Allen v. Kijakazi

Opinion

2 3 4 UNITED STATES DISTRICT COURT 5 SOUTHERN DISTRICT OF CALIFORNIA 6 7 STEPHANIE A., Case No.: 3:22-cv-00349-BGS

8 Plaintiff, ORDER ON JOINT MOTION FOR 9 v. JUDICIAL REVIEW

10 KILOLO KIJAKAZI, [ECF 19] 11 Defendant. 12 13 14 On March 16, 2022, Stephanie A.1, Plaintiff, filed a Complaint in this case. (ECF 15 1.) She consented to Magistrate Judge Jurisdiction (ECF 5), and on August 8, 2022, the 16 United States Attorney’s Office filed the Administrative Record (ECF 13). On January 20, 17 2023, the parties filed a Joint Motion for Judicial Review. (ECF 19.) For the following 18 reasons, the ALJ’s decision is VACATED, and the case is REMANDED to the ALJ for 19 further proceedings consistent with this opinion. 20 I. PROCEDURAL BACKGROUND 21 On April 18, 2018, Plaintiff, then-employed as a Teacher Aide, filed an application 22 for a period of disability and disability insurance benefits, alleging disability beginning on 23 May 10, 2018. (Administrative Record (AR) at 133.2) In the October 15, 2021, decision 24 of Administrative Law Judge (ALJ) Randolph E. Schum, Plaintiff, currently age 47, was 25 26 27 1 The Court refers to Plaintiff using only her first name and last initial. CivLR 7.1(e)(6)(b). 2 The AR was filed on August 8, 2022. (ECF 13.) Citations to the AR are to the original document 28 pagination and not to the Case Management/Electronic Case Filing (CM/ECF) pagination. The Court’s other citations are to the CM/ECF pagination and docket number. 2 hypocomplementemia, a history of Grade I diastolic dysfunction, anxiety disorder, post- 3 traumatic stress disorder, and depressive disorder. (ECF 13-2 at 24.) 4 Plaintiff’s initial application was denied by an examiner on August 22, 2018, and 5 again on reconsideration, on December 12, 2018. (Id.) Plaintiff requested a hearing before 6 an ALJ. (Id.) On August 27, 2019, ALJ Schum held a hearing, and on November 1, 2019, 7 issued a decision concluding that Plaintiff is not disabled. (Id. at 146.) Plaintiff appealed 8 the ALJ’s decision to the Appeals Commission, and on May 11, 2020, the Appeals 9 Commission vacated the ALJ decision and remanded the case to ALJ Schum (AR at 153- 10 54). 11 On April 20, 2021, on remand, the ALJ held another hearing. (AR at 68.) Vocational 12 expert Linda M. Ferra, M.A. (VE 1), provided expert vocational testimony at the hearing. 13 (Id. at 35.) A few weeks after the hearing, on May 14, 2021, Plaintiff submitted a brief to 14 the ALJ that addressed VE 1 testimony at the hearing. Because of the brief, the ALJ held 15 a supplemental hearing on August 24, 2021. About a week after the supplemental hearing, 16 on September 3, 2021, Plaintiff filed another brief. 17 According to the ALJ, Plaintiff’s first supplemental brief consisted of “objections to 18 the testimony of the vocational expert, [Ms. Ferra.]” (Id. at 20.) Plaintiff’s brief argued 19 that VE 1’s testimony “lacked the support of substantial evidence.” (Id. at 20-21.) The 20 ALJ “overrule[d] [the] objection” because Plaintiff had the opportunity to raise the 21 argument while cross-examining VE 1 at the hearing. (Id. at 21.) But, due to the later 22 “admission of evidence,” the ALJ nevertheless held a supplemental hearing. (Id.) At the 23 supplemental hearing, vocational expert Ronald K. Hatakeyama, Ph.D. (VE 2), testified. 24 (Id.) According to the ALJ, the brief Plaintiff filed after the supplemental hearing raised 25 “basically the same grounds as [those raised] in the prior memorandum.” (Id.) 26 The ALJ issued a decision on October 15, 2021, the Appeals Council denied review 27 on December 10, 2022, and the case is now before the Court. 28 II. FIVE-STEP SEQUENTIAL EVALUATION PROCESS 2 Administration is required to conduct a now-familiar five-step sequential evaluation 3 process to determine whether a claimant is disabled and eligible for benefits.” Shaibi v. 4 Berryhill, 883 F.3d 1102, 1106 (9th Cir. 2017) (citing 20 C.F.R. § 404.1520(a)). “First, 5 the agency must consider the claimant’s current work activity.” Id. “Second, the agency 6 must consider the medical severity of the claimant’s impairments.” Id. “Third, the agency 7 must determine whether the severity of those impairments is sufficient to meet, or 8 medically equal, the criteria of an impairment listed in three of the Social