Sandoval V. O'Malley

[3] 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 EUREKA DIVISION [7] 8 JOHN S.,1 Case No. 24-cv-00062-RMI 9 Plaintiff, ORDER ON MOTIONS FOR 10 v. SUMMARY JUDGMENT 11 MARTIN J. O'MALLEY, et al., Re: Dkt. Nos. 9, 10 12 Defendants. 13 Plaintiff seeks judicial review of an administrative law judge (“ALJ”) decision finding that 14 Plaintiff was not disabled under Title II of the Social Security Act. See Admin. Rec. at 1.2 The 15 Appeals Council of the Social Security Administration declined to review the ALJ’s decision. Id. 16 As such, the ALJ’s decision is a “final decision” of the Commissioner of Social Security, 17 appropriately reviewable by this court. See 42 U.S.C. § 405 (g), 1383(c)(3). Both parties have 18 consented to the jurisdiction of a magistrate judge (Dkts. 4, 5), and both parties have filed briefs 19 (Dkts. 9, 10). For the reasons stated below, the decision of the ALJ is REVERSED and the case is 20 REMANDED FOR FURTHER PROCEEDINGS consistent with this order. 21 I. Background 22 Plaintiff was born in 1963. AR at 27. He spent his career working as a sheet metal 23 mechanic in the HVAC industry, a job which often entailed lifting 100 pounds or more. Id. at 38– 24 40. Plaintiff’s career ended in 2018, when he suffered a heart attack, after which doctors were [25] 1 Pursuant to the recommendation of the Committee on Court Administration and Case [26] Management of the Judicial Conference of the United States, Plaintiff’s name is partially redacted. [27] 2 The Administrative Record (“AR”), which is independently paginated, has been filed in eight 1 unable to properly insert stents in Plaintiff’s arteries. Id. at 19, 40 . Although Plaintiff was cleared 2 to return to work after the failed stent surgery, he ultimately took early retirement, as he found it 3 “difficult to . . . get through the day” after the procedure. Id. at 40 . 4 Plaintiff’s physical troubles extended beyond the heart attack and failed surgery, however. 5 He reported tenderness in his left elbow and right knee as early as 2017. AR at 352–53. In 2018, 6 he reported heel pain which ultimately required injections. Id. at 327 . In 2019, after a kickboxing 7 workout, he developed pain in his right shoulder and both elbows. Id. at 321 . This pain persisted 8 for a month before Plaintiff saw a doctor, was rated 7 out of 10, and did not respond to ibuprofen. [9] Id. at 326 . However, while an exam detected tenderness, no other abnormalities were found in 10 Plaintiff’s elbows and shoulders. Id. at 323–24. In 2020, Plaintiff complained of pain in his right 11 hip as well as in his shoulder, hands, and knees. Id. at 302 . An MRI indicated “multifocal 12 degenerative changes” in Plaintiff’s hip connective tissue. Id. at 401 . By late that year, care 13 providers noted that Plaintiff’s range of motion in his left knee and shoulders was limited due to 14 pain. Id. at 282 . Further, Plaintiff’s knee tissue was swollen. Id. at 283 . X-rays showed minimal 15 to mild arthritis in Plaintiff’s shoulders and knees. Id. at 276–77, 397. In 2021, Plaintiff 16 complained of “right hip pain 8/10 for a few weeks . . . . Using ibuprofen 800mg twice daily 17 without relief for 2 days.” Id. at 475 . Plaintiff additionally suffers from, and was treated for, 18 dizziness and vertigo. Id. at 315, 338 . 19 Plaintiff also has a history of mental illness. His medical records reflect an episode of 20 major depressive disorder in 2009. AR at 330. In 2020, Plaintiff sought anger management 21 counseling and noted a “history of anxiety, lots of worry, marital conflict.” Id. at 298 . An 22 evaluator noted that Plaintiff screened negative for anxiety3 and PTSD, but showed minimal 23 symptoms of depression. Ultimately, Plaintiff was informed that treatment for his mental illnesses 24 was not medically necessary. Id. at 293 . Plaintiff was encouraged to attend anger management 25 classes regardless. Id. 26 II. Procedural History [27] 1 Plaintiff filed for Social Security benefits in 2021, alleging an onset date of September 1, 2 2018. AR at 81. He submitted a function report