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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Becky Lee Cook,

Plaintiff,

v. 

Carolyn W. Colvin, Acting Commissioner 

of the Social Security Administration,

Defendant.

No. CV-15-08158-PCT-ESW

ORDER

Pending before the Court is Becky Lee Cook’s (“Plaintiff”) appeal of the Social 

Security Administration’s (“Social Security”) denial of her applications for disability 

insurance benefits and supplemental security income. The Court has jurisdiction to 

decide Plaintiff’s appeal pursuant to 42 U.S.C. §§ 405(g), 1383(c). Under 42 U.S.C. § 

405(g), the Court has the power to enter, based upon the pleadings and transcript of the 

record, a judgment affirming, modifying, or reversing the decision of the Commissioner 

of Social Security, with or without remanding the case for a rehearing. Both parties have 

consented to the exercise of U.S. Magistrate Judge jurisdiction. (Doc. 20). 

After reviewing the Administrative Record (“A.R.”) and the parties’ briefing 

(Docs. 25, 28, 31), the Court finds that the Administrative Law Judge’s (“ALJ”) decision 

contains harmful legal error. For the reasons explained in Section II below, the decision 

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is reversed and the case is remanded to the Commissioner of Social Security for further 

proceedings. 

I. LEGAL STANDARDS

A. Disability Analysis: Five-Step Evaluation

The Social Security Act (the “Act”) provides for disability insurance benefits to 

those who have contributed to the Social Security program and who suffer from a 

physical or mental disability. 42 U.S.C. § 423(a)(1). The Act also provides for 

supplemental security income to certain individuals who are aged 65 or older, blind, or 

disabled and have limited income. 42 U.S.C. § 1382. To be eligible for benefits based 

on an alleged disability, the claimant must show that he or she suffers from a medically 

determinable physical or mental impairment that prohibits him or her from engaging in 

any substantial gainful activity. 42 U.S.C. § 423(d)(1)(A); 42 U.S.C. § 1382c(A)(3)(A). 

The claimant must also show that the impairment is expected to cause death or last for a 

continuous period of at least 12 months. Id. 

To decide if a claimant is entitled to Social Security benefits, an ALJ conducts an 

analysis consisting of five questions, which are considered in sequential steps. 20 C.F.R. 

§§ 404.1520(a), 416.920(a). The claimant has the burden of proof regarding the first four 

steps:1

Step One: Is the claimant engaged in “substantial gainful 

activity”? If so, the analysis ends and disability benefits are 

denied. Otherwise, the ALJ proceeds to step two.

Step Two: Does the claimant have a medically severe 

impairment or combination of impairments? A severe 

impairment is one which significantly limits the claimant’s 

physical or mental ability to do basic work activities. 20 

C.F.R. §§ 404.1520(c), 416.920(c). If the claimant does not 

have a severe impairment or combination of impairments, 

disability benefits are denied at this step. Otherwise, the ALJ 

proceeds to step three.

1 Parra v. Astrue, 481 F.3d 742,746 (9th Cir. 2007).

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Step Three: Is the impairment equivalent to one of a number 

of listed impairments that the Commissioner acknowledges 

are so severe as to preclude substantial gainful activity? 20 

C.F.R. §§ 404.1520(d), 416.920(d). If the impairment meets 

or equals one of the listed impairments, the claimant is 

conclusively presumed to be disabled. If the impairment is 

not one that is presumed to be disabling, the ALJ proceeds to 

the fourth step of the analysis.

Step Four: Does the impairment prevent the claimant from 

performing work which the claimant performed in the past? 

If not, the claimant is “not disabled” and disability benefits 

are denied without continuing the analysis. 20 C.F.R. §§ 

404.1520(f), 416.920(f). Otherwise, the ALJ proceeds to the 

last step. 

