Hahn v. Kijakazi

• Court: District Court, N.D. California
• Decided: March 25, 2024
• Docket: 3:22-cv-05717
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 S. N. HAHN, Case No. 22-cv-05717-AMO

8 Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY 9 v. JUDGMENT, DENYING DEFENDANT’S CROSS-MOTION FOR 10 KILOLO KIJAKAZI, SUMMARY JUDGMENT, AND REMANDING CASE FOR FURTHER 11 Defendant. PROCEEDINGS 12 Re: Dkt. Nos. 15, 18

13 Plaintiff S. N. Hahn1 moves for summary judgment, seeking reversal of the Social Security 14 Commissioner’s denial of her application for disability insurance benefits. The Commissioner 15 opposes the motion and cross-moves for summary judgment affirming the denial. Having 16 considered the parties’ papers, the administrative record, and the relevant legal authority, the Court 17 GRANTS Hahn’s motion for summary judgment, DENIES the Commissioner’s cross-motion for 18 summary judgment, and REMANDS this matter for further proceedings. 19 I. BACKGROUND 20 A. Hahn’s Application for Social Security Disability Insurance Benefits 21 On July 7, 2020, Hahn filed a protective application2 for disability insurance benefits, 22 alleging a disability start date of January 15, 2019. Administrative Record (“AR”) at 228-231. At 23 1 The Court partially redacts Hahn’s name to mitigate privacy concerns. See Heather L. v. Saul, 24 No. 19-CV-02483-SI, 2020 WL 3504468, at *1 n.1 (N.D. Cal. June 29, 2020) (citing Fed. R. Civ. 25 P. 5.2(c)(2)(B)).

26 2 The term “protective application” refers to “the first time [a claimant] contact[s] the Social Security Administration to file a claim for disability or retirement. . . . This is important because 27 [a] protective filing often affects the entitlement date for disability and retirement beneficiaries 1 the request of the Social Security Administration (“SSA”), Hahn submitted six function reports: 2 three that she completed, one from a friend named Stephen, one completed by Pooran, Hahn’s 3 mother, and one from a friend named Melissa.3 Id. at 299-310, 316-323, 331-341, 342-353, 390- 4 400, 401-413. Hahn also submitted, among other materials, two seizure questionnaires, and she 5 visited two doctors for consultative examinations ordered by the SSA. Id. at 311-315, 354-357, 6 444-509, 512-529, 582-594, 595-656, 657-733, 748-754, 779-783, 779-783. 7 1. Function reports 8 a. Function reports by Hahn4 9 In the function report she completed on January 14, 2020, Hahn indicated that she lives 10 with her 11-year-old daughter in an apartment. Id. at 303. Hahn stated that she has a nerve 11 disorder on her face and tongue and experiences “debilitating migra[i]nes and seizure episodes 12 daily.” Id. She also has PTSD, heavy anxiety, and panic attacks and suffers from Raynaud’s 13 disease,5 rheumatoid arthritis, and an autoimmune disease. Id. She reported that “[i]t is extremely 14 difficult for [her] to physically work and lift heavy objects, [and] clean dishes[.]” Id. Hahn wrote 15 that she “feel[s] sick most days” and cannot “work or function like [sic] a normal job, or live like a 16 regular person.” Id. Her autoimmune disease makes her feel weak and “abnormally exhausted.” 17 Id. at 304. The seizure and nerve episodes “cause [her] not to function.” Id. 18

19 3 A function report, whether from the claimant or from a third-party who knows the claimant, is a form the SSA uses to obtain information about the claimant’s activities and abilities. See Form 20 SSA-3373-BK, Soc. Sec. Admin. Forms, available at https://www.ssa.gov/forms/ssa-3373-bk.pdf 21 (last visited Mar. 25, 2024); see also Form SSA-3380-BK, Soc. Sec. Admin. Forms, available at https://www.ssa.gov/forms/ssa-3380.pdf (last visited Mar. 25, 2024). 22 4 With respect to the three function reports Hahn completed, to avoid repetition, the Court focuses 23 on the portions where Hahn provides details not included in other reports.