alleging that “[l]ack of stamina prevents me from 3 working, also back, knee, hip, shoulder, and elbow pain limit me.” Id. at 205 . He claimed that he 4 was no longer able to kneel or work at ground level “due to pain in my knees and light5 headedness.” Id. at 206 . He reported difficulty lifting, walking, stair-climbing, squatting, sitting, 6 bending, kneeling, remembering things, using his hands, standing, completing tasks, and 7 concentrating, claiming that “[a]rthritis and heart disease are affecting my ability to do physical 8 things and think clearly.” Id. at 210 . He reported modest activities of daily living, including 9 feeding pets, watering the landscape, vacuuming, laundry, and occasional babysitting and dog10 walking. Id. at 206 . He claimed to need joint braces when he experienced pain. Id. at 211 . He 11 also claimed that he could not think clearly due to his conditions, did not finish what he started, 12 and had a one-hour attention span. Id. at 210 . 13 As part of the application process, Plaintiff was examined by Dr. Katherine Kenny of 14 MDSI Physician Services. AR at 440. Plaintiff complained to Dr. Kenny of heart problems; low 15 back pain; arthritis in his hips, knees, elbows, wrists, and shoulders; and tennis elbow. Id. Dr. 16 Kenny recorded that Plaintiff’s 17 main complaint is ongoing chronic pain issues, in particular low back pain which started at age 21 when he began working in the 18 construction field and has now persisted and worsened. He states that the pain travels into both legs with intermittent numbness and 19 tingling, equally in the bilateral lower extremities. As long as he takes muscle relaxants and ibuprofen, he is able to walk and lift 20 intermittently for a few hours at a time. At other times, the pain becomes so significant and severe that he is chair-bound and bed21 bound. [22] Id. at 441 . Plaintiff reported that he did exercises for his knee and right elbow. Id. He stated that 23 “icing his joints is minimally helpful and medications can provide some help, but the pain comes 24 back.” As a result of his impairments, “[h]is standing, walking and lifting tolerances have all 25 decreased[.]” Further, he could not sit during flareups of his hip arthritis. Id. 26 Dr. Kenny noted that while Plaintiff could “carry out tandem gait and toe-to-heel 27 maneuvers[, h]is squatting capacity is decreased by about 40% and he has pain with walking on 1 trigger points in the muscles of Plaintiff’s low back, including “some palpable spasm in the 2 lumbar paraspinal muscles.” Id. at 444 . She noted some effusion, tenderness, and pain with 3 motion in Plaintiff’s left knee. Id. She further noted that “[s]ignificant pain is present on the right 4 shoulder with passive internal rotation, external rotation, forward flexion, and abduction.” Also, 5 she observed that “extension of the bilateral elbows causes pain, but he is able to pronate and 6 supinate without difficulty in both elbows.” Finally, she noted that Plaintiff had “5/5” strength in 7 both arms and both legs, intact grip strength, normal muscle bulk and tone, and no signs of 8 atrophy. Id. 9 Dr. Kenny diagnosed Plaintiff with axial low back pain, right shoulder pain with known 10 arthritis and a possible rotator cuff injury, bilateral tennis elbow, and left knee osteoarthritis. AR 11 at 445. She opined that Plaintiff could alternate between sitting and standing with normal breaks 12 for six hours in an eight-hour workday; could sit for an entire workday; could frequently climb 13 stairs, balance, and stoop; could occasionally climb ladders, scaffolds, or ropes; and could 14 occasionally kneel or crawl. Id. However, she opined that Plaintiff could only lift, carry, push, or 15 pull 20 pounds occasionally or 10 pounds frequently. Id. 16 Plaintiff was also examined by Dr. Tiadora Kim during the application process. AR at 17 448. Plaintiff told Dr. Kim that “[a]s a kid I could never concentrate, it almost felt difficult to stay 18 focused. Parents going ‘come on’, me going ‘I can’t’ or whatever. I was always a C student. 