Mulinix v. O'Malley

Filing 19

MEMORANDUM DECISION AND ORDER - IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED, that Plaintiffs Complaint for Review of a Social Security Disability or Supplemental Security Income Decision (Dkt. 1) is DENIED, and this action is DISMISSED in its entirety, with prejudice. Signed by US Magistrate Judge Raymond Edward Patricco, Jr. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jd)

UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO

KENDRA MICHAELA M.,

Case No.: 1:24-cv-00149-REP
MEMORANDUM DECISION AND
ORDER

Plaintiff,
vs.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

Pending is Plaintiff Kendra Michaela M.’s “Complaint for Review of a Social Security
Disability or Supplemental Security Income Decision” (Dkt. 1), appealing the Social Security
Administration’s denial of her disability claim. This action is brought pursuant to 42 U.S.C.
§§ 405(g), 1383(c)(3). Having carefully considered the record and otherwise being fully
advised, the Court enters the following Memorandum Decision and Order.
I. ADMINISTRATIVE PROCEEDINGS
In a determination dated August 24, 2012, Plaintiff was found disabled beginning on July
18, 2012. After a periodic review, Plaintiff’s disability was subsequently determined to have
continued in a determination dated March 4, 2014. After another periodic review on July 23,
2021, it was determined that Plaintiff was no longer disabled as of July 23, 2021. This
determination was upheld upon reconsideration after a disability hearing dated October 14, 2021.
Thereafter, Plaintiff filed a Request for Hearing before an Administrative Law Judge (“ALJ”).
On November 8, 2022, ALJ David Willis held a video hearing, at which time Plaintiff, appearing
pro se, testified. Robin Pyle, an impartial vocational expert, also appeared and testified at the
same hearing.
MEMORANDUM DECISION AND ORDER - 1

On February 15, 2023, the ALJ issued a decision denying Plaintiff’s claim, finding that
her disability ended on July 23, 2021, and she had not become disabled again since that date.
Plaintiff timely requested review from the Appeals Council. On January 16, 2024, the Appeals
Council denied Plaintiff’s Request for Review, making the ALJ’s decision the final decision of
the Commissioner of Social Security.
Having exhausted her administrative remedies, Plaintiff brings this case – again pro se.
She contends that the ALJ’s decision is not supported by substantial evidence, stating generally:
Factual Findings have a tendency to contradict each other, e.g.,
[part] 7 and [part] 8, stressors of family [were] not taken into
consideration due to my mental illness. [According to part 15],
claims disability ended but my mental health is not curable –
especially the autism spectrum.
Compl. at 3 (Dkt. 1). Plaintiff requests that the Court either reverse the ALJ’s decision and find
that she is entitled to benefits, or remand the case for further proceedings. Id. at 3-4.
II. STANDARD OF REVIEW
To be upheld, the Commissioner’s decision must be supported by substantial evidence
and based on proper legal standards. 42 U.S.C. § 405(g); Trevizo v. Berryhill, 871 F.3d 664 (9th
Cir. 2017). Findings as to any question of fact, if supported by substantial evidence, are
conclusive. See 42 U.S.C. § 405(g). If there is substantial evidence to support the ALJ’s factual
decisions, they must be upheld, even when there is conflicting evidence. See Treichler v.
Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014).
“Substantial evidence” is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971); Ludwig v.
Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012). The standard requires more than a scintilla but less
than a preponderance. Trevizo, 871 F.3d at 674. It “does not mean a large or considerable
amount of evidence.” Pierce v. Underwood, 487 U.S. 552, 565 (1988).
MEMORANDUM DECISION AND ORDER - 2

With respect to questions of fact, the Court is to review the record as a whole to decide
whether it contains evidence that would allow a reasonable mind to accept the conclusions of the
ALJ. Richardson, 402 U.S. at 401; see also Ludwig, 681 F.3d at 1051. The ALJ is responsible
for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities.
Treichler, 775 F.3d at 1098. Where the evidence is susceptible to more than one rational
interpretation, the reviewing court must uphold the ALJ’s findings if they are supported by
inferences reasonably drawn from the record. Ludwig, 681 F.3d at 1051. In such cases, the
reviewing court may not substitute its judgment or interpretation of the record for that of the
ALJ. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1196 (9th Cir. 2004).
The decision must be based on proper legal standards and will be reversed for legal error.
Zavalin v. Colvin, 778 F.3d 842, 845 (9th Cir. 2015). Considerable weight is given to the ALJ’s
construction of the Social Security Act. See Vernoff v. Astrue, 568 F.3d 1102, 1105 (9th Cir.
2009). However, this Court “will not rubber-stamp an administrative decision that is
inconsistent with the statutory mandate or that frustrates the congressional purpose underlying
the statute.” Smith v. Heckler, 820 F.2d 1093, 1094 (9th Cir. 1987).
III. DISCUSSION
A.

