Diggs v. Kijakazi

Opinion

1 2 3 4 5 6 7 10 11 SETH D., Case No.: 22-cv-02051-LL-JLB

12 Plaintiff, REPORT AND 13 v. RECOMMENDATION RE: PLAINTIFF’S MERITS BRIEF 14 KILOLO KIJAKAZI, Acting

Commissioner of Social Security, 15 (ECF No. 16) Defendant. 16

17 18 This Report and Recommendation is submitted to the Honorable Linda Lopez, 19 United States District Judge, pursuant to 28 U.S.C. § 636(b)(1) and General Order No. 707 20 of the United States District Court for the Southern District of California. 21 On December 27, 2022, plaintiff Seth D. (“Plaintiff”) filed a Complaint pursuant to 22 42 U.S.C. § 405(g). (ECF No. 1.) Plaintiff filed an Amended Complaint on 23 January 3, 2023, seeking judicial review of a decision by the Commissioner of Social 24 Security (the “Commissioner”) denying his applications for child’s insurance benefits and 25 for supplemental security income (“SSI”). (ECF No. 5.) 26 Now pending before the Court and ready for decision is Plaintiff’s merits brief. 27 (ECF No. 16.) The Commissioner filed an opposition (ECF No. 18), and Plaintiff filed a 28 reply (ECF No. 19). For the reasons set forth herein, the Court RECOMMENDS that 1 Plaintiff’s merit’s brief be GRANTED, and that Judgment be entered reversing the 2 decision of the Commissioner and remanding this matter for further administrative 3 proceedings pursuant to sentence four of 42 U.S.C. § 405(g). 5 On or about October 22, 2020, Plaintiff filed an application for child’s insurance 6 benefits under Title II of the Social Security Act and an application for SSI under Title 7 XVI of the Social Security Act, alleging disability since March 10, 2012. (Certified 8 Administrative Record [“AR”] 20–21, 254–55.) After his applications were denied 9 initially and upon reconsideration (AR 163–68, 169–74, 177–82), Plaintiff requested an 10 administrative hearing before an administrative law judge (“ALJ”) (AR 183–84). An 11 administrative hearing was held on September 13, 2021. (AR 42–57.) Plaintiff appeared 12 at the hearing with counsel, and testimony was taken from him and a vocational expert 13 (“VE”). (AR 42–57.) 14 As reflected in his September 24, 2021, hearing decision, the ALJ found that Plaintiff 15 had not been under a disability, as defined in the Social Security Act, from his alleged onset 16 date through the date of the decision. (AR 17–41.)1 After an extension, the ALJ’s decision 17 became the final decision of the Commissioner on November 28, 2022. (AR 1–3.) This 18 timely civil action followed. 20 In rendering his decision, the ALJ followed the Commissioner’s five-step sequential 21 evaluation process. See 20 C.F.R. §§ 404.1520, 416.920. At Step One, the ALJ found that 22 23 1 With respect to Plaintiff’s application for child’s insurance benefits, the ALJ 24 specifically found that Plaintiff was not disabled prior to March 19, 2015, the day before 25 he turned twenty-two years old. (AR 36.) A claimant may be eligible for child’s disability insurance benefits if he was “under a disability . . . which began before he attained the age 26 of 22,” 42 U.S.C. § 402(d)(1)(B)(ii), and was disabled “continuously and without 27 interruption beginning before [his] twenty-second birthday until the time [he] applied for child’s disability insurance benefits,” Smolen v. Chater, 80 F.3d 1273, 1279–80 (9th Cir. 28 1 Plaintiff had not engaged in substantial gainful activity since March 10, 2012, his alleged 2 onset date. (AR 23.). 3 At Step Two, the ALJ found that Plaintiff had the following severe impairments: 4 schizoaffective disorder, bipolar type; attention deficit hyperactivity disorder (ADHD); 5 depressive disorder; anxiety disorder, unspecified type; and polysubstance abuse. (AR 23.) 6 At Step Three, the ALJ found that Plaintiff did not have an impairment or 7 combination of impairments that met or medically equaled one of the impairments listed 8 in the Commissioner’s Listing of Impairments. (AR 23.) 9 Next, the ALJ determined that Plaintiff had the residual functional capacity (“RFC”) 10 to perform a full range of work at all exertional levels, but with the following nonexertional 11 limitations: 12 he can understand, remember, and carry out simple job tasks and simple job 13 instructions; he can interact appropriately with coworkers and supervisors, but 14 the interaction must be noncollaborative and have no team work; he can have no public contact; he can respond appropriately to routine work situations, 15 settings, and supervision; he can respond appropriately to changes in a routine 16 work setting and situation; and, he can appropriately ask questions and use judgement [sic]. 17 18 (AR 25.) 19 For purposes of his Step Four determination, the ALJ found that Plaintiff was unable 20 to perform his past relevant work as actually or generally performed. (AR 34–35.) 21 The ALJ then proceeded to Step Five of the sequential evaluation process. As of the 22 alleged onset date, the ALJ classified Plaintiff as a younger individual with a high school 23 education for whom transferability of skills was immaterial. (AR 35.) Based on the VE’s 24 testimony that a hypothetical person with Plaintiff’s vocational profile could perform the 25 requirements of occupations that existed in significant numbers in the national economy 26 (i.e., night cleaner, hand packager, cleaner), the ALJ found that Plaintiff was not disabled. 27 (AR 35–36.) 28 /// 2 As reflected in Plaintiff’s merits brief, the disputed issues that Plaintiff is raising as 3 the grounds for reversal and remand are as follows: 4 (1) The ALJ failed to provide specific, clear, and convincing reasons supported 5 by substantial evidence for discounting Plaintiff’s subjective symptom 6 testimony regarding his mental impairments (ECF No. 16 at 6–18); and 7 (2) The ALJ improperly rejected the opinion of consultative psychiatric 8 examiner, Gregory Nicholson, M.D., regarding Plaintiff’s mental limitations 9 (id. at 18–23). 11 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to 12 determine whether the Commissioner’s findings are supported by substantial evidence and 13 whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846 14 (9th Cir. 1991). Substantial evidence means “more than a mere scintilla” but less than a 15 preponderance. Richardson v. Perales, 402 U.S. 389, 401 (1971); Desrosiers v. Sec’y of 16 Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial evidence is 17 “such relevant evidence as a reasonable mind might accept as adequate to support a 18 conclusion.” Richardson, 402 U.S. at 401. This Court must review the record as a whole 19 and consider adverse as well as supporting evidence. Green v. Heckler, 803 F.2d 528, 529- 20 30 (9th Cir. 1986). Where evidence is susceptible of more than one rational interpretation, 21 the Commissioner’s decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 1452 22 (9th Cir. 1984). 24 A. Background of Plaintiff’s Mental Impairments 25 1. Medical Record 26 On January 5, 2014, Plaintiff, then a 20-year-old student at Penn State University, 27 was involuntarily admitted to a hospital in Pennsylvania after police were called because 28 Plaintiff was “out of control, smashing things, talking out of his head, [and] talking to a 1 refrigerator and the clock.” (AR 382, 406.) The psychiatric team that initially responded 2 noted that Plaintiff was responding to questions “in a manner that did not make sense,” and 3 he “pulled out his hair by the root on two different occasions.” (AR 406.) The hospital 4 assessed him as endorsing self-injurious behaviors, paranoid delusions, and impulsivity. 5 (AR 409.) His attention and concentration, as well as his insight and judgment, were 6 deemed impaired. (AR 409.) He was prescribed Risperdal. (AR 384.) 7 On April 20, 2014, Plaintiff voluntarily went to the hospital. (AR 368, 382.) He 8 presented as “very psychotic and agitated,” “aggressively postured at staff,” “refused any 9 medications” and treatment, and tried to leave. (AR 382.) He was given Haldol, Ativan, 10 and Cogentin, which made him fall asleep. (AR 383.) When he woke up, Plaintiff stated 11 that he had stopped taking the Risperdal because he “didn’t like how [he] felt” on the 12 medication because it “slowed [his] thinking” and made him feel groggy. (AR 383.) 13 Plaintiff was prescribed Lithium. (AR 385.) His mother reported that he had also 14 previously been prescribed Adderall for a past diagnosis of ADHD and had been prescribed 15 Ativan for an unclear reason the prior December. (AR 382.) 16 On July 20, 2014, Plaintiff again voluntarily went to the hospital and was “admitted 17 for concern for psychosis.” (AR 353, 356.) His mental status examinations indicated he 18 appeared psychotic, was responding to internal stimuli, and was endorsing paranoid 19 delusions and auditory hallucinations. (AR 356, 358.) He was also laughing 20 inappropriately, and he had a flat and slightly incongruent affect, sparce and latent speech, 21 and limited insight and judgment. (AR 356, 358.) He was assessed as having very slow 22 responses, appearing paranoid and guarded, and having intense eye contact. (AR 354.) He 23 reported that he had discontinued the Lithium. (AR 353.) He was also mostly non- 24 compliant in taking Seroquel, which had been prescribed by an outpatient psychiatrist. (AR 25 359.) Plaintiff was referred to a partial hospitalization program. (AR 359.) Plaintiff 26 presented to the partial hospitalization program on August 1, 2014, but he had not slept all 27 night and was sent to the emergency room for admission. (AR 418.) 