19 When I got to things I liked, I could focus on it.” Id. at 449 . He also reported “significant anxiety 20 due to work stress” after his heart attack, which “led to poor performance” on the job. Id. at 448 . 21 Plaintiff “also report[ed] struggling with depression, and a thyroid issue leading to an ‘unbalanced 22 mental state.’ Symptoms include muscle tension, concentration difficulty, insomnia, and 23 irritability leading to personal aggression.” Id. 24 Dr. Kim conducted a mental status examination, which indicated that Plaintiff’s attention 25 was “[m]oderately impaired” and his concentration was “[m]arkedly impaired.” AR at 450. 26 Overall, the mental status exam results indicated mild cognitive impairment. Id. at 452 . Dr. Kim 27 diagnosed Plaintiff with unspecified anxiety and depression disorders as well as “Rule Out” 1 observations, and the psychiatric symptoms associated with Plaintiff’s diagnoses, Dr. Kim 2 concluded that Plaintiff was only mildly impaired in his ability to understand, remember, and 3 perform either simple or complex instructions. Id. 454 . However, she concluded that Plaintiff 4 would be moderately impaired in maintaining concentration, attention, persistence, and 5 consistency during a normal workday. Id. 6 Plaintiff’s application for benefits was initially reviewed by a state agency. The agency 7 determined that Plaintiff’s heart disease and joint abnormalities were severe impairments, but that 8 Plaintiff’s hypertension and psychological issues were not. AR at 68–69. The agency further 9 deemed Plaintiff’s limitation in concentrating, persisting, or maintaining pace to be only “[m]ild” 10 because “aside from being prescribed some psychotropics, he does not appear to be receiving any 11 ongoing psych or mental health treatment.” Id. at 69–70. While the agency found Dr. Kenny’s 12 opinion “persuasive and consistent” with the evidence, it disregarded her findings about Plaintiff’s 13 ability to lift and carry, finding that he could “frequently” lift 25 pounds and “occasionally” lift as 14 much as 50 pounds. Id. at 72–73. Ultimately, the agency found that Plaintiff was not disabled. [15] Id. at 78 . 16 Plaintiff appealed the state agency’s determination to the Social Security Administration. 17 At a hearing before the ALJ, Plaintiff stated that he was disabled due to “the stamina and the pain I 18 deal with every day.” AR at 44. He noted that some activities were painful and that he could not 19 do them without prescription pain medication. Id. He stated that he lost his breath when walking 20 and limped due to right hip pain. Id. at 53, 55 . He testified that he also had pain in his knees, 21 elbows, neck, and one shoulder. Id. at 53 . Despite this, he said he was reluctant to take more 22 medication than he did already. Id. He estimated that he could lift and carry 15 to 20 pounds 23 without pain. Id. at 54 . He also claimed that he required depression medication due to stress in 24 his relationship, but said that he did not regularly see a counselor. Id. at 49 . 25 A vocational expert (VE) testified at the same hearing. The ALJ asked the VE whether a 26 person of Plaintiff’s age, education, and work experience who was limited to medium work with 27 certain postural limitations could perform Plaintiff’s past work. AR at 57. The VE said that 1 “hand packer,” or an agricultural produce packer. Id. The VE said that those jobs could be 2 performed by a person who was “limited to understanding, remembering, and carrying out at most 3 simple instructions[.]” Id. at 58 . However, when the ALJ asked about a person who “would be 4 off task approximately 15% of the workday[,]” the VE responded that this limitation “would 5 eliminate all work.” Id. 6 The ALJ ultimately determined that Plaintiff was not disabled. AR at 28. The ALJ 7 performed the required five-step analysis, determining at Step 1 that Plaintiff had not worked since 8 the alleged onset date. Id. at 19 . At Step 2, the ALJ determined that Plaintiff’s heart disease and 9 right knee arthritis were “severe” impairments. Id. However, she determined that Plaintiff’s 10 obesity, thyroid condition, hypertension, vertigo, right shoulder osteoarthritis, and depression were 11 not severe impairments. Id. at 19–20. Further, she dismissed Plaintiff’s back pain, tennis elbow, 12 ADHD, left foot injury, and hip impairments as either non-severe or not medically determinable. [13] Id. at 20 . 