United States District Court, D. Arizona
Russel Holland United States District Judge
an action for judicial review of the denial of disability
benefits under Title II of the Social Security Act, 42 U.S.C.
§§ 401-434. Plaintiff Jane Marie Kanik has timely
filed her opening brief,  to which defendant Nancy A.
Berryhill has timely responded. Oral argument was not
requested and is not deemed necessary.
December 23, 2013, plaintiff filed an application for
disability benefits under Title II of the Social Security
Act, alleging that she became disabled on May 28, 2010.
Plaintiff alleges that she is disabled due to moderate to
severe hearing loss, developmental cognitive disorder,
anxiety, depression, and arthritis in the right hip.
Plaintiff's application was denied initially and on
reconsideration. After a hearing on February 19, 2015, an
administrative law judge (ALJ) denied plaintiff's claim.
On November 27, 2017, the Appeals Council denied
plaintiff's request for review, thereby making the
ALJ's March 23, 2016 decision the final decision of
defendant. On January 16, 2018, plaintiff commenced this
action in which she asks the court to find that she is
entitled to disability benefits.
was born on May 9, 1957. She was 58 years old at the time of
the administrative hearing. Plaintiff has an associates
degree in applied business. Plaintiff's past relevant
work includes work as a payroll bookkeeping clerk, telephone
solicitor, and teacher's aide.
first determined that plaintiff “last met the insured
status requirements of the Social Security Act on December
31, 2015.” The date was extended by the Appeals
Council to “at least March 31, 2017. . .
then applied the five-step sequential analysis used to
determine whether an individual is disabled.
one, the ALJ found that plaintiff “did not engage in
substantial gainful activity during the period from her
alleged onset date of May 28, 2010 through her date last
insured . . . .”
two, the ALJ found that “[t]hrough the date last
insured, the claimant had the following severe impairments:
hearing loss, a cognitive disorder, and an affective disorder
NOS. . . .” The ALJ found that plaintiff's
“degenerative joint disease of the right hip is not a
severe impairment.” The ALJ also “fully
considered obesity in the context of the overall record of
evidence . . . and determined that it is not a severe
three, the ALJ found that “[t]hrough the date last
insured, the claimant did not have an impairment or
combination of impairments that met or medically equaled the
severity of one of the listed impairments in 20 CFR Part 404,
Subpart P, Appendix 1 . . . .”The ALJ considered
Listings 2.10 (Hearing loss not treated with cochlear
implantation), 12.02 (neurocognitive disorders), 12.04
(depressive, bipolar and related disorders), and 12.06
(anxiety and obsessive-compulsive disorders). The ALJ
considered the “paragraph B” criteria and found
that plaintiff had mild impairment in her activities of daily
living; moderate limitations in social functioning; moderate
limitations in concentration, persistence, and pace; and no
episodes of decompensation that have been of extended
duration. The ALJ also found that plaintiff
did not meet the “paragraph C”
steps three and four, the ALJ must, as an intermediate step,
assess the claimant's RFC.” Bray v. Comm'r
Soc. Sec. Admin., 554 F.3d 1219, 1222-23 (9th Cir.
2009). The ALJ found that plaintiff had “the residual
functional capacity to perform a full range of work at all
exertional levels but with the following non-exertional
limitations: she is limited to work that is not fast-paced.
The claimant can respond appropriately to supervision and
coworkers, and may have frequent contact with the
gave great weight to Dr. Nockleby's
opinion. The ALJ gave little
weightto Dr. McBride's
opinion and Dr. Penner's
opinion. The ALJ gave little weight to Dr.