Sequential Process
The Commissioner has established a multi-step sequential evaluation process for

determining whether a person’s disability has ended. 20 C.F.R. §§ 404.1594(f), 416.994(b)(5).
This multi-step continuing disability review process is similar to the five-step sequential
evaluation process used to evaluate initial claims, with additional attention to whether there has
been medical improvement. Compare 20 C.F.R. §§ 404.1520, 416.920, with 20 C.F.R. §§
404.1594(f), 416.994(b)(5). A claimant is disabled only if her impairment is “of such severity
that [s]he is not only unable to do her previous work[,] but cannot, considering h[er] age,
MEMORANDUM DECISION AND ORDER - 3

education, and work experience, engage in any other kind of substantial gainful work which
exists in the national economy.” 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
Determination of whether a person’s eligibility has ended for disability benefits involves
an eight-step process under Title II, and a seven-step process under Title XVI. 20 C.F.R.
§§ 404.1594(f)(1)-(8), 416.994(b)(5)(i)-(vii). The processes are the same, except that the Title II
process addresses substantial gainful activity at the outset (see infra); the Title XVI process does
not. These otherwise identical steps, and the ALJ’s handling of each of them, are broadly
summarized below.
The first step asks whether the claimant is engaging in substantial gainful activity. If the
claimant is performing substantial gainful activity and any applicable trial work period has been
completed, the claimant is no longer disabled. 20 C.F.R. § 404.1594 (f)(1). Here, the ALJ found
that Plaintiff had not engaged in substantial gainful activity, and proceeded to step two. AR 41.
The second step asks whether the claimant has an impairment or combination of
impairments that meet or equal the severity of listed impairments set forth at 20 C.F.R. Part 404,
Subpart P, Appendix 1. 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925,
416.926. If the claimant does, she is still disabled. 20 C.F.R. §§ 404.1594(f)(2),
416.994(b)(5)(i). Here, the ALJ found that Plaintiff had the following medically determinable
impairments since July 23, 2021: “anxiety, depression, right wrist pain, and a right shoulder
injury.” AR 42 (“These are claimant’s current impairments.”). However, the ALJ found that
Plaintiff did not have an impairment or combination of impairments which met or medically
equaled the severity of a qualifying, listed impairment. AR 42-44.
The third step addresses whether there has been medical improvement in the claimant’s
condition. 20 C.F.R. §§ 404.1594(f)(3), 416.994(b)(5)(ii). Medical improvement is defined as
any decrease in the medical severity of the claimant’s impairments which were present at the
MEMORANDUM DECISION AND ORDER - 4

