Moore v. Commissioner Social Security Administration

Filing 18

OPINION AND ORDER. Signed on 8/24/2017 by Judge Ann L. Aiken. (ck)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION

SHERRI K. MOORE,

Case No. 6:16-cv-01331-AA
OPINION AND ORDER

Plaintiff,

v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

AIKEN, Judge:
Plaintiff Sheni K. Moore brings this action pursuant to the Social Security Act ("Act"),
42 U.S.C. § 405(g), to obtain judicial review of a final decision of the Commissioner of Social
Security ("Commissioner"). The Commissioner denied plaintiffs application for Supplemental
Security Income ("SSI").

For the reasons set fotih below, the Commissioner's decision is

reversed and this case is remanded for further proceedings.
BACKGROUND

In June 2012, plaintiff applied for SSL She alleged disability beginning June 1, 2009,
due to depression, bipolar disorder, fibromyalgia, post-traumatic stress disorder, chronic back

Page 1 - OPINION AND ORDER

pain, and high blood pressure. Her application was denied initially and upon reconsideration.
On November 23, 2015, plaintiff appeared at a hearing before an ALJ. She testified and was
represented by an attorney. A vocational expert ("VE") also testified. The ALJ found plaintiff
not disabled in a written decision issued January 28, 2016. After the Appeals Council denied
review, plaintiff filed a complaint in this Court.
STAND ARD OF REVIEW

The district comt must affirm the Commissioner's decision if it is based upon proper
legal standards and the findings are suppo1ted by substantial evidence in the record. 42 U.S.C. §
405(g); Berry v. As/rue, 622 F.3d 1228, 1231 (9th Cir. 2010). "Substantial evidence is more than
a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion." Gutierrez v. Comm 'r Soc. Sec., 740 F.3d
519, 522 (9th Cir. 2014) (citation and quotation marks omitted). The court must weigh "both the
evidence that supports and the evidence that detracts from the ALJ's conclusion." Mayes v.

lvfassanari, 276 F.3d 453, 459 (9th Cir. 2001). If the evidence is subject to more than one
interpretation but the Commissioner's decision is rational, the Commissioner must be affirmed,
because "the court may not substitute its judgment for that of the Commissioner." Edlund v.

lvfassanari, 253 F.3d 1152, 1156 (9th Cir. 2001).
COMMISSIONER'S DECISION

The initial burden of proof rests upon the plaintiff to establish disability. Howard v.

Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986).

To meet this burden, the plaintiff must

demonstrate an "inability to engage in any substantial gainful activity by reason of any medically
detenninable physical or mental impairment which can be expected ... to last for a continuous
period of not less than 12 months[.]" 42 U.S.C. § 423(d)(l )(A).

Page 2 - OPINION AND ORDER

The Commissioner has established a five-step sequential process for determining whether
a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 416.920(a)(4). At
step one, the ALJ found plaintiff had not engaged in "substantial gainful activity" since her
application date of June 28, 2012. 20 C.F.R. §§ 416.9220(a)(4)(i), (b). At step two, the ALJ
found plaintiff had the following severe impairments: "chronic back pain, unspecified diffuse
connective tissue disease, bipolar depression, borderline intellectual functioning, migraine,
chronic pain syndrome, obesity, carpal tunnel syndrome, osteoarthritic changes to the joints of
the hands, ... and edema of the legs and feet." Tr. 20; 20 C.F.R. §§ 416.9220(a)(4)(ii), (c). At
step three, the ALJ determined plaintiffs impairments, whether considered singly or in
combination, did not meet or equal "one of the listed impairments" that the Commissioner
acknowledges are so severe as to preclude substantial gainful activity.

20 C.F.R. §§

416.9220(a)(4)(iii), (d).
The ALJ found plaintiff retained the residual functional capacity ("RFC") to
perform light work as defined in 20 C[.F.R. §] 416.967(b) except she can lift,
cany, push, and pull objects that weigh up to 20 pounds occasionally and up to
ten pounds frequently; can stand and walk for up to six of eight hours; can sit for
up to six of eight hours; can no more than frequently operate foot controls with
either lower extremity; can no more than frequently handle, finger, or feel with
either upper extremity; can never climb ladders or scaffolds; can no more than
frequently climb ramps or stairs; can never tolerate exposure to unprotected
heights and/or moving mechanical parts; is limited to the performance of simple,
routine tasks; can use judgment for only simple work-related decisions; and can
no more than occasionally balance, stoop, kneel, crouch, or crawl.
Tr. 22. At step four, the ALJ concluded plaintiff could not perform any of her past relevant
work. 20 C.F.R. §§ 416.9220(a)(4)(iv), (f). At step five, however, the ALJ found that plaintiff
could perform work existing in the national economy; specifically, plaintiff could work as a
laundry sorter, routing clerk, or photocopy machine operator. 20 C.F.R. §§ 416.9220(a)(4)(v),

Page 3 - OPINION AND ORDER

(g)(l ).

