Gregory v. Kijakazi

• Court: District Court, N.D. California
• Decided: September 30, 2024
• Docket: 5:23-cv-04017
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 K.G., Case No. 23-cv-04017-VKD Plaintiff, 9 ORDER GRANTING IN PART AND 10 v. DENYING IN PART PLAINTIFF’S REQUEST FOR REVERSAL AND 11 MARTIN O’MALLEY, REMAND AND GRANTING IN PART AND DENYING IN PART 12 Defendant. DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT 13 Re: Dkt. No. 11 14 15 16 Plaintiff K.G.1 appeals from a final decision of the Commissioner of Social Security (“the 17 Commissioner”)2 denying her application for disability insurance benefits under Title II of the 18 Social Security Act (“Act”), 42 U.S.C. § 423 et seq. K.G. contends that the administrative law 19 judge (ALJ) erred by: (1) failing to properly consider K.G.’s subjective testimony regarding her 20 physical limitations; (2) failing to accurately assess the severity of her mental impairments; (3) 21 improperly disregarding her left shoulder impairments; (4) failing to identify her past relevant 22 work as a composite position; and (5) failing to properly assess her residual functional capacity 23 (RFC). Dkt. No. 11 at 7–8. 24 1 Because opinions by the Court are more widely available than other filings, and this order 25 contains potentially sensitive medical information, this order refers to the plaintiff only by her initials. This order does not alter the degree of public access to other filings in this action 26 provided by Rule 5.2(c) of the Federal Rules of Civil Procedure and Civil L.R. 5-1(c)(5)(B)(i). 27 2 Martin O'Malley, the current Commissioner of the Social Security Administration, is substituted 1 The parties have filed briefs respectively requesting the Court reverse or affirm the ALJ’s 2 decision. Dkt. Nos. 11, 13. The matter was submitted without oral argument. See Civil L.R. 7- 3 1(b). Upon consideration of the papers and the relevant evidence of record, the Court grants in 4 part and denies in part K.G.’s request for reversal of the ALJ’s decision and remand for an award 5 of benefits, grants in part and denies in part the Commissioner’s cross-motion for summary 6 judgment, and remands this matter for further administrative proceedings consistent with this 7 order.3 8 I. BACKGROUND 9 K.G. filed an application for disability insurance benefits under Title II on March 24, 2021, 10 when she was 51 years old, alleging that she has been disabled since February 17, 2021 due to 11 multiple conditions, including: cervical spinal stenosis myelopathy, multiple severe neuro 12 foraminal stenosis, multilevel spinal degenerative disc disease, multilevel spinal arthritis, disc 13 osteophytes, fibromyalgia, and depression. AR 79, 234, 284. 14 K.G. attended high school through the 10th grade and has not obtained a GED. AR 27–28, 15 285. She has a history of severe cervical spine impairments and underwent spinal surgery in 2006. 16 Dkt. No. 11 at 8 (citing AR 377). In 2016, K.G. suffered the traumatic loss of her daughter and 17 her daughter’s boyfriend in the Ghost Ship warehouse fire in Oakland, California. AR 353, 556. 18 She most recently worked as a childcare attendant before her conditions caused her to stop in 19 February 2021. AR 285–86. 20 K.G.’s application was denied initially and on reconsideration. AR 77, 93–94, 115, 126. 21 An ALJ held a hearing on August 16, 2022 and subsequently issued an unfavorable decision on 22 October 5, 2022. AR 96, 99, 206. The ALJ found that K.G. met the insured status requirements 23 of the Act through December 31, 2021 and that she had not engaged in substantial gainful activity 24 after her alleged onset date of February 17, 2021. AR 101. The ALJ found that K.G. had two 25 severe impairments: degenerative disc disease and right shoulder degenerative joint disease. Id. 26

27 3 All parties have expressly consented that all proceedings in this matter may be heard and finally 1 He also noted that she had been diagnosed with right wrist carpal tunnel syndrome, depression, 2 anxiety, and PTSD, but concluded that these conditions were not severe.4 AR 102. The ALJ 3 noted that K.G.’s medical records mention a history of insomnia and left shoulder degenerative 4 joint disease, but he found that these were not medically determinable impairments because the 5 insomnia was “not substan[tiated] by clinical studies” and the existence of the left shoulder 6 impairment was not established before December 31, 2021, K.G.’s date last insured. AR 103. 7 Finally, the ALJ concluded that K.G. did not have an impairment or combination of impairments 8 that met or medically equaled the severity of one of the impairments listed in the Commissioner’s 9 regulations. AR 104. 10 The ALJ determined that K.G. had the RFC to perform light work as defined in 20 C.F.R. 11 §404.1567(b), with the following limitations: 12 [K.G. can] lift or carry occasionally 20 pounds, frequently 10; stand or walk about 6 hours of an 8-hour workday; sit about 6 hours of an 13 8-hour workday. Individual can push or pull consistent with the lifting 14 and carrying just described. Can occasionally climb ladders, ropes, or scaffoldings, frequently stairs. Individual can frequently stoop, 15 crouch, crawl, or kneel. With the right upper extremity, frequent overhead reaching, handling, and fingering. 16 17 Id. Based on this assessment, the ALJ found that, through her date last insured, K.G. was able to 18 perform her past relevant work as a childcare attendant, as actually and generally performed. AR 19 110. Accordingly, the ALJ concluded that K.G. was not disabled, as defined by the Act, from 20 February 17, 2021, the alleged onset date, through December 31, 2021, the date last insured. Id. 21 The Appeals Council denied K.G.’s request for review of the ALJ’s decision. AR 1. K.G. 22 then filed the present action seeking judicial review of the decision denying her application for 23 benefits. See Dkt. No. 1. 24 II. LEGAL STANDARD 25 This Court has the authority to review the Commissioner’s decision to deny benefits 26 27 4 K.G. was also diagnosed during the covered period with persistent complex bereavement 1 pursuant to 42 U.S.C. § 405(g). The Commissioner’s decision will be disturbed only if it is not 2 supported by substantial evidence or if it is based upon the application of improper legal 3 standards. Ahearn v. Saul, 988 F.3d 1111, 1115 (9th Cir. 2021); Morgan v. Comm’r of Soc. Sec. 4 Admin., 169 F.3d 595, 599 (9th Cir. 1999). In this context, the term “substantial evidence” means 5 “more than a mere scintilla” but “less than a preponderance” and is “such relevant evidence as a 6 reasonable mind might accept as adequate to support a conclusion.” Ahearn, 988 F.3d at 1115 7 (quoting Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) and Molina v. Astrue, 674 F.3d 1104, 8 1110–11 (9th Cir. 2012), superseded by regulation on other grounds); see also Morgan, 169 F.3d 9 at 599. When determining whether substantial evidence exists to support the Commissioner’s 10 decision, the Court examines the administrative record as a whole, considering adverse as well as 11 supporting evidence. Ahearn, 988 F.3d at 1115; Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 12 1989). Where evidence exists to support more than one rational interpretation, the Court must 13 defer to the decision of the Commissioner. Ahearn, 988 F.3d at 1115–16; Morgan, 169 F.3d at 14 599. 