Gerimonte v. O'Malley, No. 2:2022cv00313 - Document 18 (E.D. Wash. 2024)

Court Description: ORDER GRANTING 11 PLAINTIFF'S BRIEF AND REMANDING FOR ADDITIONAL PROCEEDINGS; denying 16 Commissioner's Brief. File is closed. Signed by Senior Judge Rosanna Malouf Peterson. (REM, Case Administrator)

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Gerimonte v. O&#039;Malley Doc. 18 1 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 2 Mar 14, 2024 3 SEAN F. MCAVOY, CLERK 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF WASHINGTON 6 7 KASANDRA G., NO: 2:22-CV-0313-RMP Plaintiff, 8 ORDER GRANTING PLAINTIFF’S BRIEF AND REMANDING FOR ADDITIONAL PROCEEDINGS v. 9 10 COMMISSIONER OF SOCIAL SECURITY, 11 Defendant. 12 13 BEFORE THE COURT, without oral argument, are briefs from Plaintiff 14 Kasandra G.1, ECF No. 11, and Defendant the Commissioner of Social Security (the 15 “Commissioner”), ECF No. 16. Plaintiff seeks judicial review, pursuant to 42 16 U.S.C. §§ 405(g) and 1383(c)(3), of the Commissioner’s denial of her claim for 17 Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (the 18 “Act”). See ECF No. 11 at 3. 19 20 21 1 In the interest of protecting Plaintiff’s privacy, the Court will use Plaintiff’s first name and last initial, and, subsequently, Plaintiff’s first name only, throughout this decision. ORDER GRANTING PLAINTIFF’S BRIEF AND REMANDING FOR ADDITIONAL PROCEEDINGS ~ 1 Dockets.Justia.com 1 Having reviewed Plaintiff’s Opening Brief, ECF No. 11; the Commissioner’s 2 Brief, ECF No. 16; Plaintiff’s reply, ECF No. 17; the relevant law; and the 3 administrative record; the Court is fully informed. For the reasons set forth below, 4 the Court grants judgment for Plaintiff, reverses the Commissioner’s final decision, 5 and remands the matter for a finding of disability under sentence four of 42 U.S.C. § 6 405(g). 7 BACKGROUND 8 General Context 9 Plaintiff applied for DIB on approximately July 20, 2020, alleging an onset 10 date of July 5, 2020. See Administrative Record (“AR”)2 187. Plaintiff was 31 11 years old on the alleged disability onset date and asserted that she was unable to 12 work due to anxiety, panic attacks, social anxiety, claustrophobia, and depression. 13 AR 187. Plaintiff’s application was denied initially and upon reconsideration, and 14 Plaintiff requested a hearing. See AR 251–252. 15 On December 14, 2021, Administrative Law Judge (“ALJ”) Mark Kim held a 16 telephonic hearing from Spokane, Washington. AR 147–149. Plaintiff was present 17 and represented by attorney Dana Madsen. AR 147–149. ALJ Kim heard testimony 18 from Plaintiff and vocational expert (“VE”) Erin Hunt. AR 147–149. 19 20 21 2 The Administrative Record is filed at ECF No. 9. ORDER GRANTING PLAINTIFF’S BRIEF AND REMANDING FOR ADDITIONAL PROCEEDINGS ~ 2 1 ALJ’s Decision 2 Applying the five-step evaluation process, ALJ Kim found: 3 Step one: Plaintiff meets the insured status requirements of the Act through 4 December 31, 2025. AR 95. Plaintiff did not engage in substantial gainful activity 5 since her alleged onset date of July 5, 2020. AR 95 (citing 20 C.F.R. § 404.1571 et 6 seq. and 416.971 et seq). 7 Step two: Plaintiff has the following severe impairments that are medically 8 determinable and more than minimally limit her ability to perform basic work 9 activities: anxiety disorder with panic attacks, depressive disorder, and 10 claustrophobia, pursuant to 20 C.F.R. §§ 404.1520(c) and 416.920(c). AR 95. The 11 ALJ further noted that Plaintiff has the following diagnoses: unspecified somatic 12 symptom disorder, unspecified personality disorder, unspecified 13 neurodevelopmental disorder, and opioid use disorder in remission (with 14 methadone). AR 96. The ALJ found these diagnoses are best addressed by the 15 severe impairments listed above and stated that “all of the claimant’s mental 16 symptoms have been considered in making this decision.” AR 96. 17 Step three: The ALJ concluded that Plaintiff does not have an impairment or 18 combination of impairments that meets or medically equals the severity of one of the 19 listed impairments in C.F.R. Part 404, Subpart P, Appendix 1. AR 96 (citing 20 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, and 416.926). 21 The ALJ memorialized that he considered whether Plaintiff’s impairments satisfy ORDER GRANTING PLAINTIFF’S BRIEF AND REMANDING FOR ADDITIONAL PROCEEDINGS ~ 3 1 paragraph B criteria and found that the evidence does not satisfy the criteria. 2 Specifically, the ALJ concluded that Plaintiff has a mild limitation in remembering 3 or applying information; a moderate limitation in interacting with others; a moderate 4 limitation in concentrating, persisting, or maintaining pace; and a moderate 5 limitation in adapting or managing oneself. AR 96–97. The ALJ further noted that 6 he considered whether “paragraph C” criteria are satisfied and concluded that “the 7 evidence fails to establish the presence of the ‘paragraph C’ criteria.” AR 97. 8 Residual Functional Capacity (“RFC”): The ALJ found that Plaintiff has 9 the RFC to perform a full range of work at all exertional levels, with the following 10 nonexertional limitations: “[Plaintiff] can perform simple, routine tasks with a 11 Specific Vocational Preparation of 2 or less; she can perform work involving only 12 occasional and simple changes; and work involving no interaction with the public.” 