Accordingly, the ALJ found plaintiff not disabled and denied her applications for

benefits.

DISCUSSION
Plaintiff alleges the ALJ erred by: (1) discrediting plaintiffs testimony about the severity
of her symptoms without legally sufficient justification; (2) ignoring a pe1iinent portion of the
opinion of examining psychologist, Dr. Ewell; (3) violating his duty to develop the record with
respect to the extent of plaintiffs mental limitations; (4) ignoring treating physician Dr.
Ramirez's limitation regarding forceful flexion of the elbows; (5) formulating an incomplete
RFC; and (6) finding plaintiff could perform jobs that exceed her physical and mental
limitations.
Before proceeding to plaintiffs allegations of en·or, I note that remand would be
necessary in this case even if all plaintiffs' arguments failed. Although the ALJ acknowledged
that plaintiff alleged she became disabled in 2009, all findings in the decision are tied to
plaintiffs 2012 application date. See Tr. 18 (concluding that plaintiff has not been under a
disability "since June 28, 2012, the date the application was filed"); Tr. 20 (finding that plaintiff
has engaged in no substantial gainful activity since the application date). This oddity appears
attributable to some confusion about a possible amended onset date. On December 16, 2015,
sh01ily after her disability hearing, plaintiff obtained new representation. See Tr. 179. In a letter
dated December 17, 2015, the finn that represented plaintiff at the hearing wrote to the ALJ to
amend the disability onset date to plaintiffs application date of June 28, 2012. Tr. 203. In his
written decision, the ALJ expressly declined to amend the alleged onset date because plaintiff
retained new counsel on December 16, 2015, one day before that letter was written. See Tr. 18

Page 4 - OPINION AND ORDER

(acknowledging receipt of the request but finding that due to the change in representation, the
"original onset of disability stands").
Whatever the reason for the error, remand is necessary to correct it. The ALJ made no
findings with respect to three years during the alleged period of disability. Although neither
party points out this particular error, I raise it sua sponte because I cannot review a decision the
ALJ did not make. See Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) ("We are
constrained to review the reasons the ALJ asserts."). Moreover, as explained in fu1iher detail
below, the record strongly suggests that the error was harmful because plaintiffs mental
limitations appear to have been substantially more severe during the 2009 to 2012 period than
they were at the time of the hearing.
I now proceed to address plaintiffs allegations of error.
I.

Plaintiff's Subjective Symptom Testimony

When a claimant's medically documented impairments reasonably could be expected to
produce some degree of the symptoms complained of, and the record contains no affirmative
evidence of malingering, "the ALJ can reject the claimant's testimony about the severity of ...
symptoms only by offering specific, clear and convincing reasons for doing so." Smolen v.
Chafer, 80 F.3d 1273, 1281 (9th Cir. 1996). A general asse1iion that the claimant is not credible

is insufficient; the ALJ must "state which ... testimony is not credible and what evidence
suggests the complaints are not credible." Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993).

If the "ALJ's credibility finding is supported by substantial evidence in the record, [the court]
may not engage in second-guessing." Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002).
Plaintiff testified that she lives by herself in a camp trailer at an RV park. She washes
dishes, does laundry, and completes other chores like sweeping and mopping, but testified she

