Robinson v. Commissioner of Social Security

Filing 18

MEMORANDUM DECISION AND ORDER - The Complaint for Judicial Review (Dkt. 1 ) is GRANTED. This action shall be REMANDED to the Commissioner for further proceedings consistent with this opinion. Signed by US Magistrate Judge Debora K Grasham. (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
FOR THE DISTRICT OF IDAHO

AMY MAE R., 1
Plaintiff,

Case No. 4:24-CV-00026-DKG

v.
MARTIN O’MALLEY, Commissioner
of Social Security Administration,

MEMORANDUM DECISION
AND ORDER

Defendant.
INTRODUCTION
Plaintiff filed a Complaint for judicial review of the Commissioner’s denial of her
applications for social security benefits. (Dkt. 1). The Court has reviewed the Complaint,
the parties’ memoranda, and the administrative record (AR), and for the reasons that
follow, will remand the decision of the Commissioner for further proceedings.
BACKGROUND
On March 12, 2018, Plaintiff filed applications for disability insurance benefits
and for supplemental security income under Title II and Title XVI of the Social Security

1

Partially redacted in compliance with Federal Rule of Civil Procedure 5.2(c)(B) and the
recommendation of the Committee on Court Administration and Case Management of the
Judicial Conference of the United States.
MEMORANDUM DECISION AND ORDER - 1

Act. Both applications allege disability beginning on January 1, 2017. The applications
were denied initially and on reconsideration. On March 4, 2019, Plaintiff filed subsequent
applications, which were also denied by the Agency.
A hearing was conducted on June 20, 2023, before Administrative Law Judge
(ALJ) Michael A. Kilroy. After considering testimony from Plaintiff and a vocational
expert, the ALJ issued a decision on July 3, 2023, finding Plaintiff has not been under a
disability since the alleged onset date through the date of the written decision. (AR 1226). The Appeals Council denied Plaintiff’s request for review on November 20, 2023,
making the ALJ’s decision final. Plaintiff timely filed this action seeking judicial review
of the ALJ’s final decision. The Court has jurisdiction pursuant to 42 U.S.C. § 405(g).
At the time of the ALJ’s written decision, Plaintiff was forty-seven years of age.
Plaintiff is a high school graduate with an associate degree in art. (AR 44). Plaintiff has
previous work experience as a parcel post carrier, school bus driver, cashier II, and
manager retail. (AR 24-25). Plaintiff claims she is unable to work due to certain physical
and mental impairments.
THE ALJ’S DECISION
Disability is the “inability to engage in any substantial gainful activity by reason
of any medically determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for a continuous period of
not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). The ALJ engages in a five-step
sequential inquiry to determine whether a claimant is disabled within the meaning of the
MEMORANDUM DECISION AND ORDER - 2

Act. 20 C.F.R. §§ 404.1520, 416.920; Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th
Cir. 2006) (discussing Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999)).
Here, at step one, the ALJ found Plaintiff had not engaged in substantial gainful
activity since January 1, 2017, the alleged onset date. (AR 14). At step two, the ALJ
found Plaintiff had the following medically determinable, severe impairments: psoriatic
arthritis and degenerative disc disease status post cervical and lumbar surgeries. (AR 14).
The ALJ found also at step two, that Plaintiff’s intermittent obesity and history of
depression were nonsevere. At step three, the ALJ found Plaintiff did not have an
impairment or combination of impairments that meet or medically equals the criteria of
an impairment listed in 20 CFR Part 404, Subpart P, Appendix 1 (“Appendix 1”). 20 CFR
§§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926. (AR 17-18).
The ALJ next found Plaintiff retained the residual functional capacity (RFC) to
perform sedentary work, as defined in 20 C.F.R. §§ 404.1567(a), 416.967(a), with the
following additional limitations:
She can be on[] her feet (walking and/or standing) for 2 hours in an 8 hour
day and sit for 6 hours. She can lift 10 pounds occasionally and less than 10
pounds frequently. She cannot climb ladders, ropes, or scaffolding, but she
can perform all remaining postural activities occasionally. She should avoid
concentrated exposure to extreme cold, vibrations, and uneven, rough
surfaces. She cannot use her hands (bilaterally) constantly, but she can use
them frequently.
(AR 18). Relying upon testimony from the vocational expert, the ALJ concluded at step
four that Plaintiff would be unable to perform her past relevant work. (AR 24-25). At step
five, the ALJ found jobs exist in significant numbers in the national economy that
MEMORANDUM DECISION AND ORDER - 3

