Mongelluzzo v. Colvin

Filing 27

DECISION AND ORDER, this matter is reversed and remanded to the Commissioner of Social Security for the calculation and award of benefits; the Order 26 setting oral argument in this matter is vacated. Signed by Judge Sharon L Gleason on 4/23/14. (REW)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
CAMEO DAWN MONGELLUZZO,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security
Administration,
Defendant.

Case No. 2:13-cv-00610-SLG
DECISION AND ORDER

Cameo Dawn Mongelluzzo initiated this Social Security action in federal district
court after exhausting administrative remedies. The matter has been fully briefed by the
parties. 1 Ms. Mongelluzzo requested oral argument; 2 however, oral argument was not
necessary to the Court’s resolution of the issues raised by Ms. Mongelluzzo. For the
reasons set forth below, this matter will be reversed and remanded to the Commissioner
of Social Security for the calculation and award of benefits, and the oral argument that
was previously scheduled will be vacated.

1

Docket 19 (Mongelluzzo Br.); Docket 21 (Def. Br.); Docket 25 (Reply).

2

Docket 19 (Mongelluzzo Br.).

FACTUAL AND PROCEDURAL BACKGROUND
Ms. Mongelluzzo is 40 years old and is a high school graduate. 3 At different
times between May 2002 and May 2009, she worked as a pizza delivery person, a
grocery store clerk, a janitor, and an assistant at a charter school. 4 From May 2009 to
January 2010, she worked as a teacher at a daycare. 5 Shortly thereafter, in the spring
of 2010, she enrolled full time at Paradise Valley Community College. 6 For each of the
spring and fall semesters in 2010 and 2011, Ms. Mongelluzzo took 10 or 12 credit-hours
of classes. 7 As of December 2011, she had earned approximately 50 of the 65 credits
needed for an associate degree in fine arts. 8 She hopes to become a photographer. 9
Ms. Mongelluzzo suffers from certain mental impairments, which are the focus of
this appeal. 10 The record reflects that Ms. Mongelluzzo has a history of childhood
abuse, 11 and around 2004, she attempted suicide on two different occasions. 12 Ms.

3

See Docket 11 (Administrative Record [hereinafter A.R.]) 51, 57.

4

A.R. 243.

5

A.R. 58, 62, 243.

6

A.R. 58–59. It appears Ms. Mongelluzzo took some college classes before the spring of 2010.
See, e.g., A.R. 386 (11/10/08 Behavioral Service Health Plan) (“Cameo is currently working full
time as a teacher in a day care for children. She is currently attending classes.”).
7

A.R. 55–56, 58–59. Twelve credit-hours is considered full time. A.R. 59.

8

A.R. 55–56.

9

A.R. 55.

10

See Docket 19 at 4 (Mongelluzzo Br.) (“Although Mongelluzzo suffers from some physical
impairments, her mental impairments are the focus of this appeal.”).
11

A.R. 391, 405.

12

A.R. 405.

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Mongelluzzo has sought treatment for her mental impairments, but symptoms persist
even with medication.
I.

Ms. Mongelluzzo’s Application for Supplemental Security Income.
On April 9, 2010, Ms. Mongelluzzo filed an application for Supplemental Security
Income (“SSI”) 13 with the State of Arizona Disability Determination Services (“DDS”)
based on a disability beginning that same day. 14 She listed several impairments that
limit her ability to work, including the following mental impairments: depression,
dissociative identity disorder, anxiety disorder, borderline personality disorder, post
traumatic stress disorder (“PTSD”), and seriously mentally ill diagnosis. 15 Both Ms.
Mongelluzzo and her husband submitted function reports in support of Ms.
Mongelluzzo’s application. 16
On August 12, 2010, DDS denied Ms. Mongelluzzo’s application for SSI. 17 The
following month, Ms. Mongelluzzo filed a request for reconsideration, 18 which was
denied on November 8, 2010. 19 On January 18, 2011, Ms. Mongelluzzo requested a

13

A.R. 187. That same day, Ms. Mongelluzzo also filed an application for disability insurance
benefits (“DIB”). A.R. 183. However, the administrative law judge determined that Ms.
Mongelluzzo was not eligible for DIB because she could not prove she was disabled prior to the
expiration of her disability insured status in 1995. See A.R. 23, 47–48. Ms. Mongelluzzo does
not contest this finding on appeal. See Docket 19 at 3 (Mongelluzzo Br.).
14

A.R. 203. Ms. Mongelluzzo alleged a disability onset date of February 15, 2005 in her
application, but she later amended this to April 9, 2010. A.R. 48, 187, 203.

15

A.R. 219.

16

A.R. 206–13, 233–42.

17

A.R. 122.

18

A.R. 126.

19

A.R. 131.

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hearing before an administrative law judge (“ALJ”). 20 Ms. Mongelluzzo’s hearing took
place on December 15, 2011 in Phoenix, Arizona before ALJ Earl C. Cates, Jr. 21
II.

The Administrative Record.
The administrative record before the ALJ reflects the following:
A. Ms. Mongelluzzo’s Mental Health Treatment Records (2006–2011).
In November 2006, Ms. Mongelluzzo began receiving treatment through

Arizona’s mental health care system, variously called Value Options, Magellan, or
Southwest Network. 22

She met with a doctor on at least 10 occasions from 2006

through 2008. 23 Ms. Mongelluzzo’s September 24, 2007 “At Risk Crisis Plan” indicates
that she suffers from PTSD and dissociative identity disorder, with symptoms including
“startle response, avoidance, triggers and flashbacks, depression and dissociative
episodes[,] anxiety and blackouts.”24 However, the records from 2006 to 2008 also
reflect that Ms. Mongelluzzo’s mental condition generally was stable. 25 On several

20

A.R. 135.

21

A.R. 47.

22

A.R. 326–92, 428–42, 486–523.

23

See A.R. 357–92.

24

A.R. 391. Dr. Jehangir Bastani later added a diagnosis of borderline personality disorder.
See A.R. 345.

25

See, e.g., A.R. 381–82 (1/24/07 treatment notes) (indicating that Ms. Mongelluzzo stated she
was “feeling very good” and that she is “stable” with “anxiety symptoms in control”); A.R. 375–76
(6/29/07 treatment notes) (stating Ms. Mongelluzzo’s mood is “good” and she “feels overall
stable”); A.R. 366 (3/28/08 treatment notes) (indicating Ms. Mongelluzzo’s dissociative identity
disorder and PTSD are “stable”); see generally A.R. 357–92.

