Adams v. O'Malley

• Court: District Court, E.D. Washington
• Decided: March 7, 2023
• Docket: 1:21-cv-03092
• Status: Unknown

Opinion

1 FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 2 Mar 07, 2023 3 SEAN F. MCAVOY, CLERK 4

5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON

7 GARY A., No. 1:21-CV-03092-ACE 8 Plaintiff, ORDER GRANTING 9 PLAINTIFF’S MOTION 10 v. FOR SUMMARY JUDGMENT

11 KILOLO KIJAKAZI, 12 ACTING COMMISSIONER OF ECF Nos. 15, 16 13 SOCIAL SECURITY,

14 Defendant. 15 16 BEFORE THE COURT are cross-motions for summary judgment. 17 ECF Nos. 15, 16. Attorney Tree represents Gary A. (Plaintiff); Special Assistant 18 United States Attorney Moum represents the Commissioner of Social Security 19 (Defendant). The parties have consented to proceed before a magistrate judge. 20 ECF No. 4. After reviewing the administrative record and the briefs filed by the 21 parties, the Court GRANTS Plaintiff’s Motion for Summary Judgment and 22 DENIES Defendant’s Motion for Summary Judgment, and REMANDS the matter 23 for further proceedings under sentence four of 42 U.S.C. § 405(g). 24 JURISDICTION 25 Plaintiff filed applications for benefits on July 17, 2014, alleging disability 26 since February 1, 2013. Tr. 289-313. The applications were denied initially and 27 upon reconsideration. Administrative Law Judge (ALJ) Meyers held a hearing on 28 May 17, 2017, and issued an unfavorable decision on March 10, 2018. Tr. 13-34. 1 This Court subsequently remanded the matter. Tr. 782-90. The ALJ held a second 2 hearing on January 4, 2021, and issued an unfavorable decision. Tr. 711-39. 3 Plaintiff appealed this final decision of the Commissioner on July 12, 2021. ECF 4 No. 1. 5 STANDARD OF REVIEW 6 The ALJ is responsible for determining credibility, resolving conflicts in 7 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 8 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with 9 deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel, 10 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 11 only if it is not supported by substantial evidence or if it is based on legal error. 12 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 13 defined as being more than a mere scintilla, but less than a preponderance. Id. at 14 1098. Put another way, substantial evidence is such relevant evidence as a 15 reasonable mind might accept as adequate to support a conclusion. Richardson v. 16 Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 17 U.S. 197, 229 (1938)). If the evidence is susceptible to more than one rational 18 interpretation, the Court may not substitute its judgment for that of the ALJ. 19 Tackett, 180 F.3d at 1098; Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 20 599 (9th Cir. 1999). If substantial evidence supports the administrative findings, or 21 if conflicting evidence supports a finding of either disability or non-disability, the 22 ALJ’s determination is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-1230 23 (9th Cir. 1987). Nevertheless, a decision supported by substantial evidence will be 24 set aside if the proper legal standards were not applied in weighing the evidence 25 and making the decision. Brawner v. Sec’y of Health and Human Services, 839 26 F.2d 432, 433 (9th Cir. 1988). 27 // 28 // 1 SEQUENTIAL EVALUATION PROCESS 2 The Commissioner has established a five-step sequential evaluation process 3 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 4 416.920(a); Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). In steps one through 5 four, the claimant bears the burden of establishing a prima facie case of disability. 6 Tackett, 180 F.3d at 1098-1099. This burden is met once a claimant establishes 7 that a physical or mental impairment prevents the claimant from engaging in past 8 relevant work. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). If a claimant cannot 9 perform past relevant work, the ALJ proceeds to step five, and the burden shifts to 10 the Commissioner to show (1) the claimant can make an adjustment to other work 11 and (2) the claimant can perform other work that exists in significant numbers in 12 the national economy. Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). If a 13 claimant cannot make an adjustment to other work in the national economy, the 14 claimant will be found disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 15 ADMINISTRATIVE FINDINGS 16 On March 17, 2021, the ALJ issued a decision finding Plaintiff was not 17 disabled as defined in the Social Security Act. 18 At step one, the ALJ found Plaintiff had not engaged in substantial gainful 19 activity since February 1, 2013, the alleged onset date. Tr. 720. 20 At step two, the ALJ determined Plaintiff had the following severe 21 impairments: ADHD, depressive disorder; and personality disorder. Tr. 720. 22 At step three, the ALJ found these impairments did not meet or equal the 23 requirements of a listed impairment. Tr. 721. 24 The ALJ assessed Plaintiff’s Residual Functional Capacity (RFC) and 25 determined Plaintiff could perform medium work, subject to the following 26 limitations: he is limited to unskilled, repetitive, routine tasks in two-hour 27 increments; can have no contact with the public; can work in proximity to 28 1 coworkers but not in coordination with coworkers; and can have occasional contact 2 with supervisors. Tr. 723. 3 At step four, the ALJ found Plaintiff was unable to perform past relevant 4 work. Tr. 730. 5 At step five, the ALJ found there are jobs that exist in significant numbers in 6 the national economy that Plaintiff can perform. Tr. 730. 7 The ALJ thus concluded Plaintiff was not disabled from February 1, 2013, 8 through the date of the decision. Tr. 731. 9 ISSUES 10 The question presented is whether substantial evidence supports the ALJ’s 11 decision denying benefits and, if so, whether that decision is based on proper legal 12 standards. 13 Plaintiff raises the following issues for review: (A) whether the ALJ 14 properly evaluated the medical opinion evidence; and (B) whether the ALJ 15 properly evaluated Plaintiff’s subjective complaints. ECF No. 15 at 2. 16 DISCUSSION 17 A. Medical Opinions 18 Because Plaintiff filed his applications before March 27, 2017, the ALJ was 19 required to generally give a treating doctor’s opinion greater weight than an 20 examining doctor’s opinion, and an examining doctor’s opinion greater weight 21 than a non-examining doctor’s opinion. Garrison v. Colvin, 759 F.3d 995, 1012 22 (9th Cir. 2014). An ALJ may only reject the contradicted opinion of a treating or 23 examining doctor by giving “specific and legitimate” reasons. Revels v. Berryhill, 24 874 F.3d 648, 654 (9th Cir. 2017). “Only physicians and certain other qualified 25 specialists are considered ‘[a]cceptable medical sources.’” Ghanim v. Colvin, 763 26 F.3d 1154, 1161 (9th Cir. 2014) (alteration in original). An ALJ may reject the 27 opinion of a non-acceptable medical source by giving reasons germane to the 28 opinion. Id. An ALJ may reject the opinion of a nonexamining physician by 1 reference to specific evidence in the medical record. Sousa v. Callahan, 143 F.3d 2 1240, 1244 (9th Cir. 1998) (citations omitted). Plaintiff argues the ALJ 3 misevaluated four sets of medical opinions. ECF No. 15 at 11-21. As discussed 4 below, the Court concludes the ALJ misevaluated certain medical opinion 5 evidence. 6 1. Emma Billings, Ph.D 7 Dr. Billings examined Plaintiff on August 15, 2015, and opined, as relevant 8 here, “it is likely that he would have problems working in an environment where 9 there is high stress and time pressures” and “he does exhibit a personality disorder 10 that likely is an interference in work relationships and performance.” Tr. 541. The 11 ALJ rejected these portions of the opinion as equivocal, pointing to the doctor’s 12 use of the word likely. Tr. 726. This finding was reasonable, as these portions of 13 the opinion do not offer concrete functional limitations. “[T]he ALJ is the final 14 arbiter with respect to resolving ambiguities in the medical evidence.” Tommasetti 15 v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). The ALJ was thus within his 16 discretion to reject speculative and equivocal statements from the provider. See, 17 e.g., Shelly A. O. v. Comm’r of Social Sec. Admin., 2020 WL 3868504, at *10 (D. 18 Or. Jul. 8, 2020) (“An ALJ is not required to incorporate limitations phrased 19 equivocally into the [RFC].”); Khal v. Colvin, 2015 WL 5092586, at *7 (D. Or. 20 Aug. 27, 2015), aff’d sub nom, Khal v. Berryhill, 690 F. App’x 499 (9th Cir. Apr. 21 28, 2017). Accordingly, the ALJ did not err by discounting this portion of Dr. 22 Billings’ opinion. 