Garcia v. Kijakazi

Opinion

ANTONIO G.,1 Case No. 23-cv-05381-RMI

Plaintiff, ORDER RESOLVING SOCIAL v. SECURITY APPEAL

KILOLO KIJAKAZI, Re: Dkt. Nos. 15, 17 Defendant.

Plaintiff seeks judicial review of an administrative law judge (“ALJ”) decision denying his application for disability benefits under Title II of the Social Security Act. See Admin. Rec. at 1.2 The Appeals Council of the Social Security Administration declined to review the ALJ's decision. Id. As such, the ALJ's decision is a “final decision” of the Commissioner of Social Security, appropriately reviewable by this court. See 42 U.S.C. § 405(g), 1383(c)(3). Both parties have consented to the jurisdiction of a magistrate judge (Docs. 8, 10) and both parties have filed briefs3 (Docs. 15, 17). For the reasons stated below, Defendant’s motion for summary judgment is GRANTED IN PART AND DENIED IN PART, and the case is REMANDED to the ALJ for further proceedings consistent with this order. I. Background

1 Pursuant to the recommendation of the Committee on Court Administration and Case Management of the Judicial Conference of the United States, Plaintiff's name is partially redacted.

2 The Administrative Record (“AR”), which is independently paginated, has been filed in NINE attachments to Docket Entry #14. See Docs. 14-1 through 14-9. Plaintiff Antonio G. was born in Mexico and immigrated to the U.S. at 4 years old. AR at 631. Plaintiff would later describe his childhood as “pretty rough[.]” Id. Plaintiff’s father was an alcoholic who physically abused Plaintiff’s mother; Plaintiff also experienced emotional abuse as a child. Id., id. at 699. Plaintiff began working at age 6 and started drinking at age 13. Id. at 465, 781. By age 21, Plaintiff had become a problem drinker. Id. at 465. Beginning in 2000, while on active duty in the U.S. Marines, Plaintiff experienced a series of traumatic events. AR at 628. While Plaintiff was deployed to Japan, his wife was raped and gave the couple’s daughter up for adoption. Id. Plaintiff also saw the dead bodies of two fellow servicemen who had died by suicide, including a close friend. Id. at 672, 1695. During his time in the Marines, Plaintiff spent time in both outpatient and residential mental health treatment. AR at 465. A few years later, Plaintiff saw a VA mental health provider for depression, but was told after a couple of sessions that nothing was wrong. Id. Plaintiff’s next mental health appointment reflected in the administrative record was in February 2019. AR at 475. A VA doctor noted “primarily depressive symptoms[,]” including a depressed mood, sad expression, and dysphoric demeanor. Id. at 476. The doctor noted, however, that Plaintiff’s attention, concentration, cognition, and memory were intact, and that Plaintiff had good judgment, insight, and impulse control. Id. The combination of a depressed or anxious mood and affect and apparently intact cognition would repeat itself through the following years of medical records. At this appointment, Plaintiff told the doctor that he would drink up to a 12-pack of beer per night on the weekends. Id. at 475. The doctor noted that Plaintiff “seems unmotivated to change” his drinking habits. Id. at 477. Plaintiff also stated that his main stressors were “Work and Relationship Issues[,] that he wanted a promotion but had never received one after 10 years, and that he found his work “highly stressful.” Id. at 465, 475. Coincidentally, Plaintiff worked for the Social Security Administration. Id. at 465. In March 2019, Plaintiff punched a car window in a drunken fit of rage and was sent to the ER with a metacarpal fracture. AR at 360–61. The fracture required surgery and months of In June 2019, Plaintiff quit his job, citing his mental health, a poor rapport with his supervisor, and the “overwhelming” work. AR at 398, 465, 472. Plaintiff would later attribute this decision to a manic episode in his bipolar disorder. Id. at 695. Two days after quitting, Plaintiff submitted his first application for Social Security benefits. Id. at 18. This application was denied in 2020 on the grounds that Plaintiff was not disabled through the decision date. Id. Five days after Plaintiff applied for Social Security, the VA rated Plaintiff 70% disabled based on a diagnosis of major depressive disorder. AR at 387. Plaintiff noted at this time that the medication he was taking for bipolar disorder was working well. Id. at 472. However, Plaintiff reported trouble sleeping due to work and career anxiety. Id. VA personnel noted Plaintiff as “friendly, cooperative, and receptive to engagement” at that time. Id. at 473. Throughout the remainder of 2019, Plaintiff would often present to care providers as depressed (AR at 466) or receive elevated scores on depression and anxiety scales (id. at 538). Regardless, he was sometimes noted as pleasant and cooperative (id. at 462) and generally noted to have good insight, good grooming and hygiene, and intact attention. See, e.g., id. at 466–67. Plaintiff was able to reduce his drinking immediately after quitting