28 /// 1 On April 16, 2015, Plaintiff voluntarily admitted himself to a hospital in 2 Pennsylvania for psychosis. (AR 281, 417–53, 559.) He had stopped taking his 3 medications and had become manic. (AR 559.) After admission, he continued to be 4 psychotic, stated he feared he was going to die, had disorganized thoughts, and was fearful. 5 (AR 417.) He had difficulty answering direct questions and became preoccupied in 6 semantics and thinking in metaphor. (AR 417.) He was discharged with prescriptions for 7 Risperidone for schizoaffective disorder, Trazadone for insomnia, and hydroxyzine for 8 anxiety. He agreed to follow up with outpatient providers. (AR 419, 559.) Plaintiff was 9 encouraged to seek alternative housing options as his mother appeared to have psychotic 10 symptoms and her behavior was exacerbating Plaintiff’s symptoms, but he stated he was 11 going to stay with his mother. (AR 420.) 12 By June 2015, Plaintiff’s records indicate he had been diagnosed with acute bipolar 13 disorder and ADHD, as well as chronic schizoaffective disorder, anxiety disorder, and 14 insomnia. (AR 558.) On June 8, 2015, Plaintiff saw Muhammad Qamar, M.D. at 15 American Family Psychiatry in Pennsylvania. (AR 557.) He reported that his medications 16 were helping him. (AR 559.) At the time, he was taking Vistaril for anxiety and panic 17 disorder, Adderall for ADHD, Abilify for bipolar disorder and schizoaffective disorder, 18 and Trazadone for insomnia. (AR 491–92, 543–44, 549–50.) Through January 2017, 19 Plaintiff reported doing well on his medications. (AR 482–562, 588–92, 614–55.) 20 On February 9, 2017, Plaintiff’s mother reported that Plaintiff was not doing well as 21 he had some paranoia and delusions. (AR 610.) Therefore, Dr. Qamar increased Plaintiff’s 22 Abilify prescription to 10mg daily. (AR 610.) At the time, Plaintiff was taking Vistaril 23 for anxiety disorder and insomnia, Adderall for ADHD, and Abilify for bipolar and 24 schizoaffective disorders. (AR 611–12.) 25 Later in February 2017, Plaintiff was admitted to a psychiatric hospital in 26 Pennsylvania because he was appearing psychotic and delusional. (AR 605.) He was 27 ultimately stabilized, and in March 2017, he reported doing well on Abilify. (AR 605.) 28 Plaintiff was also still taking Trazodone for insomnia. (AR 606.) Plaintiff reported that he 1 continued to do well on his medications in April and July 2017. (AR 595, 600.) However, 2 in March 2018, Plaintiff was hospitalized in North Carolina, where he apparently moved 3 to live with his father. (AR 563, 658, 687, 730.) 4 On September 18, 2018, Dr. Qamar completed an evaluation of Plaintiff. (AR 563– 5 81.) Plaintiff appeared angry, glum, sad looking, listless, irritable, wary, inattentive, 6 distracted, communicative, disheveled, and tense. (AR 577.) He was showing signs of 7 moderate depression, but the examination was otherwise normal. (AR 577.) Based on the 8 information available to him, Dr. Qamar diagnosed Plaintiff with schizoaffective disorder, 9 bipolar disorder, anxiety disorder, and insomnia. (AR 577–78.) Dr. Qamar determined 10 that Plaintiff needed continued outpatient treatment and instructed him to continue taking 11 Zyprexa, Topamax, and Vistaril. (AR 579–80.) Dr. Qamar stated that “[b]ased on [the] 12 severity of psychotic symptoms and interference with functioning, [Plaintiff’s] severity or 13 complexity is considered moderate.” (AR 566.) Dr. Qamar further stated that “[b]ased on 14 the risk of morbidity without treatment and [Plaintiff’s] description of interference with 15 functioning [due to elevated mood and depression,] severity is estimated to be high.” (AR 16 564.) Plaintiff reported living at the time in an assisted living facility. (AR 573.) 17 On October 19, 2018, Plaintiff saw Dr. Qamar again. (AR 582–87.) Plaintiff was 18 making progress, but still had some psychosis and disorganization of thoughts. (AR 582– 19 85.) Although he had been compliant with his medication, Plaintiff’s psychotic symptoms 20 were reported as “intermittently present.” (AR 582.) Plaintiff continued with his prior 21 medications. (AR 587.) 22 By February 2019, Plaintiff was homeless and living with his mother in her car. (AR 23 657.) They traveled cross-country and had recently arrived in San Diego, California. (AR 24 657.) On February 13, 2019, Plaintiff was seen by the County of San Diego Mental Health 25 Services (the “County”) and referred to the Emergency Psychiatric Unit because he was 26 exhibiting symptoms of psychosis. (AR 657.) He reportedly stated that he “feels like 27 someone is sending messages or he sees and knows more than what others sees [sic]— 28 Paranoid.” (AR 657.) During an assessment the following week, after he had taken 1 medication, Plaintiff noted that he had spent his entire life taking care of his mother, who 2 he believed also had bipolar disorder, and he was very protective of her. (AR 657–59, 3 690.) He added that his mother was over-protective of him, which he felt prevented him 4 from making a life for himself. (AR 658, 661, 690.) 5 The County determined that Plaintiff was “in need of psychiatry and supportive 6 mental health services,” noting his “inability to be employed since 2013, even though a 7 college graduate, and his enmeshed relationship with his mother.” (AR 682.) They further 8 noted there was “[m]inimal evidence of an ability to work and be socially comfortable.” 9 (AR 660.) Although Plaintiff initially requested psychiatry services and medication, he 10 subsequently decided he did not want any services. (AR 675–78.) On February 26, 2019, 11 Plaintiff saw Scott Bunner, M.D., for a planned psychiatric assessment, but Plaintiff denied 12 having a chronic or severe mental illness or symptoms. (AR 719.) He reported that his 13 symptoms were infrequent and mild, and he only wanted medication to take as needed once 14 a month or so. (AR 719.) He reported that he only occasionally took the medication he 15 received from urgent care. (AR 719.) Plaintiff refused counseling and further services. 16 (AR 719–21.) 17 On August 15, 2019, Plaintiff was hospitalized at the San Diego County Psychiatric 18 Hospital for symptoms of psychosis and paranoia. (AR 686, 726.) He was brought in on 19 a 5150 escorted by the San Diego police for grave disability. (AR 726.) His mother 20 reported that he had been unable to care for himself, feed himself, or provide for himself. 21 (AR 726.) He had not slept or eaten in thirty-six hours. (AR 726.) She further reported 22 that Plaintiff had stopped taking his medications since his discharge from the hospital in 23 North Carolina in March 2018. (AR 731.) Although Plaintiff had initially presented to the 24 hospital voluntarily, he left the building while checking in and paced the parking lot for 25 three hours. (AR 726.) He was nonresponsive, mute, and acting paranoid and 26 disorganized. (AR 726.) His mother eventually flagged down police officers who escorted 27 him through the front gate. (AR 726.) He was thereafter admitted and prescribed Prozac 28 and Zyprexa/Olanzapine. (AR 686, 726.) He participated in all aspects of treatment and 1 was released on August 19, 2019, at which time he was assessed as “significantly 2 improved.” (AR 686, 726.) However, his judgment at the time of discharge was assessed 3 as poor with regards to his decision to discharge prior to his mental status returning to 4 baseline and his decision to return to living in his mother’s car. (AR 727.) 5 The County offered continued inpatient psychiatric treatment on a voluntarily basis, 6 but Plaintiff declined. (AR 727.) Ariana Nesbit, M.D., a staff psychiatrist, assessed 7 Plaintiff as having a “fair prognosis if he continues taking his medications, avoids abusing 8 recreational substances, and participates in rehabilitation programs; however, it does not 9 bode well for him that he is refusing continued inpatient psychiatric treatment or a step 10 down to a crisis house despite the fact that he is not back at his mental status baseline.” 11 (AR 728.) 12 On August 30, 2019, the County performed an initial Behavioral Health Assessment 13 of Plaintiff. (AR 686.) He had been living between his mother’s car and hotels for nearly 14 eight months at that point. (AR 686.) Plaintiff’s depressed mood was rated as a 7 out of 15 10, and his anxiety was rated as an 8 out of 10. (AR 686.) He reported audio hallucinations 16 of his voice or a male voice dictating the meaning of life and collective consciousness. 