Security Act’s 9 implementing regulations, published at 20 C.F.R. §§ 404.1520(d), 404.1525-26.” Id. 10 “Fourth, the agency determines whether the claimant can perform past relevant work in 11 light of the claimant’s residual functional capacity [(RFC)].” Id. “Fifth, the agency 12 assesses whether the claimant can make an adjustment to other work that exists in 13 significant numbers in the national economy, based on the claimant’s residual functional 14 capacity.” Id. “The claimant carries the initial burden of proving a disability in steps one 15 through four of the analysis.” Id. (internal quotation marks omitted). “However, if a 16 claimant establishes an inability to continue her past work, the burden shifts to the 17 Commissioner in step five to show that the claimant can perform other substantial gainful 18 work.” Id. (internal quotation marks omitted). 19 In this case, under step one, the ALJ found that Plaintiff had not engaged in 20 substantial gainful activity during the period from the alleged onset of her disability on 21 May 10, 2018, through the date last insured of June 30, 2020. (AR at 23.) Under step two, 22 the ALJ found that Plaintiff had the severe impairments of a history of Sjögren’s syndrome 23 and hypocomplementemia, a history of Grade I diastolic dysfunction, anxiety disorder, 24 post-traumatic stress disorder, and depressive disorder. (Id.) Under step three, the ALJ 25 found that the claimant did not have an impairment or combination of impairments that 26 met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 27 404, Subpart P, Appendix 1. (Id. at 25.) 28 The ALJ then found that Plaintiff has the RFC 2 Spohuen cdosu flrde lqifute anntldy c. a Srrhye tceonu pldo usintd fso ro cact alesaiostn sailxly h aonudr sl einss a tnh aenig thetn- 3 hour workday and stand and/or walk up to two hours in an eight- hour workday. She should never climb ladders, ropes or 4 scaffolds; occasionally climb ramps and stairs; and occasionally 5 balance, stoop, kneel, crouch and crawl. She should avoid concentrated exposure to extreme cold temperatures, loud noise 6 and vibration and even moderate exposure to unprotected heights 7 and moving or dangerous machinery. Additionally, she could understand, remember and carry out simple instructions for 8 simple tasks, she could respond appropriately to co-workers and 9 supervisors in a task[-]oriented setting where contact with others was casual and no more than occasional and she should not work 10 in a setting which included constant/regular contact with the 11 general public or more than occasional handling of customer complaints. 12

13 (Id. at 26.)

14 Under step four, the ALJ found that given Plaintiff’s RFC, she was unable to perform 15 the requirements of her past relevant work. (Id. at 35.) Under step five, to establish that 16 there are jobs in “significant numbers” in the national economy that a claimant can perform, 17 “the ALJ can call upon a vocational expert to testify as to: (1) what jobs the claimant, given 18 his or her residual functional capacity, would be able to do; and (2) the availability of such 19 jobs in the national economy.” Tackett v. Apfel, 180 F.3d 1094, 1104 (1999). 20 At the first hearing on remand to the ALJ, VE 1 testified that given Plaintiff’s age, 21 education, work experience, and RFC, Plaintiff could perform the requirements of the 22 representative occupations of an Assembler (Dictionary of Occupational Titles (DOT) 23 734.687-018), a Table Worker (DOT 739.687-182), or an Addresser (DOT 209.587-010). 24 VE 1 testified that there were approximately 5,000 unskilled, sedentary Assembler jobs, 25 6,000 Table Worker jobs, and 7,000 Addresser jobs in the national economy, for a total of 26 18,000 jobs in the national economy that the claimant would be able to do. (AR at 37.) 27 At the supplemental hearing, VE 2 testified that Plaintiff could perform the 28 requirements of the representative unskilled, sedentary occupations of Bench Assembler 2 approximately 12,000 Bench Assembler jobs and 11,000 Lens Inserter jobs available in the 3 national economy, for a total of 23,000 jobs in the national economy that the claimant 4 would be able to do. (Id.) 5 The ALJ concluded that Plaintiff would be able to do the jobs identified by VEs 1 6 and 2. The total number of national jobs is 29,000 (or, at most, 35,000).3 (ECF 13-2 at 7 38.) 8 III. ISSUE I 9 Plaintiff argues in relevant part that the ALJ erred by failing to reconcile the conflict 10 between VE job-numbers estimates and her job-numbers evidence, which she provided in 11 a supplemental brief to the ALJ after the ALJ’s second hearing on remand. (ECF 19 at 6- 12 7.) Plaintiff argues that her evidence was “significant and probative.” (ECF 19 at 7-8.) 13 As a result, she argues this case must be remanded to the ALJ to resolve the conflict 14 between the job-numbers estimates she has provided and the VE’s estimates. (Id. at 22.) 15 A. Legal Standard 16 Because “a claimant will rarely, if ever, be in a position to anticipate the particular 17 occupations a VE might list and the corresponding job numbers to which a VE might testify 18 at a hearing,” as long as a claimant raises the job-numbers issue in a general sense before 19 the ALJ, an ALJ will ordinarily “permit a claimant to submit supplemental briefing . . . 20 contrasting the VE’s specific job estimates with estimates of the claimant’s own.” Shaibi, 21 888 F.3d at 1110. If a claimant has introduced job-number estimates, an ALJ “may have a 22 duty to [resolve a conflict between the VE’s job-number estimates and the claimant’s job- 23 number estimates].” Wischmann v. Kijakazi, 68 F.4th 498, 505 (2023). However, “[t]hat 24 25 3 To get 29,000 jobs, the Court uses the 6,000 job-number estimate for DOT 739.687-182 provided by VE 26 1 instead of the 12,000 job-number estimate provided by VE 2. Both VEs testified that Plaintiff could do the job of DOT 739.687-182. VE 1 testified that DOT 739.687-182 was the “Table Worker” job, and that 27 there were 6,000 Table Worker jobs nationwide. VE 2 testified that DOT 739.687-182 was the “Bench Assembler” job, and that there were 12,000 Bench Assembler jobs nationwide. (See ECF 19 at 14 (“[B]oth 28 the first and second VE identified the occupation at DOT code 739.687-182, yet identified different job numbers . . . .”).) 2 probative, as opposed to ‘meritless or immaterial.’” Id. (quoting Kilpatrick v. Kijakazi, 35 3 F.4th 1187, 1193-94 (9th Cir. 2022)). If estimated job numbers lack a sufficient 4 foundation, they are not probative. Id. at 505; see Kilpatrick, 35 F.4th at 1194 (holding 5 that a claimant’s job-number estimates were not probative because the claimant’s attorney 6 produced the estimates and had no identified expertise in calculating job figures in the 7 national economy, used seven-year-old data, and used a method based on “improbable 8 assumptions”). “In cases where the conflicting job-number estimates were accepted as 9 probative, [courts] [turn] to the question whether the new evidence [is] significant, which 10 in the context of job-number estimates is a measure of the discrepancy between the VE’s 11 estimates (upon which the ALJ relied to render the step-five finding) and the claimant’s 12 estimates.” Wischmann, 68 F.4th at 505. This Court must determine whether Plaintiff’s 13 estimates are “both significant and probative, which would require a remand to the ALJ to 14 reconsider his step-five finding that there were a significant number of jobs in the national 15 economy that [Plaintiff] could perform.” See id. at 507. 16 In Wischmann, the Court held that because the evidence was not probative, it did not 17 “give rise to the sort of inconsistency in the evidence that an ALJ is required to resolve” 18 and there was no need to remand the case to the ALJ. Wischmann, 68 F.4th at 506. The 19 claimant’s evidence of job-number estimates in Wischmann consisted mostly of raw data 20 that was incomprehensible to a lay person. Id. at 507. The data used a different 21 methodology than the VE in that case had used. Id. Other than by stating the software 22 program that had been used, the evidence did not explain how the job numbers were 23 produced. Id. Plaintiff’s attorney failed to give information about which queries were 24 entered in the program, whether any variables were changed, whether any filters were 25 applied to the data, and which version of the program was used. Id. 26 B. Analysis 27 1. Plaintiff’s Job-Numbers Data 28 In this case, Plaintiff used the Job Browser Pro software program to generate job- 2 estimate for Table or Bench Assembler (DOT 739.687-182) in the “U.S. National” industry 3 is 962. (AR at 723.) Her evidence shows that the total 2021 employment estimate for Lens 4 Inserter (DOT 713.687-026), in the “U.S. National” industry is 24. (AR at 726.) At the 5 second hearing, VE 2 testified that he “primarily [relies] on Job Browser Pro,” but that “if 6 there are outliers in Job Browser Pro,” he would use his use “own labor market 7 information.” (AR at 55.) He testified that Job Browser Pro indicated “NA or not 8 applicable” for Bench or Table Worker and Lens Inserter. (Id.) He noted that he was “not 9 quite sure if they don’t have the data.” (Id.) As a result, he had to “rely on [his] professional 10 experience in looking at these types of jobs.” (Id.) He relied on companies in the local 11 area to give him information for the two jobs and had graduate students in the college 12 courses he teaches do labor market surveys. (Id.) He “believe[s] that the numbers are 13 reliable.” (Id. at 57.) VE Hatakeyama testified that Plaintiff could perform the 14 requirements of Table or Bench Assembler (DOT 739.687-182) and Lens Inserter (DOT 15 713.687-026). He testified that there were approximately 12,000 Bench Assembler jobs 16 and 11,000 Lens Inserter jobs available in the national economy, for a total of 23,000 jobs 17 in the national economy that the claimant would be able to do. (Id.) 18 In Thomas S., a district court from the District of Oregon held that results derived 19 from using “a software program the VE testified to using and [entering] the same DOT 20 positions for the same period” which showed fewer than 1000 positions for three 21 occupations compared to 323,000 positions derived from the VE’s search was significant 22 probative evidence. Thomas S. v. Comm’r, No. 6:22-cv-00833, 2023 WL 4074769, at *4 23 (D. Or. June 18, 2023). The plaintiff in that case had used Job Browser Pro, a source the 24 VE in that case also used, had entered the same DOT positions given by the VE, and had 25 retrieved job numbers for 2020, the period for which the VE had last updated his numbers. 26 Id. at *3-4. Although the VE had relied on Job Browser Pro and OASYS and the plaintiff’s 27 attorney had used only Job Browser Pro, the court explained that “the Ninth Circuit has not 28 held that the plaintiff must precisely replicate the VE’s methodology,” only that the 2 Berryhill, 869 F.3d 1040, 1052 (9th Cir. 2017) (remanding where the plaintiff submitted 3 vastly different job numbers from those provided by the VE, “presumably from the same 4 source”), and distinguishing Kilpatrick (affirming the ALJ’s denial of benefits where 5 plaintiff’s counsel used a suspect methodology and relied on seven-year-old data to 6 calculate job numbers). 7 Although Plaintiff’s job-number estimates were not produced by a VE, as was the 8 case in Wischmann and Kilpatrick, unlike the claimant’s attorney in Wischmann, Plaintiff’s 9 attorney did use the same software program and methodology both VEs used; VE 2 initially 10 used Job Browser Pro and VE 1 testified that it was one of several she used. Plaintiff’s 11 job-number estimates appear to have been derived from Job Browser Pro general queries 12 for the DOT job numbers identified by the VEs for Table or Bench Worker and Lens 13 Inserter. Furthermore, it does not appear from Plaintiff’s evidence that he applied any 14 filters and an updated version of the software, Job Browser Pro, Version 1.7.3.1, was used. 15 (ECF 19 at 12.) The method used by Plaintiff is more akin to the method used by the 16 plaintiff in Thomas S. The Court concludes that Plaintiff’s evidence is probative. See 17 Wischmann, 68 F.4th at 505. 18 The evidence is also significant: VE 2 testified that there were approximately 12,000 19 Bench Assembler jobs and 11,000 Lens Inserter jobs available in the national economy, 20 VE 1 testified there were 12,000 Table Worker jobs in the national economy, and Plaintiff’s 21 evidence shows 962 Table or Bench Assembler or Table Worker jobs and 24 Lens Inserter 22 jobs in the national economy. See Buck v. Berryhill, 869 F.3d 1040, 1046-47, 52 (9th Cir. 23 2017) (remanding to ALJ to resolve the conflict between VE job-number estimates and 24 claimant job-number estimates because “the vast discrepancy between the VE’s job 25 numbers and those tendered by [the claimant] [(the VE testified there were 843,800 jobs 26 nationally for three identified jobs and the claimant’s evidence showed 2,296)], presumably 27 from the same source, [was] simply too striking to be ignored). 28 Assuming Plaintiff’s job number estimates are accurate, the total number of national 2 to be considered significant numbers in the national economy “presents a close call.” 3 Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519, 529 (2014). Based on a total of 12,986 4 jobs, there is a reasonable probability that the outcome of Plaintiff’s proceeding may have 5 been different had the ALJ resolved the conflict between the VEs’ job numbers and 6 Plaintiff’s. See White v. Kijakazi, 44 F.4th 828, 837 (9th Cir. 2022). It is, therefore, 7 necessary to remand this case to the ALJ to consider Plaintiff’s evidence. Id. 8 2. Addresser Job and VE 1 and 2 Testimony 9 a. Addresser Job 10 Plaintiff also argues that VE 1’s testimony regarding the Addresser job fails to 11 satisfy the ALJ’s burden at step five. (ECF 19 at 9.) She suggests that VE 1’s testimony 12 that “a person might use some sort of computer to produce rather than a typewriter because 13 I think that nobody uses a typewriter anymore,” may have “[elevated] this unskilled job to 14 semi-skilled,” which she notes, VE 1 did not address. (Id. at 10.) She also suggests that 15 the Addresser job might be obsolete, and that the 7,000 national jobs identified by VE 1 16 are, therefore, not based on substantial evidence. (Id.) As Defendant points out, the Ninth 17 Circuit (by unpublished decision), has held that although the Addresser job has an 18 “antiquated reference to typewriters,” an ALJ was entitled to rely on a VE’s testimony that 19 the Addresser job existed in significant numbers in the national economy. Gallo v. Comm’r 20 of Soc. Sec. Admin., 449 F. App’x 648, 650 (9th Cir. 2011). The Court then noted that, 21 although VE testimony may become unreliable due to a conflict with the DOT, it does not 22 become unreliable because of its compliance with the DOT. Id. Here, VE 1’s testimony 23 was consistent with the DOT. Plaintiff has provided no legal basis for the Court to vacate 24 the ALJ’s decision on this issue. 25 b. VE 1 Testimony 26

27 4 VE 1 identified 5,000 Assembler jobs and 7,000 Addresser jobs nationally, which when combined with 28 Plaintiff’s estimates of 962 Table or Bench Assembler jobs and 24 Lens Inserter jobs nationally, totals 12,986. 2 because VE 1 testified that she calculates job numbers based on what is “fair” to both the 3 claimant and the Social Security Administration (ECF 19 at 9), is unconvincing. The Court 4 has reviewed the hearing transcript where VE 1 states that her testimony is consistent with 5 the Dictionary of Occupational Titles and the Selected Characteristics of Occupations. (AR 6 84.) Specifically, VE 1 testified that her methodology is to “start with the 7 OES/Occupational Employment Statistics,” then use sources including Job Browser Pro, 8 U.S. Publishing, County Business Patterns, and other information she gets from the 9 Department of Labor to choose jobs she knows exist. Then, based on those sources, she 10 comes up with a number of jobs that she believes is “fair to both the Social Security 11 Administration and the Claimant.” (AR 84.) Given her expertise and reliance on the above 12 sources, there is no merit to Plaintiff’s suggestion that VE 1’s use of the word “fair” 13 precludes her testimony from qualifying as substantial evidence. 14 c. VE 2 Testimony 15 Plaintiff suggests that VE 2’s testimony is not “substantial evidence of the number 16 of jobs that exist in the national economy,” Ford v. Saul, 950 F.3d 1141, 1159 (9th Cir. 17 2020), because VE 2 would not disclose the research and documents used when coming up 18 with his job numbers.” (ECF 19 at 13.) 