his job, but he had resumed binge-drinking by November. Id. at 465, 468, 538. He noted stress in his relationship with his girlfriend and family (442, 540). He also felt “extremely anxious even thinking about going back to work.” Id. at 465. He was taking three mood-altering drugs, one of which also helped with his high blood pressure. Id. at 398. He had tried half a dozen other prescriptions in the past, but all were either ineffective or had intolerable side effects. Id. at 466. In late 2019, Plaintiff abruptly moved to Detroit from California in order to escape his stressors. AR at 534. While there, he enrolled in intensive outpatient therapy through the VA. Id. He noted during intake that stress was his main drinking trigger. Id. He said that his concentration and energy level were “fair” although he suffered from poor sleep and nightmares. Id. at 525. His cognition was determined to be “grossly intact” at that time. Id., id. at 527. While in treatment, Plaintiff was noted as consistently attentive and a frequent active participant in group sessions. AR at 487–536. At mental health check-ins, he was again noted “as decent mood and appropriate affect. Id. at 501, 504, 508. He explained that alcohol gave him self-confidence and energy. Id. at 502. He also noted that he was “very uncomfortable” in social situations due to feelings that people were staring at him. Id. at 501. Plaintiff missed some sessions of outpatient treatment. Id. at 487, 509, 511. Ultimately, Plaintiff decided to return to California on December 27, and he was taken off the inpatient treatment roster. Id. at 487. At a VA appointment that day, Plaintiff was noted as suffering from bipolar disorder, anxiety, depression, and hypertension. Id. at 490. No neurological “focal deficits” were noted. Id. at 490– 91. In March 2020, Plaintiff began a job as an in-home service provider through the VA. AR at 604. In May 2020, Plaintiff told the VA’s career training division that he was still working as an in-home service provider and was being given another patient. Id. at 598. Plaintiff also expressed an interest in going to school for a real estate license. Id. By that time, Plaintiff’s life had gotten more chaotic, as he was “now the extr[e]mely busy father of twins.” Id. at 594. Doctors noted that Plaintiff was “tired and somewhat overwhelmed” but said he was “doing well generally.” Id. Plaintiff had reduced his drinking. Id. at 594. While he and his girlfriend had made an attempt at couple’s counseling, that had been put on hold due to the pandemic. Id. Once again, Plaintiff was noted to exhibit an anxious expression and a “stressed” demeanor and mood, but also demonstrated intact attention and memory and normal cognitive processing. Id. at 595. By August 2020, Plaintiff reported more strain in his relationship. AR at 581. He told VA mental health providers that he was “very tense and anxious” around his girlfriend, was nervous about their finances and his girlfriend’s spending, and felt there was too much traffic in his home despite the pandemic. Id. All of this had led to Plaintiff feeling more anxious and drinking more than he wanted to as a coping mechanism. Plaintiff requested to resume counseling. Id. He also reported that he frequently missed his second dose of medication. Id. at 582. Once more, the mental status exam detected a “stressed” mood and demeanor and anxious expression but no cognitive or attention deficits. Id. By October 2020, Plaintiff had obtained some relief from his anxiety after a change in his medications. Id. at 568. He had moved out to live with his parents in the findings were largely consistent with those from August. In early December 2020, Plaintiff was drinking more heavily again, reported stress from the relationship and the drinking problem, and had gained 20 pounds. AR at 564, 566–67. Plaintiff expressed an interest in inpatient treatment. Id. at 564. Just over a week later, however, Plaintiff had reduced his drinking substantially, had a “fine” mood, and was excited about new work options such as selling insurance. Id. at 560–61. He had moved back in with his girlfriend and requested counseling to help with relationship stressors. Id. at 560. In February 2021, Plaintiff again called the VA to request inpatient treatment for his drinking problem. AR at 559. By this point, he was drinking several beers and 1.75 liters of hard liquor daily. Id. A risk-factor evaluation revealed that Plaintiff was having trouble falling or staying asleep 9 to 15 nights per month, was depressed or anxious 16 to 30 days per month, and was “[c]onsiderably” bothered by difficulties getting along with family and friends. Id. at 558. Shortly afterward, the VA approved Plaintiff to attend an inpatient program called Vogue in Las Vegas. Id. at 555. Upon intake, Vogue staff noted that Plaintiff’s “triggers are family issues and stress[.]” AR at 1445. Cognitive assessments indicated intact attention and concentration, but also anxiety, depression, and a flat affect. Id. at 812, 1411–1412, 1457. Vogue personnel