14 At Step 3, the ALJ found that Plaintiff’s impairments, alone or in combination, did not 15 meet any listings. AR at 22. In making this determination, she concluded that Plaintiff had a 16 “moderate” limitation in concentrating, persisting, and maintaining pace when both his physical 17 and mental ailments were accounted for. Id. at 24 . However, because she determined that 18 Plaintiff was only mildly limited in his other broad areas of functioning, she found that Plaintiff 19 did not meet a listing. Id. at 23–24. 20 The ALJ determined that Plaintiff could perform “medium” work with certain limitations4 21 and could understand, remember, and carry out simple instructions. AR at 24–25. The ALJ 22 claimed to rely on “the totality of the medical data, along with the claimant’s full range of 23 activities of daily living[.]” Id. at 26 . The ALJ echoed the findings of the state agency in making 24 this determination, noting that the agency “saw more medical evidence than did” Dr. Kenny. Id. 25 By contrast, the ALJ dismissed Dr. Kenny’s findings as “overly restrictive considering the internal 26 examination . . . which found full (5/5) motor strength throughout including normal grip strength, [27] 1 normal bulk and tone with no atrophy, no lower extremity edema, normal gait, negative straight 2 leg-raising signs, grossly intact sensation, and equal reflexes, etc.” and Plaintiff’s “full range of 3 many physical activities[.]” The ALJ also dismissed Dr. Kim’s opinion, noting that Plaintiff’s 4 depression was non-severe because Plaintiff “had not seen a counselor or therapist for several 5 years” and “was found not to require treatment.” Finally, while the ALJ found that Plaintiff’s 6 “medically determinable impairments could reasonably be expected to cause the alleged 7 symptoms[,]” his “statements concerning the intensity, persistence and limiting effects of these 8 symptoms are not entirely consistent with the medical evidence and other evidence in the record 9 for the reasons explained in this decision.” Id. The ALJ did not elaborate further on Plaintiff’s 10 credibility. 11 The ALJ concluded that Plaintiff was unable to perform his past work. AR at 27. Further, 12 the ALJ concluded that the “cleaner II” position suggested by the VE would involve constant, 13 rather than frequent, reaching and was thus not available to Plaintiff. Id. at 28 . However, the ALJ 14 concluded that Plaintiff could perform the hand packer and produce packer jobs suggested by the 15 VE. Id. Accordingly, the ALJ found that Plaintiff was not disabled. Id. 16 Plaintiff appeals. 17 III. Standard 18 The Social Security Act limits judicial review of the Commissioner’s decisions to final 19 decisions made after a hearing. 42 U.S.C. § 405 (g). The Commissioner’s findings “as to any fact, 20 if supported by substantial evidence, shall be conclusive.” Id. A district court has limited scope 21 of review and can only set aside a denial of benefits if it is not supported by substantial evidence 22 or if it is based on legal error. Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453, 1457 (9th 23 Cir. 1995). The phrase “substantial evidence” appears throughout administrative law and directs 24 courts in their review of factual findings at the agency level. See Biestek v. Berryhill, 139 S. Ct. 25 1148, 1154 (2019). Substantial evidence is defined as “such relevant evidence as a reasonable 26 mind might accept as adequate to support a conclusion.” Id. at 1154 (quoting Consol. Edison Co. 27 v. NLRB, 305 U.S. 197, 229 (1938)); see also Sandgathe v. Chater, 108 F.3d 978 , 979 (9th Cir. 1 evidence,” a district court must review the administrative record as a whole, considering “both the 2 evidence that supports and the evidence that detracts from the Commissioner’s conclusion.” 