15 III. DISCUSSION 16 “To determine whether a claimant is disabled, an ALJ is required to employ a five-step 17 sequential analysis, determining: (1) whether the claimant is doing substantial gainful activity; (2) 18 whether the claimant has a severe medically determinable physical or mental impairment or 19 combination of impairments that has lasted for more than 12 months; (3) whether the impairment 20 meets or equals one of the listings in the regulations; (4) whether, given the claimant's residual 21 functional capacity, the claimant can still do his or her past relevant work; and (5) whether the 22 claimant can make an adjustment to other work.” Ghanim v. Colvin, 763 F.3d 1154, 1160 (9th 23 Cir. 2014) (citations and quotations omitted). The claimant bears the burden of proof at “steps one 24 through four, but [the burden] shifts to the Commissioner at step five.” Mercado v. Berryhill, No. 25 16-cv-04200-BLF, 2017 WL 4029222, at *4 (N.D. Cal. Sept. 13, 2017) (quoting Bray v. Comm'r 26 of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009)). 27 K.G. challenges several determinations made by the ALJ. First, she argues that the ALJ 1 physical limitations associated with those symptoms. Second, K.G. argues that the ALJ erred in 2 assessing the severity of her mental impairments and failed entirely to consider her diagnosis of 3 persistent complex bereavement disorder. Third, she argues that the ALJ failed to properly 4 consider her left shoulder impairment and erred in concluding that this impairment did not arise 5 until after the date last insured. Fourth, K.G. argues that the ALJ erred in categorizing her past 6 relevant work as a nursery school attendant, described in the Dictionary of Occupational Titles 7 (DOT). Fifth, she argues that the ALJ’s RFC assessment did not account for all of her relevant 8 limitations. 9 A. Subjective Evidence Regarding Pain and Physical Limitations 10 K.G. argues that the ALJ improperly discounted her statements and testimony regarding 11 her pain symptoms as inconsistent with objective medical evidence regarding her strength and 12 mobility. She argues that ALJ also improperly discounted her statements and testimony about her 13 physical limitations as inconsistent with objective evidence of improvement, and as further 14 inconsistent with her reported activities of daily living. Dkt. No. 11 at 10–17. The Commissioner 15 counters that K.G. is merely presenting an “alternative interpretation of the facts” and that the 16 ALJ’s finding of unreliability was supported by clear evidence of “largely normal examination 17 findings,” pain relief from medication, and the ability to carry out “modest activities.” Dkt. No. 18 13 at 4–6. The Court agrees with K.G. 19 In assessing a claimant’s subjective testimony, an ALJ must conduct a two-step analysis. 20 First, “the claimant must produce objective medical evidence of an underlying impairment or 21 impairments that could reasonably be expected to produce some degree of symptom.” Tommasetti 22 v.Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (quotations and citations omitted), superseded by 23 statute on other grounds. However, “the claimant is not required to show that [her] impairment 24 could reasonably be expected to cause the severity of the symptom [she has] alleged,” and “is not 25 required to produce objective medical evidence of the pain or fatigue itself, or the severity 26 thereof.” Ferguson v. O'Malley, 95 F.4th 1194, 1199 (9th Cir. 2024) (citations and quotations 27 omitted). If the claimant provides sufficient support, and there is no affirmative evidence of 1 “only by offering specific, clear and convincing reasons for doing so.” Tommasetti, 533 F.3d at 2 1039 (quoting Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)). That is, the ALJ must make 3 an assessment “with findings sufficiently specific to permit the court to conclude that the ALJ did 4 not arbitrarily discredit claimant’s testimony.” Id. 5 Here, in a self-reported function report dated April 2021, K.G. described several physical 6 limitations due to pain. AR 290. She reported that she could not “move [her] head: up, down, left 7 or right.” Id. She could not sit longer than 20 minutes without experiencing neck pain and could 8 not stand or walk more than 20 to 25 minutes without experiencing lower back pain. Id. Her right 9 shoulder blade hurt, particularly when she took a deep breath, sneezed, or coughed. Id. She could 10 take her dog for short walks but only to the end of her building. AR 291. She could microwave 11 meals and separate the clothes for the laundry but was not able to perform many other household 12 chores. AR 292. She did not drive more than three to five miles and if she needed to travel 13 farther, her husband drove. AR 293–94. 14 At the hearing on August 16, 2022, K.G. testified that she suffers from a “heavy painful 15 sensation” in her neck and “feels like [her] head is a watermelon and [her] neck is a popsicle 16 stick.” AR 33. She experiences pain whether she turns her head or holds it still. AR 33–34. She 17 testified that the pain extends beyond her neck and radiates to her shoulders. AR 34. She 18 experiences sharp pain in her right shoulder when reaching to the front or the sides. AR 35. She 19 noted that she keeps her arm pressed close to her body which helps a little. Id. She testified that 20 she can reach and hold a gallon of water or milk with two hands but that it is painful to do so. Id. 21 She said she can make toast but her husband does much of the cooking and the shopping for large 22 items. AR 35–36. She said she can take her small dog out for a walk for about five minutes at a 23 time. AR 30, 39. She said she is not able to lift the 10-pound container of dog food; her husband 24 lifts it, and she then scoops the food out. AR 31. She does not lift from the ground at all. AR 36. 25 She testified that she drives to the store located across the street from her house because it is too 26 painful to walk that distance. AR 29. Her pain prevents her from looking at her phone for more 27 than five minutes at a time. AR 32. 1 subjective testimony, the ALJ may indeed weigh it as undercutting such testimony.” Smartt v. 2 Kijakazi, 53 F.4th 489, 498 (9th Cir. 2022) (emphasis in original). The ALJ found that K.G.’s 3 “medically determinable impairments could reasonably be expected to cause the alleged 4 symptoms.” AR 106. However, he also found that her statements concerning “the intensity, 5 persistence and limiting effects of these symptoms are not entirely consistent with the medical 6 evidence and other evidence in the record.” Id. Because the ALJ did not identify any affirmative 7 evidence of malingering, he was required to provide specific, clear, and convincing reasons for 8 this determination. Tommasetti, 533 F.3d at 1039. 9 1. Medical Evidence 10 The ALJ found that K.G.’s asserted limitations were not consistent with her medical 11 records or supported by physical examination findings. AR 107. Specifically, the ALJ observed 12 that the records reflect K.G.’s gait and balance were normal. Id. He also referred to the following 13 findings: K.G.’s left upper arm strength was normal (5/5); her right upper arm strength was 14 somewhat less than normal (5-/5); and her right hand grip strength was below normal (4/5). Id. 15 No signs of focal weakness were observed, and other tests for shoulder joint problems and disc 16 herniation were negative. Id. Another test for sensation to light touch was also normal. Id. 17 Because the ALJ cited generally to several multi-page exhibits, without indicating 18 specifically the evidence on which he relied—i.e., Exhibit 1F (103 pages), Exhibit 2F (45 pages), 19 Exhibit 3F (30 pages)—review of his findings is difficult. As best the Court can discern, the ALJ 20 principally relied on an assessment made by a pain management specialist on February 24, 2021, 21 as well as a subsequent assessment on March 17, 2021 made at the time K.G. received a spinal 22 steroid