17 (AR 686.) He also reported that he sees the sun and often finds meaning in the sun’s 18 shadow. (AR 686.) He reported that he had not been taking his Prozac and 19 Zyprexa/Olanzapine consistently because they cause drowsiness. (AR 686.) The County 20 recommended that Plaintiff have on-going out-patient treatment with medication 21 management. (AR 686.) He was referred to Alpha Homefinders and follow-up for Medi- 22 Cal and food stamps. (AR 705.) 23 On September 6, 2019, Plaintiff went to the Emergency Department at UCSD Health 24 in Hillcrest for disorganization, paranoia, and anxiety. (AR 737, 748.) Plaintiff reported 25 that he had been taking his medications since his last discharge, but only half doses. (AR 26 748.) Hospitalization was recommended, but Plaintiff declined, and the hospital 27 determined he did not meet the hold criteria. (AR 737.) He was released on September 7, 28 with a prescription for Zyprexa/Olanzapine. (AR 737.) After he was released, he took the 1 prescribed medication and then awoke at 2:00 a.m. extremely anxious, which caused him 2 to shut down. (AR 737.) Plaintiff became nonverbal and was not moving, so his mother 3 called an ambulance. (AR 737.) He arrived at the Emergency Department at UCSD on 4 September 8. (AR 736.) Although Plaintiff was initially non-verbal, after receiving 5 Ativan, he was able to participate in an interview. (AR 737.) Plaintiff endorsed a feeling 6 of “fear” of people who are after him, stating that these people are “larger than regular 7 people,” but he “doesn’t know where the people are” so he is constantly looking around 8 for them. (AR 737.) Plaintiff reported finding this feeling overwhelming. (AR 737.) He 9 denied any hallucinations. (AR 737.) Plaintiff refused any hospitalization. (AR 739.) He 10 was prescribed Zyprexa/Olanzapine and Ativan. (AR 740.) 11 On September 13, 2019, Plaintiff was assessed by psychiatrist Gurpreet Ahluwalia, 12 M.D. (AR 708, 722.) He was eating well and sleeping well at night, but still living in a 13 car. (AR 708.) He complained of anxiety, psychosis, paranoia, and thought blocking. (AR 14 708.) He stated that he “sees things and . . . talk[s] to [himself] a lot.” (AR 708.) He also 15 stated that he feels “people are watching [him] and looking at [him] and talking about 16 [him].” (AR 708.) He was started on Abilify for psychosis and mood swings, hydroxyzine 17 for anxiety, and Trazadone for insomnia. (AR 717.) 18 On October 9, 2019, Plaintiff saw Dr. Ahluwalia again. (AR 724–25.) He denied 19 any depression, paranoia, and hallucinations. (AR 724.) He was alert and cooperative, 20 with good memory and attention and fairly good eye contact, but his speech was loud and 21 slightly pressured, his affect blunted, and his judgment and insight limited. (AR 724.) 22 Dr. Ahluwalia continued Plaintiff’s medications. (AR 725.) 23 On January 14, 2020, Plaintiff underwent a Comprehensive Psychiatric Consultative 24 Examination with Dr. Nicholson. (AR 762–67.) Plaintiff was living in a hotel at the time 25 and appeared neatly and casually groomed, made good eye contact, and had good 26 interpersonal contact. (AR 764.) Plaintiff’s mood was depressed, and his affect was 27 dysphoric, but the rest of his mental status examination was largely normal. (AR 764–65.) 28 /// 1 On March 13, 2020, Plaintiff saw Dr. Ahluwalia. (AR 770–72.) He stated he was 2 still living in a motel room. (AR 770.) He reported that he was feeling “pretty good” and 3 felt his medications were helping. (AR 770.) He had run out of his medications about two 4 weeks earlier but was using his mother’s medications. (AR 770.) Plaintiff reported 5 sleeping well and denied any panic attacks, hallucinations, depression, or paranoia. (AR 6 770–71.) His judgment and insight were assessed as limited. (AR 771.) Plaintiff was 7 smoking five marijuana “blunts” a day and drinking four to six beers a day. (AR 770.) 8 Plaintiff was instructed to continue his prior course of treatment, which included taking 9 Abilify, hydroxyzine, and Trazadone. (AR 771.) 10 On October 13, 2020, Plaintiff completed an annual assessment with the North 11 Central Mental Health Center by telephone due to COVID-19 protocols. (AR 798–818.) 12 He stated that he was living in rotating hotel and motel rooms with his parents. (AR 798.) 13 He stated that his symptom presentation impaired his ability to secure stable housing, 14 obtain and maintain employment, and pursue further education. (AR 798.) Plaintiff 15 presented with a stable mood, clear and coherent speech, and good tracking. (AR 798.) 16 He reported that he experiences anxiety, helpless/hopeless feelings, audio hallucinations, 17 isolation, ruminating thoughts, and difficulty concentrating. (AR 798.) He reported that 18 his anxiety comes in waves and is his most notable/problematic symptom. (AR 798.) 19 Plaintiff was “proudly hospital free the past 12 months.” (AR 798.) Plaintiff reported daily 20 use of marijuana and alcohol. (AR 798.) Plaintiff reported that he feels the marijuana 21 helps him sleep and manage his anxiety. (AR 798.) 22 On November 20, 2020, Plaintiff saw Dr. Ahluwalia by telephone due to COVID- 23 19 protocols. (AR 796–97.) He stated he was living in a motel room with his mother and 24 father and felt it was working out well. (AR 796.) He was getting his medicines delivered 25 to his parents. (AR 796.) Plaintiff reported sleeping well and denied any anxiety, 26 depression, mood swings, hallucinations, or psychosis. (AR 796.) Plaintiff was smoking 27 seven to eleven marijuana “blunts” per day and drinking four to six beers per day. (AR 28 796.) Plaintiff was instructed to continue his prior course of treatment. (AR 797.) 1 On April 16, 2021, Plaintiff saw Dr. Ahluwalia by telephone due to COVID-19 2 protocols. (AR 820–21.) He stated he was living in a motel room with his mother. (AR 3 820.) Plaintiff reported feeling “pretty good.” (AR 820.) Plaintiff reported sleeping well 4 and denied any depression, mood swings, hallucinations, or psychosis. (AR 820–21.) 5 However, he admitted to feeling moody and irritable and having anxiety and some 6 paranoia. (AR 821.) His judgment and insight were assessed as limited. (AR 821.) 7 Plaintiff felt a higher dose of Abilify (15 mg) was helping to control his mood and paranoia 8 and the voices. (AR 820.) Plaintiff reported smoking seven to ten marijuana “blunts” per 9 day and drinking four to six beers per day. (AR 821.) 10 The last treatment note of the record is from July 20, 2021. On that date, Plaintiff 11 saw Dr. Ahluwalia by telephone due to COVID-19 protocols. (AR 843–44.) He stated he 12 had moved to a new apartment with his parents, and it felt like home. (AR 843.) Plaintiff 13 reported feeling “good.” (AR 843.) Plaintiff reported sleeping well and denied any 14 depression, mood swings, hallucinations, paranoia, or psychosis. (AR 843.) However, he 15 reported some anxiety and requested a higher dose of hydroxyzine. (AR 843.) His 16 judgment and insight were assessed as limited. (AR 844.) Plaintiff reported smoking eight 17 marijuana “blunts” per day and drinking four beers per day. (AR 843.) Dr. Ahluwalia 18 continued Plaintiff’s Abilify and Trazodone and increased his hydroxyzine to 100mg. (AR 19 844.) 20 2. Summary of Plaintiff’s Symptom Testimony 21 a. Administrative Hearing Testimony 22 At the administrative hearing held on September 13, 2021, Plaintiff testified as 23 follows: 24 Plaintiff is a twenty-eight-year-old man with a bachelor’s degree. (AR 45.) He lives 25 in an apartment with his mother and does not have a driver’s license. (AR 46.) Plaintiff 26 tries to “avoid [driving] as much as possible,” instead taking the bus or having his mother 27 drive him. (AR 52.) 28 /// 1 Plaintiff was diagnosed with bipolar condition and schizoaffective disorder in 2 April 2015. (AR 50.) He has difficulty finishing things that he has started and, prior to his 3 diagnosis, would “hear voices.” (AR 50.) Plaintiff continues to have delusions that people 4 are out to get him. (AR 51.) He experiences “crippl[ing]” periods of anxiety approximately 5 once a month or every other month. (AR 48.) During his panic attacks, Plaintiff 6 experiences “delusions” and feelings of impending doom. (AR 49.) Oftentimes, Plaintiff 7 has difficulty concentrating and staying focused, but he is unsure if he has memory trouble 8 and, although his delusions make it “hard to . . . maintain” friends, he does not have much 9 difficulty getting along with people. (AR 46-51.) Plaintiff takes three types of anti-anxiety 10 and sleep medications. (AR 47.) 