IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

PRISCILLA M. SANDERS, 

Plaintiff, 

v. 

CAROLYN W. COLVIN, Acting 

Commissioner of Social 

Security, 

Defendant. 

AIKEN, Chief Judge: 

Case No. 6:14-cv-01608-AA 

OPINION AND ORDER 

Plaintiff brings this action pursuant to the Social 

Security Act (the Act), 42 U.S.C. §§ 405(g), seeking judicial 

review of a final decision of the Commissioner of Social 

Security (Commissioner) denying plaintiff's application for 

Supplemental Security Income ( SSI) . For the reasons set for th 

below, the Commissioner's decision is reversed and remanded for 

further proceedings. 

1 - OPINION AND ORDER 

Case 6:14-cv-01608-AA Document 22 Filed 12/19/15 Page 1 of 20
BACKGROUND 

On July 19, 2011, plaintiff filed an application for SSI 

benefits, alleging disability since September 1, 198 6 due to a 

learning disability, glaucoma, peripheral vision problems, and 

post-traumatic stress disorder. Tr. 121, 148. Her application 

was denied initially and on reconsideration. Tr. 15. After 

timely requesting a hearing, plaintiff appeared and testified 

before an administrative law judge (ALJ) on April 16, 2013. Id. 

A vocational expert, Mark A. McGowan, was in attendance, but he 

did not testify at the hearing. Tr. 15, 37-53. On May 22, 2013, 

the ALJ issued a decision finding plaintiff not disabled within 

the meaning of the Act. Tr. 12-24. The Appeals Council denied 

plaintiff's request for review, rendering the ALJ's decision the 

final decision of the Commissioner. Tr. 1-4. Plaintiff now seeks 

judicial review. 

Plaintiff was 37 years old at the time of the ALJ's 

decision. Tr. 43. Plaintiff has a ninth-grade education and has 

worked as a daycare assistant, fast food cook, and as a 

temporary worker. Tr. 150, 221. 

STANDARD OF REVIEW 

This court must affirm the Commissioner's decision if it is 

supported by substantial evidence in the record and the correct 

application of the law. Valentine v. Comm'r Soc. Sec. Admin, 574 

2 - OPINION AND ORDER 

Case 6:14-cv-01608-AA Document 22 Filed 12/19/15 Page 2 of 20
F.2d 685, 690 (9th Cir. 2009). '"Substantial evidence' means 

more than a mere scintilla, but less than a preponderance. It 

means such relevant evidence as a reasonable mind might accept 

as adequate to support a conclusion." Desrosiers v. Sec'y of 

Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988). 

(internal quotation marks and citations omitted). In determining 

whether substantial evidence supports the decision, the courts 

must weigh "both the evidence that supports and detracts from 

the [Commissioners]' s conclusion" Martinez v. Heckler, 807 F. 2d 

771, 772 (9th Cir. 1986). Where the evidence "is susceptible to 

more that one rational interpretation," the Commissioner's 

conclusion must be upheld. Burch v. Barnhart, 400 F.3d 676, 679 

(9th Cir. 2005). 

COMMISSIONER'S DECISION 

The initial burden of proof rests upon the claimant to 

establish disability. Howard v. Heckler, 782 F.2d 1484, 1486 

(9th Cir. 1986). To meet this burden, a claimant must demonstrate 

an "inability to engage in any substantial gainful activity by 

reason of any medically determinable physical or mental 

impairment which can be expected . to last for a continuous 

period of not less than 12 months ff 42 u.s.c. § 

423 (d) (1) (A). 

3 - OPINION AND ORDER 

Case 6:14-cv-01608-AA Document 22 Filed 12/19/15 Page 3 of 20
The ALJ evaluated plaintiff's allegation of disability 

pursuant to the relevant sequential process. See Bowen v. 

Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 416.920. At step 

one, the ALJ found that plaintiff had not engaged in 

"substantial gainful activity" during the period of alleged 

disability. Tr. 17; 20 C.F.R. § 416.920(b). 