injection. See AR 371, 378. In addition, the Commissioner calls the Court’s attention to 23 records of a video medical consult on June 16, 2021.5 Dkt. No. 13 at 4. However, as the 24 5 The Commissioner appears to mischaracterize the results from the June 16, 2021 video visit. AR 25 475. According to the Commissioner, this record reflects that K.G. “den[ied] any problems with ambulatory or sitting endurance.” Dkt. No. 13 at 4. However, the record indicates only that next 26 to “ambulatory endurance” and “sitting endurance,” the provider marked “NA.” AR 475. By contrast, as to other factors evaluated on the same visit, the provider marked “denied.” Id. 27 (“Bowel/bladder: Denies spontaneous loss of bowel or bladder control”) (“denies recent 1 referenced observations from this video consult do not appear in the ALJ’s decision, there is no 2 clear indication in the ALJ’s decision that the ALJ relied on these records for his determination 3 that K.G.’s statements were not consistent with the medical evidence. The Court is “constrained 4 to review the reasons the ALJ asserts” and it would be “error for the [Court] to affirm the ALJ’s 5 credibility decision based on evidence that the ALJ did not discuss.” Connett v. Barnhart, 340 6 F.3d 871, 874 (9th Cir. 2003); see also A.P. v. Kijakazi, No. 23-cv-01184-EMC, 2024 WL 7 116307, at *9 (N.D. Cal. Jan. 10, 2024) (“As the ALJ did not discuss these aspects of the record in 8 her decision, they are not properly considered here as a basis to uphold the credibility 9 determination.”). 10 K.G. argues that the medical evidence on which the ALJ relied does not contradict her 11 testimony regarding the limiting nature of her pain symptoms and the lack of meaningful 12 improvement of those symptoms with treatment. Dkt. No. 11 at 10–12. The Court agrees that, 13 setting aside the question of improvement (addressed further below), the medical evidence on 14 which the ALJ relied does not support his finding that K.G.’s statements and testimony are 15 inconsistent with the overall record. For example, findings of normal gait and balance are not 16 inconsistent with K.G.’s assertions that her pain limits the duration and distance she is able to 17 walk. Similarly, normal (or mostly normal) arm muscle strength and hand grip strength are not 18 inconsistent with K.G.’s assertions that pain limits her ability to lift and carry heavy objects, even 19 if her muscle and grip strength is substantially normal. Moreover, in assessing the consistency of 20 K.G.’s subjective statements and testimony, the ALJ appears to have focused on examinations 21 conducted early in the alleged disability period without considering examinations that occurred 22 later, and which, as discussed below, reflect changes in K.G.’s symptoms and limitations over 23 time. 24 In the absence of a more specific indication of which findings the ALJ deemed inconsistent 25 with K.G.’s subjective testimony, the Court concludes that the ALJ’s determination that her 26 testimony was not entirely consistent with the medical evidence, and should be discounted on that 27 basis, is not supported by substantial evidence or by specific, clear, and convincing reasons. 2. Evidence of Improvement 1 The ALJ found that K.G.’s asserted limitations due to pain were not consistent with 2 medical records showing that her symptoms improved with treatment. AR 107. Specifically, the 3 ALJ stated: 4 Treatment records reveal the claimant advised provider that 5 Gabapentin provided some relief, made the pain more bearable, and decreased her neck pain (Ex. 1F/14; 4F/16; 5F/19, 73, 193). She 6 stated the neck injection helped. After the shoulder injection, the pain improved 80% and the right arm numbness/tingling dissipated 7 (Ex. 3F/17; 5F/192). Following the hydrodilation, the claimant 8 reported better motion and on and off pain rather than constant (Ex. 5F/133). In addition, providers noted that the claimant improved 9 with ongoing [physical therapy] (Ex. 4F/6). . . . 10 Providers noted in September 2021 that the claimant demonstrated 11 improved cervical and lumbar range of motion (Ex. 5F). 12 AR 107. “Improvement with treatment is an appropriate consideration in assessing subjective 13 symptoms.” Crystal L. v. Kijakazi, No. 22-cv-05180-TSH, 2023 WL 8101916, at *7 (N.D. Cal. 14 Nov. 21, 2023). However, “the examples an ALJ chooses ‘must in fact constitute examples of a 15 broader development.’” Attmore v. Colvin, 827 F.3d 872, 877 (9th Cir. 2016) (quoting Garrison 16 v.Colvin, 759 F.3d 995, 1018 (9th Cir. 2014)) (emphasis in original). 17 K.G. contends that she had surgery, physical therapy, steroid injections, and medication for 18 her neck and shoulder issues but that they did not give lasting relief. AR 37–39. She argues that 19 the ALJ “cherry-picked” a few statements from her records that refer to improvements while 20 ignoring other parts of the record reflecting the limited nature and duration of the improvements. 21 Dkt. No. 11 at 10–15. The Court agrees with K.G. 22 With respect to treatment using gabapentin, the ALJ correctly observed that the medication 23 provided K.G. with some pain relief. See AR 378 (2/24/21 – “For her pain, she has tried 24 Gabapentin (just started) with some relief”); AR 558 (9/7/21 – “Gabapentin 3x/day (mild relief, 25 but makes her drowsy so she tries not to take it)”); AR 591 (9/29/21 – “The gabapentin helps the 26 pain be more bearable.”); AR 645 (11/17/21 – “[K.G.] has found the gabapentin helpful for 27 decreasing her neck pain. She will have that medication continued.”). However, records 1 indicating that gabapentin provided “mild relief” and helped the “pain be more bearable” are not 2 inconsistent with K.G.’s testimony that this treatment did not provide “extended” or “long-term” 3 relief. AR 37–38; see also AR 634 (11/2/21 – “Taking gabapentin for neck, does not help 4 shoulder at all.”). Further, the ALJ appears not to have considered how the side effects of these 5 medications, noted throughout the records, might impact K.G.’s ability to work. See AR 491 6 (4/9/21 – “Gabapentin caused ‘fogginess’ and cannot take more”); AR 577 (9/20/21 – “She 7 continues to take Gabapentin if she stays at home. Does not take it if she goes out to run 8 errands.”); AR 591 (9/29/21 – “[Gabapentin] makes her too dizzy to drive so she doesn't take it if 9 she goes out”). 10 With respect to treatment based on steroid injections, the ALJ correctly noted that some of 11 K.G.’s pain symptoms improved after treatment. See AR 529 (8/6/21 – “Her shoulder pain has 12 also improved 80% since the injection. However, she continues to feel weakness in her arm and 13 feels she cannot carry things. She feels off and on pain that goes from the base of her skull toward 14 her shoulder and shoulder blade.”); AR 764 (12/28/21 – “She has had 4-5 injections in her 15 shoulder that didn't help. She wonders if a neck injection would help. She found that a neck 16 injection did help when she got one this year. The shoulder pain is the worse[sic], then her neck is 17 second.”). However, the ALJ did not acknowledge that the results of the injections were, at best, 18 mixed, reflecting that K.G. experienced transient relief for some of her pain—a pattern that 19 remained consistent during the period covered by the treatment notes in the record. See e.g., AR 20 558 (9/7/21 – “Had SA and AC injection on 7/16 with mild relief. However, patient saw Dr. 21 Watson last week who now thinks she has frozen shoulder. Scheduled for injection next 22 Monday.”); AR 561 (9/3/21 – “injections helped transiently but pain back”); AR 577 (9/20/21 – 23 “Got an injection to the right shoulder with mild relief, although still reports R clavicle pain