11 Plaintiff is currently unemployed and is not seeking employment because he recently 12 went through a period of “heavy drinking” and homelessness. (AR 45-47.) Additionally, 13 he worries that his panic and anxiety attacks would interfere with potential responsibilities 14 and his ability to work. (AR 51.) In 2012 and 2013, Plaintiff worked at Chipotle for six 15 months as a cashier and doing dishes. (AR 45–46.) This is the only job he has had in the 16 last fifteen years. (AR 45; see also AR 258–59.) Instead of working, Plaintiff spends his 17 day listening to music, watching movies, or playing video games. (AR 47.) He does not 18 perform any household chores besides taking out the trash. (Id.) 19 Up until a year and a half ago, Plaintiff had nine hospitalizations for mental health 20 reasons. (AR 52.) Although Plaintiff has become “more acquainted” with his condition 21 over the years, he believes that it is “getting worse,” as he did not hear voices early on. 22 (AR 53.) He admitted to smoking marijuana the morning of the administrative hearing and 23 drinking alcohol the night before. (AR 47.) He does not believe that his mental health 24 condition would improve if he were to stop using marijuana and alcohol because they “help 25 [his] mood.” (AR 47.) 26 b. Function Report 27 Plaintiff submitted a Function Report, dated November 30, 2020. (AR 313–20.) In 28 the Function Report, Plaintiff stated that he lives in a hotel with his family and his ability 1 to work is limited by his psychosis and schizophrenia. (AR 313.) His mental conditions 2 do not allow him to sleep or concentrate. (AR 314.) Additionally, his mental conditions 3 have affected his memory, understanding, moods, and ability to follow instructions and get 4 along with others. (AR 318.) 5 Due to an inability to concentrate and focus, Plaintiff does not perform household 6 chores. (AR 315.) Furthermore, Plaintiff cannot handle a savings account or use a 7 checkbook. (AR 316.) From the time that he wakes up until he goes to bed, Plaintiff 8 spends his time using the bathroom, pacing, and listening to music. (AR 314.) He bathes 9 every three to four weeks and can prepare frozen dinners, but someone else cares for his 10 hair and cooks for him. (AR 314.) He needs reminders to bathe, eat, and take his 11 medication. (AR 315.) 12 Every one to two weeks, Plaintiff goes outside. (AR 316.) When going out, Plaintiff 13 travels by walking or riding in a car, accompanied by his mother. (AR 316.) He interacts 14 with others through texting, playing games, or talking on the phone. (AR 317.) 15 Plaintiff does not follow written instructions well and cannot focus when orally 16 instructed. (AR 318.) While working at Chipotle, Plaintiff was often threatened with 17 getting fired. (AR 318.) He does not handle stress or changes in routine well and has a 18 fear of getting stuck in cars. (AR 319.) Plaintiff wears glasses prescribed by a doctor in 19 2010 for distance. (AR 319.) He currently takes three medications for his conditions: 20 Abilify, Atarax, and Trazadone. (AR 320.) He experiences drowsiness from all three 21 medicines and sleepiness from the latter two. (AR 320.) 22 B. The ALJ Erred in Discounting Plaintiff’s Symptom Testimony 23 1. Parties’ Arguments 24 Plaintiff argues that the ALJ did not provide specific, clear, and convincing reasons 25 for discounting his symptom testimony regarding his mental impairments. (ECF No. 16 at 26 13.) Specifically, he argues that the ALJ used “routine boilerplate language,” rather than 27 the requisite detailed discussion, to find that Plaintiff’s statements regarding the “intensity, 28 persistence[,] and limiting effects of [his] symptoms” were inconsistent with the medical 1 evidence and other evidence in the record. (Id.) Plaintiff claims that his testimony “aligned 2 with the medical evidence” on record which documented a “long history of treatment for 3 schizophrenia, schizoaffective disorder, and bipolar disorder with psychotic features.” (Id. 4 at 7.) Additionally, Plaintiff claims that the ALJ’s reasons for discounting his symptom 5 testimony–i.e., he “responded well to psychiatric medications” and was “capable of a wide 6 range of activities of daily living,” are not clear, convincing, or well-supported by evidence 7 in the record. (Id. at 16.) 8 In opposition, the Commissioner argues that the ALJ “identified evidence showing 9 that when Plaintiff complied with treatment recommendations, he improved dramatically.” 10 (ECF No. 18 at 3.) Specifically, the Commissioner argues that “Plaintiff was not always 11 compliant with treatment,” despite its “apparent utility.” (Id. at 5.) Accordingly, the 12 Commissioner claims that Plaintiff’s claims regarding the severity of his disabling 13 symptoms were undermined by his “medication non-adherence.” (Id. at 6.) 14 2. Legal Standard 15 The ALJ must engage “in a two-step analysis to determine whether a claimant’s 16 testimony regarding subjective pain or symptoms is credible.” Garrison v. Colvin, 759 17 F.3d 995, 1014 (9th Cir. 2014). At the first step, “the ALJ must determine whether the 18 claimant has presented objective medical evidence of an underlying impairment which 19 could reasonably be expected to produce the pain or other symptoms allege.” Id. (internal 20 quotation marks and citation omitted). 21 If the claimant satisfies the first step, and there is no determination of malingering 22 by the ALJ, “the ALJ must provide ‘specific, clear, and convincing reasons for’ rejecting 23 the claimant’s testimony regarding the severity of the claimant’s symptoms.” Treichler v. 24 Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014) (quoting Smolen v. 25 Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)); see also Garrison, 759 F.3d at 1014–15; 26 Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007). The Ninth Circuit “require[s] the ALJ 27 to ‘specifically identify the testimony [from a claimant] [the ALJ] finds not to be credible 28 and . . . explain what evidence undermines this testimony.’” Id. (quoting Holohan v. 1 Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001)); see also Lambert v. Saul, 980 F.3d 1266, 2 1268 (9th Cir. 2020) (“[T]he ALJ must identify the specific testimony that he discredited 3 and explain the evidence undermining.”); Smolen, 80 F.3d at 1284 (“The ALJ must state 4 specifically which symptom testimony is not credible and what facts in the record lead to 5 that conclusion.”); Parra, 481 F.3d at 750 (“The ALJ must provide clear and convincing 6 reasons to reject a claimant’s subjective testimony, by specifically identifying what 7 testimony is not credible and what evidence undermines the claimant’s complaints.” 8 (internal quotation marks and citation omitted)). 9 3. Analysis of ALJ’s Reasons for Rejecting Symptom Testimony 10 Plaintiff alleges that he is limited in his ability to work by his schizophrenia, 11 schizoaffective disorder, ADHD, psychosis, anxiety, and panic attacks. (AR 276; see also 12 AR 26, 59, 313.) After reviewing Plaintiff’s testimony and the medical record, the ALJ 13 found that Plaintiff’s “medically determinable impairments could reasonably be expected 14 to cause the alleged symptoms.” (AR 27.) However, the ALJ rejected Plaintiff’s symptom 15 testimony because his statements “concerning the intensity, persistence, and limiting 16 effects of the alleged symptoms are not entirely consistent with the medical evidence or 17 other evidence in the record.” (AR 27.)2 18 As the ALJ made no finding of malingering, the Court must determine whether the 19 ALJ provided clear, specific, and convincing reasons for disregarding Plaintiff’s subjective 20 symptom testimony. See Treichler, 775 F.3d at 1102. The ALJ did not point to any specific 21 symptom testimony that he found not credible. Instead, after detailing Plaintiff’s medical 22 23

24 25 2 In determining Plaintiff’s RFC, the ALJ considered Plaintiff’s history of polysubstance abuse, but found it was immaterial to the disability determination, as 26 Plaintiff would have limitations associated with the other mental impairments regardless 27 of the substance abuse. (AR 31.) He also noted that the “effects of [Plaintiff’s] current and past substance abuse appear to cause modest impact on his concentration and 28 1 history, evaluating the medical opinions, and assessing Plaintiff’s mother’s testimony, the 2 ALJ simply stated in a conclusory paragraph: 3 Based on the foregoing, the undersigned finds the claimant has the above 4 residual functional capacity assessment, which is supported by the objective medical evidence, discussed above. The undersigned recognizes that the 5 claimant has schizoaffective disorder, bipolar type, ADHD, depressive 6 disorder, anxiety disorder, unspecified type, and polysubstance abuse, which can affect his concentration and focus. However, the claimant has also not 7 shown any mental or adaptive deficits consistent with those of a disabled 8 person (see for example, Exs. 1F/5-6, 31-32, 55; 2F/2-4, 58, 63; 3F/3, 9, 15, 21, 26, 31, 36, 41, 46, 56, 67, 73; 4F/20-21, 33, 38, 43, 48, 54, 60, 64, 66, 68, 9 72, 78, 84, 88, 90; 5F/59-60, 64, 69, 71; 6F/4-5, 14-16; 7F/3-4; 8F/2-3; 9F/2, 10 4, 17-18; 10F/2; and, 11F/1-2). In fact, the evidence demonstrates he is capable of a wide range of activities of daily living. He also responded well 11 to psychiatric medications prescribed by his mental health specialist. While 12 the claimant’s conditions may cause him to have some restrictions and limitations with work related activities, the evidence in file indicates that those 13 limitations are not severe enough to keep him from working within the 14 residual functional capacity assessed in this decision. 