3 Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). The Commissioner’s conclusion is upheld 4 where evidence is susceptible to more than one rational interpretation. Burch v. Barnhart, 400 5 F.3d 676, 679 (9th Cir. 2005). However, courts “review only the reasons provided by the ALJ in 6 the disability determination and may not affirm the ALJ on a ground upon which [s]he did not 7 rely.” Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014). 8 IV. Analysis 9 The court finds that the ALJ erred at Step 2 by failing to apply the correct standard in 10 determining that some of Plaintiff’s impairments were not determinable, at Step 4 by failing to 11 properly evaluate Plaintiff’s subjective complaints of pain, and at Step 5 by failing to incorporate a 12 cognitive limitation into the hypothetical given to the VE.5 13 a. Severe and Medically Determinable Impairments 14 Step 2 of the disability determination process is “a de minimis screening device used to 15 dispose of groundless claims.” Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (internal 16 alterations omitted). At Step 2, the ALJ “must determine whether the claimant has a medically 17 determinable impairment that is “severe” or a combination of impairments that is “severe”[.]” AR 18 at 18 (citing 20 C.F.R. 404.1520(c)). An “impairment” is a condition “result[ing] from 19 anatomical, physiological, or psychological abnormalities that can be shown by medically 20 acceptable clinical and laboratory diagnostic techniques.” SSR 96-4P, 1996 WL 374187 . If a 21 condition is not found to be a medically determinable impairment, it need not be considered later 22 in the ALJ’s analysis. See AR at 18–19 (“the undersigned must consider all of the claimant’s 23 impairments, including impairments that are not severe”) (citing 20 C.F.R. 404.1520(e), 404.1525; 24 SSR 96-8P, 1996 WL 374184 ) (emphasis added). 25 The ALJ appears to have erred in deeming some of Plaintiff’s conditions not to be [26] 5 Plaintiff also assigns Step 5 error based on the ALJ’s finding that a significant number of jobs [27] were available in the national economy. Because the ALJ’s finding was based on the VE’s 1 medically determinable impairments. For instance, the ALJ found that “there was not a medically 2 determinable impairment relating to left foot injury[.]” AR at 20. However, an X-ray ultimately 3 revealed that Plaintiff had posterior calcaneal enthesopathy in that foot. Id. at 417 . Additionally, 4 she dismissed Plaintiff’s back pain as a symptom rather than a diagnosis, noting that there were no 5 lumbar spine abnormalities noted in the record. Id. at 20 . However, Dr. Kenny’s exam noted 6 trigger points on Plaintiff’s low back, and one of Plaintiff’s lumbar muscles spasmed palpably on 7 examination. This indicates that Plaintiff may have displayed determinable signs of a back 8 problem as opposed to merely subjective symptoms. See SSR 96-4P, 1996 WL 374187 . 9 Error at Step 2 is harmless if “the ALJ went on to address the concerns raised by [the 10 plaintiff] at subsequent points within the five-step framework.” Brown v. Berryhill, 2018 WL 11 4700348, at *14 (N.D. Cal. Sept. 29, 2018) (citing Lewis v. Apfel, 498 F.3d 909, 911 (9th Cir. 12 2007)). Here, however, it does not appear that Plaintiff’s back and foot conditions were 13 incorporated into the ALJ’s analysis. Accordingly, the court cannot say that the ALJ’s failure to 14 properly consider the severity of these conditions was harmless. Remand is therefore required. 15 b. Lifting Capacity and Complaints of Pain 16 Social Security regulations provide that 17 for individuals of advanced age who can no longer perform vocationally relevant past work and . . . who have only skills that are 18 not readily transferable to a significant range of semi-skilled or skilled work that is within the individual’s functional capacity, . . . the 19 limitations in vocational adaptability represented by functional restriction to light work warrant a finding of disabled. [20] 21 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 202.00(c). The ALJ found that Plaintiff was “an individual 22 of advanced age[] on the alleged disability onset date” and unable to perform his past work. AR at 23 27. However, the ALJ declined to determine whether Plaintiff’s job skills were transferrable 24 because she found that Plaintiff could perform some “medium” work. Id. at 24–25, 27–28. 