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visits, she was given a Global Assessment Functioning (“GAF”) score, which was
always between 60 and 70. 26
On March 13, 2009, Ms. Mongelluzzo met with Dr. Stolzberg, whose notes
indicate that Mr. Mongelluzzo is “doing well” and “able to manage work – school –
family.” 27 Dr. Stolzberg gave Ms. Mongelluzzo a GAF score of 80. 28
On June 3, 2009, Ms. Mongelluzzo had her first appointment with Dr. Jehangir
Bastani. 29 Dr. Bastani’s notes from that visit indicate the severity Ms. Mongelluzzo’s
symptoms was “normal.” 30 However, when Ms. Mongelluzzo met with Dr. Bastani on
August 6, 2009, Ms. Mongelluzzo’s mental condition had worsened considerably. Dr.
Bastani’s notes indicate that Ms. Mongelluzzo “disintegrated after the early part of the
interview.” 31 She “abruptly stopped, got drowsy and spoke in a soft voice: not feeling
good.” 32 Her head slumped to the left side, her speech became slurred, and Dr. Bastani
26

See A.R. 360, 364, 366, 370, 376, 380, 382, 384. GAF ranks a person’s psychological,
social, and occupational functioning on a scale of 0 to 100, in groups of ten. See Docket 19 at 8
n.11 (Mongelluzzo Br.) (citing Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of
Mental Disorders (Michael B. First ed., 4th ed. 2000) [hereinafter DSM]); Docket 21 at 3 n.5
(Def. Br.) (same). A GAF score between 61 and 70 indicates a person is “generally functioning
pretty well.” DSM at 34. A GAF score between 51 and 60 indicates “[m]oderate symptoms [or] .
. . moderate difficulty in social, occupational, or school functioning.” Id. Ms. Mongelluzzo points
out in her opening brief that “the latest DSM edition drops the GAF rating system.” Docket 19 at
8 n.11 (Mongelluzzo Br.).
27

A.R. 355.

28

A.R. 356. A GAF score between 71 and 80 indicates a person’s symptoms are “transient and
expectable reactions to psychological stressors . . . no more than slight impairment in social,
occupational, or school functioning.” DSM at 34.
29

A.R. 351–52.

30

A.R. 351.

31

A.R. 350.

32

A.R. 349.

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observed the “emergence of [her] alternate personality.” 33 Dr. Bastani characterized the
severity of Ms. Mongelluzo’s symptoms as “severe,” and he gave her a GAF score of
30. 34 But two weeks later, on August 19, 2009, Dr. Bastani observed a “change for the
better” in Ms. Mongelluzzo’s condition and characterized the severity of her symptoms
as “mild.”35
From October 2009 through April 2011, Ms. Mongelluzzo met with Dr. Bastani on
at least 12 occasions. 36

Dr. Bastani generally characterized the severity of Ms.

Mongelluzzo’s symptoms as either “mild” or “moderate,” and he consistently assessed a
GAF score of 50 or 52. 37 Dr. Bastani’s notes from September 22, 2010 state that Ms.
Mongelluzzo “still is highly stressed” and “not capable of working full time over a period
of time.” 38

And his notes from April 20, 2011—the last patient visit between Ms.

Mongelluzzo and Dr. Bastani that is documented in the record—indicate that Ms.
Mongelluzzo suffered from ongoing nightmares, was paranoid and delusional, and was
stressed by her college classes. 39
33

A.R. 349–50.

34

A.R. 350. A GAF score between 21 and 30 indicates “serious impairment in communication
or judgment [or] . . . inability to function in almost all areas.” DSM at 34.

35

A.R. 347–48.

36

See A.R. 326–46, 435–38, 497–523. Ms. Mongelluzzo also met with Dr. Suhaila Al Haddad
on November 15, 2010. A.R. 515.

37

See A.R. 326–46, 435–38, 497–523. A GAF score between 41 and 50 indicates “[s]erious
symptoms [or] . . . serious impairment in social, occupational, or school functioning.” DSM at
34. A GAF score between 51 and 60 indicates “[m]oderate symptoms [or] . . . moderate
difficulty in social, occupational, or school functioning.” Id.

38

A.R. 522.

39

A.R. 497–98.

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On August 1, 2011, Ms. Mongelluzzo met with Dr. Jon Allison, whose notes state
that Ms. Mongelluzzo’s “psychiatric symptoms are controlled at the present time.” 40 But
on October 27, 2011—the last mental health check-up documented in the record—Dr.
Beth Wadman observed that Ms. Mongelluzzo “seems to be dissociated several times
during the Interview.” 41

Dr. Wadman also noted that Ms. Mongelluzzo was “very

worried that she will have an episode of memory loss that she has had in the past.” 42
Dr. Wadman characterized the severity of Ms. Mongelluzzo’s symptoms as
“moderate.”43
B. Other Medical Evidence.
i.

Consultative Examination by Dr. Jacqueline Worsley (June 18, 2010).

After Ms. Mongelluzzo filed her application for SSI, DDS referred her to Dr.
Jacqueline Worsley for a psychological consultative examination (“CE”), which took
place on June 18, 2010. 44 Dr. Worsley evaluated Ms. Mongelluzzo’s mental health
“based on a clinical interview, mental status assessment, Magellan records, and the
Function Report.” 45

40

A.R. 489.

41

A.R. 486.

42

A.R. 486.

43

A.R. 487.

44

A.R. 404–09.

45

A.R. 404.

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Dr. Worsley diagnosed Ms. Mongelluzzo with PTSD and dysthymic disorder, and
a rule-out of dissociative identity disorder and borderline personality disorder. 46 Dr.
Worsley’s report states: “[Ms. Mongelluzzo’s] symptoms appear to pose difficulties with
her being consistent in regards to school, work, and her presence in the family. [Ms.
Mongelluzzo] reported experiencing trauma during her childhood, but she did not wish
to disclose details during this examination.” 47

The report further states that Ms.

Mongelluzzo’s “long-term memory appeared intact,” but “her ability to retain information
for shorter periods appeared compromised.” 48 Dr. Worsley opined that “[i]n a work
setting, [Ms. Mongelluzzo’s] ability to concentrate and remember some information
would be compromised.” 49
ii. Case Analysis by Dr. Heather Barrons (August 2, 2010).
On August 2, 2010, Dr. Heather Barrons reviewed Ms. Mongelluzzo’s file for
DDS. 50 In this state agency review, Dr. Barrons opined that Ms. Mongelluzzo appears
to have a severe medically determinable mental impairment; however, “she appears to
retain the ability to carry out at least simple unskilled work tasks.”51 Ten days after Dr.
Barrons conducted her case analysis, DDS denied Ms. Mongelluzzo’s SSI application. 52

46

A.R. 407.