15 (AR 34.) 16 Based on the foregoing paragraph, the Court construes the ALJ’s decision as 17 discounting unspecified symptom testimony for the following two reasons: (1) Plaintiff 18 responded well to the psychiatric medications prescribed by his mental health providers; 19 and (2) Plaintiff is capable of a wide range of activities of daily living. The Court addresses 20 each reason below. 21 a. Response to Psychiatric Medications 22 The ALJ discounted Plaintiff’s subjective symptom testimony because Plaintiff 23 allegedly “responded well to psychiatric medications prescribed by his mental health 24 specialist.” (AR 34.) Although the ALJ did not cite to specific treatment notes in his 25 discussion of Plaintiff’s symptom testimony, in discussing Plaintiff’s medical history, he 26 noted that Plaintiff generally feels “pretty good” when regularly taking his medications. 27 (AR 27–31.) For the reasons discussed below, the Court finds that this is not a clear and 28 1 convincing reason for discounting Plaintiff’s testimony regarding the severity of his 2 symptoms. 3 In assessing the credibility of a claimant’s subjective symptom testimony, an ALJ 4 may consider whether the claimant had a “fair response” to medication or treatment. See 5 Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (“Impairments 6 that can be controlled effectively with medication are not disabling for the purpose of 7 determining eligibility for SSI benefits.”); Odle v. Heckler, 707 F.2d 439, 440 (9th Cir. 8 1983); see also 20 C.F.R. § 404.1529(c)(3)(v) (listing the treatment an individual has 9 received for relief of pain or other symptoms as a factor the ALJ may consider in evaluating 10 symptoms); 20 C.F.R. § 416.929(c)(3)(v) (same). Evidence that a claimant’s condition has 11 been consistently managed or corrected by medication may undermine subjective 12 complaints of disabling limitations. See Wellington v. Berryhill, 878 F.3d 867, 876 (9th 13 Cir. 2017) (suggesting that evidence of medical treatment successfully relieving symptoms 14 such that the individual can return to a level of function close to the level of function they 15 had before they developed the symptoms or signs of mental disorders can undermine a 16 claim of disability); William K. v. Saul, No. 2:18-cv-05408-GJS, 2019 WL 4466789, at *3 17 (C.D. Cal. Sept. 18, 2019) (holding that the ALJ properly relied on claimant’s ability to 18 control symptoms with medication where last four examinations were consistently normal 19 and no treatment adjustments were needed). However, when assessing mental health 20 issues, “it is error to reject a claimant’s testimony merely because symptoms wax and wane 21 in the course of treatment.” Garrison, 759 F.3d 995 at 1017. With respect to mental health 22 issues, “[c]ycles of improvement and debilitating symptoms are a common occurrence, and 23 in such circumstances it is error for an ALJ to pick out a few isolated instances of 24 improvement over a period of months or years and to treat them as a basis for concluding 25 a claimant is capable of working.” Id. 26 Here, the medical evidence reflects that Plaintiff’s condition improved when he 27 followed a prescribed treatment plan. Prior to January 2020, Plaintiff had been hospitalized 28 nine times. (AR 763.) However, several of Plaintiff’s hospitalizations appear to have 1 followed a period of non-compliance with his medications. (E.g., AR 383, 359, 559, 719, 2 731, 686, 748.) When Plaintiff was reportedly compliant with his medications, he 3 responded well to treatment. 4 After he was hospitalized in April 2015, Plaintiff reported doing generally well on 5 his medications for approximately two years. (E.g., AR 482–562, 588–92, 614–55.) In 6 February 2017, despite reportedly taking his medications as prescribed, Plaintiff was 7 admitted to a psychiatric hospital when he became “very psychotic and delusional.” (AR 8 605, 610.) However, he was stabilized and on March 2, 2017, Dr. Qamar noted that 9 “[s]ince [Plaintiff] has been taking meds regularly, [he] is making progress and [his] 10 symptoms are improving daily.” (AR 605.) Plaintiff thereafter continued to do well on his 11 medications in April and July 2017. (AR 595, 600.) 12 In 2018, Plaintiff was hospitalized in North Carolina, but it appears he may have 13 stopped taking his medications around that time. (AR 563, 658, 687, 730, 731.) In late 14 2018, Plaintiff was reportedly back on his medications, but his psychotic symptoms were 15 still “intermittently present.” (AR 582–85.) As of February 2019, Plaintiff was homeless 16 and living with his mother out of her car and had recently arrived in San Diego. (AR 657.) 17 On February 13, 2019, the County referred him the Emergency Psychiatric Unit for 18 exhibiting symptoms of psychosis. (AR 657.)3 He reported that he only occasionally took 19 the medication he received from urgent care and declined further services. (AR 719–21.) 20 In August 2019, Plaintiff was hospitalized for symptoms of psychosis and paranoia, after 21 being brought in on a 5150 hold. (AR 686, 726.) Plaintiff’s mother reported that he had 22 not been taking his medications since his discharge from the hospital in North Carolina in 23 March 2018. (AR 731.) At the time of release, Dr. Nesbit assessed Plaintiff as having a 24 25 26 3 At the same time he was assessed as having psychotic symptoms, Plaintiff self- 27 reported that his symptoms were infrequent and mild, and he only wanted medication to take as needed once a month or so. (AR 719.) Therefore, it is unclear to what extent 28 1 “fair prognosis if he continues taking his medications, avoids abusing recreational 2 substances, and participates in rehabilitation programs; however, it does not bode well for 3 him that he is refusing continued inpatient psychiatric treatment or a step down to a crisis 4 house despite the fact that he is not back at his mental status baseline.” (AR 728.) 5 In August and September 2019, Plaintiff continued to experience hallucinations, 6 depression, anxiety, paranoia, and disorganization and presented to the emergency room. 7 (AR 686, 737, 748.) He reported that he had not been taking his medications consistently 8 or was only taking half doses. (AR 686, 748.) Beginning in March 2020, Plaintiff reported 9 feeling “pretty good” and felt his medications were helping. (AR 770.) In October 2020, 10 Plaintiff was “proudly hospital free the past 12 months,” but still experienced anxiety, 11 helpless/hopeless feelings, audio hallucinations, isolation, ruminating thoughts, and 12 difficulty concentrating. (AR 798.) He noted that his anxiety comes in waves. (AR 798.) 13 Plaintiff further reported doing well in November 2020 and April 2021. (AR 796–97, 820– 14 21.) In November 2020, he reported sleeping well and denied any anxiety, depression, 15 mood swings, hallucinations, or psychosis. (AR 796.) However, in April 2021, Plaintiff 16 admitted to feeling moody and irritable and having anxiety and some paranoia. (AR 821.) 17 His judgment and insight were assessed as limited. (AR 821.) 18 On July 20, 2021, according to his last treatment note of record, Plaintiff reported 19 sleeping well and denied any depression, mood swings, hallucinations, paranoia, or 20 psychosis. (AR 843.) However, he reported some anxiety and requested a higher dose of 21 hydroxyzine. (AR 843.) His judgment and insight were still assessed as limited. (AR 22 844.) 23 Based upon this treatment history, the ALJ discounted Plaintiff’s symptom 24 testimony because Plaintiff responds well to his medications. However, the ALJ did not 25 specify, as required, which testimony he found not to be credible. See Lambert, 980 F.3d 26 at 1268 (“[T]he ALJ must identify the specific testimony that he discredited and explain 27 the evidence undermining.”); Treichler, 775 F.3d at 1102 (requiring the ALJ to specifically 28 identify the testimony he finds not to be credible and explain what evidence undermines 1 this testimony). This requirement is particularly critical here, where “responding well” to 2 medications is a relative thing.4 Per the treatment records, when Plaintiff is not consistently 3 taking his medications, his symptoms become so severe he has frequently required 4 hospitalization. Yet even when he is taking his medications, the medical records reflect 5 that he has periods of moodiness, irritability, anxiety, paranoia, hallucinations, ruminating 6 thoughts, difficulty concentrating, and helpless/hopeless feelings. He also still feels the 7 need to self-medicate with alcohol and marijuana, and his doctor consistently assessed him 8 as having limited insight and judgment. Moreover, as discussed below, even when Plaintiff 9 is “responding well” to medications, his daily activities are extremely limited. 