and 24 neck pain”); AR 591 (9/29/21 – neck getting worse “as if the cortisone shot is wearing off”); AR 25 617 (10/12/21 – “She feels like the cortisone injection for the shoulder is wearing off.”); AR 634 26 (11/2/21 – “Today pt reports GH injection did not help, pain getting worse”); AR 640–41 (11/4/21 27 – “pt got GH injection in mid Sept with only about one wk of relief, feels pain worse than ever”); 1 801 (1/26/22 – “Today pt reports: c spine injection initiall[y] took away ALL right shoulder pain, 2 was good for about 1.5 days now shoulder pain coming back”); AR 833 (3/1/2022 – “The 3 injection in the neck helped the neck but the right shoulder pain is the worst. Just from lifting her 4 arm a little bit or across her torso. She has a shoulder cortisone injection 4-5 times, the injections 5 only last one day.”). Indeed, at least one treatment note suggests that K.G.’s provider 6 recommended hydrodilation treatment, in part, because steroid injections did not provide adequate 7 pain relief. AR 661 (11/17/2021 – “right frozen shoulder, not progressing, spoke with Dr 8 Summerville who agrees to do hydrodilation procedure tomorrow . . . . Has not had good relief 9 with cortisone to joint and is not progressing on ROM. Pain still quite severe.”). 10 With respect to physical therapy, the ALJ correctly cited improvements K.G. experienced 11 from this treatment. See AR 107 (citing AR 548 (9/14/21 – “slow improvement with ongoing 12 PT”)). However, in assessing the efficacy of physical therapy, the ALJ appears not to have taken 13 into account the rather limited goals against which K.G.’s improvements were measured, such as 14 sitting or walking for 15 minutes at a time, or that she struggled to engage in physical therapy 15 because it increased her pain. See AR 577 (“Patient will be able to tolerate sitting for 15 minutes 16 without increase in symptoms within 12 weeks. // Current Status as of 9/20/2021: Progressing 17 slowly towards functional goal, still limited by R sided neck, upper back pain and L low back 18 pain”); id. (“Patient will be able to tolerate walking for 15 minutes without increase in symptoms 19 within 12 weeks. // Current Status as of 9/20/2021: Progressing slowly towards function goal, still 20 limited by L low back pain.”); AR 591 (9/29/2021 – “It got to 8-9 at physical therapy during the 21 first visit. She has been feeling somewhat better.”); AR 617 (10/12/2021 – “She has been trying to 22 do the exercises but sometimes they cause more pain.”). The ALJ also observed that K.G.’s 23 physical therapy providers reported improvement in her cervical and lumbar range of motion in 24 September 2021. AR 107. In support of this observation, he cited generally to a 390-page exhibit 25 (5F) without identifying any specific record. Id. The Court has identified a record within this 26 exhibit from a physical therapy clinic indicating K.G. experienced some improvement in her range 27 of motion in September 2021. See AR 578 (“improved C/S and L/S ROM compared to last visit, 1 Limited tolerance to manual therapy.”). However, one month later, the same clinic reported: 2 “continues to present with decreased C/S and R shoulder ROM, decreased muscle flexibility, 3 limited tolerance to manual therapy.” AR 618. In short, the record evidence on which the ALJ 4 relied does not support his determination that physical therapy produced sustained improvements 5 that are inconsistent with K.G.’s testimony about her pain symptoms. 6 With respect to hydrodilation treatment, the ALJ correctly noted that K.G. received some 7 relief from this treatment in November 2021, approximately one month before her date last 8 insured. See AR 704 (12/1/21 – “reports motion and pain somewhat better after hydrodilation. 9 Still gets pain at night and with sudden movements, once she does sudden movement then repeats 10 the second time is better.”); AR 705 (12/1/21 – “better motion, pain off and on rather than 11 constant”). However, the record as a whole does not support the ALJ’s conclusion that 12 hydrodilation, alone or together with K.G.’s other treatments, provided sustained relief 13 inconsistent with her subjective statements about her symptoms, as opposed to intermittent relief. 14 Rather than demonstrating a broad trend toward improvement and relief, the record 15 indicates a cycle of mild or partial improvement, followed by a return of pain symptoms. This 16 evidence is not inconsistent with K.G.’s testimony. The ALJ’s contrary conclusion is not 17 supported by substantial evidence or by specific, clear, and convincing reasons. 18 3. Report of Daily Activities 19 The ALJ additionally relied on an assessment of K.G.’s reported daily activities in 20 discounting her subjective symptom testimony. Specifically, the ALJ determined that K.G. “is 21 more capable than asserted” because she ran errands, went to Hawaii for her son’s wedding, and 22 had a number of hobbies, such as “hiking, travel, [and] photography.” AR 107. K.G. argues that 23 the ALJ did not specifically explain how her travel and alleged hobbies contradicted her testimony 24 or “how they related in any way to the ability to sustain full-time competitive employment, 25 particularly in a nursery school.” Dkt. No. 11 at 15-17. She further observes that the ALJ failed 26 to ask any questions or gather further information on these activities at the hearing. Id. at 16. 27 “An ALJ may properly come to an adverse credibility determination as to subjective pain 1 the claimant’s other testimony; and/or (2) the activities of daily living meet the threshold for 2 transferable work skills.” A.P., 2024 WL 116307, at *9. However, “ALJs must be especially 3 cautious in concluding that daily activities are inconsistent with testimony about pain, because 4 impairments that would unquestionably preclude work and all the pressures of a workplace 5 environment will often be consistent with doing more than merely resting in bed all day.” 6 Garrison, 759 F.3d at 1016; see also Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) 7 (“Several courts, including this one, have recognized that disability claimants should not be 8 penalized for attempting to lead normal lives in the face of their limitations.”). 9 In support of his assertion that K.G. ran errands, the ALJ cited to one reference where a 10 provider notes that K.G. does not take gabapentin “if she goes out to run errands.” AR 577. The 11 record does not indicate the nature or difficulty of the errands. In her April 2021 function report, 12 K.G. described running errands to Safeway and Walgreens, stores which she says are located 13 across the street from her home. AR 294. She stated that if the distance is farther than that, her 14 husband drives. Id. It is not clear from the ALJ’s decision how the fact that K.G. could run 15 errands contradicts her symptom testimony. The ALJ also cited record evidence indicating that 16 K.G. traveled to Hawaii to attend her son’s wedding. AR 107 (citing AR 644). Nothing in the 17 record indicates what such travel entailed, and the ALJ did not explain how the mere fact of 18 K.G.’s travel and attendance at the wedding was inconsistent with her testimony. The ALJ did not 19 inquire into this travel at the hearing and did nothing else to develop the record on this point. See 20 Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) (“The ALJ in a social security case has 21 an independent duty to fully and fairly develop the record . . . . Ambiguous evidence . . . triggers 22 the ALJ’s duty to conduct an appropriate inquiry.”) (quotations and citations omitted). 