Plaintiff can perform given her age, education, work experience, and RFC. Thus, the ALJ
determined Plaintiff is not disabled.
STANDARD OF REVIEW
The Court must uphold an ALJ’s decision, unless: 1) the decision is based on legal
error, or 2) the decision is not supported by substantial evidence. Revels v. Berryhill, 874
F.3d 648, 654 (9th Cir. 2017). Substantial evidence is “‘such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.’” Biestek v. Berryhill,
139 S.Ct. 1148, 1154 (2019) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197,
229 (1938)). It is more than a scintilla, but less than a preponderance of evidence. Orn v.
Astrue, 495 F.3d 625, 630 (9th Cir. 2007).
In making its determination, the Court considers the administrative record as a
whole, weighing both the evidence that supports and the evidence that does not support
the ALJ’s conclusion. Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). The Court
reviews only those issues raised by the party challenging the decision. Lewis v. Apfel, 236
F.3d 503, 517 n.13 (9th Cir. 2001). The Court considers only the reasoning and actual
findings identified by the ALJ and may not affirm for a different reason or based on post
hoc rationalizations attempting to infer what the ALJ may have concluded. Garrison, 759
F.3d at 1010; Bray v. Comm’r Soc. Sec. Admin., 554 F.3d 1219, 1225-26 (9th Cir. 2009).
The Court cannot disturb the Commissioner’s findings if they are supported by
substantial evidence, even though other evidence may exist that supports Plaintiff’s
claims. 42 U.S.C. § 405(g); Flaten v. Sec’y Health & Human Servs., 44 F.3d 1453, 1457
MEMORANDUM DECISION AND ORDER - 4

(9th Cir. 1995). If the ALJ’s decision is based on a rational interpretation of conflicting
evidence, the Court must uphold the ALJ’s finding. Carmickle v. Comm’r Soc. Sec.
Admin., 533 F.3d 1155, 1165 (9th Cir. 2008). The Court “may not substitute [its]
judgment for that of the Commissioner.” Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th
Cir. 1999).
DISCUSSION
On review, Plaintiff argues the RFC determination is not supported by substantial
evidence because the ALJ crafted the RFC based on his own lay interpretation of the
medical records, without any medical opinion, and failed to properly develop the record.
(Dkt. 12, 17). Plaintiff further assigns error to the ALJ’s consideration, or lack thereof, of
the medical opinion evidence. (Dkt. 12, 17). Defendant maintains the ALJ appropriately
evaluated Plaintiff’s mental and physical limitations when assigning the RFC and that the
ALJ’s decision is supported by substantial evidence. (Dkt. 16).
1.

Mental Impairments
As to her alleged mental impairments, Plaintiff contends the ALJ erred by failing

to address the opinions of Martin Seidenfeld, Ph.D., and Dave Sanford, Ph.D., both of
which opined that she had mild limitations in all four of the Paragraph B mental
functional areas. (Dkt. 12 at 13). In particular, Plaintiff argues the ALJ erred by not
explicitly discussing the supportability and consistency factors in relation to Seidenfeld’s
opinion of mild limitations. (Dkt. 12 at 17). And, that the ALJ erred by not addressing

MEMORANDUM DECISION AND ORDER - 5

Sanford’s opinion at all. (Dkt. 17 at 1). 2 Defendant maintains the ALJ did not harmfully
err in evaluating the opinion evidence, and that the ALJ’s assessment of Plaintiff’s mental
limitations was supported by substantial evidence. (Dkt. 16 at 5). 3 For the reasons that
follow, the Court finds the ALJ erred in failing to address the opinions of Seidenfeld and
Sanford.
Under the revised regulations, an ALJ must articulate how persuasive they find
“all of the medical opinions [and all of the prior administrative medical findings] from
each doctor or other source” in a claimant’s case record. Woods v. Kijakazi, 32 F.4th 785,
792 (9th Cir. 2022) (marks omitted); 20 C.F.R. §§ 404.1520c(b), 416.920c(b). The
factors to be considered in evaluating the persuasiveness of a medical source’s opinion
include supportability, consistency, the source’s relationship with the claimant, and any
source specialization. 20 C.F.R. §§ 404.1520c(c), 416.920c(c). Although an ALJ need not
articulate their consideration of all factors used to assess persuasiveness, they must at a
minimum “explain how [they] considered the supportability and consistency factors for a

2

Plaintiff’s opening brief does not expressly contest the ALJ’s failure to discuss Stanford’s
opinion. (Dkt. 12 at 13-17). Nevertheless, Defendant addressed the argument in its response, and
Plaintiff has replied. (Dkt. 16 at 5, n. 1; Dkt. 17). The Court will therefore discuss Plaintiff’s
argument that the ALJ erred by failing to discuss the opinions of both Seidenfeld and Stanford.

