1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA 6 CRYSTAL W., Case No. 3:25-cv-05294-TLF 7 Plaintiff, v. ORDER REVERSING AND 8 REMANDING DEFENDANT’S ACTING COMMISSIONER OF SOCIAL DECISION TO DENY BENEFITS 9 SECURITY, 10 Defendant. 11 12 Plaintiff filed this action pursuant to 42 U.S.C. § 405(g) for judicial review of 13 defendant’s denial of plaintiff’s application for supplemental security income (“SSI”). 14 Pursuant to 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73, and Local Rule 15 MJR 13, the parties have consented to have this matter heard by the undersigned 16 Magistrate Judge. Dkt. 2. Plaintiff challenges the ALJ’s decision finding that plaintiff was 17 not disabled. Dkt. 4, Complaint. 18 FACTUAL AND PROCEDURAL BACKGROUND 19 Plaintiff filed a claim for SSI on September 15, 2020, alleging disability beginning 20 April 1, 2017 (later amended to September 15, 2020). AR 17. Her claim was denied 21 initially and upon reconsideration. Id. ALJ Sue Leise held a hearing on October 5, 2023, 22 and subsequently found plaintiff not disabled. AR 17-33. The ALJ found that plaintiff’s 23 degenerative disc disease, obesity, general anxiety disorder, and post-traumatic stress 24 1 disorder (PTSD) were severe impairments. AR 19. Plaintiff had the residual functional 2 capacity to perform light work as defined in 20 C.F.R. § 416.967(b) except: 3 She can lift/carry 20 pounds occasionally and 10 pounds frequently. She can stand and/or walk for four hours in an eight-hour workday, and sit six 4 hours in an eight-hour workday. She needs to alternate sitting and standing. She can stand/walk for 30 minutes at a time before sitting for five to ten 5 minutes before returning to the standing position. She can sit for an hour then would need to stand for five to ten minutes before returning to the 6 seated position. She can occasionally climb ramps and stairs. She can never climb ladders, ropes, and scaffolds. She can occasionally balance, 7 stoop, kneel, crouch, and crawl. She must avoid concentrated exposure to extremes of heat. She must avoid exposure to industrial vibration, and 8 workplace hazards, such as moving machinery and unprotected heights. She can remember, understand, and carry out simple tasks or instructions. 9 She can have no public interaction. She can work in proximity to co-workers but cannot perform any tasks that require teamwork. She can perform tasks 10 that require only simple work-related decisions with few, if any, workplace changes. 11
12 AR 23. The ALJ found plaintiff could perform work existing in the national economy and 13 was accordingly not disabled. AR 32. The Appeals Council denied plaintiff’s request for 14 review, making the ALJ’s decision the final decision of the Commissioner. AR 1-3. 15 DISCUSSION 16 Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's 17 denial of Social Security benefits if the ALJ's findings are based on legal error or not 18 supported by substantial evidence in the record as a whole. Revels v. Berryhill, 874 19 F.3d 648, 654 (9th Cir. 2017) (internal citations omitted). Substantial evidence is “‘such 20 relevant evidence as a reasonable mind might accept as adequate to support a 21 conclusion.’” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (internal citations 22 omitted). The Court must consider the administrative record as a whole. Garrison v. 23 Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). The Court also must weigh both the 24 1 evidence that supports and evidence that does not support the ALJ’s conclusion. Id. 2 The Court may not affirm the decision of the ALJ for a reason upon which the ALJ did 3 not rely. Id. Rather, only the reasons identified by the ALJ are considered in the scope 4 of the Court’s review. Id. 5 Plaintiff argues that the ALJ erred: by not having substantial evidence or valid
6 reasons for finding medical evidence unpersuasive; in discounting plaintiff’s statements 7 about symptoms and limitations; by improperly analyzing her impairments under the 8 Listings at step three; and made erroneous findings at step five. Dkt. 8. 9 1. Medical evidence. 10 Under the applicable regulations, the ALJ was required to articulate how 11 persuasive she found each medical opinion or prior administrative medical finding and 12 explain how she considered supportability and consistency in her analysis. 20 C.F.R. § 13 416.920c(b)(2). Supportability means the extent to which a medical source supports 14 their opinion by explaining the relevant medical evidence. Woods v. Kijakazi, 32 F.4th
