1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 SOUTHERN DIVISION

11

12 DIANE E. Z., Case No. 8:22-cv-02101-BFM

13 Plaintiff, MEMORANDUM OPINION 14 v. A ND ORDER

15 KILOLO KIJAKAZI, Acting Commissioner of Social Security,

16 Defendant. 17

18 19 I. PROCEDURAL HISTORY 20 Plaintiff Diane E. Z.1 applied for a period of disability and disability 21 insurance benefits, alleging a disability that commenced on June 14, 2016. 22 (Administrative Record (“AR”) 32.) Plaintiff’s application was denied at the 23 initial level of review and on reconsideration, after which she requested a 24 hearing in front of an Administrative Law Judge. (AR 144-45.) The ALJ held a 25 hearing and heard from Plaintiff and a vocational expert. (AR 76-97.) After that 26 27 1 In the interest of privacy, this Memorandum Opinion and Order uses only the first name and middle and last initials of the non-governmental party in this 28 case. 1 2 step two of the disability analysis2 that Plaintiff has the severe impairment of 3 vertigo. (AR 34.) He also found Plaintiff has the medically determinable mental 4 impairments of anxiety and depression, but found them, singly and in 5 combination, to be nonsevere. 6 As relevant to Plaintiff’s mental impairments, the regulations describe 7 four criteria used to decide whether an impairment meets or medically equals a 8 Listing—the “paragraph B” criteria. The criteria describe areas of functional 9 abilities on which claimants are evaluated: the ability to understand, remember, 10 or apply information; the ability to interact with others; the ability to 11 concentrate, persist, or maintain pace; and the ability to adapt or manage 12 oneself. 20 C.F.R. pt. 404, subpt. P, app. 1. Applicants are scored in each area 13 and are assessed to have none (no limitation), mild, moderate, marked, or 14 extreme limitation. A mental impairment is deemed not severe at step two if the 15 degree of limitation in each of the four areas is either “none” or “mild,” unless 16 the evidence otherwise indicates more than a minimal limitation in a claimant’s 17 ability to do basic work activities. 20 C.F.R. § 404.1520a(d)(1). Here, the ALJ 18 found that Plaintiff has a mild limitation in concentration, persistence, and 19 pace, and no limitation in any other area of functional ability. (AR 34-35; see 20 also AR 106, 122.) He thus concluded that Plaintiff’s mental impairments are 21 nonsevere. (AR 35.) 22 At step four, the ALJ concluded that Plaintiff had the residual functional 23 capacity (“RFC”) to perform light work with several physical limitations, but 24 included no limitations relating to mental capacity. He credited the vocational 25