24 5 For background purposes only, the Court notes that Raynaud’s disease is “a vascular disorder 25 that is marked by recurrent spasm of the capillaries and especially those of the fingers and toes upon exposure to cold, that is characterized by pallor, cyanosis, and redness in succession usually 26 accompanied by pain, and that in severe cases progresses to local gangrene.” See Raynaud’s disease, Merriam-Webster.com Medical Dictionary, Merriam-Webster, https://www.merriam- 27 webster.com/medical/Raynaud%27s%20disease (last visited Mar. 25, 2024). See Battersby v. 1 In describing her day-to-day activities, Hahn stated that she wakes up, makes breakfast, 2 and takes her daughter to school. Id. at 304. She goes home, takes a long walk, and usually naps 3 until 2:00 or 3:00 p.m. Id. She feeds her pets, gives them water, and walks them with the help of 4 some friends. Id. She does chores like preparing meals, laundry, and dishes, which hurt her hands 5 a lot. Id. at 305. She needs reminders or physical help to do these things. Id. She goes outside 6 daily in the morning, but sometimes she feels “too sick to go outside.” Id. at 306. She shops for 7 food, groceries, pet foot, and clothes about once a week. Id. When she needs to go someplace, 8 she will drive, walk, use public transit, take a bike, or get a ride. Id. Hahn listed reading, walking 9 dogs, movies, and fishing as hobbies, but reported that she does not do these things often because 10 she is tired and sleeps a lot. Id. at 307. Hahn also listed watching movies at home with others as a 11 social activity, but she does not do it often. Id. 12 In terms of how her illnesses affect her daily activities, Hahn stated that she has to dress 13 slowly and has a bad memory. Id. Sometimes she forgets to eat or forgets when food is cooking, 14 and she needs reminders, usually from a friend, to take her medications. Id. at 304, 305. She 15 indicated being able to care for her hair, shave, and use the toilet normally. Id. at 304. For 16 bathing, she stated that warm and hot water helps her a lot. Id. 17 She indicated that her conditions generally affect lifting, reaching, memory, completing 18 tasks, concentration, and using her hands. Id. at 308. She can pay attention for a few minutes, 19 does “okay” following written instructions, and is “good” at following spoken instructions. Id. at 20 308. She gets along with authority figures “okay,” is “not good” at handling stress, and does not 21 handle changes in routine well. Id. at 309. 22 In response to whether she has noticed any unusual behavior or fears, she listed 23 “PTSD/anxiety.” Id. In the section asking about current medications, Hahn listed one medication, 24 Naproxin, and indicated sleepiness as a side effect. Id. at 310. 25 In the function report Hahn completed on July 21, 2020, Hahn added that she “cannot be in 26 an area where there are loud noises[] or people screaming.” Id. at 346. She cannot use her “hands 27 to work because the knuckles are deteriorated.” Id. Her autoimmune disease weakens her 1 internally weaker, and [she] sleeps a lot because of it.” Id. She usually feels exhausted by 11:00 2 a.m. and has to nap for a few hours. Id. at 347. She “cannot feel [the] left full side of [her] face 3 due to [a] facial nerve disorder,” and she has had seizures since the age of 3. Id. at 346. She 4 indicated that her “seizures often occur at night.” Id. 5 Hahn stated that her illnesses affect her day-to-day life. Id. She cannot take baths, so she 6 has to shower. Id. She lets her hair air dry most of the time. Id. She does not shave often 7 because of her knuckles. Id. Sometimes, she “ha[s] episodes when [she] uses the toilet or 8 bathroom.” Id. She cannot put her hands in cold water or temperatures. Id. She drives 9 sometimes, but most of the time, she does not drive because of her seizures. Id. at 349. 10 Hahn’s conditions generally affect lifting, reaching, stair-climbing, memory, completing 11 tasks, and using her hands. Id. at 351. She “cannot lift heavy items due to [the] condition of [her] 12 hands.” Id. She “cannot complete dishes or laundry because of [her] hands.” Id. She is also 13 “short and cannot reach high places.” Id. Hahn can pay attention for 30 minutes or less and is 14 “okay” at following written instructions. Id. She stated that she cannot follow spoken instructions 15 and that she needs “physical on map directions or on paper.” Id. She stated that she “get[s] along 16 great” with authority figures, is “mediocre” at handling stress, and is “okay” at handling changes 17 in routine. Id. at 351-352. 18 In response to the question of whether she has noticed any unusual behaviors or fears, she 19 stated that “[f]ireworks is new” and that her “PTSD has worsened.” Id. In the section asking her 20 to list current medications, Hahn listed “Nortriptyline.” Id. at 353. She noted sleepiness and 21 “cannot function” as side effects. Id. 22 In the function report she completed on February 16, 2021, Hahn added that she suffers 23 from ovarian cysts that “pop” and “come and go.” Id. at 406. When Hahn gets sick, she is “sick 24 for a very long time up to 4 weeks to 6 weeks.” Id. Her migraines are “very debilitating, behind 25 eyes, cannot function normal[ly].” Id. 26 In describing how her conditions affect certain tasks, she reported that her hands often hurt 27 when dressing, that hot baths and showers help her, and she blow dries her hair. Id. at 407. She 1 because she has no license. Id. at 409. 2 Hahn also reported that her illnesses affect lifting, reaching, memory, completing tasks, 3 concentration, and using her hands, but she did not indicate any trouble climbing stairs. Id. at 411. 4 She can pay attention for 10-20 minutes and gets along “okay” with authority figures. Id. at 411. 5 In terms of handling stress, Hahn said she does not do “well at all.” Id. at 412. She is “ok” 6 handling changes in routine, but it “can be bad sometimes.” Id. 7 In response to the question of whether she has noticed any unusual behaviors or fears, she 8 listed loud noises, “[h]allucinations/more PTSD, [and] trouble remembering things.” Id. at 412. 9 b. Function report from Stephen 10 In the function report from one of Hahn’s friends, dated January 20, 2020, Stephen 11 indicated that he has known Hahn for two years. Id. at 316. They get together weekly and 12 exercise. Id. Stephen stated that Hahn cannot lift heavy objects due to stress on her hands, has 13 trouble reaching because her hands get sore, and bending puts stress on her lower back. Id. at 316, 14 321. Stephen also stated that Hahn has trouble with memory. Id. at 321. 15 Stephen reported that day-to-day, Hahn is in “mom mode” as soon as she wakes up. Id. at 16 317. Hahn cooks, constantly cleans, and helps her daughter with her homework. Id. She also 17 walks and feeds her pets and teaches them tricks. Id. Stephen stated that he walks the dogs 18 sometimes when Hahn goes to work. Id. Stephen indicated that Hahn used to work more and was 19 more socially active. Id. at 317, 318. 20 Stephen noted that Hahn suffers from insomnia due to her conditions but noted no 21 problems with Hahn handling personal care tasks. Id. Stephen also noted that Hahn needs 22 reminders to take her medication, so she sets alarms. Id. at 318. Stephen stated that Hahn goes 23 outside for about three hours each day. Id. at 319. When Hahn needs to go someplace, she’ll walk 24 or drive. Id. She shops twice a week, for about an hour, for food, cleaning supplies, clothes, and 25 essentials. Id. She is able to do “[a]ll normal chores that do not require heavy lifting” and 26 completes them in the “[a]verage allotted time.” Id. at 318. 27 Stephen indicated that Hahn does “very well” following written instructions, does “well” 1 authority figures. Id. at 321-322. Stephen also indicated that Hahn handles stress quite well and 2 “adapts quickly” to changes in routine. Id. at 322. Stephen stated that he did not notice Hahn 3 having any unusual behavior or fears or that her medications caused any side effects. Id. at 322- 4 323. 5 c. Function report from Pooran 6 In the function report Hahn’s mother completed on July 21, 2020, Pooran indicated that 7 she spends time with Hahn and her daughter three times a week. Id. at 334. Pooran stated that 8 Hahn wakes up at 7:00 a.m. to get ready for the day, eats, walks the dogs, runs errands, and takes a 9 nap. Id. at 335. She tries to make lunch and sometimes prepares dinner. Id. Pooran noted that 10 Hahn gets tired quickly. Id. at 335. Pooran stated that it takes Hahn one to two hours to do dishes 11 and laundry, and that Hahn sometimes needs help to get these chores done. Id. at 336. Hahn goes 12 out daily to walk the dogs and weekly for about one to two hours to shop for groceries, clothes, 13 and household items. Id. at 337. Pooran stated that Hahn does not drive because of her seizures. 14 Id. Pooran noted that Hahn previously worked a full-time job and a second job “but not 15 anymore.” Id. at 335. 16 As for Hahn’s medical conditions, Pooran indicated that Hahn suffers from seizures during 17 the day and night that affect her sleep, and that Hahn needs to set reminders to take medication. 18 Id. at 335-336. Pooran indicated that Hahn cannot use her hands because the knuckles are 19 damaged and painful. Id. at 339. Hahn also has trouble with memory, lifting, and reaching. Id. 20 As far as Hahn’s personal care, Pooran reported that Hahn can dress herself, only takes showers, 21 lets her hair air dry, does not shave often, can feed herself, and can use the toilet. Id. at 335. 22 Pooran stated that Hahn can pay attention for 30 minutes to one hour, does “okay” 23 following written instructions but “not well” following spoken instructions. Id. at 339. Hahn does 24 “well” getting along with authority figures, is “not good” at handling stress, and does “ok” 25 handling changes in routine. Id. at 340. Pooran stated that Hahn “doesn’t function in a real world 26 good,” noting “pain and anxiety” and a “stressful life.” Id. Pooran indicated that Hahn takes 27 “Notriptyline” for her conditions and the side effect is that Hahn does “not function good.” Id. at 1 d. Function report from Melissa 2 In the function report from another one of Hahn’s friends, completed on February 16, 3 2021, Melissa indicated that she has known Hahn for four and a half years. Id. at 393. Melissa 4 sees Hahn a few times a week. Id. Hahn usually takes the dog for a walk and eats breakfast or 5 lunch. Id. She cares for her daughter and her pets. Id. Melissa stated that no one helps Hahn care 6 for her daughter or her pets. Id. Melissa indicated that Hahn prepares meals daily, for about 30 7 minutes to an hour, and that she does not cook or prepare meals as often as she used to. Id. at 395. 