time of the most recent favorable medical decision. 20 C.F.R. §§ 404.1594(b)(1),
416.994(b)(1)(i). The determination that there has been a decrease in medical severity must be
based on improvements in symptoms, signs, and/or laboratory findings associated with the
claimant’s impairments. Id. If medical improvement has occurred, the analysis proceeds to the
fourth step. If no medical improvement has occurred, the analysis proceeds to the fifth step.
Here, the ALJ determined that, by July 23, 2021, there had been a decrease in medical severity of
the impairments present at the time of the comparison point decision (“CPD”) – the date of the
most recent favorable medical decision (March 4, 2014). AR 41 (ALJ noting that, at the time of
the CPD, Plaintiff had only the following medically determinable impairments: anxiety and
depression); see also AR 44-45 (ALJ finding that (i) “despite the claimant’s anxiety and
depression symptoms, the majority of mental status examinations found the claimant alert and
oriented with a normal mood, a normal affect, a grossly intact memory, fair to appropriate
insight, appropriate judgment, a normal attention span, normal concentration, and a linear
thought process”; (ii) “the claimant was able to engage in a broad range of activities of daily
living during the relevant period”; and therefore (iii) “the combination of normal mental status
examination findings as well as the claimant’s activities of daily living supports the claimant’s
CPD impairment symptoms decreased.”).
If there has been medical improvement at step three, the fourth step considers whether
such improvement is related to the claimant’s ability to perform work. 20 C.F.R.
§§ 404.1594(f)(4), 416.994(b)(5)(iii). Medical improvement is related to the claimant’s ability to
perform work if it results in an increase in the claimant’s residual functional capacity (“RFC”).
20 C.F.R. §§ 404.1594(b)(3), 416.994(b)(1)(iii). If the medical improvement is related to the
claimant’s ability to work, the analysis proceeds to the sixth step. Here, the ALJ determined that
Plaintiff’s medical improvement was related to her ability to perform work because, by July 23,
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2021, her CPD impairments (anxiety and depression) no longer met or medically equaled the
same listings that were met at the time of the CPD on March 4, 2014. AR 45 (citing 20 C.F.R.
§§ 404.1594(c)(3)(i), 416.994(b)(2)(iv)(A)).
If there has been no medical improvement at step three (or a medical improvement at step
three that was not related to the claimant’s ability to perform work at step four), the fifth step
considers whether the case meets any of the special exceptions to medical improvement for
determining that disability has ceased. 20 C.F.R. §§ 404.1594(f)(5), 416.994(b)(5)(iv). There
are two groups of exceptions. See 20 C.F.R. §§ 404.1594(d) & (e), 416.994(b)(3) & (4). If one
of the first-group exceptions applies, the analysis proceeds to the next step; if one of the secondgroup exceptions applies, the claimant’s disability ends; and if no exceptions apply, the
claimant’s disability continues. Here, because the ALJ concluded at step four that there had been
medical improvement related to Plaintiff’s ability to work (supra), the ALJ proceeded directly to
step six.
The sixth step asks the ALJ to determine whether all of the claimant’s current
impairments in combination are severe – that is, whether they impose more than a minimal
limitation on her physical or mental ability to perform basic work activities. 20 C.F.R.
§§ 404.1594(f)(6), 416.994(b)(5)(v). If not, the claimant is no longer disabled; but if so, the
analysis proceeds to the next step. Here, the ALJ determined that, since July 23, 2021, Plaintiff
continued to have a severe impairment or combination of impairments. AR 45. Specifically, the
ALJ determined that Plaintiff’s anxiety and depression were severe, but that her right wrist pain
and right shoulder injury were not severe. Id.
The seventh step requires the ALJ to assess the claimant’s RFC based on the current
impairments and determine if she can perform her past relevant work. 20 C.F.R. §§
404.1594(f)(7), 416.994(b)(5)(vi). An individual’s RFC is her ability to do physical and mental
MEMORANDUM DECISION AND ORDER - 6

work activities on a sustained basis despite limitations from her impairments. 20 C.F.R.
§§ 404.1545, 416.945. An individual’s past relevant work is work she performed within the last
15 years, or 15 years prior to the date that disability must be established, if the work lasted long
enough for the claimant to learn to do the job and engaged in substantial gainful activity. 20
C.F.R. §§ 404.1560(b), 404.1565, 416.960(b), 416.965. If the claimant possesses the capacity to
perform her past relevant work, the claimant’s disability has ended. If not, the analysis proceeds
to the to the next and final step. Here, the ALJ concluded that, since July 23, 2021, based on the
current impairments, Plaintiff:
has had the residual functional capacity to perform a full range of
work at all exertional levels but with the following non-exertional
limitations: the claimant is limited to performing simple routine
repetitive tasks. She is precluded from work involving production
pace or quotas (e.g., as seen on an assembly line). She is limited to
performing simple work-related decisions utilizing judgment or
dealing with changes in the work setting. She can occasionally
tolerate occasional interactions with supervisors, coworkers, and
members of the public.
AR 45-49. After doing so, the ALJ proceeded to acknowledge that Plaintiff has no past relevant
work. AR 49.
In the eighth and final step, if it has been established that a claimant can no longer
perform past relevant work, the burden shifts to the Commissioner to show that the claimant
retains the ability to do alternate work and to demonstrate that such alternate work exists in
significant numbers in the national economy. 20 C.F.R. §§ 404.1594(f)(8), 416.994(b)(5)(vii).
If the claimant can do such other work, she is not disabled; if the claimant cannot do other work
and meets the duration requirement, she is disabled. Here, despite finding that Plaintiff has no
past relevant work, he nonetheless concluded that, as of July 23, 2021, she was capable of
working full-time as a kitchen helper, housekeeping cleaner, and garment sorter. AR 49-50.

MEMORANDUM DECISION AND ORDER - 7

Based on these findings, the ALJ concluded that Plaintiff’s disability ended on July 23, 2021,
and that she had not become disabled again since that date. AR 50.
B.