26 2 A five-step evaluation process governs whether a plaintiff is disabled. 20 27 C.F.R. §§ 404.1520(a)-(g)(1), 416.920(a)-(g)(1). The ALJ, properly, conducted the full five-step analysis, but only the steps relevant to the issue raised in the 28 Complaint are discussed here. 1 2 past relevant work as a preschool teacher as that job is generally performed. 3 (AR 36, 39.) The ALJ thus found Plaintiff to be not disabled and denied her 4 claim. (AR 39.) The Appeals Council denied review of the ALJ’s decision. (AR 1- 5 6.) 6 Dissatisfied with the agency’s resolution of her claim, Plaintiff filed a 7 Complaint in this Court. She argues that the ALJ erred at step four because he 8 failed to include Plaintiff’s mild mental limitation in concentration, persistence, 9 and pace in his residual functional capacity determination and in his 10 hypotheticals to the vocational expert. (Pl.’s Br. at 8.) 11 12 II. STANDARD OF REVIEW 13 Under 42 U.S.C. § 405(g), the Court reviews the Commissioner’s decision 14 to deny benefits to determine if: (1) the Commissioner’s findings are supported 15 by substantial evidence; and (2) the Commissioner used correct legal standards. 16 See Carmickle v. Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1159 (9th Cir. 2008); 17 Brewes v. Comm’r Soc. Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012). 18 “Substantial evidence . . . is ‘more than a mere scintilla.’ It means—and only 19 means—‘such relevant evidence as a reasonable mind might accept as adequate 20 to support a conclusion.’” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) 21 (citations omitted); Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519, 522-23 (9th 22 Cir. 2014) (internal quotation marks and citation omitted). To determine 23 whether substantial evidence supports a finding, the reviewing court “must 24 review the administrative record as a whole, weighing both the evidence that 25 supports and the evidence that detracts from the Commissioner’s conclusion.” 26 Reddick v. Chater, 157 F.3d 715, 710 (9th Cir. 1998). 27 28 1 2 The only question this case presents is whether the ALJ erred in failing 3 to properly account for Plaintiff’s mild limitation in her ability to concentrate, 4 persist, and maintain pace, at step four and beyond—specifically, when he 5 assessed Plaintiff’s residual functional capacity and when he presented 6 hypotheticals to the vocational expert. For the reasons set forth below, the Court 7 determines that the ALJ’s decision must be reversed. 8 The crux of the case is this: The ALJ found at step two that Plaintiff had 9 a mild limitation in her ability to concentrate, persist, and maintain pace. (AR 10 35.) That mild limitation did not warrant a finding that Plaintiff had a severe 11 impairment at step two. The ALJ’s analysis was proper through step two, and 12 Plaintiff does not argue otherwise. 13 Under governing law, however, an ALJ must consider the impact of all 14 impairments on a claimant’s RFC, whether they were deemed severe or not 15 severe at step two. See 20 C.F.R. § 404.1545(a)(1)-(2), (e); SSR 96-8p, 1996 WL 16 374184, at *5 (July 2, 1996). That is, impairments and any limitations they may 17 cause do not drop out of the analysis simply because the impairment was 18 deemed nonsevere at step two. The problem in this case is that it is impossible 19 to say what the ALJ did to account for his finding at step two that Plaintiff was 20 mildly limited in her ability to concentrate, persist, and maintain pace. 21 In describing his step two analysis, the ALJ explained, correctly, that the 22 paragraph B criteria “are used to rate the severity of mental impairments at 23 steps 2 and 3 of the sequential evaluation process” and “are not a residual 24 functional capacity assessment.” (AR 36.) In other words, the findings of a 25 limitation at step two will not necessarily be reflected in the RFC assessment at 26 step four. The ALJ also correctly noted that “the mental residual functional 27 capacity assessment used at steps 4 and 5 requires a more detailed assessment.” 28 1 2 But that “more detailed assessment” never came. The ALJ stated that he 3 “considered all of [Plaintiff’s] medically determinable impairments, including 4 those that are not severe” and that the RFC assessment reflected “the degree of 5 limitation [he] found in the ‘paragraph B’ mental functional analysis.” (AR 36.) 6 Apart from that boilerplate assurance, the ALJ’s decision does not reflect any 7 analysis of how Plaintiff’s nonsevere mental impairments and her mild 8 limitations in concentration, persistence, and pace factored into the RFC 9 determination. Nor does the ALJ’s ultimate statement of Plaintiff’s RFC contain 10 any nonexertional limitations. (AR 36.) Thus, it is not clear to this Court 11 whether the ALJ considered his step two finding of a mild limitation in 12 concentration, persistence, and pace and had a good reason for concluding that 13 it did not affect Plaintiff’s RFC, or whether he forgot about that mild limitation 14 all together. 