23 With regard to K.G.’s hobbies, the ALJ cited generally to several exhibits in the record 24 without providing specific citations. K.G. argues that many of the referenced hobbies are 25 activities that she used to do but no longer can because of her pain. Dkt. No. 11 at 15–17; see also 26 AR 294 (no longer can engage in hobbies because “in too much pain and medicine makes [her] 27 to[o] groggy”). Because the ALJ cited generally to several multi-page exhibits, without indicating 1 best the Court can discern, most references to K.G.’s hobbies appear in the context of her “social 2 history” recorded during medical assessments. See, e.g., AR 382, 384, 473, 485, 492, 548, 746, 3 945. These same records, which refer to her hobbies in the present tense, also report that she 4 “works in daycare,” although at the time of each assessment K.G. was no longer working. Id. 5 This calls into question the accuracy of an inference that the assessments refer to K.G.’s current, 6 as opposed to past, hobbies. Because the ALJ did not specifically identify record evidence 7 indicating that K.G. engaged in hobbies during the time of her claimed disability, and did not 8 explain how any such hobbies are inconsistent with her symptom testimony, the Court finds 9 insubstantial support for the ALJ’s conclusion that K.G. engaged in these hobbies during the 10 insured period. 11 On the record presented, the ALJ’s determination that K.G.’s daily activities contradict her 12 subjective testimony is not supported by substantial evidence or by specific, clear, and convincing 13 reasons. 14 4. Consideration of Post-DLI Treatment 15 K.G. argues that the ALJ erred in treating the end of the insured period “as though it were a 16 steel curtain” that “prevented him from considering medical evidence and treatment” after the date 17 last insured. Dkt. No. 11 at 13–14. Specifically, she points to the ALJ’s failure to consider 18 evidence of “continu[ing] treatment” for her right shoulder after December 31, 2021, citing 19 “regulations [that] require that a claimant must establish disability on or before the date last 20 insured in order to be entitled to a period of disability and disability insurance benefits.” AR 107. 21 The Commissioner does not specifically address K.G.’s arguments about evidence of her right 22 shoulder surgery, although elsewhere he argues that, to the extent Ninth Circuit precedent supports 23 consideration of post-DLI evidence, such consideration is limited to post-DLI medical opinions, 24 not other forms of evidence. Dkt. No. 13 at 9 (citing Taylor v. Comm’r of Soc. Sec. Admin., 659 25 F.3d 1228, 1232 (9th Cir. 2011)). The Court agrees that the ALJ should have considered K.G.’s 26 right shoulder surgery evidence, or at least explained why it was not relevant in his analysis of the 27 intensity, persistence, and limiting effect of her symptoms. 1 period, “post-DLI evidence” may be relevant to that determination, and neither Taylor, nor the 2 precedent it relies on, holds that relevant evidence is limited to formal medical opinions. See, e.g., 3 Taylor, 659 F.3d at 1232 (“[T]his court has specifically held that medical evaluations made after 4 the expiration of a claimant’s insured status are relevant to an evaluation of the [pre-expiration 5 condition].”) (quoting Lester v. Chater, 81 F.3d 821, 832 (9th Cir. 1995), as amended (Apr. 9, 6 1996)); Smith v. Bowen, 849 F.2d 1222, 1225 (9th Cir. 1988) (“There is considerable authority in 7 the Eighth, Eleventh, Fourth, Second and Seventh Circuits that supports our conclusion, that 8 medical evaluations made after the expiration of a claimant’s insured status are relevant to an 9 evaluation of the pre-expiration condition.”) (citing cases supporting consideration of different 10 forms of evidence post-DLI); see also F.B. v. Kijakazi, No. 21-cv-01628-JCS, 2022 WL 4544202, 11 at *9 (N.D. Cal. Sept. 28, 2022) (“Accordingly, the post-DLI medical evidence and opinions were 12 relevant to the ALJ's decision . . . .”) (emphasis added); Paula W. v. Kijakazi, No. 21-cv-04092- 13 DMR, 2022 WL 2439178, at *3 (N.D. Cal. July 5, 2022) (“ALJ appropriately recognized that the 14 post-DLI evidence, which pertained to Plaintiff's ‘pre-expiration condition[s],’ was nevertheless 15 relevant and required consideration on the merits.”) (citing Lester, 81 F.3d at 832 and Taylor, 659 16 F.3d at 1232); Willig v. Berryhill, No. 16-cv-03041-MEJ, 2017 WL 2021369, at *5 (N.D. Cal. 17 May 12, 2017) (“The fact the examination took place after the DLI does not necessarily render the 18 examination irrelevant.”). 19 Here, K.G. points specifically to a surgery on her right shoulder in March of 2022, nine 20 weeks after her date last insured. Dkt. No. 11 at 9, 13; see also AR 840 (3/2/22 – “Also offer AC 21 dx injection as this can cause referred ant pain. She is agreeable to try this tomorrow before last 22 stop which is surgery.”). Given that one of the ALJ’s findings was a severe impairment to her 23 right shoulder, this surgery is reasonably relevant to her disability during the time period and the 24 ALJ erred in not considering this in his assessment and/or not explaining why it was not relevant 25 to her pre-expiration right shoulder condition. 26 * * * 27 For the foregoing reasons, the Court concludes that the ALJ erred in discounting K.G’s 1 grants K.G.’s request for relief regarding the ALJ’s assessment of her subjective testimony, and 2 denies the Commissioner’s cross-motion on this issue. 3 B. Mental Impairments 4 K.G. challenges the ALJ’s determination that her mental health conditions were not severe 5 and his subsequent decision to not include any limitations related to her mental health in assessing 6 her RFC. Dkt. No. 11 at 17. Specifically, she argues that the ALJ failed to address one of her 7 diagnosed conditions, relied on cherry-picked selections from the record, and improperly gave 8 weight to a state agency mental health consultant’s opinion. Id. at 18–19. The Commissioner 9 argues that K.G. simply presents an “alternative interpretation” of the evidence and does not show 10 that the ALJ’s determination is not supported by the evidence. Dkt. No. 13 at 7–8. 11 At step two of the sequential analysis, the ALJ found that K.G. had medically determinable 12 impairments of depression, anxiety, and PTSD, but concluded that these conditions were not 13 severe because she had no limitations in the four broad areas of mental functioning described in 14 the regulations for evaluating mental impairments, known as the “paragraph B” criteria: (1) 15 understanding, remembering, or applying information; (2) interacting with others; (3) 16 concentrating, persisting, or maintaining pace; and (4) adapting or managing oneself. AR 102–03; 17 see also 20 C.F.R. § 404.1520a(c)(3) (citing 20 C.F.R. pt. 404, subpt. P, App. 1-Part-A2, 18 § 12.00E). An impairment or combination of impairments is considered “severe” if it 19 “significantly limits [a claimant’s] physical or mental ability to do basic work activities.” 20 20 C.F.R. § 404.1520(c). 21 “When determining the claimant’s RFC, the ALJ must consider limitations and restrictions 22 imposed by all of the claimant’s impairments, whether or not they are severe.” Mercado, 2017 23 WL 4029222, at *5. The RFC determination requires a more specific and detailed assessment of a 24 claimant’s mental impairments than is required at step two. See AR 103 (“The mental residual 25 functional capacity assessment used at steps 4 and 5 of the sequential evaluation process requires a 26 more detailed assessment.”); see also SSR 96-8p, 1996 WL 374184, at *4 (“The mental RFC 27 assessment used at steps 4 and 5 of the sequential evaluation process requires a more detailed 1 and C of the adult mental disorders listings . . . .”). 