noted that Plaintiff was capable of performing activities of daily living, but that he suffered from past trauma and poor coping skills. Id. at 813. Plaintiff rated his depression and anxiety as 3/10, his concentration as 6/10, and his shame as 7/10. Id. at 1385. He also reported sleeping poorly, with difficulty staying asleep and intense nightmares twice a week that affected him the next day. Id. at 820. Plaintiff also reported having suicidal ideation over the prior six months and stated that these urges were growing stronger and more frequent. AR at 821. Plaintiff said that these thoughts were triggered by family issues, were persistent, and occurred 2 to 5 times per week at the time of the evaluation. Id. at 1460–61. Three months earlier, Plaintiff had tried to acquire a rifle to shoot himself with. Id. at 821. Plaintiff also experienced the desire to get in an accident while driving. Id. not constant, anxiety and insomnia. AR at 777–1247. Plaintiff told Vogue staff that a 4/10 level of anxiety was “normal” for him. Id. at 792. The records reflect that when Plaintiff was anxious, it was generally at this level. Nurses noted that Plaintiff’s anxiety affected his ability to sleep, which in turn affected his ability to focus. Id. at 775, 834. Plaintiff himself described “struggling with staying focused on what he needs to focus on while in treatment.” Id. at 1402. Treatment logs from Plaintiff’s group therapy sessions at Vogue show that Plaintiff was generally attentive and engaged, only missing a few sessions, and that Plaintiff frequently provided feedback and support to his peers. Id. at 1636 et seq. However, Plaintiff slept through one session (id. at 1642), declined to participate in another (id. at 1662), missed more for undisclosed reasons (id. at 1671–72, 1734, 1739, 1744, 1763, 1783, 1787, 1797, 1800, 1816), left a session in frustration briefly after a disagreement (id. at 1759), and became visibly distracted during a session to the point of needing to physically jar himself to regain focus (id. at 1655). He often reported his relationship as a major stressor. Id. at 1402. Frequently, across evaluations and evaluators, Plaintiff was reported as having a depressed mood and affect with “intact” attention and memory. See, e.g., id. at 1402. In one group therapy session, when discussing his bipolar disorder, Plaintiff “expressed how when he’s on a job, it usually end[s] at the five year mark.” AR at 1789. Plaintiff believed “that this is cyclic in his life and he wants to change that moving forward in his recovery.” Id. On April 7, 2021, Plaintiff filed the Social Security claim at issue, claiming an onset date of March 15, 2021. AR at 21, 84. On April 30, 2021, Plaintiff was discharged from Vogue. Id. at 336. When completing his exit survey, Plaintiff stated that the most helpful aspect of the program was “[n]ot having to worry about the small things. I just had to work on myself and the only thing we had to worry about was laundry so it helped a lot.” Id. at 869. At discharge, Plaintiff’s depression and anxiety were rated 2/10 and his concentration 8/10. Id. at 1378–79. Overall, it was believed that Plaintiff greatly benefitted from the treatment. Id. at 1372–73. In late May of 2021, Plaintiff completed a function report for his new Social Security claim. He reported “couch surf[ing]” and living with the mother of his children. AR at 276. He pills. Id. He reported fears that something bad would happen to him if he left the house, stating that he generally stayed home if he did not have an appointment. Id. at 276–77. He said that his anxiety went up when he was “around a lot of people[,]” so he shopped for groceries online. Id. at 277, 279. He stated that he needed phone alarms and reminders from others to take medicine and had to be reminded about appointments. Id. at 278, 280. He claimed that changes in his routine made him depressed and that he responded to stress with anxiety. Id. at 278. Two weeks later, Plaintiff told the VA’s career services division that he was “doing fine[;]” the caller perceived him as “alert and friendly[.]” AR at 707. Later, Plaintiff spoke to a VA mental health provider and requested individual counseling. Id. at 703. Plaintiff stated that “[r]egardless of whether I get disability or not, I want to stay home with the [twin] girls.” Id. Also in mid-June 2021, a state disability evaluation found that Plaintiff had no limitations in understanding, remembering, or applying information; moderate limitations in interacting with others; moderate limitations in concentrating, persisting, and maintaining pace; and mild limitations in adapting and managing himself. AR at 90. Meanwhile, Plaintiff was evaluated to have moderately severe depression and severe anxiety, and he screened positive for PTSD. Id. at 696. The evaluator noted a “[p]olite, cooperative” demeanor and memory that “appeared grossly intact[,]” although Plaintiff’s mood and affect were observed as “Depressed and Anxious.” Id. at 700–01. Later that month, Plaintiff told the VA’s career services