25 “Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying 26 of objects weighing up to 25 pounds.” 20 C.F.R. § 404.1567 (c). 27 Plaintiff argues that he is incapable of performing medium work. He points to Dr. Kenny’s 1 consistent with a limitation to light work. 20 C.F.R. § 404.1567 (b) (“Light work involves lifting 2 no more than 20 pounds at a time . . .”). Notably, Dr. Kenny appears to have arrived at this 3 conclusion on the basis of Plaintiff’s pain symptoms rather than Plaintiff’s strength. AR at 444 4 (“Significant pain is present on the right shoulder” with many types of movement and “extension 5 of the bilateral elbows causes pain,” but “[s]trength is 5/5 in the bilateral upper and lower 6 extremities, including grip. Normal bulk and tone, no atrophy noted.”); see also id. at 441 7 (“[I]cing his joints is minimally helpful and medications can provide some help, but the pain 8 comes back. His standing, walking, and lifting tolerances have all decreased, and he also has 9 bilateral shoulder pain, right greater than left.”). Plaintiff testified to similar limitations before the 10 ALJ, noting that he could only lift “about 15 to 20 pounds without pain.” Id. at 54 . He also 11 testified that he avoided lifting his one-year-old grandchild up due to pain. Id. at 43 . The average 12 child weighs between 19.5 and 27 pounds between the ages of 12 and 24 months. National Center 13 for Health Statistics, WHO Growth Charts–Download, CENTER FOR DISEASE CONTROL AND 14 PREVENTION, https://www.cdc.gov/growthcharts/who-charts.html (Sept. 2, 2024). 15 The ALJ rejected Dr. Kenny’s proposed limitations in part because Plaintiff’s strength was 16 normal. AR at 26. However, other district courts in this state have found that it is error to 17 disregard a pain-related lifting restriction based solely on strength findings. Wisler v. Comm. of 18 Soc. Sec’y, 2022 WL 718410 , at *5 (E.D. Cal. Mar. 10, 2022) (rejecting use of normal motor 19 strength findings to discount “asserted limitations[] which were generally based on pain 20 symptoms”); Solano v. Saul, 2021 WL 792735 , at *6 (E.D. Cal. Mar. 2, 2021) (reversing where 21 “the ALJ failed to explain how Plaintiff’s motor strength and grip strength are inconsistent with 22 the lifting and carrying restrictions, which [the doctor] indicated were not based upon the strength 23 testing, but instead ‘due to . . . pain.’”). 24 Indeed, it appears that the ALJ failed to directly address Plaintiff’s allegations of pain 25 whatsoever. This was error. Where a claimant’s impairment “could be reasonably expected to 26 produce the pain . . . alleged . . . . and there is no evidence of malingering, the ALJ can reject the 27 claimant’s testimony about the severity of her symptoms only by offering specific, clear and 1 (internal quotations omitted). While the ALJ found that “Plaintiff’s medically determinable 2 impairments could reasonably be expected to cause the alleged symptoms[,]” she offered no 3 specific, clear and convincing reasons for discounting Plaintiff’s pain symptom testimony, stating 4 only that Plaintiff’s “statements concerning the intensity, persistence and limiting effects of these 5 symptoms are not entirely consistent with the medical evidence and other evidence in the 6 record for the reasons explained in this decision.” AR at 26. This is insufficient as a matter of 7 law. “The ALJ must specify what testimony is not credible and identify the evidence that 8 undermines the claimant's complaints—general findings are insufficient.” Burch, 400 F.3d at 680 9 (internal quotations and alterations omitted). 