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WO

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Eric Konrad Schoebel, 

Plaintiff, 

v. 

Commissioner of Social Security 

Administration, 

Defendant. 

No. CV-18-08006-PCT-DLR 

ORDER 

Plaintiff Eric Schoebel seeks judicial review of the Commissioner of the Social 

Security Administration’s decision to deny his application for a period of disability, 

disability insurance benefits, and supplemental security income. Plaintiff argues that the 

Administrative Law Judge (“ALJ’”) erred by failing to include limitations in the area of 

concentration, persistence, and pace in Plaintiff’s RFC and in hypothetical questions to the 

vocational expert (“VE”), improperly discounting Plaintiff’s symptom testimony, and 

improperly weighing the opinions of Plaintiff’s nurse practitioner. 

The Court has jurisdiction pursuant to 42 U.S.C. § 405(g) and reviews only those 

issues raised by the party challenging the ALJ’s decision. See Lewis v. Apfel, 236 F.3d 

503, 517 n.13 (9th Cir. 2001). The ALJ’s determination will be upheld unless it contains 

harmful legal error or is not supported by substantial evidence. Orn v. Astrue, 495 F.3d 

625, 630 (9th Cir. 2007). Having reviewed the parties’ briefs and the administrative record, 

the Court reverses and remands for further proceedings. 
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1. The ALJ erred in failing to incorporate any additional limitation for 

concentration, persistence, and pace into the RFC. See Lubin v. Comm’r of Soc. Sec. 

Admin., 507 Fed. App’x 709, 712 (9th Cir. 2013). The ALJ found that Plaintiff suffered 

moderate difficulties in maintaining concentration, persistence, or pace. (A.R. 22.) The 

ALJ, however, did not include this limitation in Plaintiff’s RFC or in the hypothetical 

question to the VE. (Id. 24, 54-55.) “The ALJ must include all restrictions in the [RFC] 

determination and the hypothetical question posed to the [VE], including moderate 

limitations in concentration, persistence, or pace.” Lubin, 507 Fed. App’x at 712 (citing 

20 C.F.R. §§ 404.1545, 416.945; Magallanes v. Bowen, 881 F.2d 747, 756 (9th Cir.1989)). 

Although the ALJ’s RFC states that Plaintiff “can only occasionally understand, 

remember, and carry out complex and detailed job limitations,” it is unclear whether this 

restriction captures the limitation in concentration, persistence, or pace found by the ALJ. 

The work described by the VE might still require the pace and concentration Plaintiff lacks. 

See Brink v. Comm’r Soc. Sec. Admin., 343 Fed. App’x. 211, 212 (9th Cir. 2009). Because 

the ALJ’s hypothetical question to the VE did not reflect all of Plaintiff’s non-exertional 

limitations, “the expert’s testimony has no evidentiary value to support a finding that 

[Plaintiff] can perform jobs in the national economy.” DeLorme v. Sullivan, 924 F.2d 841, 

850 (9th Cir. 1991). 

Plaintiff also challenges whether there is substantial evidence supporting the ALJ’s 

mental RFC assessment that Plaintiff “can occasionally, understand, remember, and carry 

out complex and detailed job instructions” and “can only occasionally interact with coworkers, the public, and supervisors.” (Doc. 12 at 17.) These findings are adequately 

explained and supported by substantial evidence. For instance, the ALJ gave partial weight 

to the examining psychologist and state agency psychologist who opined that Plaintiff had 

minimal limitations. 

2. The ALJ provided specific, clear, and convincing reasons for discounting 

Plaintiff’s testimony concerning the severity of his symptoms. See Smolen v. Chater, 80 

F.3d 1273, 1281 (9th Cir. 1996). Plaintiff reported that he gets anxious around people, has 
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trouble concentrating, has limited short-term memory, and has no attention span. Plaintiff 

also stated that on bad days he is bedridden, which happens three to four days a week. The 

ALJ reasonably found that Plaintiff’s testimony was inconsistent with the objective 

medical evidence. See Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). For 

example, despite Plaintiff’s contention that he had issues with attention span and 

concentration, Plaintiff’s psychological evaluation and the overwhelming balance of his 

treatment notes demonstrate the opposite. The ALJ also reasonably discounted Plaintiff’s 

testimony because it is inconsistent with his daily activities. See Bray v. Comm’r Soc. Sec. 

Admin., 554 F.3d 1219, 1221 (9th Cir. 2009). For example, Plaintiff testified that being 

around people caused him great problems and anxiety, yet he attended group-counseling 

sessions daily and enjoyed routine socialization. 

3. The ALJ gave germane reasons, supported by substantial evidence in the record, 

for affording little weight to the opinion of Plaintiff’s nurse practitioner, Salvacion Powell.1

 

See Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). Powell opined that Plaintiff 

has slight limitations in his ability to understand, remember, and carry out short, simple 

instructions, and moderate limitations in making judgment on simple work-related 

decisions. (A.R. 796.) Powell also opined that Plaintiff has marked limitations in his 

ability to understand and remember detailed instructions, interact appropriately with the 

public, co-workers, and supervisors, and in responding appropriately to work pressures and 

changes in a routine work setting. (Id.) Based on these findings, Powell opined that 

Plaintiff would be off-task more than 30% of a normal workweek, he would be absent from 

work more than 5 days a month, and would be unable to complete an 8-hour workday more 

than 5 days a month. (Id. at 797.) 

The ALJ reasonably discounted Powell’s assessment because it was not supported 

by Powell’s own treatment records. See Molina, 674 at 1111. For example, Powell 

observed that Plaintiff had normal speech, age appropriate memory, logical and coherent 

thought processes, and good concentration skills. The ALJ also reasonably discounted 

 1

 Powell is not considered an “acceptable medical source” as defined by the then- applicable regulations. 
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Powell’s opinion because it was inconsistent with Plaintiff’s daily actives. See Canales v. 

Comm’r of Soc. Sec. Admin., No. 17-CV-993-PHX-JAT, 2018 WL 2213897, at *9 (D. 

Ariz. May 15, 2018). Finally, the ALJ discounted Powell’s opinion because it was 

contradicted by Dr. Ashurt, an acceptable medical source. This is a valid reason to discount 

her opinion, see Molina, 674 F.3d at 1112, and is supported by substantial evidence. 

Accordingly, the Court remands to the Commissioner so that the ALJ can clarify his 

RFC and hypothetical and determine whether Plaintiff is able to perform gainful 

employment in the national economy. See, e.g., Lubin, 507 Fed. App’x at 712 (finding 

remand for further proceedings appropriate where ALJ did not include concentration, 

persistence, and pace limitation in RFC and hypothetical); Lara v. Colvin, No. 13-CV1643-PHX-JZB, 2015 WL 1505817, at *9-10 (D. Ariz. Mar. 31, 2015) (collecting cases). 

IT IS ORDERED that the Commissioner’s decision is REVERSED and this action 

is REMANDED for further proceedings consistent with this order. The Clerk of Court is 

directed to enter judgment accordingly and terminate this case.

Dated this 29th day of March, 2019. 

Douglas L. Rayes 

United States District Judge