47

A.R. 407.

48

A.R. 408.

49

A.R. 408.

50

A.R. 93–94.

51

A.R. 94.

52

A.R. 122.

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iii. Case Analysis by Dr. Sheri Tomak (November 4, 2010).
On November 4, 2010, Dr. Sheri Tomak reviewed Ms. Mongelluzzo’s file for DDS
as part of Ms. Mongelluzo’s request for reconsideration of her SSI application. 53 In this
second state agency review, Dr. Tomak concluded that although the available data
suggests Ms. Mongelluzzo has some moderate limitations as a result of her mental
impairments, she “is able to meet the basic mental demands of competitive,
remunerative, unskilled work on a sustained basis.”54

Four days after Dr. Tomak

conducted

Mongelluzzo’s

her

case

analysis,

DDS

denied

Ms.

request

for

reconsideration. 55
iv. Assessment by Dr. Beth Wadman (December 7, 2011).
Roughly one week prior to Ms. Mongelluzzo’s hearing before the ALJ, Dr. Beth
Wadman completed a two-page form assessment of Ms. Mongelluzzo’s ability to
perform work-related activity. 56 Dr. Wadman opined that Ms. Mongelluzzo’s mental
impairments impose “severe” limitations on her ability to “[r]espond to customary work
pressures” and to “[c]omplete a normal workday/workweek without interruptions from
psychologically based symptoms and to perform at a consistent pace without an
unreasonable number/length of rest periods.” 57 Dr. Wadman further opined that Ms.
53

A.R. 113–14.

54

A.R. 113–14.

55

A.R. 131.

56

A.R. 524–25. Dr. Wadman treated Ms. Mongelluzzo on October 27, 2011. See supra text
accompanying notes 41–43. And Ms. Mongelluzzo testified at the hearing that Dr. Wadman
was prescribing her medications for her mental impairments. A.R. 70–71.
57

A.R. 524–25. The form Dr. Wadman filled out defines “severe” as “extreme impairment of
ability to function.” A.R. 524.

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Mongelluzzo’s mental impairments impose “moderately severe” limitations on her ability
to perform a variety of other tasks on a sustained basis in a routine work setting,
including simple and repetitive tasks. 58
C. Non-Medical Evidence.
i.

Certification of Psychological Disability (September 22, 2010).

Dr. Bastani completed a Certification of Psychological Disability dated September
22, 2010 on Ms. Mongelluzzo’s behalf for Paradise Valley Community College. 59 Dr.
Bastani indicated that Ms. Mongelluzzo’s mental impairments moderately impact her
ability to engage in numerous major life activities, including concentrating, memory,
managing distractions, attending class regularly and on time, and stress management. 60
Dr. Bastani stated that Ms. Mongelluzzo’s symptoms persist with medication, and he
described her prognosis as “fair.” 61 He further stated that Ms. Mongelluzzo’s memory
and concentration suffer when her anxiety is high; he recommended that Ms.
Mongelluzzo be given adequate time to complete assignments and suggested that note
taker services would be helpful. 62
ii. Statement of Mike Zajac (January 5, 2011).

58

See A.R. 524–25. The form Dr. Wadman filled out defines “moderately severe” as “an
impairment which seriously affects ability to function.” A.R. 524.

59

A.R. 526–29. Dr. Bastani also completed a certification dated July 29, 2010. A.R. 530–33.
This earlier certification does not differ significantly from the one dated September 22, 2010.

60

A.R. 528.

61

A.R. 528.

62

A.R. 529.

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Mike Zajac, one of Ms. Mongelluzzo’s teachers at Paradise Valley Community
College, wrote a letter dated January 5, 2011 discussing accommodations he made for
Ms. Mongelluzzo in an art history class. 63 The letter states that “[d]uring administration
of the class exams, which are conducted via digital slides with timers, [Mr. Zajac]
noticed that [Ms. Mongelluzzo] was having difficulty with the speed of the material.” Mr.
Zajac decided to allow Ms. Mongelluzzo to take her exams via a paper copy, and he
reminded her that she had the entire class period to complete the exams.
Subsequently, Ms. Mongelluzzo’s “performance on the exams . . . markedly
improved.” 64 The letter concludes:
[Ms. Mongelluzzo] has indicated to me that she will likely be seeking
assistance from the [Disability Resource Center] in regards to a note taker
and, potentially, extra time on examinations in her other classes. I would
recommend both of these adjustments for her, as I believe that they will
significantly positively impact her performance in a course. 65
III.

Testimony at the Hearing.
Ms. Mongelluzzo’s hearing before the ALJ lasted approximately one and one-half

hours. 66 Ms. Mongelluzzo, represented by an attorney, and an independent vocational
expert (“VE”) testified. 67
Ms. Mongelluzzo testified that she, along with her husband and their four
children, lives in a house with her parents. 68 She stated that she left her job as a
63

A.R. 297.

64

A.R. 297.

65

A.R. 297.

66

See A.R. 47, 81.

67

A.R. 47.

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daycare teacher in January 2010 because she began “having trouble remembering
going to and coming home from work.” 69 She stated she enrolled in college full time in
the spring of 2010 and has not made any work attempts since then. 70 At this point, the
ALJ had Ms. Mongelluzzo leave the room in order to have an off-record discussion with
Ms. Mongelluzzo’s attorney. 71 Back on the record, the following dialogue ensued:
ALJ: Okay. We had the claimant go outside the hearing and Counsel
and I discussed this case. And it appears to me from the testimony the
claimant is attending school on a full time basis.
And she’s been doing that since the application for SSI. She’s
made a lifestyle choice to attend school rather than work. And in the
previous three years she was able to work at the substantial gainful
activity level. And –
Atty: As the Court is aware I’d like to make –
ALJ: Okay.
Atty: -- a motion at this point.
ALJ: Don’t interrupt me, Counsel, until I finish.
Atty: I wasn’t aware you’d finished.
ALJ: Okay. I’m not finished. I’ll let you – I’ll give you an opportunity to
say what you want. And what my plan is to finish the testimony here and I
know Counsel is not happy with my assessment that she is attending
school on a full time basis rather than working so I’m going to give
Counsel the opportunity to speak his mind. Go ahead, Counsel.

68

A.R. 52–53.

69

A.R. 58; see also A.R. 73 (“I would show up at work not remembering leaving and it was not
always my day to work. Other times in work I would not know how long I had been in a class or
who had picked up the children.”).

70

A.R. 58–59. Ms. Mongelluzzo testified that her husband is also a full-time student. A.R. 55.

71

See A.R. 59.