8 Hahn also cleans and does the laundry, and it takes her about an hour to three hours to complete 9 these chores. Id. Melissa stated that Hahn needs help cleaning the dishes and folding laundry. Id. 10 Melissa indicated that Hahn goes outside every day but not as much as she used to. Id. at 396, 11 397. When she needs to go somewhere, Hahn walks or rides in a car but she cannot drive because 12 she does not have a license. Id. at 396. Hahn shops for groceries and pet food and that takes her 13 about an hour to three hours. Id. 14 Melissa noted that Hahn suffers from seizures, PTSD, migraines, an auto-immune disease, 15 a facial nerve disorder, ovarian cysts, and arthritis in her knuckles. Id. at 393. Melissa also noted 16 that Hahn gets seizures at night. Id. at 394. Melissa indicated that Hahn has no problems with 17 personal care but needs alarms or reminders from family to take her medications. Id. Melissa 18 listed two medications that Hahn takes: “Amlodipine Besylate” and “Nortriplyline.” Id. at 400. 19 Melissa noted that Hahn experiences drowsiness as a side effect from each medication. Id. 20 Melissa also indicated that Hahn has a service dog from seven years ago that Hahn needs when 21 she has seizures or PTSD attacks. Id. at 399. 22 Melissa stated that Hahn’s conditions affect lifting, squatting, bending, standing, reaching, 23 memory, completing tasks, concentration, understanding, and the use of her hands. Id. at 398. 24 Melissa also stated that she “d[id] not know” how Hahn’s conditions affect those abilities. Id. 25 Melissa reported that Hahn can pay attention for 15 minutes, does “okay” following 26 written and spoken instructions, and does “well” getting along with authority figures. Id. at 399. 27 Hahn does not do well handling stress and is “okay” handling changes in routine. Id. Melissa 1 Id. 2 2. Seizure questionnaires 3 In a seizure questionnaire completed on January 20, 2020, Hahn indicated that she has 4 suffered from seizures since 1988. Id. at 313. Her seizures occur once every year or two, and her 5 last seizure was in 2014. Id. At the time of the questionnaire, Hahn was not taking any 6 prescription medication for her seizures. Id. at 313. She stated that she limits her driving due to 7 her seizures and only drives to take her child to school and to get groceries. Id. at 314. Hahn 8 stated that it takes three weeks for her to resume normal activities after a seizure. Id. at 313. 9 In a second seizure questionnaire completed in August 2020, Hahn stated that her seizures 10 started in 1987 and that they occur daily. Id. at 355. She did not indicate the date of her last 11 episode. Id. Hahn stated that she was not taking her seizure medications as prescribed because 12 she is severely allergic to the medications and that they cause her seizures. Id. She instead takes 13 marijuana for her seizures. Id. Hahn reported that after a seizure, it takes four hours to three 14 weeks for her to resume normal activities. Id. 15 3. Consultative examinations 16 a. Psychological consultative examination 17 On August 25, 2020, Hahn participated in a video consultation with psychologist D. 18 Thigpen, Psy.D. Id. at 749. Dr. Thigpen described Hahn as “polite and courteous” and “detailed 19 and comprehensive.” Id. Dr. Thigpen indicated that Hahn “reported symptoms of anhedonia, 20 social isolation, poor motivation, trouble concentrating, difficulty focusing, memory trouble, 21 frequent crying, and feelings of worthlessness and hopelessness and irritability and insomnia.” Id. 22 Dr. Thigpen diagnosed Hahn with “Depressive Disorder due to another medical condition with 23 depressive features.” Id. at 752. 24 In her functional assessment of Hahn, Dr. Thigpen concluded that Hahn’s ability to 25 perform simple and repetitive tasks appeared unimpaired. Id. Her ability to perform detailed and 26 complex tasks appeared mildly impaired. Id. Hahn’s ability to accept instructions from 27 supervisors and her ability to interact with coworkers and the public appeared “moderately 1 activities on a consistent basis without special or additional instruction appeared mildly impaired. 2 Id. at 753. Her ability to maintain regular attendance and complete a normal workday/workweek 3 without interruptions from a psychiatric condition appeared “moderately impaired given [Hahn’s] 4 tendency and preference to isolate, poor sleep hygiene and low mood/motivation.” Id. Hahn’s 5 ability to deal with the usual stress encountered in the workplace also appeared “moderately 6 impaired due to memory problem[s,] decreased stress tolerance, lack of patience and increased 7 irritability[,] and poor self-esteem and feeling[s] of worthlessness.” Id. 8 b. Physical consultative examination 9 On November 17, 2020, Hahn visited Rose Lewis, M.D., for a physical consultative 10 examination. Id. at 780. Dr. Lewis noted seizures, Raynaud’s disease, and migraines as Hahn’s 11 chief complaints. Id. Dr. Lewis diagnosed Hahn with Raynaud’s disease, migraines, “[s]eizures, 12 per patient history[,]” gastroesophageal reflux disease, and “[d]oubt rheumatoid arthritis or 13 scleroderma.” Id. at 782. 14 In her functional assessment of Hahn, Dr. Lewis concluded that Hahn can stand, walk, and 15 sit without limitations. Id. Hahn can lift and carry, pushing and pulling up to 50 pounds 16 occasionally and 25 pounds frequently. Id. Hahn can climb steps, stairs, ladders, scaffolds and 17 ropes, balance, stoop, kneel, crouch, and crawl without limitations. Id. Hahn can reach over head 18 and forward without limitations, handle, finger, and feel without limitations, and hear and speak 19 without limitations. Id. Hahn has no limitations working at unprotected heights, working around 20 heavy machinery, or working around dust, fumes, gasses, or excessive noise. Id. at 782-783. 21 Hahn has limitations working around extreme temperatures because “cold precipitates the 22 Raynaud’s sensation in her hands.” Id. at 783. 23 B. The Denial of Hahn’s Application 24 On November 25, 2020, the SSA initially denied Hahn’s application for disability 25 insurance benefits. Id. at 161-165. On January 14, 2021, Hahn requested reconsideration of the 26 denial. Id. at 169. On March 25, 2021, the SSA again denied Hahn’s application on 27 reconsideration. Id. at 170-176. 1 C. The Administrative Hearing 2 On April 1, 2021, Hahn requested an administrative hearing. Id. at 177. Administrative 3 Law Judge (“ALJ”) Amy Rosenberg held the requested hearing via Zoom on August 18, 2021. Id. 4 at 31-79. The ALJ heard testimony from Hahn, who was represented by counsel, and Heather 5 Benton, a vocational expert. Id. at 37-76. 6 1. Hahn’s testimony 7 Hahn testified that she worked as a barista at a Safeway Starbucks until November 2019. 8 Id. at 41. She previously worked at a bakery for several years, where she made coffee and 9 sandwiches, cleaned and restocked shelves, and opened and closed the store. Id. During her last 10 year of employment at the bakery, Hahn started decorating cakes. Id. at 42-45. In addition to her 11 work at Starbucks and the bakery, Hahn worked as a server at a restaurant. Id. at 45. She also 12 worked as a cashier at a CVS, where her duties included restocking shelves. Id. at 46-47. Hahn 13 started receiving unemployment benefits around the end of 2020 or beginning of 2021. Id. at 50. 14 When the ALJ asked what caused Hahn to file the application for disability insurance 15 benefits, Hahn said that she has ovarian cysts that last for years. Id. at 52. When the cysts burst, 16 she gets very sick. Id. On one occasion, while Hahn was working at a Safeway, she grabbed a 17 garage bin to throw up in, and she had to go to the emergency room. Id. Hahn could not finish 18 her shift, and the manager wrote her up for it. Id. Hahn was hospitalized for five to seven days. 19 Id. She ended up getting fired. Id. at 54. 20 Hahn also testified that she suffers from other physical impairments including Raynaud’s 21 disease (a condition that affects her hands, knuckles, feet, and toes), a seizure disorder,6 a facial 22 nerve disorder, PTSD from physical abuse she suffered as a child, an autoimmune disease that 23 affects her intestines, and migraines. Id. at 53-57. She gets really bad anxiety when she’s in a 24 room full of people. Id. at 53. Screaming or loud noises trigger her PTSD. Id. at 53, 59. She 25 cannot sleep at night, so she takes Atarax and Melatonin. Id. Because of her Raynaud’s disease, 26 Hahn struggles in cold weather, which causes her hands and feet to go numb. Id. at 54. Her hands 27 1 also cause Hahn difficulty when washing dishes, mopping, lifting things, or brushing or blow 2 drying her hair. Id. at 44, 53, 61. When Hahn gets a migraine, usually once or twice a month, she 3 has to sleep from one to three hours. Id. at 57. She takes prescription medications for her 4 conditions. Id. at 57-58. 5 2. The vocational expert’s testimony 6 a. Examination by the ALJ 7 After Hahn testified, the ALJ heard from Heather Benton, a vocational expert. Id. at 65- 8 78. The ALJ asked Benton to classify Hahn’s prior work. Id. at 66. Benton classified Hahn’s 9 work as a bakery fast-food worker as light,7 unskilled, SVP of 2,8 and light as performed. Id. 10 When combined with the additional responsibilities of icing and decorating cakes, the job was 11 considered “composite,”9 though still classified as light, semi-skilled, SVP of 3, and light as 12 performed. Id. Benton classified Hahn’s work as a waitress as light, semi-skilled, SVP of 3, and 13 light as performed. Id. at 66-67. She classified Hahn’s work as a cashier as light, unskilled, SVP 14 of 2, and Hahn’s work as “laborer stores” as medium,10 unskilled, SVP of 2. This composite job 15 was light as performed. Id. at 67. Hahn’s work as a coffee maker was medium, unskilled, SVP of 16 7 “Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of 17 objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this 18 category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls.” 20 C.F.R. § 404.1567(b). 19 8 “SVP, or specific vocational preparation, reflects how long it generally takes to learn a given job. 20 Unskilled work corresponds to an SVP of 1-2, semi-skilled work corresponds to an SVP of 3-4, 21 and skilled work corresponds to an SVP of 5-9.” Jim Pan Su v. Berryhill, No. 16-cv-06486-EDL, 2017 WL 8294290, at *4 n.2 (N.D. Cal. Dec. 4, 2017) (internal citations omitted). 22 9 “A composite job has significant elements of two or more occupations, and as such, ha[s] no 23 counterpart in the [Dictionary of Occupational Titles]. Composite jobs are evaluated according to the particular facts of each individual case.” Kevin M. v. Comm’r of Soc. Sec., No. C19-993-MLP, 24 2020 WL 747850, at *2 (W.D. Wash. Feb. 14, 2020) (internal quotations and citation omitted). 25 “The Dictionary of Occupational Titles . . . is the best source for how a job is generally performed.” Id. (internal quotations and citation omitted). 26 10 “Medium work involves lifting no more than 50 pounds at a time with frequent lifting or 27 carrying of objects weighing up to 25 pounds. If someone can do medium work[,] . . . he or she 1 2, and light as performed. Id. 2 Once Benton provided classifications for Hahn’s prior work history, the ALJ asked Benton 3 a hypothetical. Id. at 67-68. The ALJ asked Benton to consider a hypothetical individual with the 4 claimant’s age, education, and past work experience and assume the following:

5 • The individual is limited to working at the medium level of exertion and to no more 6 than frequent handling and fingering.

7 • The individual should not climb ladders, ropes, or scaffolds, work at unprotected heights or outdoors in cold weather, or be exposed non-weather-related extreme 8 cold.

9 • The individual can sustain the concentration necessary to carry out simple tasks on 10 a sustained basis.

11 • The individual could tolerate frequent, but not constant, interactions with supervisors, coworkers, and the public. 12

13 • The individual should not work in public settings such as grocery stores, movie theaters, shopping malls, sports venues, or similar types of public places in which 14 crowds of people might be present.

15 • The individual could tolerate a moderate noise intensity level, such as that encountered in a business office environment or experienced in light traffic. 16

17 • The individual could adapt to occasional changes in a routine work setting. 18 Id. at 67-68. The ALJ asked Benton if this hypothetical individual would be able to perform any 19 of Hahn’s past work as actually or generally performed. Id. at 68. Benton testified that this 20 individual could not perform such work. Id. The ALJ also asked Benton if the hypothetical 21 individual could perform any other work. Id. Benton testified that there would about 350,000 22 housekeeping positions with those limitations nationally, about 500,000 cleaner positions, and 23 85,000 stock clerk positions. Id. 24 The ALJ then asked Benton to re-consider the hypothetical, this time modified by a 25 reduction in exertional level (from medium to light) but keeping all other non-exertional 26 limitations. Id. at 69. The ALJ asked Benton whether there were any jobs this hypothetical 27 individual could perform. Id. Benton testified that there would be 200,000 stock clerk positions at 1 Id. 2 The ALJ also asked Benton about the typical employer’s tolerance for absenteeism. Id. at 3 69-70. Benton responded, “I think a maximum of two days per month on a consistent basis.” Id. 4 at 70. 5 2. Cross-Examination by Hahn 6 On cross-examination, Benton testified that the numbers corresponding to the positions she 7 provided were for full-time positions. Id. at 71. She also testified that if the hypothetical 8 individual showed up for work everyday but could only work for six hours, that would not be 9 commensurate with an employer’s expectations for a full-time employee. Id. Hahn then asked 10 Benton if there was a vocational definition of “moderate” in the context of mental limitations like 11 hers. Id. at 73. 12 After a colloquy during which the ALJ expressed doubt that Benton could even answer 13 that kind of question and stated that “moderate could vary mildly,” Hahn proceeded to ask Benton 14 a series of questions. Id. at 73-74. Hahn asked whether a claimant with the following limitations 15 could perform the jobs Benton had previously identified: 16 • The individual’s ability to accept instructions from supervisors is moderate.

17 • The individual has a tendency to isolate.

18 • The individual’s ability to interact with coworkers is moderate, given the tendency 19 to isolate.

20 • The individual’s ability to maintain attendance and complete a normal workday or workweek is moderate due to poor mood and motivation. 21

22 • The individual’s ability to deal with the usual stresses encountered in the workplace was moderate because of lack of patience, irritability, poor self-esteem, and 23 feelings of worthlessness. 24 Id. at 74. Benton explained that of these limitations, the one having the most impact would be the 25 inability to complete the workweek. Id. at 75. She reiterated her prior testimony that employers 26 would tolerate about two absences per month and added that it was “[h]ard to say” whether the 27 consultative psychologist intended “moderate” to mean “more than two days per month.” Id. 1 employee showed up every day but could not work the full day. Id. at 76. Benton said 2 “[t]ypically, not.” Id. She added that leaving two hours early would be treated as an absence. Id. 3 She also testified that if this occurred on a more chronic basis, there was a greater chance of 4 discipline and eventual dismissal. Id. 5 C. The ALJ’s Decision 6 On August 31, 2021, the ALJ issued a written decision. AR at 10-25. Applying the five- 7 step sequential evaluation process set by the SSA’s regulations, the ALJ concluded that Hahn was 8 not disabled from January 15, 2019, through the date of the decision. Id. at 11. 9 At step one, the ALJ considered whether Hahn engaged in substantial gainful activity.11 10 Id. at 12. While the ALJ found that Hahn engaged in substantial gainful activity from January 11 2019 through November 2019, the ALJ also found that Hahn had not been engaged in substantial 12 gainful activity for a 12-month period after she stopped working in November 2019. Id. at 12-13. 13 The ALJ specified that her remaining findings therefore applied “from November 2019 to 14 present.” Id. at 13. 15 The ALJ thus proceeded to step two and considered whether any of Hahn’s claimed 16 impairments were severe.12 Id. The ALJ found that the following impairments were severe and 17 significantly limited Hahn’s ability to perform basic work activities: “Raynaud’s disease/systemic 18 sclerosis; migraine headaches and/or tension headaches; seizure disorder; somatoform disorder; 19 anxiety disorder; post-traumatic stress disorder; [and] insomnia.” Id. The ALJ noted that Hahn 20 suffered from gastroesophageal reflux disease with mild symptoms but did not consider this 21 condition a severe impairment. Id. 22

23 11 “Substantial gainful activity is work activity that is both substantial and gainful.” 20 C.F.R. § 404.1572. “Substantial work activity is work activity that involves doing significant physical or 24 mental activities.” Id. § 404.1572(a). “Gainful work activity is work activity” performed “for pay 25 or profit.” Id. § 404.1572(b). If a claimant is engaged in a substantial gainful activity, the claimant is not disabled. See id. § 404.1520(a)(4)(i). 26 12 A “severe impairment” is one that “significantly limits [the claimant’s] physical or mental 27 ability to do basic work activities.” Id. § 404.1520(c). If the claimant does not suffer from a 1 At step three, the ALJ considered whether Hahn’s impairments met or equaled the severity 2 “of one of the listed impairments in 20 C.F.R. Part 404, Part P, Appendix 1.”13 Id. (citing 20 3 C.F.R. §§ 404.1520(d), 404.1525, 404.1526). The ALJ found that none of Hahn’s impairments 4 met or equaled a listed impairment. Id. at 13-14. 5 Before moving to step four, the ALJ determined Hahn’s residual functional capacity.14 6 The ALJ found that Hahn: 7 has the residual functional capacity to perform medium work as defined in 20 CFR [§] 404.1567(c) except that the claimant should 8 not climb ladders, ropes, or scaffolds and should not work at unprotected heights. She can frequently handle and finger. She 9 should not perform work outdoors in cold weather and should not be exposed to non-weather-related extreme cold. She can sustain the 10 concentration necessary to carry out simple tasks on a sustained basis. She can tolerate frequent, but not constant, interactions with 11 supervisors, coworkers, and the public, but she should not work in public settings such as grocery stores, movie theaters, shopping 12 malls, sports venues, or similar types of places in which crowds of people might be present. She can tolerate a moderate noise intensity 13 level as defined in the Selected Characteristics of Occupations,[15] equivalent to a business office or light traffic. She can adapt to 14 occasional changes in the routine work setting. 15 Id. at 14-15. 16 In reaching this assessment as to Hahn’s residual functional capacity, the ALJ found that 17

18 13 “The listings describe impairments that are considered to be severe enough to prevent an individual from doing any gainful activity.” Kitchen v. Kijakazi, 82 F.4th 732, 741 (9th Cir. 2023) 19 (internal quotations and citation omitted).

20 14 A claimant’s residual functional capacity “is the most [they] can do despite [their] limitations.” 21 20 C.F.R. § 416.945(a)(1). It “is used at step four to determine if a claimant can do past relevant work and at step five to determine if a claimant can adjust to other work.” Ferguson v. O’Malley, 22 --- F.4th ---, ---, 2024 WL 1103364, at *2 (9th Mar. 14, 2024) (citing 20 C.F.R. § 416.945(a)).