19 There is no “‘categorical rule, applying to every case in which a vocational expert 20 refuses a request for underlying data,’ which would make an expert's testimony per se 21 unreliable.” Ford, 950 F.3d at 1159 (quoting Biestek v. Berryhill, 587 U.S. ___, ___ 22 (2019)). The inquiry is case-by-case, and the court must consider the evidence on the 23 record in each case, including whether “the expert’s testimony lacks markers of reliability” 24 and whether “the expert has no good reason to keep the data private.” Id. 25 Here, VE 2 refused to disclose his research and documents used to get his job 26 numbers because his students’ work is not for publication, and because he must abide by a 27 professional code of ethics and his job analysis for particular companies was “proprietary 28 information,” which he would not disclose to Plaintiff’s attorney. (Id. at 62.) These 2 VE 2’s testimony is otherwise not reliable. See id. 3 IV. ISSUE II 4 Plaintiff contends that the ALJ did not articulate clear and convincing reasons, 5 supported by substantial evidence, for rejecting Plaintiff’s pain and limitation testimony. 6 A. Legal Standard 7 The ALJ must engage “in a two-step analysis to determine whether a claimant’s 8 testimony regarding subjective pain or symptoms is credible.” Garrison v. Colvin, 759 9 F.3d 995, 1014 (9th Cir. 2014). At the first step, the ALJ must determine whether a 10 claimant has presented objective medical evidence of an underlying impairment which 11 could reasonably be expected to produce the pain or other symptoms alleged. Id. (citing 12 Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007)). If the claimant satisfies 13 the first step and there is no determination of malingering by the ALJ, “the ALJ must 14 provide ‘specific, clear and convincing reasons for’ rejecting the claimant’s testimony 15 regarding the severity of the claimant’s symptoms.” Treichler v. Comm’r of Soc. Sec. 16 Admin., 775 F.3d 1090, 1102 (9th Cir. 2014) (quoting Lingenfelter, 504 F.3d at 1036). 17 The Ninth Circuit “require[s] the ALJ to ‘specifically identify the testimony from a 18 claimant [the ALJ] finds not to be credible and . . . explain what evidence undermines 19 this testimony.” Id. at 1102 (internal quotation marks omitted) (omission and alterations 20 in original); Lambert v. Saul, 980 F.3d 1266, 1268 (9th Cir. 2020) (“[T]he ALJ must 21 identify the specific testimony that he discredited and explain the evidence 22 undermining.”); Smolen v. Chater, 80 F.3d 1273, 1284 (1996) (“The ALJ must state 23 specifically which symptom testimony is not credible and what facts in the record lead to 24 that conclusion.”); Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007) (“The ALJ must 25 provide clear and convincing reasons to reject a claimant’s subjective testimony, by 26 specifically identifying what testimony is not credible and what evidence undermines the 27 claimant’s complaints.”). 28 B. Parties’ Positions 2 from “really bad fatigue and really bad muscle and joint pain.” (AR 74.) She described 3 fatigue as “the most debilitating” and “all-consuming” of her symptoms. (Id.) When 4 Plaintiff suffers from extreme fatigue during the day, she does not have the energy to 5 dress, bathe, or to care for her hair or shave. (AR 390.) Sometimes she goes almost a 6 week before she has the energy to do any of those things. (Id.) 7 Plaintiff contends the ALJ failed to offer clear and convincing reasons for rejecting 8 her testimony about the severity of her fatigue. (ECF 19 at 24.) Defendant argues that 9 the ALJ articulated valid reasons for discounting Plaintiffs subjective complaints. (Id. at 10 29.) The ALJ compared Plaintiff’s subjective allegations to the objective medical 11 evidence and other evidence and provided 11 reasons for not fully adopting Plaintiff’s 12 allegations of disabling fatigue, muscle and joint pain. (AR 33-34.) 13 C. Analysis 14 The ALJ found that, “After careful consideration of the evidence, the undersigned 15 found that the claimant’s medically determinable impairments could reasonably be 16 expected to cause some of the alleged symptoms; however, the claimant’s statements 17 concerning the intensity, persistence and limiting effects of these symptoms were not 18 entirely consistent with the medical evidence and other evidence in the record for the 19 reasons explained in this decision.” (AR 35.) 20 Of significance, the ALJ never identified Plaintiff’s allegations that she suffered 21 from severe fatigue before he discounted them. The Ninth Circuit “require[s] the ALJ to 22 ‘specifically identify the testimony from a claimant [the ALJ] finds not to be credible and 23 . . . explain what evidence undermines this testimony.” Treichler, 775 F.3d at 1102. His 24 failure to specify this testimony before discounting it is legal error. 