13 AR 98. In determining Plaintiff’s RFC, the ALJ found that “the claimant’s 14 medically determinable impairments could reasonably be expected to cause some of 15 the alleged symptoms; however, the claimant’s statements concerning the intensity, 16 persistence and limiting effects of these symptoms are not entirely consistent with 17 the medical evidence and other evidence in the record for the reasons explained in 18 this decision.” AR 99. The ALJ concluded as follows: 19 20 21 [T]he overall record for the adjudicatory period reflects routine and conservative treatment with medication management and counseling at times, there is no indication of any inpatient treatment or psychiatric hospitalizations during the adjudicative period, and the claimant’s consultative psychological evaluations, mental status ORDER GRANTING PLAINTIFF’S BRIEF AND REMANDING FOR ADDITIONAL PROCEEDINGS ~ 4 1 exams, and treating records/progress notes are not consistent with the degree of disabling severity alleged. 2 AR 99. 3 4 Step four: The ALJ found that Plaintiff is unable to perform any past relevant work. AR 104–105 (citing 20 C.F.R. § 404.1565 and 416.965). 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Step five: The ALJ found that Plaintiff has a limited education; on the alleged disability onset date, Plaintiff’s age category was a younger individual; and transferability of job skills is not material to the determination of disability because Plaintiff is “not disabled” under the Medical-Vocational Rules, whether or not Plaintiff has transferable job skills. AR 105 (citing SSR 82-41 and 20 C.F.R. Part 404, Subpart P, Appendix 2). The ALJ found that there are jobs that exist in significant numbers in the national economy that Plaintiff can perform. AR 105 (citing 20 C.F.R. § 404.1569, 404.1569(a), 416.969, and 416.969(a)). Specifically, the ALJ recounted that the VE identified the following representative occupations that Plaintiff could perform with the RFC: kitchen helper (medium, unskilled work, with approximately 107,000 jobs nationally); hand packager (medium, unskilled work, with approximately 77,000 jobs nationally); and marker (light, unskilled work, with approximately 131,000 jobs nationally). AR 106. The ALJ concluded that Plaintiff has not been under a disability from July 5, 2020, through the date of the ALJ’s decision. AR 106 (citing 20 C.F.R. § 404.1520(g), 416.920(g)). / / / 21 ORDER GRANTING PLAINTIFF’S BRIEF AND REMANDING FOR ADDITIONAL PROCEEDINGS ~ 5 1 2 Through counsel, Plaintiff sought in this Court review of the unfavorable decision. ECF No. 1. 3 LEGAL STANDARD 4 Standard of Review 5 Congress has provided a limited scope of judicial review of the 6 Commissioner’s decision. 42 U.S.C. § 405(g). A court may set aside the 7 Commissioner’s denial of benefits only if the ALJ’s determination was based on 8 legal error or not supported by substantial evidence. See Jones v. Heckler, 760 F.2d 9 993, 995 (9th Cir. 1985) (citing 42 U.S.C. § 405(g)). “The [Commissioner’s] 10 determination that a claimant is not disabled will be upheld if the findings of fact are 11 supported by substantial evidence.” Delgado v. Heckler, 722 F.2d 570, 572 (9th Cir. 12 1983) (citing 42 U.S.C. § 405(g)). Substantial evidence is more than a mere 13 scintilla, but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112, 14 1119 n.10 (9th Cir. 1975); McCallister v. Sullivan, 888 F.2d 599, 601–02 (9th Cir. 15 1989). Substantial evidence “means such evidence as a reasonable mind might 16 accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 17 401 (1971) (citations omitted). “[S]uch inferences and conclusions as the 18 [Commissioner] may reasonably draw from the evidence” also will be upheld. Mark 19 v. Celebrezze, 348 F.2d 289, 293 (9th Cir. 1965). On review, the court considers the 20 record, not just the evidence supporting the decisions of the Commissioner. 21 Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989). ORDER GRANTING PLAINTIFF’S BRIEF AND REMANDING FOR ADDITIONAL PROCEEDINGS ~ 6 1 A decision supported by substantial evidence still will be set aside if the 2 proper legal standards were not applied in weighing the evidence and making a 3 decision. Brawner v. Sec’y of Health and Human Servs., 839 F.2d 432, 433 (9th Cir. 4 1988). Thus, if there is substantial evidence to support the administrative findings, 5 or if there is conflicting evidence that will support a finding of either disability or 6 nondisability, the finding of the Commissioner is conclusive. Sprague v. Bowen, 7 812 F.2d 1226, 1229–30 (9th Cir. 1987). 8 Definition of Disability 9 The Social Security Act defines “disability” as the “inability to engage in any 10 substantial gainful activity by reason of any medically determinable physical or 11 mental impairment which can be expected to result in death, or which has lasted or 12 can be expected to last for a continuous period of not less than 12 months.” 42 13 U.S.C. § 423(d)(1)(A). The Act also provides that a claimant shall be determined to 14 be under a disability only if the impairments are of such severity that the claimant is 15 not only unable to do their previous work, but cannot, considering the claimant’s 16 age, education, and work experiences, engage in any other substantial gainful work 17 which exists in the national economy. 42 U.S.C. § 423(d)(2)(A). Thus, the 18 definition of disability consists of both medical and vocational components. Edlund 19 v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). 20 / / / 21 / / / ORDER GRANTING PLAINTIFF’S BRIEF AND REMANDING FOR ADDITIONAL PROCEEDINGS ~ 7 1 Sequential Evaluation Process 2 The Commissioner has established a five-step sequential evaluation process 3 for determining whether a claimant is disabled. 