Moore v. Commissioner of Social Security

Filing 22

ORDER signed by Magistrate Judge Kendall J. Newman on 2/29/2012 ORDERING 14 Plaintiff's Motion for Summary Judgment is GRANTED IN PART; Defendant's 18 Cross-Motion for Summary Judgment is DENIED; this case is REMANDED to the ALJ for further proceedings consistent with 42 USC 405(g), sentence four; Clerk is directed to enter a separate judgment herein, as provided under FRCP 58 and 79(a). (Waggoner, D)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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PAMELA IRENE MOORE,

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Plaintiff,

No. 2:10-cv-02477 KJN

v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,

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Defendant.
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ORDER
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Plaintiff, who is represented by counsel, seeks judicial review of a final decision

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of the Commissioner of Social Security (“Commissioner” or “defendant”) denying plaintiff’s

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applications for Disability Insurance Benefits under Title II of the Social Security Act (“Act”)

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and Supplemental Security Income benefits under Title XVI of the Act.1 In her motion for

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summary judgment, plaintiff contends that the administrative law judge (“ALJ”) in this case

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erred: (1) by discrediting the findings of plaintiff’s treating physician, Dr. Borgquist, and by

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“discrediting the diagnosis of fibromyalgia;” (2) by finding that plaintiff “only suffers from

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depression and mild social functioning limitations despite consistent diagnoses of panic disorder

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This case was referred to the undersigned pursuant to Eastern District of California Local
Rule 302(c)(15) and 28 U.S.C. § 636(c), and both parties voluntarily consented (Dkt. Nos. 7, 10) to
proceed before a United States Magistrate Judge. 28 U.S.C. § 636(c)(1); Fed. R. Civ. P. 73; E. Dist.
Local Rule 301.
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with agoraphobia”; and (3) by failing “to incorporate specific limitations” arising from

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“moderate” limitations in concentration, persistence, and pace into the hypothetical question

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posed to the vocational expert (“VE”). (See generally Pl.’s Mot. for Summ. J., Dkt. No. 15 at 1.)

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Defendant filed an opposition to plaintiff’s motion and a cross-motion for summary judgment.

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(Def.’s Opp’n & Cross-Motion for Summ. J., Dkt. No. 18.) Plaintiff filed a reply memorandum

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in support of her motion. (Pl.’s Reply, Dkt. No. 21.) For the reasons stated below, the court

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grants plaintiff’s motion for summary judgment in part and denies the Commissioner’s cross-

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motion for summary judgment.

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I.

BACKGROUND2

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On March 18, 2008, plaintiff filed applications for Supplemental Security Income

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and Disability Insurance Benefits, both of which alleged a disability onset date of April 1, 2007.

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(Admin. Record (“AR”) 129-33; 137-43.) The Social Security Administration denied plaintiff’s

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application initially on August 28, 2008, and upon reconsideration on October 28, 2008. (AR

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73-83.) Plaintiff requested a hearing before an ALJ, and the ALJ conducted a hearing regarding

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plaintiff’s claim on January 13, 2010. (AR 27-57, 84-87.) Plaintiff was represented by counsel

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at the hearing and testified. A vocational expert, Mr. David Dettmer, also testified at the hearing.

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(AR 48-55.)

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In a written decision dated February 12, 2010, the ALJ denied plaintiff’s

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applications for benefits based on a finding that, while plaintiff was incapable of performing past

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relevant work as a secretary, plaintiff was indeed “capable of making a successful adjustment to

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other work that exists in significant numbers in the national economy.”3 (AR 21.) The ALJ’s

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Because the parties are familiar with the factual background of this case, including
plaintiff’s medical history, the undersigned does not exhaustively relate those facts here. The facts
related to plaintiff’s impairments and medical history will be addressed insofar as they are relevant
to the issues presented by the parties’ respective motions.

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Disability Insurance Benefits are paid to disabled persons who have contributed to the
Social Security program, 42 U.S.C. §§ 401 et seq. Generally speaking, Supplemental Security
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decision became the final decision of the Commissioner when the Appeals Council denied

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plaintiff’s request for review. (AR 1-5.) Plaintiff subsequently filed this action.

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B.

Summary of the ALJ’s Findings
The ALJ conducted the required five-step evaluation and concluded that plaintiff

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was not disabled within the meaning of the Act. At step one, the ALJ found that plaintiff had not

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engaged in substantial gainful employment since April 1, 2007, the alleged date of onset of

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disability. (AR 14.) At step two, the ALJ concluded that plaintiff had the “severe” impairments

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of: “degenerative disc disease of the lumbar spine, depression, and obesity.” (AR 14.) At step

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Income is paid to disabled persons with low income. 42 U.S.C. §§ 1382 et seq. Under both benefit
schemes, the term “disability” is defined, in part, as an “inability to engage in any substantial gainful
activity” due to “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 twelve months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A five-step sequential evaluation
governs eligibility for benefits. See 20 C.F.R. §§ 404.1520, 404.1571-1576, 416.920, 416.971-976;
see also Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). The Ninth Circuit Court of Appeals has
summarized the sequential evaluation as follows:
Step one: Is the claimant engaging in substantial gainful
activity? If so, the claimant is found not disabled. If not, proceed to
step two.
Step two: Does the claimant have a “severe” impairment? If
so, proceed to step three. If not, then a finding of not disabled is
appropriate.
Step three: Does the claimant’s impairment or combination
of impairments meet or equal an impairment listed in 20 C.F.R., Pt.
404, Subpt. P, App.1? If so, the claimant is automatically determined
disabled. If not, proceed to step four.

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Step four: Is the claimant capable of performing his past
work? If so, the claimant is not disabled. If not, proceed to step five.
Step five: Does the claimant have the residual functional
capacity to perform any other work? If so, the claimant is not
disabled. If not, the claimant is disabled.

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Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995).

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The claimant bears the burden of proof in the first four steps of the sequential evaluation
process. Bowen, 482 U.S. at 146 n.5. The Commissioner bears the burden if the sequential
evaluation process proceeds to step five. Id.

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three, the ALJ determined that plaintiff did not have an impairment or combination of

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impairments that met or medically equaled one of the impairments listed in the applicable

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regulations. (Id. at 15 (citing 20 C.F.R. pt. 404, subpt. P, app.1).)

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Prior to reaching step four of the analysis, the ALJ determined plaintiff’s residual
functional capacity (“RFC”) as follows:
[T]he claimant has the residual functional capacity to perform a wide
range of medium work as defined in 20 CFR 404.1567(c) and 416.967(c)
except that she can lift 35 pounds occasionally and 20 pounds frequently.
She is capable of standing and walking at least six hours in an eight hour
work day and is also capable of sitting at least six hours [in an] eight hour
workday. She cannot work at heights or around hazardous, moving
machinery. She is mentally limited to work requiring simple instructions.
(AR 15-16, 20.)
In assessing plaintiff’s RFC, the ALJ addressed plaintiff’s testimony and found

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that plaintiff was not credible to the extent that her testimony concerning the intensity,

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persistence and limiting effects of her symptoms conflicted with the ALJ’s RFC assessment.

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(AR 17.) The ALJ also addressed the medical evidence, giving “great weight” to the opinion of

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consultative examiner Dr. Cesar Duclair (AR 17), giving “less weight” to the opinion of treating

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physician Dr. Warren Borgquist (AR 18), giving “great weight” to the opinion of treating

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psychiatrist Dr. Bennett Garner dated October 2007 (AR 19), giving “very little weight” to the

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opinion of treating psychiatrist Dr. John Champlin (id.), giving “great weight” to the opinion of

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Dr. Manolito Castillo dated July 2008, and giving “great weight” to the opinion of Dr. Ikawa, the

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consulting psychiatrist (AR 20).