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Atty: Thank you, Judge. After we went off the record to quote the ALJ
directly the chances of me granting this case are slim to none. That was
based on what the ALJ just stated about the claimant going to school. I
pointed out that the regulations specifically say that the Agency will not
[judge] a claimant’s ability to work based on the ability to go to school.
That said the point is that the ALJ has already pre-judged this case
by telling me the chances are slim to none in advance of hearing one
single word of the claimant’s symptom testimony. I therefore move that
the ALJ recuse himself from hearing this case.
ALJ: Okay. I’m going to deny the request to recuse myself. I haven’t
finished with the testimony yet but that’s what I’m looking at here. It looks
to me that the claimant has made an exchange that she’s going to school
full time. She’s just not available for work. 72
Following this exchange, the ALJ had the VE classify Ms. Mongelluzzo’s past work and
then continued to question Ms. Mongelluzzo. 73
Ms. Mongelluzzo testified that the primary medical conditions that prevent her
from working are her “mental diagnoses” of “[d]epression, anxiety, borderline personality
disorder, dissociative identity disorder, [PTSD].” 74 She described her class schedule
and indicated that it takes her longer than is typical to finish her homework. 75 With
respect to her daily routine, she testified that she and her husband try to coordinate their
schedules so that one of them is available to care for the children. 76 She stated that in
a typical week, she cooks five meals, does thirteen loads of laundry, sweeps and mops

72

A.R. 59–60.

73

See A.R. 60–62.

74

A.R. 63. Ms. Mongelluzzo also indicated the she suffers from certain physical impairments,
including carpal tunnel syndrome, obesity, high cholesterol, high blood pressure, and insomnia.
A.R. 63–64.

75

See A.R. 64–67.

76

A.R. 67.

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the floors, shops for groceries every day, and drives thirty miles. 77 She also does a lot
of reading for school. 78
Ms. Mongelluzzo testified that Dr. Wadman was prescribing her medications for
her mental disorders. 79 She stated she was taking Buspar, Clozapine, Lexapro, and
Seroquel. 80 With respect to symptoms, Ms. Mongelluzzo testified that three to four
times per month, she has blank spells that last several hours in which she “will go
places, do things and have no memory of doing so.” 81

She further testified that

watching television shows sometimes “trigger[s] something,” and she has thoughts that
the people on television are talking about her. 82 Additionally, she has anxiety attacks
lasting approximately one hour that involve shortness of breath, a pain in her arm,
dizziness, shakiness, and an inability to think or act. 83 Ms. Mongelluzzo stated she
experiences these symptoms even while taking medication. 84 She also testified that the
symptoms have impacted her performance in school. 85
77

A.R. 68–69.

78

A.R. 68.

79

A.R. 70.

80

A.R. 71.

81

A.R. 71–72.

82

A.R. 73.

83

A.R. 74.

84

A.R. 74.

85

A.R. 72 (“I had – I was getting a failing grade in math and I had to talk with the school and be
removed from that class. My doctor had to write me a note saying that the stress and workload
were causing, affecting my dissociativeness.”). Ms. Mongelluzzo testified that she generally
makes B and C grades in school. A.R. 56.

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At the end of the hearing, the ALJ posed hypothetical questions to the VE. The
VE testified that a hypothetical person of Ms. Mongelluzzo’s age, education, and work
experience who requires “a sit stand option throughout an eight hour workday” and who
has the psychological limitations identified in Dr. Worsley’s CE report would not be able
to perform Ms. Mongelluzzo’s past jobs because none of those jobs “would allow for the
sit stand option.” 86 However, the VE testified that there are other jobs that exist in the
regional and national economies that this hypothetical individual could perform,
including cashier, assembly worker, quality control inspector, and office helper. 87
Ms. Mongelluzzo’s attorney then proceeded to question the VE. The attorney
noted that Dr. Worsley did not quantify the extent to which Ms. Mongelluzzo’s ability to
concentrate and remember some information would be compromised in a work
setting. 88 The attorney then had the following exchange with the VE:
Atty: Without a quantification of how much that compromise is can you
really state as to the effect that those limitations would have on a person’s
ability to work? If I were to say for example that the ability to concentrate
and remember information would be mildly compromised would that result
in a different answer from you as opposed to saying the ability to
concentrate and remember some information would be severely
compromised?
VE:

Right, there would be a big difference in that.

Atty: And we don’t know from this language whether it’s mild or whether
it’s severe, do we?

86

A.R. 76–77. The VE also assumed the hypothetical individual had certain other physical
limitations that are not relevant in this appeal. See A.R. 75–76.
87

A.R. 77.

88

See A.R. 78; cf. supra text accompanying notes 48–49 (describing Dr. Worsley’s CE report)

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VE:

No. 89

The attorney then asked the VE whether a hypothetical individual with the limitations
described in Dr. Wadman’s assessment would be able to sustain work on a regular and
continuing basis, and the VE responded, “They could not.” 90
IV.

The ALJ’s Decision and Ms. Mongelluzzo’s Appeal.
After considering all the evidence, the ALJ found that Ms. Clayton was not under

a disability from April 9, 2010 through December 23, 2011, the date of the ALJ’s
decision. 91

On January 25, 2013, the Social Security Appeals Council denied Ms.

Mongelluzzo’s request for review. 92
Ms. Mongelluzzo timely filed this action on March 25, 2013, seeking judicial
review of the ALJ’s findings pursuant to 42 U.S.C. § 405(g). 93 Ms. Mongelluzzo asks
the Court to reverse the ALJ’s decision and remand for the award of disability benefits. 94
Defendant Commissioner of Social Security opposes the requested relief and asks the
Court to dismiss the Complaint and enter judgment affirming the ALJ’s decision. 95

89

A.R. 78–79.

90

A.R. 79–80; cf. supra text accompanying notes 57–58 (describing Dr. Wadman’s
assessment).
91

A.R. 31.

92

A.R. 1.

93

Docket 1 (Compl.).

94

Docket 1 at 11 (Compl.); see also Docket 19 at 42 (Mongelluzzo Br.).

95

Docket 10 at 2 (Answer); see also Docket 21 at 23 (Def. Br.).