Mather's opinion that plaintiff had no impairments that
would last more than 12 continuous months but gave great
weight to the rest of his
opinion. The ALJ gave little weight to
plaintiff's GAF scores. The ALJ gave little
weight to the lay testimony of plaintiff's sister, Susan
found plaintiff's pain and symptom statements less than
credible because of inconsistencies between her statements,
her daily activities and the medical evidence.
four, the ALJ found that “[t]hrough the date last
insured, the claimant was capable of performing past relevant
work as a bookkeeping clerk and as a teacher's
aide.”The ALJ rejected plaintiff's
argument that her past relevant employment had been
not required to make step five findings, the ALJ made such
findings. At step five, the ALJ found that “there are
other jobs that exist in significant numbers in the national
economy that the claimant also can
perform.” This finding was based on the
concluded that plaintiff “was not under a disability,
as defined in the Social Security Act, at any time from May
28, 2010, the alleged onset date, through December 31, 2015,
the date last insured. . . .”
to 42 U.S.C. § 405(g), the court has the “power to
enter, upon the pleadings and transcript of the record, a
judgment affirming, modifying, or reversing the decision of
the Commissioner. . . .” The court “properly
affirms the Commissioner's decision denying benefits if
it is supported by substantial evidence and based on the
application of correct legal standards.” Sandgathe
v. Chater, 108 F.3d 978, 980 (9th Cir. 1997).
“Substantial evidence is ‘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. (quoting
Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.
1995)). “‘To determine whether substantial
evidence supports the ALJ's decision, [the court]
review[s] the administrative record as a whole, weighing both
the evidence that supports and that which detracts from the
ALJ's conclusion.'” Id. (quoting
Andrews, 53 F.3d at 1039). If the evidence is
susceptible to more than one reasonable interpretation, the
court must uphold the Commissioner's decision.
Id. But, the Commissioner's decision cannot be
affirmed “‘simply by isolating a specific quantum
of supporting evidence.'” Holohan v.
Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001) (quoting
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir.
first argues that the ALJ erred at step two by not finding
her right hip impairment to be a severe impairment.
“[T]he step-two inquiry is a de minimis screening
device to dispose of groundless claims.” Smolen v.
Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). “An
impairment or combination of impairments can be found
‘not severe' only if the evidence establishes a
slight abnormality that has ‘no more than a minimal
effect on an individual's ability to work.'”
Id. (quoting SSR 85-28).
acknowledged that plaintiff's September 2013 x-rays
showed severe degenerative changes to her right hip,
 but he also noted that in May 2014,
she had a normal gait and her mobility did not appear to be
impaired by pain and that in 2016, she “was
described as having a normal gait, with the capability of
undergoing exercise testing, participating in exercise
programs, and using a treadmill.”
plaintiff points out, she never claimed that her hip pain
caused an antalgic gait. Rather, she claimed that her hip
pain limited her ability to sit, stand, and walk for extended
periods. Thus, whether she had a normal gait is largely
irrelevant. Moreover, at times her gait was not
normal. As for her ability to use the
treadmill, she was only able to “ambulate” on the
treadmill when taking the stress test for five
minutes and it is reasonable to assume that
this was due to the pain in her right hip.
was substantial evidence in the record that plaintiff's
right hip impairment was more than a slight abnormality. The
ALJ erred in not including plaintiff's right hip
impairment as a severe impairment at step two.
argues that this error was harmless. Error is harmless if it
is “inconsequential to the ultimate nondisability
determination.” Stout, 454 F.3d at 1055.
Defendant argues that any failure of the ALJ at step two as
to plaintiff's right hip impairment would not have
affected the ultimate disability determination. This argument
is based on the ALJ's step four findings. At step four,
the ALJ found that plaintiff could perform her past relevant
work as a bookkeeping clerk, which is a sedentary
job. Plaintiff testified that her right
hip limits her in standing and sitting but that she could
work at a job that would allow her to sit most of the day
with the option to get up and move around and the
vocational expert testified that plaintiff's past
relevant work as a bookkeeping clerk might allow a sit/stand
option. Thus, defendant argues that even if
the ALJ had included plaintiff's right hip impairment as
a severe impairment, the ALJ would still have found that
plaintiff was not disabled because she could still work as a
problem with defendant's argument is that the vocational
expert did not testify that there would be bookkeeping jobs
available that would allow a sit/stand option, only that
there might be such jobs available and that such a
job might require an accommodation from the
employer. If the ALJ had considered
plaintiff's right hip impairment a severe impairment, it
is possible that he might have included a sit/stand option in
her RFC or other limitations related to her right hip
impairment. If such limitations had been included, it is
possible that the ALJ would have found plaintiff disabled.