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Having assessed plaintiff’s RFC, the ALJ found at step four that given plaintiff’s

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limitations, plaintiff “is unable to perform any past relevant work.” (Id.) At step five, the ALJ

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found that “considering the claimant’s age, education, work experience, and residual functional

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capacity, there are jobs that exist in significant numbers in the national economy that the claimant

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can perform.” (AR 21.) The ALJ asked the vocational expert whether jobs exist in the national

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economy “for an individual with the claimant’s age, education, work experience, and residual
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functional capacity.” (Id.) The ALJ relied on the vocational expert’s testimony, and found that

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plaintiff could perform jobs such as cashier, mail clerk, and office helper. (Id.) Because the ALJ

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found that plaintiff could perform such work, plaintiff is “not disabled.” (AR 21-22.)

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II.

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STANDARDS OF REVIEW
The court reviews the Commissioner’s decision to determine whether it is (1) free

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of legal error, and (2) supported by substantial evidence in the record as a whole. Bruce v.

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Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009); accord Vernoff v. Astrue, 568 F.3d 1102, 1105 (9th

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Cir. 2009). This standard of review has been described as “highly deferential.” Valentine v.

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Comm’r of Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009). “‘Substantial evidence means

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more than a mere scintilla but less than a preponderance; it is such relevant evidence as a

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reasonable mind might accept as adequate to support a conclusion.” Bray v. Comm’r of Soc.

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Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035,

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1039 (9th Cir. 1995)); accord Valentine, 574 F.3d at 690. “The ALJ is responsible for

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determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities.”

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Andrews, 53 F.3d at 1039; see also Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008)

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(“[T]he ALJ is the final arbiter with respect to resolving ambiguities in the medical evidence.”).

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Findings of fact that are supported by substantial evidence are conclusive. 42 U.S.C. § 405(g);

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see also McCarthy v. Apfel, 221 F.3d 1119, 1125 (9th Cir. 2000). “Where the evidence as a

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whole can support either a grant or a denial, [the court] may not substitute [its] judgment for the

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ALJ’s.” Bray, 554 F.3d at 1222; see also Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198

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(9th Cir. 2008) (“‘Where evidence is susceptible to more than one rational interpretation,’ the

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ALJ’s decision should be upheld.”) (quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir.

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2005)). However, the court “must consider the entire record as a whole and may not affirm

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simply by isolating a ‘specific quantum of supporting evidence.’” Ryan, 528 F.3d at 1198

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(quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)); accord Lingenfelter v.

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Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). “To determine whether substantial evidence
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supports the ALJ’s decision, [a court] review[s] the administrative record as a whole, weighing

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both the evidence that supports and that which detracts from the ALJ’s conclusion.” Andrews,

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53 F.3d at 1039.

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The court’s review is constrained to the reasons asserted by the ALJ in the ALJ’s

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decision. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (“We review only the reasons

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provided by the ALJ in the disability determination and may not affirm the ALJ on a ground

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upon which he did not rely.”); accord Tommasetti, 533 F.3d at 1039 n.2 (declining to review

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reasons provided by the district court in support of the ALJ’s credibility decision that were not

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“expressly relied on” by the ALJ during the administrative proceedings); accord Pinto v.

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Massanari, 249 F.3d 840, 847 (9th Cir. 2001) (noting that the Court “cannot affirm the decision

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of an agency on a ground that the agency did not invoke in making its decision”); Gonzalez v.

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Sullivan, 914 F.2d 1197, 1201 (9th Cir. 1990) (“[W]e are wary of speculating about the basis of

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the ALJ’s conclusion – especially when his opinion indicates that the conclusion may have been

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based exclusively upon an improper reason.”); Barbato v. Comm’r of Soc. Sec. Admin., 923 F.

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Supp. 1273, 1276 n.2 (C.D. Cal. 1996) (remand is appropriate when a decision does not

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adequately explain how a decision was reached, “[a]nd that is so even if [the Commissioner] can

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offer proper post hoc explanations for such unexplained conclusions,” because “the

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Commissioner’s decision must stand or fall with the reasons set forth in the ALJ’s decision, as

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adopted by the Appeals Council”) (citation omitted).

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Harmless error exists when it is clear from the record that the ALJ’s error was

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inconsequential to the ultimate non-disability determination. Tommasetti, 533 F.3d at 1038

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(citations and internal quotation marks omitted); see also Lewis v. Astrue, 498 F.3d 909, 911 (9th

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Cir. 2007) (error in finding an impairment non-severe at step two was harmless when ALJ

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accounted for resulting limitations later in sequential evaluation process). In other words, the

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court will not reverse the Commissioner’s decision if it is based on harmless error, which exists

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only when it is “clear from the record that an ALJ’s error was ‘inconsequential to the ultimate
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nondisability determination.’” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)

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(quoting Stout v. Comm’r, 454 F.3d 1050, 1055 (9th Cir. 2006)).

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“If additional proceedings can remedy defects in the original administrative

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proceeding, a social security case should be remanded.” Marcia v. Sullivan, 900 F.2d 172, 176

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(9th Cir. 1990) (quoting Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981)). “Where the

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Secretary is in a better position than this court to evaluate the evidence, remand is appropriate.”

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Id. (citing McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989)).

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III.

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DISCUSSION
A.

The ALJ Permissibly Discounted Dr. Borgquist’s Opinion
Plaintiff contends that the ALJ erred in discounting Dr. Borgquist’s opinion,

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which led the ALJ to erroneously conclude that plaintiff did not suffer from fibromyalgia. (Pl.’s

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Mot. for Summ. J. at 11-15.) Specifically, plaintiff argues that the ALJ “failed to articulate

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specific and legitimate reasons for not crediting” Dr. Borgquist’s diagnosis of fibromyalgia.

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(Pl.’s Mot. for Summ. J. at 14.) Plaintiff’s argument is not well-taken.

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The medical opinions of three types of medical sources are recognized in social

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security cases: “(1) those who treat the claimant (treating physicians); (2) those who examine but

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do not treat the claimant (examining physicians); and (3) those who neither examine nor treat the

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claimant (nonexamining physicians).” Lester, 81 F.3d at 830. Generally, a treating physician’s

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opinion should be accorded more weight than opinions of doctors who did not treat the claimant,

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and an examining physician’s opinion is entitled to greater weight than a non-examining

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physician’s opinion. Id. Where a treating or examining physician’s opinion is uncontradicted by

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another doctor, the Commissioner must provide “clear and convincing” reasons for rejecting the

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treating physician’s ultimate conclusions. Id. If the treating or examining doctor’s medical

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opinion is contradicted by another doctor, the Commissioner must provide “specific and

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legitimate” reasons for rejecting that medical opinion, and those reasons must be supported by

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substantial evidence in the record. Id. at 830-31; accord Valentine, 574 F.3d at 692. “‘The ALJ
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can meet this burden by setting out a detailed and thorough summary of the facts and conflicting

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clinical evidence, stating [her] interpretation thereof, and making findings.’” Tommasetti, 533

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F.3d at 1041 (modification in original) (quoting Magallanes v. Bowen, 881 F.2d 747, 751 (9th

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Cir. 1989)).

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Here, the ALJ considered Dr. Borgquist’s opinions regarding plaintiff’s functional

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limitations and fibromyalgia and provided specific, legitimate reasons for discounting those

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opinions in light of conflicting evidence. See Lester, 81 F.3d at 830; Valentine, 574 F.3d at 692;

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Tommasetti, 533 F.3d at 1041. Here, the ALJ gave Dr. Borgquist’s opinion “less weight”

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because:

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Dr. Borgquist . . . does not appear to be a rheumatologist or
other specialist familiar with diagnosing fibromyalgia, and
he has not referred the claimant to such a specialist. The
claimant has not undergone physical therapy or been
referred to a pain clinic, and injections of cortisone or
Novocain do not appear to have been offered. Dr.
Borgquist also does not appear to have run other diagnostic
tests to see if there are other causes for the claimant’s
reported pain. Finally, when the consulting examiner
examined the claimant, the claimant did not report a
significant number of painful areas that could be considered
trigger points and had few symptoms, objective or
otherwise, on examination. Thus, I give less weight to this
opinion, as it is not adequately documented and is not
consistent with the claimant’s treatment records and other
substantial evidence of record.