Analysis
This action was filed on March 21, 2024 (Dkt. 1). On March 22, 2024, the Court issued a

Procedural Order (Dkt. 6), which indicated that “the Federal Rules of Civil Procedure
Supplemental Rules for Social Security Actions Under 42 U.S.C. § 405(g) govern these
proceedings.” On March 29, 2024, the Court granted Plaintiff’s In Forma Pauperis Application
(Dkt. 9).
On May 16, 2024, Defendant timely filed a certified copy of the administrative record
(Dkt. 12). Under Rule 6 of the above-referenced Supplemental Rules, the deadline for filing a
brief in support of Plaintiff’s Complaint was June 17, 2024 (30 days after the filing of the
certified copy of the administrative record). Supp. Soc. Sec. Rule 6. Plaintiff neither filed an
opening brief nor sought an extension of the June 18, 2024 deadline.
On August 23, 2024, the Court issued an Order to Show Cause, outlining the briefing
requirements and stating in relevant part:
Plaintiff has a duty to prosecute this action, and failure to do so may
be grounds for dismissal for lack of prosecution. See Fed. R. Civ.
P. 41(b); see also Long v. Astrue, 416 F. App’x 633, 634 (9th Cir.
2011) (unpublished) (upholding the dismissal of a Social Security
appeal for failure to prosecute where the plaintiff had not served
summons and did not show cause for his failure to do so).
ORDER
Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff
shall file a response by September 10, 2024 showing cause why
Plaintiff has not filed a brief in support of Plaintiff’s Complaint by
the June 17, 2024 deadline. Failure to respond to this Order may
result in the dismissal of this action without further notice.
8/23/24 Order to Show Cause at 1-2 (Dkt. 13) (bold and underline in original).

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On September 9, 2024, Plaintiff responded (Dkt. 14), indicating that she was not aware
of the need to file a brief in support of her Complaint. Plaintiff’s response also seemed to
indicate the contemporaneous inclusion of an incorporated supporting brief. Id. at 1 (“If it would
please the court, please take into consideration my following brief.”).
On September 10, 2024, the Court issued an Order, accepting Plaintiff’s September 9,
2024 response as her supporting brief, instructing Plaintiff to file an amended supporting brief by
September 25, 2024, and also stating:
[T]he Committee Notes under Rule 6 of the above-referenced
Supplemental Rules provide that Plaintiff’s brief is to “cit[e] to the
parts of the administrative record that support an assertion that the
final decision is not supported by substantial evidence or is contrary
to law.” Given this additional direction, Plaintiff is permitted leave
to file an amended supporting brief on or before September 25,
2024.
9/10/24 Order at 2 (Dkt. 15) (emphasis added).
On September 24, 2024, Plaintiff responded (Dkt. 17). Critically, however, Plaintiff’s
response includes only subjective commentary on the ALJ’s February 15, 2023 decision and
does not cite to any specific evidence from the 1,242-page administrative record that could be
understood as supportive of her general claim that the ALJ’s decision is not supported by
substantial evidence.
The Court recognizes that “a document filed pro se is to be liberally construed, and a pro
se complaint, however inartfully pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotations
and citations omitted). Nevertheless, the Court will not address issues that are not argued with
any specificity. See Carmickle v. Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1166 n.2 (9th Cir.
2008) (failure to address the ALJ’s findings “with any specificity” in briefing constitutes
waiver). By not citing to the parts of the administrative record that support Plaintiffs claim that
MEMORANDUM DECISION AND ORDER - 9

the ALJ erred, the Court necessarily struggles to grant the relief Plaintiff now seeks. See Burch
v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (“[C]laimant carries the initial burden of proving
disability.”). At bottom, unsupported allegations that the ALJ committed legal error, or that the
ALJ’s determination is not supported by substantial evidence, is not enough. See Indep. Towers
of Wash. v. Washington, 350 F.3d 925, 929-30 (9th Cir. 2003) (holding that the Ninth Circuit
“has repeatedly admonished that we cannot ‘manufacture arguments for appellant’” and will only
review “‘issues which are argued specifically and distinctly in a party’s opening brief’”) (quoting
Greenwood v. Fed. Aviation Admin., 28 F.3d 971, 977 (9th Cir. 1994) (further noting: “Judges
are not like pigs, hunting for truffles buried in briefs.”)); see also Hibbs v. Dep’t of Human Res.,
273 F.3d 844, 873 (9th Cir. 2001) (finding that the appellant’s failure to develop his argument
rendered it incapable of assessment by the court).
Despite this shortcoming, and aside from merely disagreeing with the ALJ’s decision in
multiple respects, the Court understands Plaintiff’s briefing to generally dispute the ALJ’s
findings in three substantive respects: (i) the ALJ erred by excluding certain conditions as
medically determinable impairments at step two of the sequential process; (ii) the ALJ failed to
properly consider whether her understood mental impairments met or medically equaled a listed
impairment; and (iii) a June 2023 psychiatric evaluation by Phares Book, Psy.D, confirmed her
continued, disabling condition. See generally Pl.’s Brief at 1-4 (Dkt. 17). None of these
arguments supports remand.
1.