department that “he wants [to] stay focus[ed] on his recovery and not able to pursue any job leads at this time.” AR at 671. Plaintiff also began attending a support group and a group treatment program. Id. at 668. However, shortly afterwards, Plaintiff dropped out of the support group after missing several sessions, stating that he wanted to focus on individual mental health treatment. Id. at 646, 648, 659. In July of 2021, Plaintiff endorsed moderate symptoms of depression and anxiety during a psychotherapy session. AR at 656, 661. He stated that he was sleeping only 5 hours per night and took an hour-long nap during the day. Id. He noted at one point that his mood had “been going good” and that his symptoms were better overall, but that his lack of sleep, anger, and anxiety depressive episode earlier in the week. Id. at 659. In August 2021, Plaintiff reported that his anxiety and depression were high, rating them 8/10. Id. at 652. Later that month, when the VA contacted Plaintiff about a potential job, Plaintiff said that he was doing poorly and needed mental health services. Id. at 650. Plaintiff stated that he was not interested in going back to work and wanted to focus on his mental health and recovery. Id. The caller assessed Plaintiff as “stressed[.]” Id. In late September 2021, Plaintiff was given a mental health assessment. The assessment noted that Plaintiff had moderately severe depression and significant anxiety. AR at 628–29. Plaintiff stated that his symptoms made it “very difficult” to work, take care of things at home, or get along with other people. Id. at 629. Plaintiff’s alcohol use disorder was noted to be in remission. Id. at 628. Plaintiff described stress from caring for his (then-17-month-old) twins, difficulty controlling his emotions, and problems sleeping, stating that he slept about 4 hours per night. Id. Once again, a mental status exam showed Plaintiff with a depressed mood, but alert, oriented, not reporting or evidencing a memory impairment, and able to maintain attention. Id. at 633. In 2022, Plaintiff left his girlfriend and moved in with a friend, then sought housing through the VA. AR at 2219-2220, 2222. Again, Plaintiff’s therapy notes reflected anxiety and depression, but seemingly intact cognition and memory. Id. at 2208, 2214, 2217. Plaintiff’s treating psychiatrist at the VA, Dr. Vedantham, completed a psychiatric impairment questionnaire on Plaintiff’s behalf in February of 2022. Dr. Vedantham endorsed symptoms of depressed mood, persistent or generalized anxiety, blunt affect, feelings of guilt or worthlessness, difficulty thinking or concentrating, anhedonia, weight change, decreased energy, and social withdrawal or isolation. AR at 742. Per Dr. Vedantham, Plaintiff’s most significant symptoms “include depressed mood and lack of motivation and energy. Plaintiff has difficulty with task completion, misses appointments, sometimes is late paying bills, has poor credit. Patient has marked difficulty in motivating himself to participate in any type of organized activity.” Id. at 743. Dr. Vedantham noted that Plaintiff’s mental status exams “consistently reveal[] markedly being sober for a year. Id. Dr. Vedantham noted that Plaintiff “felt unable to make work requirements and expectations and work made his symptoms worse.” He also noted that Plaintiff had good days and bad days. Id. Dr. Vedantham opined that Plaintiff had “moderate to marked” limitations in maintaining attention or concentration for extended periods and completing a workday without symptom interruptions. AR at 744. Dr. Vedantham found that Plaintiff had “marked” limitations in sticking to a schedule or being punctual, performing at a consistent pace without rest periods, interacting appropriately with the public, asking simple questions or requesting assistance, and setting realistic goals. Id. Shortly after this evaluation, Plaintiff reported a panic attack at the thought of his ex- girlfriend coming home, which he said was followed by a depressive slump. AR at 2204. Through March 2022, Plaintiff continued to report an “anxious and often depressed mood[.]” Id. at 2201, 2203. Around this time, Plaintiff’s counselor’s reports began to reflect that Plaintiff was “doing well, motivated to treatment, engaged in personal growth” and looking for strategies to coparent and reconnect with his family. Id. at 2168, 2185, 2187, 2200. Dr. Vedantham had a slightly less rosy outlook around the same time: “Patient seems to be at his usual baseline which is mildly depressed . . . . [h]e is experiencing acute relationship stressors and is transitioning to living independently.” Id. at 2191. By April 2022, Plaintiff had found housing. AR at 2200. He reported doing well and feeling “good,” but also reported anxiety and depression. Id. at 2187–88, 2198. Plaintiff received several leads on employment, including the Social Security Administration offering him his old job back. Id. at 2197, 2198. While Plaintiff said he was “interested in vocational development[,]” he decided not to make any