The ALJ's step two error was not harmless.
next argues that the ALJ erred by not including any hearing
limitations in her RFC. Plaintiff argues that it was error
for the ALJ to find that she had a severe hearing loss at
step two but then fail to include any hearing limitations in
her RFC, particularly since the ALJ found that “[w]hile
addressed through the use of hearing aids, the claimant still
has a measurable loss of hearing function which may tend to
interfere with her ability to work.”Plaintiff
argues that the ALJ was required to explain why he did not
include any limitations related to an impairment he found
severe. Plaintiff acknowledges that the ALJ made reference to
Dr. Bartell's finding that plaintiff “could
communicate adequately using hearing aids and had speech
discrimination scores of 88 percent in the right ear and 40
percent in the left ear.” The ALJ explained that
Dr. Bartell's finding “supports the limitation in
the claimant's residual functional capacity that she have
only frequent contact with the general public and that she
cannot perform fast-paced work.” Plaintiff argues,
however, that the ALJ did not explain how her hearing loss
was accommodated by these limitations.
making his RFC determination, [an] ALJ [must take] into
account those limitations for which there was record support
that did not depend on [a claimant's] subjective
complaints.” Bayliss v. Barnhart, 427 F.3d
1211, 1217 (9th Cir. 2005). Given that the ALJ found that
plaintiff “has a measurable loss of hearing function
which may tend to interfere with her ability to work[,
]” the ALJ either should have included
hearing limitations in plaintiff's RFC or explained why
he was not including any hearing limitations in her RFC. The
ALJ's attempted explanation was not adequate. It is not
at all clear how excluding fast-paced work and constant
contact with the public accommodates plaintiff's hearing
next argues that the ALJ erred by failing to include in her
RFC limitations that were consistent with Dr. Nockleby's
opinion. The ALJ gave great weight to Dr. Nockleby's
opinion, but then, according to plaintiff, failed to include
all the limitations that Dr. Nockleby assessed.
M. Nockleby, Ph.D., did a neuropsychological evaluation on
January 6, 2012 to assist with vocational planning. Based on
his examination and testing, Dr. Nockleby offered the
1. The client has used Vocational Rehabilitation services in
the past, and can continue to benefit from them. Without VR
support, she will struggle in obtaining employment. The
problems that she has had historically (decreased coping
skills, slower than average productivity speed) are likely to
increase as she ages, with normal development changes
associated with age, with consequences for employability.
2. Her strengths include a warm and friendly manner, which
could be effective in casual public interaction. She would be
a pleasant co-worker.
3. She has had some success with jobs involving high
structure, although her pace of performance and potential for
increased errors could interfere with maintaining a job,
where high productivity and error-free performance are
important. She has been modestly successful with bookkeeping
jobs, and evidently was sufficiently conscientious in these
tasks that she performed OK.
She does best with ‘one task to do at a time' and
would have difficulty, or could not, multi-task. Cognitive
inflexibility, difficulty simultaneously monitoring several
things at a time, difficulty quickly switching from a task
she is engrossed in to take care of another task, are
elements of her cognitive style that put limitations on the
kinds of work she can do.
The non-verbal learning/cognitive disorder implies that she
needs to be taught explicitly what the work task is, and
generally cannot ‘read between the lines', cannot
readily discern what to do on her own, cannot organize and
prioritize work tasks. She is unlikely to go outside of the
tasks that she is assigned, to spontaneously help on things
that need to be done and lacks [the] flexibility expected of
4. She will benefit from job development and job coaching
services. It will be very difficult to obtain work on her own
and maintain the job without transitional services from RSA.
Job Coaching could be phased out, after she masters the job,
but an employer needs to understand her limitations and not
place her in a position beyond her capabilities.