At step two, the ALJ found that plaintiff had "non-severe" 

visual and mental impairments and a "severe" impairment of 

borderline intellectual functioning. Tr. 17; 20 C.F.R. § 

416. 920 (c). However, at step three, the ALJ found that 

plaintiff's impairments did not meet or equal "one or a number 

of listed impairments that the [Commissioner] acknowledges are 

so severe as to preclude gainful activity." Tr. 19; 20 C.F.R. § 

416. 920 (d). 

The ALJ then found that plaintiff retained the residual 

functional capacity (RFC) to perform a full range of work at all 

exertional levels, with nonexertional limitations requiring 

simple, repetitive, routine tasks. Tr. 20. At step four, the ALJ 

found plaintiff had no past relevant work for the purpose of 

disability. 20 C.F.R. § 416.920(e), (f). 

At step five, the ALJ relied solely on the MedicalVocational Guidelines and found that plaintiff was not disabled 

and that jobs existed in significant numbers in the national 

4 - OPINION AND ORDER 

Case 6:14-cv-01608-AA Document 22 Filed 12/19/15 Page 4 of 20
economy that plaintiff could perform. Tr. 22; 20 C.F.R. § 

416.920(g). Therefore, the ALJ found plaintiff not disabled 

under the meaning of the Act. Tr. 23. 

DISCUSSION 

A. Step Two Findings 

Plaintiff argues that the ALJ erred by finding that her 

mood and personality disorders were not severe because she had 

not consistently complained of symptoms. Plaintiff relies on the 

decision in Nguyen v. Chater, 100 F.3d 1462 (9th Cir. 1996). 

There, the Ninth Circuit noted that depression "is one of the 

most under reported illnesses in the country because those 

afflicted often do not recognize that their condition reflects a 

potential serious mental illness." Id. at 1465. However, as true 

as this statement may be, Nguyen is clearly distinguishable from 

the present facts. 

In Nguyen, the ALJ relied on the claimant's failure to seek 

treatment as the basis to dismiss a doctor's assessment of the 

claimant's condition. Id. Here, the ALJ did not dismiss a 

doctor's diagnosis and instead noted plaintiff's failure to seek 

treatment as evidence of her condition's lack of severity. It is 

proper for the ALJ to conclude that the frequency of treatment 

is inconsistent with the level of complaints when no medical 

evidence suggests that the plaintiff's "resistance was 

5 - OPINION AND ORDER 

Case 6:14-cv-01608-AA Document 22 Filed 12/19/15 Page 5 of 20
attributable to her mental impairment rather than her own 

personal preference. ff Molina v. As true, 67 4 F. 3d 1104, 1114 (9th 

Cir. 2012). Plaintiff cites no medical evidence of record 

indicating that mental illness prevented her from seeking 

treatment. Further, plaintiff admitted to Dr. Cotgageorge, an 

examining psychologist, that her PTSD was not severe, and there 

is no evidence that this admission was a result of mental 

illness. Tr. 220. 

Plaintiff also argues that the ALJ erred by finding her 

visual impairment not severe, based on a misinterpretation of a 

report by Dr. Czarneck, an examining physician. The ALJ relied 

on Dr. Czarneck' s statement that plaintiff's exam was out of 

proportion to the alleged degree of visual loss. Tr. 18. 

Plaintiff argues that Dr. Czarneck's report should be 

interpreted differently. However, when evidence is susceptible 

to more than one rational interpretation, the ALJ' s conclusion 

must be upheld. Burch, 400 F. 3d at 679. Dr. Czarneck' s report 

does, in fact, state that plaintiff's "exam is out of proportion 

to degree of visual loss. ff Tr. 231. A reviewing physician, Dr. 

Hayes, also supported this conclusion. Tr. 59. Further, Dr. 

Czarneck stated that plaintiff's visual ailment possibly could 

be motivated by secondary gain. Tr. 231. Based on this evidence, 

6 - OPINION AND ORDER 

Case 6:14-cv-01608-AA Document 22 Filed 12/19/15 Page 6 of 20
it was rational for the ALJ to interpret the report as 

indicating that plaintiff's vision loss is not severe. 