3

Defendant also argues the ALJ was not required to consider Sanford’s opinion, as it is dated
outside of the alleged disability period. (Dkt. 16 at 5, n. 1). The record itself, however, refutes
this argument. Defendant relies on the date next to Sanford’s signature – June 8, 2012. (AR 405).
However, the signature date is in conflict with the date of the assessment – July 7, 2018 to
present – as well as the dates of the records discussed by Sanford – from 2018 to 2021. (AR
405). The Court finds it is clearly evident from the record itself that Sanford’s opinion relates to
the relevant disability period and, therefore, the ALJ was required to consider it.
MEMORANDUM DECISION AND ORDER - 6

medical source’s medical opinions.” 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(c)(2).
Here, the ALJ’s discussion of the medical opinions relevant to Plaintiff’s mental
limitations generally refers to “[t]he prior administrative mental findings.” (AR 24). The
ALJ does not identify any opining medical professional by name or citation to the record.
Nevertheless, it is evident from the written decision that the ALJ’s decision discussed
only the opinion of Mack Stephenson, Ph.D, who concluded that Plaintiff had no
limitations in the four Paragraph B mental functioning areas. (AR 24, 115). The ALJ’s
decision is absent any reference or mention of the opinions by Seidenfeld or Sanford that
found Plaintiff had mild mental limitations in all four Paragraph B areas. (AR 76, 88,
405-419). Thus, the ALJ did not address the opinions of Seidenfeld and Sanford at all, let
alone evaluate the supportability and consistency factors. This was legal error. Garrison,
759 F.3d at 1012 (“Where an ALJ does not explicitly reject a medical opinion or set forth
specific, legitimate reasons for crediting one medical opinion over another, he [or she]
errs”).
The ALJ’s error in ignoring the opinion evidence was harmful because the Court
cannot “confidently conclude that no reasonable ALJ, when fully crediting the testimony,
could have reached a different disability determination.” Marsh v. Colvin, 792 F.3d 1170,
1173 (9th Cir. 2015) (quoting Stout v. Comm’r Soc. Sec. Admin., 454 F.3d 1050, 1056
(9th Cir. 2006)). The Seidenfeld and Sanford opinions contradict Stephenson’s opinion,
which the ALJ found persuasive. Yet, the ALJ provided no evaluation or explanation of
the reasons for adopting Stephenson’s opinion over that of the other State agency medical
MEMORANDUM DECISION AND ORDER - 7

opinions. While Seidenfeld and Sanford’s opinions assign only mild, and therefore
nonsevere, mental limitations, had their opinions been found persuasive, the ALJ would
have been required to consider them in determining the RFC. 20 C.F.R. §§
404.1545(a)(2); 416.945(a)(2) (“We will consider all of your medically determinable
impairments of which we are aware, including your medically determinable impairments
that are not ‘severe,’…when we assess your residual functional capacity.”); 20 C.F.R. §§
404.1545(e), 416.945(e) (“When you have a severe impairment(s), but your symptoms,
signs, and laboratory findings do not meet or equal those of a listed impairment in
appendix 1 of this subpart, we will consider the limiting effects of all your impairment(s),
even those that are not severe, in determining your residual functional capacity.”). In
doing so, the ALJ may have included mental limitations in the RFC which could have
affected the disability determination, which are issues the ALJ must address in the first
instance. The ALJ’s failure to discuss the opinions of Seidenfeld and Sanford was
therefore harmful. Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996, 1007 (9th Cir.
2015) (ALJ error is harmless if it is “inconsequential to the ultimate nondisability
determination.”); Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008)
(“[H]armless error ... exists when it is clear from the record that the ALJ’s error was
inconsequential to the ultimate nondisability determination.”). For these reasons, the
Court finds remand is required.
2.