It is likely that, once placed in a job, she will require
more time than average to learn new job sequences, and will
need above average supervisory time as she learns a new
The jobs that she may be placed in could be those that she
has had some success with in the past. Avoid work with high
productivity demands and that could be considered high stress
jobs. Work with a supportive employer would be desirable. She
might need upgrading of bookkeeping skills if placed in that
kind of work, but would need a low-pressure job. Data-entry
could be considered, but it is likely that she would have
some difficulty meeting productivity standards. She might
function as a floor clerk in some department store settings
where she had . . . routine and limited tasks to do, although
it might be difficult for her ‘see' what needs to
be done and initiate it. She could function as a
‘greeter' in a store. She may function well in a
low-production job, such as a library aide at a front-desk or
filing books. She would likely do well as a file clerk in a
medical clinic or in an office setting. She could perform
routine telephone work that is fairly scripted, such as
reminding patients of appointments.
5. If she cannot be placed in a job with her current skills,
given she has been out of work for an extended time, she may
need to go through Work Adjustment Training, with a job
targeted after that point.
6. Although she needs the health coverage that would come
with full time employment, she may do best starting at
part-time and increasing hours to her tolerance.
7. Her emotional coping difficulties appear to be addressed
effectively with her current medication and counseling.
Feedback and instruction in ‘pragmatics' of
communications could be helpful.
noted that it was Dr. Nockleby's opinion that plaintiff
“does best when given one task to complete at a time
and would have difficulty, or could not, multi-task”
and that she “should avoid high productivity demands
and high-stress job placements.” The ALJ further
noted that Dr. Nockleby “suggested that [plaintiff]
‘will need to work at an entry-level position that is
structured and routine, low in stress, does not require
multi-tasking, and has low production
requirements.'” The ALJ explained that
he was incorporating these limitations into plaintiff's
RFC by limiting her to “work that is not fast-paced and
which does not feature constant contact with the general
argues, however, that Dr. Nockleby's opinion supports
additional limitations and work accommodations. In her
opening brief, plaintiff seemed to suggest that the ALJ
should have limited her to unskilled work based on Dr.
Nockleby's opinion. But, as defendant is quick to point,
Dr. Nockleby opined that “[t]he jobs that she may be
placed in could be those that she has had some success with
in the past[, ]” which include bookkeeping jobs,
which are not unskilled jobs.
reply brief, plaintiff identifies additional limitations that
she argues the ALJ should have included in her RFC based on
Dr. Nockleby's opinion. She contends that the ALJ failed
to include any limitations related to her limited coping
skills, her slower than average production speeds, her
inability to deal with work-related stress, her inability to
multi-task and switch between tasks, her need for a
supportive employer, and her need for limited working hours.
Plaintiff insists that these are all limitations assessed by
Dr. Nockleby and that the ALJ should have either included
these limitations in her RFC or explained why he did not
erred as to Dr. Nockleby's opinion. The ALJ gave Dr.
Nockleby's opinion great weight but did not include many
of the limitations assessed by Dr. Nockleby or explain why
particular limitations were not included.
next argues that the ALJ erred in finding her pain and
symptom statements less than credible. “An ALJ engages
in a two-step analysis to determine whether a claimant's
testimony regarding subjective pain or symptoms is
credible.” Garrison v. Colvin, 759 F.3d 995,
1014 (9th Cir. 2014). “‘First, the ALJ must
determine whether the claimant has presented objective
medical evidence of an underlying impairment which could
reasonably be expected to produce the pain or other symptoms
alleged.'“ Id. (quoting Lingenfelter
v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007)).
“In this analysis, the claimant is not required to show
‘that h[is] impairment could reasonably be expected to
cause the severity of the symptom he has alleged; he need
only show that it could reasonably have caused some degree of
the symptom.'” Id. (quoting
Smolen, 80 F.3d at 1282)). “Nor must a
claimant produce ‘objective medical evidence of the
pain or fatigue itself, or the severity thereof.'”
Id. (quoting Smolen, 80 F.3d at 1282).
“If the claimant satisfies the first step of this
analysis, and there is no evidence of malingering, ‘the
ALJ can reject the claimant's testimony about the
severity of her symptoms only by offering specific, clear and
convincing reasons for doing so.'” Id. at
1014-15 (quoting Smolen, 80 F.3d at 1281).