If the analysis proceeds to the final question, the burden of proof shifts to the 

Commissioner:

2

Step Five: Can the claimant perform other work in the 

national economy in light of his or her age, education, and 

work experience? The claimant is entitled to disability 

benefits only if he or she is unable to perform other work. 20 

C.F.R. §§ 404.1520(g), 416.920(g). Social Security is 

responsible for providing evidence that demonstrates that 

other work exists in significant numbers in the national 

economy that the claimant can do, given the claimant’s 

residual functional capacity, age, education, and work 

experience. Id.

B. Standard of Review Applicable to ALJ’s Determination

The Court must affirm an ALJ’s decision if it is supported by substantial evidence 

and is based on correct legal standards. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir.

2012); Marcia v. Sullivan, 900 F.2d 172, 174 (9th Cir. 1990). “Substantial evidence” is 

less than a preponderance, but more than a “mere scintilla.” Richardson v. Perales, 402 

U.S. 389, 401 (1971) (quoting Consolidated Edison v. NLRB, 305 U.S. 197, 229 (1938)). 

2 Parra, 481 F.3d at 746.

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It is relevant evidence as a reasonable mind might accept as adequate to support a 

conclusion. Id. 

In determining whether substantial evidence supports the ALJ’s decision, the 

Court considers the record as a whole, weighing both the evidence that supports and 

detracts from the ALJ’s conclusions. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 

1998); Tylitzki v. Shalala, 999 F.2d 1411, 1413 (9th Cir. 1993). If there is sufficient 

evidence to support the ALJ’s determination, the Court cannot substitute its own 

determination. See Morgan v. Comm’r of the Social Sec. Admin., 169 F.3d 595, 599 (9th 

Cir. 1999) (“Where the evidence is susceptible to more than one rational interpretation, it 

is the ALJ’s conclusion that must be upheld.”); Magallanes v. Bowen, 881 F.2d 747, 750 

(9th Cir. 1989). The ALJ, not the Court, is responsible for resolving conflicts and 

ambiguities in the evidence and determining credibility. Magallanes, 881 F.2d at 750; 

see also Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). 

Finally, the Court considers the harmless error doctrine when reviewing an ALJ’s 

decision. An ALJ’s decision need not be remanded or reversed if it is clear from the 

record that the error is “inconsequential to the ultimate nondisability determination.” 

Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (citations omitted); Molina, 

674 F.3d at 1115 (an error is harmless so long as there remains substantial evidence 

supporting the ALJ’s decision and the error “does not negate the validity of the ALJ’s 

ultimate conclusion”) (citations omitted).

II. PLAINTIFF’S APPEAL

A. Procedural Background

Plaintiff, who was born in 1964, has been employed as a caregiver and fast food 

worker. (A.R. 66, 74). In 2011, Plaintiff filed applications for disability insurance 

benefits and supplemental security income. (A.R. 223-39). Plaintiff’s applications 

alleged that on October 23, 2011, she became unable to work due to the following 

conditions: chronic obstructive pulmonary disease (“COPD”), “oxygen dependent,” back 

pain, sleep apnea, high blood pressure, depression, anxiety, asthma, bronchitis, and 

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enlarged heart. (A.R. 74, 88). Social Security denied the applications in May 2012. 

(A.R. 136-43). In November 2012, upon Plaintiff’s request for reconsideration, Social 

Security affirmed the denial of benefits. (A.R. 146-52). Plaintiff sought further review 

by an ALJ, who conducted a hearing in January 2014. (A.R. 28-73). In his February 21, 

2014 decision, the ALJ found that Plaintiff has not been under a disability from October 

23, 2011 through the date of the decision. (A.R. 13-22).

Plaintiff appealed the ALJ’s ruling. The Appeals Council denied Plaintiff’s

request for review, making the ALJ’s decision the final decision of the Social Security

Commissioner. (A.R. 1-4). On August 27, 2015, Plaintiff filed a Complaint (Doc. 1) 

pursuant to 42 U.S.C. § 405(g) requesting judicial review and reversal of the ALJ’s 

decision.