20 C.F.R. § 404.1520. Step one 4 determines if they are engaged in substantial gainful activities. If the claimant is 5 engaged in substantial gainful activities, benefits are denied. 20 C.F.R. § 6 404.1520(a)(4)(i). 7 If the claimant is not engaged in substantial gainful activities, the decision 8 maker proceeds to step two and determines whether the claimant has a medically 9 severe impairment or combination of impairments. 20 C.F.R. § 404.1520(a)(4)(ii). 10 If the claimant does not have a severe impairment or combination of impairments, 11 the disability claim is denied. 12 If the impairment is severe, the evaluation proceeds to the third step, which 13 compares the claimant’s impairment with listed impairments acknowledged by the 14 Commissioner to be so severe as to preclude any gainful activity. 20 C.F.R. § 15 404.1520(a)(4)(iii); see also 20 C.F.R. § 404, Subpt. P, App. 1. If the impairment 16 meets or equals one of the listed impairments, the claimant is conclusively presumed 17 to be disabled. 18 If the impairment is not one conclusively presumed to be disabling, the 19 evaluation proceeds to the fourth step, which determines whether the impairment 20 prevents the claimant from performing work that they have performed in the past. If 21 the claimant can perform their previous work, the claimant is not disabled. 20 ORDER GRANTING PLAINTIFF’S BRIEF AND REMANDING FOR ADDITIONAL PROCEEDINGS ~ 8 1 C.F.R. § 404.1520(a)(4)(iv). At this step, the claimant’s RFC assessment is 2 considered. 3 If the claimant cannot perform this work, the fifth and final step in the process 4 determines whether the claimant is able to perform other work in the national 5 economy considering their RFC and age, education, and past work experience. 20 6 C.F.R. § 404.1520(a)(4)(v); Bowen v. Yuckert, 482 U.S. 137, 142 (1987). 7 The initial burden of proof rests upon the claimant to establish a prima facie 8 case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th 9 Cir. 1971); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The initial burden 10 is met once the claimant establishes that a physical or mental impairment prevents 11 them from engaging in their previous occupation. Meanel, 172 F.3d at 1113. The 12 burden then shifts, at step five, to the Commissioner to show that (1) the claimant 13 can perform other substantial gainful activity, and (2) a “significant number of jobs 14 exist in the national economy” which the claimant can perform. Kail v. Heckler, 722 15 F.2d 1496, 1498 (9th Cir. 1984). 16 ISSUES ON APPEAL 17 Plaintiff raises the following issues regarding the ALJ’s decision: 18 1. Did the ALJ erroneously assess the medical source opinions? 2. Did the ALJ erroneously discount Plaintiff’s subjective complaints? 19 20 21 / / / / / / ORDER GRANTING PLAINTIFF’S BRIEF AND REMANDING FOR ADDITIONAL PROCEEDINGS ~ 9 1 Medical Source Opinions 2 Plaintiff argues that the ALJ failed to properly evaluate and reconcile 3 inconsistencies among medical opinions, and he failed to meaningfully explain why 4 he discounted portions of the medical opinions. ECF No. 11 at 9–10. The 5 Commissioner responds that the ALJ properly “articulated how the factors of 6 supportability and consistency were considered in determining the ‘persuasiveness’ 7 of each assessment.” ECF No. 16 at 17 (citing 20 C.F.R. § 404.1520c). 8 9 The regulations that took effect on March 27, 2017, provide a new framework for the ALJ’s consideration of medical opinion evidence and require the ALJ to 10 articulate how persuasive he finds all medical opinions in the record, without any 11 hierarchy of weight afforded to different medical sources. See Rules Regarding the 12 Evaluation of Medical Evidence, 82 Fed. Reg. 5844-01, 2017 WL 168819 (Jan. 18, 13 2017). Instead, for each source of a medical opinion, the ALJ must consider several 14 factors, including supportability, consistency, the source’s relationship with the 15 claimant, any specialization of the source, and other factors such as the source’s 16 familiarity with other evidence in the claim or an understanding of Social Security’s 17 disability program. 20 C.F.R. § 404.1520c(c)(1)-(5). 18 Supportability and consistency are the “most important” factors, and the ALJ 19 must articulate how he considered those factors in determining the persuasiveness of 20 each medical opinion or prior administrative medical finding. 20 C.F.R. § 21 404.1520c(b)(2). With respect to these two factors, the regulations provide that an ORDER GRANTING PLAINTIFF’S BRIEF AND REMANDING FOR ADDITIONAL PROCEEDINGS ~ 10 1 opinion is more persuasive in relation to how “relevant the objective medical 2 evidence and supporting explanations presented” and how “consistent” with 3 evidence from other sources the medical opinion is. 20 C.F.R. § 404.1520c(c)(1). 4 The ALJ may explain how he considered the other factors, but is not required to do 5 so, except in cases where two or more opinions are equally well-supported and 6 consistent with the record. 20 C.F.R. § 404.1520c(b)(2), (3). Courts also must 7 continue to consider whether the ALJ’s finding is supported by substantial evidence. 8 See 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security as to 9 any fact, if supported by substantial evidence, shall be conclusive . . . .”). 