The ALJ Properly Considered Plaintiff’s Medically Determinable Impairments

As part of the sequential process, the ALJ determined that, since July 23, 2021, Plaintiff
had the following medically determinable impairments: “anxiety, depression, right wrist pain,
and a right shoulder injury.” AR 42; compare with AR 41 (noting Plaintiff’s medically
determinable impairments at the time of the CPD as only anxiety and depression). Plaintiff
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argues this list is “not correct or current,” responding that (i) she additionally suffers from
borderline personality disorder, bi-polar disorder, and autism spectrum disorder; and (ii)
“depression is not the correct diagnosis, it is major depressive disorder, severe, recurrent.” Pl.’s
Brief at 2 (Dkt. 17).
To be medically determinable, an impairment must “result from anatomical,
physiological, or psychological abnormalities that can be shown by medically acceptable clinical
and laboratory diagnostic techniques.” 20 C.F.R. §§ 404.1521, 416.921. “Therefore, a physical
or mental impairment must be established by objective medical evidence from an acceptable
medical source.” Id.; see also Ukolov v. Barnhart, 420 F.3d 1002, 1006 (9th Cir. 2005)
(“[R]egardless of how many symptoms an individual alleges, or how genuine the individual’s
complaints may appear to be, the existence of a medically determinable physical or mental
impairment cannot be established in the absence of objective medical abnormalities; i.e, medical
signs and laboratory findings.”). Objective medical evidence is something more than a
claimant’s statement of symptoms, a diagnosis, or a medical opinion. See 20 C.F.R.
§§ 404.1521, 416.921 (“We will not use your statement of symptoms, a diagnosis, or a medical
opinion to establish the existence of an impairment(s).”). It is instead defined as observable
laboratory findings or clinical examination signs. 20 C.F.R. §§ 404.1502(f) & (g), 416.902(f) &
(g). Plaintiff’s arguments relating to the existence of additional medically determinable
impairments – beyond those already identified by the ALJ (see AR 42) – fall short of this
standard.
Preliminarily, when assessing Plaintiff’s mental impairments, the ALJ considered
whether they met or medically equaled the criteria of Listing 12.04. Importantly, Listing 12.04
applies to depressive, bipolar, and related disorders including major depressive disorder. 20
C.F.R. Pt. 404, subpt. P, app’x 1§ 12.00(B)(3)(b) (“Examples of disorders that we evaluate in
MEMORANDUM DECISION AND ORDER - 11

this category include bipolar disorders (I or II), cyclothymic disorder, major depressive disorder,
persistent depressive disorder (dysthymia), and bipolar or depressive disorder due to another
medical condition.”). In other words, where Plaintiff’s criticisms of the ALJ’s findings at step
two relate to his failure to specifically reference and include Plaintiff’s bipolar and major
depressive disorders as medically determinable impairments, they are misplaced because those
disorders are subsumed within Listing 12.04, which the ALJ analyzed. See infra. And in light of
Plaintiff’s broad objections, it bears repeating that the ALJ not only concluded that Plaintiff’s
ongoing anxiety and depression remained medically determinable impairments (see supra), he
also concluded that they continued to be severe. AR 45 (“The claimant’s impairments of anxiety
and depression cause more than minimal limitation in the claimant’s ability to perform basic
work activities. The undersigned notes some of the abnormal mental status examination
findings, the claimant’s subjective complaints, and some of the exacerbations of the claimant’s
mental health impairments requiring brief hospitalizations during the period at issue.”).
In any event, Plaintiff’s unsupported claim to additional medically determinable
impairments is not persuasive. A claimant’s “statement of symptoms” or a mere “diagnosis” is
not enough. Supra; see also Ukolov, 420 F.3d at 1005 (“[U]nder no circumstances may the
existence of an impairment be established on the basis of symptoms alone.”). Here, Plaintiff’s
passing reference to other possible medically determinable impairments reflects only her own
self-reported problems. Pl.’s Brief at 2 (Dkt. 17). She points to no endorsement of those
conditions, or their associated limitations, from acceptable medical sources in the record. These
self-reports, without more, do not establish additional medically determinable impairments. See,
e.g., Belknap v. Astrue, 364 F. App’x 353, 355 (9th Cir. 2010) (physicians’ diagnoses based on
claimants’ self-reporting – rather than medical signs and laboratory findings – cannot establish
medically determinable impairments); Ukolov, 420 F.3d at 1006 (portions of treatment records
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that are based solely on the claimant’s own “perception or description” of his problems do not
support a finding of a medically determinable impairment). Regardless, because Plaintiff does
not detail any particular limitations that the ALJ failed to address that were attributable to these
alleged additional conditions (beyond what the ALJ already considered as part of Plaintiff’s RFC
attributable to anxiety and depression), the Court “reject[s] any invitation to find that the ALJ
failed to account for [them] in some unspecified way.” Valentine v. Comm’r Soc. Sec. Admin.,
574 F.3d 685, 692 n.2 (9th Cir. 2009).
Accordingly, the Court finds that substantial evidence supports the ALJ’s findings on
Plaintiff’s medically determinable impairments. Remand is not warranted on this issue.
2.