Page 5 - OPINION AND ORDER

requires frequent breaks when doing any chores that cannot be perfo1med in a seated position.
On a typical day, she takes a shower, cleans up her house, goes to Bi-Mart or Dollar Tree, works
on her computer (she is learning the applications of Microsoft Office), and cooks herself a "nice"
dinner like pork chops or sloppy joes. She does her own grocery shopping. She is a "loner" but
talks to the RV park manager when she sees him and has a friend in Utah with whom she
communicates by phone.
At the hearing, the ALJ asked plaintiff why she cannot work. Plaintiff provided three
answers. First, she cited her pain standing and walking, but acknowledged that she probably
could do a job like folding towels at a hotel if she could stay seated to do the work. Second,
plaintiff explained that she faces transportation barriers. She lost her driver's license due to
inability to pay fines and, as a result, cannot drive. The Dial-a-Ride on which she relies is not
always available and the nearest bus stop is more than a mile away from the RV park. Finally,
plaintiff noted that she is "slow" and has problems learning. As an example, she explained that
at her most recent job--a call center operator for Nintendo-she had to take the introductory
"class" twice. Tr. 59. She also stated that she was "asked to leave" that job after one year
because she could not perform "up to par." Tr. 50. She took too long to explain how to do
things, causing her calls to exceed the target per-call time limits set by the call center.
Before she moved to the trailer in August 2015, plaintiff spent nearly three years at a
homeless shelter for women and children. Each person at the shelter was expected to perform
fifteen minutes' worth of "chores" each day. Tr. 64. Plaintiff spent her daily fifteen minutes
working as a "sous chef": cutting vegetables, peeling potatoes, and cleaning up. Tr. 45. She
could perform most of her chores sitting down. At the shelter, she also helped other residents
apply for and learn to use free "Obama phones." Tr. 46.

Page 6 - OPINION AND ORDER

The ALJ concluded that plaintiffs impairments could be expected to produce some
degree of symptoms, but found her testimony about the severity of those symptoms not entirely
credible. The ALJ gave several reasons for discounting plaintiffs testimony. First, he found
that "[t]he physical and mental capabilities required to perfo1m" the activities and social
interactions plaintiff engaged in every day "replicate those necessary for obtaining and
maintaining employment." Tr. 26. An ALJ properly may discount a claimant's statements about
symptom severity if the claimant's activities of daily living would be transferable to a work
setting. Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). Here, however, plaintiffs daily
activities-for example, performing basic household chores with breaks or intermittently helping
others leam to use their new cellular phones-are insufficient to demonstrate the ability to work
full-time. See id. (holding that the ALJ's e!1'oneously relied on the plaintiffs daily activities to
discredit symptom testimony because there was no evidence that the plaintiff spent a "substantial
part" of the day "engaged in pursuits" transferable to a work setting). On the record presented
here, the ALJ' s reliance on the transferability of plaintiffs daily living skills to a work setting is
not a convincing reason to discount plaintiffs symptom statements. 1
The ALJ also found that plaintiffs impahments are well-controlled with medication and
that plaintiff generally pursued conservative treatment. He found no recommendations in the
medical records for "aggressive treatment modalities" such as chiropractic adjustments, physical
therapy, bariatric or other surgery, intensive counseling, pain management, or nerve blocks. Tr.
27.

The ALJ linked this course of treatment to the generally mild physical findings in the

treatment records.
1

An ALJ also may discredit a claimant's testimony about her symptoms if that testimony
contradicts her testimony about activities of daily living. Orn, 495 F.3d at 639. Here, however,
the ALJ's reference to daily activities unambiguously refers to skill transferability, not to a
conflict between plaintiffs testimony and activity level.
Page 7 - OPINION AND ORDER

A claimant's failure to pursue more aggressive treatment (or medical providers' failure to
recommend more aggressive treatment) may undermine allegations that symptoms are disabling.
Tommasetti v. Astrue, 533 F.3d 1025, 1040 (9th Cir. 2008). Having carefully reviewed the

record, I find that conservative treatment is a clear and convincing reason to give less weight to
plaintiffs testimony about her physical symptoms, such as pain and fatigue.

However,

plaintiffs symptoms related to depression and bipolar disorder do not appear to have been so
consistently with medication.

And although the ALJ noted that plaintiff never undertook

intensive counseling, "it is a questionable practice to chastise one with a mental impairment for
the exercise of poor judgment in seeking rehabilitation." Garrison v. Colvin, 759 F.3d 995, 1018
n.24 (9th Cir. 2014) (citation and quotation marks omitted). Accordingly, conservative treatment
is not a convincing reason to discount plaintiffs statements about her mental limitations.
The ALJ also noted that when he asked plaintiff why she could not work, she refened to
her transportation difficulties.