decision about employment until his Social Security case was resolved. Id. at 2185, 2197. In May 2022, Plaintiff was assessed by Dr. Celina Marciano. After a review of Plaintiff’s symptoms and history, Dr. Marciano concluded that Plaintiff’s “psychological symptoms cause him to experience marked restriction of daily life activities along with marked difficulties in severe cognitive impairment and lacks the capacity to sustain any form of employment. His chronic history of mental health illness has only deteriorated throughout time and will not be restored.” Id. Dr. Marciano endorsed symptoms of depressed mood, persistent anxiety, abnormal affect, feelings of worthlessness, irritability, mood swings, suicidal ideation, difficulty thinking or concentrating, easy distractibility, intrusive memories of trauma, persistent irrational fears, anhedonia, weight change, change in personality, decreased energy, social withdrawal or isolation, and insomnia. Id. at 2144. She stated that Plaintiff had episodes of decompensation or deterioration at work which exacerbated his symptoms, but elaborated only that Plaintiff “cannot work or function due to the severity of his psychological symptoms[.]” Id. at 2145. Dr. Marciano assessed Plaintiff with many moderate-to-marked and marked impairments. AR at 2146. She opined that Plaintiff was likely to miss work more than three times a month due to his impairments. Id. at 2147. In May and June 2022, Plaintiff’s VA treatment notes reflect the topic of Plaintiff’s custody issues with his ex-girlfriend. AR at 2166, 2168, 2170. He continued to report being anxious and often depressed. Id. at 2167, 2169. He also reported his heart racing at night. Id. at 2168. However, the notes indicate that he was handling stress with coping skills. Id., id. at 2166. Plaintiff’s Social Security hearing was held on June 16, 2022. At the hearing, Plaintiff reported that his anxiety was high and that his medication had not worked well since he left Vogue. AR at 50. Plaintiff said that his anxiety was worst in the evenings, when it “feels like a panic attack.” Id. at 51. Plaintiff said he became anxious in “large places” with “a lotta people.” Id. at 54. Plaintiff said that his bipolar disorder cycled between highs and lows roughly twice per week. Id. at 52. During lows, Plaintiff could generally take care of himself, but did not shower or do chores. Id. at 53–54. Plaintiff also said he took daytime naps during lows. Id. at 56. Plaintiff noted that he suffered these symptoms despite his medications, which did not always work consistently. Id. at 57. Plaintiff said that his typical day involved sleeping throughout the day, trying to read, and watching TV. Id. at 58. However, Plaintiff said that he had difficulty getting through books because he would lose interest in them, and that he was easily overwhelmed by TV for his daughters since leaving rehab because they were not allowed in his transitional housing. Id. at 59. However, other records indicate that Plaintiff told a VA social worker that his daughters lived with him three to four days per week. Id. at 2170. II. The ALJ’s Decision The ALJ engaged in the required five-step sequential evaluation process. AR at 21–34. At Step One, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since the alleged onset date of March 15, 2021. Id. at 21. At Step Two, the ALJ determined that Plaintiff had severe impairments of bipolar disorder, major depressive disorder, generalized anxiety disorder, and post-traumatic stress disorder. Id. The ALJ found non-severe impairments of alcohol abuse in remission, obesity, and hypertension. Id. at 22. At Step Three, the ALJ found that Plaintiff’s impairments did not meet or exceed any listed impairment because Plaintiff had no limitation in understanding, remembering or applying information, no limitation in adapting or managing himself, and only moderate limitations in interacting with others and concentrating, persisting, or maintaining pace. Id. at 23–24. The ALJ then determined that Plaintiff retained the residual functional capacity to do “simple, routine tasks and no production pace work; the claimant can carry out detailed instructions; occasional interactions with a supervisor, co-workers, and the public; and occasional changes to a routine work setting.” Id. at 25. In conducting the Step Four analysis, the ALJ did not find Dr. Vedantham’s opinion persuasive. The ALJ stated that Dr. Vedantham’s treatment notes indicated normal findings apart from depression and anxiety. Id. at 29. The ALJ also noted that Plaintiff’s recent therapy sessions had focused mainly on Plaintiff’s sobriety and custody issues and that notes indicated Plaintiff was doing “well.” Id. Finally, the ALJ found that Plaintiff’s “conservative” course of treatment weighed against Dr. Vedantham’s findings. Id. Similarly, the ALJ did not find Dr. Marciano’s opinion persuasive. The ALJ noted that Dr. Marciano’s opinion was not supported by any treatment notes from Dr. Marciano. AR at 29. Further, the ALJ noted that Dr. Marciano did not perform any mental status exams or cognitive tests. Id. Finally, the ALJ stated that Dr. Marciano’s opinion was not consistent with other The ALJ found that while Plaintiff’s impairments could be reasonably expected to cause his symptoms, Plaintiff’s symptom allegations were not entirely consistent with the medical evidence “for the reasons explained in this decision.” AR at 30. At Step Five, the ALJ determined that Plaintiff could work as an electronics worker, garment sorter, or floor waxer. AR at 33. The ALJ therefore concluded that Plaintiff was not disabled. Id. at 34. III. Standard The Social Security Act limits judicial review of the Commissioner’s decisions to final decisions made after a hearing. 