The ALJ Did Not Err in Assessing Whether Plaintiff’s Mental Impairments Met
or Medically Equaled a Listed Impairment

At step two of the sequential process, the ALJ determined that, since July 23, 2021,
Plaintiff’s mental impairments no longer met Listing 12.04. AR 42-44. Plaintiff seems to argue
that the ALJ did not properly consider whether she met the criteria for this Listing. Pl.’s Brief at
2-3 (Dkt. 17). The Court disagrees.
For an impairment to match Listing 12.04 (depressive, bipolar, and related disorders), “it
must meet all the specified medical criteria. An impairment that manifests only some of those
criteria, no matter how severely, does not qualify.” Sullivan v. Zebley, 493 U.S. 521, 530 (1990)
(emphasis in original). Listing 12.04 consists of three “paragraphs” captioned “A,” “B,” and
“C,” which have specified requirements; its mental disorder must satisfy the requirements of
both Paragraphs A and B, or the requirements of both Paragraphs A and C. 20 C.F.R. Pt. 404,
subpt. P, app’x 1§ 12.00(A)(2). Because the ALJ did not address Listing 12.04’s Paragraph A,
and instead found Plaintiff failed to satisfy Paragraphs B and C, the Court need not discuss
Paragraph A criteria.

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To meet Paragraph B criteria under Listing 12.04, a claimant’s mental disorder must
result in “extreme limitation of one,” or “marked limitation of two” of the following four areas of
mental functioning: (i) understand, remember, or apply information; (ii) interact with others; (iii)
concentrate, persist, or maintain pace; and (iv) adapt or manage oneself. Id. at § 12.00(A)(2)(b).
“Marked” limitation means “functioning in this area independently, appropriately, effectively
and on a sustained basis is seriously limited.” Id. at § 12.00(F)(2)(d). “Extreme” limitation
means “not able to function in this area independently, appropriately, effectively, and on a
sustained basis.” Id. at 12.00F(2)(e). Extreme limitation is the “last point on the scale” and
“represents a degree of limitation that is incompatible with the ability to do any gainful activity.”
20 C.F.R. § 404.1520a(c)(4).
To meet Paragraph C criteria under Listing 12.04, a claimant’s mental disorder must be
“serious and persistent. 20 C.F.R. Pt. 404, subpt. P, app’x 1§ 12.00(G)(1). To be “serious and
persistent,” “there must be a medically documented history of the existence of the disorder over a
period of at least two years, and evidence that”: (i) “[the claimant] rel[ies] on an ongoing basis,
upon medical treatment, mental health therapy, psychosocial support(s), or a highly structured
setting(s), to diminish the symptoms and signs of your mental disorder”; and (ii) “despite [the
claimant’s] diminished symptoms and signs, [the claimant has] achieved only marginal
adjustment.” Id. at § 12.00(G)(2)(b) & (c). “‘Marginal adjustment’ means that [the claimant’s]
adaptation to the requirements of daily life is fragile; that is, [the claimant has] minimal capacity
to adapt to changes in environment or to demands that are not already part of [the claimant’s]
daily life.” Id. at § 12.00(G)(2)(c). This is established by evidence that “changes or increased
demands have led to exacerbation of your symptoms and signs and to deterioration in your
functioning; for example, you have become unable to function outside of your home or a more
restrictive setting, without substantial psychosocial supports.” Id.
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Regarding the four Paragraph B criteria, the ALJ found that Plaintiff had moderate
limitations. AR 42-49. “Moderate” limitation in an area means “functioning . . . independently,
appropriately, effectively, and on a sustained basis is fair.” 20 C.F.R. Pt. 404, subpt. P, app’x
1§ 12.00(F)(2)(c). The ALJ also found that Plaintiff did not meet the Paragraph C criteria. AR
44 (concluding that, while Plaintiff’s mental impairments have persisted for more than two years
and was receiving treatment during the period at issue, the evidence failed to show that she has
achieved only marginal adjustment).
Plaintiff takes issue with these findings, stating only: “Throughout all three pregnancies,
which span several years (08/2018 thru 7/22) at a minimum, medical documentation is kept that
point A is fulfilled as well as Point B. That is almost four years, if not more, of how Plaintiff’s
bipolar has hindered everyday life.” Pl.’s Brief at 2 (Dkt. 17). Again, however, Plaintiff’s
conclusory arguments are not supported by any citations in the record. The Court therefore
examines whether the ALJ’s conclusions in these regards are supported by substantial evidence.
With respect to Paragraph B criteria, the ALJ considered Plaintiff’s general complaints
surrounding her difficulty remembering and completing tasks, getting along with others,
concentrating, and engaging in activities of daily living and work activity. AR 42-43. But he
undercut those claims by repeatedly referencing Plaintiff’s daily activities and medical records
during the relevant time period:
Paragraph B Criteria
Understanding, remembering, or applying
information