15 The Ninth Circuit found error on similar facts in Hutton v. Astrue, 491 F. 16 App’x 850, 850 (9th Cir. 2012) (unpublished); that case, while not controlling 17 precedent, sets out a persuasive analysis. The step two analysis in Hutton 18 looked similar to the analysis conducted here: the ALJ determined that the 19 plaintiff had the medically determinable impairment of PTSD, and mild 20 limitations in the area of concentration, persistence, or pace. Id. Because that 21 was the only area of functional limitation, the ALJ classified plaintiff’s PTSD as 22 nonsevere. Id. At step four, the ALJ decided to disregard Hutton’s own 23 testimony, his treating physician’s opinions, and the VA’s disability rating. 24 Based on the totality of the record, the ALJ found his PTSD claims were in great 25 doubt. Id. The ALJ then excluded Hutton’s PTSD claims from consideration. But 26 the ALJ never revisited the mild limitations in concentration, persistence, and 27 pace that the ALJ had already determined were caused by Hutton’s PTSD at 28 1 2 stage had no impact on his assessment of Plaintiff’s residual functional capacity. 3 The Ninth Circuit explained that “[t]o determine [plaintiff’s] RFC 4 properly, the ALJ was required to consider Hutton’s physical impairments and 5 the ‘mild’ limitations his PTSD caused with concentration, persistence, or pace.” 6 Id. at 850-51. While the ALJ “was free to reject Hutton’s testimony as not 7 credible, there was no reason for the ALJ to disregard his own finding that 8 Hutton’s nonsevere PTSD caused some ‘mild’ limitations in the areas of 9 concentration, persistence, or pace.” Id. at 851. 10 Following Hutton, several courts have found reversible error where the 11 ALJ failed to adequately address how mild mental impairment limitations 12 found at step two affected the assessment of RFC conducted at step four. See 13 Frary v. Comm’r of Soc. Sec., No. 1:20-cv-00260-SAB, 2021 WL 5401495, at *10- 14 12 (E.D. Cal. Nov. 17, 2021) (compiling case law reversing based on Hutton). 15 This is not a question of form, but of substance. Thus, where courts can 16 tell that the ALJ actually conducted the proper analysis and considered whether 17 any impairments found at step two should be accounted for in the RFC 18 assessment, it does not matter whether the analysis happens in the part of the 19 decision discussing step two or the part of the decision discussing step four. 20 What matters is that the Court can confirm that the proper analysis actually 21 occurred. 22 In Frary, for example, the court distinguished Hutton. It found that the 23 ALJ “completed a significant discussion” of the claimant’s mental impairments 24 when finding only mild limitations at step two. Frary, 2021 WL 5401495, at *18. 25 After step two, in his RFC determination, the ALJ had also considered evidence 26 relating to the claimant’s mental impairments in a “reasoned” manner, which 27 included “discussion of the mental status examinations, mental limitations 28 1 2 pertaining to “stable psychological functioning.” Id. The court specifically noted 3 that this “reasoned further discussion in conjunction with the express 4 incorporation of step two findings within the residual functional capacity,” 5 distinguished it from those cases finding error under Hutton. 6 What is not enough, however, is “a hollow boilerplate incorporation of the 7 paragraph B criteria within the RFC discussion,” without more Id. at *19. 8 Instead what is required is that the ALJ actually review the record and specify 9 reasons supported by substantial evidence for not including the non-severe 10 impairment in the ultimate RFC determination. Gates v. Berryhill, No. ED CV 11 16-00049 AFM, 2017 WL 2174401, at *2-3 (C.D. Cal. May 16, 2017). 12 In this case, the ALJ’s analysis did not fulfill his obligations to assess 13 Plaintiff’s nonsevere impairments and mild limitations in concentration, 14 persistence, and pace when formulating Plaintiff’s residual functional 15 capacity—not the analysis conducted at step two, and not the analysis 16 conducted at step four. 17 At step two, the ALJ considered the evidence supporting a limitation in 18 concentration, persistence, and pace. He addressed the report of consulting 19 examiner Dr. Kim, who stated that Plaintiff “denied difficulty with 20 concentration and memory.” But, the ALJ then noted, the two agency reviewers, 21 Dr. Weiss and Dr. Brode, opined mild limitation with respect to concentrating, 22 persisting, or maintaining pace. Such a limitation is “consistent with [Plaintiff’s] 23 lack of mental health treatment and history.” (AR 35, 36 (citations omitted).) As 24 such, the ALJ found a mild limitation in concentration, persistence, and pace 25 for purposes of step two. The ALJ did not, in that section of his decision, discuss 26 any functional limitations that might flow from that finding. 27 After discussing all four Paragraph B criteria, the ALJ reviewed in more 28 1 2 complained of anxiety and PTSD. Plaintiff claimed she received Valium for a 3 short period from her primary care physician, but had generally refused mental 4 health care and instead sought out counseling from her church leadership. She 5 denied any prior inpatient or outpatient psychiatric treatment. (AR 35 (citing 6 AR 372).) Dr. Kim observed that Plaintiff’s mood was anxious, and he diagnosed 7 her with unspecified anxiety disorder. (AR 36 (citing AR 373, 374, 375).) Dr. Kim 8 opined that Plaintiff had moderate limitations in her daily activities, but the 9 ALJ found that opinion to be unpersuasive, based on Plaintiff’s description of 10 her daily activities and the opinions of the two agency consultants, Dr. Weiss 11 and Dr. Brode. 