23 2. Philip G. Barnard, Ph.D and Aaron Burdge, Ph.D 24 Dr. Barnard examined Plaintiff on June 26, 2014, conducting a clinical 25 interview and performing a mental status examination. Tr. 412-18. Dr. Barnard 26 opined Plaintiff was markedly limited in understanding, performing, and persisting 27 in tasks by following detailed instructions, performing activities within a schedule, 28 maintaining regular attendance, being punctual within customary tolerances 1 without special supervision, learning new tasks, performing routine tasks without 2 special supervision, communicating and performing effectively in a work setting, 3 and setting realistic goals and planning independently; and severely limited in 4 completing a normal work day and workweek without interruptions from 5 psychologically based symptoms and maintaining appropriate behavior in a work 6 setting. Tr. 416. Dr. Burdge reviewed and largely adopted Dr. Barnard’s assessed 7 limitations. Tr. 421-22. 8 The ALJ first discounted the opinions on the ground Dr. Barnard “performed 9 a single evaluation and reviewed no treatment notes.” Tr. 726. This reason is 10 legally erroneous, as there is no requirement examining doctors who perform one 11 evaluation – and necessarily assess functioning at the time of the evaluation – 12 review treatment notes. See, e.g., Walshe v. Barnhart, 70 F. App’x 929, 931 (9th 13 Cir. 2003) (stating “Social Security regulations do not require that a consulting 14 physician review all of the claimant’s background records”); Xiomara F. v. 15 Comm’r of Soc. Sec., 2020 WL 2731023, at *2 (W.D. Wash. May 26, 2020) 16 (“There is no requirement an examining doctor review records prior to rendering 17 an opinion.”); Chlarson v. Berryhill, No., 2017 WL 4355908, at *3 (W.D. Wash. 18 July 28, 2017) (“[N]ot reviewing plaintiff’s prior medical records is not a 19 legitimate basis for the failure to credit fully Dr. Czysz’s opinion, as Dr. Czysz 20 examined plaintiff and performed a MSE[.]”), report and recommendation 21 adopted, 2017 WL 3641907 (W.D. Wash. Aug. 24, 2017); Al-Mirzah v. Colvin, 22 2015 WL 457800, at *8 (W.D. Wash. Feb. 3, 2015) (“This rationale, taken to its 23 logical extreme, would allow for the rejection of any and all medical opinions 24 rendered prior to the admission of the claimant’s most recent treatment notes into 25 the administrative record.”). The ALJ accordingly erred by discounting the 26 opinions on this ground. 27 The ALJ next discounted the opinions on the ground Dr. Barnard’s opinion 28 was “internally inconsistent.” Tr. 726. In support, the ALJ noted the opinion 1 “indicates marked limitations in various aspects of cognitive function (including an 2 ability to learn new tasks) but also that the claimant would have only mild 3 difficulties with attention and concentration in a work setting.” Tr. 726. This is 4 not a legitimate inconsistency, as the two are not mutually exclusive. Dr. 5 Barnard’s assessment concerning Plaintiff’s “difficulty with attention and 6 concentration,” Tr. 415, is separate and apart from his assessment concerning, for 7 example, his assessed limitations concerning Plaintiff’s ability to complete a 8 normal workday and workweek without interruptions from psychologically-based 9 symptoms and maintaining appropriate workplace behavior in a work setting, Tr. 10 416. Both assessments concern discrete functional limitations.1 While an ALJ 11 may discount a doctor’s opinions when they are inconsistent with or unsupported 12 by the doctor’s own clinical findings, see Tommasetti, 533 F.3d at 1041, the ALJ 13 must present a rational and accurate interpretation of the medical evidence, see 14 Reddick v. Chater, 157 F.3d 715, 722-23 (9th Cir. 1998) (reversing ALJ’s decision 15 where his “paraphrasing of record material is not entirely accurate regarding the 16 content or tone of the record”). Because the ALJ did not do so here, he necessarily 17 erred by discounting the opinions on this ground. 