23 15 “The Secretary may rely on the general job categories of the Dictionary of Occupational Titles, with its supplementary Selected Characteristics, as presumptively applicable to a claimant’s prior 24 work.” Villa v. Heckler, 797 F.2d 794, 798 (9th Cir. 1986) (internal citations omitted; italics in 25 original). “Appendix D to the Selected Characteristics of Occupations (‘SCO’) defines various levels of noise to which workers are exposed on the job, ranging from level one to level five.” 26 Glenn v. Comm’r of Soc. Sec. Admin., No. CV-21-01840-PHX-MTL, 2022 WL 15517829, at *3 (D. Ariz. Oct. 27, 2022). An environment with moderate noise, “such as a business office where 27 type-writers are used; department store; grocery store; light traffic; [or] fast food restaurant at off- 1 Hahn’s “medically determinable impairments could reasonably be expected to cause the alleged 2 symptoms.” Id. at 15. However, the ALJ found Hahn’s statements about the “intensity, 3 persistence and limiting effects of those symptoms” to be “not entirely consistent with the medical 4 evidence and other evidence in the record.” Id. at 15, 18. 5 At step four, the ALJ determined that Hahn could not perform any of her past relevant 6 work. Id. at 22-23. The ALJ noted that Hahn previously worked as a barista/coffee maker, a 7 bakery/fast-food worker, a server/waitress, and two composite jobs, one combining the 8 responsibilities of both a fast-food worker and cake icer, the other consisting of responsibilities of 9 cashier and “laborer stores.” Id. at 23. 10 At step five, the ALJ considered whether Hahn could perform any other work. Id. The 11 ALJ noted that Hahn was 33 years old as of the alleged disability onset date. Id. at 23. As such, 12 Hahn was a younger individual within the meaning of 20 C.F.R. § 404.1563(c). Id. The ALJ also 13 noted that Hahn has at least a high school education. Id. The ALJ did not consider transferability 14 of job skills material to a determination of disability because Hahn was “‘not disabled’” 15 irrespective of whether she had transferable job skills. Id. Taking into account Hahn’s age, 16 education, work experience, and residual functional capacity, the ALJ determined that Hahn could 17 perform several jobs “that exist in significant numbers in the national economy.” Id. at 23-24. In 18 reaching this conclusion, the ALJ relied on the vocational expert’s testimony that an individual of 19 Hahn’s age, education, work experience, and residual functional capacity “would be able to 20 perform the requirements of representative unskilled occupations at the medium exertional level 21 such as: housekeeper, DOT #323.687-010 (approximately 350,000 jobs nationally); cleaner, DOT 22 #381.687-018 (approximately 500,000 jobs nationally); and stock clerk, DOT #222.387-030 23 (approximately 85,000 jobs nationally).” Id. at 24. The ALJ therefore found Hahn “‘not 24 disabled.’” Id. 25 D. Hahn’s Request for Review by the Appeals Council 26 On October 21, 2021, Hahn requested review of the ALJ’s decision. AR at 224-227. The 27 Appeals Council denied Hahn’s request on August 16, 2022. Id. at 1-6. Once the Appeals 1 224-226. 2 E. This Action 3 On October 4, 2022, Hahn commenced this action against the Commissioner, seeking 4 judicial review of the denial of her application for Social Security disability benefits pursuant to 5 42 U.S.C. § 405(g). ECF 1. On January 11, 2023, the Commissioner filed an answer to the 6 complaint. ECF 10. On March 10, 2023, Hahn filed her motion for summary judgment to reverse 7 the Commissioner’s final decision denying benefits, seeking a remand of this action for an 8 immediate award of benefits, or alternatively, for further proceedings. ECF 15. On April 7, 2023, 9 the Commissioner filed a combined opposition and cross-motion seeking summary judgment 10 affirming the denial of Hahn’s application. ECF 18. On April 21, 2023, Hahn filed her combined 11 opposition and reply. ECF 19. 12 II. LEGAL STANDARD 13 A. Standard of Review 14 The Social Security Act authorizes judicial review of final decisions made by the 15 Commissioner. 42 U.S.C. § 405(g). “Th[e] court may set aside the Commissioner’s denial of 16 disability insurance benefits when the ALJ’s findings are based on legal error or are not supported 17 by substantial evidence in the record as a whole.” Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 18 1999) (citations omitted). Substantial evidence is evidence in the record that could lead a 19 reasonable mind to accept a conclusion regarding disability status. See Richardson v. Perales, 402 20 U.S. 389, 401 (1971). It is more than a mere scintilla, but less than a preponderance. See Saelee 21 v. Chater, 94 F.3d 520, 522 (9th Cir. 1996) (internal citations omitted). 22 In deciding whether substantial evidence supports an ALJ’s findings, the court must 23 “consider the entire record as a whole and may not affirm simply by isolating a specific quantum 24 of supporting evidence.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (internal 25 citation and quotation marks omitted). If the evidence reasonably could support two conclusions, 26 the court “may not substitute its judgment for that of the Commissioner” and must affirm the 27 decision. Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir. 1997) (citation omitted). “Finally, 1 the record that the ALJ’s error was inconsequential to the ultimate nondisability determination.” 2 Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (internal citations and quotation marks 3 omitted). 4 A district court may enter a judgment affirming, modifying, or reversing the decision of 5 the Commissioner, with or without remanding the cause for a rehearing. 42 U.S.C. § 405(g). “If 6 additional proceedings can remedy defects in the original administrative proceedings, a social 7 security case should be remanded” for further proceedings. Lewin v. Schweiker, 654 F.2d 631, 8 635 (9th Cir. 1981). If, however, “the record has been developed fully and further administrative 9 proceedings would serve no useful purpose, the district court should remand for an immediate 10 award of benefits.” Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004). 11 B. The Five-Step Disability Inquiry 12 Subject to other provisions not relevant here, a claimant is “disabled” under the Social 13 Security Act if two requirements are met. See 42 U.S.C. § 1382c(a)(3). First, the claimant must 14 be “unable to engage in any substantial gainful activity by reason of any medically determinable 15 physical or mental impairment which can be expected to result in death or which has lasted or can 16 be expected to last for a continuous period of not less than twelve months.” Id. § 1382c(a)(3)(A). 17 Second, the impairment must be “of such severity that [the claimant] is not only unable to do his 18 previous work but cannot, considering his age, education, and work experience, engage in any 19 other kind of substantial gainful work which exists in the national economy . . . .” Id. 20 § 1382c(a)(3)(B). 21 The SSA’s regulations set forth a five-step sequential evaluation process for determining 22 whether a claimant is disabled. 20 C.F.R. § 404.1520(a)(4). The relevant inquiry at each step is 23 as follows:

24 1. Is claimant presently working in a substantially gainful activity? If so, then the claimant is not disabled within the meaning of the 25 Social Security Act. If not, proceed to step two. See 20 C.F.R. §§ 404.1520(b), 416.920(b). 26 2. Is the claimant’s impairment severe? If so, proceed to step three. 27 If not, then the claimant is not disabled. See 20 C.F.R. 3. Does the impairment “meet or equal” one of a list of specific 1 impairments described in 20 C.F.R. Part 220, Appendix 1? If so, then the claimant is disabled. If not, proceed to step four. See 20 2 C.F.R. §§ 404.1520(d), 416.920(d).

3 4. Is the claimant able to do any work that he or she has done in the past? If so, then the claimant is not disabled. If not, proceed to step 4 five. See 20 C.F.R. §§ 404.1520(e), 416.920(e).