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(AR 18.) The ALJ also discounted Dr. Borgquist’s opinion after having determined that plaintiff

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was not credible regarding the intensity, persistence, and limiting effects of her symptoms. (AR

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17.)4

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The ALJ also discounted the opinion of Dr. Borgquist in light of a conflicting
opinion from Dr. Duclair, a consulting examiner. The ALJ gave “great weight” to the majority of

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Among several other reasons for discounting plaintiff’s credibility, the ALJ explained that
“although claimant’s treating physician advocates that the claimant suffers from fibromyalgia, the
claimant did not mention fibromyalgia to the consulting examiner [Dr. Duclair], and the examination
did not reveal any trigger points” consistent with fibromyalgia. (AR 17.)
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the opinion of Dr. Duclair. (AR 17-18.) The ALJ explained that Dr. Duclair examined plaintiff

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and opined that plaintiff’s coordination, station and gait were normal despite her obesity, that

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plaintiff’s cervical range of motion was normal, that plaintiff has no limitations in her ability to

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sit, stand, or walk, that plaintiff can lift and carry 20 pounds frequently and 35 pounds

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occasionally, and that plaintiff can occasionally crouch, with no other limitations. (AR 17; 325-

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27.) The ALJ ultimately gave “great weight” to Dr. Duclair’s opinion because “it is consistent

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with both the objective findings on examination and the treatment records.” (AR 17.)
Fibromyalgia

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Fibromyalgia has been defined as “a rheumatic disease that causes inflammation

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of the fibrous connective tissue components of muscles, tendons, ligaments, and other tissue.”

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Benecke v. Barnhart, 379 F.3d 587, 589-90 (9th Cir. 2004) (citing authorities). Common

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symptoms “include chronic pain throughout the body, multiple tender points, fatigue, stiffness,

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and a pattern of sleep disturbance that can exacerbate the cycle of pain and fatigue associated

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with this disease.” Id. (citing authorities).

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Plaintiff correctly argues that “the diagnosis and treatment of fibromyalgia is

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associated with unique evidentiary issues.” (Pl.’s Mot. for Summ. J. at 12 (citing out-of-circuit

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cases and Rollins v. Massanari, 261 F.3d 853, 855 (9th Cir. 2001).) In Rollins, the Court of

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Appeals explained that “[o]ne of the most striking aspects of [fibromyalgia] is the absence of

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symptoms;” however, that court also noted that “[t]he most clear objective medical indication of

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fibromyalgia is tenderness at at least eleven of eighteen specific points on the body.” Rollins,

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261 F.3d at 863. Thus, there can be objective medical indications of fibromyalgia — i.e., through

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finding tender points upon a physical exam — and here, the ALJ was entitled to consider the fact

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that physical examinations of plaintiff did not consistently reveal these points. (AR 17 (noting

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plaintiff’s “examination did not reveal any trigger points”).) Similarly, while fibromyalgia

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presents unique evidentiary issues, every disability claimant with symptoms of fibromyalgia is

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not automatically entitled to benefits simply due to the difficulty of “proving” fibromyalgia.5

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Instead, if the disease can be “diagnosed entirely on the basis of patients’ reports of pain and

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other symptoms,” Benecke, 379 F.3d at 590, a plaintiff’s credibility is critical in such cases. As

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discussed above, here the ALJ discounted plaintiff’s credibility concerning the intensity,

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persistence and limiting effects of her symptoms. Plaintiff has not challenged the ALJ’s adverse

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credibility determination.6

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Plaintiff also correctly states that in fibromyalgia cases, a treating doctor’s

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diagnosis “may be based purely on a patient’s reports of pain and other symptoms.” (Pl.’s Mot.

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for Summ. J. at 12 (citing Benecke, 379 F.3d at 590).) Here, however, the ALJ determined that

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plaintiff’s reports of pain and other symptoms were not credible7 — again, a finding plaintiff has

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not challenged — and gave various specific reasons for that finding grounded in substantial

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evidence. (AR 17.) Thus, the ALJ gave less weight to Dr. Borgquist’s opinion in part because it

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was based upon plaintiff’s less-than-credible testimony regarding intensity, persistence and

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limiting effects of her symptoms. See Tommasetti, 533 F.3d at 1041 (“An ALJ may reject a

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treating physician’s opinion if it is based ‘to a large extent’ on a claimant’s self-reports that have

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been properly discounted as incredible.”). Accordingly, while in some fibromyalgia cases a

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treating physician’s opinion “may be based purely on a patient’s reports of pain and other

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A diagnosis of fibromyalgia does not absolve a claimant from proving she is disabled
under the terms of the Social Security Act, i.e., demonstrating with clinically acceptable medical and
diagnostic tests that she cannot engage in any substantial gainful activity. 42 U.S.C. § 423(d)(5)(A)
(“An individual’s statement as to pain or other symptoms shall not alone be conclusive evidence of
disability”); 20 C.F.R. § 404.1514 (“We need specific medical evidence to determine whether you
are disabled . . . You are responsible for providing that evidence.”)
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In her reply memorandum, plaintiff clarifies that she “does not concede that the ALJ
properly analyzed . . . her credibility,” (Pl.’s Reply at 2); however, plaintiff’s moving papers do not
present the argument that the ALJ erred in his credibility determination as to plaintiff. Plaintiff also
does not substantively argue the issue of plaintiff’s credibility within her Reply memorandum. The
undersigned will not consider arguments raised for the first time in reply briefing.
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(See AR 17 (describing various inconsistencies in plaintiff’s statements and behavior and
plaintiff’s failure to seek “consistent medical treatment” and lack of “longitudinal treatment records”
confirming plaintiff’s symptoms).)
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symptoms,” (Pl.’s Mot. for Summ. J. at 12), given the ALJ’s adequately-supported (and

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unchallenged) adverse credibility determination as to plaintiff, this was not such a case.

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Plaintiff also argues that the ALJ improperly substituted his own opinion for the

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findings and opinions of Dr. Borgquist. (Pl.’s Mot. for Summ. J. at 11 (citing out-of-circuit cases

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and Benecke, 379 F.3d at 594.) In Benecke, the Court of Appeals held that the ALJ erred by

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rejecting treating physicians’ diagnoses of fibromyalgia solely because he did not believe in

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fibromyalgia.8 Benecke, 379 F.3d at 594. The court in Benecke held that “sheer disbelief [in

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fibromyalgia] is no substitute for substantial evidence.” Id.