42 U.S.C. § 405(g). The Commissioner’s findings “as to any fact, if supported by substantial evidence, shall be conclusive.” Id. A district court has limited scope of review and can only set aside a denial of benefits if it is not supported by substantial evidence or if it is based on legal error. Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995). The phrase “substantial evidence” appears throughout administrative law and directs courts in their review of factual findings at the agency level. See Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019). Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. at 1154 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); see also Sandgathe v. Chater, 108 F.3d 978, 979 (9th Cir. 1997). “In determining whether the Commissioner's findings are supported by substantial evidence,” a district court must review the administrative record as a whole, considering “both the evidence that supports and the evidence that detracts from the Commissioner’s conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). The Commissioner’s conclusion is upheld where evidence is susceptible to more than one rational interpretation. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). However, courts “review only the reasons provided by the ALJ in the disability determination and may not affirm the ALJ on a ground upon which [s]he did not rely.” Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014). IV. Analysis a. Dr. Vedantham’s Opinion court concludes that three of these bases are flawed and the fourth is insufficient to constitute substantial evidence in light of the record as a whole. First, the ALJ noted that “Dr. Vedantham’s mental status examination findings include depressed mood and anxiety but are otherwise intact, including friendly demeanor, normal eye contact, normal speech, a logical and organized thought process, appropriate thought content, intact memory, normal cognition, good insight/judgment, and appropriate grooming.” AR at 28– 29. However, “observations of cognitive functioning during therapy sessions,” including “good eye contact, organized and logical thought content, and focused attention . . . do not contradict . . . symptoms of depression and social anxiety.” Ghanim v. Colvin, 763 F.3d 1154, 1164 (9th Cir. 2014). This is especially true here, where Dr. Vedantham stated Plaintiff’s most significant systems were a depressed mood, lack of motivation, and lack of energy. AR at 743. The relevant question is not how many of Plaintiff’s mental functions are normal, but whether the abnormal ones are disabling. See Lanh H. v. Kijakazi, 2024 WL 4133805, at *8 (N.D. Cal. Sept. 9, 2024). Accordingly, substantial evidence does not support a contradiction between Dr. Vedantham’s report and his mental status examinations of Plaintiff. Second, the ALJ noted that “Dr. Vedantham’s recent therapy notes primarily discuss staying sober and ongoing conflict with the mother or the claimant’s children.” AR at 29. However, Dr. Vedantham’s report lists “relationship stressors”, “parenting stressors”, and “addressing challenges of sobriety” as “psychosocial factors” bearing on Plaintiff’s conditions. Id. at 741. The fact that Dr. Vedantham would focus on the areas of Plaintiff’s life that most affect Plaintiff’s mental illnesses while treating Plaintiff for those mental illnesses hardly contradicts Dr. Vedantham’s conclusions. The ALJ also discounted Dr. Vedantham’s opinion based on “the conservative nature of the claimant’s treatment.” AR at 29. The ALJ noted that apart from Plaintiff’s stay at Vogue, “[t]reatment has otherwise been limited to participation in psychotherapy and the receipt of mental health medications. The claimant has not required inpatient psychiatric treatment outside of the residential treatment program for alcohol abuse.” Id. (internal citations omitted). However, as this accepted treatments for anxiety and depression regardless of severity, not ‘conservative’ treatments reserved only for mild cases[.]” Lanh H., 2024 WL 4133805, at *9. Several other district courts in this Circuit have held that the combination of outpatient psychotherapy and mental health medication is not conservative treatment. Torquato v. Berryhill, 2018 WL 3064568, at *6 (S.D. Cal. June 20, 2018) (collecting cases). And even setting aside the issue of