10 Prior to revision of the regulations, the Ninth Circuit required an ALJ to 11 provide clear and convincing reasons to reject an uncontradicted treating or 12 examining physician’s opinion and provide specific and legitimate reasons where the 13 record contains a contradictory opinion. See Revels v. Berryhill, 874 F.3d 648, 654 14 (9th Cir. 2017). However, the Ninth Circuit has held that the Social Security 15 regulations revised in March 2017 are “clearly irreconcilable with [past Ninth 16 Circuit] caselaw according special deference to the opinions of treating and 17 examining physicians on account of their relationship with the claimant.” Woods v. 18 Kijakazi, No. 21-35458, 2022 U.S. App. LEXIS 10977, at *14 (9th Cir. Apr. 22, 19 2022). The Ninth Circuit continued that the “requirement that ALJs provide 20 ‘specific and legitimate reasons’ for rejecting a treating or examining doctor’s 21 opinion, which stems from the special weight given to such opinions, is likewise ORDER GRANTING PLAINTIFF’S BRIEF AND REMANDING FOR ADDITIONAL PROCEEDINGS ~ 11 1 incompatible with the revised regulations.” Id. at *15 (internal citation omitted). 2 Recently, the Ninth Circuit further has held that the updated regulations comply with 3 both the Social Security Act and the Administrative Procedure Act, despite not 4 requiring the ALJ to articulate how he or she accounts for the “examining 5 relationship” or “specialization factors. Cross v. O’Malley, No. 23-35096, 2024 6 U.S. App. LEXIS 302 at *7–12 (9th Cir. Jan. 5, 2024). 7 Accordingly, as Plaintiff’s claim was filed after the new regulations took 8 effect, the Court refers to the standard and considerations set forth by the revised 9 rules for evaluation medical evidence. See AR 187. 10 Dr. Everhart 11 Plaintiff argues that Dr. Everhart opined that Plaintiff “may have difficulty 12 maintaining regular attendance on a consistent basis without interruption from 13 psychological symptoms, such as anxiety and panic attacks.” ECF No. 11 at 10 14 (citing AR 685). Plaintiff argues that the ALJ found Dr. Everhart’s opinion to be 15 “substantially persuasive,” but the ALJ failed to explain why he did not accordingly 16 include a limitation regarding maintaining regular attendance. ECF No. 11 at 10–11. 17 Plaintiff continued that the ALJ improperly rejected the portion of Dr. Everhart’s 18 opinion regarding Plaintiff’s limited ability to interact with coworkers and 19 supervisors, because the ALJ’s rejection was not supported by substantial evidence. 20 ECF No. 11 at 12. 21 ORDER GRANTING PLAINTIFF’S BRIEF AND REMANDING FOR ADDITIONAL PROCEEDINGS ~ 12 1 The Commissioner contends that there was no opinion or agency finding that 2 Plaintiff would miss multiple days of work per month, and Plaintiff’s reference to 3 missing therapy appointments was not sufficient to support a limitation regarding 4 missing work. ECF No. 16 at 22. The Commissioner notes that the ALJ found Dr. 5 Everhart’s opinion “substantially,” but not fully, persuasive. ECF No. 16 at 19. 6 Additionally, the Commissioner argues that the ALJ properly found that the record 7 did not support finding that Plaintiff was likely to have difficulty interacting with 8 supervisors and coworkers. ECF No. 16 at 19. 9 The ALJ found that Dr. Everhart’s opinion that Plaintiff “may have difficulty” 10 maintaining regular attendance was “substantially persuasive.” AR 102, 685. Yet 11 the ALJ did not include a limitation regarding attendance, nor did he articulate and 12 support a finding that such a limitation is unnecessary. AR 102. Even under the 13 revised framework for evaluating medical source opinions, see 42 U.S.C. § 405(g), 14 the ALJ’s assessment of the relevant medical opinions must be supported by 15 substantial evidence, and the ALJ’s determination that no limitation regarding 16 attendance was necessary does not meet that requirement. 17 The ALJ found Dr. Everhart’s opinion that Plaintiff is likely to have difficulty 18 interacting appropriately with supervisors and coworkers “unsupported by objective 19 evidence/findings from the record and relies heavily on claimant’s self-report.” AR 20 103. The ALJ’s finding that Plaintiff’s limitation regarding coworkers and 21 supervisors is “unsupported” does not meet the substantial evidence requirement. ORDER GRANTING PLAINTIFF’S BRIEF AND REMANDING FOR ADDITIONAL PROCEEDINGS ~ 13 1 The ALJ does not cite to records demonstrating that Plaintiff is able to interact with 2 coworkers and supervisors without limitation. Moreover, the ALJ does not 3 acknowledge that Plaintiff testified that she is unable to interact with close friends or 4 attend birthday parties, and that she interacts only with her mother and father. AR 5 158. Based on the ALJ’s conclusory reasoning, which appears inconsistent with 6 Plaintiff’s self-reports and Dr. Everhart’s medical opinion, the Court finds that the 7 ALJ did not fulfill his obligation to consider the supportability and consistency of 8 the medical opinion and, therefore, erred. 9 10 Dr. Comrie & Dr. Kraft Plaintiff argues that Dr. Comrie and Dr. Kraft opined that Plaintiff can interact 11 with the public on an occasional basis, but she can interact with supervisors and 12 coworkers on a “more frequent basis.” ECF No. 11 at 14 (citing AR 183). Plaintiff 13 interprets these opinions to recommend “some degree of limitation” in interacting 14 with supervisors and coworkers that allows greater contact than with the general 15 public, “but not unlimited interaction and contact.” ECF No. 11 at 14. While the 16 ALJ included a limitation that Plaintiff should have no interaction with the general 17 public, Plaintiff contends that the ALJ erred by including neither a restriction 18 regarding Plaintiff’s ability to interact with coworkers and supervisors, nor an 19 explanation for his rejection of Plaintiff’s limitations in interacting with coworkers 20 and supervisors. ECF No. 11 at 15. 