12 Importantly, Dr. Kim’s report made a separate finding: that Plaintiff was 13 mildly limited in her abilities to respond to changes in a routine work setting 14 and to work pressure—limitations arguably related to the abilities to maintain 15 concentration, persistence, and pace, and ones that arguably translate fairly 16 directly into limits that might be included in a residual functional capacity 17 assessment. (AR 375.) The ALJ did not address that finding anywhere in his 18 order. Nor did the reasons he gave for rejecting Dr. Kim’s other opinion, the one 19 regarding Plaintiff’s ability to carry on activities of daily living, undermine this 20 separate conclusion about Plaintiff’s ability to respond to changes and to work 21 pressure. 22 In short, in no part of the step two analysis did the ALJ discuss whether 23 the finding of mild limitations in the ability to concentrate, persist, and keep 24 pace should be reflected in the residual functional capacity. 25 At step four, the ALJ did not revisit the findings of Dr. Kim, Dr. Weiss, or 26 Dr. Brode, the three doctors whose assessments led the ALJ to note the 27 existence of a mild limitation at step two. Instead, the step four analysis focuses 28 1 2 in the record, however, the ALJ reported a steady drumbeat of reports of 3 anxiety. (AR 35 (Plaintiff’s testimony that she cannot work due to anxiety and 4 PTSD) (citing AR 229-37, 273-81)); (AR 37 (annual exam in February 2020 in 5 which doctor noted anxiety disorder, and reported that Plaintiff was hesitant to 6 start therapy or medications) (citing AR 393-96)); (AR 37 (treatment for vertigo- 7 related fall; Plaintiff noted to have anxious effect) (citing AR 391-92)); (AR 38 8 (neurology consult in October 2020 during which Plaintiff reported she felt 9 “anxious, and not depressed, but she had not seen a psychologist” (citing 382- 10 84)); (AR 38 (January 2021 telemedicine appointment in which Plaintiff said she 11 was “stressed and anxious” with intermittent headaches (citing AR 386)).) 12 Apart from noting these frequent reports of anxiety, the ALJ does not 13 address Plaintiff’s mental impairments in any way. The ALJ neither includes 14 any limitations in the RFC that address Plaintiff’s mild limitation in 15 concentration, persistence, and pace, nor does he describe why that mild 16 limitation does not affect Plaintiff’s RFC. Apart from his boilerplate assertion, 17 there is no indication that the ALJ properly considered Plaintiff’s medically 18 determinable mental impairments of anxiety and depression and mild 19 limitations in concentration, persistence, and pace when assessing her RFC. 20 This case is thus analogous to those cases finding error under Hutton. E.g., 21 Sylvester H. v. Kijakazi, No. 5:20-cv-02503-SP, 2022 WL 4466717, at *8 (C.D. 22 Cal. Sept. 26, 2022); Smith v. Colvin, No. 14-cv-05082-HSG, 2015 WL 9023486, 23 at *9 (N.D. Cal. Dec. 16, 2015). 24 Defendant’s contrary arguments are not persuasive. Plaintiff’s argument 25 is not that the ALJ has to include any limitations found by any doctor into the 26 RFC, or that the ALJ has to reflect mild limitations found at step two into the 27 RFC. (Def’t’s Br. at 4, 6.) But having found the existence of an impairment that 28 1 2 why that limitation has no bearing on the RFC. Because there is no indication 3 that the ALJ did so here, the ALJ erred. 4 Defendant relies on Woods v. Kijakazi, 32 F.4th 785 (9th Cir. 2022), and 5 suggests that there, the Court found that an RFC for light work “reasonably 6 accommodated the claimant’s two mild limitations in the ‘paragraph B criteria’ 7 of understanding, remembering, or applying information and of concentration, 8 persistency, or maintaining pace.” (Def’t’s Br. at 5 (internal quotation marks 9 omitted).) That argument reads far too much in Woods. Woods primarily 10 addresses a different question—whether an amendment to a regulation affected 11 how an ALJ must handle analyze certain medical opinions. Id. at 789-94. At the 12 tail end of that discussion, the Ninth Circuit noted that the ALJ’s RFC 13 assessment “expressly reflected” the limitations found at step two. The plaintiff 14 “did not identify any particular evidence that the ALJ failed to consider.” Id. at 15 795. And indeed, the Court noted, the ALJ both explicitly considered and gave 16 reasons for rejecting more severe limitations offered by one doctor, and also gave 17 reasons for finding that the broader record did support greater limitations. Id. 18 at 794. Woods does not hold that an RFC for light work will always be adequate 19 to address mild limitations found at step two, but instead reaffirms the 20 principles described here—that the ALJs should be affirmed where they show 21 their work, and their reasons are supported by substantial evidence. 22 Nor can the Court conclude that the error was harmless. The vocational 23 expert opined that Plaintiff could continue her work as a preschool teacher, 24 “skilled” work, “SVP 7.”3 (AR 94.) As Plaintiff argues, highly skilled jobs are 25