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Here, contrary to the ALJ’s decision in Benecke, the ALJ did not express a

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blanket disbelief in fibromyalgia; instead, as excerpted above, he stated specific reasons for

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discounting Dr. Borgquist’s opinion, and identified specific evidence in the record supporting

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those reasons. (AR 17-18.) For instance, the ALJ discounted Dr. Borgquist’s opinion in light of

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specific shortcomings in that opinion (such as Dr. Borgquist’s lack of specialization in

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fibromyalgia, and his failure to refer plaintiff to a specialist, pain clinic, and/or offer her

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injections for pain), as well as a determination that plaintiff’s testimony regarding the intensity,

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persistence and limiting effects of her symptoms was not credible, as well as a determination that

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the competing opinion from Dr. Duclair was more consistent with objective examination findings

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and the treatment records. (AR 17-18.) Even though plaintiff argues that Dr. Borgquist

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conducted sufficient testing and made accurate diagnoses, an ALJ’s decision will be upheld

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where the “evidence is susceptible to more than one rational interpretation” and where the

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In Benecke, “[t]he ALJ expressed his skepticism at length during the hearing. For example,
the ALJ asserted that only one doctor was ‘really saying the fibromyalgia.’ [sic] After Benecke’s
counsel pointed out that several doctors diagnosed Benecke with fibromyalgia, the ALJ asked, ‘what
on earth is that based on? I mean, there’s no – I mean, how am I suppose [sic] to sit up here and
listen to doctors tell me that there is nothing physical that they can find, yet she’s so restricted . . .
[?] I just don’t find that credible. . . . I’m not seeing anything from the physical that would in any
way justify those conclusions from the Rheumatologist other than trying to help the claimant get
disability . . . . There’s just the paucity of any objective findings whatsoever. . . . I mean, there was
almost like a really buying [sic] into the syndrome in a way.” Benecke, 379 F.3d at 594 n.3.
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decision is supported by one such rational interpretation. See Orn, 495 F.3d at 630. The ALJ’s

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interpretation of Dr. Borgquist’s opinion was rational, and plaintiff has not shown that the ALJ

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blindly “substituted his opinion” for Dr. Borgquist’s.

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2.

Treating Physician’s Opinion Contradicted By Examining Physician’s
Opinion

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Recognizing that the ALJ discounted Dr. Borgquist’s opinion in favor of Dr.

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Duclair’s contradictory opinion, plaintiff attacks Dr. Duclair’s opinion. Plaintiff argues that the

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ALJ improperly “relied on the lack of diagnosis of fibromyalgia by the consultative examiner Dr.

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Duclair, “even though Dr. Duclair literally only reviewed a handful of progress notes . . . and

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never even reviewed Dr. Borgquist’s opinions or progress notes.” (Pl.’s Mot. for Summ. J. at

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13.) Contrary to plaintiff’s characterization, Dr. Duclair did not merely review a “handful” of

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notes — he also physically examined plaintiff. (AR 17.) The ALJ was entitled to give weight to

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Dr. Duclair’s opinions arising from that physical exam. (AR 17-18.) The fact that Dr. Duclair

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did not specifically review Dr. Borgquist’s notes before rendering his opinion does not mean that

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Dr. Duclair’s opinion is necessarily entitled to less weight. Plaintiff has not cited authorities

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suggesting that an examining physician must review all of a treating physician’s notes in order

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for the examining physician’s opinion to be compelling. Moreover, in giving weight to Dr.

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Duclair’s opinion, the ALJ was persuaded by the fact that Dr. Duclair’s examination of plaintiff

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did not reveal a significant number of painful areas or trigger points. (AR 18.) “[W]hen an

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examining physician provides ‘independent clinical findings that differ from the findings of the

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treating physician,’ such findings are ‘substantial evidence’.” Orn, 495 F.3d at 632-33 (internal

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citations omitted). Plaintiff has not shown that the ALJ erred in giving weight to Dr. Duclair’s

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opinion.
Physician’s Specialization

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3.

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Plaintiff also argues that “Dr. Duclair is not a rheumatologist so there is no reason

26

why the ALJ should be justified in discrediting the treating source because he is not a
12

1

rheumatologist but then turn around and credit a one-shot consultative examiner who did not

2

even have a complete record before him.” (Pl.’s Mot. for Summ. J. at 13.) While plaintiff is

3

correct that neither Dr. Borgquist nor Dr. Duclair specialize in fibromyalgia, plaintiff is incorrect

4

that the ALJ could not discount Dr. Borgquist’s opinion in part due to lack of specialization and

5

instead give weight to the opinion of another non-specialist. Instead, the ALJ properly noted Dr.

6

Borgquist’s lack of specialization in fibromyalgia as just one reason among many for discounting

7

that opinion. “[T]he specialty of the physician providing the opinion” is “relevant to evaluating

8

any medical opinion.” Orn, 495 F.3d at 631.9 Plaintiff has not cited authorities suggesting that

9

the ALJ may not discount a treating physician’s opinion in favor of an examining physician’s

10

opinion on grounds of lack of specialization unless the examining physician is a specialist

11

himself. Further, the ALJ discounted Dr. Borgquist’s opinion in part because Dr. Borgquist

12

failed to refer plaintiff to a specialist (AR 18), not solely because Dr. Borgquist was not a

13

specialist himself.10
Conservative Treatment

14

4.

15

Plaintiff concludes that “[f]rankly, it is unclear what evidence would have

16

satisfied” the ALJ, given that “Dr. Borgquist identified the number of trigger points, tried

17

increasing doses of medications, indicated that physical therapy was not successful, performed

18

lab work to rule out other conditions, reviewed MRI/CT scans to rule out other conditions, and

19

even explained why he was concluding that Ms. Moore suffered from fibromyalgia.” (Pl.’s Mot.

20

for Summ. J. at 14.) While plaintiff argues that the ALJ may not discount a treating physician’s

21
9

22
23

An ALJ may consider a medical source’s specialty when deciding how much weight to give
to that source’s opinions. 20 C.F.R. § 404.1527(d)(5) (an ALJ will “generally give more weight to
the opinion of a specialist about medical issues related to his or her area of specialty than to the
opinion of a source who is not a specialist”); Holohan v. Massanari, 246 F.3d 1195, 1202-03, n.2
(9th Cir. 2001) (citing 20 C.F.R. § 404.1527(d)(3), (d)(5)).

24
10

25
26

While plaintiff argues that Dr. Borgquist did not refer plaintiff to a specialist because he
knew she could not afford it, plaintiff does not identify any portion(s) of Dr. Borgquist’s treatment
notes (or other documents) confirming that plaintiff’s lack of funds specifically motivated Dr.
Borquist’s recommendations in any way.
13

1

opinion by pointing out “negatives,” i.e., tests and treatments the physician did not order,

2

plaintiff does not cite authorities in support of that argument. (Id. at 13-15). Indeed, authorities

3

suggest that an ALJ may properly consider a physician’s decision not to order certain treatments.

4

See Tommasetti, 533 F.3d at 1041 (noting that a conservative treatment plan is a permissible

5

basis for discounting testimony of all-disabling pain).11 Here, the ALJ discounted Dr.

6

Borgquist’s opinion in part because Dr. Borgquist did not refer plaintiff to a fibromyalgia

7

specialist, did not refer plaintiff to a pain clinic, did not offer injections for plaintiff’s pain, and,

8

except for ordering lab work, did not conduct other diagnostic tests to rule out other causes of

9

plaintiff’s pain. (AR 17-18.) In any event, these so-called “negatives,” taken with plaintiff’s

10

less-than-credible testimony regarding pain, taken with plaintiff’s failure to mention fibromyalgia

11

to Dr. Duclair, taken with the fact that Dr. Duclair’s examination of plaintiff did not reveal a

12

significant number of painful areas or trigger points, all combine to confirm that the ALJ

13

properly supported his decision to discount Dr. Borgquist’s opinion.
Treating Physician’s Suggested Functional Limitations

14

5.

15

The ALJ determined that objective medical findings did not support Dr.