15 785, 791-92 (9th Cir. 2022). Consistency means the extent to which an opinion is 16 consistent with the evidence from other medical and non-medical sources in the claim. 17 Id. at 792. An ALJ cannot reject an opinion as unsupported or inconsistent without 18 providing a reason supported by substantial evidence. Id. 19 a. Angela Minor, PA-C 20 Ms. Minor evaluated plaintiff on April 25, 2021, and diagnosed morbid obesity, 21 possible left sided lumbar radiculopathy, and endometriosis. AR 559-68. Ms. Minor 22 opined that plaintiff could stand/walk for three hours in an eight-hour workday, up to 30 23 minutes at a time. AR 566. She could sit for four hours in an eight-hour workday, up to 24 1 one hour at a time. Id. Plaintiff could occasionally lift/carry 15 pounds and frequently 2 lift/carry five pounds. Id. She could occasionally push and pull and frequently balance. 3 Id. She could squat, kneel, climb, and crawl more than occasionally, but less than 4 frequently. Id. The ALJ found Ms. Minor’s opinion unpersuasive. AR 29. 5 i. Supportability
6 The ALJ found Ms. Minor’s opinion was unsupported by her examination and that 7 she did not explain the opined limitations other than basing them on the diagnosed 8 conditions. AR 29. Plaintiff argues the ALJ ignored relevant statements from Ms. Minor’s 9 opinion that support her opined limitations. Dkt. 8 at 4. 10 An ALJ may consider the quality of an explanation when determining how much 11 weight to give a medical opinion, Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020), and 12 need not accept an opinion that is “brief, conclusory, and inadequately supported by 13 clinical findings.” Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). But the ALJ 14 may not reject a physician’s opinion as unsupported while ignoring or unreasonably
15 interpreting the physician’s findings. Garrison, 759 F.3d at 1012-13. 16 In finding Ms. Minor’s opinion poorly explained and unsupported, the ALJ failed 17 to look past the medical source statement portion of the opinion. Looking at the entirety 18 of the opinion, Ms. Minor reviewed records, obtained a clinical history from plaintiff, and 19 conducted a physical examination. AR 560-65. During the physical examination, Ms. 20 Minor observed mid-lumbar pain on palpation, left-sided tenderness, and pain with 21 reduced lumbar range of motion. AR 564. Supine and seated straight leg raise tests 22 produced shooting pain to the left hip, pain in the left thigh, and numbness in the toes. 23 Id. Such findings support the opined limitations. And that Ms. Minor did not include a 24 1 narrative explanation for each limitation is not a rational reason to reject the opinion. 2 Donald O. v. Saul, 2020 WL 6561610, at *3 (W.D. Wash. Nov. 9, 2020) (finding the ALJ 3 unreasonably characterized an opinion as “unexplained” when the opinion, read as a 4 whole, explained the basis for the opined limitations). Accordingly, the ALJ’s 5 supportability findings are not supported by substantial evidence.
6 ii. Consistency 7 The ALJ also found Ms. Minor’s opinion inconsistent with the record, citing 8 plaintiff’s presentation at other appointments, “the relatively mild objective findings,” and 9 plaintiff’s activities of daily living. AR 29. An ALJ may reject a physician’s opinion that is 10 inconsistent with the medical record. Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th 11 Cir. 2008). But to reject an opinion on this basis, the ALJ must offer some explanation of 12 the alleged inconsistency. “To say that medical opinions are not supported by sufficient 13 objective findings or are contrary to the preponderant conclusions mandated by the 14 objective findings does not achieve the level of specificity our prior cases have
15 required.” Embrey v. Bowen, 849 F.2d 418, 421 (9th Cir. 1988). 16 Here, the ALJ failed to explain why the cited evidence was inconsistent with Ms. 17 Minor’s opinion. And review of this evidence reveals no inconsistency. First, some of the 18 records pertain to mental health or temporary illnesses and are accordingly irrelevant to 19 limitations stemming from plaintiff’s spinal impairments. See, e.g., AR 465, 545, 623, 20 633. The rest of the records document persistent back pain despite treatment with 21 muscle relaxers, gabapentin, physical therapy, and spine injections. See, e.g., AR 576, 22 614, 637, 667-68, 687, 710. Such findings are consistent with Ms. Minor’s opinion and 23 can hardly be classified as “relatively mild.” AR 29. 24 1 The ALJ also did not explain how plaintiff’s activities were inconsistent with Ms. 2 Minor’s opinion, and again, no inconsistency is apparent. The ALJ referenced activities 3 such as housework and shopping in stores, but such activities do not require lifting, 4 standing, walking, or sitting in excess of the limits opined by Ms. Minor. Further, Ms. 5 Minor considered such activities in her opinion. See AR 561 (noting plaintiff’s activities
6 include cleaning the house in segments and shopping once per month with help of a 7 roommate). The ALJ’s consistency findings are not supported by substantial evidence. 8 Having failed to articulate valid supportability or consistency findings, the ALJ 9 erroneously rejected Ms. Minor’s opinion. As Ms. Minor opined limitations more 10 restrictive than those included in the RFC, the error was not “inconsequential to the 11 ultimate nondisability determination,” and was therefore harmful. Molina v. Astrue, 674 12 F.3d 1104, 1115 (9th Cir. 2012). 13 b. Dennis Koukol, MD & Tom Dees, MD 14 State agency medical consultants Dr. Koukol and Dr. Dees reviewed plaintiff’s
15 claim at the initial and reconsideration levels, respectively. AR 79-81, 106-09. The ALJ 16 found their opinions somewhat persuasive and incorporated their lifting/carrying, 17 standing/walking, and sitting limitations in the RFC. AR 28-29. She noted that these 18 limitations were consistent with the longitudinal record, including findings of normal 19 strength and no swelling of the extremities. Id. However, the ALJ found plaintiff required 20 a sit/stand limitation and more restrictive postural and environmental limitations than 21 those opined by Dr. Koukol and Dr. Dees. AR 29. 22 The ALJ did not explain how she considered the supportability of these opinions. 23 Dkt. 8 at 6. The regulations require the ALJ to explain how she considered supportability 24 1 and consistency when evaluating the persuasiveness of each opinion. 20 C.F.R. § 2 416.920c(b)(2). Having failed to explain how she considered one of the most important 3 factors, the ALJ has erred. That said, this error was harmless, as the ALJ did not reject 4 any of the limitations opined by Drs. Koukol & Dees. 5 Plaintiff contends the ALJ’s consistency analysis is not supported by substantial
6 evidence because the ALJ’s cherry-picked findings of normal strength and no swelling 7 fail to show that she can sit, walk, lift, or carry at the levels opined by Dr. Koukol and Dr. 8 Dees. Dkt. 8 at 6. While an ALJ must explain why she rejects medical opinion evidence, 9 she need not provide reasons for accepting a medical opinion. Turner v. Comm’r of Soc. 10 Sec., 613 F.3d 1217, 1223 (9th Cir. 2010). Accordingly, plaintiff has not established 11 error in the consistency analysis. 12 Finally, plaintiff argues the ALJ erred by adding a sit/stand limitation to the RFC 13 without citing any evidence to show such a limitation would enable her to work. Dkt. 8 at 14 7. But it is ultimately plaintiff’s burden to prove disability, not the ALJ’s. 20 C.F.R. §
15 416.912(a). And the ALJ is not required to identify affirmative evidence establishing 16 plaintiff’s ability to work. Carbajal v. Kijakazi, 2022 WL 172276, at *4 (E.D. Cal. Jan. 19, 17 2022) (“Plaintiff has the burden to prove the existence of disabling limitations; the ALJ 18 does not have the burden to disprove the same.”). 19 Even assuming the ALJ erred, such error would be harmless. Turner, 613 F.3d at 20 1223. The RFC finding is more restrictive than or includes opined limitations from the 21 medical sources, therefore it did not affect the ALJ’s decision. 22 23 24 1 c. Noah Weatherton, PMHNP 2 Mr. Weatherton evaluated plaintiff in April 2021 and opined moderate limitations 3 in social interaction and severe limitations in adaptation. AR 553-58. The ALJ found Mr. 4 Weatherton’s opinion somewhat persuasive, agreeing that plaintiff had moderate 5 limitations in social interaction, but concluded the totality of the record did not warrant
6 more restrictive limitations. AR 30-31. Plaintiff contends the ALJ either overlooked, 7 ignored, or misinterpreted Mr. Weatherton’s opinion generally and on adaptation 8 specifically. Dkt. 8 at 8.1 9 The ALJ’s analysis is insufficient. First, the ALJ failed to address the 10 supportability factor as required by the regulations. 20 C.F.R. § 416.920c(b)(2). The ALJ 11 made only a passing reference to consistency, stating Mr. Weatherton’s opinion on 12 moderate social interaction limitations was persuasive “because it is generally 13 consistent with the record.” AR 30. The ALJ offered no further explanation, nor did she 14 cite any evidence to support this finding. And the ALJ’s discussion of adaptation
15 limitations amounts to nothing more than a restatement of the adopted limitations 16 without further analysis. Having failed to articulate valid supportability or consistency 17 findings, the ALJ erroneously rejected Mr. Weatherton’s opinion. As Mr. Weatherton 18 opined limitations more restrictive than those included in the RFC, the error was not 19 “inconsequential to the ultimate nondisability determination,” and was therefore harmful. 20 Molina, 674 F.3d at 1115. 21 1 Although the ALJ fails to specifically reference Mr. Weatherton’s adaptation limitation, she stated that 22 she found the limitations opined by the state agency psychological consultants more persuasive. AR 30. Thus, although explained with “less than ideal clarity,” the Court can “reasonably discern” that the ALJ 23 found Mr. Weatherton’s adaptation limitation unpersuasive. Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015). Accordingly, the ALJ’s failure to specifically reference this limitation was not in itself error, 24 as plaintiff appears to suggest. 1 d. Alyssa Ruddell, Ph.D. 2 Dr. Ruddell evaluated plaintiff in August 2020, and opined plaintiff had marked 3 limitations in the following basic work activities: understand, remember, and persist in 4 tasks by following detailed instructions; adapt to changes in a routine work setting; 5 complete a normal workday and work week without interruptions from psychologically
6 based symptoms; and set realistic goals and plan independently. AR 452. She also 7 found mild and moderate limitations in other basic work activities. Id. The ALJ found Dr. 8 Ruddell’s opinion unpersuasive on supportability and consistency grounds. AR 31. 9 i. Supportability 10 The ALJ found Dr. Ruddell’s opinion was unsupported because she completed a 11 checkbox form with little to no explanation for her limitations. AR 31. She also found 12 these limitations were unsupported by Dr. Ruddell’s own findings and noted Dr. Ruddell 13 did not review any medical records. Id. Plaintiff contends that Dr. Ruddell’s mental 14 status examination contained several abnormal findings supporting her limitations and
15 that the clinical interview sufficiently explains the limitations. Dkt. 8 at 9-10. 16 An ALJ may properly discount a medical opinion presented as a checkbox form 17 that does not explain the bases for the doctor’s conclusions. Ford, 950 F.3d at 1155. 18 But simply because an opinion is rendered, in part, on a checkbox form is not reason 19 alone to reject the opinion. Trevizo v. Berryhill, 871 F.3d 664, 677 n.4 (9th Cir. 2017) 20 (“there is no authority that a “check-the-box” form is any less reliable than any other 21 type of form.”). While portions of Dr. Ruddell’s opinion utilized a checkbox format, she 22 also had conducted a clinical interview and mental status examination. AR 450-54. That 23 24 1 Dr. Ruddell did not write the specific bases next to each limitation is not a rational 2 reason to reject her opinion. 3 Dr. Ruddell noted several abnormalities in the report of plaintiff’s mental status 4 examination. AR 453. Plaintiff was tearful and paranoid and endorsed experiencing both 5 auditory and visual hallucinations. Id. Plaintiff’s orientation, memory, concentration,
6 insight, and judgment, were also impaired as evidenced by an inability to complete 7 serial 3’s or digit spans, and impaired problem-solving abilities. Id. Contrary to the ALJ’s 8 assertion, these abnormalities provide support for the opined limitations. Further, though 9 the ALJ claimed Dr. Ruddell did not review any records, her opinion indicates she 10 reviewed previous DSHS observations and obtained a medical history from plaintiff. AR 11 450. In sum, the ALJ’s supportability findings are not supported by substantial evidence. 12 ii. Consistency 13 The ALJ found Dr. Ruddell’s opinion inconsistent with plaintiff’s presentation at 14 appointments and her reported activities of daily living. AR 31. Plaintiff argues the ALJ
15 failed to explain how the cited evidence undermined Dr. Ruddell’s opinion. Dkt. 8 at 10. 16 As with her analysis of Ms. Minor’s opinion, the ALJ failed to explain how the 17 cited evidence was inconsistent with Dr. Ruddell’s opinion. Embrey, 849 F.2d at 421-22 18 (“The ALJ must do more than offer his conclusions. He must set forth his own 19 interpretations and explain why they, rather than the doctors’, are correct.”). Similarly, 20 the ALJ failed to explain how plaintiff’s activities were inconsistent with the opinion, or 21 even which activities specifically were supposedly inconsistent. Accordingly, the ALJ’s 22 consistency findings are not supported by substantial evidence. Brown-Hunter, 806 F.3d 23 24 1 at 492 (“the agency [must] set forth the reasoning behind its decisions in a way that 2 allows for meaningful review.”). 3 Having failed to articulate valid supportability or consistency findings, the ALJ 4 erroneously rejected Dr. Ruddell’s opinion. As Dr. Ruddell opined limitations more 5 restrictive than those included in the RFC, the ALJ’s error cannot be characterized as
6 “inconsequential to the ultimate nondisability determination,” and was thus harmful. 7 Molina, 674 F.3d at 1115. 8 e. Andrew Forsyth, Ph.D. & Stephen Drake, Ph.D. 9 State agency psychological consultant Dr. Forsyth reviewed plaintiff’s claim at 10 the initial level and opined moderate limitations in sustained concentration and 11 persistence, social interaction, and adaptation. AR 82-84. Dr. Drake affirmed these 12 findings on reconsideration. AR 109-13. 13 The ALJ found these opinions mostly persuasive, noting they were consistent 14 with plaintiff’s longitudinal mental health history, improvement with treatment, and her
15 documented daily activities. AR 29-30. 16 Plaintiff argues that the ALJ failed to explain how the opinions were consistent 17 with the cited evidence. Dkt. 8 at 11. Plaintiff’s argument is meritless. The ALJ follows 18 her consistency finding with two paragraphs of analysis, explaining how specific findings 19 from the record were consistent with the opined limitations. See AR 29-30. Plaintiff also 20 asserts that the ALJ is uninformed about PTSD and faults the ALJ for describing 21 symptoms of PTSD as “situational components” to plaintiff’s mental condition. This 22 argument fails to identify any error in the ALJ’s findings on supportability or consistency. 23 24 1 Yet, despite articulating a thorough consistency analysis, the ALJ erred by failing 2 to address the supportability factor. 20 C.F.R. § 416.920c(b)(2). That said, such error is 3 harmless, as the ALJ did not reject any of the limitations opined by Drs. Forsyth and 4 Drake. 5 In sum, the ALJ harmfully erred in rejecting the opinions of Ms. Minor, Mr.
6 Weatherton, and Dr. Ruddell and must reevaluate these opinions on remand. Although 7 errors in failing to explain how she considered supportability regarding the opinions of 8 Dr. Koukol, Dr. Dees, Dr. Forsyth, and Dr. Drake were not harmful, the ALJ on remand 9 must consider supportability and consistency for every medical opinion and prior 10 administrative medical finding, as required by the regulations. 20 C.F.R. § 11 416.920c(b)(2). 12 2. Plaintiff’s statements regarding subjective symptoms 13 In assessing a plaintiff’s credibility, the ALJ must determine whether plaintiff has 14 presented objective medical evidence of an underlying impairment. If such evidence is
15 present and there is no evidence of malingering, the ALJ can only reject plaintiff’s 16 testimony regarding the severity of her symptoms for clear and convincing reasons. 17 Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (internal citations omitted). 18 Plaintiff challenges the ALJ’s analysis of her testimony generally, arguing that the 19 ALJ failed to identify the specific testimony that was unreliable and what evidence 20 undermined that testimony. Dkt. 8 at 13. When the ALJ discounts a claimant’s 21 testimony, the ALJ “must identify the testimony that was not credible, and specify what 22 evidence undermines the claimant’s complaints.” Treichler v. Comm’r of Soc. Sec. 23 Admin., 775 F.3d 1090, 1103 (9th Cir. 2014) (internal quotation marks omitted). 24 1 Here, the ALJ summarized plaintiff’s testimony and concluded that her testimony 2 was not entirely consistent with the medical evidence and other evidence in the record. 3 AR 24. The ALJ then went on to summarize the medical evidence (addressing physical 4 and mental complaints in separate sections). AR 24-28. 5 Although the ALJ’s references to plaintiff’s testimony are somewhat generic, see
6 AR 25, 26 (“allegations of extremely limiting mental health symptoms,” “description of 7 chronic severe pain”), she regularly references the testimony and points to specific 8 evidence in the record to support her conclusions. See AR 24-28. Thus, the ALJ has 9 adequately connected the medical evidence with plaintiff’s testimony. 10 a. Improvement with Treatment 11 The ALJ found plaintiff’s mental symptoms were not as severe as alleged, citing 12 an occasion in which plaintiff stated that her medications were “going pretty good” and 13 she was having fewer nightmares. AR 27. Plaintiff argues that this statement fails to 14 undermine her testimony regarding her mental health. Dkt. 8 at 14.
15 While improvement with treatment can be a valid reason to reject a claimant’s 16 testimony, the examples cited by the ALJ must “constitute examples of a broader 17 development” to satisfy the clear and convincing standard. Garrison, 759 F.3d at 1018. 18 Here, plaintiff’s single remark that her medications were “going pretty good” is not 19 enough to demonstrate sustained improvement in her mental health conditions. Id. at 20 1017 (“it is error for an ALJ to pick out a few isolated instances of improvement over a 21 period of months or years and to treat them as a basis for concluding a claimant is 22 capable of working.”). 23 24 1 b. Lack of Treatment 2 The ALJ also found a lack of treatment prior to plaintiff’s amended onset date 3 suggested that her symptoms were not as limiting as she alleged. AR 27. The ALJ also 4 noted that plaintiff’s treatment after the alleged onset date was sporadic, and plaintiff 5 cancelled or failed to show up for appointments. Id. An unexplained failure to seek
6 treatment is a clear and convincing reason to reject a claimant’s testimony. Burch v. 7 Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). But before finding testimony inconsistent 8 on this basis, the ALJ must consider the possible reasons the claimant has not complied 9 with or sought treatment. SSR 16-3p, available at 2017 WL 5180304, at *9 (Oct. 25, 10 2017). 11 The ALJ failed to consider ample evidence in the record explaining plaintiff’s 12 inconsistent treatment history. Plaintiff has regularly endorsed avoidant behavior and 13 difficulty leaving her home due to past trauma, which has contributed to her lack of 14 treatment. AR 496, 804. Plaintiff also experienced difficulty finding care, as she refused
15 to return to one office after a negative experience and was uncomfortable seeking care 16 at another office, which only had male counselors. AR 550. 17 The ALJ notes that plaintiff agreed to be discharged from counseling in January 18 2021 after only a few sessions with a counselor but fails to acknowledge plaintiff only 19 sought discharge because her counselor was leaving the practice and she planned to 20 seek care elsewhere. AR 27, 488. Further, even if plaintiff’s decisions about when to 21 leave or return to treatment or to any particular providers, could be characterized as 22 unwise, the Ninth Circuit has found “it is a questionable practice to chastise one with a 23 mental impairment for the exercise of poor judgment in seeking rehabilitation.” Nguyen 24 1 v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996). As plaintiff has provided a good reason 2 for her inconsistent treatment, this was not a clear and convincing reason to reject her 3 testimony. 4 c. Activities of Daily Living 5 The ALJ found plaintiff’s activities such as preparing simple meals, completing
6 household chores, grocery shopping, spending time with roommates and friends, 7 completing arts and crafts, reading, and watching TV, demonstrated that her 8 impairments were not as limiting as alleged. AR 27. Plaintiff argues the ALJ has failed to 9 show these activities are performed at a level equivalent to work activity. Dkt. 8 at 15. 10 Engaging in daily activities that are incompatible with the severity of symptoms 11 alleged can undermine a claimant’s subjective symptom testimony. Ghanim, 763 F.3d at 12 1165. To discount a claimant’s testimony based on activities, the ALJ must show the 13 activities contradict her other testimony or meet the threshold for transferable work 14 skills. Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). To show the activities meet the
15 threshold for transferable work skills, the ALJ must make specific findings that the 16 claimant is able to spend a substantial part of her day engaged in pursuits involving 17 performance of physical functions that are transferable to a work setting. Id. The ALJ 18 has made no such findings here, and plaintiff’s activities do not contradict her other 19 testimony. This was not a clear and convincing reason to discount plaintiff’s testimony. 20 d. Poor Work History 21 The ALJ noted plaintiff had no earnings after 2009, and only minimal earnings 22 prior to that date, suggesting that her lack of employment undermined her testimony. 23 AR 28. The ALJ also cited a previous statement from plaintiff that she stopped working 24 1 because she moved away, rather than because of her impairments. Id. (citing AR 561). 2 Plaintiff argues the ALJ failed to consider other factors that could have contributed to 3 her work history, such as her abusive marriage and PTSD. Dkt. 8 at 15. 4 The Ninth Circuit has found that a poor work history can support a rejection of a 5 claimant’s symptom statements. Thomas, 278 F.3d at 959 (finding plaintiff’s “extremely
6 poor work history” and the fact she “has shown little propensity to work in her lifetime” 7 weighed against her subjective complaints). Stopping work for reasons unrelated to 8 disability may also undermine a claimant’s testimony. Bruton v. Massanari, 268 F.3d 9 824, 828 (9th Cir. 2001). Plaintiff cites no authority requiring the ALJ to consider factors 10 that could have contributed to a poor work history. The ALJ therefore did not err by 11 considering plaintiff’s poor work history. 12 Medication Side Effects 13 The ALJ also found the evidence did not corroborate plaintiff’s allegations of 14 drowsiness as a medication side effect. AR 28. Plaintiff notes that she never alleged
15 that medication side effects prevented her from working. Dkt. 8 at 16. There is no error. 16 Step Three 17 At step three, the ALJ found plaintiff’s impairments did not satisfy the 18 requirements of any listing.2 AR 20-22. Plaintiff contends the ALJ did not properly 19 analyze her general anxiety disorder or PTSD under Listings 12.06 and 12.15 because 20 the ALJ did not analyze the Paragraph A criteria and did not conduct a meaningful 21 analysis of the Paragraph C criteria. Dkt. 8 at 16. To meet Listings 12.06 and 12.15, a 22 23 2 The ALJ considered plaintiff’s spinal condition under Listings 1.15 and 1.16, her general anxiety disorder 24 under Listing 12.06, and her PTSD under Listing 12.15. AR 20. 1 claimant must satisfy the requirements of both Paragraphs A and B or the requirements 2 of both Paragraphs A and C for each listing. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 3 12.00A(2). Plaintiff does not challenge the ALJ’s finding that she did not meet the 4 requirements of Paragraph B. 5 Paragraph A of each listing outlines the medical criteria that must be present in
6 the medical evidence. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00A(2)(a). Paragraph C 7 is the same for Listing 12.06 and 12.15, and requires the mental disorder be “serious 8 and persistent,” i.e., medically documented over a period of two years with evidence of 9 both: (1) medical treatment, mental health therapy, psychosocial support(s), or a highly 10 structured setting that is ongoing and diminishes the symptoms and signs of the mental 11 disorder; and (2) despite diminished symptoms, the claimant has achieved only 12 “marginal adjustment.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00G(2)(b), (c). 13 At step three of the sequential analysis, “[a]n ALJ must evaluate the relevant 14 evidence before concluding that a claimant’s impairments do not meet or equal a listed
15 impairment.” Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001). “A boilerplate finding is 16 insufficient to support a conclusion that a claimant’s impairment does not do so.” Id. Yet 17 the ALJ need not discuss the findings in any specific section of her opinion. Id. at 513. If 18 the ALJ offers more than conclusory findings, and engages with the record evidence 19 throughout the decision, the ALJ does not reversibly err at step three. See, Lewis v. 20 Apfel, at 514; Havens v. Kijakazi, No. 21-35022, 2022 WL 2115109, at *1 (9th Cir. June 21 13, 2022). 22 The ALJ’s analysis of the Paragraph C criteria amounts to a conclusory 23 statement that the evidence failed to establish the presence of the criteria. AR 22. 24 1 Although the ALJ engages in a lengthy discussion of the medical evidence at the next 2 step when discussing the RFC, it is unclear whether there is evidence of ongoing 3 psychosocial supports or a highly structured setting, or whether plaintiff has achieved 4 only marginal adjustment. See AR 23-28. As the ALJ’s decision does not support her 5 conclusion at step three regarding the Paragraph C criteria, the ALJ has erred.
6 Valladares v. Kijakazi 2022 WL 1262012, 2022 WL 1262012, at *1 (9th Cir. Apr. 28, 7 2022). That said, such errors are harmless where a claimant presents no evidence that 8 she met a required element of the listing. McMahon v. Berryhill, 713 F. App’x 693, 694 9 (9th Cir. 2018). 10 Plaintiff argues that she satisfies the Paragraph C criteria because she has 11 suffered from anxiety and PTSD for much longer than two years. Dkt. 8 at 16. Plaintiff’s 12 argument fails to address whether there is evidence of ongoing treatment, psychosocial 13 supports, and structured settings or whether she has achieved only marginal 14 adjustment. As plaintiff has failed to present evidence that she met the required
15 elements of Paragraph C, the ALJ’s error was harmless. McMahon, 713 F. App’x at 16 694. 17 Any error in the ALJ’s failure to separately analyze the Paragraph A criteria is 18 also harmless, as the ALJ found plaintiff did not meet the criteria for Paragraphs B or C, 19 thus obviating a need for analysis of Paragraph A. Carolina S. v Comm’r of Soc. Sec., 20 2026 WL 274560, at *6 (N.D. Cal. Feb. 3, 2026); Molina, 674 F.3d at 1115. 21 3. Step Five 22 Plaintiff argues that the ALJ’s findings at step five are not supported by 23 substantial evidence and are contrary to law. Dkt. 8 at 17-18. 24 1 First, plaintiff argues the ALJ erred in relying on the document preparer job at 2 step five in light of Emergency Message (EM) 24027 REV, which precluded the use of 3 certain occupations to support a non-disability determination without additional evidence 4 on the job’s applicability and availability. Dkt. 8 at 17. Plaintiff’s argument fails, however, 5 as EM-24027 REV was published on January 6, 2025, and thus does not apply to the
6 ALJ’s decision published in March 2024. Further, as noted by the Commissioner, any 7 error here would be harmless, as the ALJ identified three other jobs plaintiff could 8 perform which existed in significant numbers in the national economy. AR 32 (identifying 9 three other occupations with 26,161 jobs in the national economy)3; Gutierrez v. 10 Comm’r of Soc. Sec., 740 F.3d 519, 528-29 (9th Cir. 2014) (finding 25,000 jobs in the 11 national economy was a significant number). 12 Next, plaintiff contends the ALJ erred at step five by failing to resolve a conflict 13 between the vocational expert’s (VE) testimony and the DOT. Dkt. 8 at 17-18. 14 Specifically, plaintiff claims the VE’s testimony that she could perform the identified jobs
15 with a sit/stand option conflicted with the DOT because the DOT does not address 16 sit/stand options. Id. If the VE’s opinion conflicts with, or seems to conflict with, the 17 requirements listed in the DOT, the ALJ must ask the VE to reconcile the conflict before 18 relying on the testimony to decide whether the claimant is disabled. Gutierrez v. Colvin, 19 844 F.3d 804, 807 (9th Cir. 2016). However, where the DOT is “silent on whether the 20 jobs in question allow for a sit/stand option,” there is no conflict with a VE’s testimony 21 22 23 3 The Court notes that, although the ALJ asserts that there are 60,138 small parts assembler jobs in the 24 national economy, the VE actually testified that there were 15,138 of these jobs. Contrast AR 32 and 63. 1 that a claimant can perform a job with a sit/stand option. Dewey v. Colvin, 650 F. App’x 2 512, 514 (9th Cir. 2016). 3 Here, the RFC included a limitation that plaintiff needs to alternate sitting and 4 standing. AR 23. The ALJ consulted a vocational expert, who testified that an individual 5 with Plaintiff’s RFC could perform the jobs of small parts assembler; inspector, hand
6 packager; sorter agricultural; and document preparer. AR 63. The DOT is silent as to 7 whether the jobs identified by the VE allow for a sit/stand option. AR 64. Therefore, as 8 there was no conflict for the ALJ to resolve, the ALJ did not err. 9 Plaintiff also argues the RFC is defective because the ALJ found she was 10 moderately limited in concentration, persistence, and pace (CPP), but failed to include 11 any persistence and pace limitations in the RFC. Dkt. 8 at 18. The Ninth Circuit has 12 recognized that an RFC adequately captures restrictions related to CPP where it is 13 consistent with restrictions identified in the medical testimony. See Stubbs-Danielson v. 14 Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008) (finding a limitation to “simple, routine, and
15 repetitive tasks” adequately accounts for moderate limitations in CPP). 16 Here, the ALJ found plaintiff had the residual functional capacity to remember, 17 understand, and carry out simple tasks or instructions, and could perform tasks that 18 require only simple work-related decisions with few, if any, workplace changes. AR 23. 19 This is consistent with the opinions of Dr. Drake and Dr. Forsyth that, despite moderate 20 limitations in CPP, plaintiff could complete routine tasks over a normal eight-hour 21 workday with customary breaks and was capable of tolerating routine, infrequent, and 22 predictable workplace changes. AR 82-84, 102-13; see also AR 30 (adopting state 23 agency opinions to limit plaintiff to simple, routine tasks with customary breaks). 24 1 Accordingly, the RFC adequately captured the moderate limitations in concentration, 2 persistence, and pace. 3 4 CONCLUSION 5 Based on the foregoing discussion, the Court concludes the ALJ properly found
6 plaintiff’s testimony was undermined by her lengthy history of not seeking or acquiring 7 any job whatsoever for many years. Yet, even if plaintiff’s credibility was undermined in 8 this respect, if the medical evidence supports a finding that she has limitations that meet 9 the criteria for disability, she may be eligible for benefits. 10 As for the medical evidence, the ALJ harmfully erred. The Court reverses and 11 remands for further proceedings. On remand, the ALJ must re-evaluate the medical 12 opinion evidence provided by Angela Minor, PA-C; Noah Weatherton, PMHNP; and 13 Alyssa Ruddell, Ph.D. 14 The Commissioner is not necessarily required to conduct a new hearing; but if
15 the Commissioner re-evaluates the medical evidence, and if the ALJ determines the re- 16 evaluation of such evidence would make a difference in the five-step analysis and 17 potentially change the RFC, the ALJ shall hold a de novo hearing and take additional 18 evidence. 19 20 Dated this 23rd day of April, 2026 21 A 22 U.S. Magistrate Judge
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