21 ORDER GRANTING PLAINTIFF’S BRIEF AND REMANDING FOR ADDITIONAL PROCEEDINGS ~ 14 1 The Commissioner notes that the ALJ found Dr. Comrie and Dr. Kraft’s 2 opinions were “substantially persuasive” but not fully persuasive, and that the ALJ 3 stated that Plaintiff’s RFC “better account[s] for [her] anxiety/panic-related 4 symptoms, and are more consistent with the overall record.” ECF No. 16 at 23–24 5 (citing AR 104). The Commissioner argues that the ALJ “stated outright that the 6 longitudinal evidence did not support any limitations on Plaintiff’s ability to interact 7 with coworkers and supervisors.” ECF No. 16 at 24. The ALJ pointed out evidence 8 to support the RFC, such as comments that Plaintiff “did well working four and a 9 half years in caregiving” and that Plaintiff identified being “good with people” 10 among her strengths. ECF No. 16 at 25 (citing AR 100 and 102). The 11 Commissioner argues that the ALJ “rationally” concluded that Plaintiff did not have 12 restrictions in her ability to interact with supervisors and coworkers based on the 13 evidence in the record. ECF No. 16 at 25. 14 The ALJ found the medical opinions by Dr. Comrie and Dr. Kraft that 15 Plaintiff has the capacity to interact with supervisors and coworkers on a more 16 frequent basis “substantially persuasive.” AR 103. The ALJ concluded that the 17 assessments “reinforce that claimant’s mental impairments do not preclude her from 18 performing a limited range of unskilled work with social restrictions.” AR 104. The 19 ALJ did not explain whether he interpreted the opinion that Plaintiff can interact 20 with supervisors and coworkers “on a more frequent basis” to suggest no limitation 21 is required, or whether he interpreted this to mean that a limitation is required, but ORDER GRANTING PLAINTIFF’S BRIEF AND REMANDING FOR ADDITIONAL PROCEEDINGS ~ 15 1 that he disagreed with that conclusion. However, the ALJ did note that Dr. Comrie 2 and Dr. Kraft concluded that Plaintiff “remains capable of performing simple work 3 tasks with limited contact with others in the workplace.” AR 103 (citing AR 191, 4 227). The ALJ explained that, “based on the entire longitudinal record and evidence 5 presented at the hearing,” he finds Plaintiff has greater limitations that support 6 additional restrictions regarding Plaintiff’s interaction with the public, and that these 7 restrictions “better account for the claimant’s anxiety/panic-related symptoms, and 8 are more consistent with the overall record.” AR 103–04. However, the ALJ does 9 not explain his reasoning for finding that no limitation was needed regarding 10 coworkers and supervisors. The ALJ cited to Plaintiff’s abilities prior to her alleged 11 disability onset date, which are irrelevant for her abilities after her alleged onset 12 date, and he noted that she listed a strength as “I am good with people, I have a big 13 heart.” AR 102. The Court finds this citation insufficient to provide the substantial 14 evidence necessary to discount the medical opinion. 15 Based on the ALJ’s conclusory reasoning, which appears inconsistent with 16 Plaintiff’s longitudinal record and the content of the opinions at issue, the Court 17 finds that the ALJ did not fulfill his obligation to consider the supportability and 18 consistency of the medical opinions and, therefore, erred. 19 Plaintiff’s Subjective Complaints 20 Plaintiff argues that the ALJ erred by failing to provide substantial evidence 21 for his conclusion that her subjective reports were not reliable. ECF No. 11 at 17. ORDER GRANTING PLAINTIFF’S BRIEF AND REMANDING FOR ADDITIONAL PROCEEDINGS ~ 16 1 Plaintiff argues that her presentation during examinations as “alert, oriented, with 2 good grooming, cooperative, maintained eye contact, had normal thought process, 3 and intellectual function” are unrelated to her impairments and “are essentially non 4 sequiturs.” ECF No. 11 at 18. Plaintiff argues that the ALJ’s finding that her 5 presentation does not support disability is inconsistent with her presentation during 6 the exam, because in her exam she presented that “she was unable to work due to 7 anxiety, panic attacks, depression, and difficulty being around people.” ECF No. 11 8 at 19. 9 Plaintiff further argues that the ALJ incorrectly concluded that a mental 10 impairment is not credible unless it requires hospitalization, and that the ALJ failed 11 to articulate evidence suggesting that an individual suffering from the impairments 12 asserted by Plaintiff would receive different treatment than she received. ECF No. 13 11 at 19. 