18 The ALJ also discounted the opinions on the ground Dr. Barnard’s opinion 19 was “not consistent with the overall record.” Tr. 726. In support, the ALJ noted 20 Plaintiff “reported to providers that he was doing well and had few or no 21 symptoms” and “often made little mention of problems with social function or 22 denied such problems,” and presented with “unremarkable mental status findings” 23 and “no acute distress.” Tr. 727. Substantial evidence does not support this 24 ground, and the ALJ’s finding is legally erroneous under Ninth Circuit precedent. 25 See Garrison, 759 F.3d at 1017 (“Cycles of improvement and debilitating 26

27 1 Similarly, to the extent the ALJ discounted the doctors’ opinion as inconsistent with Plaintiff’s memory testing results, Tr. 727, this too is an unreasonable inconsistency, as 28 memory and concentration are distinct abilities. 1 symptoms are a common occurrence, and in such circumstances it is error for an 2 ALJ to pick out a few isolated instances of improvement over a period of months 3 or years and to treat them as a basis for concluding a claimant is capable of 4 working. Reports of ‘improvement’ in the context of mental health issues must be 5 interpreted with an understanding of the patient’s overall well-being and the nature 6 of her symptoms. They must also be interpreted with an awareness that improved 7 functioning while being treated and while limiting environmental stressors does 8 not always mean that a claimant can function effectively in a workplace.”) (cleaned 9 up); Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001) (“That a person 10 who suffers from severe panic attacks, anxiety, and depression makes some 11 improvement does not mean that the person’s impairments no longer seriously 12 affect her ability to function in a workplace.”). The record reflects Plaintiff 13 presented over the years with psychological symptoms of varying intensity. See, 14 e.g., Tr. 426 (May 2, 2014, treatment note indicating PHQ-9 depression severity at 15 11); Tr. 432 (February 4, 2014, treatment note indicating PHQ-9 depression 16 severity at 4); Tr. 441 (December 17, 2013, treatment note indicating PHQ-9 17 depression severity at 15 and suicidal ideation); Tr. 975 (September 27, 2017, 18 treatment note indicating “feel[ing] depressed at least 3 or 4 days a week”); Tr. 19 1019 (July 6, 2020, treatment note indicating PHQ-9 depression severity at 10). 20 That Plaintiff reported doing well and presented with no acute distress at times is 21 thus not inconsistent with Plaintiff experiencing waxing-and-waning mental health 22 symptoms at other times. The ALJ accordingly erred by discounting the opinions 23 on this ground. 24 Fourth, the ALJ discounted the opinions as inconsistent with Plaintiff’s 25 activities, pointing to Plaintiff’s ability to “manage his money; use a budget; and 26 shop on his own,” as well as “do his own laundry … cook for himself” and 27 “negotiate a price and buy a camper from a friend” and “negotiate a price for a 28 hotel room.” Tr. 727. Plaintiff’s minimal activities are neither inconsistent with 1 nor a valid reason to discount the doctors’ opinions. See Vertigan v. Halter, 260 2 F.3d 1044, 1050 (9th Cir. 2001) (“This court has repeatedly asserted that the mere 3 fact that a plaintiff has carried on certain daily activities, such as grocery shopping, 4 driving a car, or limited walking for exercise, does not in any way detract from her 5 credibility as to her overall disability. One does not need to be ‘utterly 6 incapacitated’ in order to be disabled.”) (quoting Fair v. Bowen, 885 F.2d 597, 603 7 (9th Cir. 1989)); Reddick, 157 F.3d at, 722 (“Several courts, including this one, 8 have recognized that disability claimants should not be penalized for attempting to 9 lead normal lives in the face of their limitations.”); Cooper v. Bowen, 815 F.2d 10 557, 561 (9th Cir. 1987) (noting that a disability claimant need not “vegetate in a 11 dark room” in order to be deemed eligible for benefits). Similarly, Plaintiff’s 12 minimal activities do not “meet the threshold for transferable work skills.” Orn v. 13 Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (citing Fair, 885 F.2d at 603). 