B. The ALJ’s Application of the Five-Step Disability Analysis

1. Step One: Engagement in “Substantial Gainful Activity”

The ALJ determined that Plaintiff has not engaged in substantial gainful activity 

since October 23, 2011, the alleged onset date. (A.R. 15). Neither party disputes this 

determination.

2. Step Two: Presence of Medically Severe Impairment/Combination 

of Impairments 

The ALJ found that Plaintiff has the following severe impairments: (i) COPD; (ii) 

sleep apnea; (iii) hypertension with cardiomegaly; (iv) asthma; (v) osteoporosis; (vi) 

migraines; (vii) osteoarthritis; and (viii) obesity. (A.R. 15). Plaintiff argues that the ALJ 

erred by not including Plaintiff’s alleged mental health issues and back pain in the list of 

severe impairments.3

 (Doc. 25 at 19-20).

3 In her brief, Plaintiff also argues that the ALJ erred by failing to include headaches in the list of severe impairments. (Doc. 25 at 19-20). However, as 

Defendant’s Response observes (Doc. 28 at 11), the ALJ included migraines in the list of 

severe impairments. Plaintiff does not maintain the challenge in her Reply (Doc. 31 at 6- 7). The Court deems the issue moot. 

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3. Step Three: Presence of Listed Impairment(s) 

The ALJ determined that Plaintiff does not have an impairment or combination of 

impairments that meets or medically equals an impairment listed in 20 C.F.R. Part 404, 

Subpart P, Appendix 1 of the Social Security regulations. (A.R. 17). Neither party 

disputes the ALJ’s determination at this step.

4. Step Four: Capacity to Perform Past Relevant Work 

The ALJ found that Plaintiff retained the residual functional capacity (“RFC”) to 

perform sedentary work as defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a), except 

that:

[Plaintiff] can never climb ladders, ropes, or scaffolds and she 

can occasionally climb ramps or stairs, balance, stoop, 

crouch, and kneel. She can never crawl and requires the use 

of supplemental oxygen. [Plaintiff] should avoid 

concentrated exposure to extreme temperatures, wetness, 

humidity, excessive vibration, irritants such [as] fumes, odors, 

dust, and gases, use of hazardous machinery and exposure to 

unprotected heights. 

(A.R. 19). Based on Plaintiff’s RFC, the ALJ determined that Plaintiff was unable to 

perform her past relevant work at Step Four. (A.R. 20-21). Plaintiff argues that the ALJ 

improperly weighed the evidence in assessing Plaintiff’s RFC. 

5. Step Five: Capacity to Perform Other Work 

At the administrative hearing, a vocational expert (“VE”) testified that based on 

Plaintiff’s RFC, Plaintiff would be able to perform the requirements of representative 

occupations such as document preparer, call-out operator, and addresser. (A.R. 67-68). 

The ALJ found that the VE’s testimony was consistent with the information in the 

Dictionary of Occupational Titles and that the jobs identified by the VE existed in 

significant numbers in the national economy. (A.R. 21-22). After considering the VE’s 

testimony, Plaintiff’s age, education, work experience, and RFC, the ALJ determined that 

Plaintiff can make a successful adjustment to other work and is therefore not disabled. 

(A.R. 22).

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C. Plaintiff’s Challenge at Step Two: The ALJ’s Exclusion of Plaintiff’s 

Mental Health Issues and Back Pain in the List of Severe Impairments 

“[T]he step two inquiry is a de minimis screening device to dispose of groundless 

claims.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). “An impairment or 

combination of impairments can be found ‘not severe’ only if the evidence establishes a 

slight abnormality that has ‘no more than a minimal effect on an individual’s ability to 

work.’” Id. (quoting Social Security Ruling (SSR) 85–28). In making the RFC 

assessment, an “ALJ must consider all of a claimant’s medical determinable impairments, 

including those that are not severe.” Ghanim v. Colvin, 763 F.3d 1154, 1166 (9th Cir. 

2014). 