psychotherapy, many courts in the Ninth Circuit have held that a regimen of multiple mood- altering drugs, such as the one Plaintiff is on, does not constitute conservative treatment. Joseph S. v. O’Malley, 2024 WL 418632, at *13 (S.D. Cal. Feb. 5, 2024) (collecting cases). The ALJ therefore erred in discounting Dr. Vedantham’s opinion on the ground that Plaintiff’s treatment was conservative. Aside from the above rationales, the only basis that the ALJ offered for discrediting Dr. Vedantham’s opinion was that Dr. Vedantham’s notes “indicate[d] the claimant is doing well, is motivated in treatment, and is engaged in personal growth.” AR at 29. The broad “doing well” statement alone, however, do not constitute “substantial evidence in light of the record as a whole” that Dr. Vedantham’s conclusions were faulty. Further, “[r]eports of ‘improvement’ in the context of mental health issues must be interpreted with an understanding of the patient’s overall well- being and the nature of her symptoms.” Garrison, 759 F.3d at 1017. While evidence that Plaintiff is “motivated in treatment” might contradict Dr. Vedantham’s finding of a generalized lack of motivation, this seems like a slim ground on which to discard all of Dr. Vedantham’s conclusions, especially as bipolar disorder is characterized by “extreme mood swings.” Bipolar Disorder, MAYO CLINIC (Aug. 14, 2024), https://www.mayoclinic.org/diseases-conditions/bipolar- disorder/symptoms-causes/syc-20355955. For these reasons, the court concludes that the ALJ erred in evaluating Dr. Vedantham’s report. b. Dr. Marciano’s Opinion The ALJ disregarded Dr. Marciano’s opinion on several of the same bases as she disregarded Dr. Vedantham’s opinion, as well as on several bases unique to Dr. Marciano. The The ALJ began her analysis by noting that Dr. Marciano’s “opinion is not supported by treatment notes from this physician.” AR at 29. This omission, however, is not unusual considering that Dr. Marciano had only treated Plaintiff once before issuing her report. Id. at 2143. In fact, it does not appear from the record that Dr. Marciano saw Plaintiff more than once. Ultimately, Dr. Marciano seems to have been more of an examining physician than a treating physician, so her lack of one treating-physician-specific form of corroboration is not substantial evidence showing that her opinion is unsupported. The ALJ also faulted Dr. Marciano for not performing cognitive testing or a mental status exam. Id. at 29. However, as the Ninth Circuit has pointed out, “[p]sychiatric evaluations may appear subjective, especially compared to evaluation in other medical fields. Diagnoses will always depend in part on the patient's self-report, as well as on the clinician’s observations of the patient. But such is the nature of psychiatry.” Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017). “Thus, the rule allowing an ALJ to reject opinions based on self-reports does not apply in the same manner to opinions regarding mental illness.” Id. It is true that an ALJ may properly reject a medical opinion based entirely on the self-report of a plaintiff the ALJ has properly found not credible. Ferguson, 95 F.4th at 1202. However, as discussed in more detail below, the ALJ has failed to provide the necessary “specific, clear, and convincing reason” for discounting any part of Plaintiff’s testimony. Therefore, the fact that Dr. Marciano’s opinion did not incorporate any “objective” test results is not a sufficient ground on which to reject it. Substantively, the ALJ found that Dr. Marciano’s “opinion is not consistent with the mental status examination findings of other providers or with the claimant’s conservative treatment, discussed herein.” R. at 30. For the same reasons that these rationales were inadequate to discredit Dr. Vedantham’s opinion, they are inadequate here. Accordingly, the ALJ has not supplied substantial evidence to justify the rejection of Dr. Marciano’s opinion. c. Plaintiff’s Subjective Testimony The ALJ found that while Plaintiff’s impairments could reasonably be expected to produce and impact of these symptoms were “not entirely consistent with the medical evidence and other evidence for the reasons explained in this decision.” AR at 30. The ALJ credited Plaintiff’s allegations “only to the extent they can reasonably be accepted as consistent with the objective medical and other evidence.” Id. As the Ninth Circuit has stated:

To discredit a claimant's symptom testimony when the claimant has provided objective medical evidence of the impairments which might reasonably produce the symptoms or pain alleged and there is no evidence of malingering, the ALJ must give specific, clear, and convincing reasons for rejecting the testimony by identifying which testimony [the ALJ] found not credible and explaining which evidence contradicted that testimony. Laborin v. Berryhill, 867 F.3d 1151, 1155 (9th Cir. 2017) (internal quotations omitted). In short, “the ‘clear and convincing’ standard requires an ALJ to show [their] work[.]” Smartt v. Kijakazi, 53 F.4th 489, 499 (9th Cir. 2022). “If the ALJ fails to provide specific, clear, and convincing reasons for discounting the claimant’s subjective symptom testimony, then the ALJ's determination is not supported by substantial evidence.” Ferguson v. O’Malley, 95 F.4th 1194, 1199 (9th Cir. 2024). Here, however, the ALJ provided no such reasons. While the ALJ did note that “the claimant’s allegations concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence explained in this decision[,]” AR at 30, this broad statement falls short of the Laborin requirements. The Ninth Circuit requires ALJs to specify “which of [a plaintiff’s] many symptoms were, in the ALJ’s view, inconsistent with the record evidence.” Ferguson, 95 F.4th at 1200. Here, the ALJ recited some record evidence which might tend to discredit some of Plaintiff’s alleged symptoms, but made no effort to link specific evidence to specific symptoms as part of this analysis.4 This was error. Brown-Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015) (error where ALJ “simply stated her 4 While the ALJ appears to have done some credibility analysis in the listing-related portion of her opinion (R. at 23–24), this is not a symptom-by-symptom analysis, but rather bears only on the four broad categories of functional capacity. Further, the term “analysis” is perhaps a generous one; the ALJ listed Plaintiff’s claims and then recounted some of the record evidence, but failed to non-credibility conclusion and then summarized the medical evidence supporting her RFC determination.”). For these reasons, the ALJ’s assessment of Plaintiff’s credibility was inadequate. V. Instructions on Remand Plaintiff requests remand solely for an award of benefits under the Ninth Circuit’s “credit- as-true” rule. The credit-as-true rule “permits, but does not require, a direct award of benefits on review but only where the [ALJ] has not provided sufficient reasoning for rejecting testimony and there are no outstanding issues on which further proceedings in the administrative court would be useful.” Leon v. Berryhill, 880 F.3d 1041, 1044 (9th Cir. 2017). Application of the credit-as-true rule is inappropriate where “an evaluation of the record as a whole creates serious doubt that a claimant is, in fact, disabled.” Garretson, 759 F.3d at 1021. Here, while Plaintiff clearly suffered serious symptoms from his mental illnesses in the past, it appears that Plaintiff has made great strides in managing his symptoms since becoming sober. While the record does not demonstrate a complete remission of Plaintiff’s conditions, they may no longer be severe enough to qualify as disabling. See Hoopai v. Astrue, 499 F.3d 1071, 1077 (9th Cir. 2007) (“We have not previously held mild or moderate depression to be a sufficiently severe non-exertional limitation that significantly limits a claimant's ability to do work beyond the exertional limitation.”); Noa, 2018 WL 1696819, at *3 (“Thus, the fact several of Plaintiff’s treating physicians noted in her records that she suffered from depression does not in and of itself establish Plaintiff experienced depression that was sufficiently severe to interfere with her ability to work.”). Plaintiff’s Vogue treatment file also contains scattered references to Plaintiff being self-employed, or working as an insurance agent, immediately before or after his stay. AR at 1373, 1498, 1764. A remand would be beneficial to clarify the fact and extent of any such employment. Accordingly, this court will remand for new proceedings consistent with this opinion. On remand, besides correcting the errors mentioned above, the ALJ should correct defects in other parts of the opinion. First, based on the court’s review of the record, it appears that 1 remand, the ALJ should determine what impact, if any, Plaintiffs insomnia symptoms have on 2 Plaintiff's listing status and RFC. To the extent that the ALJ believes Plaintiff is not credible as to 3 his insomnia symptoms, this should be made explicit as part of the credibility analysis. M.M. v. 4 O'Malley, --- F.Supp.3d ----, 2024 WL 1981793, at *5 (N.D. Cal. May 6, 2024). 5 Additionally, the ALJ should reconsider her evaluation of Plaintiff's limitations in 6 adapting and managing himself. This analysis references Plaintiffs “conservative treatment” 7 despite the “conservativeness” of Plaintiff's treatment being highly questionable at best. Other 8 cited bases for the ALJ’s conclusion, such as Plaintiff's friendly demeanor and intact memory, 9 would seem to have little bearing on Plaintiffs ability to adapt or manage himself. Further, the 10 analysis seems to disregard Plaintiff's history of quitting jobs due to stress and his reports of 11 neglecting chores and personal care when depressed. 12 Finally, the court would suggest (though it does not order) that the ALJ may want to 13 develop the record with one or more long-form cognitive examinations of Plaintiff. IT IS SO ORDERED. 3 15 Dated: January 27, 2025 A 16 MeA—

— ROBERT M. ILLMAN Z 18 United States Magistrate Judge 19 20 21 22 23 24 25 26 27 28