FINDINGS & RECOMMENDATION

JOLIE A. RUSSO, Magistrate Judge.

Plaintiff Robbie Burum seeks judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying Disability Insurance Benefits, Disabled Widow's Benefits, and Supplemental Security Income on behalf of the original plaintiff, Debbie Gensman, now deceased.1 For the reasons set forth below, the Commissioner's decision should be REVERSED and REMANDED for further proceedings.

BACKGROUND

Plaintiff was born on September 22, 1955. Tr. 409. She had at least a high school education and was able to communicate in English. Id. Plaintiff filed applications for Disability Insurance Benefits, Disabled Widow's Benefits, and Supplemental Security Income in 2005, alleging disability beginning on July 26, 1995. Tr. 86-94, 398. Her applications were denied initially and upon review. Tr. 398. Plaintiff appeared before an Administrative Law Judge ("ALJ") at a hearing held October 6, 2008, and a supplemental hearing held September 2, 2009. Id. On September 24, 2009, the ALJ issued a decision finding plaintiff not disabled. Tr. 410. The Appeals Council denied review. Tr. 411. Plaintiff then sought judicial review from this Court, which reversed the decision of the ALJ and remanded for further proceedings. Tr. 414-437.

In November 2010, during the pendency of plaintiff's appeal, plaintiff filed a subsequent application for benefits. Tr. 458-72. Plaintiff was found to be disabled as of age 55. Tr. 634.

After plaintiff's original case was remanded, the ALJ held a third hearing on November 13, 2013. Tr. 631-57. On December 13, 2013, the ALJ issued a second unfavorable decision, finding that plaintiff was not disabled at any time after filing her applications. Tr. 374-94. Plaintiff sought review by the Appeals Council, which issued a corrected decision upholding the ALJ's finding that plaintiff was not disabled from 1995 through June 2010, but clarifying that the ALJ's findings did not disturb the later grant of benefits beginning in July 2010. Tr. 356-59. Plaintiff passed away in March 2014. Tr. 373. This appeal followed.

DISABILITY ANALYSIS

A claimant is disabled if he or she is unable to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . has lasted or can be expected to last for a continuous period of not less than 12 months[.]" 42 U.S.C. § 423(d)(1)(A). "Social Security Regulations set out a five-step sequential process for determining whether an applicant is disabled within the meaning of the Social Security Act." Keyser v. Comm'r, 648 F.3d 721, 724 (9th Cir. 2011).

Id. at 724-25; see also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001).

The claimant bears the burden of proof at steps one through four. Bustamante, 262 F.3d at 953. The Commissioner bears the burden of proof at step five. Id. at 953-54. At step five, the Commissioner must show that the claimant can perform other work that exists in significant numbers in the national economy, "taking into consideration the claimant's residual functional capacity, age, education, and work experience." Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999); see also 20 C.F.R. §§ 404.1566; 416.966 (describing "work which exists in the national economy"). If the Commissioner fails to meet this burden, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v). If, however, the Commissioner proves that the claimant is able to perform other work existing in significant numbers in the national economy, the claimant is not disabled. Bustamante, 262 F.3d at 953-54.

THE ALJ'S FINDINGS

On remand, the ALJ performed the sequential analysis. At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity since the alleged onset date of July 26, 1995. Tr. 381. The ALJ determined between July 26, 1995, and December 31, 2000, the date last insured, plaintiff had no severe impairments. Tr. 382. From April 28, 2005, through July 2010, the ALJ found that plaintiff had the following severe impairments: dysthymic disorder, carpal tunnel syndrome, right upper extremity third digit contracture, and degenerative disc disease. Id. The ALJ determined that plaintiff's severe impairments did not meet or equal a listed impairment. Tr. 383-84.

The ALJ found that plaintiff had the residual functional capacity ("RFC") to perform light work with the following restrictions: she was limited in frequent handling and fingering of the right upper extremity due to third digit contracture, "mild restrictions" in her abilities to understand, remember and carry out complex instructions, "mild restrictions" in her ability to make judgments on complex work-related decisions, "mild restrictions" in her ability to work appropriately with the public, supervisors, and coworkers, and "mild restrictions" in her ability to respond appropriately to usual work situations and to changes in routine work setting. Tr. 385.

The ALJ found that plaintiff was able to perform her past relevant work as a park manager. Tr. 393. In the alternative, the ALJ found that plaintiff was able to perform work as a sales clerk/photo finisher or interviewer of dealer accounts. Tr. 394. Accordingly, the ALJ determined that plaintiff was not disabled. Id.