2 1. Bereavement Disorder Diagnosis 3 K.G.’s primary argument is that the ALJ erred in failing to consider, for any purpose, her 4 diagnosis of persistent complex bereavement disorder. Dkt. No. 11 at 18. The Commissioner 5 concedes that the ALJ did not consider this diagnosis but argues that such an omission is harmless 6 because the ALJ considered “all of [K.G.]’s symptom allegations,” including bereavement. Dkt. 7 No. 13 at 8. The Court agrees with K.G. that the ALJ’s failure to consider her bereavement 8 disorder diagnosis was an error, and that it was not harmless. 9 The ALJ’s decision reflects that after completing step two of the sequential analysis and 10 find no mental limitations, the ALJ applied this no-limitation finding directly to his assessment of 11 K.G.’s RFC. See AR 103 (“The following residual functional capacity assessment reflects the 12 degree of limitation I have found in the ‘paragraph B’ mental function analysis.”); AR 109 13 (referring to the step two analysis of the mental health impairments to support finding physician’s 14 opinion persuasive in RFC calculation). While the Commissioner is correct that the ALJ 15 mentioned K.G.’s grief from the loss of her daughter, the decision does not reflect that the ALJ 16 considered the diagnosed mental health condition—persistent complex bereavement disorder— 17 associated with this loss. AR 102 (“On August 25, 2021, she reported that she was also grieving 18 for her daughter who died in the December 2016 Ghost Ship fire.”); see also AR 108 (citing 19 diagnosis of bereavement disorder as among list of diagnoses by treating physician). 20 Classification of a mental health impairment as severe or not severe will not necessarily impact an 21 RFC assessment, see Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017), but a failure to 22 consider an impairment at all is not harmless. Mercado, 2017 WL 4029222, at *5. 23 Here, K.G.’s bereavement disorder is central to her claim that she was no longer able to 24 work with children, which is a requirement of her past relevant work. There is no indication in the 25 record that the ALJ’s consideration of K.G.’s other mental health conditions—i.e., depression, 26 anxiety, and PTSD—are coextensive with or subsume her bereavement disorder, or that 27 bereavement disorder is no different than experiencing grief following a loss. For this reason, the 1 and in formulating her RFC, and remand on this ground alone is necessary. 2 2. Subjective Evidence Regarding Mental Health Symptoms 3 K.G. argues that the ALJ discounted her statements and testimony about her mental 4 impairments by cherry-picking contrary evidence from the record. Dkt. No. 11 at 18–20. K.G. 5 does not clearly identify which of the ALJ’s findings she challenges with respect to the ALJ’s 6 paragraph B analysis. However, her arguments are directed principally to the ALJ’s failure to find 7 that she had limitations in “social function in a competitive work environment.” See Dkt. No. 11 8 at 20. Thus, the Court understands that K.G. principally challenges the ALJ’s finding that she had 9 no limitation in the second mental functional area—i.e. her ability to interact with others—and that 10 her limitations in this area should have been included in the RFC assessment. 11 The ALJ’s decision indicates that he found K.G.’s “medically determinable impairments” 12 could cause the symptoms she described and identifies no evidence of malingering. AR 106. 13 Thus, to the extent the ALJ discounted K.G.’s statements, he was required to specifically cite clear 14 and convincing reasons. See Tommasetti, 533 F.3d at 1039. In all other aspects, his conclusions 15 must be supported by substantial evidence. See Ahearn, 988 F.3d at 1115. 16 In the mental health context, “[c]ycles of improvement and debilitating symptoms are a 17 common occurrence, and in such circumstances, it is error for an ALJ to pick out a few isolated 18 instances of improvement over a period of months or years and to treat them as a basis for 19 concluding a claimant is capable of working.” Garrison, 759 F.3d at 1017. Moreover, reports of 20 improvement must be examined in context—a relative improvement in a claimant’s symptoms 21 may not mean they are no longer disabled. See Holohan v. Massanari, 246 F.3d 1195, 1205 (9th 22 Cir. 2001) (“That a person who suffers from severe panic attacks, anxiety, and depression makes 23 some improvement does not mean that the person’s impairments no longer seriously affect her 24 ability to function in a workplace.”). 25 The ALJ determined that K.G. had no limitations in interacting with others primarily 26 because (1) “she was able to talk to her sister-in-law about her daughter”; (2) “she reported having 27 no problems getting along with others” and spent time with others, virtually and in person; and (3) 1 While the ALJ does not explain how K.G’s private conversations with a close relative (her 2 sister-in-law) support a finding that she has no limitations in interacting with others in a work 3 setting, the Commissioner is correct that the record contains evidence, including K.G.’s own 4 statements, that support a finding that K.G. retained the capacity to interact with others in 5 circumstances that bear on her ability to perform her past relevant work. 6 See AR 294–295 6 (indicating K.G. spends time with friends and family through phone calls, video calls, texts, or in 7 person; does not have any problems getting along with others; does not have problems with 8 authority figures and has never been laid off because of issues getting along with others.). Further, 9 the ALJ correctly noted that records indicate K.G.’s mood improved with treatment and 10 medication, particularly around December 2021. See, e.g., AR 595 (9/29/2021 – “Her minipress 11 and Prozac are working. Her mood is better.”); AR 710 (12/1/21 – “[She] continues to be tearful, 12 but her mood is considerabl[y] better and less depressed.”); AR 711 (12/1/21 – “[Her] nightmares 13 have stopped.”). However, the record also includes treatment notes indicating some periods of 14 regression and fluctuation between “mild” and “moderate,” especially towards the end of the 15 insured period. See, e.g., AR 522 (8/24/21 – PHQ score, a metric for measuring depression, was 16 at 21 (severe)); AR 601 (9/29/21 – PHQ score of 9 (mild)); AR 648 (11/17/21 – PHQ score of 17 17 (moderately severe)); AR 713 (12/1/21 – PHQ score of 12 (moderate)); AR 766 (12/28/2021 – 18 PHQ score of 10 (moderate)). Measures of K.G.’s anxiety also showed fluctuations but indicated 19 a trend of improvement. See AR 522 (8/24/2021 – GAD score of 15 (severe)); AR 587 (9/7/2021 20 –GAD score of 16 (severe)); AR 593 (9/29/2021 – GAD score of 15 (severe)); AR 648 21 (11/17/2021 – GAD score of 12 (moderate)); AR 717 (12/1/2021 – GAD score of 8 (mild)); AR 22 768 (12/28/2021 – GAD score of 7 (mild)). In addition, measurements of K.G.’s ability to 23 “manage[] day-to-day life” were reported as “very poorly” or “fairly poorly” throughout the 24 25 6 In discussing the paragraph B criteria, the ALJ again cited generally to multi-page exhibits in the record, making it difficult to identify the specific evidence on which he relied. See AR 103 (citing 26 5E (8 pages), 3F (30 pages), 4F (30 pages), and 5F (390 pages)). The Court further notes that the paragraph addressing the functional area of interactions with others contained an unfinished 27 sentence beginning “Records reveal . . .,” AR 102, suggesting the ALJ did not identify all of the 1 record of her psychiatric visits. See AR 587, 648, 713, 761. 2 K.G. does not deny that medication provided her with some relief. AR 43. Nor does she 3 assert that her mental health conditions did not improve through treatment. Dkt No. 11 at 20. 