14 Plaintiff continues by asserting that the activities cited by the ALJ, such as 15 being able to do her own cooking, cleaning, laundry, and personal hygiene are not 16 probative of her work activity. ECF No. 11 at 19. Plaintiff contends that the ALJ 17 mischaracterized Plaintiff’s ability to engage in daily activities by disregarding her 18 statements that she does not like to leave her house, needs to take naps, and has to 19 take breaks when she engages in the activities. ECF No. 11 at 19–20. Plaintiff 20 argues that the ALJ erred in finding that her presentation in the examination by Dr. 21 Islam-Zwart supports that Plaintiff is able to work, when Dr. Islam-Zwart opined ORDER GRANTING PLAINTIFF’S BRIEF AND REMANDING FOR ADDITIONAL PROCEEDINGS ~ 17 1 that Plaintiff’s presentation was consistent with an inability to work. ECF No. 11 at 2 20. Plaintiff also notes that the ALJ discussed that Plaintiff was doing well and able 3 to work prior to her alleged onset date, which Plaintiff argues is “not probative of 4 her condition during the alleged period of disability.” ECF No. 11 at 20. Finally, 5 Plaintiff posits that the ALJ “seems to hold the episodic nature of Plaintiff’s panic 6 attacks against her” and that inconsistent reports of positive mental health do not 7 independently support an ALJ’s decision to reject a claimant’s testimony regarding 8 their mental health symptoms. ECF No. 11 at 20–21. Rather, Plaintiff argues that 9 her condition is exacerbated by the demands of work activity, and because she is 10 currently not working, she does not have as many panic attacks and is able to take 11 her anxiety medication only as needed. ECF No. 17 at 3. 12 The Commissioner responds that the ALJ “reasonably found Plaintiff’s 13 testimony was not entirely consistent with the overall evidence,” and that “the ALJ 14 provided valid reasons for so finding.” ECF No. 16 at 9. The Commissioner argues 15 that “where Plaintiff has provided objective evidence of a condition that might 16 reasonably produce the symptoms alleged, the ALJ was required to evaluate the 17 intensity and persistence of her symptoms.” ECF No. 16 at 10. The Commissioner 18 argues that the objective evidence of Plaintiff’s presentation was “inconsistent with 19 Plaintiff’s allegations of work-preclusive limitations.” ECF No. 16 at 11 (citing 20 Molina v Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012)). The Commissioner argues 21 that, while Plaintiff suggests that these observations are unrelated to her ORDER GRANTING PLAINTIFF’S BRIEF AND REMANDING FOR ADDITIONAL PROCEEDINGS ~ 18 1 impairments, the ALJ appropriately focused not just on Plaintiff’s diagnoses, but on 2 “how her conditions affected her ability to perform basic work activities.” ECF No. 3 16 at 12. 4 The Commissioner continues that the ALJ’s consideration of other evidence, 5 such as Plaintiff’s treatment history, was sufficient to reasonably find that Plaintiff’s 6 improvement with “routine and conservative” treatment was inconsistent with 7 Plaintiff’s subjective allegations. ECF No. 16 at 13. The Commissioner argues that 8 “evidence of medical treatment successfully relieving symptoms can undermine a 9 claimant’s allegations of disability, even though symptoms may ‘wax and wane.’” 10 ECF No. 16 at 14 ( citing Wellington v. Berryhill, 878 F.3d 867, 876 (9th Cir. 2017)). 11 The Commissioner argues that Plaintiff’s allegations of panic attacks multiple times 12 a day, every day, is inconsistent with Plaintiff’s report of taking medications 13 “sporadically” or “not at all.” ECF No. 16 at 14 (citing AR 102, 595, 688). 14 Finally, the Commissioner argues that the ALJ “may consider a claimant’s 15 activities insofar as those activities are not consistent with her allegations.” ECF 16 No. 16 at 16 (citing Molina, 674 F.3d at 1113; Valentine v. Astrue, 574 F.3d 685, 17 693 (9th Cir. 2009)). Rather than the ALJ considering Plaintiff’s ability to engage in 18 activities to determine additional vocational ability, the Commissioner argues that 19 the ALJ properly considered the activities as evidence of Plaintiff’s ability to engage 20 in more functioning than she alleged. ECF No. 16 at 16. 21 ORDER GRANTING PLAINTIFF’S BRIEF AND REMANDING FOR ADDITIONAL PROCEEDINGS ~ 19 1 In deciding whether to accept a claimant’s subjective pain or symptom 2 testimony, an ALJ must perform a two-step analysis. Smolen v. Chater, 80 F.3d 3 1273, 1281 (9th Cir. 1996). First, the ALJ must evaluate “whether the claimant has 4 presented objective medical evidence of an underlying impairment ‘which could 5 reasonably be expected to produce the pain or other symptoms alleged.’” 6 Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (quoting Bunnell v. 7 Sullivan, 947 F.2d 341, 344 (9th Cir. 1991)). The claimant “need not show that her 8 impairment could reasonably be expected to cause the severity of the symptom she 9 has alleged; she need only show that it could reasonably have caused some degree of 10 the symptom.” Smolen, 80 F.3d at 1282. Second, if the first test is met and there is 11 no evidence of malingering, “the ALJ can reject the claimant’s testimony about the 12 severity of [his] symptoms only by offering specific, clear and convincing reasons 13 for doing so.” Id. at 1281. Thus, “the ALJ may not reject subjective symptom 14 testimony . . . simply because there is no showing that the impairment can 15 reasonably produce the degree of symptom alleged.” Id. at 1282. 