16

Borgquist’s extreme assessment of plaintiff’s functional abilities. (AR 18.) The ALJ found that

17

Dr. Borgquist “checked many boxes [of a form questionnaire] indicating that the claimant would

18

have great limitations” but notes that the doctor pointed only to “fibromyalgia” and plaintiff’s

19

other diagnoses in broad support of those limitations. (AR 18; 416-23.) Although plaintiff is

20

correct that Dr. Borgquist examined plaintiff and identified her “trigger points,” ordered and

21
22
23
24
25
26

11

See also Rollins, 261 F.3d at 856 (holding that the ALJ properly rejected the treating
physician’s opinion because his treatment notes failed to present “the sort of description and
recommendations one would expect to accompany a finding that [the claimant] was totally disabled
under the [Social Security] Act,” and because he recommended only “conservative course of
treatment” such as avoiding “strenuous exercise”); Burch, 400 F.3d at 681 (ALJ properly discredited
claimant’s pain testimony for lack of consistent treatment, in that she “had not had any treatment for
her back for about three or four months” including physical therapy, chiropractic services, a home
exercise program or the suggestion of surgery, which showed that her pain was “not severe enough
to motivate [her] to seek [these forms of] treatment”).
14

1

reviewed her lab work, and reviewed MRI/CT scans, among other things (AR 13), the ALJ did

2

not err by finding that plaintiff’s treatment records did not support the degree of functional

3

limitation Dr. Borgquist assessed. Indeed, the ALJ’s citation to records prepared by multiple

4

other acceptable medical sources contradicting Dr. Borgquist’s extreme assessment of plaintiff’s

5

functional limitations, such as the reports of examining physician Dr. Duclair, compellingly

6

support the ALJ’s rejection of Dr. Borgquist’s assessment. (AR 17-18.)
Conclusion

7

6.

8

The ALJ gave Dr. Borgquist’s opinion less weight than Dr. Duclair’s opinion, and

9

at this procedural posture, the court need only determine whether the ALJ supported this decision

10

by specific, legitimate reasons grounded in substantial evidence. As described above, the ALJ

11

gave various specific, legitimate reasons for discounting Dr. Borgquist’s opinion, and as

12

discussed above, those reasons find support in the record. Accordingly, it cannot be said that the

13

ALJ failed to provide specific, legitimate reasons for discounting Dr. Borgquist’s opinions; nor

14

can it be said that the stated reasons are unsupported by substantial evidence. See Lester, 81 F.3d

15

at 830; Valentine, 574 F.3d at 692; Tommasetti, 533 F.3d at 1041. Accordingly, the ALJ did not

16

err in evaluating Dr. Borgquist’s opinion.

17

B.

The ALJ Failed To Consider Panic Disorder, Agoraphobia, and Anxiety In
Assessing Plaintiff’s Impairments And Functional Limitations12

18
19

Plaintiff argues that the ALJ failed to “discuss or explain” his failure to find

20

“agoraphobia and anxiety disorder” (Pl.’s Mot. for Summ. J at 14) and “panic disorder with

21

agoraphobia” and “anxiety” to be medically determinable impairments. (Id. at 18.) Plaintiff also

22

argues that the ALJ failed to associate functional limitations with those conditions in assessing

23

plaintiff’s RFC, and failed to include such limitations in the hypothetical posed to the vocational

24
12

25
26

While the parties’ briefs separately analyze plaintiff’s arguments regarding plaintiff’s
potential mental impairments (panic disorder, agoraphobia, and anxiety) and the nature of the
hypothetical that the ALJ posed to the vocational expert, the undersigned addresses these related
arguments together herein.
15

1

expert. (Id. at 18-19.) Plaintiff’s arguments are well-taken.

2

At step two of the sequential evaluation, the ALJ determines whether the claimant

3

has a medically “severe” impairment or combination of impairments.13 See 20 C.F.R.

4

§§ 404.1520(a)(4)(ii); see also Smolen v. Chater, 80 F.3d 1273, 1289-90 (9th Cir. 1996) (citing

5

Bowen v. Yuckert, 482 U.S. 140-41 (1987)). At the step two inquiry, “the ALJ must consider the

6

combined effect of all of the claimant’s impairments on her ability to function, without regard to

7

whether each alone was sufficiently severe.” Smolen, 80 F.3d at 1290 (holding that, by

8

erroneously considering only plaintiff’s “severe impairment” of scoliosis, “the ALJ ignored

9

substantial and undisputed evidence of Smolen’s other impairments and failed to consider how

10

the combination of those impairments affected Smolen’s ability to do basic work activities.”)

11

(emphasis in original)).

12

Failing to adequately consider a combination of non-severe impairments at step

13

two impacts the ALJ’s considerations of plaintiff’s RFC and the step five analysis. Smolen, 80

14

F.3d at 1290-91 (“Having found Smolen to suffer from only one ‘severe’ impairment at step two,

15

the ALJ necessarily failed to consider at step five how the combination of her other impairments

16

— and resulting incapacitating fatigue — affected her residual functional capacity to perform

17

work.) In determining a claimant’s RFC, the ALJ must consider “all” of the claimant’s

18

impairments, “even those that are not severe.” Carmickle v. Comm’r Soc. Sec. Admin., 533 F.3d

19

1155, 1164 (9th Cir. 2008) (“Even though a non-severe ‘impairment[ ] standing alone may not

20

significantly limit an individual’s ability to do basic work activities, it may — when considered

21

with limitations or restrictions due to other impairments — be critical to the outcome of a

22

claim”) (quoting SSR 96-8p)); Burch, 400 F.3d at 683-84 (quoting SSR 96-8p (1996)).

23
24
25
26

13

An impairment is severe when it significantly limits a claimant’s “physical or mental
ability to do basic work activities” and lasted or is expected to last “for a continuous period of at
least 12 months.” See 20 C.F.R. §§ 404.1509, 404.1520(a)(4)(ii), (c), 404.1521(a); accord 20 C.F.R.
§§ 416.920(a)(4)(ii), (c), 416.909. Basic work activities refer to “the abilities and aptitudes
necessary to do most jobs.”
16

1

Relatedly, an ALJ’s failure to account for all of a plaintiff’s functional limitations within the

2

RFC assessment can result in an incomplete hypothetical posed to the vocational expert. See

3

Flores v. Shalala, 49 F.3d 562, 570 (9th Cir. 1995) (a hypothetical question posed to a vocational

4

expert must “include all of the claimant’s functional limitations, both physical and mental,” and

5

it is error to exclude “significant probative evidence” from the hypothetical without explanation.)

6

1.

7
8

The ALJ Did Not Discuss Panic Disorder, Agoraphobia, Or Anxiety —
Even Though He Gave “Great Weight” To Medical Opinions Diagnosing
Plaintiff With These Impairments

At step two, the ALJ found that plaintiff suffered “severe” impairments of

9

“degenerative disc disease of the lumbar spine, depression, and obesity.” (AR 14.) The ALJ did

10

not specifically discuss or identify any “non severe” impairments at this step. (Id.) The ALJ did

11

not mention panic disorder, agoraphobia, or anxiety at this step.14 (Id.)

12

In assessing plaintiff’s RFC in light of her mental impairments, the ALJ gave

13

“very little weight” to the opinion of plaintiff’s treating psychiatrist, Dr. Champlin. (AR 19.)

14

The ALJ noted that Dr. Champlin diagnosed plaintiff with a “combination of bipolar disorder,

15

posttraumatic stress disorder, and a panic disorder with agoraphobia.” (AR 19, 466.) Dr.

16

Champlin opined that plaintiff was “permanently disabled” due to her childhood abuse. (AR 19,

17

217.) The ALJ discounted Dr. Champlin’s opinion because that doctor did not substantiate his

18

conclusion that plaintiff was “permanently disabled” with “any comments regarding specific

19

functional limitations experienced by the claimant.” (AR 19.) According to the ALJ, this failure,

20

combined with the fact that “claimant was able to work for many years” despite her abusive

21

history led the ALJ to give “very little weight” to Dr. Champlin’s opinion. (Id.)