4 Instead, she argues that the help from such treatments was only “modest” and that the ALJ should 5 have considered this modest help “compared to the ongoing mental impairments” K.G. suffered. 6 Id. However, apart from the failure to consider her bereavement disorder diagnosis, K.G. does not 7 identify the specific mental impairments or limitations she contends remained following the 8 acknowledged improvements in her conditions or how the ALJ erred in assessing those 9 impairments and limitations at step two or as part of her RFC. Rather, given the undisputed 10 evidence of improvement regarding her conditions of depression and anxiety, the ALJ’s findings 11 are supported by substantial evidence, and as to those conditions, the ALJ provided specific, clear, 12 and convincing reasons for discounting K.G.’s testimony regarding the severity of her symptoms. 13 In sum, the record contains evidence of K.G.’s improvements over time with respect to 14 certain aspects of her mental health, and the Court is not persuaded that the ALJ erred in his 15 assessment that at least some of K.G.’s mental health impairments improved with treatment. 16 3. Assessment of Consultant Medical Opinion 17 K.G. challenges the ALJ’s adoption of the opinion of Dr. N. Genece, a state agency mental 18 health consultant. Dkt. No. 11 at 18. The Commissioner does not address this argument. 19 The ALJ must evaluate the “persuasiveness” of all medical opinions in the record based 20 on: (1) supportability; (2) consistency; (3) relationship with the claimant; (4) specialization; and 21 (5)other factors, such as “evidence showing a medical source has familiarity with the other 22 evidence in the claim or an understanding of our disability program’s policies and evidentiary 23 requirements.” 20 C.F.R. § 404.1520c. The ALJ is required to explicitly address factors (1) and 24 (2)in his or her decision but is not required to explain how he or she considered the remaining 25 three factors listed in the regulations. Id. § 404.1520c(b)(2); see Woods v. Kijakazi, 32 F.4th 785, 26 787 (9th Cir. 2022). 27 In accepting Dr. Genece’s findings, the ALJ stated that the opinion is persuasive “because 1 examination findings and improvement with medication, as discussed above in Finding 3.” AR 2 109. K.G. argues that Dr. Genece did not have access to any of K.G.’s medical records after 3 September 17, 2021 and that Dr. Genece did not assess the case under “trauma and stress related 4 disorders” but only “anxiety and depressive disorders.” Dkt. No. 11 at 18. K.G. does not explain 5 how assessing K.G.’s records under these different categories would have or should have impacted 6 Dr. Genece’s opinion. Moreover, Dr. Genece reviewed the records that were available at the time 7 of her assessment, and there is no reason the ALJ must discount the opinion as not adequately 8 supported or as inconsistent simply because other records were generated at a later time. 9 The Court concludes that K.G. has not identified any errors in the ALJ’s assessment of Dr. 10 Genece’s opinion. 11 *** 12 For the foregoing reasons, the Court concludes that the ALJ erred in failing to consider 13 K.G.’s diagnosis of persistent complex bereavement disorder, both at step two and in formulating 14 her RFC. The Court therefore grants K.G.’s request for relief as to this issue but denies it as to her 15 remaining challenges to the ALJ’s mental health analysis. The Court denies the Commissioner’s 16 cross-motion as to the ALJ’s consideration of K.G.’s bereavement disorder but grants it in all 17 other respects relating to the ALJ’s mental health analysis. 18 C. Left Shoulder Impairment 19 K.G. argues that the ALJ erred in determining that her left shoulder degenerative joint 20 disease was not established until after her date last insured. Dkt. No. 11 at 20–22. Specifically, 21 she argues that the ALJ mischaracterized her testimony in saying that she only began to have pain 22 in her left shoulder after December 31, 2021, and that he erred in not finding her left shoulder 23 condition was a severe impairment that was established before her date last insured. Id. at 21. 24 The Commissioner contends that the record indicates K.G. “remained silent” as to any left 25 shoulder pain during the insured period and furthers argues that the type of evidence she offers to 26 support her left shoulder impairment is not appropriate for consideration post-DLI.7 Dkt. No. 13 27 1 at 9. 2 At the August 16, 2022 hearing, K.G. testified that she began experiencing pain in her left 3 shoulder in approximately August of 2021. AR 37. She acknowledged that her left shoulder pain 4 was not as severe as her right shoulder or her neck pain. Id. Treatment records from September 3, 5 2021 indicate she reported “starting to get similar shooting pains to the left side [shoulder].” AR 6 561. However, K.G. did not receive imaging on her left shoulder until June of 2022, and she does 7 not appear to have requested examination or treatment prior to that date. AR 1125 (messaging her 8 doctor “if you can look at my left should[sic] I'm having the same pain as the beginning if[sic] the 9 right. can I make an appt for left shoulder?”); 1146 (confirmation of left shoulder imaging). 10 Imaging conducted in June 2022 revealed “severe AC joint arthritis on the left side.” AR 1181. 11 K.G. does not explain why these findings necessarily require the conclusion that K.G. suffered a 12 severe impairment of her left shoulder no later than December 31, 2021. 13 Where there are multiple rational explanations supported by substantial evidence, the Court 14 must defer to the ALJ. Ahearn, 988 F.3d at 1115–16. While the record reflects that K.G. 15 mentioned left shoulder pain to her providers before her date last insured, and that subsequent 16 medical evidence dated six months after the date last insured revealed a “severe” condition, 17 substantial evidence supports the ALJ’s conclusion that K.G.’s left shoulder impairment did not 18 become a severe impairment or an impairment that was required to have been considered as part of 19 the RFC, during the relevant period from February 17, 2021 through December 31, 2021. 20 The Court therefore grants the Commissioner’s cross-motion and affirms the ALJ’s finding 21 regarding K.G.’s left shoulder impairment. The Court denies K.G.’s request for relief as to this 22 issue. 23 D. Categorization of Past Work 24 K.G. argues that the ALJ failed to recognize that her past work as a childcare attendant was 25 a composite job, with requirements in addition to those stated for nursery school attendant 26 (359.677-018)8 in the DOT. Dkt. No. 11 at 22–23. The Commissioner argues that K.G.’s “lay 27 1 speculation is insufficient to overturn the ALJ’s finding, which was based on the testimony of a 2 vocational expert.” Dkt. No. 13 at 11. 3 At step four of the sequential analysis, the claimant “has the burden of showing that she 4 could no longer perform her past work.” Lewis v. Barnhart, 281 F.3d 1081, 1083 (9th Cir. 2002). 5 The ALJ must consider whether the claimant can perform the work as actually performed or as it 6 is generally performed in the national economy. SSR 24-2p, 89 Fed. Reg. 48479 (June 22, 2024). 