5 5. Is the claimant able to do any other work? If so, then the claimant is not disabled. If not, then the claimant is disabled. See 6 20 C.F.R. §§ 404.1520(f), 416.920(f). 7 Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001). The claimant has the burden of 8 proof at steps one through four and the Commissioner has the burden of proof at step five. 9 Tackett, 180 F.3d at 1098. Nonetheless, every step of the inquiry, the ALJ has an affirmative duty 10 to assist the claimant in developing the record. Id. at 1098 n.3. “If a claimant is found to be 11 ‘disabled’ or ‘not disabled’ at any step in the sequence, there is no need to consider subsequent 12 steps.” Id. 13 In between the third and fourth steps, the ALJ must determine the claimant’s residual 14 functional capacity. 20 C.F.R. § 404.1520(a)(4). After determining the claimant’s residual 15 functional capacity, the ALJ proceeds to steps four and five of the disability inquiry. See 16 Ferguson, 2024 WL 1103364, at *2. 17 III. DISCUSSION 18 Hahn seeks summary judgment in her favor on three grounds. ECF 15-1 at 8. First, Hahn 19 argues that the ALJ erred by failing to address critical aspects of the medical evidence, specifically 20 Dr. Thigpen’s opinion that Hahn’s ability to complete a normal workday or workweek was 21 moderately impaired. Id. at 18. Second, Hahn contends that the ALJ improperly rejected her 22 testimony, including testimony about the severity of her migraine headaches. Id. at 19-20. Third, 23 Hahn argues that the ALJ erred by failing to provide any reasons for rejecting the lay witness 24 testimony in the record. Id. at 21-26. Hahn argues that these errors are grounds for reversal of 25 the ALJ’s denial of benefits and entitle her to a remand for an immediate award of benefits, or 26 alternatively, for further administrative proceedings. Id. 27 The Commissioner cross-moves for summary judgment, arguing that the ALJ properly 1 witness testimony. ECF 18 at 9-18. The Commissioner additionally argues that if the Court finds 2 reversible error, remand for further proceedings, rather than for an immediate award of benefits, is 3 the proper remedy. Id. at 18-20. 4 The Court addresses each disputed issue in turn. 5 A. Did the ALJ err in considering the medical evidence? 6 “Although the [2017] regulations eliminate the ‘physician hierarchy,’ deference to specific 7 medical opinions, and assigning ‘weight’ to a medical opinion, the ALJ must still ‘articulate how 8 [they] considered the medical opinions’ and ‘how persuasive [they] find all of the medical 9 opinions.’” V.W. v. Comm’r of Soc. Sec., No. 18-CV-07297-JCS, 2020 WL 1505716, at *14 (N.D. 10 Cal. Mar. 30, 2020) (internal quotations and citation omitted).16 “Even under the new regulations, 11 an ALJ cannot reject an examining or treating doctor’s opinion as unsupported or inconsistent 12 without providing an explanation supported by substantial evidence.” Woods v. Kijakazi, 32 F.4th 13 785, 792 (9th Cir. 2022). Rather, “[t]he agency must ‘articulate . . . how persuasive’ it finds ‘all of 14 the medical opinions’ from each doctor or other source, and ‘explain how [it] considered the 15 supportability and consistency factors’ in reaching these findings.” Id. (quoting 20 C.F.R. 16 §§ 404.1520c(b), (b)(2)). “Supportability means the extent to which a medical source supports the 17 medical opinion by explaining the relevant . . . objective medical evidence.” Woods, 32 F.4th at 18 791-92 (internal quotations and citation omitted); see also 20 C.F.R. § 404.1520c(c)(1) (“The 19 more relevant the objective medical evidence and supporting explanations presented by a medical 20 source are to support his or her medical opinion(s) . . . , the more persuasive the medical 21 opinions . . . will be”). “Consistency means the extent to which a medical opinion is ‘consistent . . 22 . with the evidence from other medical sources and nonmedical sources in the claim.’” Woods, 32 23 F.4th at 792; see also 20 C.F.R. §§ 404.1520c(c)(2) (“The more consistent a medical opinion(s) . . 24

25 16 “For claims filed before March 27, 2017, [t]he medical opinion of a claimant’s treating 26 physician [wa]s given controlling weight so long as it [wa]s well-supported by medically acceptable clinical and laboratory diagnostic techniques and [wa]s not inconsistent with the other 27 substantial evidence in [the claimant’s] case record.” V.W., 2020 WL 1505716, at *13 (internal 1 . is with the evidence from other medical sources and nonmedical sources in the claim, the more 2 persuasive the medical opinion(s) . . . will be”). When rejecting a medical opinion as unsupported 3 or inconsistent, the ALJ is required to “provid[e] an explanation supported by substantial 4 evidence.” Woods, 32 F.4th at 792. 5 Hahn contends that the ALJ erred by failing to consider the portion of Dr. Thigpen’s 6 opinion identifying the “the moderate limitation” affecting Hahn’s ability to “maintain[] 7 attendance and complet[e] a normal workday or work week.”17 ECF 15-1 at 17. Hahn argues that 8 when accounting for this limitation, in combination with the testimony about the severity of her 9 migraines,18 she would be absent from work more than twice per month. Id. at 18. According to 10 Hahn, this would make for a disabling combination of impairments based on the testimony from 11 the vocational expert, who testified that a competitive employer would not tolerate more than two 12 absences per month. Id. 13 In response, the Commissioner argues that the ALJ appropriately translated the moderate 14 limitations Dr. Thigpen identified into concrete functional limitations, i.e., simple tasks with 15 limited social contact and occasional changes in a routine work setting. ECF 18 at 9. 16 The Court agrees that the ALJ erred in assessing the portion of Dr. Thigpen’s opinion that 17 identified a moderate limitation in Hahn’s ability to complete a normal workday or workweek. 18 The ALJ made no mention of that limitation in her assessment of Hahn’s residual functional 19 capacity. See AR at 9-25. The ALJ, however, found Dr. Thigpen’s opinion to be persuasive and 20 generally consistent with the medical evidence and the record overall. Id. at 21. The ALJ also 21 noted that “[a] finding of ‘moderate’ limitations . . . does not describe with any specificity a 22 claimant’s functional abilities or limitations[,]” yet proceeded to translate most of the limitations 23 described in Dr. Thigpen’s opinion into concrete work restrictions, with the exception of the 24