22
23

The ALJ gave “great weight” to Dr. Goodman’s assessment. (Id.) The ALJ
discussed Dr. Goodman’s opinions and treatment notes, which described plaintiff’s “alcohol

24
25
26

14

The ALJ also did not discuss any of these impairments or functional limitations arising
therefrom in relation to plaintiff’s RFC (AR 19-20), or in connection with the hypothetical the ALJ
posed to the vocational expert. (AR 21.)
17

1

dependence,” “general anxiety disorder,” “depression,” “anxiety,” and “anxiety disorder,” among

2

other mental impairments. (AR 18-19.) Dr. Goodman noted that plaintiff’s “panic disorder” was

3

in remission in October 2007, and that her “possible alcohol dependence” was in “early

4

remission” at that time. (AR 19, 268.) Dr. Goodman opined that plaintiff had the equivalent of a

5

“moderate difficulty in social, occupational, or school functioning.” (AR 19, 268 (giving

6

plaintiff a Global Assessment of Functioning score of 58)15.)

7

The ALJ also gave “great weight” to Dr. Ikawa’s psychiatric review. (AR 20,

8

335-45.) The ALJ accepted Dr. Ikawa’s opinion that plaintiff’s affective disorder, anxiety

9

related disorder, and substance addiction disorder result in “mild” restrictions of daily activities

10

and “moderate deficiencies of concentration, persistence or pace.” (AR 20.) The ALJ concluded

11

that Dr. Ikawa’s assessment was “consistent with a finding that the claimant is able to perform

12

work requiring only simple instructions.” (Id.)

13

The ALJ also gave “great weight” to Dr. Castillo’s July 2008 assessment of

14

plaintiff’s mental impairments and limitations therefrom. (Id.) The ALJ explained that Dr.

15

Castillo, a psychiatrist, opined that plaintiff “was essentially normal other than [having a]

16

depressed and anxious mood.” (Id.) The ALJ also stated that Dr. Castillo had concluded that

17

plaintiff “suffers from a major depressive disorder, posttraumatic stress disorder, and a panic

18

disorder.” (AR 20, 328-31 (diagnosing plaintiff with “major depressive disorder,” “post

19

traumatic stress disorder,” “panic disorder, with agoraphobia,” and “alcohol abuse” with a Global

20

Assessment of Functioning score of 59).) The ALJ accepted Dr. Castillo’s conclusion that

21

plaintiff has “moderate difficulty in social, occupational, or school functioning” and “moderate

22

limitations in the areas of completing detailed or complex tasks or concentrating in a least two-

23

hour increments.” (AR 20, 328-31.)

24
15

25
26

See American Psychiatric Association, Diagnostic and Statistical Manual of Mental
Disorders, 34 (4th ed.) (“DSM–IV”). A GAF score of 51–60 indicates “moderate symptoms (e.g.,
flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social,
occupational, or school functioning (e.g., few friends, conflict with peers or co-workers).” Id. at 34.
18

1

As plaintiff argues, the ALJ did not “meaningfully analyze” several physicians’

2

diagnoses of panic disorder, agoraphobia and/or anxiety. (Pl.’s Mot. for Summ. J. at 17-18.)

3

Instead, the ALJ gave “great weight” to several medical opinions diagnosing these mental

4

impairments and describing functional limitations arising partially therefrom, but the ALJ never

5

discussed these impairments, his findings regarding their respective severities, or whether his

6

RFC assessment accounted for the functional limitations, if any, arising from these impairments

7

(except for concluding that plaintiff is “mentally limited to work requiring simple instructions”).

8

(AR 20.)

9

2.

The ALJ Gave “Great Weight” To Medical Evidence Reflecting Plaintiff’s
Anxiety

10
11

As to anxiety, the ALJ gave “great weight” to Dr. Garner’s opinion, which

12

discussed plaintiff’s “anxiety and depression” as well as Dr. Garner’s finding that plaintiff’s

13

“generalized anxiety disorder” had “significantly improved” back in October 2007. (AR 19

14

(citing AR 268) (emphasis added).) However, the ALJ also gave “great weight” to Dr. Castillo’s

15

more recent 2008 opinion that plaintiff has an “anxious mood” and “posttraumatic stress

16

disorder” giving rise to “moderate” functional limitations in completing complex tasks and

17

concentrating in 2-hour increments. (AR 20 (citing AR 328-31) (emphasis added).) The ALJ

18

also gave “great weight” to Dr. Ikawa’s 2008 opinion, wherein Dr. Ikawa opined that plaintiff

19

has an “anxiety related disorder,” “anxiety,” “ptsd [post traumatic stress disorder]” and “affective

20

disorder” causing “moderate” functional limitations in concentration, persistence, or pace. (AR

21

20 (citing AR 335-45) (emphasis added).)

22

3.

The ALJ Gave “Great Weight” To Medical Evidence Reflecting Plaintiff’s
Panic Disorder And Agoraphobia

23
24

As to panic disorder and agoraphobia, the ALJ gave “great weight” to Dr.

25

Garner’s opinion that plaintiff’s “panic disorder” was in remission back in October 2007. (AR

26

19 (citing AR 268) (emphasis added).) However, the ALJ also gave “great weight” to Dr.
19

1

Castillo’s 2008 opinion, wherein Dr. Castillo opined that plaintiff has “panic disorder with

2

agoraphobia” giving rise to “moderate” functional limitations in completing complex tasks and

3

concentrating in 2-hour increments. (AR 20 (citing AR 328-31) (emphasis added).) The ALJ

4

also gave “great weight” to Dr. Ikawa’s 2008 opinion, wherein Dr. Ikawa opined that plaintiff

5

has “panic d/o” causing “moderate” functional limitations in concentration, persistence, or pace.

6

(AR 20 (citing AR 335-45) (emphasis added).)

7

4.

The ALJ Did Not Address Whether He Believed Panic Disorder,
Agoraphobia, And/Or Anxiety To Be Medically Determinable Impairments

8
9

While the ALJ gave “little weight” to Dr. Champlin’s opinion and “great weight”

10

to the opinions of Dr. Ikawa and Dr. Castillo, all three of these physicians diagnosed plaintiff

11

with panic disorder, agoraphobia, anxiety, or some combination thereof.16 (AR 466-67; 469-70;

12

473-74; 481-82; 485-86; 487-88, 490-92; 495-96 (Dr. Champlin diagnosed plaintiff with a

13

combination of “bipolar disorder,” “posttraumatic stress disorder,” “panic disorder with

14

agoraphobia,” and/or “anxiety disorder”); AR 335-45 (Dr. Ikawa diagnosed plaintiff with “panic

15

d/o” “anxiety related disorder,” “anxiety,” “ptsd [post traumatic stress disorder]” and “affective

16

disorder” causing “moderate” functional limitations in concentration, persistence, or pace); AR

17

328-31 (Dr. Castillo diagnosed plaintiff with “major depressive disorder,” “post traumatic stress

18

disorder,” “panic disorder, with agoraphobia,” and “alcohol abuse” with a Global Assessment of

19

Functioning score of 59, causing “moderate difficulty in social, occupational, or school

20
16

21
22
23
24
25
26

See e.g., Bustamante v. Massanari, 262 F.3d 949, 956 (9th Cir. 2001) (where “every
psychiatrist or psychologist who examined” the plaintiff found “significant mental problems,” and
where the ALJ’s RFC nonetheless provided that plaintiff could perform “basic” work activities
involving “simple instructions,” the Court of Appeals held that “the evidence as a whole
overwhelmingly supports” plaintiff’s claim that he suffers severe mental impairments and the ALJ
erred by not so finding.); Ballesteros v. Astrue, No. CV 09-06372 SS, 2010 WL 3432442, at *3-9
(C.D. Cal. Aug. 30, 2010) (unpublished) (holding that the “ALJ selectively reviewed the evidence
regarding [p]laintiff’s mental impairments” and erred in not concluding that plaintiff had “severe”
mental impairments at step two, as well as by not considering the impairments in assessing plaintiff’s
RFC, because “[e]ven if the ALJ had been correct that [p]laintiff’s mental impairments were nonsevere, he was still required to consider the limitations arising from those impairments in
determining her RFC.”)
20

1

functioning” and “moderate limitations in the areas of completing detailed or complex tasks or

2

concentrating in a least two-hour increments.”).)