16 17 18 19 20 21 Plaintiff alleged disability due to the following mental health conditions, as summarized in the ALJ’s decision: The claimant asserted disability from working due to mental health conditions including anxiety, panic attacks, social anxiety, claustrophobia, depression, attention deficit disorder and obsessivecompulsive disorder. (Ex. 3E; 6E; 10E; 13E; Hearing Testimony). She reported that her anxiety/social anxiety limits her activities of daily living, noting she has difficulty leaving the house and has her family shop for her. She also described difficulties working and ORDER GRANTING PLAINTIFF’S BRIEF AND REMANDING FOR ADDITIONAL PROCEEDINGS ~ 20 1 2 3 4 5 6 7 completing tasks due to anxiety/panic attacks, as well as problems driving because of medication side effects. She claimed her social anxiety when around people causes her to “instantly go into panic mode” and “affects everything” related to her ability to work. (Ex. 6E). She noted that feeling pressure “in doing things outside of my comfort or from my home . . . instantly gives me anxiety/panic attacks,” and claimed when she was working, she would “instantly go into panic because I couldn’t leave.” (Ex. 13E). She described other symptom triggers such as standing in line at the store or pharmacy, or “anywhere I feel trapped,” as well as claiming she has panic attacks “for no reason at all.” (Id). She noted difficulty completing tasks because her “mind skips all over the place,” and claimed when she has panic attacks, she is not stable on her feet, feels off balance, dizzy, light headed, hot and has heart races. (Ex. 6E/6; 13E/6). 8 AR. 98–99. 9 The ALJ found “the claimant’s medically determinable impairments could 10 reasonably be expected to cause some of the alleged symptoms; however, the 11 claimant’s statements concerning the intensity, persistence and limiting effects of 12 these symptoms are not entirely consistent with the medical evidence and other 13 evidence in the record.” AR 99. The ALJ found that Plaintiff’s mental health 14 treatment included “anti-anxiety and depressive medications and periodic 15 therapy/counseling.” AR 99. The ALJ concluded that the record “reflects routine 16 and conservative treatment with medication management and counseling at times,” 17 “no indication of any inpatient treatment or psychiatric hospitalizations during the 18 adjudicative period, and the claimant’s consultative psychological evaluations, 19 mental status exams, and treating records/progress notes are not consistent with the 20 degree of disabling severity alleged.” AR 99. Further, the ALJ noted that Plaintiff 21 ORDER GRANTING PLAINTIFF’S BRIEF AND REMANDING FOR ADDITIONAL PROCEEDINGS ~ 21 1 claimed it took her years to get into mental health treatment after canceling six or 2 seven appointments. AR 100–101 (citing AR 821). 3 Some courts have disapproved of the view that taking anti-anxiety and anti- 4 depressive medications along with periodic therapy is considered conservative 5 treatment. See, e.g., Garcia v. Commissioner of Social Security, No. 1:21-cv-00068- 6 SAB, 2022 WL 2110709 at *7 (E.D. Cal. June 10, 2022) (listing cases). Even 7 assuming that anti-anxiety and anti-depressive medications along with periodic 8 therapy can be considered conservative treatment, an ALJ may rely on conservative 9 treatment to discount a claimant’s testimony only after he has considered why the 10 claimant did not pursue more aggressive treatment. See SSR 16-3p, 2016 SSR 11 LEXIS 4 (“We will not find an individual’s symptoms inconsistent with the 12 evidence in the record on this basis without considering possible reasons why he or 13 she may not comply with treatment or seek treatment consistent with the degree of 14 his or her complaints.”); Eitner v. Saul, 835 F. App’x 932, 933 (9th Cir. 2021) 15 (citing SSR 16-3p and finding that failure to pursue more aggressive treatment was 16 not a clear and convincing reason to reject plaintiff’s testimony because the ALJ did 17 not consider why the claimant did not seek or obtain treatment). 18 The ALJ does not mention the specific medications or doses taken and does 19 not otherwise support his finding that the treatment was “routine and conservative.” 20 The ALJ notes that there is no indication of inpatient treatment or psychiatric 21 hospitalization, AR 99, but the ALJ did not consider possible reasons why Plaintiff ORDER GRANTING PLAINTIFF’S BRIEF AND REMANDING FOR ADDITIONAL PROCEEDINGS ~ 22 1 would not seek inpatient treatment or psychiatric hospitalization, and the ALJ did 2 not articulate whether such treatment would be expected based on Plaintiff’s self- 3 reported symptoms. Additionally, the Court finds that the difficulty Plaintiff 4 experienced beginning treatment and attending appointments provides additional 5 support for the severity of Plaintiff’s anxiety, depression, and panic attacks, rather 6 than discounting her symptoms as suggested by the ALJ. The ALJ erred by failing 7 to analyze or consider Plaintiff’s reasons for not pursuing more aggressive treatment. 8 The ALJ found that Plaintiff’s examining providers have noted Plaintiff’s 9 diagnosed conditions, and yet “claimant’s mental status/psychiatric screenings 10 otherwise reflect largely normal/intact mental status.” AR 99. The ALJ points to 11 comments regarding Plaintiff such as “alert, oriented, good grooming/hygiene, 12 appropriate mood/affect, cooperative, maintains eye contact, normal thought process 13 and content; attention, concentration and intellectual function within normal limits.” 14 AR 99. The ALJ finds that Plaintiff’s presentation and performance on her 15 consultative psychological evaluations is “not consistent with disabling mental 16 symptoms/limitations.” AR 100. The ALJ also noted that, while Plaintiff claims she 17 is unable to work due to panic attacks, anxiety, and claustrophobia, Plaintiff reported 18 doing well working for four and a half years in caregiving, and that she had “always 19 shined” until her last job. AR 100 (citing AR 682, 684, 685). 