1. Plaintiff’s Alleged Back Pain

A claimant’s own statement of symptoms alone is insufficient to establish a 

medically determinable impairment at Step Two of the disability analysis. See 20 C.F.R. 

§§ 404.1508, 416.908. The record must also include “signs—the results of ‘medically 

acceptable clinical diagnostic techniques,’ such as tests . . . .” Ukolov v. Barnhart, 420 

F.3d 1002, 1005 (9th Cir. 2005). 

The ALJ found that Plaintiff’s alleged back pain was not a medically determinable 

severe impairment because:

an x-ray of [Plaintiff’s] lumbar spine was normal (Ex. 9F/23). 

[Plaintiff] has received treatment in the form of pain 

medication, but has not received epidural injections or 

surgical intervention. There is no indication that [Plaintiff’s] 

alleged back pain causes more than minimal limitations in 

[Plaintiff’s] ability to perform work-related functions. 

Therefore, I find tha[t] [Plaintiff’s] back pain is not a 

medically determinable severe impairment.

(A.R. 15-16). 

While the ALJ correctly notes that an August 2012 x-ray of Plaintiff’s spine did 

not show any significant abnormalities (A.R. 470), the ALJ’s decision does not discuss 

other relevant evidence in the record. For instance, physical examinations revealed 

“decreased range of motion of L spine, paraspinal tenderness lower L spine and sacral 

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area . . . .” (A.R. 449, 481, 494, 504). Multiple records show that Plaintiff was 

diagnosed with chronic back pain. (A.R. 455, 487, 524). In addition, Nurse Practitioner 

(“NP”) Daniel Knight opined that Plaintiff’s chronic low back pain requires daily pain 

medications to function, and that the medications cause drowsiness and decrease 

Plaintiff’s ability to concentrate. (A.R. 584). NP Knight also opined that Plaintiff had 

numerous physical limitations.4

 (A.R. 584-89). Even though NP Knight is not an 

acceptable medical source, he is an “other source.” 20 CFR §§ 404.1513(d) and 

416.913(d). Opinions from “other sources” are relevant to the Step Two determination 

and cannot be rejected without germane reasons. See SSR 06–3P, 2006 WL 2329939, at 

*3 (Aug. 9, 2006) (stating that opinions from other sources such as nurse practitioners 

“are important and should be evaluated on key issues such as impairment severity and 

functional effects, along with the other relevant evidence in the file”); see also Tobeler v. 

Colvin, 749 F.3d 830, 834 (9th Cir. 2014) (“lay witness testimony as to a claimant's 

symptoms or how an impairment affects ability to work is competent evidence that cannot

be disregarded without comment”) (emphasis in original); Molina v. Astrue, 674 F.3d 

1104, 1111 (9th Cir. 2012). 

4 NP Knight’s July 26, 2016 assessment was co-signed by Angelica Macias, M.D. (A.R. 589). Citing to Taylor v. Comm’r of Soc. Sec. Admin, 659 F.3d 1228 (9th Cir. 

2011) and Gomez v. Chater, 74 F.3d 967 (9th Cir. 1996), Plaintiff argues that “[t]o the extent FNP Knight was working closely with, and under the supervision of, Dr. Macias, 

his opinion is to be considered that of an ‘acceptable medical source.’” (Doc. 25 at 17). 

However, it is unclear whether Taylor and Gomez remain good law. In Molina, 674 F.3d 

at 1112 n.3, the Ninth Circuit noted that the regulatory section relied on in Gomez has 

since been repealed. The repealed regulation (20 C.F.R. § 416.913(a)(6)) stated that a 

report of an interdisciplinary team that contains the evaluation and signature of an 

acceptable medical source is also considered acceptable medical evidence, which the 

Gomez court interpreted as including a NP-doctor team. The Ninth Circuit in Molina, however, did not address the “continued vitality” of Gomez because the NP at issue acted 

alone. Molina, 674 F.3d at 1112 n.3.