14 Moreover, the ALJ’s recitation of Plaintiff’s minimal activities omits a significant 15 detail: Plaintiff has been homeless for much, if not all, of the relevant period. See 16 Tr. 49 (indicating homelessness from 2013 to at least 2017); Tr. 414 (indicating 17 living “in a small trailer with all the windows broken out” and with “no running 18 water or heat” in 2013); Tr. 442 (indicating homelessness in 2013); Tr. 986 19 (indicating homelessness in 2018); Tr. 941 (indicating homelessness in 2019: 20 “staying in a shack located near the freeway, and is unsure as to how long he will 21 be able to stay there before being either arrested or made to leave”); Tr. 1045 22 (indicating homelessness in 2019); Tr. 1011 (indicating homelessness in 2020). 23 And further still, the ALJ’s assessment of Plaintiff’s ability to “negotiate” a price 24 for a camper and hotel room lacks an evidentiary basis. See Tr. 727 (citing Tr. 25 1032). There is no evidence – let alone substantial evidence – that Plaintiff 26 “negotiated” a price for either. The single treatment note discussing these 27 transactions merely reflects that Plaintiff paid for a trailer and was “able to 28 advocate” for a reduction in a hotel room’s rate. Tr. 1032. In the context of this 1 psychotherapy report assessing Plaintiff’s depression, Plaintiff’s ability to advocate 2 is reasonably read as being able to advocate for oneself, nothing more. “Advocate” 3 is not synonymous with “negotiate.” Nevertheless, the ALJ erroneously found 4 Plaintiff negotiated for both a trailer and a hotel room. As to the former, this is a 5 conclusion without a basis, as the record solely indicates Plaintiff “purchased” a 6 trailer. As to the latter, the ALJ misconstrued the professional terminology. The 7 ALJ accordingly erred by discounting the doctors’ opinions on this ground. 8 Finally, the ALJ specifically rejected Dr. Barnard’s opinion that Plaintiff has 9 “significant limitations in completing a normal workday/workweek and 10 maintaining regular attendance.” Tr. 727. The ALJ rejected this portion of the 11 opinion as a “legal conclusion that is reserved to the Commissioner.” Tr. 727. 12 This was error. While “opinions as to disability are reserved to the 13 Commissioner,” SSR 96-5p, Dr. Barnard’s assessed functional limitation is not 14 such an opinion. See also 20 C.F.R. § 416.927(d) (“Whether a claimant is disabled 15 or unable to work is an issue reserved to the Commissioner, and an opinion on 16 such an issue is not entitled to any specific significance.”). The ALJ accordingly 17 erred by discounting the opinions on this ground. 18 The ALJ accordingly erred by discounting the doctors’ opinions. 19 3. Wendi Wachsmuth, Ph.D, RA Cline, Psy.D, Tasmyn Bowes, Psy.D 20 Dr. Wachsmuth examined Plaintiff on October 8, 2013, and opined, among 21 other things, Plaintiff was moderately limited in completing a normal workday and 22 workweek without interruptions from psychologically-based symptoms. Tr. 412- 23 13. Dr. Cline examined Plaintiff on May 24, 2016, and opined Plaintiff was 24 markedly limited in communicating and performing effectively in a work setting 25 and moderately limited in, among other things, completing a normal workday and 26 workweek without interruptions from psychologically-based symptoms. Tr. 544- 27 45. Dr. Bowes examined Plaintiff on April 24, 2018, assessed Plaintiff’s anxiety 28 and depression as “moderate, and opined Plaintiff was markedly limited in 1 understanding, remembering, and persisting in tasks by following detailed 2 instructions and moderately limited in, among other things, completing a normal 3 workday and workweek without interruptions from psychologically-based 4 symptoms. Tr. 988-89. 