25 17 Hahn otherwise concedes that “the ALJ translated most of the limitations Dr. Thigpen assessed 26 into concrete limitations suitable for the inclusion in the [residual functional capacity] finding.” ECF 19 at 2-3. 27 1 moderate limitation in Hahn’s ability to complete a normal workday or workweek. See id. at 21. 2 Failing to address this specific limitation without comment is error. See Woods, 32 F.4th at 792. 3 Moreover, given the vocational expert’s testimony that the typical competitive employer 4 would not tolerate more than two absences per month, the failure to address the moderate 5 limitation Dr. Thigpen identified was not harmless. “An error is harmless only if it is 6 inconsequential to the ultimate nondisability determination.” Lambert v. Saul, 980 F.3d 1266, 7 1278 (9th Cir. 2020). Here, however, the definition of “moderate” is consequential. Depending 8 on the definition of the term, the limitation Dr. Thigpen identified could potentially be disabling in 9 light of the vocational expert’s testimony about the level of acceptable absenteeism. 10 The cases the Commissioner cites in opposition do not compel a different conclusion. The 11 two circuit decisions the Commissioner relies on do not implicate the potential absenteeism left 12 unaddressed by the ALJ here. In Shaibi v. Berryhill, 883 F.3d 1102, 1107 (9th Cir. 2017), as 13 amended (Feb. 28, 2018), the ALJ properly translated physician testimony about the claimant’s 14 conditions into concrete limitations, including a restriction to “simple routine tasks in a non-public 15 setting, with occasional interaction with coworkers.” In that case, the medical evidence in the 16 record did not identify a limitation in the claimant’s ability to complete the workweek. See id. at 17 1105. So too in Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008). There, the ALJ 18 properly translated the claimant’s “pace and mental limitations, into the only concrete restrictions 19 available to him,” i.e., the “recommended restriction to ‘simple tasks.’” Id. 20 The district court decisions on which the Commissioner relies are more apposite but 21 nonetheless unpersuasive. For example, in Messerli v. Berryhill, No. 1:16-cv-00800-SKO, 2017 22 WL 3782986, at *2 (E.D. Cal. Aug. 31, 2017), the medical evidence indicated that the claimant’s 23 ability to complete a normal weekday and workweek was moderately impaired. A vocational 24 expert testified that there would be no jobs available for an individual who was off task 15 to 20 25 percent of the day, absent two days per month, or unable to perform her work three days of the 26 week due to headaches. Id. at *5. The court affirmed the ALJ’s finding of no disability based in 27 1 part on a reason not specifically identified by the ALJ.19 Id. at *7. In Rodriquez v. Colvin, No. 2 1:13-cv-01716-SKO, 2015 WL 1237302, at *5 (E.D. Cal. Mar. 17, 2015), the claimant had a 3 moderate impairment in the ability to complete a normal workday and workweek, but the medical 4 opinion specifying the limitation also noted that the claimant was “able to perform work where 5 interpersonal contact [wa]s routine but superficial.”20 Id. at *4. 6 These authorities do not entitle the Commissioner to prevail insofar as Hahn challenges the 7 ALJ’s assessment of Dr. Thigpen’s opinion. The Court, therefore, grants summary judgment in 8 Hahn’s favor on this issue, and denies the Commissioner’s cross-motion so that, on remand, the 9 ALJ can develop the record on the definition of moderate and consider the definition in the 10 disability determination. 11 B. Did the ALJ err in assessing Hahn’s testimony? 12 “An ALJ engages in a two-step analysis to determine whether a claimant’s testimony 13 regarding subjective pain or symptoms is credible.” Garrison v. Colvin, 759 F.3d 995, 1014 (9th 14 Cir. 2014). At the first step of the analysis, “the ALJ must determine whether the claimant has 15 presented objective medical evidence of an underlying impairment ‘which could reasonably be 16 expected to produce the pain or other symptoms alleged.’” Lingenfelter v. Astrue, 504 F.3d 1028, 17 1035-36 (9th Cir. 2007) (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir.1991) (en banc)). 18 The claimant is not required to show “that her impairment could reasonably be expected to cause 19 the severity of the symptom she has alleged; she need only show that it could reasonably have 20 caused some degree of the symptom.” Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996). The 21 claimant is also not required to provide “objective medical evidence of the pain or fatigue itself, or 22 the severity thereof.” Id. (citation omitted). 23 24 25 19 The Court reads recent Ninth Circuit authority as precluding that approach. See Ferguson, 2024 26 WL 1103364, at *7 (holding that the district court erred by affirming the ALJ’s determination for a reason that the ALJ did not assert). 27 1 If the claimant satisfies the first step of this analysis, and there is no evidence of 2 malingering, the ALJ must provide “specific, clear and convincing” reasons for rejecting the 3 claimant’s testimony. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). “This is not an easy 4 requirement to meet: The clear and convincing standard is the most demanding required in Social 5 Security cases.” See Garrison, 759 F.3d at 1015 (internal quotations and citation omitted). “The 6 ALJ must specifically identify what testimony is credible and what testimony undermines the 7 claimant’s complaints.” Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 8 1999) (citations omitted). The ALJ must articulate reasons that are “sufficiently specific to permit 9 the court to conclude that the ALJ did not arbitrarily discredit claimant’s testimony.” Thomas v. 10 Barnhart, 278 F.3d 947, 958 (9th Cir. 2002). The ALJ may consider “ordinary techniques of 11 credibility evaluation,” including the claimant’s reputation for truthfulness and inconsistencies in 12 testimony, and may also consider a claimant’s daily activities, and “unexplained or inadequately 13 explained failure to seek treatment or to follow a prescribed course of treatment.” Smolen, 80 F.3d 14 at 1284. 15 Hahn argues that the ALJ failed to properly assess her testimony for two reasons. First, 16 Hahn contends that “the ALJ’s sole reason for discounting Hahn’s testimony was that . . . the 17 objective evidence was not consistent with the limitations Hahn described,” which is not specific, 18 clear, and convincing. ECF 19 at 4. Second, Hahn argues that “the ALJ did not provide a legally 19 adequate rationale for discounting Hahn’s testimony regarding her migraines and the 1 to 2 20 absences per month they would still cause even after some improvement with medication.” ECF 21 19 at 4. 22 In response, the Commissioner does not point to any specific, clear, and convincing 23 reasons contained in the ALJ’s decision.21 Instead, the Commissioner simply recounts the record 24 evidence that supports the ALJ’s ultimate conclusion. ECF 18 at 11-13. 25 26 21 The Commissioner disputes whether the specific, clear, and convincing standard applies, but 27 nonetheless acknowledges that it is the standard adopted by the Ninth Circuit. See ECF 18 at 11 1 As a preliminary matter, while Hahn seems to mount a generalized challenge to the ALJ’s 2 assessment of her testimony without regard to the issues raised in this appeal, the Court will only 3 consider Hahn’s arguments to the extent they relate to Hahn’s migraine symptom testimony. That 4 is the only specific testimony Hahn points to in this appeal. See ECF 19 at 4 (“The ALJ did not 5 provide a legally adequate rationale for discounting Hahn’s testimony regarding her migraines and 6 the 1 to 2 absences per month they would still cause even after some improvement with 7 medication.”); see also ECF 15-1 at 18, 20. With this clarification,22 the Court agrees with Hahn 8 that merely stating that testimony is undermined by the objective evidence is not a specific, clear, 9 and convincing reason to discount the testimony about the severity of her migraines. See Lambert, 10 980 F.3d at 1277 (“The ALJ noted generically that the claimant’s statements concerning the 11 intensity, persistence and limiting effects of [her] symptoms are not entirely consistent with the 12 objective medical and other evidence for the reasons explained in this decision. But this 13 boilerplate statement by way of introductory remark, which is routinely include[d] in ALJ 14 decisions denying benefits, did not identify what parts of the claimant’s testimony were not 15 credible and why.”) (internal quotations omitted; modifications in original). 16 To the extent the ALJ noted that Hahn “reported improvement of her headaches with 17 medication treatment” and that Hahn’s headaches resolved with Meclizine, effective [sic] 18 (Exhibits 13F/1; 18F),” the ALJ did not specify the corresponding effective date or explain why 19 relief from medication is inconsistent with Hahn’s migraine testimony.23 See Ferguson, 2024 WL 20 21 22 This construction seems appropriate in light of the parties’ briefing, in which neither side 22 addresses, for example, the portion of the ALJ’s decision where she notes that Hahn’s responses in function reports and seizure questionnaires contradicted each other. See AR at 14, 16. Because 23 this Court’s role is not “to fill in the ALJ’s reasoning,” the Court will not speculate about why the ALJ noted inconsistencies between the function reports and seizure questionnaires without any 24 further comment. See Lambert, 980 F.3d at 1278. 25 23 As noted above, the Commissioner does not point to any specific, clear, and convincing reasons 26 sufficient to justify the ALJ’s rejection of Hahn’s testimony. See generally ECF 18. The Court 27 nonetheless addresses this portion of the ALJ’s decision to the extent it could be interpreted as a 1 1103364, at *4 (ALJ did not provide specific, clear, and convincing reasons where the ALJ failed 2 to explain why the medical evidence [wa]s inconsistent with the claimant’s subjective symptom 3 testimony.”). 4 In failing to do so, the ALJ erred. See Lambert, 980 F.3d at 1277 (“Our cases do not 5 require ALJs to perform a line-by-line exegesis of the claimant’s testimony, nor do they require 6 ALJs to draft dissertations when denying benefits. . . . But our precedents plainly required the 7 ALJ to do more than was done here, which consisted of offering non-specific conclusions that [the 8 claimant’s] testimony was inconsistent with her medical treatment.”) (citation omitted); cf. Smart 9 v. Kijakazi, 53 F.4th 489, 499-500 (9th Cir. 2022) (ALJ’s adverse credibility determination was 10 supported by specific, clear, and convincing reasons, including “examples across a multi-year 11 period contrasting [claimant’s] subjective pain testimony with objective medical evidence[,]” 12 inconsistencies between the claimant’s self-reported activities and claims of constant “10/10” pain, 13 and the claimant’s generally conservative treatment plan). 14 Accordingly, the Court grants Hahn’s motion for summary judgment on this ground and 15 denies the Commissioner’s cross-motion.24 Because “the credibility determination is exclusively 16 the ALJ’s to make,” see Lambert, 980 F.3d at 1278, it is for the ALJ to reconsider Hahn’s 17 migraine symptom testimony in light of the specific, clear, and convincing standard discussed 18 above, see Ferguson, 2024 WL 1103364, at *7 (remanding for further proceedings so that the ALJ 19 could reconsider headache symptom testimony). 20 // 21 // 22

23 *7 (ALJ erred by not explaining how the claimant’s testimony about daily activities was inconsistent with the severity and frequency of his headaches). 24