Assuming arguendo that Taylor and Gomez remain good law, Defendants 

correctly observe (Doc. 28 at 6) that there is no evidence in the record showing that NP 

Knight worked closely under the supervision of Dr. Macias and was acting as an agent of 

Dr. Macias. See Nichols v. Comm’r of Soc. Sec., 260 F.Supp.2d 1057, 1066-67 (D. Kan. 

2003) (distinguishing Gomez where physician signed the report of a NP, but there was no 

evidence indicating that the NP was working closely under the physician’s supervision, that the NP Stanford had consulted with the physician during the course of the claimant’s

treatment, and there was nothing in the record indicating that the claimant was ever seen or treated by the physician).

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While an ALJ need not discuss all evidence, he or she must discuss why 

“significant probative evidence has been rejected.” See Vincent v. Heckler, 739 F.2d 

1393, 1394-95 (9th Cir. 1984). The Court finds that Plaintiff’s chronic back pain 

diagnosis, physical examinations showing decreased range of motion and tenderness in 

Plaintiff’s back, and the opinions of NP Knight are significantly probative to the Step 

Two determination. The ALJ erred by disregarding this evidence without comment when 

finding that Plaintiff’s low back pain is not a medically determinable severe impairment. 

Smolen, 80 F.3d at 1282 (“Without explanation, [ALJ] ignored medical evidence of 

Smolen’s other impairments and thereby erred.”). 

For the above reasons, the ALJ has not provided sufficient reasons to support his 

conclusion that Plaintiff’s alleged back pain is “not a medically determinable severe 

impairment.”5

 

2. Plaintiff’s Mental Health Impairments

For allegations regarding mental impairments, an ALJ must use the special review 

technique set forth in 20 C.F.R. § 404.1520a. After determining whether an applicant has 

a medically determinable mental impairment, the ALJ must rate the degree of functional 

limitation in four areas: (i) activities of daily living, (ii) social functioning, (iii) 

concentration, persistence or pace, and (iv) episodes of decompensation. Id. at § 

404.1520a(c)(3). Next, the ALJ must determine the severity of the mental impairment. 

Id. at § 404.1520a(d). If the degree of limitation in the first three functional areas is 

“none” or “mild” and “none” in the fourth area, it is generally concluded that the 

impairment is not severe unless the evidence otherwise indicates that there is more than a 

minimal limitation in the ability to do basic work activities. Id. at § 404.1520a(d)(1). 

The ALJ found that Plaintiff had medically determinable mental impairments of 

depression, anxiety, post-traumatic stress disorder (“PTSD”), and history of marijuana 

5 It is unclear from the ALJ’s decision whether the ALJ concluded that (i) 

Plaintiff’s alleged back pain was a medically determinable impairment, but was not a severe impairment or (ii) whether Plaintiff’s alleged back pain was not a medically 

determinable impairment at all. 

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use. (A.R. 16). Applying the special review technique, the ALJ found that the mental 

impairments cause no more than “‘mild’ limitation in any of the first three functional 

areas and ‘no’ episodes of decompensation which have been of extended duration in the 

fourth area” and are therefore non-severe. (A.R. 17). As detailed below, the Court finds 

that the ALJ has provided insufficient reasons for finding that Plaintiff’s mental 

impairments are non-severe. 

i. Plaintiff’s Limited Treatment History

In explaining why he found Plaintiff’s mental impairments non-severe, the ALJ 

first stated that:

[Plaintiff] alleged that her depression makes it difficult for her 

to talk to people and that [she] has panic attacks. She was not 

receiving any formal mental health treatment at the time of 

the hearing . . . . [Plaintiff] previously received counseling at 

North Country HealthCare-Flagstaff Behavioral Health, 

beginning in December of 2012 (Ex. 13F). However, she 

denied depression in October and December of 2013 (Ex. 

17F/22, 28). The claimant’s treatment history does not 

support a finding that she has a severe mental impairment.

(A.R. 16).