10 In light of this, in the absence of the ALJ articulating which symptom testimony he 11 is discounting, based upon which medical records, the Court cannot find this to be a 12 “specific, clear, and convincing reason” for discounting Plaintiff’s subjective symptom 13 testimony. Smolen, 80 F.3d at 1281.5 14 b. Daily Activities 15 The next reason cited by the ALJ for discounting Plaintiff’s subjective symptom 16 testimony is that the evidence demonstrates that Plaintiff “is capable of a wide range of 17 activities of daily living.” (AR 34.) In his decision, the ALJ described Plaintiff’s activities 18 of daily living as follows: 19 [Plaintiff] goes to the bathroom, paces, and listens to music; he bathes every 3–4 weeks; he can prepare frozen dinners; he does not do any housework; he 20 walks and rides in a car, but he cannot go out alone and he does not drive; he 21 does not do any shopping; he does not pay bills, count change, handle a 22 23 4 See Garrison, 759 F.3d at 1017–18 (“Reports of improvement in the context of 24 mental health issues must be interpreted with an understanding of the patient’s overall well- 25 being and the nature of [his] symptoms.” (internal quotation marks and citation omitted)). 5 See Malkin v. Saul, 818 F. App’x 738, 739 n.1 (9th Cir. 2020) (noting that “existing 26 precedents make clear that, after determining whether the ALJ’s factual findings are 27 supported by substantial evidence, [courts] should then take the additional step of asking whether those facts give rise to clear and convincing reasons for discrediting the claimant’s 28 1 savings account or use a checkbook due to lack of focus; his hobby is music; he has problems getting along with family and friends, but he texts, talks to, 2 and plays video games with others. 3 4 (AR 26.) The ALJ also noted that, during the day, Plaintiff “watches movies or plays video 5 games,” “takes the trash out,” and has indicated he “will start trying to clean the bathroom.” 6 (AR 26.) Plaintiff has “some basic friends,” but finds it hard to maintain them because “he 7 thinks they are out to get him.” (AR 27.) Plaintiff has never had a driver’s license and 8 “either gets a ride from his mother or takes a bus.” (AR 27.) Plaintiff also frequently 9 smokes marijuana and drinks alcohol during the day. (AR 26–31.) For the reasons set 10 forth below, the Court finds that this reason is not a specific, clear, and convincing reason 11 for discounting Plaintiff’s subjective symptom testimony. Smolen, 80 F.3d at 1281. 12 “Engaging in daily activities that are incompatible with the severity of symptoms 13 alleged can support an adverse credibility determination.” Ghanim v. Colvin, 763 F.3d 14 1154, 1165 (9th Cir. 2014); see also Revels v. Berryhill, 874 F.3d 648, 667 (9th Cir. 2017) 15 (“[I]nconsistent daily activities may provide a justification for rejecting symptom 16 testimony[.]”); Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (stating that a contradiction 17 between a claimant’s daily activities and his or her testimony is a ground for forming the 18 basis of an adverse credibility determination). In other words, a court may consider 19 inconsistencies between a claimant’s words and her actions. See Fair v. Bowen, 885 F.2d 20 597, 604 (9th Cir. 1989), superseded on other grounds by 20 C.F.R. § 404.1502(a); see 21 also Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (“Only if the level of activity 22 were inconsistent with Claimant’s claimed limitations would these activities have any 23 bearing on Claimant’s credibility.”). However, “the mere fact that a plaintiff has carried 24 on certain daily activities, such as grocery shopping, driving a car, or limited walking for 25 exercise, does not in any way detract from her credibility as to her overall disability.” 26 Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001). A claimant “does not need to be 27 utterly incapacitated in order to be disabled.” Id. (internal quotation marks and citation 28 omitted). 1 Daily activities may also “be grounds for an adverse credibility finding ‘if a claimant 2 is able to spend a substantial part of his day engaged in pursuits involving the performance 3 of physical functions that are transferable to a work setting.’” Orn, 495 F.3d at 639 4 (quoting Fair, 885 F.2d at 603). To meet this standard, the ALJ “must make ‘specific 5 findings relating to [the daily] activities’ and their transferability [to a work setting] to 6 conclude that a claimant’s daily activities warrant an adverse credibility determination.” 7 Id. (quoting Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005)). 8 Here, the ALJ did not identify any inconsistencies between Plaintiff’s symptom 9 testimony and his daily activities to support an adverse credibility finding. The Court finds 10 that Plaintiff’s daily activities are consistent with his symptom testimony. Plaintiff claims 11 he cannot concentrate or focus and has frequent panic attacks and crippling periods of 12 anxiety. (AR 48, 315.) As a result, he cannot perform household chores, handle a savings 13 account, or use a checkbook. (AR 315–16.) He only bathes every three to four weeks, 14 needs assistance with grooming and personal care, only spends thirty minutes a week 15 warming up frozen meals, does not drive, and needs constant reminders to bathe, eat, and 16 take his medication. (AR 314–16.) Frequently, Plaintiff’s only daily activities include 17 going to the bathroom, listening to music, and “pacing all day.” (AR 306.) The ALJ does 18 not identify any specific daily activity that is inconsistent with Plaintiff’s claimed mental 19 limitations. Rather, the ALJ only generally states that “the claimant’s conditions may cause 20 him to have some restrictions and limitations with work related activities,” but they are not 21 severe enough to keep him from working within the assessed RFC. (AR 34.) This is 22 insufficient to meet the clear and convincing burden. 23 The ALJ also did not make specific findings relating to the cited daily activities and 24 their transferability to a work setting. An ALJ may justifiably disregard symptom 25 testimony if a claimant can spend a “substantial part of his day” engaged in activities 26 involving the performance of functions “transferable to a work setting.” Fair, 885 F.2d at 27 603. Here, the ALJ described an individual who does minimal daily activities, only bathes 28 every three to four weeks, cannot go out alone, cannot focus, cannot handle basic functions 1 such as shopping or paying the bills, and cannot handle stressful situations without 2 marijuana and alcohol. (AR 26.) This does not suggest an individual capable of substantial 3 gainful activity.6 Moreover, nothing indicates that Plaintiff’s daily activities of listening 4 to music, watching movies, and playing video games are activities that are transferable to 5 a work setting in any meaningful way. See, e.g., Orn, 495 F.3d at 639 (finding that reading, 6 watching television, and coloring were not skills transferable to work setting). For 7 example, although Plaintiff listens to music, he does so while “pacing all day.” (AR 306.) 8 Additionally, the time Plaintiff spends performing other activities, such as warming up 9 food and taking out the trash, is minimal. (AR 47, 315.) He spends thirty minutes weekly 10 warming up frozen meals and there is no indication how often he takes out the trash. See, 11 e.g., Diedrich v. Berryhill, 874 F.3d 634, 643 (9th Cir. 2017) (finding house chores and 12 cooking simple meals “are not similar to typical work responsibilities”). 13 For the foregoing reasons, the Court finds that Plaintiff’s alleged “wide range of 14 activities of daily living” is also not a specific, clear, and convincing reason for discounting 15 Plaintiff’s subjective symptom testimony. Smolen, 80 F.3d at 1281. Because the ALJ did 16 not provide any specific, clear, and convincing reasons for discounting Plaintiff’s symptom 17 testimony, he committed reversible error. 18 /// 19 /// 20 21 6 See 20 C.F.R. §§ 404.1505, 416.905 (disability is defined as “the inability to do any 22 substantial gainful activity by reason of any medically determinable physical or mental 23 impairment which can be expected to . . . last for a continuous period of not less than 12 months”); id. §§ 404.1510, 416.910 (“Substantial gainful activity means work that . . . 24 [i]nvolves doing significant and productive physical or mental duties; and . . . [i]s done (or 25 intended) for pay or profit.”); id. §§ 404.1545(c), 416.945(c) (an ALJ assessing a claimant’s mental activities must determine the claimant’s RFC “for work activity on a 26 regular and continuing basis”); cf. id. § Pt. 404, Subpt. P, App. 1, § 12.00(F)(4)(a) (in 27 assessing the “paragraph B” criteria, an ALJ must consider whether the claimant “can use the area of mental functioning on a regular and continuing basis (8 hours a day, 5 days a 28 1 C. The ALJ Erred in Evaluating Dr. Nicholson’s Opinion 2 1. Parties’ Arguments 3 Plaintiff argues that the ALJ erred in discounting the moderate mental limitations 4 assessed by Dr. Nicholson because the discounted opinions in Dr. Nicholson’s psychiatric 5 evaluation were supported by his own assessment, Plaintiff’s self-endorsed symptoms, and 6 the most recent treatment record reviewed by Dr. Nicholson. (ECF No. 16 at 20–21.) 