An ALJ permissibly may consider evidence that suggests a

claimant stopped working for reasons other than disability. See Bruton v. lvfassanari, 268 F.3d
824, 828 (9th Cir. 2001). But here, the ALJ's reason is unconvincing. The ALJ mentioned the
transpmtation issue without acknowledging that plaintiff also mentioned two disability-related
reasons for not working: difficulty learning new concepts and pain standing and walking.
Significantly, the transpottation difficulties are location-specific, tied to plaintiffs living
situation at the RV park. Plaintiff stopped working long before she moved to her current living
situation. That undem1ines the strength of the inference that difficulty with transpottation was
the real reason she stopped working.
Finally, the ALJ cited his observations of plaintiff at the hearing. The ALJ found that
[t]hroughout the claimant's hearing, she was fully oriented, well-groomed, and
highly atiiculate. She understood all questions, and answered them clearly and
Page 8 - OPINION AND ORDER

competently. She was in a good mood and actively participated in the hearing
process. Her mentation was thoughtfol and logical. She demonstrated no pain,
fatigue, difficulty, or discomfott during the hearing, which lasted one hour and 15
minutes.
Tr. 23. That paragraph is a classic example of"sit and squirm" jurisprudence, which is generally
disfavored and may not form the sole basis for discounting a claimant's testimony. Orn, 495 at
639. Nonetheless, the "inclusion of the ALJ's personal observations does not render the decision
improper." Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999). Two broad rules emerge
from the Ninth Circuit's cases on "sit and squirm" jurisprudence. First, the absence of symptom
manifestation (for example, a plaintiffs failure to demonstrate pain or fatigue at the hearing) is
not a permissible basis to discredit symptom testimony. Second, a conflict between alleged
symptoms and abilities demonstrated at the hearing (for example, a plaintiffs ability to walk
without a cane notwithstanding testimony that she always uses one) may be considered in
evaluating symptom testimony.
Applying those rules here, the ALJ erred by finding that plaintiffs failure to demonstrate
pain or fatigue at the hearing undermined her allegations of physical symptoms. Ordinarily, the
ALJ could take into consideration plaintiffs ability to understand and respond to questions at the
hearing in formulating limitations related to her ability to understand and follow instructions.
But here, the ALJ did not provide any other legally sufficient reason to doubt plaintiffs
statements about her mental limitations. His observations of plaintiffs hearing conduct are
therefore insufficient, standing alone, to suppo1t discrediting those statements. See Orn, 495
F.3d at 639.
In sum, plaintiffs general conservative treatment for her physical symptoms is a clear
and convincing reason to give less weight to plaintiffs allegations about the disabling effect of
her physical symptoms. Accordingly, the ALJ's decision to partially discredit those allegations
Page 9 - OPINION AND ORDER

is upheld. See Batson v. Comm 'r Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004) (holding
that an ALJ' s decision to discredit a plaintiffs symptom testimony may be upheld even if not all
of the ALJ's reasons are legally valid). However, the ALJ did not provide legally sufficient
reasons to discredit plaintiffs statements about her mental impairments.

II.

J'vfedical Opinion Evidence
Plaintiff challenges the ALJ's treatment of two medical opinions: the opinion of

examining psychologist Dr. Ewell and the opinion of treating physician Dr. Ramirez. There are
three types of medical opinions in Social Security disability cases: those of treating, examining,
and reviewing physicians. Holohan v. M.assanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001).
"Generally, a treating physician's opinion canies more weight than an examining physician's,
and an examining physician's opinion cmTies more weight than a reviewing physician's." Id. at
1202; accord 20 C.F.R. § 404.1527(d). Accordingly, "the Commissioner must provide clear and
convincing reasons for rejecting the uncontradicted opinion of an examining physician." Lester

v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Moreover, "the opinion of an examining doctor,
even if contracted by another doctor, can only be rejected for specific and legitimate reasons."

Id. at 830-31.
Plaintiff also asserts the ALJ violated his duty to folly and fairly develop the medical
record. Smolen v. Chater, 80 F.3d 1273, 1283 (9th Cir. 1996). Social Security regulations
require the Agency to make "every reasonable effort" to assist a claimant in gathering relevant
evidence. 20 C.F.R. § 416.912(d). The Agency may order a consultative examination ifthere is
difficulty acquiring evidence from treating sources. Id. § 416.912(e). The duty to develop the
record is only triggered only when there is "ambiguous evidence or when the record is
inadequate to allow for proper evaluation of the evidence." 1\Jayes v. lv!assanari, 276 F.3d at

Page 10- OPINION AND ORDER

460. An examining provider's statement that the evidence is insufficient to properly assess
impaitment level may trigger the duty to develop the record fmiher. Tonapetyan v. Halter, 242
F.3d 1144, 1150 (9th Cir. 2001).
A.