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DISCUSSION
The Social Security Act provides for the payment of SSI to disabled individuals
who satisfy certain income and resource eligibility criteria. 96 Disability is defined as an
inability “to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous period of not less than 12
months.”97
The Social Security Commissioner has established a five-step process for
determining disability. 98 At Steps 1 through 4, the claimant bears the burden of proving
her entitlement to disability benefits; at Step 5, the burden shifts to the Social Security
Commissioner to show there is gainful activity the claimant can perform. 99
At Step 1, the claimant must show she is not currently engaged in substantial
gainful activity. 100 At Step 2, the claimant must demonstrate that her impairment is
“severe,” i.e., is an impairment that “significantly limits [her] physical or mental ability to
do basic work activities” that has lasted or is expected to last for at least twelve

96

42 U.S.C. §§ 1381–1382.

97

42 U.S.C. § 1382c(a)(3)(A). This definition of disability for SSI purposes mirrors the definition
of disability for DIB purposes. See 42 U.S.C. § 423(d)(1)(A). Disability regulations for the SSI
and DIB programs also mirror each other. Accordingly, case law dealing with one program is
generally relevant to both programs.

98

20 C.F.R. § 416.920(a)(4).

99

Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007) (quoting Tidwell v. Apfel, 161 F.3d 599,
601 (9th Cir. 1998)).
100

20 C.F.R. § 416.920(a)(4)(i).

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months. 101 At Step 3, if the claimant proves her impairment is listed in 20 C.F.R. Part
404, Subpart P, Appendix 1, then the ALJ must conclude the claimant is disabled. 102 If
not, then the ALJ determines the claimant’s residual functional capacity (“RFC”), which
is the most work the claimant can still do despite her limitations. 103 At Step 4, the ALJ
uses the RFC to determine whether the claimant is capable of performing her past
relevant work. 104 If the claimant proves she cannot perform her past relevant work, then
at Step 5, the Social Security Commissioner must show—based on the claimant’s RFC,
age, education, and work experience—that the claimant is capable of performing other
work that exists in the national economy. 105 If the claimant can make an adjustment to
such other work, she is not disabled. If she cannot make such an adjustment, then she
is considered disabled. 106
In this case, at Step 1 the ALJ found Ms. Mongelluzzo has not engaged in
substantial gainful activity since April 9, 2010. 107 At Step 2, the ALJ found that Ms.
Mongelluzzo has the following severe impairments: “PTSD, dysthymic disorder,

101

20 C.F.R. § 416.920(a)(4)(ii), (c); 20 C.F.R. § 416.909.

102

20 C.F.R. § 416.920(a)(4)(iii).

103

20 C.F.R. § 416.945(a)(1). The ALJ makes the RFC determination based on “all of the
relevant medical and other evidence,” including “descriptions and observations of [the
claimant’s] limitations” provided by the claimant and others. Id. § 416.945(a)(3).

104

20 C.F.R. § 416.945(a)(4)(iv).

105

20 C.F.R. § 416.945(a)(4)(v).

106

Id.

107

A.R. 25.

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dissociative disorder, borderline personality disorder, and obesity.” 108 At Step 3, the
ALJ found that Ms. Clayton does not have an impairment or combination of impairments
listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. 109
The ALJ then determined that Ms. Clayton has the RFC to perform light work 110
“with alternate sitting and standing required throughout an 8-hour workday, and the
ability to perform simple and repetitive tasks on a regular basis with regular
supervision.” 111 At Step 4, the ALJ relied on the testimony of the VE to determine that
Ms. Mongelluzzo is not capable of performing her past relevant work because those
jobs would not allow Ms. Mongelluzzo to alternate between sitting and standing
throughout the workday. 112

But at Step 5, the ALJ found that “[c]onsidering [Ms.

Mongelluzzo’s] age, education, work experience, and [RFC], there are jobs that exist in
significant numbers in the national economy that [she] can perform.” 113 Specifically,
based on the testimony of the VE, the ALJ concluded that Ms. Mongelluzzo can perform

108

A.R. 25.

109

A.R. 25.

110

“Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying
of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in
this category when it requires a good deal of walking or standing, or when it involves sitting
most of the time with some pushing and pulling of arm or leg controls. To be considered capable
of performing a full or wide range of light work, [a claimant] must have the ability to do
substantially all of these activities.” 20 C.F.R. § 416.967(b).

111

A.R. 26. The ALJ also identified certain other physical limitations not relevant to this appeal.

112

A.R. 29–30.

113

A.R. 30.

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the jobs of cashier, quality control inspector, and office helper. 114 Accordingly, the ALJ
ruled that Ms. Mongelluzzo is not disabled under the Social Security Act. 115
I.

Standard of Review.
The ALJ’s denial of benefits to Ms. Mongelluzzo should be set aside “only if it is
not supported by substantial evidence or is based on legal error.” 116

An ALJ’s

determination is based on legal error if the ALJ failed to apply the proper legal
standard. 117 Substantial evidence is “such relevant evidence as a reasonable mind
might accept as adequate to support [the ALJ’s] conclusion.” 118 This Court “review[s]
only 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.” 119
II.

Analysis.
Ms. Mongelluzzo asserts the ALJ’s decision should be reversed because (1) the

ALJ erred by rejecting Dr. Wadman’s opinion in favor of the opinions of non-treating and
non-examining psychologists; (2) the ALJ erred by rejecting Ms. Mongelluzzo’s
symptom testimony without providing clear and convincing reasons; (3) the ALJ’s
determination of Ms. Mongelluzzo’s work capacities is not supported by substantial
evidence; and (4) the ALJ exhibited bias when he stated, based on the fact that Ms.
114

A.R. 30–31.

115

A.R. 31.

116

Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012) (citing 42 U.S.C. § 405(g)).

117

See Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005) (“We will affirm . . . if the ALJ
applied the proper legal standard . . . .”).
118

Hill, 698 F.3d at 1159 (quoting Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997)).

119

Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007).

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Mongelluzzo was enrolled in school full time, the chances were “slim to none” that he
would issue a favorable decision. 120 The first two of these arguments concern the
section of the ALJ’s decision in which he explains his RFC determination. The Court
agrees with Ms. Mongelluzzo that in explaining his RFC determination, the ALJ provided
legally insufficient reasons for rejecting Dr. Wadman’s opinion and Ms. Mongelluzzo’s
symptom testimony, and the Court concludes that these errors warrant remanding for
calculation and award of benefits. The Court does not reach Ms. Mongelluzzo’s third
and fourth arguments.
A. In explaining his RFC determination, the ALJ provided legally insufficient
reasons for rejecting Dr. Wadman’s opinion and Ms. Mongelluzzo’s
symptom testimony.
“In determining a claimant’s RFC, an ALJ must consider all relevant evidence in
the record, including, inter alia, medical records, lay evidence, and ‘the effects of
symptoms . . . that are reasonably attributed to a medically determinable
impairment.’” 121 Here, Ms. Mongelluzzo asserts the ALJ erred in his consideration of
the evidence by improperly discounting Dr. Wadman’s opinion and Ms. Mongelluzzo’s
symptom testimony. 122
i.