7 Plaintiff further argues that Dr. Nicholson’s opinion was consistent with the other evidence 8 of record and the ALJ failed to address this factor. (Id. at 21–23.) In sum, Plaintiff argues 9 that the ALJ failed to properly evaluate and articulate the consistency and supportability 10 factors with regarding to Dr. Nicholson’s assessment of moderate mental limitations. (Id. 11 at 23.) 12 In response, Defendant argues that the ALJ reasonably determined that the portion 13 of Dr. Nicholson’s opinion which assessed moderate mental limitations was “less 14 persuasive.” (ECF No. 18 at 6.) Defendant contends that this part of the opinion was less 15 persuasive because the “objective evidence did not support Dr. Nicholson’s opinion.” (Id. 16 at 7.) Additionally, Defendant argues that the treatment records that Dr. Nicholson 17 reviewed did not form the basis for his opinion because the doctor “explicitly stated” that 18 his functional assessment was “[b]ased on the examination today.” (Id.; see also AR 766.) 19 2. Legal Standard 20 Under the revised regulations which apply to claims, such as this one, filed on or 21 after March 27, 2017, an ALJ must evaluate the persuasiveness of all the medical opinions 22 and articulate in the decision his or her assessment as to each. See 20 C.F.R. §§ 23 404.1520c(b), 416.920c(b). In evaluating the persuasiveness of a medical opinion, an ALJ 24 will consider the following factors: (1) supportability; (2) consistency; (3) relationship with 25 the claimant, including the length, purpose, and extent of the treatment relationship, 26 frequency of examinations, and examining relationship; (4) specialization; and (5) any 27 other factors that tend to support or contradict the medical opinion, including familiarity 28 with the other evidence in the claim. See id. §§ 404.1520c(c)(1)–(5), 416.920c(c)(1)–(5). 1 Although an ALJ may discuss each of the factors to be considered in his or her opinion, 2 the regulations only require an ALJ to explain how he or she considered the most important 3 factors—supportability and consistency—when determining a medical opinion’s 4 persuasiveness, unless two conflicting medical opinions are both equally well-supported 5 and consistent with the record. See id. §§ 404.1520c(b)(2)–(3), 416.920c(b)(2)–(3). 6 The revised regulations override the Ninth Circuit’s treating physician rule, which 7 accorded greater deference to the opinions of treating physicians due to their relationship 8 with the claimant. The treating physician rule required clear and convincing reasons for 9 rejecting an uncontradicted medical opinion of a treating physician, and specific and 10 legitimate reasons for rejecting a contradicted medical opinion of a treating physician. 11 Woods v. Kijakazi, 32 F.4th 785, 789–92 (9th Cir. 2022). However, “[e]ven under the new 12 regulations, an ALJ cannot reject an examining or treating doctor’s opinion as unsupported 13 or inconsistent without providing an explanation supported by substantial evidence.” Id. 14 at 792; accord Petritz v. Kijakazi, No. 22-35155, 2022 WL 17592191, at *1 (9th Cir. Dec. 15 13, 2022); Jones v. Saul, No. 2:19-cv-01273 AC, 2021 WL 620475, at *6 (E.D. Cal. Feb. 16 17, 2021). 17 In evaluating the persuasiveness of medical opinions, the “most important factors” 18 are “supportability” and “consistency.” See 20 C.F.R. §§ 404.1520c(a), 416.920c(a); see 19 also Woods, 32 F.4th at 791. Supportability means the extent to which a medical source 20 supports the medical opinion by explaining the “relevant . . . objective medical evidence.” 21 See 20 C.F.R. §§ 404.1520c(c)(1), 416.920c(c)(1). Consistency means the extent to which 22 a medical opinion is “consistent . . . with the evidence from other medical sources and 23 nonmedical sources in the claim.” See id. §§ 404.1520c(c)(2), 416.920c(c)(2). An ALJ 24 must “articulate . . . how persuasive” he or she finds “all of the medical opinions” from 25 each doctor or other source, and “explain how [her or she] considered the supportability 26 and consistency factors” in reaching these findings. See id. §§ 404.1520c(b), 416.920c(b). 27 /// 28 /// 1 3. Summary of Dr. Nicholson’s Opinion 2 On January 14, 2020, Plaintiff met with psychiatrist Dr. Nicholson for a 3 Comprehensive Psychiatric Evaluation. (AR 762.) Plaintiff’s mother drove him to the 4 appointment and he “was able to provide picture ID as he checked in for the appointment.” 5 (AR 762.) Dr. Nicholson noted that Plaintiff “appeared to be a reliable historian.” (AR 6 762.) 7 Plaintiff’s chief complaint was depression. (AR 762.) He reported feeling depressed 8 about financial problems, being bothered by auditory hallucinations “commanding him to 9 pull his hair out,” and experiencing episodes in the past where he felt “overly alert and 10 paranoid.” (AR 763.) During those episodes, Plaintiff experienced “decreased need for 11 sleep and racing thoughts.” (AR 763.) Plaintiff stated that he recently felt depressed, 12 endorsing insomnia, decreased energy, trouble concentrating, and a decreased interest in 13 normal activities. (AR 763.) 14 Dr. Nicholson diagnosed Plaintiff with psychotic disorder based on Plaintiff’s prior 15 history of hallucinations and paranoia, and bipolar disorder based on Plaintiff’s “current 16 history” of depression and prior history of mania or hypomania. (AR 765–66.) 17 Dr. Nicholson indicated he reviewed treatment records dated September 13, 2019, which 18 listed diagnoses of schizoaffective disorder and bipolar disorder. (AR 762.)7 Plaintiff also 19 reported a family history of bipolar disorder. (AR 763.) 20 Plaintiff reported taking three psychiatric medications: Abilify, hydroxyzine, and 21 trazodone. (AR 763.) He also reported “occasionally us[ing] alcohol and cannabis but 22 23 7 Dr. Nicholson stated that his functional assessment was “[b]ased on [his] 24 examination,” but Plaintiff points out that the September 13, 2019 treatment notes reviewed 25 by Dr. Nicholson indicate that Plaintiff had ongoing depression and anxiety, poor hygiene, a malodorous and disheveled appearance, slow speech, tangential thought process, 26 restricted affect, an anxious mood, difficulty concentrating, limited judgment, marginal 27 insight, visual hallucinations, and paranoid delusions. (ECF No. 16 at 20–21 (citing AR 708–09, 714–15, 762).) These treatment notes consisted of an 11-page psychiatric 28 1 denied any history of problems in his life related to alcohol or cannabis.” (AR 763.) 2 Plaintiff stated that he last held a job as a restaurant server in 2013. (AR 764.) However, 3 he stopped working to resume attending college. (AR 764.) He currently lives in a hotel 4 where his mother cooks and does the laundry. (AR 764.) Although he was experiencing 5 “no difficulty with dressing, bathing or hygiene,” Plaintiff does not drive “because he does 6 not have a license.” (AR 764.) 7 During Plaintiff’s mental status examination, Dr. Nicholson noted that Plaintiff “was 8 neatly and casually groomed,” made eye contact, and “was generally cooperative.” (AR 9 764.) Plaintiff volunteered information spontaneously; “[t]here was no psychomotor 10 agitation or retardation.” (AR 764.) There was no evidence of manipulation, as Plaintiff 11 seemed to be “genuine and truthful.” (AR 764.) Plaintiff “did not appear to be under the 12 influence of drugs or alcohol.” (AR 764.) Dr. Nicholson noted that Plaintiff’s thought 13 processes appeared “coherent and organized.” (AR 764.) Plaintiff denied any plan to harm 14 himself or others and “did not appear to be responding to internal stimuli during the 15 interview.” (AR 764.) 16 Dr. Nicholson assessed Plaintiff’s mood as depressed and his affect as dysphoric, 17 although “he was not tearful.” (AR 765.) Dr. Nicholson noted that Plaintiff appeared to 18 be alert and of average intelligence, with a “grossly intact” fund of knowledge, insight, and 19 judgment. (AR 765.) Plaintiff was able to spell “world” forward correctly, but when asked 20 to spell it backward, he spelled it “d-l-o-r-w.” (AR 765.) Plaintiff could perform serial 21 threes and “correctly stated that 80 cents would be received from a dollar if two oranges 22 were bought at 10 cents each.” (AR 765.) His speech was “normally and clearly 23 articulated.” (AR 765.) 24 Dr. Nicholson assessed that Plaintiff’s condition was “expected to improve in the 25 next twelve months with active treatment.” (AR 766.) Furthermore, Dr. Nicholson opined 26 that Plaintiff is able to understand, remember, and carry out simple one- or two-step job 27 instructions, and is able to do detailed and complex instructions. (AR 766.) He further 28 opined that Plaintiff was mildly limited in his ability to maintain concentration, attention, 1 persistence, and pace, to accept instructions from supervisors, and to maintain regular 2 attendance and perform work activities on a consistent basis. (AR 766.) Lastly, 3 Dr. Nicholson opined that Plaintiff was moderately limited in his ability to relate and 4 interact with coworkers and the public, and to perform work activities without special or 5 additional supervision. (AR 766.) 