5 The ALJ discounted the doctors’ opinions on the ground “they reviewed no 6 treatment notes.” Tr. 728. As discussed above, this is not a valid reason to 7 discount the opinion of examining doctors. The ALJ also rejected the doctors’ 8 opinions concerning Plaintiff’s ability to complete a normal workday/workweek 9 and maintain regular attendance. As discussed above, the ALJ erred by 10 discounting the opinions on this ground. The ALJ accordingly erred by 11 discounting the opinions on these grounds. 12 Finally, as to Dr. Cline specifically, the ALJ rejected her assessment that 13 Plaintiff was markedly limited in “communicating and performing effectively in a 14 work setting.” Tr. 728 (emphasis added). The ALJ found the doctor “did provide 15 specific rationale to explain this limitation,” but curiously noted she “did not 16 specify whether she was indicating ‘communicating’ or ‘in performing,’” 17 seemingly questioning whether the word “and” was used conjunctively or 18 disjunctively. Tr. 728. However, “‘and’ means ‘and.’” United States v. Lopez, 998 19 F.3d 431, 433 (9th Cir. 2021). The ALJ’s apparent rejection of this portion of the 20 opinion based on this purported ambiguity was thus unreasonable. The ALJ also 21 rejected Dr. Cline’s assessed “communication problems” as inconsistent with “her 22 observations that the claimant had normal speech, and was polite and cooperative.” 23 Tr. 728. This is not a reasonable inconsistency. Plaintiff’s performance during his 24 clinical interview with Dr. Cline – conducted in a close and sterile setting with a 25 psychiatric professional – is not reasonably inconsistent with Dr. Cline’s opined 26 limitations concerning Plaintiff’s ability to, among other things, complete a normal 27 workday and workweek without interruptions from psychologically-based 28 symptoms. 1 The ALJ accordingly erred by discounting the doctors’ opinions. 2 4. M. Neil Anderson, LICSW 3 Mr. Anderson began treating Plaintiff on a consistent basis in May 2015. 4 See Tr. 708. On June 8, 2017, Mr. Anderson prepared a mental source statement, 5 wherein he opined Plaintiff had a variety of moderate, marked, and severe 6 functional limitations, would be off task “over 30%” of the time during a 40-hour 7 workweek, and would miss “4 or days per month” if attempting to work a 40-hour 8 work schedule. Tr. 704-06. The ALJ gave Mr. Anderson’s opinion “little weight.” 9 Tr. 728. 10 The ALJ first discounted Mr. Anderson’s opinion as “poorly supported and 11 inconsistent with the longitudinal record.” Tr. 728. An ALJ’s rejection of a 12 clinician’s opinion on the ground that it is contrary to unspecified evidence in the 13 record is “broad and vague,” and fails “to specify why the ALJ felt the [clinician’s] 14 opinion was flawed.” McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989). It 15 is not the job of the reviewing court to comb the administrative record to find 16 specific conflicts. Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014). The ALJ 17 accordingly erred by discounting Mr. Anderson’s opinion on this ground. 18 The ALJ also discounted the opinion on the ground “Mr. Anderson did not 19 provide a completed evaluation with objective findings consistent with such 20 limitations.” Tr. 729. This is not a valid ground to discount an opinion concerning 21 mental impairments: 22 Courts have recognized that a psychiatric impairment is not as readily 23 amenable to substantiation by objective laboratory testing as is a medical 24 impairment and that consequently, the diagnostic techniques employed in the 25 field of psychiatry may be somewhat less tangible than those in the field of 26 medicine. In general, mental disorders cannot be ascertained and verified as 27 are most physical illnesses, for the mind cannot be probed by mechanical 28 devises in order to obtain objective clinical manifestations of mental illness. 1 Lebus v. Harris, 526 F. Supp. 56, 60 (N.D. Cal. 1981). The record indicates the 2 opinion was based on clinical observations and does not indicate Mr. Anderson 3 found Plaintiff to be untruthful. Therefore, this is no evidentiary basis for rejecting 4 the opinion. Cf. Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017) (“The 5 report of a psychiatrist should not be rejected simply because of the relative 6 imprecision of the psychiatric methodology. Psychiatric evaluations may appear 7 subjective, especially compared to evaluation in other medical fields. Diagnoses 8 will always depend in part on the patient’s self-report, as well as on the clinician’s 9 observations of the patient. But such is the nature of psychiatry. Thus, the rule 10 allowing an ALJ to reject opinions based on self-reports does not apply in the same 11 manner to opinions regarding mental illness.”) (cleaned up); Ryan v. Comm’r of 12 Soc. Sec., 528 F.3d 1194, 1199–200 (9th Cir. 2008) (“an ALJ does not provide 13 clear and convincing reasons for rejecting an examining physician’s opinion by 14 questioning the credibility of the patient’s complaints where the doctor does not 15 discredit those complaints and supports his ultimate opinion with his own 16 observations”). The ALJ accordingly erred by discounting the opinion on this 17 ground. 18 The ALJ accordingly erred by discounting Mr. Anderson’s opinion. 19 B. Subjective Complaints 20 Plaintiff contends the ALJ erred by not properly assessing Plaintiff’s 21 symptom complaints. ECF No. 13 at 4-13. Where, as here, the ALJ determines a 22 claimant has presented objective medical evidence establishing underlying 23 impairments that could cause the symptoms alleged, and there is no affirmative 24 evidence of malingering, the ALJ can only discount the claimant’s testimony as to 25 symptom severity by providing “specific, clear, and convincing” reasons supported 26 by substantial evidence. Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017). 27 The Court concludes the ALJ failed to offer clear and convincing reasons to 28 discount Plaintiff’s testimony. 1 The ALJ first discounted Plaintiff’s testimony as inconsistent with the 2 medical evidence. Tr. 724-25. However, because the ALJ erred by discounting 3 three sets of medical opinions, and necessarily failed to properly evaluate the 4 medical evidence, as discussed above, this is not a valid ground to discount 5 Plaintiff’s testimony. 6 The ALJ also discounted Plaintiff’s testimony as inconsistent with his 7 activities. However, as discussed above, the minimal activities the ALJ cites do 8 not sufficiently undermine Plaintiff’s claims. The ALJ accordingly erred by 9 discounting Plaintiff’s testimony on this ground. 10 The ALJ accordingly erred by discounting Plaintiff’s testimony. 11 SCOPE OF REMAND 12 This case must be remanded because the ALJ harmfully misevaluated the 13 medical evidence and Plaintiff’s testimony. Plaintiff contends the Court should 14 remand for an immediate award of benefits. Such a remand should be granted only 15 in a rare case and this is not such a case. The medical opinions and Plaintiff’s 16 testimony must be reweighed and this is a function the Court cannot perform in the 17 first instance on appeal. Further proceedings are thus not only helpful but 18 necessary. See Brown-Hunter v. Colvin, 806 F.3d 487, 495 (9th Cir. 2015) (noting 19 a remand for an immediate award of benefits is an “extreme remedy,” appropriate 20 “only in ‘rare circumstances’”) (quoting Treichler v. Comm’r of Soc. Sec. Admin., 21 775 F.3d 1090, 1099 (9th Cir. 2014)). 22 On remand, the ALJ shall reevaluate the opinions of Drs. Barnard, Burdge, 23 Wachsmuth, Cline, and Bowes and Mr. Anderson, reassess Plaintiff’s testimony, 24 develop the record and redetermine the RFC as needed, and proceed to the 25 remaining steps as appropriate. 26 CONCLUSION 27 Having reviewed the record and the ALJ’s findings, the Commissioner’s 28 final decision is REVERSED and this case is REMANDED for further 1 || proceedings under sentence four of 42 U.S.C. § 405(g). Therefore, IT IS 2 || HEREBY ORDERED: 3 1. Plaintiff's Motion for Summary Judgment, ECF No. 15, is 4|| GRANTED. 5 2. Defendant’s Motion for Summary Judgment, ECF No. 16, is 6 || DENIED. 7 The District Court Executive is directed to file this Order and provide a copy 8 || to counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff and 9 || the file shall be CLOSED. 10 IT IS SO ORDERED. 1] DATED March 7, 2023.

emer Seem Oy el de AL ER C. EKSTROM UNITED STATES MAGISTRATE JUDGE

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