7 An individual is not disabled “[i]f the individual cannot meet the functional demands actually 8 required in the former job but can meet the functional demands as generally required throughout 9 the economy.” Id. (emphasis added). However, “when a claimant's past relevant work is a 10 composite of two or more separate occupations, he or she does not have past relevant work as 11 generally performed in the national economy.” Jones v. Colvin, No. 14-cv-05260-EMC, 2015 WL 12 5964900, at *10 (N.D. Cal. Oct. 13, 2015). “While there is no Ninth Circuit bright-line rule for 13 what constitute significant elements or main duties of a job to categorize it as composite, district 14 courts generally consider the fundamental nature of the work at issue, focusing on how much time 15 a plaintiff spends doing the tasks claimed to support a composite-job finding.” Hassan F. v. 16 O’Malley, No. 23-cv-03553-RFL, 2024 WL 2952550, at *1 (N.D. Cal. June 5, 2024) (quoting 17 McCullough v. O’Malley, No. 23-cv-00298 JMS-KJM, 2024 WL 1209479, at *7 (D. Haw. Mar. 18 21, 2024)). An ALJ may not classify an occupation ‘according to the least demanding function.’” 19 Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1166 (9th Cir. 2008) (quoting Valencia v. 20 Heckler, 751 F.2d 1082, 1086 (9th Cir.1985)). 21 Here, the ALJ found that K.G. could perform past relevant work as a nursery school 22 attendant9 as it was “actually” performed and as “generally” performed, which he further indicated 23 theaters, department stores, hotels, and similar organizations: Helps children remove outer 24 garments. Organizes and participates in games, reads to children, and teaches them simple painting, drawing, handwork, songs, and similar activities. Directs children in eating, resting, and 25 toileting. Helps children develop habits of caring for own clothing and picking up and putting away toys and books. Maintains discipline. May serve meals and refreshments to children and 26 regulate rest periods. May assist in preparing food and cleaning quarters.” See Dkt. No. 11 at 23. 27 9 In his opinion, the ALJ incorrectly referenced DOT 359.671-016 as the citation for nursery 1 required “light” exertion. AR 110. 2 K.G. argues that her prior job was “likely” composite because it involved additional duties, 3 such as “working with infants, changing diapers, or lifting up to 50 lbs,” that are not among the 4 listed duties for nursery school attendant in the DOT. Dkt. No. 11 at 22; see AR 27, 299. The 5 vocational expert acknowledged that the description of nursery school attendant in the DOT did 6 not fully match K.G.’s description of her prior job, and he testified that she would not have been 7 able to perform her prior job as she described it, which required medium exertion. See AR 46, 47 8 (VE: “Wait a minute, Your Honor. I said yes, but as in the DOT only, not as she did it.” ALJ: 9 “Oh, per DOT, but not as described? Okay.” VE: “Correct.”). However, the vocational expert did 10 not testify that K.G.’s prior job was a composite job, nor did K.G. raise that issue during the 11 hearing. 12 K.G. does not identify what other occupation or occupations she contends form a 13 “composite” position with the DOT nursery school attendant occupation. While she claims that 14 lifting children was part of her prior job as actually performed, she does not contend that this duty 15 was her primary duty, or that the other duties described in the classification for the nursery school 16 attendant occupation were not among the duties she performed. In sum, K.G. has not shown that 17 her past relevant work was a composite position and that the ALJ erred in adopting the vocational 18 expert’s classification of her prior work as a nursery school attendant. 19 The Court therefore grants the Commissioner’s cross-motion and affirms the ALJ’s 20 classification of K.G.’s past relevant work. K.G.’s request for relief as to this issue is denied. 21 E. Determination of RFC 22 K.G. asserts that the ALJ erred by failing to incorporate limitations concerning her 23 “cervical spine, right and left shoulders, and mental impairments” into his determination of her 24 RFC. Dkt. No. 11 at 23. The Commissioner argues that the ALJ properly took into account all of 25 the limitations for which he found record support. Dkt. No. 13 at 10. 26 In assessing a claimant’s RFC, an ALJ must consider all of the claimant’s impairments, 27 including those that are not severe. See 20 C.F.R. § 404.1545(a)(2) (“We will consider all of your 1 determinable impairments that are not ‘severe,’ . . . when we assess your residual functional 2 capacity.”); see also SSR 96-8p, 1996 WL 374184 at *5 (“In assessing RFC, the adjudicator must 3 consider limitations and restrictions imposed by all of an individual’s impairments, even those that 4 are not ‘severe.’”). “While these regulations require the ALJ to consider the effect of all 5 plaintiff’s impairments in formulating the RFC, they do not require him to translate every non- 6 severe impairment into a functional limitation in the RFC.” Rania v. Kijakazi, No. 2:20-cv-01541 7 MCE CKD (SS), 2021 WL 5771663, at *3 (E.D. Cal. Dec. 6, 2021), report and recommendation 8 adopted, 2022 WL 95228 (E.D. Cal. Jan. 7, 2022) (emphasis in original). “Social Security 9 regulations define residual functional capacity as the ‘maximum degree to which the individual 10 retains the capacity for sustained performance of the physical-mental requirements of jobs.’” 11 Reddick, 157 F.3d at 724 (citation omitted) (emphasis in original). 12 Because the ALJ improperly discounted K.G.’s subjective testimony regarding her 13 physical limitations due to pain and failed to consider her bereavement disorder diagnosis, the ALJ 14 determined K.G.’s RFC based on an erroneous and/or incomplete assessment of her relevant 15 impairments and limitations. For this reason, the ALJ’s RFC assessment is not supported by 16 substantial evidence. 17 The Court thus grants K.G.’s request for relief as to the ALJ’s assessment of her RFC, and 18 denies the Commissioner’s cross-motion as to this issue. 19 IV. DISPOSITION 20 K.G. asks the Court to remand for payment of benefits, arguing that this case falls within 21 the “credit-as-true standard.” See Dkt. No. 11 at 24. “An automatic award of benefits in a 22 disability benefits case is a rare and prophylactic exception to the well-established ordinary 23 remand rule.” Leon v. Berryhill, 880 F.3d 1041, 1044 (9th Cir. 2017). The Court may remand for 24 an immediate award of benefits under the credit-as-true standard only where (1) the ALJ has failed 25 to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical 26 evidence; (2) there are no outstanding issues that must be resolved before a determination of 27 disability can be made; and (3) it is clear from the record that the ALJ would be required to find 1 three conditions are satisfied and the evidence in question is credited as true, it is within the 2 district court’s discretion whether to make a direct award of benefits or to remand for further 3 || proceedings, when the record as a whole creates serious doubt as to disability. 7d at 1021. 4 Here, the credit-as-true standard is not satisfied. A final determination regarding K.G.’s 5 || entitlement to benefits cannot be made absent a proper assessment of K.G.’s physical and mental 6 || impairments, including an assessment of K.G.’s subjective statements and testimony. As 7 || discussed above, on remand the ALJ should reconsider (1) K.G.’s testimony regarding her pain 8 symptoms and her physical limitations, (2) her bereavement disorder diagnosis, and (3) reassess 9 K.G.’s RFC and her ability to perform past relevant work. 10 || Vv. CONCLUSION 11 Based on the foregoing, K.G.’s request for relief is granted in part and denied in part, and 12 || the Commissioner’s cross-motion is granted in part and denied in part, and this matter is remanded 13 for further proceedings consistent with this order. 14 The Clerk shall enter judgment accordingly and close this file. 3 15 IT IS SO ORDERED. 16 Dated: September 30, 2024

18 Varajuia EZ, LaMarche: Virginia K. DeMarchi 19 United States Magistrate Judge 20 21 22 23 24 25 26 27 28