Physical Impairments
As to her physical impairments, Plaintiff contends the ALJ erred by formulating

MEMORANDUM DECISION AND ORDER - 8

an RFC based on his own independent review of the raw medical data, after rejecting the
medical opinions of her physical limitations. (Dkt. 12, 17). 4 Defendant asserts that the
ALJ properly evaluated the state agency medical consultant physical opinions, finding
them unpersuasive, and the duty to further develop the record was not triggered. (Dkt.
16).
An RFC is the most a claimant can do despite their limitations and is based upon
all relevant evidence in the record, including medical records, medical source statements,
and symptom testimony. 20 C.F.R. §§ 404.1545(a)(1)-(3), 416.945(a)(1)-(3); Shafer v.
Barnhart, 120 F. Appx. 688, 698 (9th Cir. 2005); Laborin v. Berryhill, 876 F.3d 1151,
1153 (9th Cir. 2017) (“The ALJ assesses a claimant’s RFC ‘based on all the relevant
evidence in [the] case record.’”). It is the ALJ’s responsibility to make the RFC
assessment and to translate the medical evidence into the RFC. 20 C.F.R. §§ 404.1546(c),
416.946(c); Rounds, 807 F.3d at 1006 (“[T]he ALJ is responsible for translating and
incorporating clinical findings into a succinct RFC.”); Vertigan v. Halter, 260 F.3d 1044,
1049 (9th Cir. 2001) (“It is clear that that it is the responsibility of the ALJ, not the
claimant’s physician, to determine the residual functional capacity.”). Indeed, the ALJ’s
RFC determination need not mirror any particular provider’s opinion. See e.g., Petrini v.

4

Plaintiff has not clearly challenged the ALJ’s evaluation of the state agency medical
consultants’ physical opinions and, therefore, has waived the same. McKay v. Ingleson, 558 F.3d
888, 891 n. 5 (9th Cir. 2009) (“Because this argument was not raised clearly and distinctly in the
opening brief, it has been waived”); Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912,
919 (9th Cir. 2001) (same); Carmickle, 533 F.3d at 1161 n. 2. The Court therefore will not
discuss the ALJ’s evaluation of the physical medical opinions.
MEMORANDUM DECISION AND ORDER - 9

Berryhill, 705 Fed. Appx. 511, 512 (9th Cir. 2017).
The Ninth Circuit has made clear that “ALJs are, at some level, capable of
independently reviewing and forming conclusions about medical evidence to discharge
their statutory duty to determine whether a claimant is disabled and cannot work.”
Farlow v. Kijakazi, 53 F.4th 485, 488 (9th Cir. 2022). The ALJ is the “final arbiter with
respect to resolving ambiguities in the medical evidence.” Tommasetti, 533 F.3d at 1041.
Even if the evidence is “susceptible to more than one rational interpretation, it is the
ALJ’s conclusion that must be upheld.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir.
2005).
Nevertheless, an ALJ is not permitted to render their own medical opinions or
independently assess clinical findings. Tackett, 180 F.3d at 1102–03 (“It is well-settled
than an ALJ may not render her own medical opinion and is not empowered to
independently assess clinical findings.”); Miller v. Astrue, 695 F.Supp.2d 1042, 1048
(C.D. Cal. 2010) (concluding that an ALJ may not act as their own medical expert);
Padilla v. Astrue, 541 F.Supp.2d 1102, 1106 (C.D. Cal. 2008) (concluding that the ALJ
was not qualified to extrapolate functional limitations from raw medical data); Banks v.
Barnhardt, 434 F.Supp.2d 800, 805 (C.D. Cal. 2006) (citing Rohan v. Chater, 98 F.3d
966, 970 (7th Cir. 1996) (‘“[the ALJ] must not succumb to the temptation to play doctor
and make [their] own independent medical findings.’”)). When there is ambiguous
evidence or when the record is inadequate to allow for proper evaluation of the evidence,
the ALJ has a duty to develop the record irrespective of whether the claimant is
MEMORANDUM DECISION AND ORDER - 10

represented by counsel. Ford v. Saul, 950 F.3d 1141, 1156 (9th Cir. 2020) (quoting
Mayes v. Massanari, 276 F.3d 453, 459–60 (9th Cir. 2001)).
Here, the ALJ rejected the opinions of Plaintiff’s physical limitations from
Thomas Coolidge, M.D., a state agency medical consultant, and the prior administrative
findings, all of which concluded that Plaintiff has the capacity to perform light level
exertional work activity. (AR 23, 77-83, 89-95, 1153-1161). No other opinions relevant
to Plaintiff’s physical functional capacity are discussed in the ALJ’s decision or identified
by the parties. Thus, the record was absent any medical opinion concerning Plaintiff’s
physical functioning. The ALJ was therefore required to obtain an additional or
consultative medical opinion in order to allow for a proper evaluation of Plaintiff’s
physical capabilities. The ALJ did not do so here.
Rather the ALJ relied on his own interpretation of the medical records in
formulating the RFC and concluded that Plaintiff’s physical limitations were greater than
opined by the medical professionals and assigned an RFC for sedentary level work. In
doing so, the ALJ improperly acted as his own medical expert by assigning RFC
limitations without any medical opinion of Plaintiff’s physical functioning. This was
error. See e.g., Lorali N. T. v. Kijakazi, 2023 WL 3548221, at *10 (D. Idaho May 18,
2023) (citing cases in the Ninth Circuit where courts routinely find error when an ALJ
rejects all medical source opinions and formulates an RFC based on the ALJ’s own
interpretation of the medical record.). Because the ALJ failed to develop the record after
rejecting the medical physical opinions, there is no testimony from a medical expert to
MEMORANDUM DECISION AND ORDER - 11