“This is not an easy requirement to meet: ‘The
clear and convincing standard is the most demanding required
in Social Security cases.'” Id. at 1015
(quoting Moore v. Comm'r of Soc. Sec. Admin.,
278 F.3d 920, 924 (9th Cir. 2002)). “In evaluating the
claimant's testimony, the ALJ may use ‘ordinary
techniques of credibility evaluation.'” Molina
v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (quoting
Turner v. Comm'r of Social Sec., 613 F.3d 1217,
1224 n.3 (9th Cir. 2010)). “For instance, the ALJ may
consider inconsistencies either in the claimant's
testimony or between the testimony and the claimant's
conduct, unexplained or inadequately explained failure to
seek treatment or to follow a prescribed course of treatment,
and whether the claimant engages in daily activities
inconsistent with the alleged symptoms[.]” Id.
(internal citations omitted).
found plaintiff's pain and symptom statements less than
credible because of inconsistencies between her statements,
her daily activities and the medical evidence.While
these are proper reasons for an ALJ to find a claimant's
statements less than credible, the ALJ erred as to
plaintiff's credibility because he did not explain this
finding. “General findings are insufficient; rather,
the ALJ must identify what testimony is not credible and what
evidence undermines the claimant's complaints.”
Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998)
(quoting Lester v. Chater, 81 F.3d 821, 834 (9th
Cir. 1995)). After stating that he found plaintiff's
statements less than credible because they were inconsistent
with her daily activities and the medical evidence, the ALJ
proceeded to compare statements made by plaintiff's
sister, Ms. Davis, with other evidence in the record. The ALJ
did not cite to any statements made by plaintiff
that the ALJ found to be inconsistent with her daily
activities and the medical evidence. Thus, the ALJ erred as
to plaintiff's credibility.
arguments to the contrary are unavailing. First, defendant
argues that the ALJ properly found that plaintiff's
statements were inconsistent with the medical evidence. For
example, defendant contends that plaintiff's statements
as to her hearing loss were inconsistent with her
objective test results. Also by way of example, defendant
cites to the testing done by Dr. Nockleby which showed that
plaintiff had average verbal comprehension skills, average
IQ, and average working memory index and the testing
done by Dr. Mather which showed that her cognitive
functioning, linear and logical thought processes, memory,
attention, and concentration were intact or within normal
limits. Defendant contends that
plaintiff's statements about her cognitive difficulties
were inconsistent with these objective test findings.
problem with defendant's argument is that the ALJ did not
set out any of these inconsistencies. All the ALJ did was
make a conclusory, unexplained finding that plaintiff's
statements were inconsistent with the medical evidence. Such
a general finding is not sufficient.
next argues that the ALJ properly found that plaintiff's
statements were inconsistent with her daily activities and
points out that the ALJ noted that plaintiff could take care
of her personal needs, shop, do errands, and do
housework. But the ALJ did not explain how
plaintiff's ability to do these daily activities was
inconsistent with her pain and symptom statements.
also argues that the ALJ properly discredited plaintiff's
statements because treatment for her hearing loss was
effective. A favorable response to treatment may be a reason
to find a claimant's pain and symptom statements less
than credible. Tommasetti v. Astrue, 533 F.3d 1035,
1040 (9th Cir. 2008). But, this was not a reason that was
given by the ALJ. “Long-standing principles of
administrative law require [the court] to review the
ALJ's decision based on the reasoning and factual
findings offered by the ALJ-not post hoc
rationalizations that attempt to intuit what the adjudicator
may have been thinking.” Bray, 554 F.3d at
1225. The court may only review “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.”
Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007).
next argues that the ALJ properly discounted plaintiff's
statements because they were inconsistent with the opinions
of Dr. Mather and Dr. Nockleby. An ALJ may discount a
claimant's symptom testimony that is “unsupported
by . . . any persuasive reports of his doctors[.]”
Batson v. Comm'r of Social Sec. Admin., 359 F.3d
1190, 1196 (9th Cir. 2004). However, this was not a ...