STANDARD OF REVIEW

The district court must affirm the Commissioner's decision if the decision is based on proper legal standards and the legal findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g); Batson v. Comm'r, 359 F.3d 1190, 1193 (9th Cir. 2004). Substantial evidence "means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and internal quotation marks omitted). In reviewing the Commissioner's alleged errors, this court must weigh "both the evidence that supports and detracts from the [Commissioner's] conclusion." Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). Variable interpretations of the evidence are insignificant if the Commissioner's interpretation is rational. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).

When the evidence before the ALJ is subject to more than one rational interpretation, we must defer to the ALJ's conclusion. Batson, 359 F.3d at 1198 (citing Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995)). A reviewing court, however, cannot affirm the Commissioner's decision on a ground that the agency did not invoke in making its decision. Stout v. Comm'r, 454 F.3d 1050, 1054 (9th Cir. 2006). Finally, a court may not reverse an ALJ's decision on account of an error that is harmless. Id. at 1055-56. "[T]he burden of showing that an error is harmful normally falls upon the party attacking the agency's determination." Shinseki v. Sanders, 556 U.S. 396, 409 (2009).

DISCUSSION

Plaintiff alleges the ALJ erred by (1) failing to structure plaintiff's RFC in terms of functional limitations; and (2) failing to account for all of plaintiff's assessed limitations in formulating the RFC.

I. "Mild Restrictions" in the RFC

The ALJ is responsible for resolving conflicts in the medical testimony and translating the claimant's impairments into concrete functional limitations in the RFC. Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008). Here, the ALJ found that plaintiff "has mild restrictions in her abilities to understand, remember and carry out complex instructions; mild restrictions in her ability to make judgments on complex work-related decisions, . . . mild restrictions in her ability to work appropriately with the public, supervisors and coworkers; and mild restrictions in her ability to respond appropriately to usual work situations and to changes in the routine work setting." Tr. 385. The identified limitations are drawn from the opinion of Gary Sacks, Ph.D., an examining psychologist. Tr. 284-86. During the hearing in 2009, the ALJ referred the vocational expert ("VE") to the "non-exertional limitations" identified by Dr. Sacks, without further elaboration. Tr. 666. Plaintiff argues the ALJ's use of the term "mild" to describe plaintiff's mental impairments fails to convey her limitations in sufficiently concrete vocational or work-related terms, based on the instructions contained in the Agency's own Program Operations Manual Systems ("POMS").

The POMS directs medical consultants not to include "severity ratings or nonspecific qualifying terms (e.g. moderate, moderately severe) to describe limitations. Such terms do not describe function and do not usefully convey the extent of capacity limitation." POMS DI 24510.065 Section III of SSA-4747-F4-SUP, Part B.1.c. However, "POMS constitutes an agency interpretation that does not impose judicially enforceable duties" on the Court or the ALJ and are entitled to respect "only to the extent that those interpretations have the power to persuade." Lockwood v. Comm'r, 616 F.3d 1068, 1073 (9th Cir. 2010) (internal quotation marks and citations omitted). Although the Court agrees that the use of "non-specific qualifying terms" does not "usefully convey the extent of capacity limitation," it cannot rely on the POMS to find error in the ALJ's formulation of the RFC. In Valentine v. Comm'r, 574 F.3d 685 (9th Cir. 2009), the Ninth Circuit approved an RFC establishing "moderate restrictions" to the plaintiff's capacity to concentrate, interact with the public, and carry out detailed work instructions. Id. at 690-92. An ALJ does not, therefore, inherently err when he formulates a claimant's RFC by using non-specific qualifying terms.

II. Concentration, Persistence, and Pace

The ALJ must consider all medically determinable impairments, including those that are not severe, when formulating a claimant's RFC. 20 C.F.R. §§ 404.1545(a)(2), 416.945(a)(2). Likewise, "[h]ypothetical questions posed to the vocational expert must set out all the limitations and restrictions of the particular claimant." Magallanes v. Bowen, 881 F.2d 747, 756 (9th Cir. 1989) (internal quotation marks and citation omitted). The ALJ's limitations identified in Step Three of the analysis, however, "are not an RFC assessment but are used to rate the severity of mental impairment(s) at steps 2 and 3[.]" Israel v. Astrue, 494 F. App'x 794, 796 (9th Cir. 2012) (internal quotation marks and citation omitted). However, "[t]he ALJ must consider the step-3 limitations along with all of the relevant evidence in the case record when forming the RFC." Id.

Here, the ALJ determined plaintiff's dysthymic disorder constituted a severe impairment. Tr. 381. At Step Three, the ALJ also determined that plaintiff suffered "moderate difficulties" in terms of concentration, persistence, and pace. Tr. 384. Plaintiff asserts that these moderate difficulties are not adequately captured by the RFC's "mild restrictions," described in the previous section. Plaintiff asserts the ALJ erred by failing to include any limitations related to concentration, persistence, or pace in plaintiff's RFC.

