Christopher Y. v. Frank Bisignano, Commissioner of Social Security

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 CHRISTOPHER Y.1, Case No. 2:25-cv-01544-PD

12 Plaintiff, MEMORANDUM OPINION 13 v. AND ORDER VACATING AGENCY DECISION

14 FRANK BISIGNANO, Commissioner 15 of Social Security, 16 Defendant. 17 18 19 Plaintiff challenges the denial of his application for Supplemental 20 Security Income. For the reasons stated below, the decision of the 21 Administrative Law Judge is vacated and the Court remands this matter on 22 an open record for further proceedings. 23 24 25

26 1 Plaintiff’s name is partially redacted in accordance with Fed. R. Civ. P. 5.2(c)(2)(B) 27 and the recommendation of the United States Judicial Conference Committee on Court Administration and Case Management. 28 1 I. Pertinent Procedural History and Disputed Issues 2 On October 17, 2022, Plaintiff filed a Title XVI application for 3 supplemental security income, alleging that he became disabled on June 1, 4 2021. Administrative Record (“AR”) 17, 235-247.2 Plaintiff later amended his 5 alleged onset date to October 17, 2022. AR 17. His application was denied 6 initially on December 10, 2022, and upon reconsideration on October 26, 2023. 7 AR 17, 111, 128. He requested a hearing, which was held via telephone on 8 September 5, 2024, before an Administrative Law Judge (“ALJ”). AR 38-73. 9 Plaintiff appeared with counsel, and the ALJ heard testimony from Plaintiff 10 and a vocational expert (“VE”). Id. On October 11, 2024, the ALJ issued a 11 decision that Plaintiff was not disabled within the meaning of the Social 12 Security Act (“SSA”). AR 17-31. On January 3, 2025, the Appeals Council 13 denied Plaintiff’s request for review, rendering the ALJ’s decision the final 14 decision of the Commissioner. AR 1-6. 15 The ALJ followed the five-step sequential evaluation process to assess 16 whether Plaintiff was disabled under the Social Security Act. Lester v. 17 Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995), superseded on other grounds by 18 regulation as stated by Farlow v. Kijakazi, 53 F.4th 485, 488 (9th Cir. 2022); 19 20 C.F.R. §§ 404.1520(a), 416.920(a). At step one, the ALJ found that Plaintiff 20 has not engaged in substantial gainful activities since October 17, 2022, the 21 application date. AR 19 ¶ 1. At step two, the ALJ found that Plaintiff has the 22 following severe impairments: “degenerative disc and facet disease of the 23 cervical spine, degenerative joint disease of the right great toe, scapholunate 24 dissociation of the right wrist, chronic obstructive pulmonary disease, anxiety 25 disorder, major depressive disorder, and posttraumatic stress disorder (20 26

27 2 The Administrative Record is CM/ECF Docket Numbers 17-1 through 17-8. 28 Plaintiff’s opening brief is at Docket Number 20 and Defendant’s Brief is at Docket 1 CFR 416.920(c)).” AR 19 ¶ 2. The ALJ found that these impairments 2 significantly limit Plaintiff’s ability to perform basic work activities. AR 20. 3 At step three, the ALJ found that Plaintiff does not have an impairment 4 or combination of impairments that meets or medically equals the severity of 5 one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 6 CFR 416.920(d), 416.925, and 416.926). AR 20 ¶ 3. 7 Before proceeding to step four, the ALJ determined that Plaintiff has 8 the Residual Functional Capacity (“RFC”) to perform light work with the 9 following limitations: 10 lift, carry, push, and pull twenty pounds occasionally and ten 11 pounds frequently) except that he can only occasionally push or pull with the dominant upper extremity. He can sit for at least six 12 hours in an eight-hour workday and stand and walk for six hours 13 in an eight-hour workday. He can occasionally climb stairs and ramps but can never climb ladders, ropes, or scaffolds. He can 14 frequently stoop, crouch, and kneel. He can occasionally crawl. He 15 is limited to frequent handling with the dominant upper extremity. He is limited to occasional overhead reaching, but 16 forward and lateral reaching is not limited. He must avoid more 17 than occasional exposure to pulmonary irritants, such as fumes, odors, dust, gases, and poor ventilation. The claimant is 18 able to understand, remember, and carry out simple instructions 19 and make commensurate simple, work-related decisions. He is able to maintain attention and concentration to perform and 20 persist at simple tasks at a consistent pace for two hours at a time 21 without requiring redirection to task. He requires work that does not involve interaction with the general public. Interactions with 22 co-workers and supervisors should be superficial. He requires work involving no more than occasional change in the routine 23 work setting and no more than occasional independent goal 24 setting or planning. 25 AR 22 ¶ 4. 26 At step four, the ALJ found that Plaintiff is unable to perform any past 27 relevant work. AR 30 ¶ 5. At step five, considering Plaintiff’s age, education, 28 work experience, and RFC, the ALJ found that there are jobs which exist in 1 significant numbers in the national economy that Plaintiff can perform, in the 2 occupations of “garment sorter”, “merchandise marker”, and “laundry folder.” 3 AR 30 ¶ 9, 31. Accordingly, the ALJ concluded that Plaintiff has not been 4 under a disability, as defined in the SSA, since October 17, 2022, the date the 5 application was filed. AR 31 ¶ 10. 6 Plaintiff raises three issues: (1) Whether the ALJ properly evaluated 7 the medical opinions of the consulting psychologists; (2) Whether the ALJ 8 properly evaluated Plaintiff’s subjective symptom testimony; and (3) Whether 9 the ALJ properly found that Plaintiff could perform other work at Step Five. 10 Dkt. No. 20 at 2. 11 II. Standard of Review 12 Under 42 U.S.C. § 405(g), a district court may review the agency’s 13 decision to deny benefits. A court will vacate the agency’s decision “only if the 14 ALJ’s decision was not supported by substantial evidence in the record as a 15 whole or if the ALJ applied the wrong legal standard.” Coleman v. Saul, 979 16 F.3d 751, 755 (9th Cir. 2020) (citations omitted). “Substantial evidence means 17 more than a mere scintilla but less than a preponderance; it is such relevant 18 evidence as a reasonable person might accept as adequate to support a 19 conclusion.” Id.; see also Biestek v. Berryhill, 587 U.S.97, 103 (2019) (same). 20 It is the ALJ’s responsibility to resolve conflicts in the medical evidence 21 and ambiguities in the record. Ford v. Saul, 950 F.3d 1141, 1149 (9th Cir. 22 2020). Where this evidence is “susceptible to more than one rational 23 interpretation” the ALJ’s reasonable evaluation of the proof should be upheld. 24 Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008); Tran v. 25 Saul, 804 F. App’x 676, 678 (9th Cir. 2020).3 26

27 3 Although statements in unpublished Ninth Circuit opinions “may prove useful [ ] 28 as examples of the applications of settled legal principles,” the Ninth Circuit has 1 Error in Social Security determinations is subject to harmless error 2 analysis. Ludwig v. Astrue, 681 F.3d 1047, 1054 (9th Cir. 2012). Error is 3 harmless if “it is inconsequential to the ultimate nondisability determination” 4 or, despite the legal error, “the agency’s path is reasonably discerned.” 5 Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014). 6 III. Discussion 7 A. The ALJ Failed to Properly Evaluate the Medical 8 Opinions of the Consulting Psychologists 9 Plaintiff argues that the ALJ failed to properly evaluate the medical 10 opinions of the consulting psychologists D. Thigpen, Psy.D., David LaCourt, 11 Ph.D. and Cynthia Barton, M.A. Dkt. No. 20 at 8-17. Plaintiff contends that 12 the ALJ failed to adequately consider the supportability and consistency 13 factors in evaluating Dr. Thigpen, Dr. LaCourt and Ms. Barton’s opinions. Id. 14 at 7-17. The Commissioner disagrees and argues that the ALJ properly 15 analyzed the consultative examining psychologists’ opinions. Dkt. No. 23 at 9- 16 12. For the reasons stated below, the Court agrees with Plaintiff. 17 1. Applicable Law 18 An RFC is “an assessment of an individual’s ability to do sustained 19 work-related physical and mental activities in a work setting on a regular and 20 continuing basis.” Social Security Ruling 96-8P, 1996 WL 374184, at *1 21 (1996). It reflects the most a claimant can do despite their limitations. 22 Smolen v. Chater, 80 F.3d 1273, 1291 (9th Cir. 1996). An RFC determination 23 must be based on all of the relevant evidence, including the diagnoses, 24 treatment, observations, and opinions of medical sources, such as treating and 25 examining physicians. 20 C.F.R. § 404.1545. It is the ALJ’s responsibility to 26

27 particularly as to issues of law. Grimm v. City of Portland, 971 F.3d 1060, 1067 (9th 28 Cir. 2020) (“a nonprecedential disposition is not appropriately used ... as the pivotal 1 resolve conflicts in the medical evidence and ambiguities in the record. Ford, 2 950 F.3d at 1149. Where this evidence is “susceptible to more than one 3 rational interpretation” the ALJ’s reasonable evaluation of the proof should be 4 upheld. Ryan, 528 F.3d at 1198. 5 The ALJ, not the claimant’s physician, “is responsible for translating 6 and incorporating clinical findings into a succinct RFC.” Rounds v. Comm’r 7 Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015). In rendering the RFC, 8 the ALJ “must articulate a ‘substantive basis for rejecting a medical opinion 9 or crediting one medical opinion over another.’” Sandra B. v. Kijakazi, 2022 10 WL 2651981, at *2 (C.D. Cal. Jul. 8, 2022) (citing Garrison v. Colvin, 759 F.3d 11 995, 1012 (9th Cir. 2014)). 12 For claims filed on or after March 27, 2017, the Social Security 13 Administration’s new regulations, which alter the framework for how an ALJ 14 must evaluate medical evidence, apply. See Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844, 2017 WL 168819, at 5844- 15 45 (Jan. 18, 2017); Loriel C. v. Saul, 2020 WL 4340742, at *11 (E.D. Wash. 16 July 28, 2020). ALJs are now required to articulate “how persuasive [the 17 ALJ] find[s] all of the medical opinions and all of the prior administrative 18 medical findings.” 20 C.F.R. §§ 404.1520c(a), (b). 19 The factors for considering persuasiveness include supportability, 20 consistency, relationship with claimant (e.g. length of the treatment 21 relationship, frequency of examinations, etc.), specialization, and other factors 22 that tend to support or contradict a medical opinion. See 20 C.F.R. 23 §§ 404.1520c(c)(1)-(5). While all factors should be considered, the ALJ must 24 articulate how he or she considered the factors of supportability and 25 consistency. See 20 C.F.R. § 404.1520c(b)(2); Buethe v. Comm’r of Soc. Sec., 26 2021 WL 1966202, at *3-4 (E.D. Cal. May 17, 2021) (explaining that while an 27 ALJ is required to consider all factors, the ALJ must at least explain how she 28 1 most important). 2 The ALJ “must do so in sufficient detail to allow a reviewing court to 3 determine whether that reasoning is free from legal error.” Robert D. v. 4 Kijakazi, 2021 WL 5905734, at *4 (S.D. Cal. Dec. 14, 2021). “The ‘more 5 relevant the objective medical evidence and supporting explanations 6 presented’ and the ‘more consistent’ with evidence from other sources, the 7 more persuasive a medical opinion or prior finding is.” Christopher F. v. 8 Comm’r of Soc. Sec., 2020 WL 7022484, at *2 (W.D. Wash. Nov. 30, 2020) 9 (quoting 20 C.F.R. §§ 404.1520c(C)(1)-(2)). Under the new regulations, an 10 ALJ “cannot reject an examining or treating doctor’s opinion as unsupported 11 or inconsistent without providing an explanation supported by substantial 12 evidence.” Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022). 13 An RFC is defective if it fails to take a plaintiff’s limitations into 14 account. Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009). However, “there is no requirement that the RFC recite medical 15 opinions verbatim, rather the ALJ is responsible for translating and 16 incorporating medical findings into a succinct RFC.” McIntosh v. Colvin, 2018 17 WL 1101102, at *5 (S.D. Cal. Feb. 26, 2018); Bufkin v. Saul, 836 F. App’x 578, 18 579 (9th Cir. 2021) (“ALJs need not seek the opinion of a medical expert every 19 time they review new medical evidence and make a RFC determination.”); see 20 also Foster v. Kijakazi, 2022 WL 3230472, at *2 (9th Cir. 2022) (“An ALJ 21 considers opinions from medical sources on the issue of a claimant’s RFC, but 22 the final responsibility for deciding this issue is reserved to the 23 Commissioner.”) (citations, internal quotation marks, and alterations 24 omitted). Finally, it is well established that RFC determinations are legal 25 decisions, not medical opinions. Valerie C. v. Berryhill, 2019 WL 450675, at 26 *6 (C.D. Cal. Feb. 5, 2019). 27 28 1 2. Dr. Thigpen 2 On May 26, 2021, consultative examining psychologist Dr. Thigpen 3 evaluated Plaintiff via video conference. AR 575. Plaintiff’s chief complaint 4 was “anxiety and being traumatized after doing 15 years in prison” and he 5 stated he has “PTSD.” AR 575. Dr. Thigpen reviewed a report from Mule 6 Creek Correctional Facility along with a Function Report Adult. AR 575. Dr. 7 Thigpen performed a mental status examination noting that Plaintiff was well 8 mannered and polite; he appeared organized and coherent; and that no 9 auditory and/or visual hallucinations, or delusions were noted and 10 demonstrated during the interview. AR 577. Plaintiff denied suicidal or 11 homicidal ideation and was oriented by four. AR 577. Dr. Thigpen noted that 12 throughout the interview, Plaintiff’s attitude and behaviors were neutral; his 13 speech was normal in terms of prosody, rate, and rhythm; and his thought 14 processes were linear, logical and goal oriented. AR 577. Dr. Thigpen found 15 that Plaintiff’s memory appeared impaired and his estimated level of 16 intelligence based on presentation appeared average. AR 577. Based on 17 Plaintiff’s report of symptoms along with his presentation and Dr. Thigpen’s 18 clinical observations, Dr. Thigpen diagnosed Plaintiff with Generalized 19 Anxiety Disorder. AR 578. Dr. Thigpen opined that Plaintiff had mild 20 impairments in performing simple and repetitive tasks; and moderate 21 impairments in performing detailed and complex tasks, accepting instructions from supervisors, interacting with coworkers and the public, performing work 22 activities consistently without special instructions, maintaining regular 23 attendance, completing a normal workday or workweek, and dealing with 24 usual workplace stress. AR 578-579. 25 26 3. Dr. LaCourt and Ms. Barton 27 On February 23, 2023, Cynthia Barton, M.A., under the supervision of 28 1 psychological evaluation on Plaintiff. AR 646-650. Plaintiff reported he had 2 served 16 years in prison and had been out for two years. AR 647. Plaintiff 3 reported experiencing mental health symptoms including mania, daily 4 depression, a history of two suicide attempts, auditory and visual 5 hallucinations, flashbacks and distressing memories related to prison trauma, 6 constant anxiety, and gender dysphoria. AR 647-648. Plaintiff reported that 7 he received telehealth care with a psychiatrist and psychologist and had no 8 history of inpatient psychiatric treatment. AR 648. 9 Dr. LaCourt and Ms. Barton conducted a mental status examination 10 and noted that Plaintiff’s clothing was appropriate and in decent repair, but 11 his grooming and general personal hygiene were lacking. AR 649. They noted 12 that Plaintiff’s attention and concentration were in the low range, and his 13 recall and memory were not grossly intact. AR 649. Dr. LaCourt and Ms. 14 Barton found that Plaintiff presented with limited eye contact and an angry facial expression; he was guarded and irritable throughout the exam but tried 15 to answer the questions; and the questions had to be consistently repeated in 16 order to obtain information related to the subject. AR 649. Dr. LaCourt and 17 Ms. Barton noted that Plaintiff’s affect was restricted, with a depressed, 18 pessimistic mood; his speech was fully understandable, with no noted tone, 19 loudness or pacing issues; and his thought content was grossly consistent with 20 the presenting mood, based upon his verbal responses. AR 649-650. Their 21 clinical impression of Plaintiff was “below average intellectual functioning.” 22 AR 650. Dr. LaCourt and Ms. Barton diagnosed Plaintiff with PTSD with 23 panic attacks, major depressive disorder, recurrent episode, with psychotic 24 features, and gender dysphoria. AR 650. Dr. LaCourt and Ms. Barton opined 25 that Plaintiff had marked limitations in understanding and remembering 26 detailed or complex instructions, sustaining concentration and task 27 persistence for carrying out instructions, interacting with supervisors and 28 1 workplace, and using public transportation or traveling to unfamiliar places. 2 AR 650. They also opined that Plaintiff had moderate limitations in 3 understanding and remembering short/simple instructions and does not 4 present with sufficient decision-making abilities to appropriately manage 5 funds. AR 650. 6 4. The ALJ’s Decision 7 The ALJ noted that Dr. Thigpen opined that Plaintiff had mild 8 impairment in his ability to perform simple and repetitive tasks and moderate 9 impairments in all other areas of assessed work-related mental functioning, 10 including ability to maintain regular attendance and complete a normal 11 workday and workweek. AR 29 (citing AR 578-579). The ALJ found Dr. 12 Thigpen’s opinion partially persuasive, to the extent that it is consistent with 13 and supports the RFC finding for a range of unskilled work with social and 14 other limitations. AR 29. The ALJ, however, found the “degree of limitation 15 opined is not supported by or consistent with the medical and other evidence.” 16 AR 29. The ALJ further found that Dr. Thigpen’s opinion is not supported by 17 her mostly unremarkable clinical findings and is inconsistent with the lack of 18 significant mental health treatment. AR 29. 19 The ALJ also noted that Dr. LaCourt and Ms. Barton evaluated 20 Plaintiff in February 2023, and opined that Plaintiff had moderate limitations 21 in understanding and remembering short/simple instructions; marked 22 limitations in understanding and remembering detailed/complex instructions; 23 sustained concentration/task persistence for carrying out instructions; 24 interacting with the public, coworkers, and supervisors; adapting to changes 25 in the workplace; and use of public transportation/travel to unfamiliar places; 26 and did not present with sufficient decision-making abilities to appropriately 27 manage funds. AR 29 (citing AR 650). The ALJ found Ms. Barton and Dr. 28 LaCourt’s opinion “not persuasive, although it is somewhat supported by the 1 examination findings, because it is inconsistent with the record as a whole.” 2 AR 29. The ALJ found that “this opinion is based on a one-time examination 3 that is not at all consistent with the rest of the record as outlined above.” AR 4 29. The ALJ explained that Plaintiff does not receive mental health 5 treatment and Plaintiff’s behavior and presentation at the psychological 6 consultative examination was very different from his presentation at the 7 hearing. AR 29. The ALJ further noted that Plaintiff was able to sustain 8 semi-skilled work activity as a light truck driver for over six months as 9 recently as 2022 and his presentation at the consultative examination seemed 10 to be a clear overstatement of his limitations. AR 29. 11 5. Analysis 12 In finding Dr. Thigpen’s opinion partially persuasive and finding Ms. 13 Barton and Dr. LaCourt’s opinion not persuasive, the ALJ was required to 14 provide an explanation, supported by substantial evidence, articulating her 15 consideration of both the supportability and consistency factors. See 20 C.F.R. 16 §§ 404.1520c(b)(2), 416.920c(b)(2); Woods, 32 F.4th at 787; Kitchen v. 17 Kijakazi, 82 F.4th 732, 739 (9th Cir. 2023). As detailed below, however, the 18 ALJ failed to do so. 19 a) Supportability 20 21 First, the ALJ found that the opinion of Dr. Thigpen was “partially 22 persuasive” but stated that the degree of limitation that she opined was 23 present was “not supported by [the Plaintiff’s] mostly unremarkable clinical findings and is inconsistent with the lack of significant mental health 24 treatment.” AR 29. The ALJ, however, fails to explain her reasoning for such 25 conclusion. Id. While the ALJ found Dr. Thigpen’s opinion was not supported 26 by the clinical findings, she failed to point out any clinical findings made by 27 Dr. Thigpen that would be unsupportive of her opinion or explain why any 28 1 limitation set forth by Dr. Thigpen was unsupported. AR 29. 2 Further, the ALJ’s decision ignores Dr. Thigpen’s detailed examination 3 findings, including Plaintiff’s impaired memory, poor sleep, and anxiety- 4 related irritability, which directly support the opined moderate limitations. 5 AR 575-579. “The rule allowing an ALJ to reject opinions based on self- 6 reports does not apply in the same manner to opinions regarding mental 7 illness.” Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017). While 8 psychiatric evaluations “may appear subjective, especially compared to 9 evaluation in other medical fields,” “the nature of psychiatry” is that mental 10 assessments “will always depend in part on the patient’s self-report, as well as 11 on the clinician’s observations of the patient.” Id.; accord Nygren v. Saul, 854 12 F. App’x 874, 876 (9th Cir. 2021). 13 ALJs must provide an explanation supported by substantial evidence 14 for why an examining or treating doctor’s opinion is unsupported by the record. Woods, 32 F.4th at 792. Ultimately, the ALJ’s failure to explain how 15 and to what extent Dr. Thigpen’s findings did not support her medical opinion 16 constitutes error. See Wheeler v. Kijakazi, 2023 WL 4146215, at *3 (E.D. Cal. 17 June 23, 2023) (finding ALJ’s supportability analysis insufficient where ALJ 18 rejected treating physician’s opinion without explaining “to what extent 19 [physician’s] own treatment records did not support [his] medical opinions”); 20 Sandra B., 2022 WL 2651981, at *6 (“the ALJ’s conclusory statement 21 otherwise was insufficient as an explanation for how the factor of 22 supportability was considered. ... The ALJ’s single-sentence statement fails to 23 substantively engage with Dr. Burnett’s assessment.”); see also Walker v. 24 Comm'r of Soc. Sec. Admin., 2024 WL 64784, at *4 (D. Nev. Jan. 4, 2024) (by 25 failing to include record citations to support his conclusion regarding 26 supportability and consistency, the “ALJ therefore failed to ‘build an accurate 27 and logical bridge’ from the evidence to his conclusions, ... Indeed, in order to 28 1 pertains to which factor, and further guess where in the record the ALJ found 2 evidence to support his findings. ... This, in itself, is reason to remand for a 3 new decision”) (internal citation omitted). 4 While it is sometimes possible to ascertain whether the ALJ was 5 analyzing supportability or consistency from the context of the ALJ’s 6 reasoning and whether the ALJ compared the medical opinion to the source’s 7 own treatment notes and objective findings or other evidence in the record, see 8 Woods, 32 F.4th at 793 n.4, here that is not the case because the ALJ fails to 9 explain the evidence on which she relied in reaching the conclusion that Dr. 10 Thigpen’s opinion is only partially persuasive and is “not supported by or 11 consistent with the medical and other evidence.” AR 29. Hence, because the 12 ALJ was required to provide an explanation, supported by substantial 13 evidence, of her consideration of the supportability factor, the ALJ’s failure to 14 explain her findings as to the supportability of Dr. Thigpen’s opinion was error. See Woods, 32 F.4th at 787. 15 The Court notes that, elsewhere in the ALJ’s opinion, she briefly 16 summarized Dr. Thigpen’s examination of Plaintiff and does cite to the record. 17 AR 25-26. However, these citations do not sufficiently connect to the ALJ’s 18 supportability analysis. See Tina L. R. v. Kijakazi, 2022 WL 6632198, at *5 19 (C.D. Cal. July 25, 2022) (when the ALJ made findings about a doctor’s 20 treatment records “in reviewing the overall record,” the court found that this 21 was insufficient to support his supportability and consistency analysis 22 because, “while the ALJ may have made these findings, she did not cite these 23 records in dismissing Dr. Weiss’s opinion. The Court is ‘constrained to review 24 the reasons the ALJ asserts.’”). 25 Next, the ALJ found that the opinion of Dr. LaCourt and Ms. Barton 26 was not persuasive, even though the ALJ found their opinion was “somewhat 27 supported by the examination findings,” because it is “inconsistent with the 28 1 consistent with the record as a whole.” AR 29. Here, the ALJ acknowledged 2 that Dr. LaCourt and Ms. Barton recorded positive examination findings that 3 4 somewhat supported their marked limitations; thus, the ALJ does not appear 5 to challenge the supportability factor of their opinion but rather challenges 6 the consistency factor which will be discussed below. 7 b) Consistency 8 As to the consistency factor, the ALJ found that Dr. Thigpen’s opinion 9 was inconsistent with the medical and other evidence and with the “lack of 10 significant mental health treatment.” AR 29. The ALJ, however, did not offer 11 an explanation, supported by substantial evidence, as to how Dr. Thigpen’s 12 opinion was inconsistent with the medical and other evidence in the record. 13 AR 29. The ALJ’s conclusion does not provide the level of specificity 14 necessary for Plaintiff or this Court to evaluate the ALJ’s reasoning. The ALJ 15 does not cite to any medical records to support her conclusions. See Treichler 16 v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1103 (9th Cir. 2014) (“Although 17 the ALJ’s analysis need not be extensive, the ALJ must provide some 18 reasoning in order for us to meaningfully determine whether the ALJ's 19 conclusions were supported by substantial evidence.”); Beltran v. Kijakazi, 20 2023 WL 6164105, at *5 (E.D. Cal. Sept. 21, 2023) (finding that the ALJ did 21 not “clearly address the consistency factor” because they did not “explain the 22 extent to which the limitations identified by [the opining physician] are 23 inconsistent with other evidence in the record, including the opinions from 24 other medical sources and nonmedical evidence.”); see also Rios v. O'Malley, 25 2024 WL 280602, at *5 (E.D. Cal. Jan. 25, 2024) (remanding when ALJ did 26 not “provide the requisite explanation” regarding consistency). “[A]n ALJ 27 cannot reject an examining or treating doctor’s opinion as unsupported or 28 inconsistent without providing an explanation supported by substantial 1 evidence.” Woods, 32 F.4th at 792. 2 To the extent the ALJ penalizes Plaintiff with regard to the lack of 3 significant mental health treatment, Plaintiff argues that the ALJ disregards 4 Plaintiff’s documented barriers to care, such as incarceration for several 5 years, homelessness, limited financial resources, and reliance on public 6 assistance, rendering this reasoning legally insufficient. See AR 46, 47, 61, 7 711. The Ninth Circuit has “criticized the use of a lack of treatment to reject 8 mental complaints both because mental illness is notoriously underreported 9 and because ‘it is a questionable practice to chastise one with a mental 10 impairment for exercise of poor judgment in seeking rehabilitation.’ ” 11 Regennitter v. Comm'r of Soc. Sec. Admin., 166 F.3d 1294, 1299–300 (9th Cir. 12 1999) (citing Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996)). 13 “Disability benefits may not be denied because of the claimant’s failure to 14 obtain treatment he cannot obtain for lack of funds.” Gamble v. Chater, 68 F.3d 319, 321 (9th Cir. 1995). Accordingly, the ALJ’s consistency finding as to 15 Dr. Thigpen was not supported by substantial evidence. 16 Next, the ALJ discussed the consistency factor as to Dr. LaCourt and 17 Ms. Barton finding that their opinion is “inconsistent with the record as a 18 whole” and “based on a one-time examination that is not at all consistent with 19 the rest of the record as outlined above.” AR 29. The ALJ did not offer any 20 explanation as to how Dr. LaCourt and Ms. Barton’s opinion was inconsistent 21 with the record as a whole. AR 29. The ALJ does not cite to any medical 22 records to support her conclusions. See Rios, 2024 WL 280602, at *5. The 23 ALJ’s conclusion does not provide the level of specificity necessary for Plaintiff 24 or this Court to evaluate the ALJ’s reasoning. 25 Further, to the extent the ALJ finds Dr. LaCourt and Ms. Barton’s 26 opinion unpersuasive based on a one-time examination, the ALJ failed to 27 provide any discussion comparing it to the rest of the record or any other 28 1 one examination is not, absent such disagreement with the findings of other 2 physicians, a sufficient basis to reject their conclusions. See Ford v. Berryhill, 3 2018 WL 2002806, at *2 (W.D. Wash. Apr. 30, 2018) (“If the court were to 4 reject medical opinions every time they were based on a single examination, 5 then only opinions from treating doctors would be considered, contrary to 6 federal regulation.”). 7 The ALJ also explained that Plaintiff “does not receive mental health 8 treatment” and that his “behavior and presentation at the psychological 9 consultative examination was very different from his presentation at the 10 hearing.” AR 29. As discussed above, the ALJ has again improperly 11 penalized Plaintiff for failing to obtain mental health treatment but has 12 erroneously failed to consider his reasons for the lack of mental health care. 13 See AR 46, 47, 61, 711. Plaintiff further argues with respect to his 14 “appearance at the hearing,” that the ALJ did not conduct a mental status examination. Dkt. No. 20 at 16 (citing AR 38-73). The Commissioner 15 responds that the ALJ explained that Plaintiff’s presentation to Dr. LaCourt 16 and Ms. Barton was inconsistent with his ability to maintain concentration to 17 testify at the hearing. Dkt. No. 23 at 11 (citing AR 29). The ALJ, however, 18 did not provide this explanation and was not present at Plaintiff’s mental 19 status examination. Moreover, both Plaintiff and the ALJ were in their own 20 private locations during the social security hearing which was conducted by 21 telephone. AR 40. Plaintiff argues that his ability to function on the 22 telephone is not comparable to his ability to function at work or in a 23 consultative examination. Dkt. No. 20 at 16. The Court agrees with Plaintiff. 24 The ALJ’s lay analysis of Plaintiff’s hearing presentation, when he was not 25 even able to see the Plaintiff, does not provide any support to the ALJ’s 26 conclusion that the opinion of Dr. LaCourt and Ms. Barton is not consistent 27 with the record. 28 1 opinion inconsistent because Plaintiff was able to sustain work activity as a 2 light truck driver in 2022, Plaintiff argues that this was prior to the relevant 3 time period for his disability application. AR 29. This is not a valid reason to 4 find Dr. LaCourt and Ms. Barton’s opinion inconsistent with the record. 5 Accordingly, the ALJ’s evaluation of the consistency factor as to Dr. LaCourt 6 and Ms. Barton’s opinion was not based on substantial evidence. 7 In sum, the ALJ erred in evaluating the persuasiveness of Dr. Thigpen, 8 Dr. LaCourt and Ms. Barton’s opinions by failing to properly address the 9 supportability and consistency factors. Had the ALJ properly considered the 10 persuasiveness of those opinions, the ALJ could have set an RFC that would 11 lead to a finding that Plaintiff is unemployable. As such, the ALJ’s error was 12 not “inconsequential to the ultimate nondisability determination.” Treichler, 13 775 F.3d at 1099. 14 B. Remaining Issues and Remedy 15 Plaintiff contends that the ALJ’s decision is also erroneous because the 16 ALJ failed to properly assess his subjective symptom testimony and failed to 17 properly assess whether Plaintiff could perform other work at Step Five. Dkt. 18 No. 20 at 17- 24. Because the Court concludes that this case be remanded on 19 an open record, the Court declines to address Plaintiff’s other claim of error. 20 Google LLC v. Oracle America, Inc., 591 U.S. 1, 20 (2021) (appellate courts 21 “should not answer more than is necessary to resolve the parties’ dispute” on 22 appeal); see also Smith v. Kijakazi, 14 F.4th 1108, 1111 (9th Cir. 2021) 23 (“While Smith raises a number of issues on appeal, the court addresses only 24 those relevant to its decision to remand the case to the agency[.]”). 25 Further, an award of benefits is not warranted here, “[i]n light of the 26 inconsistencies, conflicts, and gaps in the record that require further 27 administrative proceedings[.]” Dominguez v. Colvin, 808 F.3d 403, 410 (9th 28 Cir. 2015). Thus, the Court remands this matter on an open record for further 1 || proceedings. 2 3 IV. Order

4 Accordingly, for all the reasons stated above, the Court finds that the 5 || ALJ’s decision is not free of legal error or supported by substantial evidence g || and is therefore VACATED. The case is remanded on an open record. 7 A separate judgment will issue. 8 IT IS SO ORDERED. Dated: March 20, 2026 Felice Dena hoe_ ll PATRICIADONAHUE UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28