20 21 Plaintiff’s argument that the ALJ should not consider Plaintiff’s ability to work for years prior to her alleged onset of disability is well founded. While ORDER GRANTING PLAINTIFF’S BRIEF AND REMANDING FOR ADDITIONAL PROCEEDINGS ~ 23 1 Plaintiff was able to work for a number of years, the record shows that Plaintiff 2 experienced a gradual but steady decline in her mental health over the past few 3 years, which was exacerbated by COVID-19 and being required to wear a mask. See 4 AR 488, 496. Additionally, while Plaintiff is able to independently complete basic 5 life activities and presents as alert, oriented, and with good thought process, the ALJ 6 does not explain how these abilities are inconsistent with Plaintiff’s alleged 7 symptoms or discredit her allegation of having trouble interacting with coworkers 8 and supervisors. Daily activities may suffice to discredit a claimant’s symptom 9 allegations where the ALJ makes a “specific finding” that the claimant “is able to 10 spend a substantial part of [her] day engaged in pursuits involving the performance 11 of physical functions that are transferable to a work setting[.]” Vertigan v. Halter, 12 260 F.3d 1044, 1050 (9th Cir. 2001) (internal quotation omitted). However, the 13 basic life activities noted by the ALJ include activities at home, alone, such as 14 cooking, cleaning, and laundry. See AR 100. The sole activity mentioned that does 15 not take place in Plaintiff’s home is grocery shopping, which the ALJ notes that 16 Plaintiff claims to do “about once a month with her mother,” or she “orders online or 17 has her father pick up.” See AR 100–01 (citing AR 685, 823). The stated activities 18 do not show that Plaintiff is engaged in activities that are transferable to a work 19 setting; rather, they support that Plaintiff is able to do basic activities at her house, 20 but has difficulty doing activities in public and with other individuals. See Fair v. 21 ORDER GRANTING PLAINTIFF’S BRIEF AND REMANDING FOR ADDITIONAL PROCEEDINGS ~ 24 1 Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (noting that a person need not be “utterly 2 incapacitated” to be disabled). 3 Accordingly, the Court finds that the ALJ did not provide clear and 4 convincing reasons for discrediting Plaintiff’s subjective symptom allegations. See 5 Smolen, 80 F.3d at 1281. 6 RFC Formulation 7 As the Court has found harmful error in the ALJ's evaluation of Plaintiff's 8 subjective symptom statements and medical source opinions, the formulation of the 9 RFC necessarily is affected. Had the ALJ credited some of the discounted 10 statements and opinions, additional limitations may have been included in 11 Plaintiff's RFC. Accordingly, the Court need not conduct a separate analysis with 12 respect to error in the RFC formulation. 13 Remedy 14 The Ninth Circuit Court of Appeals has held that “[a] district court may 15 reverse the decision of the Commissioner of Social Security, with or without 16 remanding the cause for a rehearing, but the proper course, except in rare 17 circumstances, is to remand to the agency for additional investigation or 18 explanation.” Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2016) (quotations 19 omitted). A court should take the exceptional step of remanding for an immediate 20 award of benefits only where: 21 ORDER GRANTING PLAINTIFF’S BRIEF AND REMANDING FOR ADDITIONAL PROCEEDINGS ~ 25 1 2 3 (1) The ALJ has failed to provide legally sufficient reasons for rejecting ... evidence [probative of disability], (2) there are no outstanding issues that must be resolved before a determination of disability can be made, and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited. 4 Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000) (internal quotation omitted). 5 By contrast, remand is appropriate when additional administrative proceedings could 6 remedy defects. Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir. 1989). Even if 7 these requirements are met, the court retains “flexibility” to “remand for further 8 proceedings when the record as a whole creates serious doubt as to whether the 9 claimant is, in fact, disabled within the meaning of the Social Security 10 Act.” Garrison, 759 F.3d at 1021. 11 The Court does not find that the record as a whole compels a finding that 12 Plaintiff is disabled or that the credit-as-true factors have been satisfied. Further 13 administrative proceedings would be able to further develop the record with respect 14 to whether Plaintiff's subjective complaints should be accepted and how the medical 15 opinion evidence should be evaluated. See Brown-Hunter v. Colvin, 806 F.3d 487, 16 495 (9th Cir. 2015) (holding that errors concerning the evaluation of testimony are 17 appropriate for remand). 18 Accordingly, IT IS HEREBY ORDERED: 19 1. Plaintiff’s Brief, ECF No. 11, is GRANTED. 2. Defendant the Commissioner’s Brief, ECF No. 16, is DENIED. 20 21 ORDER GRANTING PLAINTIFF’S BRIEF AND REMANDING FOR ADDITIONAL PROCEEDINGS ~ 26 1 3. 2 REMANDED pursuant to sentence four of 42 U.S.C. § 405(g), for further 3 proceedings. 4 4. Judgment shall be entered for Plaintiff. 5 5. The District Court Clerk shall amend the docket in this matter to 6 substitute Martin O’Malley as the Commissioner of the Social Security 7 Administration. 8 IT IS SO ORDERED. The District Court Clerk is directed to enter this 9 10 11 The decision of the Commissioner is REVERSED, and this matter is Order, enter judgment as directed, provide copies to counsel, and close the file in this case. DATED March 14, 2024. 12 13 s/ Rosanna Malouf Peterson ROSANNA MALOUF PETERSON Senior United States District Judge 14 15 16 17 18 19 20 21 ORDER GRANTING PLAINTIFF’S BRIEF AND REMANDING FOR ADDITIONAL PROCEEDINGS ~ 27

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