25 24 To the extent Hahn challenges the ALJ’s failure to incorporate limitations related to her migraine symptoms in the residual functional capacity assessment, see ECF 15-1 at 18, the ALJ 26 shall revisit that assessment consistent with the re-evaluation of Hahn’s testimony about the severity of her migraines. See Ferguson, 2024 WL 1103364, at *2 (“A claimant’s subjective 27 symptoms, if credited, are relevant to the determination of a claimant’s residual function 1 C. Did the ALJ err in evaluating lay witness testimony? 2 A lay witness’s testimony about a claimant’s symptoms or how an impairment affects the 3 claimant’s ability to work is competent evidence. Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 4 2001). An ALJ may discount such evidence only by providing “reasons germane to each 5 witness.” Id.; see also Molina v. Astrue, 674 F.3d 1104, 1114 (9th Cir. 2012), superseded on other 6 grounds by 20 C.F.R. § 404.1502(a). An ALJ need not “discuss every witness’s testimony on a[n] 7 individualized, witness-by-witness basis. Rather, if the ALJ gives germane reasons for rejecting 8 testimony by one witness, the ALJ need only point to those reasons when rejecting similar 9 testimony by a different witness.” Molina, 674 F.3d at 1114 (citation omitted). 10 Hahn argues that the ALJ erred by giving “no rationale for failing to credit the limitations” 11 described in the third-party function reports from Hahn’s mother and friends. ECF 15-1 at 21-24; 12 ECF 19 at 4-7. The Commissioner does not dispute the ALJ failed to articulate reasons for 13 discounting the testimony of these lay witnesses. ECF 18 at 14-18. Instead, the Commissioner 14 argues that changes made to Social Security regulations in 2017 abrogate the Ninth Circuit’s 15 “germane reasons” standard discussed above. 25 Id. at 17. The Commissioner also argues that 16 even if the Court finds error in the ALJ’s failure to provide reasons for rejecting lay witness 17 testimony, it is harmless because the evidence is duplicative of Hahn’s testimony, and as such, 18 “the ALJ’s rejection of the claimant’s subjective statements carries over to the lay source’s 19 statement.” Id. 20 The Ninth Circuit has not addressed whether the 2017 updates to the Social Security 21 regulations have the effect the Commissioner advocates for here. See, e.g., Stephens v. Kijakazi, 22 No. 22-35998, 2023 WL 6937296, at *2 (9th Cir. Oct. 20, 2023) (“We have not yet addressed 23 whether under the new regulations an ALJ is still required to provide germane reasons for 24 discounting lay witnesses.”). It has, however, continued to apply the germane reasons standard. 25 26 25 The Commissioner specifically points to 20 C.F.R. § 404.1520c(d), which now reads “[w]e are 27 not required to articulate how we considered evidence from nonmedical sources using the 1 See, e.g., MacArthur v. Kijakazi, No. 23-35050, 2023 WL 8519119, at *2 (9th Cir. Dec. 8, 2023) 2 (“An ALJ may discount lay witness opinion evidence by providing reasons germane to each 3 witness for doing so.”) (citing Molina, 674 F.3d at 1111) (internal quotations omitted); 4 Eichenberger v. Kijakazi, No. 22-35937, 2023 WL 5928483, at *2 (9th Cir. Sept. 12, 2023) (the 5 ALJ’s clear and convincing reasons for rejecting the claimant’s testimony sufficed as germane 6 reasons for rejecting lay testimony); Alexander v. Kijakazi, No. 22-35737, 2023 WL 4490340, at 7 *2 (9th Cir. July 12, 2023) (ALJ’s findings that lay witness statements conflicted with the medical 8 evidence and were inconsistent with the claimant’s activities satisfied the “germane reasons” 9 standard). 10 Accordingly, the Court rejects the Commissioner’s argument that the updates to the 2017 11 Social Security regulations relieve an ALJ of the requirement to articulate reasons germane to each 12 witness when rejecting lay witness testimony. In keeping with the recent Ninth Circuit authority 13 cited above, this Court applies the germane reasons standard here, and finds that the ALJ erred by 14 failing to provide those reasons as to the third-party function reports from Hahn’s mother and 15 friends. 16 The Court also rejects the Commissioner’s harmless error argument. As discussed above, 17 the ALJ did not articulate specific, clear and convincing reasons for rejecting Hahn’s testimony in 18 the first place. The Commissioner cannot now rely on those unstated reasons to justify the ALJ’s 19 failure to articulate the bases on which she rejected lay witness testimony. See Reeve v. Kijakazi, 20 No. 22-36018, 2023 WL 7411537, at *2 (9th Cir. Nov. 9, 2023) (“[B]ecause ALJ Ross did not 21 have specific, clear, and convincing reasons for rejecting [the claimant’s] symptom testimony, he 22 could not reject [the claimant’s] wife’s lay testimony by relying on those same reasons.”); cf. 23 Stephens, 2023 WL 6937296, at *2 (failure to provide reasons germane to each lay witness was 24 harmless where lay witness testimony duplicated the claimant’s testimony, which the ALJ had 25 rejected for legally sufficient reasons). 26 Because the ALJ failed to give reasons germane to each witness when she rejected the 27 third-party function reports of Hahn’s mother and friends, the ALJ erred. The Court, therefore, 1 grants Hahn’s motion for summary judgment on this basis and denies the Commissioner’s cross- 2 motion. 3 D. What type of remand is appropriate? 4 The Social Security Act permits the district court to affirm, modify, or reverse the 5 Commissioner’s decision “with or without remanding the cause for a rehearing.” 42 U.S.C. 6 § 405(g); see also Garrison, 759 F.3d at 1019. “[T]he proper course, except in rare circumstances, 7 is to remand to the agency for additional investigation or explanation.” Benecke, 379 F.3d at 595 8 (internal quotations and citations omitted). However, under the credit-as-true rule, the Court may 9 order an immediate award of benefits if three conditions are met: (1) the ALJ failed to provide 10 legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion, 11 (2) there are no outstanding issues that must be resolved before a disability determination can be 12 made and further administrative proceedings would serve no useful purpose, and (3) when 13 considering the record as a whole and crediting the improperly discounted testimony as true, there 14 is no doubt as to disability. See Leon v. Berryhill, 880 F.3d 1041, 1045 (9th Cir. 2017). However, 15 even if all three criteria are met, the decision to remand for an award of benefits or remand for 16 further proceedings is within the district court’s discretion. Id. 17 Remand for further proceedings is the proper remedy here. While Hahn argues that the 18 record is fully developed, her own contentions in this appeal demonstrate otherwise. First, Hahn 19 asserts that Dr. Thigpen’s opinion “could preclude competitive employment depending on the 20 definition of moderate.” ECF 15-1 at 25 (emphasis added); see also ECF 19 at 7. Second, Hahn 21 faults the ALJ for failing to properly credit her testimony about the severity of her migraines, and 22 relatedly, for failing to consider such testimony as part of the residual functional capacity analysis. 23 ECF 15-1 at 18, 25; ECF 19 at 8. Third, Hahn asserts that the ALJ did not provide legally 24 adequate reasons for rejecting lay witness testimony. ECF 15-1 at 25; ECF 19 at 8. 25 Even if these issues were resolved in Hahn’s favor, it is not clear that the ALJ would be 26 required to find Hahn disabled. For these reasons, remand for further proceedings, rather than an 27 award for immediate payment of benefits, is appropriate. See Leon, 880 F.3d at 1047 (remanding 1 there were serious doubts as to whether the claimant was in fact disabled); see also Dominguez v. 2 Colvin, 808 F.3d 403, 408-09 (9th Cir. 2015) (remand was appropriate so that the ALJ could 3 determine how alleged impairments affected the claimant’s residual functional capacity and 4 || resolve inconsistencies between physician’s opinions and treatment notes); Treichler v. Comm’r, 5 || Soc. Sec. Admin., 775 F.3d 1090, 1105 (9th Cir. 2014) (@emand was appropriate where the 6 || inconsistencies between the claimant’s testimony and the medical evidence in the record raised 7 crucial questions as to the extent of the claimant’s impairments). 8 || IV. CONCLUSION 9 For the reasons set forth above, the Court GRANTS Hahn’s motion for summary 10 || judgment, DENIES the Commissioner’s cross-motion, and REMANDS this case for further 11 proceedings. The Clerk is directed to enter judgment consistent with this order and close the file 12 || in this matter. g 13 IT IS SO ORDERED. |! Dated: March 25, 2024

16 Nnacel: ake = 5 ARACELI MARTINEZ-OLGUIN nited States District Judge 18 19 20 21 22 23 24 25 26 27 28