3

Inexplicably, the ALJ never discussed panic disorder, agoraphobia, or anxiety in

4

his decision, never described any of them as non-severe or severe, and, in short, never clearly

5

considered them.17 See e.g. Rodriguez v. Astrue, No. CV10-0511-PHX-DGC, 2010 WL

6

4684015 at *2-3 (D. Ariz. Nov. 12, 2010) (unpublished) (where the ALJ gave “substantial

7

weight” to the opinions of a certain physician,“[i]n the face of this endorsement,” it was error to

8

fail to accept that physician’s assessment of the plaintiff’s “ability to do work-related activities”

9

without providing specific and legitimate reasons for doing so). If the ALJ intended to reject the

10

above-described medical opinions to the extent they reflect diagnoses of panic disorder,

11

agoraphobia, and anxiety, he did not explain as much. If the ALJ intended his classification of

12

“depression” as a severe impairment to encapsulate diagnoses of panic disorder, agoraphobia,

13

and anxiety, he did not explain as much.18 The ALJ erred by not explaining why he did not find

14

that plaintiff’s panic disorder, agoraphobia, and anxiety were not medically determinable

15

impairments, let alone severe or non-severe impairments.

16

////

17

////

18
19
20
21
22
23
24
25
26

17

Defendant argues that the ALJ properly assessed plaintiff’s mental impairments, because
he did not need to discuss anxiety, panic disorder, or agoraphobia after determining that plaintiff was
less than credible. (Def.’s Opp’n & Cross-Motion for Summ. J. at 14-15.) Defendant implies that,
in discounting plaintiff’s credibility, the ALJ also implicitly rejected all portions of medical opinions
arising from plaintiff’s subjective reports of her symptoms. (Id.) However, defendant fails to
address the fact that the ALJ specifically (and repeatedly) gave “great weight” to these opinions.
(AR 19-20.) Notwithstanding his acceptance of several medical opinions reflecting these mental
impairments, the ALJ never squarely addressed the impairments and limitations resulting therefrom.
The ALJ has not made it clear that he “considered” these mental impairments at step two or in
assessing plaintiff’s RFC. Moreover, it is unclear that these physicians’ diagnoses arose solely from
plaintiff’s subjective reports of symptoms, although defendant assumes as much.
18

As plaintiff notes, the ALJ found “depression” to be a severe impairment, but “depression”
does not necessarily encompass anxiety, panic disorder, and/or agoraphobia. (Pl.’s Mot. for Summ.
J. at 17-18; Pl.’s Reply at 4.)
21

1

5.

2

The ALJ’s RFC Assessment Included A Limitation Regarding Following
“Simple Instructions,” But This Limitation Does Not Necessarily Account
For Functional Limitations Arising From Panic Disorder, Agoraphobia,
And/Or Anxiety, Such As A Moderately Limited Ability To “Concentrate”

3
4

The ALJ never discussed whether plaintiff suffered from panic disorder,

5

agoraphobia, and/or anxiety, so the ALJ never addressed whether plaintiff suffered any

6

functional limitations arising in part therefrom. Various physicians assessed plaintiff with

7

“moderate” limitations in social functioning, but the ALJ’s RFC assessment does not clearly

8

reflect all of the “moderate” limitations reflected in the medical record. (AR 20.) Except for

9

limiting plaintiff to work involving only “simple instructions,” the ALJ never clearly brought

10

these mental conditions to bear upon plaintiff’s functional limitations. (AR 20.) Therefore, the

11

ALJ did not include any of these mental impairments (or functional limitations arising in part

12

therefrom) in his hypothetical to the vocational expert. (AR 21.)

13

As discussed above, Dr. Castillo opined that plaintiff had “moderate” limitations

14

in her ability to complete “detailed tasks” and, separately, that plaintiff had “moderate”

15

limitations in her ability to “concentrate for at least two hour increments.” (AR 330 (emphasis

16

added).) Dr. Ikawa opined that plaintiff has “moderate” difficulties in “maintaining

17

concentration, persistence, or pace.” (AR 339, 343 (emphasis added).) However, the ALJ’s

18

RFC assessment did not express any limit on plaintiff’s ability to “concentrate.” (AR 20.)

19

Instead, the ALJ’s RFC assessment provides only for “work requiring simple instructions.” (AR

20

20.)

21

Plaintiff contends that a functional limitation regarding her ability to follow

22

“simple instructions” does not necessarily incorporate “moderate” limitations in concentration

23

that Dr. Castillo and Dr. Ikawa opined arise in part from, for instance, plaintiff’s “panic

24

disorder.” (AR 330, 339, 343.) Defendant responds that a “simple instructions” limitation

25

adequately incorporates “moderate” limitations on concentration. (Def.’s Opp’n & Cross-Motion

26

for Summ. J. at 16-17.) Defendant’s argument is not well-taken.
22

1

Having the ability to follow only “simple instructions” does not necessarily

2

require the ability to “concentrate” for any particular amount of time. Defendant argues that the

3

case of Stubbs-Danielson v. Astrue stands for the proposition that a limitation to “simple routine

4

work adequately accommodate[s] a moderate limitation in pace,” but Stubbs-Danielson is

5

factually distinguishable.19 (Def.’s Opp’n & Cross-Motion for Summ. J. at 16 (citing Stubbs-

6

Danielson v. Astrue, 539 F.3d 1169, 1171-74 (9th Cir. 2008).) In Stubbs-Danielson, the ALJ’s

7

RFC assessment provided that “the claimant retains the residual functional capacity to perform

8

simple, routine, repetitive sedentary work, requiring no interaction with the public.” Stubbs-

9

Danielson, 539 F.3d at 1173-74. The Ninth Circuit Court of Appeals explained that “an ALJ’s

10

assessment of a claimant adequately captures restrictions related to concentration, persistence, or

11

pace where the assessment is consistent with restrictions identified in the medical testimony.” Id.

12

at 1174 (citing Howard v. Massanari, 255 F.3d 577, 582 (8th Cir. 2001); Smith v. Halter, 307

13

F.3d 377, 379 (6th Cir. 2001).)

14

First, unlike the RFC at issue in Stubbs-Danielson, where the ALJ’s RFC reflected

15

mental/social limitations of “simple” work as well as “routine” and “repetitive” work “requiring

16

no interaction with the public,” here the ALJ’s RFC assessment reflected only a limitation to

17

“work requiring simple instructions.” See Stubbs-Danielson, 539 F.3d at 1173-74. The RFC

18

assessment in Stubbs-Danielson thus reflected many more mental/social limitations than the RFC

19

assessment in this case. Accordingly, contrary to defendant’s characterization, Stubbs-Danielson

20

does not suggest that a limitation to “simple” work necessarily accommodates a moderately

21

limited ability to concentrate in two-hour increments. Moreover, in this case Dr. Castillo

22
19

23
24
25
26

Defendant also cites authorities suggesting that a limitation to work with “simple
instructions” is consistent with “unskilled” work (Def.’s Opp’n & Cross-Motion for Summ. J. at 1617), however, whether such consistency exists does not speak to whether the ALJ’s RFC properly
reflected the mental impairments and corresponding functional limitations described within the
medical opinions to which he afforded great weight. In other words, whether “simple” work and
“unskilled” work are one in the same does not speak to the ALJ’s obligation to consider the various
mental impairments reflected in the substantial evidence, as well as the functional limitations arising
therefrom.
23

1

separately characterized an ability to complete simple tasks and an ability to concentrate; he did

2

not characterize these abilities as one in the same. (AR 330.) A plain reading of the ALJ’s RFC

3

assessment adopted Dr. Castillo’s finding regarding simple task completion, but did not clearly

4

incorporate his finding regarding limits on concentration ability, and it cannot be said that the

5

ALJ’s RFC assessment was “consistent with the restrictions identified in the medical testimony.”