Moreover, the ALJ relied on plaintiff's lack of consistent 

treatment for any visual limitations. Tr. 18. The lack of 

treatment a claimant seeks for an impairment "is powerful 

evidence" regarding the extent of her symptoms. Burch, 400 F. 3d 

at 681. This evidence, combined with Dr. Czarneck's and Dr. 

Hayes' opinions, serve as substantial evidence to support the 

ALJ's findings at step two. 

B. Step Three Findings 

Plaintiff also argues that the ALJ erred by finding that 

her impairment did not meet or equal the severity of listing 

12.05C. Listing 12.05C has three main components: (1) subaverage 

intellectual functioning with deficits in adaptive functioning 

initially manifested before age 22; ( 2) an IQ score of 60 to 7 0; 

and (3) a physical or other mental impairment causing an 

additional and significant work-related limitation. Kennedy v. 

Colvin, 738 F.3d 1172, 1176 (9th Cir. 2013). 

Plaintiff argues that the combination of her visual 

impairment and her borderline IQ score equals the overall 

severity of Listing 12. 05C. However, a claimant "must present 

medical findings equal in severity to all the criteria for the 

one most similar listed impairment." Sullivan v. Zabley, 4 93 

7 - OPINION AND ORDER 

Case 6:14-cv-01608-AA Document 22 Filed 12/19/15 Page 7 of 20
U.S. 521, 531 (1990). Thus, plaintiff cannot prove equivalence 

"by showing that the overall functional impact of [her] ... 

combination of impairments is as severe as that of a listed 

impairment. fl Id. at 531. Instead, plaintiff's condition must 

equal each criteria of Listing 12.05C. Kennedy 738 F.3d at 1176. 

Here, the ALJ found that plaintiff does not have a valid IQ 

score of 60 through 70. Tr. 19. Thus, plaintiff must show that 

her mental disability is equivalent in severity to this IQ 

range. Under the holdings in Zabley and Kennedy, her physical 

disabilities are irrelevant to this determination. 

During plaintiff's examination, Dr. Cotgageorge noted that 

her visual problems invalidated her perceptual reasoning index 

score of 52. This result left plaintiff with a valid IQ score of 

7 8, which is above the range of Listing 12. 05C. The ALJ found 

that while the medical record "does not support the claimant has 

a severe visual impairment, the claimants perceived visual 

deficits apparently affected this evaluation [.]fl Tr. 22 

(emphasis added). Regardless, with an IQ score above 70, 

plaintiff does not meet the requirements of Listing 12.05C. 

C. Credibility Determination 

When assessing a plaintiff's claims regarding the intensity 

of symptoms, the ALJ must follow a two-step analysis. Molina, 

67 4 F. 3d at 1112. The ALJ first must determine if there is 

8 - OPINION AND ORDER 

Case 6:14-cv-01608-AA Document 22 Filed 12/19/15 Page 8 of 20
objective evidence of an impairment that could reasonably 

produce the symptom. Id. If the plaintiff produces such 

evidence, "the ALJ may reject the claimant's testimony regarding 

the severity of symptoms only if he makes specific findings 

stating clear and convincing reasons for doing so." Smolen v. 

Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). In making these 

findings, the ALJ may consider objective medical evidence and 

the claimant's treatment history, as well as unexplained failure 

to seek treatment of follow a prescribed course of treatment. 

Id. The ALJ may also consider the claimant's daily activities, 

work record, and the observation of physicians. Id. For example, 

the ALJ may discredit a claimant's testimony when the claimant 

reports participation in everyday activities indicating 

capacities that are transferable to a work setting. Molina, 67 4 

F.3d at 1112. 

Plaintiff argues that the ALJ failed to meet this standard 

because the ALJ did not provide "specific and cogent reasons 

that support his credibility finding." Pl.'s Br. 20-21. The ALJ 

found that plaintiff's "medically determinable impairments" 

could reasonably cause some of her alleged symptoms, but that 

the "intensity, persistence and limiting affects" of the 

symptoms were not credible. Tr. 21. Specifically, the ALJ found 

that the medical record did not reflect the level of visual 

9 - OPINION AND ORDER 

Case 6:14-cv-01608-AA Document 22 Filed 12/19/15 Page 9 of 20
impairment indicated by plaintiff, and the ALJ relied on the 

opinion of Dr. Czarneck in finding that this impairment could 

not reasonably produce the symptoms that plaintiff alleged. Tr. 