Dr. Ewell's Opinion & the AL.J's Duty to Develop the Record

The ALJ found that bipolar depression and borderline intellectual functioning were
among plaintiffs severe impaitments. Although plaintiff patiicipated in limited counseling, the
only comprehensive psychological evaluation in the record was conducted by psychologist
James Ewell in May 2013. Dr. Ewell evaluated plaintiff at the request of the state Department of
Human Services ("DHS") in order to assess her readiness to resume parenting her youngest son,
who was at the time sixteen years old. Dr. Ewell diagnosed plaintiff with bipolar disorder, posttraumatic stress disorder, and borderline intellectual functioning. In his report, he summarized
the conditions that led DHS, in 2012, to remove plaintiffs son from her care: their home was
filthy and cluttered with garbage, had been without running water for a year, and included toilets,
a bathtub, and buckets overflowing with human waste.
Dr. Ewell assessed plaintiff with "deficits in areas pertaining to psycho/social judgment
and interpersonal problem-solving." Tr. 711.

He also stated that her cognitive test results

suggested she would "struggle . . . when faced with complicated scenarios requiring
sophisticated forms of judgment and/or decision-making." Tr. 709. Dr. Ewell noted that at the
time of the evaluation, plaintiff was living at the Samaritan Inn, a homeless shelter. Within the
structure of the Samaritan Inn, plaintiff
has been able to somewhat stabilize her daily life. She has not, however, been
able to demonstrate an ability to stabilize her life outside a structured program. I
would have concerns about Ms. Moore's ability to meet her own needs, if she
were living in a truly independent manner. I would be even more concerned
about her ability to meet her needs and the needs of her child.

Page 11 - OPINION AND ORDER

Tr. 712. Dr. Ewell concluded his evaluation with the following disclaimer: "This evaluation
was conducted to address Ms. Moore's general psychological condition, particularly as it
pettains to parenting. It is not intended to address other non-related issues, such as eligibility for
SSI benefits, or employability." Tr. 713.
After plaintiff obtained new counsel, the new attorney asked Dr. Ewell to complete a
mental RFC fotm. Dr. Ewell refused, reiterating that his report "did not address issues related to
eligibility for SSI benefits or employability. Therefore I cannot complete the form." Tr. 1221.
Dr. Ewell checked a box recommending that the Agency order a new comprehensive
psychological evaluation to assess mental RFC.
Plaintiffs lawyer then wrote to the ALJ. He cited Dr. Ewell's disclaimers about the
applicability of his evaluation to the disability context. He also noted that agency reviewing
psychologists, who had assessed no mental limitations, had not reviewed Dr. Ewell's repoti. He
requested a comprehensive psychological evaluation pursuant to Dr. Ewell's recommendation,
expressly noting the ALJ' s duty to develop the record.
The ALJ found that the record was fully developed and denied plaintiffs request. He
stated that the disability decision was based on "hundreds of pages of evidence" available in
plaintiffs file. Tr. 18. Although he acknowledged Dr. Ewell's statement that his evaluation was
not for disability purposes, the ALJ found "that fact does not completely negate the value of Dr.
Ewell's objective findings or evaluation." Tr. 17. Finally, the ALJ faulted plaintiffs lawyer for
being "inconsistent" in requesting a new evaluation; according to the ALJ, plaintiff could not
simultaneously argue that Dr. Ewell's statements should be disregarded (thus triggering the need
to develop the record) and credited (as a basis for finding plaintiff disabled.) Id. The ALJ went
on to give weight to Dr. Ewell's opinion "that the claimant may struggle with complicated