10 Nor can the court say that this error was harmless. Plaintiff’s pain allegations, if believed, 11 could preclude him from medium work, thereby rendering him disabled in the absence of 12 transferrable skills. These allegations also corroborate Dr. Kenny’s assessed limitations. While 13 the ALJ used Plaintiff’s activities of daily living to discredit Dr. Kenny’s limitations, AR at 26, the 14 court cannot say that these limitations were discredited so conclusively that Plaintiff’s allegations 15 of pain when lifting must be disbelieved. For example, many of the activities cited have nothing 16 to do with lifting. Id. at 25 (mentioning kneeling, hiking, and kickboxing). Others may involve 17 lifting, but the court cannot say with confidence that they necessarily involve lifting more than 20 18 pounds at a time with any degree of success. Id. (Plaintiff lifts and carries “things” of unspecified 19 weight, babysits grandchildren, is “active” around his property, and once injured himself moving 20 boulders). 21 For these reasons, remand is required for the ALJ to properly consider and evaluate 22 Plaintiff’s subjective pain symptoms and, if necessary, reformulate Plaintiff’s residual functional 23 capacity accordingly. 24 c. Mental Impairments 25 In Brink v. Comm’r of Soc. Sec. Admin., 343 Fed. App’x 211 (9th Cir. 2009), the Ninth 26 Circuit held that where “the medical evidence establishes, and the ALJ accepted, that [a claimant] 27 does have difficulties with concentration, persistence, or pace[,]” the ALJ’s hypothetical questions 1 decision, several courts in this District have applied it in circumstances similar to these. See, e.g., 2 Beall v. Berryhill, 2017 WL 11689924 , at *6 (N.D. Cal. Sept. 22, 2017), Rosas v. Colvin, 2015 3 WL 9455475 , at *12 (N.D. Cal. Dec. 28, 2015). The thrust of these cases is that even “simple, 4 routine, repetitive” jobs like hand packing can entail “‘repetitive, assembly-line work’ that ‘might 5 well require extensive focus or speed’ not contemplated by the hypothetical question.” Rosas, [6] 2015 WL 9455475 , at *12 (quoting Brink, 343 F. App’x at 212). Indeed, even courts in the 7 Northern District which have opted not to apply Brink “have interpreted Brink as limited to cases 8 in which medical evidence demonstrates the plaintiff’s difficulties in concentration, persistence, or 9 pace, but does not demonstrate that these may be translated into limitations to simple or repetitive 10 work.” Bennett v. Colvin, 202 F.Supp.3d 1119, 1127 (N.D. Cal. 2016); see also Murray v. Colvin, [11] 2014 WL 1396408 , at *4 (N.D. Cal. Apr. 10, 2014) (Brink inapposite where “medical evidence 12 supports a finding that Plaintiff is capable of performing one-to-two step instructions despite any 13 limitations in concentration, persistence of pace”) (emphasis added). 14 Here, the ALJ found that “[w]ith regard to concentrating, persisting or maintaining pace, 15 the claimant has a moderate limitation.” AR at 24. No finding was made as to whether Plaintiff 16 could perform simple tasks regardless of his limitation, and the court did not note any medical 17 evidence in the record to support such a finding. However, the ALJ considered the determination 18 of a moderate impairment “only academic, as the Step 5 finding . . . predisposes a restriction to 19 unskilled work, and the record provides no objective medical support for a finding that the 20 claimant would have marked limitations in this category.” Id. The ALJ cites no authority for the 21 proposition that difficulties in concentrating, persisting, or maintaining pace need only be 22 incorporated into hypotheticals when “markedly” severe. Indeed, Brink itself involved a moderate 23 limitation in this domain. 343 Fed. App’x at 212. So did Rosas ( 2015 WL 9455475 , at *12) and 24 Beall ( 2017 WL 11689924 , at *6). Therefore, it was error for the ALJ not to incorporate 25 Plaintiff’s concentration, persistence, and pace limitations into the vocational expert’s hypothetical 26 question. On remand, the ALJ is directed to either incorporate these limitations into the 27 hypothetical or to make a finding that Plaintiff may perform simple, repetitive work regardless of 1 IT IS SO ORDERED. 2 Dated: March 25, 2025 3 McA— [4] ROBERT M. ILLMAN 5 United States Magistrate Judge [13] © [16] = 17 Z 18