25 Further, the ALJ offered 11 specific and legitimate reasons for discounting 26 Plaintiff’s testimony, the ALJ fails to indicate which evidence undermines the fatigue 27 testimony. However, he does not even mention in those 11 reasons her alleged symptom 28 of severe fatigue. (AR 33-34.) Nor does the ALJ explain what evidence undermines this 2 a disabling level of impairment of her RFC. But not only does he not identify how her 3 daily activities contradict her testimony of suffering from severe fatigue, he also doesn’t 4 address her statements that when Plaintiff suffers from extreme fatigue, she does not have 5 the energy to dress, bathe, hair care, or shave. (AR 390.) Sometimes she goes almost a 6 week before she has the energy to do the aforementioned personal care. (AR 390.) See 7 Cobb v. Colvin, No. CV 14-0655 RNB, 2014 WL 5659414, *2 (C.D. Cal. Nov. 4, 2014) 8 (holding that the ALJ erred by finding that the plaintiff’s statements that were 9 inconsistent with the ALJ RFC were not credible because the ALJ “ignored the fully 10 context of [the] plaintiff’s statements about his daily activities, which indicated that he 11 performed them on a limited basis with help and rest”). 12 The ALJ’s remaining 10 reasons address other symptoms, but not her testimony 13 about her fatigue. (See AR 33-34.) Defendant attempts to justify this lack of 14 explanation, “Given the questionable nature as to the cause of Plaintiff’s allegations of 15 fatigue and joint and muscle pain, the ALJ properly considered all of the physical 16 objective evidence in assessing her statements.” (ECF 19 at 32.) The ALJ has the 17 obligation to not only specify what testimony he seeks to discount, but also what 18 evidence undermines that testimony. The ALJ failed to do both as regards Plaintiff’s 19 testimony about her severe fatigue. 20 Further, the Court concludes that remand is required. “The rare circumstances that 21 result in a direct award of benefits are not present in this case.” See Leon v. Berryhill, 22 880 F.3d 1041, 1047 (9th Cir. 2017).5 As discussed above, the ALJ failed to properly 23

24 25 5 There are three requirements for remanding a case to the agency for an immediate award of benefits. Brown-Hunter v. Colvin, 806 F.3d 487, 495 (9th Cir. 2015). This case satisfies the first requirement 26 because the ALJ neglected to “provide legally sufficient reasons for rejecting [fatigue] evidence . . . [from] claimant testimony.” See id. The second requirement is that the Court consider “whether there 27 are ‘outstanding issues that must be resolved before a disability determination can be made’ and whether further administrative proceedings would be useful.’” Leon, 880 F.3d at 1047 (quoting Treichler, 775 28 F.3d at 1101). “In evaluating this issue, [the Court] consider[s] whether the record as a whole is free from conflicts, ambiguities, or gaps, whether all factual issues have been resolved, and whether the 1 || evaluate Plaintiff's subjective testimony. The ALJ’s findings are inadequate and further 2 ||administrative review may remedy the ALJ’s errors, making remand appropriate in this 3 ||case. The Court is not going to create reasons that the ALJ did not give or support in his 4 ||findings. Further administrative proceedings are necessary to allow the ALJ to do this 5 ||evaluation. The Court concludes that remand is proper in this case, since not all factual 6 ||issues have been resolved and it is not clear whether the Plaintiff is entitled to benefits 7 || under the applicable legal rules. See Treichler, 775 F.3d at 1104-05. 8 V. CONCLUSION 9 The ALJ’s decision is VACATED. This case is REMANDED to the ALJ for 10 || further proceedings consistent with this opinion. 1] 12 || IT ISSO ORDERED. 13 ||Dated: September 26, 2023 : , p / / on. Bernard G. Skomal 15 United States Magistrate Judge 16 17 18 19 20 21 22 23 24 — 26 || claimant’s entitlement to benefits is clear under the applicable legal rules.” Treichler, 775 F3d at 1104- 05. “Where... ALJ makes a legal error, but the record is uncertain and ambiguous, the proper 27 || approach is to remand the case to the agency.” Jd. at 1105. Here, where the ALJ’s findings regarding 28 Plaintiff's symptom testimony are inadequate, remand for further findings on credibility is appropriate. See Byrnes v. Shalala, 60 F.3d 639, 642 (9th Cir. 1995).