A.R. 796.) Powell also opined that Plaintiff has
marked limitations in his ability to understand and remember
detailed instructions, interact appropriately with the
public, co-workers, and supervisors, and in responding
appropriately to work pressures and changes in a routine work
setting. (Id.) Based on these findings, Powell
opined that Plaintiff would be off-task more than 30% of a
normal workweek, he would be absent from work more than 5
days a month, and would be unable to complete an 8-hour
workday more than 5 days a month. (Id. at 797.)
reasonably discounted Powell's assessment because it was
not supported by Powell's own treatment records. See
Molina, 674 at 1111. For example, Powell observed that
Plaintiff had normal speech, age appropriate memory, logical
and coherent thought processes, and good concentration
skills. The ALJ also reasonably discounted Powell's
opinion because it was inconsistent with Plaintiffs daily
actives. See Canales v. Comm'r of Soc. Sec.
Admin., No. 17-CV-993-PHX-JAT, 2018 WL 2213897, at *9
(D. Ariz. May 15, 2018). Finally, the ALJ discounted
Powell's opinion because it was contradicted by Dr.
Ashurt, an acceptable medical source. This is a valid reason
to discount her opinion, see Molina, 674 F.3d at
1112, and is supported by substantial evidence.
the Court remands to the Commissioner so that the ALJ can
clarify his RFC and hypothetical and determine whether
Plaintiff is able to perform gainful employment in the
national economy. See, e.g., Lubin, 507 Fed.
App'x at 712 (finding remand for further proceedings
appropriate where ALJ did not include concentration,
persistence, and pace limitation in RFC and hypothetical);
Lara v. Colvin, No. 13-CV-1643-PHX-JZB, 2015 WL
1505817, at *9-10 (D. Ariz. Mar. 31, 2015) (collecting
IS ORDERED that the Commissioner's decision is
REVERSED and this action is
REMANDED for further proceedings consistent
with this order. The Clerk of Court is directed to enter
judgment accordingly and terminate this case.
 Powell is not considered an
“acceptable medical source” as defined by the