6 4. Analysis 7 In his decision, the ALJ determined that Dr. Nicholson’s opinion was “overall 8 persuasive.” (AR 33.) However, he found the following portion of Dr. Nicholson’s 9 opinion to be less persuasive: “[Plaintiff] has moderate limitation in the abilities to relate 10 and interact with coworkers and the public and perform work activities without special or 11 additional supervision; and, he has no limitation in the ability to do detailed and complex 12 instructions.” (AR 33.) The ALJ found this portion of the opinion to be “less persuasive” 13 because 14 it is not supported by Dr. Nicholson’s mental status examination findings of: 15 neatly and casually groomed; good eye contact; cooperative behavior; normal 16 speech; able to recall three words immediately and two words after five minutes and three words with hints; digit span was six forward and three 17 backward; and, able to spell ‘world’ forward, but not backwards, [as] 18 discussed above. 19 (AR 33.) 20 Based on the foregoing, the Court finds that the ALJ adequately addressed the 21 supportability factor with respect to the portion of Dr. Nicholson’s opinion he found “less 22 persuasive.” (AR 33.) The ALJ identified the basis for his finding that Dr. Nicholson’s 23 opinion was not supported by relevant objective medical evidence, i.e., that 24 Dr. Nicholson’s opinion was based on his own examination of Plaintiff. (AR 33.) 25 However, the ALJ did not address the consistency factor with respect to the portion of 26 Dr. Nicholson’s opinion he found “less persuasive.” (AR 33.) The ALJ did not address 27 how consistent this portion of Dr. Nicholson’s opinion is with “evidence from other 28 medical sources and nonmedical sources.” See 20 C.F.R. §§ 404.1520c(c)(2), 1 416.920c(c)(2). An ALJ errs when he does not address both factors. See Kimberli M. S. 2 v. Kijakazi, No. 21-cv-1836-AJB-MDD, 2023 WL 2346330, at *7 (S.D. Cal. Mar. 3, 2023) 3 (holding the ALJ’s evaluation of medical opinions was inadequate where only consistency 4 factor, and not supportability factor, was articulated); see also Woods, 32 F. 4th at 792 5 (“The agency must . . . explain how [it] considered the supportability and consistency 6 factors[.]” (citation omitted)); Johnson v. Kijakazi, No. 21-15919, 2022 WL 2593516, at 7 *1 (9th Cir. July 8, 2022) (an ALJ should set out analysis of both supportability and 8 consistency factors, and any other relevant factors). 9 In conducting its harmlessness analysis, the Court here addresses each portion of the 10 improperly rejected opinion separately. With respect to the improperly rejected portion of 11 Dr. Nicholson’s opinion that Plaintiff has no limitation in the ability to do detailed and 12 complex instructions, this error is harmless. See Stout v. Comm’r, Soc. Sec. Admin., 454 13 F.3d 1050, 1055 (9th Cir. 2006) (defining harmless error as such error that is 14 “inconsequential to the ultimate nondisability determination”). The ALJ found persuasive 15 Dr. Nicholson’s opinion that Plaintiff is able to understand, remember, and carry out simple 16 one or two-step job instructions, and incorporated this opinion into the RFC. (AR 25 (“he 17 can understand, remember, and carry out simple job tasks and simple job instructions”).) 18 Plaintiff does not argue that this limitation is unsupported by substantial evidence. 19 Similarly, with respect to the improperly rejected portion of Dr. Nicholson’s opinion 20 that Plaintiff has moderate limitation in the abilities to relate and interact with coworkers 21 and the public, the ALJ’s error is harmless. See Stout, 454 F.3d at 1055. In the RFC, the 22 ALJ limited Plaintiff to “no public contact,” and although Plaintiff can “interact 23 appropriately with coworkers and supervisors,” this interaction “must be noncollaborative 24 and have no teamwork.” (AR 25.) Therefore, although the ALJ found Dr. Nicholson’s 25 moderate limitations to be “less persuasive,” he incorporated such limitations into the RFC. 26 27 8 The Court notes that the ALJ addressed both the consistency and supportability 28 1 Notably, the fifth digit of the Dictionary of Occupational Titles (“DOT”) 2 occupational code for each of the jobs identified by the VE is “8,” which indicates that 3 these jobs involve the lowest level of complexity in relating to people. See Haney v. Saul, 4 No. 5:18-CV-02280-SK, 2020 WL 10965122, at *1 (C.D. Cal. Feb. 18, 2020) (citing DOT, 5 Parts of the Occupational Definition, 1991 WL 645965); see also DICOT 381.687-014 6 (Cleaner, Commercial or Institutional), 1991 WL 673257; DICOT 381.687-022 (Cleaner, 7 Laboratory Equipment), 1991 WL 673259; DICOT 920.587-018 (Packager, Hand), 1991 8 WL 687916. Level 8 occupations entail “[a]ttending to the work assignment instructions 9 or orders of supervisor” and require “[n]o immediate response . . . unless clarification of 10 instructions or orders is needed.” See DOT, Appendix B, Explanation of Data, People, 11 Things, 1991 WL 688701.9 Moreover, all three jobs are unskilled jobs which require only 12 limited interaction with people. See Social Security Ruling 85-15, 1985 WL 56857, at *4 13 (stating that unskilled jobs “ordinarily involve dealing primarily with objects, rather than 14 with data or people”); see also AR 36. Therefore, although the ALJ erred in rejecting 15 Dr. Nicholson’s opinion that Plaintiff is moderately limited in his ability to relate to and 16 interact with coworkers and the public, that error was harmless because he incorporated 17 such limitations into the RFC and the jobs identified by the VE reflect such limitations. 18 However, in the RFC, the ALJ did not incorporate Dr. Nicholson’s opinion that 19 Plaintiff’s ability to perform work activities without special or additional supervision 20 would be moderately limited. As such, the Court finds that the ALJ’s error with respect to 21 this opinion is not harmless. The requirement that an ALJ articulate his reasoning on both 22 supportability and consistency is to allow a subsequent reviewer to trace the path of the 23 adjudicator’s reasoning, and the Court cannot do so here. See Kimberli M. S., 2023 WL 24 2346330, at *8 (citing 82 Fed. Reg. at 5,858 (stating that the articulation requirements in 25 26 27 9 Dr. Nicholson also opined that Plaintiff’s ability to accept instructions from 28 1 the rules allow a subsequent reviewer or reviewing court to trace the path of the 2 adjudicator’s reasoning)). 3 Accordingly, the Court finds that the ALJ erred, in a way that is not harmless, in his 4 analysis of Dr. Nicholson’s opinion that Plaintiff’s ability to perform work activities 5 without special or additional supervision would be moderately limited. 6 D. Remand Is Appropriate 7 Plaintiff requests that this case be remanded to the Commissioner for further 8 proceedings. (ECF No. 16 at 24.) The Commissioner asks that the Court affirm the ALJ’s 9 decision. (ECF No. 18 at 9.) The law is well established that the decision of whether to 10 remand for further proceedings or simply to award benefits is within the discretion of the 11 Court. See, e.g., Salvador v. Sullivan, 917 F.2d 13, 15 (9th Cir. 1990); McAllister v. 12 Sullivan, 888 F.2d 599, 603 (9th Cir. 1989); Lewin v. Schweiker, 654 F.2d 631, 635 (9th 13 Cir. 1981). Remand is warranted where additional administrative proceedings could 14 remedy defects in the decision. See, e.g., Kail v. Heckler, 722 F.2d 1496, 1497 (9th Cir. 15 1984); Lewin, 654 F.2d at 635. Remand for the payment of benefits is appropriate where 16 no useful purpose would be served by further administrative proceedings, Benecke v. 17 Barnhart, 379 F.3d 587, 593 (9th Cir. 2004); where the record has been fully developed, 18 Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); or where remand would 19 unnecessarily delay the receipt of benefits, Bilby v. Schweiker, 762 F.2d 716, 719 (9th Cir. 20 1985). Here, the Court finds that this is not an instance where no useful purpose would be 21 served by further administrative proceedings; rather, additional administrative proceedings 22 still could remedy the defects in the ALJ’s decision. 24 For the reasons set forth above, the Court RECOMMENDS that Plaintiff’s merits 25 brief be GRANTED, and that Judgment be entered reversing the decision of the 26 Commissioner and remanding this matter for further administrative proceedings pursuant 27 to sentence four of 42 U.S.C. § 405(g). 28 /// 1 Any party having objections to the Court’s proposed findings and recommendations 2 file specific written objections within 14 days after being served with a copy of this 3 ||Report and Recommendation. See Fed. R. Civ. P. 72(b)(2). The objections should be 4 || captioned “Objections to Report and Recommendation.” A party may respond to the other 5 || party’s objections within 14 days after being served with a copy of the objections. See id. 7 Dated: December 15, 2023 . 8 U R LA bande 9 n. Jill L. Burkhardt 10 ited States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28