18, 231. Notably, Dr. Czarneck' s opined that plaintiff's "exam 

was out of proportion to the degree of visual loss" and 

suggested possible secondary gain. Tr. 231. Therefore, the ALJ's 

credibility findings as to plaintiff's visual allegations are 

supported by the record. 

Next, the ALJ found that the severity of plaintiff's 

alleged symptoms was not consistent with her daily activities. 

Tr. 22. For example, the ALJ relied on the fact that plaintiff 

is able to cook, perform household chores, shop two to three 

times per week, and engage in social activities with friends and 

family. Id. 

Finally, the ALJ found that plaintiff did not consistently 

seek treatment for her alleged mental or visual impairments. Tr. 

17. The ALJ may account for unexplained failure to seek 

treatment or follow a prescribed course of treatment when 

assessing credibility. Smolen, 80 F.3d at 1284. As discussed 

above, the ALJ may rely on plaintiff's failure to seek treatment 

as long as it is not "attributable to her mental impairment 

rather than her own personal preference." Molina, 67 4 F. 3d at 

1114. Here, the ALJ relied on evidence from the record that 

10 - OPINION AND ORDER 

Case 6:14-cv-01608-AA Document 22 Filed 12/19/15 Page 10 of 20
plaintiff both denied having PTSD and only sought sporadic 

treatment for her anxiety. Similarly, the ALJ found that 

plaintiff had not sought consistent treatment for any visual 

limitations. Tr. 17. In response, plaintiff cites no evidence of 

record showing that her failure to seek treatment was a result 

of her mental illness. Therefore, the ALJ did not error by using 

this evidence in the credibility determination. 

The ALJ' s reasons for discrediting plaintiff's complaints 

regarding her visual and mental limitations are clear, 

convincing, and supported by the record. Thus, the ALJ did not 

arbitrarily discredit plaintiff's testimony. 

D. RFC Determination and Step Five Analysis 

Plaintiff argues that the ALJ' s RFC determination was not 

supported by substantial evidence, because the ALJ improperly 

discounted Dr. Cotgageorge's opinion and the RFC failed to 

adequately capture plaintiff's restrictions related to 

concentration, persistence, or pace. 

Dr. Cotgageorge found that "psychological factors do not 

appear to preclude [plaintiff] from work." Tr. 226. At the same 

time, Dr. Cotgageorge found that plaintiff had several cognitive 

limitations that affected her ability to work. Specifically, Dr. 

Cotgageorge found: 

Her ability to remember simple locations and 

work-like procedures was moderately impaired. 

11 - OPINION AND ORDER 

Case 6:14-cv-01608-AA Document 22 Filed 12/19/15 Page 11 of 20
Her ability to understand and remember very 

short and simple instructions was mildly to 

moderately impaired. 

Her ability to understand and remember detailed 

instructions was moderately impaired. 

Her ability to carry out detailed (three steps) 

instructions was mildly to moderately impaired. 

Her ability to maintain attention and 

concentration for extended periods (of about 15 

minutes) was moderately impaired. 

The cognitive ability to perform activities 

within a schedule and maintain regular 

attendance and be punctual within customary 

tolerances was moderately impaired. This 

indicates her cognitive ability to do so, not 

her motivation to do so. 

Her ability to sustain an ordinary routine 

without special supervision was mildly to 

moderately impaired. This is her ability to 

perform tasks without direct, constant 

supervision. 

Her 

with 

too 

cognitive ability to work in coordination 

or in proximity to others without being 

distractible was mildly to moderately 

impaired. 