support the ALJ’s RFC assessment. The Court is therefore unable conclude that the RFC
was supported by substantial evidence. See e.g., Diane K. v. Kijakazi, 2022 WL 3213076,
at *4-5 (D. Idaho Aug. 9, 2022).
This Court finds this was harmful error necessitating remand. Rounds, 807 F.3d at
1007 (ALJ error is harmless if it is “inconsequential to the ultimate nondisability
determination.”). While the ALJ assigned greater physical limitations than opined, the
RFC is still without supporting evidence. Had the ALJ included different physical
limitations in the RFC based upon a proper review of the evidence and an adequate
record, the ultimate disability determination may have been different.
3.

Conclusion
The Court concludes that the ALJ erred in failing to address the mental medical

opinions of Seidenfeld and Sanford and in evaluating Plaintiff’s physical limitations. As a
result, the RFC determination is not supported by substantial evidence. Because the errors
found herein were harmful, the Court will reverse the decision of the Commissioner.5
Generally, when the Court reverses an ALJ’s decision “the proper course, except
in rare circumstances, is to remand to the agency for additional investigation or
explanation.” Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004). The decision
whether to remand for further proceedings is within this Court’s discretion. Harman v.

5

Having found remand is warranted on these issues, the Court will not address Plaintiff’s other
arguments. See Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012) (“Because we remand the
case to the ALJ for the reasons stated, we decline to reach [plaintiff’s] alternative ground for
remand.”); Augustine ex rel. Ramirez v. Astrue, 536 F. Supp. 2d 1147, 1153 n.7 (C.D. Cal. 2008).
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Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000) (as amended). In cases where further
administrative review could remedy the Commissioner’s errors, remand is appropriate.
McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011). A remand for further proceedings is
appropriate where outstanding issues must be resolved before a determination of
disability can be made and it is not clear from the record that the ALJ would be required
to find the claimant disabled if all the evidence were properly evaluated. Bunnell v.
Barnhart, 336 F.3d 1112, 1115-16 (9th Cir. 2003).
Upon a careful review, the Court finds remand for further proceedings is
appropriate here because further administrative review could remedy the ALJ’s errors.
Moreover, it is unclear whether Plaintiff is disabled. Burrell v. Colvin, 775 F.3d 1133,
1141 (9th Cir. 2014) (Remand is appropriate “when the record as a whole creates serious
doubts as to whether the claimant is, in fact, disabled within the meaning of the Social
Security Act.”). The issues concerning Plaintiff’s alleged disability “should be resolved
through further proceedings on an open record before a proper disability determination
can be made by the ALJ in the first instance.” Brown-Hunter v. Colvin, 806 F.3d 487,
496 (9th Cir. 2015); see also Bunnell, 336 F.3d at 1115-16. 6
For these reasons, the Court will reverse and remand the ALJ’s decision for further
administrative proceedings. The ALJ should reassess the entire record in making the
disability determination on remand. The parties may freely take up any issues relevant to
6

This is not to say that the disability determination will or should be different in this case, only
that the Court cannot determine that the outcome would remain the same upon a correct
evaluation of the record.
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resolving Plaintiff’s claim of disability, before the ALJ.

ORDER
NOW THEREFORE IT IS HEREBY ORDERED:
1)

The Complaint for Judicial Review (Dkt. 1) is GRANTED.

2)

This action shall be REMANDED to the Commissioner for further
proceedings consistent with this opinion.

3)

This Remand shall be considered a “sentence four remand,” consistent with
42 U.S.C. § 405(g) and Akopyan v. Barnhart, 296 F.3d 852, 854 (9th Cir.
2002).
DATED: September 26, 2024
_________________________
Honorable Debora K. Grasham
United States Magistrate Judge

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