ALJ’s Findings
Plaintiff shops in stores, plays with her
children, rides her horse, cares for her horses’
stables weekly, cares for her husband, cares
for pets, prepares simple meals, performs
household chores, pays bills, handles a
savings account, reads, watches television,
engaged in work activity (from June 2021 to

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October 2021), plays video games with her
husband “every night,” and helps her mother
“do things” during the period under
consideration.
Plaintiff is able to provide information about
her health, describe her prior work history,
and respond to questions from medical
providers during the period at issue.
The majority of Plaintiff’s mental status
examinations found her to have a grossly
intact memory during the period under review
Interacting with others

Plaintiff is able to live with others, attend
medical appointments, shop in stores, play
with her children, care for her husband, walk
to get around, go to her local park, try to
make new friends, engage in work activity,
and help others.
The medical evidence shows that Plaintiff had
a good rapport with providers and was
described as pleasant and cooperative during
the period under review.

Concentrating, persisting, or maintaining pace Plaintiff can shop in stores, play with her
children, go to a horse stable, ride her horse,
care for her horses’ stable weekly, care for her
husband, care for her pets, prepare simple
meals, perform household chores, walk to get
around, pay bills, handle a savings account,
read, watch television, go to her local park,
try to make new friends, engage in work
activity, play video games with her husband
“every night,” and help others.
The majority of Plaintiff’s mental status
examinations found her to be alert, oriented,
and attentive, with normal attention span and
normal concentration during the period under
consideration.
Adapting or managing oneself

Plaintiff is able to live with others, shop in
stores, play with her children, ride her horse,
care for her horses’ stable weekly, care for her
husband, care for pets, prepare simple meals,

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perform household chores, walk to get
around, pay bills, handle a savings account,
read, watch television, go to her local park,
try to make new friends, engage in work
activity, play video games with her husband
“every night,” and help others.
The objective evidence in the record showed
the claimant to have appropriate grooming
and hygiene with instances of a normal mood
and affect during the period under
consideration.
Id. (citing AR 77-89, 350-58, 572, 574, 580-93, 608-45, 655, 658-70, 673, 679-99, 704-1208,
1210-35); see also AR 45-49. In light of these findings, the ALJ concluded that Plaintiff’s
activities of daily living and the normal mental status examination findings were inconsistent
with more than moderate limitations in these areas of mental functioning. AR 42-44. Thus,
because Plaintiff’s mental impairments did not cause at least one “extreme” limitation or two
“marked “ limitations in the prescribed areas of mental functioning, the ALJ concluded that
Listing 12.04’s Paragraph B criteria were not met. Id.
With respect to Paragraph C criteria, these same findings also informed whether Plaintiff
achieved only marginal adjustment. The ALJ concluded she did not, but instead, achieved
something more. AR 44 (before citing Plaintiff’s activities of daily living (supra), stating: “On
the contrary, it is clear from the record that the claimant was able to . . . .”). The ALJ therefore
concluded that Listing 12.04’s Paragraph C requirement were not met as well. Id. Absent
satisfaction of Listing 12.04’s Paragraphs B and C criteria, the ALJ determined that Plaintiff’s
depression no longer met or equaled a qualifying, listed impairment, which, in turn, highlighted a
corresponding medical improvement. AR-42-45.1