The fact that Plaintiff has had limited mental health treatment is not a sufficient 

sole reason to find that her mental impairments are not severe at Step Two. See Nguyen 

v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996) (“[I]t is a questionable practice to chastise 

one with a mental impairment for the exercise of poor judgment in seeking 

rehabilitation.”) (quoting Blankenship v. Bowen, 874 F.2d 1116, 1124 (6th Cir. 1989)); 

see also Balladarez v. Colvin, No. CV 13-9490-MAN, 2014 WL 7185342, at *6 (C.D. 

Cal. Dec. 16, 2014) (“the methods by which plaintiff treated, or failed to treat, his alleged 

mental impairments are not relevant to a determination of whether plaintiff has a 

‘medically determinable’ mental impairment”). The record reflects that Plaintiff is on 

antidepressants, has consistently reported feeling depressed, and has exhibited a flat or 

depressed mood. (See, e.g., A.R. 452, 473, 492, 502-04, 525, 530, 547, 557-58, 565-66, 

596, 603). While the October and December 2013 medical records cited by the ALJ 

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indicate that Plaintiff did not have a depressed, anxious, or agitated mood or affect, 

“[c]ycles of improvement and debilitating symptoms are a common occurrence, and in 

such circumstances it is error for an ALJ to pick out a few isolated instances of

improvement over a period of months or years and to treat them as a basis for concluding 

a claimant is capable of working.” Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir. 

2014). 

ii. Examining Psychiatrist Dr. Aaron Goldman and NonExamining Psychological Consultants

On April 2, 2012, consulting psychiatrist Aaron Goldman, M.D.6 examined 

Plaintiff. (A.R. 418-23). Dr. Goldman diagnosed Plaintiff with PTSD and major 

depressive disorder, moderate, recurrent. (A.R. 420). Dr. Goldman indicated that 

Plaintiff’s Global Assessment of Functioning (“GAF”) is 42. (A.R. 421). Dr. Goldman 

stated that Plaintiff is able to understand and remember simple instructions, but “her 

depression makes it difficult to follow through detailed instructions and needs further 

treatment [for] her depression. She is currently interrupted with re-experiencing her 

trauma and this also needs to be addressed.” (A.R. 422). Dr. Goldman also noted that 

Plaintiff’s work attendance “might be problematic given the severity of her depression” 

and that Plaintiff’s ability to maintain socially appropriate behavior could become 

difficult if she experienced panic symptoms or symptoms related to her trauma. (Id.). 

Finally, Dr. Goldman indicated that Plaintiff might find it difficult to adapt to changes in 

the work setting. (Id.). 

Non-examining state agency psychological consultants found that Plaintiff did not 

have a severe mental impairment. (A.R. 104-35). The ALJ gave great weight to those 

opinions “because they are consistent with [Plaintiff’s] limited treatment history.” (A.R. 

16). In contrast, the ALJ gave “partial weight” to Dr. Goldman’s opinion because he 

“failed to consider [Plaintiff’s] marijuana use, and his findings that the claimant had a 

6 The ALJ’s decision erroneously states that Dr. Goldman is a Doctor of Psychology (Psy. D) rather than a Doctor of Medicine (MD).

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GAF of 42 and significant social limitations are not consistent with [Plaintiff’s] treatment 

history.” (Id.). The ALJ’s decision provides insufficient reasons for giving great weight 

to the non-examining consultants’ opinions, but partial weight to Dr. Goldman’s 

assessment.

First, the ALJ’s failure to identify which portions of Dr. Goldman’s assessment 

was given weight, and how much weight, deprives the Court of the opportunity to 

meaningfully review the ALJ’s Step Two determination. See Brown-Hunter v. Colvin, 

806 F.3d 487, 495 (9th Cir. 2015) (a court “cannot substitute [the court’s] conclusions for 

the ALJ's, or speculate as to the grounds for the ALJ's conclusions. Although the ALJ's 

analysis need not be extensive, the ALJ must provide some reasoning in order for [the 

court] to meaningfully determine whether the ALJ's conclusions were supported by 

substantial evidence.”) (quoting Treichler v. Comm’r of Soc. Sec., 775 F.3d 1090, 1103 

(9th Cir. 2014)). 