Page 12 - OPINION AND ORDER

scenarios, judgment, and decision-making[.]" Tr. 25. The ALJ accounted for that opinion in the
RFC by limiting plaintiff to simple, routine tasks and simple work-related judgments.
As a threshold matter, I note that the ALJ e!Ted by relying on plaintiffs "inconsistent"
arguments about Dr. Ewell's opinion when he denied the request for a new evaluation. Tr. 17.
Plaintiff argued that if Dr. Ewell's opinion is considered applicable to the disability context, it
establishes disability by demonstrating that plaintiff has major deficits with respect to meeting
her own needs. Plaintiff also contended that if Dr. Ewell's opinion is considered inapplicable to
the disability context, there is insufficient evidence in the record to evaluate the extent of
plaintiffs' mental limitations. There is no apparent inconsistency between those two positions;
Dr. Ewell's opinion is the primary piece of evidence regarding the extent of plaintiffs mental
limitations, so its applicability affects whether the record is fully and fairly developed.
Moreover, it is well-established that a party may simultaneously advance alternative theories of a
case-even if those theories are inconsistent with one another. Cf Poore v. Simpson Paper Co.,
566 F.3d 922, 927 (9th Cir. 2009) (considering the plaintiff retirees' arguments that they had
nonforfeitable rights and that the employer failed to meet the contractual conditions necessary to
alter those rights). It is only after a party has benefited from taking a certain position that she
may be barred from taking a contrary position. See New Hampshire v. Nfaine, 532 U.S. 742, 749
(2001) (explaining that the doctrine of judicial estoppel generally precludes a party from
"prevailing in one phase of a case on an argument and then relying on a contradictory argument
to prevail in another phase" (citation and quotation marks omitted)).
Plaintiff argues that the ALJ ell'ed by silently ignoring Dr. Ewell's opinion that plaintiff
could not meet her own needs outside the structured environment of the Samaritan Inn. In the
alternative, plaintiff argues that there is insufficient evidence in the record to fully assess her

Page 13 - OPINION AND ORDER

mental limitations, and that the ALJ was obligated to order a new comprehensive psychological
evaluation.
The ALJ did not etT by adopting only some of Dr. Ewell's opinion. Dr. Ewell expressly
stated-twice-that his opinion was not provided for the purposes of evaluating plaintiffs
ability to work. Put simply, per Dr. Ewell's own statements, the limitations in his repo1t are not
workplace limitations. Given those express disclaimers, the ALJ could leave those limitations

out of plaintiffs RFC without providing specific, legitimate reasons for doing so.
The ALJ did, however, violate his duty to fully and fairly develop the record. Dr. Ewell's
rep01t makes clear that there has been substantial variability in the severity of plaintiffs mental
health limitations. Contrary to defendant's argument, the report is not solely based on plaintiffs
self-rep01ted symptoms; rather, it includes a summary of state agency findings that plaintiffs
home was filthy and overflowing with human waste. The situation was serious enough that the
state removed plaintiffs teenage son from her custody. The state agency's findings, coupled
with Dr. Ewell's doubts about plaintiffs ability to meet her own basic needs and plaintiffs
diagnoses of severe mental health impairments, strongly suggest that plaintiff had restrictions far
more severe than those set out in the RFC for at least some pait of the disability period.
The evidence in Dr. Ewell's report further underscores the problem with the omission of
more than three years of the alleged disability period from the ALJ's decision.

The ALJ's

dete1mination that plaintiffs mental limitations could be adequately accommodated with
restrictions to simple, routine tasks and simple work-related decisions rests on evidence of
plaintiffs functionality in 2015 (the time of the hearing) and, to a lesser extent, on evidence of
her functionality between 2012 and 2015 (when she lived at the shelter.) Neither the ALJ nor
plaintiffs former attorney asked any questions about the severity of her mental health symptoms

Page 14- OPINION AND ORDER

between 2009 and 2012, despite the evidence suggesting that her mental restrictions were greater
during that time period.
The ALJ also noted that plaintiff attended only tlu·ee counseling sessions between 2011
and 2015 and that examination notes generally show her "to be n01mal in psychological areas."
Tr. 25. First, as noted in the section addressing plaintiffs symptom statements, the cited medical
records show uneven mental health symptoms and varying success with medications; the ALJ's
statement that records generally show only mild limitations is not a fair characterization of the
Moreover, even if the treatment records unifo1mly documented only mild mental

record.

restrictions, there would be a glaring conflict between such conclusions and the findings of the
DHS investigators documented in Dr. Ewell's report. More evidence is necessary to resolve that
conflict.

This is not a case where two medical professionals view the same evidence and

disagree; it is case where it appears the medical professionals rendered their opinions without the
benefit of complete information regarding plaintiffs mental state.
As it stands, the record is plainly inadequate to assess the extent of plaintiffs mental
limitations.