1

Any failure to separately consider Listing 12.06 (anxiety and obsessive-compulsive
disorders) is harmless because the requirements to meet Listing 12.06 overlap with the
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Ultimately, listing criteria are demanding and stringent, with the burden of proof resting
with the claimant. That burden is to provide and identify medical signs and laboratory findings
that support all criteria for an impairment determination. See Lewis v. Apfel, 236 F.3d 503, 514
(9th Cir. 2001) (ALJ did not err in failing to discuss the combined effects of the claimant’s
impairments, or compare them to any listing, where the claimant offered no theory or evidence
showing that his impairments equaled a listed impairment). “[W]hen a claimant fails, courts
must conclude that substantial evidence supports the ALJ’s findings that Listings-level
impairments are not present.” Washington v. Barnhart, 413 F. Supp. 2d 784, 793 (E.D. Tex
2006) (citing Selders v. Sullivan, 914 F.2d 614, 620 (5th Cir. 1990)).
In this case, there is no question that Plaintiff suffers from impairments – acknowledged
by the ALJ as severe – that no doubt impact her ability to work. However, it is not enough to
say, as Plaintiff does here, that “medical documentation is kept that point A is fulfilled as well as
Point B.” Pl.’s Brief at 2 (Dkt. 17). More is needed. While Plaintiff may dispute the ALJ’s
findings, they were not given in a vacuum, nor were they disconnected from the surrounding
medical record and balance of briefing.
In the role of reviewing the decision of the ALJ, on the record/briefing now before the
Court, the Court’s role is not to resolve any conflicting opinions and ultimately decide whether
Plaintiff is (or continues to be) disabled as that term is used within the Social Security
regulations. Rather, the Court reviews the ALJ’s decision so as to be certain that the ALJ’s
decision that Plaintiff was no longer disabled is supported by the record. Here, the ALJ offered

requirements of Listing 12.04. Compare 20 C.F.R. Pt. 404, subpt. P, app’x 1§ 12.04, with 20
C.F.R. Pt. 404, subpt. P, app’x 1 § 12.06; see also Jiminez v. Comm’r of Soc. Sec. Admin., 413 F.
supp. 3d 993, 999 (D. Ariz. 2019) (“The ALJ’s failure to explicitly discuss whether Plaintiff’s
impairments meet or equal Listing 12.07 was error. The court concludes, however, that such
error was harmless because the requirements to meet Listing 12.07 are identical to the
requirements of Listings 12.02, 12.04, 12.06.”).
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enough reasons for finding that Petitioner’s impairments did not meet or equal a listed
impairment. Because the evidence is sufficient to support the ALJ’s conclusion in this respect,
the Court will not substitute its judgment for that of the ALJ. See Tommasetti v. Astrue, 533 F.3d
1035, 1038 (9th Cir. 2008) (“The court will uphold the ALJ’s conclusion when the evidence is
susceptible to more than one rational interpretation.”). Remand is not warranted on this issue.
3.

The ALJ Did Not Err in Not Considering Dr. Book’s Psychiatric Evaluation

Plaintiff asks the Court to “fully review the most current Psychiatric Evaluation given by
Phares Book, Psy.D,” presumably to counter the ALJ’s conclusion that Plaintiff has not been
disabled since June 23, 2021. Pl.’s Brief at 4 (Dkt. 17). But according to Plaintiff, Dr. Book
conducted his evaluation in June – approximately four months after the ALJ issued his decision
on February 15, 2023. Id. at 1; see also AR 39-40 (ALJ discussing post-hearing process for
submitting additional statements and records or requesting a supplemental hearing, but that
Plaintiff never responded to notifications). The ALJ cannot consider an evaluation that did not
exist when the ALJ issued his decision. Moreover, the evidence timely received and considered
by the Appeals Council does not appear to have included a June 2023 evaluation from Dr. Book.
AR 1-5 (referencing the additional evidence received and considered by the Appeals Council).
Given this state of the record, remand is not warranted on this issue.
IV. CONCLUSION
The ALJ, as fact-finder, must weigh the evidence, draw inferences from facts, and
determine credibility. If the evidence is susceptible to more than one rational interpretation, one
of which is the ALJ’s, the Court may not substitute its interpretation for that of the ALJ. The
ALJ has provided reasonable and rational support for his conclusions, even if such evidence is
susceptible to a different interpretation. Accordingly, the ALJ’s decisions as to Plaintiff’s
disability claim were based upon proper legal standards and supported by substantial evidence.
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The Commissioner’s decision is affirmed and Plaintiff’s “Complaint for Review of a Social
Security Disability or Supplemental Security Income Decision” (Dkt. 1) is denied.
V. ORDER
Based on the foregoing, IT IS HEREBY ORDERED that the decision of the
Commissioner is AFFIRMED, that Plaintiff’s “Complaint for Review of a Social Security
Disability or Supplemental Security Income Decision” (Dkt. 1) is DENIED, and this action is
DISMISSED in its entirety, with prejudice.
DATED: March 9, 2025
________________________
Honorable Raymond E. Patricco
Chief U.S. Magistrate Judge

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