Second, as an examining physician, Dr. Goldman’s opinions are entitled to greater 

weight than a non-examining physician. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 

1995). And because Dr. Goldman specializes in psychiatry, his opinions regarding 

Plaintiff’s mental health are entitled to greater weight than a non-specialist.7

 See 20 

C.F.R. §§ 404.1527(c)(5), 416.927(c)(5); Smolen, 80 F.3d at 1285. The ALJ’s decision 

does not articulate with sufficient specificity the reasons for giving Dr. Goldman’s 

opinions less weight than the non-examining consultants’ opinions. It is unclear how Dr. 

Goldman’s opinions are inconsistent with Plaintiff’s treatment history. To the extent the 

ALJ’s reasoning rests on the fact that Plaintiff has a limited mental health treatment 

history, the limited treatment is not a sufficient sole reason to discount Dr. Goldman’s 

opinions. Nguyen, 100 F.3d at 1465 (“[I]t is common knowledge that depression is one 

of the most underreported illnesses in the country because those afflicted often do not 

recognize that their condition reflects a potentially serious mental illness. . . . Thus, the 

7 It is unclear from the record whether the non-examining consultants are specialists.

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fact that claimant may be one of millions of people who did not seek treatment for a 

mental disorder until late in the day is not a substantial basis on which to conclude that [a 

examining psychologist’s] assessment of claimant’s condition is inaccurate.”). 

Finally, the ALJ’s statement that Dr. Goldman failed to address Plaintiff’s 

marijuana use conflicts with the ALJ’s finding that Plaintiff’s “substance abuse is not 

material” to the Step Two determination. (A.R. 16). 

iii. Teresa Dunn, MSW, LCSW

From December 2012 to March 2013, Plaintiff received counseling from Teresa 

Dunn, MSW, LCSW. (A.R. 511-14). Ms. Dunn opined that Plaintiff had very poor 

memory and reasoning skills and would have serious limitations in the ability to 

understand, remember, and carry out complex, detailed, and simple job instructions. 

(A.R. 508-10). Ms. Dunn also opined that Plaintiff had serious social limitations and 

would have serious limitations in adjusting to a job. (Id.). Finally, Ms. Dunn opined that 

Plaintiff’s impairments would cause Plaintiff to miss work more than three times a 

month. (A.R. 510). 

The ALJ gave little weight to Ms. Dunn’s opinion, stating that Ms. Dunn’s treating 

relationship with Plaintiff was “only about three or four months, and her statement is not 

consistent with [Plaintiff’s] treatment records. In addition, Ms. Dunn is not an acceptable 

medical source.” (A.R. 16). The ALJ’s decision does not explain why the ALJ 

concluded that Ms. Dunn’s opinion is not consistent with Plaintiff’s treatment records. 

Although Ms. Dunn’s treatment notes are sparse, they do not contradict Ms. Dunn’s 

assessment. For instance, notes from Plaintiff’s first visit on December 2012 state that 

Plaintiff appears to be “ready and willing to address a long history of violence and 

probably PTSD.” (A.R. 511). Notes from the second visit state that Plaintiff wants to try 

to deal with the “severe physical [and] sexual abuse she experienced as a child, which she 

feels she is still dealing with in her life now.” (A.R. 512). Ms. Dunn’s February 2013 

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notes state that Plaintiff has “numerous medical issues and depression.” (A.R. 513).8

 

The last treatment note states that Plaintiff “returns to address her depression and anxiety 

. . . .” (A.R. 514). 

Lastly, the fact that Ms. Dunn is not an acceptable medical source is not a valid 

reason for discounting her opinion. As an “other source,” Ms. Dunn’s opinions must be 

considered and cannot be rejected without germane reasons. See 20 C.F.R. §§ 

404.1513(d), 416.913(d); Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005). The 

Court finds that the ALJ failed to provide sufficient reasons for giving Ms. Dunn’s 

opinions little weight at Step Two.

D. The ALJ’s Step Two Errors Require Remand for Further Proceedings

As mentioned previously, an ALJ must consider a claimant’s limitations caused by 

his or her severe and non-severe impairments in combination when determining a 

claimant’s RFC. 20 C.F.R. §§ 404.1520, 404.1529; §§ 416.920, 416.929; see also 

Ghanim, 763 F.3d at 1166. Here, the ALJ provided insufficient reasons for finding that 

Plaintiff’s medically determinable mental impairments are non-severe. The ALJ’s errors 

at Step Two are not harmless because the ALJ only considered Plaintiff’s physical 

impairments in determining Plaintiff’s RFC.9

 

“A district court may reverse the decision of the Commissioner of Social Security, 

with or without remanding the cause for a rehearing, but the proper course, except in rare 

circumstances, is to remand to the agency for additional investigation or explanation.” 

8 This record also states “[a]pparently goal is to receive help with SSI application.” Similarly, Ms. Dunn’s last record states that Plaintiff’s “main concern is getting financial 

relief [sic]” and “very disabled female looking for help to get into Social Security 

[disability system].” (A.R. 514). To the extent the ALJ finds these statements relevant to 

Plaintiff’s claim, the Ninth Circuit has explained that “in the absence of other evidence to 

undermine the credibility of a medical report, the purpose for which the report was 

obtained does not provide a legitimate basis for rejecting it.” Reddick, 157 F.3d at 726.

9 The ALJ did not address Plaintiff’s back pain when determining Plaintiff’s RFC. However, as mentioned previously, it is unclear from the ALJ’s decision whether the ALJ 

found that Plaintiff’s back pain was a medically determinable impairment, but was non- severe, or was not a medically determinable impairment at all. If the ALJ finds on remand that the back pain is a medically determinable impairment, but is not severe, the 

ALJ shall consider the non-severe impairment when re-assessing Plaintiff’s RFC. 

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Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) (citations and internal quotation 

marks omitted). A district court may remand directly for an award of benefits only when: 

“(1) the record has been fully developed and further administrative proceedings would 

serve no useful purpose; (2) the ALJ failed to provide legally sufficient reasons for 

rejecting evidence; and (3) if the improperly discredited evidence were credited as true, 

the ALJ would be required to find the claimant disabled on remand.” Garrison, 759 F.3d 

at 1020. Even if these requirements are met, the court retains “flexibility” to remand “on 

an open record for further proceedings when the record as a whole creates serious doubt 

as to whether the claimant is, in fact, disabled within the meaning of the Social Security 

Act.” Dominguez, 808 F.3d at 407-08. 

It is appropriate to remand this matter to the Commissioner for further proceedings 

as there is conflicting evidence that must be reweighed and resolved by the ALJ. See

Treichler, 775 F.3d at 1101 (remand for additional proceedings, rather than an award of 

benefits, is appropriate “[w]here there is conflicting evidence, and not all essential factual 

issues have been resolved . . .”). On remand, the ALJ should develop the record as 

necessary and reevaluate the evidence at Step Two, reassess and determine Plaintiff’s 

RFC, and obtain additional VE testimony at Step Five, if appropriate. Because the ALJ’s 

harmful error at Step Two requires remand, the Court does not address Plaintiff’s 

challenges to the ALJ’s RFC and Step Five determinations as those determinations may 

change on remand. 

III. CONCLUSION

Based on the foregoing, 

IT IS ORDERED reversing the decision of the Commissioner of Social Security 

and remanding for further administrative proceedings. The ALJ shall issue a new 

decision that is consistent with the applicable law as set forth in this Order. The ALJ, 

however, is not precluded from reopening the hearing to receive additional evidence if 

deemed appropriate. The Clerk of Court shall enter judgment accordingly. 

Dated this 21st day of July, 2016. 

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