Tr. 225. Dr. Frommelt reviewed Dr. Cotgageorge's report and 

concluded that plaintiff could perform work of limited 

complexity, with moderate limitations in understanding, 

remembering, and carrying out detailed instructions, and 

moderate limitations with maintaining attention and 

concentration for extended periods. Tr. 63, 166-173. With 

12 - OPINION AND ORDER 

Case 6:14-cv-01608-AA Document 22 Filed 12/19/15 Page 12 of 20
respect to the opinions of Drs. Cotgageorge and Frornmel t, the 

ALJ found: 

Tr. 

The undersigned gives some weight to Dr. Cotgageorge's 

opinion of the claimant's limitations. The objective 

findings of the evaluation support [that] the claimant 

has some cognitive deficits. While the evidence, as 

discussed above, does not support the claimant has a 

severe visual impairment, the claimant's perceived 

visual deficits apparently affected this evaluation 

and the undersigned finds the perceptual reasoning 

index score of 52 not valid, consistent with Dr. 

Cotgageorge' s conclusions. However, the undersigned 

does not find that the claimant has more restrictive 

limitations than is noted in her above residual 

functional capacity. The claimant is able to engage in 

essentially completely normal activities of daily 

living. 

A state agency medical consultant, Gayle Frornmelt, 

PhD, reviewed the claimant 's records on November 4, 

2011 to determine the claimant's mental residual 

functional capacity (Ex 2A) . Dr. Frornmel t found the 

claimant had moderate limitations with understanding, 

remembering, and carrying out detailed instructions. 

She also found the claimant had moderate limitations 

with maintaining attention and concentration for 

extended periods. Dr. Frornmel t stated the claimant 

retained the ability to do work of limited complexity 

that could be learned in three months' time and could 

manage social interactions. 

22. Ultimately, the ALJ gave "some weight" to Dr. 

Cotgageorge's opinion and "significant weight" to Dr. Frornmelt's 

and found that plaintiff was "limited to simple, repetitive, 

routine tasks." Tr. 2 0, 22. As noted by the Commissioner, the 

ALJ's decision did not explicitly reject or discount the 

findings of Dr. Cotgageorge or provided specific reasons for 

doing so. 

13 - OPINION AND ORDER 

Case 6:14-cv-01608-AA Document 22 Filed 12/19/15 Page 13 of 20
Plaintiff argues that the RFC of "simple, unskilled" work 

does not encompass Dr. Cotgageorge's findings regarding 

plaintiff's moderate limitations of concentration, persistence, 

pace and punctuality, and that his implicit rejection of Dr. 

Cotgageorge's opinion was error. 

In response, the Commissioner relies on the Ninth Circuit's 

opinion in Stubbs-Danielson v. As true, 539 F. 3d 1169 (9th Cir. 

2008). There, the Ninth Circuit held that "an ALJ' s assessment 

of a claimant adequately captures restrictions related to 

concentration, persistence, or pace where the assessment is 

consistent with restrictions identified in the medical 

testimony." Id. at 1174. In that case, the record included a 

medical source opinion with a "concrete" restriction to "simple 

tasks." Id. at 1173-74. The ALJ assessed an RFC that limited the 

claimant to "simple, routine, repetitive sedentary work," and 

the Ninth Circuit found no error in the RFC because it was 

consistent with the medical record. Id. 

However, I find that the facts of this case are more 

analogous to those in Brink v. Comm' r of Soc. Sec. Admin., 343 

Fed. Appx. 211 (9th Cir. 2009). In Brinkr the ALJ accepted 

medical evidence that the plaintiff had moderate difficulties 

with concentration, persistence, or pace, but the RFC 

hypothetical posed to the vocational expert "referenced only 

14 - OPINION AND ORDER 

Case 6:14-cv-01608-AA Document 22 Filed 12/19/15 Page 14 of 20
'simple, repetitive work,' without including limitations on 

concentration, persistence, and pace." Id. at 212. In finding 

error and rejecting the Commissioner's reliance on StubbsDanielson" the Ninth Circuit explained: 

Id. 

In Stubbs-Danielson ... , we held that an "assessment 

of a claimant adequately captures restrictions related 

to concentration, persistence, or pace where the 

assessment is consistent with the restrictions 

identified in the medical testimony." Id. at 1174. The 

medical testimony in Stubbs-Danielson" however, did 

not establish any limitations in concentration, 

persistence, or pace. Here, in contrast, the medical 

evidence establishes, as the ALJ accepted, that Brink 

does have difficulties with concentration, 

persistence, or pace. Stubbs-Danielson, therefore, is 

inapposite. 

Here, as in Brink" the ALJ accepted Dr. Cotgageorge' s and 

Dr. Frommel t' s opinions that plaintiff had moderate, cognitive 

limitations related to concentration, persistence, and pace; 

however, the RFC only limited plaintiff "simple, repetitive, 

routine tasks." Tr. 20. Given the specific nature and degree of 

cognitive limitations found by Dr. Cotgageorge and endorsed in 

part by Dr. Frommelt, I find that the RFC is incomplete and does 

not adequately reflect those limitations. See Bentancourt v. 

Astrue, 2010 WL 4916604, at *3-4 (C.D. Ca. Nov. 27, 2010) (a 

hypothetical question to the vocational expert excluding the 

plaintiff's difficulties with concentration, persistence, or 

pace resulted in a conclusion that was "based on an incomplete 

15 - OPINION AND ORDER 

Case 6:14-cv-01608-AA Document 22 Filed 12/19/15 Page 15 of 20
hypothetical question and unsupported by substantial evidence"); 

Melton v. Astrue, 2010 WL 3853195, at *8 (D. Or. Sept. 28, 

2010), aff'd 442 F.3d. Appx. 339 (9th Cir. 2011) (ALJ erred when 

RFC assessment restricted the plaintiff to simple, repetitive 

tasks but did not include the plaintiff's mild-to-moderate 

limitation in maintaining concentration, persistence, or pace). 

Moreover, the ALJ's error was not harmless, because the ALJ 

relied on the RFC assessment when relying solely on the grids 

and failing to obtain vocational expert testimony at step five. 1 

At step five, the ALJ considers whether a claimant can 

perform work that exists in the national economy considering the 

claimant's RFC, age, education, and work experience. The 

Commissioner can make a step-five determination by either using 

"the testimony of a vocational expert or by reference to the 

Medical Vocational Guidelines." Thomas v. Barnhart, 278 F.3d 

947, 955 (9th Cir. 2002). The Medical-Vocational Guidelines (the 

grids) correlate a claimant's age, education, previous work 

experience, and exertional capability to direct a finding of 

either disabled or not disabled. Tr. 23; see 20 C.F.R. Part 404, 

Subpt. P, Appx. 2. Although an ALJ may rely on the grids if a 

1 Notably, a vocational expert was present at the administrative 

hearing; inexplicably, the ALJ failed to provide the vocational 

expert with a relevant hypothetical or allow plaintiff's counsel 

to provide an alternative hypothetical. Tr. 15, 37-53. 

16 - OPINION AND ORDER 

Case 6:14-cv-01608-AA Document 22 Filed 12/19/15 Page 16 of 20
claimant suffers from exertional impairments, if a claimant has 

both exertional and nonexertional impairments, the grids 

typically serve as a framework and further evidence and 

testimony may be required. Id. §§ 200.00(a), (e) (2); see 

also Thomas, 278 F.3d at 960; Cooper v. Sullivan, 880 F.2d 1152, 

1155-56 (9th Cir. 1989). In other words, the grids are generally 

inapplicable when "the predicate for using the grids the 

ability to perform a full range of either medium, light, or 

sedentary activities - is not present." Burkart v. Bowen, 8 5 6 

F.2d 1335, 1340 (9th Cir. 1988) (emphasis added); see also Jones 

v. Heckler, 760 F.2d 993, 998 (9th Cir. 1985) (the grids should 

not be used if they "fail accurately to describe a claimant's 

particular limitations"). 

At the same time, a non-exertional limitation "does not 

automatically preclude application of the grids. Rather, "[a] 

vocational expert is required only when there are significant 

and 'sufficiently severe' nonexertional limitations not 

accounted for in the grid." v. As true 499 F.3d 1071, 

1076 (9th Cir. 2007). In other words, when a claimant has 

"significant non-exertional limitations," the ALJ cannot rely 

solely on the grids. Id.; Burkhart, 856 F. 2d at 1335 (the grids 

are inapplicable "[w]hen a claimant's non-exertional limitations 

are 'sufficiently' severe so as to significantly limit the range 

17 - OPINION AND ORDER 

Case 6:14-cv-01608-AA Document 22 Filed 12/19/15 Page 17 of 20
of work permitted by the claimant's exertional limitations"). In 

Hoopai, the Ninth Circuit upheld the ALJ's reliance on the grids 

based on the finding that the plaintiff's depression "was not 

sufficiently severe such that it significantly affects his 

ability to work beyond the exertional limitations." Id. at 1076. 

Here, the ALJ relied on Social Security Ruling 85-15 and 

found that plaintiff's non-exertional limitations did not 

significantly affect her occupational base of unskilled work at 

all exertional levels. Tr. 23. SSR 85-15 provides: 

Where a person's only impairment is mental, is not of 

listing severity, but does prevent the person from 

meeting the mental demands of past relevant work and 

prevents the transferability of acquired work skills, 

the fin al consideration is whether the person can be 

expected to perform unskilled work. The basic mental 

demands of competitive, remunerative, unskilled work 

include the abilities (on a sustained basis) to 

understand, carry out, and remember simple 

instructions; to respond appropriately to supervision, 

coworkers, and usual work situations; and to deal with 

changes in a routine work setting. A substantial loss 

of ability to meet any of these basic work-related 

activities would severely limit the potential 

occupational base. 

The ALJ found that plaintiff's documented mental limitations did 

not result in deficits that would preclude the ability to 

understand, carry out, and remember simple instructions; use 

judgment in making work related decisions; respond appropriately 

to supervision, coworkers, and usual work situations; and deal 

with changes in a routine work setting. Tr. 23. Thus, the ALJ 

18 - OPINION AND ORDER 

Case 6:14-cv-01608-AA Document 22 Filed 12/19/15 Page 18 of 20
found that her limitations "have little to no effect on the 

occupational base of unskilled work at all exertional levels." 

Tr. 23. 

However, as noted above, the ALJ' s RFC failed to account 

for plaintiff's cognitive limitations in concentration, 

persistence, and pace. Accordingly, the ALJ erred by applying 

the grids despite evidence in the record suggesting that the 

grids may not encompass plaintiff's non-exertional limitations. 

See Perkins v. Colvin, 2013 WL 3930407, at *9 (D. Ariz. July 30, 

2013) (finding that the ALJ erred by applying the grids when 

there was evidence that the claimant had non-exertional 

limitations related to his cognitive impairments). 

E. Remand 

As set forth above, the ALJ erred by assessing an RFC that 

did not account for the accepted limitations in plaintiff's 

concentration, persistence, and pace. The ALJ also erred at step 

five by relying solely on the grids and failing to obtain the 

testimony of a vocational expert. Accordingly, this matter is 

reversed and remanded for further proceedings. See Harman v. 

Apfel, 211 F.3d 1172, 1173-74 (9th Cir. 2000) (remand is 

appropriate when there are outstanding issues to be resolved 

before a disability determination can be made) . On remand, the 

ALJ shall render an RFC assessment including plaintiff's 

19 - OPINION AND ORDER 

Case 6:14-cv-01608-AA Document 22 Filed 12/19/15 Page 19 of 20
cognitive limitations and obtain evidence from a vocational 

expert. 

CONCLUSION 

The ALJ's finding that plaintiff is not disabled within the 

meaning of the Act is not supported by substantial evidence in 

the record. Accordingly, the Commissioner's decision is REVERSED 

and REMANDED for further proceedings, as set forth above. 

IT IS SO ORDERED. 

Dated this of December, 2015. 

Ann Aiken 

United States District Judge 

20 - OPINION AND ORDER 

Case 6:14-cv-01608-AA Document 22 Filed 12/19/15 Page 20 of 20