The ALJ therefore erred in denying plaintiffs request for a new psychological

evaluation. The ALJ's error is even clearer in light of Dr. Ewell's recommendation that the
Agency order such an evaluation. Tonapetyan, 242 F.3d at 1150.
On remand, the ALJ shall order a new comprehensive psychological evaluation and
obtain any additional evidence necessary to evaluate plaintiffs mental impairments. The ALJ
shall also hold a supplemental hearing and otherwise pe1mit plaintiff to submit supplemental
evidence. In rendering a new decision, the ALJ must address all periods of time relevant to
plaintiffs allegations of disability, from June 1, 2009, to the date of the new written decision. I

Page 15 - OPINION AND ORDER

note the possibility that plaintiff might qualify for a closed period of disability even if she
ctmently has sufficient RFC to work.
B.

Dr. Ramirez's Opinion

Treating physician Dr. Ramirez advised plaintiff to avoid repetitive and forceful flexion
of the elbows. Tr. 1174. The ALJ acknowledged that limitation in his summary of the medical
evidence, but included no corresponding limitation in the RFC and gave no reason to reject any
p01iion of Dr. Ramirez's opinion.
The ALJ did not err in excluding the elbow limitation from the RFC. The limitation was
phrased as a recommendation, not a directive. See Carmickle, 533 F.3d at 1165. Fmihermore,
the inclusion of this limitation would not have affected the ultimate disability determination:
neither the general definition oflight work nor the specific DOT descriptions suggest that any of
the jobs the ALJ identified at step five require repetitive, forceful flexion of the elbows. See
Stout v. Comm 'r, Soc. Sec. Adm in., 454 F.3d 1050, 1054 (9th Cir. 2006) ("A decision of the ALJ

will not be reversed for errors that are harmless." (citation and quotation marks omitted)).
III.

Plaintiff's Other Allegations ofError

Finally, plaintiff alleges that the ALJ erred in formulating the RFC and in identifying jobs
plaintiff could do at step five. With respect to physical limitations, plaintiff contends the ALJ
erred in finding she could stand or walk for six hours of an eight-hour work day, failing to
include a limitation regarding forceful flexion of the elbows, and including only a minor
limitation on fingering, feeling, or handling.

In view of my decisions regarding plaintiffs

testimony about her physical symptoms and Dr. Ramirez's opinion, I am not persuaded by
plaintiffs first two arguments. I fmiher find no enor in the ALJ's limitation to more than
frequently fingering, feeling, or handling is support by substantial evidence. Plaintiff has pointed

Page 16- OPINION AND ORDER

to no medical opinion recommending a more significant limitation in this area, and the ALJ
fairly summarized the medical evidence in this area as supporting mild restriction.
With respect to mental limitations, plaintiff argues that a limitation to "simple, routine
tasks" does not account for the moderate limitations in concentration, persistence, and pace
identified by the ALJ. Although Ninth Circuit law on this point is not crystal clear, it appears
that a limitation to simple tasks may account for moderate difficulties with concentration,
persistence, or pace only if the medical record directly ties those difficulties to task complexity
rather than to other issues. See Senser v. Colvin, 2017 WL 253847 (D. Or. Jan. 19, 2017)
(summarizing case law in this area). Here, there is no basis to conclude that a restriction to
simple, routine tasks accommodates plaintiffs difficulties with concentration and pace. The
ALJ's assessment of moderate difficulties in those areas rests on Dr. Ewell's opinion, but Dr.
Ewell expressly declined to provide specific job-based limitations.

On remand and after

obtaining additional evidence regarding the extent of plaintiffs cognitive limitations, the ALJ
must consider whether a restriction in the RFC regarding concentration, persistence, or pace is
wan anted.
CONCLUSION

The Commissioner's decision is REVERSED and this case is REMANDED for further
proceedings. On remand, the ALJ shall order a comprehensive psychological evaluation, permit
plaintiff to submit supplemental evidence, and convene a supplemental hearing. The ALJ shall
then issue a new written disability decision. In the new decision, the ALJ shall refommlate
plaintiffs RFC and perform a new step five analysis consistent with this opinion. The ALJ shall
assess plaintiffs mental RFC consistent with a fully developed evidentiary record regarding
mental limitations.

The ALJ shall expressly consider whether the RFC should include a

Page 17 - OPINION AND ORDER

limitation beyond the restriction to simple, routine tasks to address moderate difficulties with
concentration, persistence, or pace. The ALJ' s written decision shall address the entire period of
alleged disability, beginning June 1, 2009.
IT IS SO ORDERED.
Dated thist¥'ay of August 2017.

_

_____._,...a~,
)_),~,{-,--JL~11,~t>~t;_,.,.
(

Ann Aiken
United States District Judge

Page 18 - OPINION AND ORDER