The ALJ provided legally insufficient reasons for rejecting Dr. Wadman’s
opinion.

Ms. Mongelluzzo asserts the ALJ erred “by rejecting the assessment of the
treating psychiatrist, Beth Wadman, M.D., instead purporting to rely upon the opinion of
120

Docket 19 at 1–2, 19–39 (Mongelluzzo Br.).

121

Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006) (quoting SSR 96-8p, 1996
WL 374184, at *5 (July 2, 1996)); see also 20 C.F.R. § 416.945(a).

122

Docket 19 at 19–35 (Mongelluzzo Br.).

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a one-time examiner, Jacqueline Worsley, Psy.D., and unnamed state agency
employees who reviewed a limited record as part of the initial and reconsideration
determinations, but did not perform personal examinations.” 123
“By rule, the Social Security Administration favors the opinion of a treating
physician over non-treating physicians.” 124 The Ninth Circuit has held that to reject the
uncontradicted opinion of a treating doctor, an ALJ “must state clear and convincing
reasons that are supported by substantial evidence.” 125 And to reject the opinion of a
treating doctor that is contradicted by another doctor’s opinion, an ALJ must provide
“specific and legitimate reasons that are supported by substantial evidence.” 126 “The
ALJ can ‘meet this burden by setting out a detailed and thorough summary of the facts
and conflicting clinical evidence, stating his interpretation thereof, and making
findings.’” 127
Here, Dr. Wadman opined in her assessment that Ms. Mongelluzzo’s mental
impairments seriously affect Ms. Mongelluzzo’s ability to perform even simple and
repetitive tasks on a sustained basis in a routine work setting. 128

This opinion is

contradicted by Dr. Barrons’s and Dr. Tomak’s case analyses, which state that Ms.
123

Docket 19 at 19 (Mongelluzzo Br.).

124

Orn, 495 F.3d at 631 (citing 20 C.F.R. § 404.1527). 20 C.F.R. § 404.1527 is a DIB
regulation; the corresponding SSI regulation is 20 C.F.R. § 416.927.

125

Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005).

126

Id.; cf. 20 C.F.R. § 416.927(c)(2) (“We will always give good reasons in our notice of
determination or decision for the weight we give your treating source’s opinion.”).

127

Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (quoting Magallanes v. Bowen, 881
F.2d 747, 751 (9th Cir. 1989)).
128

See supra note 58 and accompanying text.

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Mongelluzzo is able to perform simple, unskilled work. 129 Accordingly, the Court must
determine whether the ALJ provided specific and legitimate reasons supported by
substantial evidence for discounting Dr. Wadman’s opinion. 130
The ALJ gave only the following one-sentence explanation for why he discounted
Dr. Wadman’s opinion: “[Dr. Wadman’s] opinion was given less weight because it is
unsupported by the greater objective record and inconsistent with the claimant’s
reported level of functioning.” 131

The two reasons contained in this sentence are

insufficiently specific to support the ALJ’s rejection of Dr. Wadman’s opinion concerning
Ms. Mongelluzzo’s ability to work. 132
With respect to the ALJ’s first reason—that Dr. Wadman’s opinion “is
unsupported by the greater objective record”—the Ninth Circuit addressed another

129

See supra text accompanying notes 51, 54.

130

Ms. Mongelluzzo asserts the “clear and convincing” standard should apply because the only
opinions contradicting Dr. Wadman’s opinion are from non-examining psychologists. See
Docket 19 at 21–22 & n.18 (Mongelluzzo Br.). However, in Widmark v. Barnhart, the Ninth
Circuit held that the opinion of a non-examining state agency reviewing doctor “may suffice to
establish a conflict among the medical opinions,” such that the “specific and legitimate” standard
applies. 454 F.3d 1063, 1066–67 & n.2 (9th Cir. 2006).
131

A.R. 29. The ALJ’s decision credits Dr. Barrons’s and Dr. Tomak’s opinions. A.R. 29.
However, under Ninth Circuit law, although these opinions establish a conflict among the
medical opinions, they alone do not constitute substantial evidence justifying the rejection of Dr.
Wadman’s opinion. See Widmark, 454 F.3d at 1066 n.2. The ALJ’s decision also credits Dr.
Worsley’s opinion. A.R. 29. However, this opinion does not appear to conflict with Dr.
Wadman’s opinion and therefore is not a legitimate basis for discrediting Dr. Wadman’s opinion.
132

See Edlund v. Massanari, 253 F.3d 1152, 1157 (9th Cir. 2001) (“[R]easons must be
‘sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave
to the treating source’s medical opinion and the reasons for that weight.’” (quoting SSR 96-2p
(July 2, 1996))); Bergfeld v. Barnhart, 361 F. Supp. 2d 1102, 1112 (D. Ariz. 2005) (stating ALJ’s
reasons for rejecting treating physician’s opinion—namely, that it was inconsistent “with the
greater objective record” and with claimant’s “own physical activities as she reported them”—
were “insufficiently specific”).

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ALJ’s use of similar language in Embrey v. Bowen. 133 There, the ALJ rejected the
opinions of claimant’s treating and examining physicians, stating “[t]he opinions . . . are
unsupported by sufficient objective findings and contrary to the preponderant
conclusions mandated by those objective findings.” 134 The Ninth Circuit held: “[The
ALJ] merely states that the objective factors point toward an adverse conclusion and
makes no effort to relate any of these objective factors to any of the specific medical
opinions and findings he rejects. This approach is inadequate.” 135 Here, the ALJ’s
statement that Ms. Wadman’s opinion is “unsupported by the greater objective record,”
without further discussion, is likewise inadequate. 136
With respect to the ALJ’s second reason—that Dr. Wadman’s opinion is
“inconsistent with the claimant’s reported level of functioning”—it appears the ALJ
determined that Dr. Wadman’s opinion concerning Ms. Mongelluzzo’s ability to work

133

849 F.2d 418 (9th Cir. 1988).

134

Id. at 420–21.

135

Id. at 422.

136

Defendant asserts that “[b]efore evaluating Dr. Wadman’s opinion, the ALJ evaluated and
cited to treatment records showing that Plaintiff’s symptoms were generally no more than
moderate, and discussed Plaintiff’s ability to attend college classes, and her ability to maintain a
normal and active lifestyle. It is clear that these factors contributed to the ALJ’s evaluation of
Dr. Wadman’s opinion, and the ALJ was not required to repetitively re-list the evidence he had
already discussed.” Docket 21 at 17 (Def. Br.) (citation omitted). The Court disagrees. The
ALJ was required to specify what evidence in the record he relied on in rejecting Dr. Wadman’s
opinion and to explain his decision. See Embrey, 849 F.2d at 421–22 (“The ALJ must do more
than offer his conclusions. He must set forth his own interpretations and explain why they,
rather that the doctors’, are correct.”). And although Defendant provides an analysis in her
briefing to this Court of how the record could support a decision to discount Dr. Wadman’s
opinion, this Court may not rely on that explanation to affirm the ALJ’s decision. See Orn v.
Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (“We review only 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.”).

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was inconsistent with Ms. Mongelluzzo’s description of her “ability to function in daily
activities including raising a family and going to school full time.”137 A conflict between a
doctor’s opinion on a claimant’s ability to work and a claimant’s activities of daily living
can be a legitimate reason for discounting the doctor’s opinion. 138 However, in this case
the ALJ did not provide any explanation of how Ms. Mongelluzzo’s ability to perform
household chores and to attend school would translate into an ability to work full time. 139
Particularly given that the record demonstrates that the stress of school can increase
the severity of Ms. Mongelluzzo’s symptoms, 140 and that Paradise Valley Community
College has taken steps to accommodate Ms. Mongelluzzo’s mental impairments, 141
without additional explanation by the ALJ the Court cannot determine the validity of the
ALJ’s conclusion that there is a conflict between Dr. Wadman’s opinion and Ms.

137

See A.R. 29.

138

See Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 601–03 (9th Cir. 1999)
(upholding ALJ decision discounting doctors’ opinions based in part on claimant’s daily
activities).

139

Cf. Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (“[I]f a claimant engages in
numerous daily activities involving skills that could be transferred to the workplace, the ALJ may
discredit the claimant’s allegations upon making specific findings relating to those activities.”);
Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (“[M]any home activities are not easily
transferable to what may be the more grueling environment of the workplace, where it might be
impossible to periodically rest or take medication.”); Geiger v. Colvin, No. 3:13-cv-05277-KLS,
2014 WL 1328511, at *4 (W.D. Wash. Mar. 31, 2014) (holding ALJ erred in rejecting doctor’s
assessment of claimant’s work-related capabilities based on claimant’s social activities because
ALJ did not explain how those social activities were “indicative of the existence of transferable
work skills”).
140

See supra note 85.

141

See supra Factual & Procedural Background Part II.C (discussing Dr. Bastani’s Certification
of Psychological Disability and Mike Zajac’s statement).

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Mongelluzzo’s description of her daily activities. 142

Accordingly, the ALJ’s second

stated reason for discounting Dr. Wadman’s opinion is also insufficiently specific.
Therefore, the Court concludes that the ALJ erred by failing to provide specific
and legitimate reasons for discounting the opinion of Ms. Mongelluzzo’s treating
physician, Dr. Wadman.
ii. The ALJ provided legally insufficient
Mongelluzzo’s symptom testimony.

reasons

for

discounting

Ms.

Ms. Mongelluzzo asserts the ALJ also erred in his RFC determination by
rejecting Ms. Mongelluzzo’s symptom testimony without providing clear and convincing
reasons. 143
“In assessing the credibility of a claimant’s testimony regarding subjective pain or
the intensity of symptoms, an ALJ engages in a two-step analysis.” 144 First, the ALJ
determines whether there is “objective medical evidence of an underlying impairment
which could reasonably be expected to produce the . . . symptoms alleged.” 145 If there
is such evidence, then at the second step of the analysis, unless there is affirmative
evidence that the claimant is malingering, the ALJ must give “specific, clear and
convincing reasons” before discrediting the claimant’s testimony. 146
142

Cf. Geiger, 2014 WL 1328511, at *4 (“The record also does not clearly establish that
plaintiff’s performance both academically and socially during the period of alleged disability is at
odds with [the doctor’s] assessment of his work-related capabilities.”).

143

Docket 19 at 29 (Mongelluzzo Br.).

144

Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012).

145

Id. (quoting Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009)).

146

Id. (quoting Vasquez, 572 F.3d at 591). Defendant asserts the standard of review that courts
should apply to an ALJ’s credibility findings was articulated by the Ninth Circuit in Bunnell v.
Sullivan. Docket 21 at 10 (Def. Br.) (“The Bunnell court explained that an ALJ’s credibility

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“In evaluating the claimant’s testimony, the ALJ may use ‘ordinary techniques of
credibility evaluation.’” 147 For example, the ALJ may consider the claimant’s reputation
for truthfulness, prior inconsistent statements, inconsistencies between the claimant’s
testimony and her conduct, an unexplained or inadequately explained failure to seek
treatment, the claimant’s daily activities, the claimant’s work record, and testimony from
physicians and third parties concerning the nature, severity, and effect of the claimant’s
symptoms. 148
Here, the ALJ found under step one of the credibility analysis that Ms.
Mongelluzzo’s “medically determinable impairments could reasonably be expected to
cause the alleged symptoms.” 149

Then, at step two, the ALJ found that Ms.

Mongelluzzo’s “statements concerning the intensity, persistence and limiting effects of
these symptoms are not credible to the extent they are inconsistent with the above
residual functional capacity assessment.”150

findings, ‘properly supported by the record, must be sufficiently specific to allow a reviewing
court to conclude the adjudicator rejected the claimant’s testimony on permissible grounds and
did not arbitrarily discredit a claimant’s testimony regarding pain.’” (quoting Bunnell v. Sullivan,
947 F.2d 341, 345–46 (9th Cir. 1991) (en banc))). Defendant maintains that the “clear and
convincing reasons” standard has been articulated by three-judge panels, and only an en banc
panel may overturn Bunnell. Docket 21 at 11 n.9 (Def. Br.). Courts in this district have
previously rejected this argument. See, e.g., Valenzuela v. Colvin, No. CV 11-812-TUC-HCE,
2013 WL 1092886, at *4 n.4 (D. Ariz. Mar. 15, 2013). And in any event, the ALJ’s credibility
determination in this case fails under either standard.
147

Molina, 674 F.3d at 1112 (quoting Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 1224 n.3
(9th Cir. 2010)).
148

See Orn v. Astrue, 495 F.3d 625, 636 (9th Cir. 2007); Thomas v. Barnhart, 278 F.3d 947,
958–59 (9th Cir. 2002).

149

A.R. 28.