26 3 “SVP” stands for specific vocational preparation score, and reflects the level of training generally required for the job. Terry v. Sullivan, 903 F.2d 1273, 1276 27 (9th Cir. 1990). Unskilled jobs correspond to an SVP of 1-2; semi-skilled jobs 28 (cont’d . . .) 1 2 Had the ALJ decided to incorporate any limitation in the RFC to account for 3 Plaintiff’s mild impairment in concentration, persistence, and pace, it may well 4 have affected the vocational expert’s opinion that she could return to her prior 5 work. 6 In this respect, it is notable that the vocational expert was asked whether 7 there would be work for an individual who was off task “more than 10% of the 8 workday”—a question arguably related to the ability to maintain concentration, 9 persistence, and pace. The vocational expert opined that an individual who was 10 off task more than 10% of the workday would exceed the tolerance of employers, 11 especially as that percentage approached 15%. (AR 95.) That answer strongly 12 suggests that if the ALJ had decided that some modification in the RFC was 13 appropriate based on Plaintiff’s mild limitation, it might have affected the ALJ’s 14 hypotheticals and the vocational expert’s answers. 15 On this record, though, the Court is unable to determine how the ALJ 16 would have translated the mild limitation to the RFC, and how the vocational 17 expert would have testified had the specific mild limitations in concentration, 18 persistence, and pace been reflected in the hypotheticals posed to the vocational 19 expert. As such, the Court cannot confidently say this error was harmless. 20 21 IV. REMAND FOR FURTHER PROCEEDINGS 22 Remand is appropriate as the circumstances of this case suggest that 23 further administrative proceedings could remedy the ALJ’s errors. See 24 Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) (“Unless the district 25 court concludes that further administrative proceedings would serve no useful 26 27 correspond to an SVP of 3 to 4; and skilled jobs correspond to an SVP of 5 to 9. Soc. Sec. Ruling 004-0p, 2000 WL 1898704, at *3 (Dec. 4, 2000) (citing 20 C.F.R. 28 §§ 404.1568, 416.968). 1 || purpose, it may not remand with a direction to provide benefits.”); Treichler v. 2 || Comm’ of Soc. Sec. Admin., 775 F.3d 1090, 1101, n.5 (9th Cir. 2014) Wemand 3 || for further administrative proceedings is the proper remedy “in all but the rarest 4 || cases”); Harman v. Apfel, 211 F.3d 1172, 1180-81 (9th Cir. 2000) (remand for 5 || further proceedings rather than for the immediate payment of benefits is 6 || appropriate where there are “sufficient unanswered questions in the record”). 7 8 V. CONCLUSION 9 For all the foregoing reasons, IT IS ORDERED that: 10 (1) the decision of the Commissioner is REVERSED and this matter 11 REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for 12 further administrative proceedings consistent with this Memorandum 13 Opinion and Order; and 14 (2) Judgment be entered in favor of Plaintiff. TEM f 16 || DATED: November 6, 2023

BRIANNA FULLER MIRCHEFF

17 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 12