6

See Stubbs-Danielson, 539 F.3d at 1174. The ALJ’s RFC assessment did not clearly reflect any

7

limits on plaintiff’s concentration abilities, notwithstanding the medical evidence suggesting such

8

limits. Further, the ALJ’s hypothetical to the vocational expert incorporated the ALJ’s RFC

9

assessment (and its shortcomings), and did not add further restrictions pertaining to plaintiff’s

10

concentration or social functioning. (AR 20-21.) Thus, it is possible that the vocational expert

11

considered plaintiff as having no limits on her concentration abilities.
Conclusion

12

6.

13

The ALJ’s RFC assessment failed to account for moderate limitations in plaintiff’s

14

ability to concentrate for two-hour increments. See e.g., Ballesteros, 2010 WL 3432442, at *8-9

15

(“[w]hile the ALJ did take into account [p]laintiff’s mild problems understanding, remembering,

16

and carrying out complex instructions, he completely disregarded substantial evidence in the

17

record that [p]laintiff suffers from frequent and disabling anxiety attacks.”) If the ALJ intended

18

“simple instructions” to encapsulate all functional limitations he believed to arise from anxiety,

19

panic disorder, and agoraphobia, he certainly did not explain as much. Similarly, if the ALJ

20

believed that plaintiff’s panic disorder, agoraphobia, and anxiety do not give rise to any functional

21

limitations, he did not explain as much.

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Because “simple” work may nonetheless require prolonged concentration, it is not

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“clear from the record that [the] ALJ’s error was ‘inconsequential to the ultimate nondisability

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determination.’” See Robbins, 466 F.3d at 885; Tommasetti, 533 F.3d at 1038. Accordingly, the

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undersigned cannot find that the ALJ’s failure to consider panic disorder, agoraphobia, and

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anxiety — and the functional limitations potentially arising therefrom — resulted in harmless
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error.

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Also, as described above, the ALJ did not “consider” panic disorder, agoraphobia,

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or anxiety in discussing severe and non-severe impairments at step two or in assessing plaintiff’s

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RFC. See Carmickle, 533 F.3d at 1164. The above-described medical evidence suggests that

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plaintiff may have suffered medically determinable impairments of panic disorder, agoraphobia,

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and anxiety, as well as “moderate” functional limitations (i.e., in an ability to concentrate for two

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hours at a time) arising therefrom. Cf. Burch, 400 F.3d at 684 (holding that the ALJ did not err in

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assessing plaintiff’s RFC because plaintiff failed to set forth evidence, and there was no evidence

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in the record of functional limitations caused by plaintiff’s obesity). Accordingly, the ALJ erred

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in failing to consider anxiety, panic disorder, and agoraphobia at step two, in assessing plaintiff’s

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RFC, and in crafting the hypothetical given to the vocational expert.

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C.

Remand Is Appropriate
The decision of whether to remand for further proceedings or simply to award

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benefits is within the court’s discretion. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir.

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1989). Generally, the court should direct the award of benefits in cases where no useful purpose

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would be served by further administrative proceedings. Varney v. Sec’y of Health & Human

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Servs., 859 F.2d 1396, 1399 (9th Cir. 1988). The undersigned finds that the ALJ’s step two and

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RFC determinations were improper, because the ALJ did not consider panic disorder,

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agoraphobia, or anxiety in discussing severe and non-severe impairments at step two or in

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assessing plaintiff’s RFC. The undersigned also finds that the “simple instructions” component of

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ALJ’s RFC assessment does not necessarily account for limitations arising from plaintiff’s panic

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disorder, agoraphobia, or anxiety, and while the assessment reflects plaintiff’s moderately limited

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ability to perform complex tasks, such limitation does not necessarily account for plaintiff’s

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moderately limited ability to concentrate.

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On remand, the ALJ must determine at step two whether plaintiff has severe or
non-severe mental impairments other than depression (such as panic disorder, agoraphobia, and
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anxiety).20 In addition, the ALJ must also re-evaluate his RFC assessment and address whether

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any of the above-described mental impairments give rise to any functional limitations, and if so,

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the ALJ must determine the nature and extent of such limitations (such as a moderately limited

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ability to concentrate for two-hour increments), supporting such determinations with substantial

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evidence in the record. In re-evaluating the RFC determination, the ALJ must consider the

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combined effects of all of plaintiff’s impairments. The ALJ must complete the five-step analysis

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so that this Court has adequate information in reviewing any decision for harmless error.

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Because these findings may require taking additional testimony from a vocational

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expert, such as testimony regarding jobs that accommodate moderate limitations on one’s ability

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to concentrate (and any other potential limitations arising from plaintiff’s potential mental

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impairments discussed above), the undersigned concludes that remand is appropriate. Although

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the undersigned understands the importance of expediting disability claims, Varney, 859 F.2d at

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1401, remanding this case for further administrative proceedings will serve a useful purpose in the

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resolution of this case.

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IV.

CONCLUSION

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For the foregoing reasons, IT IS HEREBY ORDERED that:

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1.

Plaintiff’s motion for summary judgment (Pl.’s Mot. for Summ. J., Dkt.

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Such determination should follow the agency’s own regulations for mental impairments.
See Maier v. Comm’r of the Soc. Sec. Admin., 154 F.3d 913, 914-15 (9th Cir. 1998) (citing 20
C.F.R. § 416.920a) (per curiam). First, the ALJ must determine the presence or absence of certain
medical findings relevant to the plaintiff’s ability to work. 20 C.F.R. § 416.920a(b)(1). Second,
when the plaintiff establishes these medical findings, the ALJ must rate the degree of functional loss
resulting from the impairment by considering four areas of function: (a) activities of daily living; (b)
social functioning; (c) concentration, persistence, or pace; and (d) episodes of decompensation. 20
C.F.R. § 416.920a(c)(2)-(4). Third, after rating the degree of loss, the ALJ must determine whether
the claimant has a severe mental impairment. 20 C.F.R. § 416.920a(d). Fourth, when a mental
impairment is found to be severe, the ALJ must determine if it meets or equals a listing in 20 C.F.R.
Part 404, Subpart P, Appendix 1. 20 C.F.R. § 416.920a(d)(2). Finally, if a listing is not met, the ALJ
must then assess the plaintiff’s RFC, and the ALJ’s decision “must incorporate the pertinent findings
and conclusions” regarding the plaintiff’s mental impairment, including “a specific finding as to the
degree of limitation in each of the functional areas described in [§ 416.920a(c)(3) ].” 20 C.F.R. §
416.920a(d)(3), (e)(4).
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Nos. 14-15) is granted in part;
2.

Defendant’s cross-motion for summary judgment (Def.’s Opp’n & Cross-

Motion for Summ. J., Dkt. No. 18) is denied; and
3.

This case is remanded to the ALJ for further proceedings consistent with

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this order pursuant to 42 U.S.C. § 405(g), sentence four. The Clerk of Court is directed to enter a

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separate judgment herein, as provided for under Rules 58 and 79(a) of the Federal Rules of Civil

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Procedure. See Shalala v. Schaefer, 509 U.S. 292, 296-97 (1993).

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IT IS SO ORDERED.
DATED: February 29, 2012

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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