150

A.R. 28. The Court agrees with Ms. Mongelluzzo’s assertion that this boilerplate statement is
inappropriate because it “implies that ability to work is determined first and then is used to

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The ALJ did provide some discussion of why he discounted Ms. Mongelluzzo’s
symptom testimony. The ALJ states that Ms. Mongelluzzo “chose school over work,
which undermines her fundamental claim of disability.” 151 And the ALJ states that Ms.
Mongelluzzo indicated to Dr. Worsley that she maintains “a very busy schedule during
an average day.” 152 However, Ms. Mongelluzzo’s testimony concerning her schooling
and her statements to Dr. Worsley concerning her daily activities do not directly
contradict her testimony regarding her symptoms and therefore should not detract from
her credibility. 153

In this regard, the Ninth Circuit has held that a claimant’s daily

activities may be grounds for an adverse credibility determination only if those activities
“indicat[e] capacities that are transferable to a work setting.”154 Here, as discussed in
the previous section, the ALJ did not explain how Ms. Mongelluzzo’s daily activities
translate into an ability to work full time. Without additional explanation, the fact that
Ms. Mongelluzzo attends school and does chores is not a clear and convincing reason
for discounting her credibility.

determine the claimant’s credibility.” See Docket 19 at 32–33 & n.23 (quoting Bjornson v.
Astrue, 671 F.3d 640, 645 (7th Cir. 2012)); see also Vasquez v. Astrue, No. CV11-2406-PHXGMS, 2013 WL 491977, at *8 (D. Ariz. Feb. 8, 2013) (“The first reason—that [claimant’s]
statements ‘are not credible to the extent they are inconsistent with the above residual
functional capacity assessment’—is circular. The ALJ cannot determine the RFC and then look
at [claimant’s] statements; the RFC is supposed to incorporate those statements.”).
151

A.R. 27.

152

A.R. 28.

153

See Orn, 495 F.3d at 639 (claimant’s daily activities must contradict claimant’s testimony in
order to form the basis for an adverse credibility determination).

154

See Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012).

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The ALJ’s decision also discusses some of Ms. Mongelluzzo’s mental health
treatment records, as well as Dr. Worsley’s CE, but it does not explain how those
records contradict Ms. Mongelluzzo’s symptom testimony. 155 Finally, the ALJ’s decision
points to the opinions of Drs. Barrons and Tomak. 156 But as discussed above, the ALJ
improperly credited these opinions without providing a sufficient basis for discounting
the contradictory opinion of Ms. Mongelluzzo’s treating physician, Dr. Wadman.
Therefore, the Court concludes that the ALJ erred by failing to provide clear and
convincing reasons for discounting Ms. Mongelluzzo’s symptom testimony.
B. The Court will remand for calculation and award of benefits.
In making his RFC determination, the ALJ did not provide specific and legitimate
reasons for discounting Dr. Wadman’s opinion, nor did he provide clear and convincing
reasons for discounting Ms. Mongelluzzo’s symptom testimony. 157

The Court must

155

See A.R. 28–29. If anything, the medical evidence supports Ms. Mongelluzzo’s symptom
testimony. See supra Factual & Procedural Background Part II.A & B.
156

A.R. 29.

157

Additionally, the Court observes that the ALJ’s RFC determination does not precisely match
up with the limitations of the hypothetical individual the ALJ questioned the VE about in order to
make his determinations at Step 4 and Step 5. As previously discussed, the ALJ questioned the
VE about a hypothetical individual with the psychological limitations identified in Dr. Worsley’s
CE report. A.R. 76. However, that report does not provide that Ms. Mongelluzzo has the ability
to perform simple and repetitive tasks on a sustained basis in a work setting; rather, it states
that Ms. Mongelluzzo’s ability to concentrate and remember some information would be
“compromised” in a work setting. A.R. 408. And although the VE initially testified that there are
jobs that could be performed by a hypothetical individual with the limitations identified in Dr.
Worsley’s CE report, the VE subsequently conceded that Dr. Worsley did not quantify the extent
to which Ms. Mongelluzzo’s ability to concentrate and remember would be “comprised,” and that
there is a big difference between the work capabilities of an individual whose abilities are
“severely compromised” as opposed to “mildly compromised.” See supra text accompanying
notes 86–90. For this reason, the Court also concludes that the ALJ’s decision to deny benefits
to Ms. Mongelluzzo is not supported by substantial evidence.

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therefore determine whether to remand for calculation of benefits, as Ms. Mongelluzzo
requests, or whether to remand for further proceedings.
Under the Ninth Circuit’s “credit-as-true” doctrine, a court should remand for
calculation and award of benefits when (1) the ALJ failed to provide legally sufficient
reasons for discounting the testimony of a claimant and/or treating physician; (2) “there
are no outstanding issues that must be resolved before a determination of disability can
be made, and (3) it is clear from the record that the ALJ would be required to find the
claimant disabled were such [testimony] credited.” 158
In this case, it is clear from the record that the ALJ would be required to award
benefits to Ms. Mongelluzzo if her testimony and Dr. Wadman’s testimony are credited.
The VE testified at the hearing that a hypothetical individual with the limitations
described in Dr. Wadman’s assessment, which are consistent with the symptoms
testified to by Ms. Mongelluzzo, would not be able to work on a regular and continuing
basis. 159 Accordingly, the Court will remand this matter for the calculation and award of
benefits.

158

Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996). Defendant asserts “the credit-as-true
rule is inconsistent with both the Social Security Act and Supreme Court precedent.” Docket 21
at 22 n.15 (Def. Br.). In Vasquez v. Astrue, the Ninth Circuit recognized that “a split of authority
has developed over whether the rule is mandatory or discretionary in [the Ninth] Circuit” in
cases such as this where there are no outstanding issues that must be resolved before a
disability determination can be made. See Vasquez v. Astrue, 572 F.3d 586, 593 (9th Cir.
2008). However, recent memorandum dispositions issued by the Ninth Circuit have applied the
credit-as-true doctrine even when there are no outstanding issues that must be resolved. See,
e.g., Om v. Colvin, 545 F. App’x 665, 667–68 (9th Cir. 2013); Deleo v. Astrue, 374 F. App’x 743,
744 (9th Cir. 2010); Woody v. Astrue, 357 F. App’x 765, 767 (9th Cir. 2009); cf. Fed. R. App. P.
32.1 (permitting citation of memorandum dispositions issued on or after January 1, 2007).
Consistent with these dispositions, this Court will apply the credit-as-true doctrine in this case.
159

A.R. 79–80.

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CONCLUSION
For the reasons discussed above, it is hereby ORDERED that:
1. This matter is REVERSED and REMANDED to the Commissioner of Social
Security for the calculation and award of benefits; and
2. The Order at Docket 26 setting oral argument in this matter is VACATED.
DATED this 23rd day of April, 2014, at Anchorage, Alaska.
/s/ Sharon L. Gleason
United States District Judge

2:13-cv-00610-SLG, Mongelluzzo v. Colvin
Decision and Order
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