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." Stubbs-Danielson, 539 F.3d at 1174. The Commissioner argues that the RFC is consistent with the medical testimony because it is drawn, almost word-for-word, from the function report of Dr. Sacks. As previously noted, the ALJ's VE hypotheticals also incorporated the function report of Dr. Sacks. Tr. 666-70. Dr. Sacks did not, however, express an opinion as to plaintiff's limitations in concentration, persistence, or pace. Tr. 280-86. Those limitations were not, therefore, presented to the VE in the hypothetical questions.

The Ninth Circuit confronted a similar situation in Lubin v. Comm'r, 507 F. App'x 709 (9th Cir. 2013). In Lubin, as here, the ALJ found the claimant suffered moderate difficulties in maintaining concentration, persistence, and pace, but failed to include those limitations in the RFC or the VE hypothetical. Id. at 712. The Ninth Circuit held the ALJ erred: "The ALJ must include all restrictions in the residual functional capacity determination and the hypothetical question posed to the vocational expert, including moderate limitations in concentration, persistence, or pace." Id. Similarly, in Hutton v. Astrue, 491 F. App'x 850 (9th Cir. 2012), the ALJ assessed "`mild' limitations in the area of concentration, persistence, or pace" in finding the claimant's PTSD non-severe but excluded those limitations from the RFC. Id. at 850. The Ninth Circuit held the ALJ erred by disregarding his own findings as to the claimant's "mild limitations" in formulating the claimant's RFC. Id. at 850-51. "[W]hile the ALJ was free to reject Hutton's testimony as not credible, there was no reason for the ALJ to disregard his own finding that Hutton's nonsevere PTSD caused some `mild' limitations in the areas of concentration, persistence, or pace." Id. at 851.

The Commissioner argues that plaintiff's limitations in concentration, persistence, or pace are encompassed by the "mild restrictions" identified in the RFC, despite the fact that the RFC does not describe plaintiff's limitations in work-related terms. Courts within this District have found that similarly vague RFCs are sufficient to justify remand for further proceedings. See e.g., Anderson v. Colvin, No. 6:13-cv-00102-HZ, 2014 WL 825167, at *3 (D. Or. Mar. 2, 2014). In Anderson, the plaintiff's RFC included "a mild impairment in her short term memory affected by pain," and that "her ability to maintain concentration is mildly impaired as affected by pain." Id. at *2. The court concluded "the ALJ erred by failing to describe Plaintiff's mild impairments (as affected by pain) in short-term memory and concentration in terms of the task or work that Plaintiff can perform." Id. at *3.

"`Typically, the ALJ will translate limitations in memory, concentration, and attention into an opinion about the kind of work a claimant can perform.'" Anderson, 2014 WL 825167, at *3 (quoting Hyson v. Astrue, No. 3:11-CV-01173-KI, 2012 WL 5984655, at *7 (D. Or. Nov. 27, 2012)); see also Barbura v. Colvin, No. 3:12-CV-00954-HZ, 2013 WL 3874058, at *3-4 (D. Or. July 25, 2013) (finding that the ALJ erred by failing to describe moderate limitations in concentration and short-term memory in terms of the task or work the plaintiff could perform). For example, moderate limitations in concentration, persistence, or pace may translate into a restriction to simple, routine, repetitive work. See, e.g., Hughes v. Colvin, 599 F. App'x 765, 766 (9th Cir. 2015); Sabin v. Astrue, 337 F. App'x 617, 621 (9th Cir. 2009); Duran v. Berryhill, Case No. CV 16-7416-JPR, 2017 WL 2588069, at *8 (C.D. Cal. June 14, 2017).2

As plaintiff notes, the "mild restrictions" in the RFC do not clearly state what plaintiff's functional limitations are in concrete, work-related terms and so the Court is unable to determine whether they adequately capture plaintiff's moderate difficulties in concentration, persistence, or pace. As in Lubin and Hutton, the RFC and the VE hypothetical question should have included all of the limitations assessed by the ALJ. Therefore, this case should be remanded to permit the ALJ to more clearly account for plaintiff's moderate difficulties in concentration, persistence, or pace in formulating plaintiff's RFC and the VE hypothetical.

RECOMMENDATION

Pursuant to sentence four of 42 U.S.C. § 405(g), the decision of the Commissioner should be REVERSED and REMANDED. On remand, the ALJ should reformulate plaintiff's RFC and the hypothetical questions to the VE to account for plaintiff's moderate difficulties with concentration, persistence, and pace.

This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation.