Hultman v. Commissioner of Social Security Administration

• Court: District Court, D. Arizona
• Decided: June 7, 2022
• Docket: 2:20-cv-01936
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Andrea Hultman, No. CV-20-01936-PHX-JJT

10 Plaintiff, ORDER

11 v.

12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Plaintiff challenges the denial of her application for disability insurance benefits 16 under Title II of the Social Security Act (“the Act”) by Defendant, the Commissioner of 17 the Social Security Administration (“Commissioner” or “Defendant”). Plaintiff filed a 18 Complaint with this Court seeking judicial review of that denial (Doc. 1), and the Court 19 now addresses Plaintiff’s Opening Brief (Doc. 20, Pl. Br.), Defendant’s Answering Brief 20 (Doc. 26, Def. Br.), and Plaintiff’s Reply (Doc. 27, Reply). The Court has reviewed the 21 briefs and Administrative Record (Doc. 11, AR.) and now reverses the Administrative Law 22 Judge’s (“ALJ”) decision. The Court remands for additional proceedings consistent with 23 this opinion. 24 I. PROCEDURAL HISTORY 25 In July 2017, Plaintiff filed an application for disability insurance benefits alleging 26 disability beginning February 25, 2017. (AR. at 177.) The Social Security Administration 27 (“SSA”) denied Plaintiff’s application at the initial and reconsideration levels of 28 administrative review (AR. at 100-103, 105-108), and Plaintiff timely requested a hearing 1 before an ALJ. (AR. at 109.) ALJ John Gaffney conducted a hearing on October 1, 2019. 2 (AR. at 40-62.) At that hearing, Plaintiff and vocational expert (“VE”) Susan Green 3 testified. On December 5, 2019, ALJ Gaffney issued an unfavorable decision. (AR. at 4 20-33.) On August 11, 2020, the Appeals Council denied review. (AR. at 1-3.) Plaintiff 5 then filed an action in this Court. (Doc. 1.) 6 II. THE SEQUENTIAL EVALUATION PROCESS AND JUDICIAL REVIEW 7 To determine whether a claimant is disabled for purposes of the Act, the ALJ 8 follows a five-step process. E.g., 20 C.F.R. § 404.1520(a)(4). The claimant bears the 9 burden of proof at the first four steps, but the burden shifts to the Commissioner at step 10 five. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At the first step, the ALJ 11 determines whether the claimant is engaging in substantial, gainful work activity. 20 C.F.R. 12 § 404.1520(a)(4)(i). At step two, the ALJ determines whether the claimant has a “severe” 13 medically determinable physical or mental impairment. 20 C.F.R. § 404.1520(a)(4)(ii). At 14 step three, the ALJ considers whether the claimant’s impairment or combination of 15 impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P 16 of 20 C.F.R. Part 404. 20 C.F.R. § 404.1520(a)(4)(iii). If so, the claimant is disabled. Id. If 17 not, the analysis proceeds to step four, where the ALJ assesses the claimant’s residual 18 functional capacity (“RFC”) and determines whether the claimant is still capable of 19 performing her past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). If the claimant can 20 perform her past relevant work, she is not disabled. Id. If she cannot, the analysis proceeds 21 to the fifth and final step, where the ALJ determines if the claimant can perform any other 22 work in the national economy based on her RFC, age, education, and work experience. 20 23 C.F.R. § 404.1520(a)(4)(v). If the claimant cannot, she is disabled. Id. 24 This Court may set aside the Commissioner's disability determination only if the 25 determination is not supported by substantial evidence or is based on legal error. Orn v. 26 Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is more than a scintilla, but 27 less than a preponderance; it is relevant evidence that a reasonable person might accept as 28 adequate to support a conclusion considering the record as a whole. Id. In determining 1 whether substantial evidence supports a decision, the court must consider the entire record 2 and may not affirm simply by isolating a “specific quantum of supporting evidence.” Id. 3 As a general rule, “[w]here the evidence is susceptible to more than one rational 4 interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be 5 upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citations omitted). 6 III. THE ALJ DECISION 7 In the denial, the ALJ concluded Plaintiff had not engaged in disqualifying 8 substantial, gainful work activity during the relevant period. (AR. at 22-23.) The ALJ 9 further concluded that Plaintiff suffered from severe impairments including seizure 10 disorder, affective disorder, and anxiety disorder, but that the evidence of these 11 impairments was insufficient to meet or medically equal the requirements of a listing at 12 step three. (AR. at 23-24.) In the RFC determination, the ALJ found Plaintiff had no 13 exertional limitations, but that she must avoid climbing ladders, ropes, or scaffolds and 14 working around machinery and unprotected heights. (AR. at 25.) The ALJ found Plaintiff 15 limited to only occasional work around irritants and the public, and simple, routine, and 16 repetitive tasks. (AR. at 25.) The ALJ concluded Plaintiff’s “statements concerning the 17 intensity, persistence and limiting effects of [her] symptoms are not entirely consistent with 18 the medical evidence and other evidence in the record . . . .”1 (AR. at 26.) The ALJ deemed 19 the opinions of psychological consultative examiner Kari Coelho, Psy.D. and the non- 20 examining psychological consultants at the initial level to be unpersuasive. (AR. at 30.) 21 The ALJ found the non-examining consultants opining as to Plaintiff’s physical 22 restrictions, and the psychological consultant at the reconsideration level, to be persuasive. 23 (AR. at 31.) The ALJ found that while Plaintiff could not perform her own past relevant 24 work, she could perform work existing in significant numbers in the national economy. 25 (AR. at 32-33.) The ALJ concluded Plaintiff was not disabled. (AR. at 33.) 26 27 28 1 The ALJ provided several reasons in support. (AR. at 26-30.) 1 IV. DISCUSSION 2 Plaintiff presents five issues on appeal: (1) whether the ALJ provided legally 3 sufficient reasons for rejecting Dr. Coelho’s opinion; (2) whether the ALJ erred by finding 4 Plaintiff could perform jobs that are precluded by her RFC; (3) whether the ALJ erred by 5 concluding Plaintiff’s impairments did not meet a listing; (4) whether the ALJ erred by 6 providing insufficient reasons for rejecting Plaintiff’s symptom testimony; and (5) in the 7 event of remand, whether the Court should remand for payment of benefits or a new 8 hearing. (Pl. Br. at. 1.) 9 a. The ALJ provided reasons supported by substantial evidence for rejecting the consultative examiner’s report. 10 11 Under new regulations applicable to claims filed on or after March 27, 2017, an ALJ 12 should not “defer or give any specific evidentiary weight, including controlling weight, to 13 any medical opinion(s).” 20 C.F.R. § 404.1520c(a). The ALJ must instead evaluate each 14 opinion’s overall persuasiveness and articulate his conclusion utilizing two key factors: 15 “supportability” and “consistency.” 20 C.F.R. § 404.1520c(a). The ALJ is not required to 16 explain how he considered other factors—such as the nature of the relationship with the 17 claimant, the frequency of examinations, or the doctor's specialization—unless the ALJ 18 concludes that two or more medical opinions about the same issue are equally well- 19 supported and consistent with the record, but not identical. See 20 C.F.R. § 20 404.1520c(b)(3). 21 The Ninth Circuit recently addressed the effect of these new regulations on well- 22 established circuit precedent recognizing a hierarchy of medical opinions and affording 23 deference to the opinions of examining or treating physicians. Woods v. Kijakazi, 32 F.4th 24 785 (9th Cir. 2022). In Woods, the Ninth Circuit held that the revised regulations “are 25 clearly irreconcilable with our caselaw according special deference to the opinions of 26 treating and examining physicians on account of their relationship with the claimant.” Id. 27 at 792. The Ninth Circuit held its requirement that ALJs provide “specific and legitimate 28 reasons” for rejecting the controverted opinion of a treating or examining doctor is 1 incompatible with the revised regulations. Id. Nonetheless, in rejecting an examining or 2 treating doctor’s opinion as unsupported or inconsistent, an ALJ must still provide an 3 explanation supported by substantial evidence. Id. This means that the ALJ “must 4 ‘articulate . . . how persuasive’ [he] finds ‘all of the medical opinions’ from each doctor or 5 other source . . . and ‘explain how [he] considered the supportability and consistency 6 factors’ in reaching these findings.” Id. (citing 20 C.F.R. §§ 404.1520c(b), 404.1520(b)(2)). 7 In November 2017, consultative psychologist Kari Coelho, Psy.D. interviewed and 8 examined Plaintiff at the behest of Arizona’s Disability Determination Services. (AR. at 9 529-34.) Dr. Coelho observed Plaintiff presented as anxious, occasionally tearful, and with 10 tremulous hands. (AR. at 529.) She noted “slow, logical, and coherent” thought processes, 11 but difficulties with Plaintiff’s attention and concentration as exhibited on the Folstein 12 mini-mental status examination. (AR. at 531.) Dr. Coelho diagnosed Plaintiff with 13 Generalized Anxiety and Major Depressive disorders. (AR. at 531-32.) She characterized 14 Plaintiff’s prognosis as “guarded,” and explained, “She does appear to be suffering from 15 depression and anxiety at this time, which has been exacerbated due to her uncontrolled 16 seizures.” (AR. at 532.) Noting Plaintiff’s low energy and motivation, seizures, daytime 17 sleepiness, and inability to provide transportation for herself, Dr. Coelho opined Plaintiff 18 “would struggle to maintain regular attendance at a job.” (AR. at 533.) Dr. Coelho opined 19 Plaintiff would likely “struggle to respond appropriately to supervision” due to her seizure 20 disorder and attention and concentration deficits. (AR. at 533.) Dr. Coelho also noted 21 Plaintiff’s limited coping skills, and observed, “She appears to be very overwhelmed with 22 her situation and her ongoing seizures.” (AR. at 533.) 23 In the unfavorable decision, the ALJ found Dr. Coelho’s report unpersuasive. (AR. 24 at 30.) The ALJ asserted Dr. Coelho “seemed to rely heavily on [Plaintiff’s] subjective 25 reports and did not have the benefit of reviewing the entire record.” (AR. at 30.) The ALJ 26 noted Plaintiff had not taken a prescribed antidepressant, that she had been referred to but 27 had not followed up with a psychiatrist, and that she had no formal mental health treatment 28 at any time during the relevant period. (AR. at 30.) The ALJ asserted what mental status 1 findings existed elsewhere in the record tended to show Plaintiff as alert, oriented, 2 cooperative, in no distress, with intact memory, clear speech, and normal mood and affect. 3 (AR. at 30.) The ALJ also believed Plaintiff’s reported daily activities belied the limitations 4 Dr. Coelho assigned. (AR. at 31.) The Court addresses each reason in turn. 5 i. Dr. Coelho’s reliance on subjective symptoms. 6 That Dr. Coelho mostly relied upon the Plaintiff’s subjective report is not supported 7 by substantial evidence. Dr. Coelho’s opinion is supported by her own personal 8 observations, including Plaintiff’s presentation as depressed, anxious, and tearful with 9 tremulous hands, and her attention and concentration difficulties which manifested during 10 the exam. (AR. at 531.) While it is evident Dr. Coelho did rely upon Plaintiff’s report to 11 some extent, it is not evident she relied upon Plaintiff’s reports over her own observations 12 and clinical impressions. E.g., Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014) 13 (citing Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1199-1200 (9th Cir. 2008) (“[W]hen 14 an opinion is not more heavily based on a patient’s self-reports than on clinical 15 observations, there is no evidentiary basis for rejecting the opinion.”); Monan v. Astrue, 16 No. 2:08-CV-0223-HRH, 2009 WL 10695548, at *4 (D. Ariz. Mar. 12, 2009), aff’d, 377 17 F. App’x 629 (9th Cir. 2010). Consequently, this reason is not supported. 18 ii. Dr. Coelho’s reliance upon limited medical records. 19 That Dr. Coelho relied upon limited medical records is also an insufficient reason. 20 The ALJ deemed the opinions of several other non-examining consultants to be persuasive 21 even though they too had limited medical records to review. (AR. at 31, 72-74, 88-92.) 22 Further, Dr. Coelho indicated her knowledge of Plaintiff’s medical history derived, in part, 23 from a “record review,” although she failed to disclose which records. (AR. at 529.) There 24 is insufficient evidence to support the conclusion Dr. Coelho reviewed significantly fewer 25 records than opinions from other physicians the ALJ deemed persuasive. Consequently, 26 this reason is not supported. 27 28 1 iii. Plaintiff’s failure to seek mental health treatment 2 Regarding Plaintiff’s alleged failure to seek mental health treatment, the Ninth 3 Circuit—when recognizing the hierarchy of medical opinions and granting deference to 4 treating and examining opinions—“particularly criticized the use of a lack of treatment to 5 reject mental complaints both because mental illness is notoriously underreported and 6 because ‘it is a questionable practice to chastise one with a mental impairment for the 7 exercise of poor judgment in seeking rehabilitation.’” Regennitter v. Comm’r of Soc. Sec. 8 Admin., 166 F.3d 1294, 1299–300 (9th Cir. 1999) (finding error in rejecting doctor's 9 opinion based on lack of treatment) (quoting Nguyen v. Chater, 100 F.3d 1462, 1465 (9th 10 Cir. 1996)). Notably, however, a claimant suffering from mental health impairments was 11 not excused in every case for an utter failure to seek psychiatric or psychological treatment. 12 See, e.g., Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (a claimant’s “unexplained, or 13 inadequately explained, failure to seek treatment or follow a prescribed course of 14 treatment” is a clear, convincing reason for rejecting his symptom testimony) (emphasis 15 added); Rolston v. Colvin, No. CV-14-08040-PCT-BSB, 2015 WL 685162, at *13 (D. Ariz. 16 Feb. 18, 2015) (noting Plaintiff’s failure to follow referrals for specialist mental health 17 treatment was a clear, convincing reason for discounting her symptom testimony). 18 Here, Plaintiff received medication for mental health treatment but repeatedly failed 19 to follow-up on specialist referrals or take other medications when her mental complaints 20 did not improve. Plaintiff was taking Lamotrigine, in part, for her mood disorder, but 21 Dr. Lehnhoff repeatedly noted it had not significantly improved Plaintiff’s mood. (AR. at 22 306, 586, 619.) Dr. Lehnhoff also prescribed Effexor to help with Plaintiff’s mood and her 23 headaches, but Plaintiff never started taking it. (AR. at 619-20.) From the beginning of the 24 relevant period, Dr. Lehnhoff repeatedly referred Plaintiff to a psychiatrist for mental 25 health treatment, but Plaintiff never sought any specialized help.2 (AR. at 619-20.) These 26 reasons are established in the record and supported by substantial evidence. 27

28 2 Plaintiff testified at her hearing that her insurance lapsed, but according to Plaintiff, this did not occur until approximately one month prior to her hearing. (AR. at 56.) 1 iv. Plaintiff’s normal mental status findings 2 The ALJ also noted Plaintiff exhibited no alarming clinical signs whenever her 3 mental status was documented, noting that she presented in no distress with clear speech 4 and intact memory, and that she was alert, oriented, and cooperative. (AR. at 30.) A review 5 of the record shows this to be a rational interpretation of the record. Plaintiff presented as 6 oriented with normal mood and affect and fluent speech in February 2017 (AR. at 305); 7 oriented with intact memory and clear speech but a “somewhat flat” affect in May and June 8 2017 (AR. at 369, 382-83); oriented with normal speech and normal mood but as 9 “somewhat anxious” and distraught in March 2019 (AR. at 584); and oriented with fluent 10 speech and normal mood but a “somewhat depressed” affect in May 2019 (AR. at 618).3 11 The Court finds this evidence, while less than compelling, still rises to the level of 12 substantial evidence. This reason is supported in the record. 13 v. Plaintiff’s daily activities. 14 Finally, the ALJ cited Plaintiff’s daily activities as a basis to reject Dr. Coelho’s 15 findings. This reason is unsupported by substantial evidence. Plaintiff reported activities to 16 Dr. Coelho that did not significantly deviate from her other reports,4 and Plaintiff’s reports 17 of limited functionality do not appear to undermine Dr. Coelho’s findings. Plaintiff was 18 substantially consistent in her description of her limited daily activities and the ALJ’s 19 description of these activities does not adequately account for the difficulties Plaintiff 20 reported having. For instance, the ALJ asserted Plaintiff was able to prepare her children 21 for school with assistance, attend to personal hygiene, prepare simple meals, take her 22 medications, visit with family, and go to the gas station regularly. (AR. at 31.) In her 23 function report, however, Plaintiff stated she needed daily reminders to take medications 24 3 The ALJ cited these exams, along with a few duplicates. (AR. at 30.) 25 4 Plaintiff told Dr. Coelho she avoided going to the store, needed assistance with managing 26 her finances, did not drive, that she changed clothes and showered only two-to-three times per week, that she had a limited ability to engage in household chores, that she had no social 27 activities, and that she had short-term memory difficulties. (AR. at 530-31.) In her August 2017 function report, Plaintiff reported difficulties completing household tasks, preparing 28 meals, and managing her finances, and needing reminders to bathe and take medicine. (AR. at 210.) This account is also consistent with Plaintiff’s symptom testimony. (AR. at 54-56.) 1 and to bathe, that she struggled making even simple meals, that she could not go out alone, 2 and that her daily hobbies and social activities consisted only of watching television with 3 her family. (AR. at 210-14.) 4 Overall, however, because the ALJ provided other sufficient reasons addressing the 5 supportability and consistency of Dr. Coelho’s opinion, and these reasons are supported by 6 substantial evidence, any other errors with respect to Dr. Coelho’s report are harmless. 7 Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006) (noting harmless 8 error is inconsequential to the ultimate non-disability determination). Consequently, the 9 Court affirms the ALJ’s decision with respect to Dr. Coelho’s opinion. 10 b. The ALJ did not explain his refusal to adopt a limitation to one-to-two step instructions which could preclude the jobs he identified at step five.5 11 12 The ALJ concluded the opinion of non-examining state psychological consultant 13 Eric Penner, Ph.D. was persuasive, “consistent with the objective medical evidence[,]” and 14 “supported by [Plaintiff’s] lack of aggressive treatment[,]” noncompliance, her normal 15 mental status examination findings, and her daily activities. (AR. at 31-32.) As Plaintiff 16 observes, however, Dr. Penner limited Plaintiff to one-to-two step tasks (AR. at 90-91), 17 and this limitation (which was not incorporated into Plaintiff’s RFC) would apparently 18 preclude Plaintiff from performing the jobs the ALJ identified at step five. (AR. at 33.) A 19 limitation to one-to-two step tasks presumably eliminates jobs requiring GED level 2 20 reasoning, which would create a conflict in the vocational evidence requiring a resolution.6 21 Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996, 1003 (9th Cir. 2015). 22

23 5 Defendant suggests this argument is waived because Plaintiff failed to argue it under a separate heading in her Opening Brief. (Def. Br. at 15.) Importantly, however, Plaintiff did 24 identify the issue amongst the “Issues Presented” on the first page of her Opening Brief (Pl. Br. at 1) and substantively expounded upon it later in the brief (Pl. Br. at 11). That Defendant 25 felt compelled to address it is evidence enough that Defendant had notice. (Def. Br. at 14- 16.) Consequently, the Court finds the issue is not waived. 26 6 For the vocational requirements of each job, see Dictionary of Occupational Titles 27 (“DOT”), 1991 WL 687916, “Hand Packager,” 920.587-018; DOT, 1991 WL 672987, “Laundry Worker II,” 361.685-018; and DOT, 1991 WL 673258, “Cleaner, Industrial,” 28 381.687-018. 1 Defendant does not contest the apparent conflict with the DOT, but instead argues 2 the ALJ implicitly rejected this specific limitation and formulated hypotheticals to the VE 3 that include only those limitations supported by the record. (Def. Br. at 14-16.) Contrary 4 to Defendant’s view, the ALJ appeared to accept Dr. Penner’s limitation to one-to-two step 5 tasks.7 If the ALJ intended to reject this limitation, he provided no reasoning to support 6 that decision. (AR. at 31-32.) Although an ALJ is not required to assess every piece of 7 evidence presented, he must give reasons for rejecting “significant probative evidence.” 8 Vincent on Behalf of Vincent v. Heckler, 739 F.2d 1393, 1394–95 (9th Cir. 1984). The 9 Court finds no reason for this not to be true under the new regulations as well. See 20 C.F.R. 10 § 404.1520c(b) (“We will articulate in our determination or decision how persuasive we 11 find all of the medical opinions and all of the prior administrative medical findings in your 12 case record.”); e.g., Woods, 32 F.4th at 792. The Court finds the ALJ had a duty to explain 13 why he was not adopting this specific limitation. This aspect of Dr. Penner’s opinion is 14 significant because it potentially belies the ALJ’s conclusions at step five.8 Consequently, 15 a remand for additional proceedings is warranted. 16 c. The ALJ did not err by concluding Plaintiff’s impairments did not meet a listing. 17 18 To meet a listing at step three, a claimant must meet all the medical criteria of the 19 listing. 20 C.F.R. § 404.1520(d). An ALJ must “resolve ambiguities” in the evidence at 20 this stage, see Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995), and his

21 7 The ALJ stated, “The undersigned finds the opinion of the State agency psychological consultants persuasive. They opined that the claimant could perform one to two step tasks 22 on a consistent, productive basis . . . . The residual functional capacity assessed by the State agency medical consultants is reasonable and consistent with the objective medical 23 evidence.” (AR. at 31.) The Defendant argues the ALJ intended to reject this limitation when he explained, “Despite this, it was also repeatedly noted the claimant was mostly in no 24 distress . . . .” (AR. at 31.) The ALJ’s explanation appears to address Plaintiff’s lack of treatment and mental health follow-up, i.e., that despite her lack of treatment, Plaintiff 25 exhibited no troubling clinical signs upon examination. (AR. at 31.)

26 8 Defendant cites to Social Security Ruling 96-8p for the proposition that “[i]f the RFC assessment conflicts with an opinion from a medical source, the adjudicator must explain 27 why the opinion was not adopted.” Titles II & XVI: Assessing Residual Functional Capacity in Initial Claims, SSR 96-8p, 1996 WL 374184, at *7 (S.S.A. July 2, 1996). This appears to 28 belie Defendant’s position as the ALJ did not provide any direct explanation why he did not adopt this specific limitation to one-to-two step instructions. (AR. at 31-32.) 1 determination is entitled to deference if it is supported by substantial evidence. Moncada 2 v. Chater, 60 F.3d 521, 523 (9th Cir. 1995). Importantly, it is the claimant’s burden of 3 proof that she is disabled per se under a listing. Tackett, 180 F.3d at 1098. Alternatively, to 4 establish medical equivalence to a listed impairment, “a claimant must establish symptoms, 5 signs and laboratory findings ‘at least equal in severity and duration’ to the characteristics 6 of a relevant listed impairment, or, if a claimant's impairment is not listed, then to the listed 7 impairment most like the claimant's impairment.” Id. (quoting 20 C.F.R. § 404.1526(a)). 8 Although it is the claimant’s burden to prove disability at step three, “[a]n ALJ must 9 evaluate the relevant evidence before concluding that a claimant's impairments do not meet 10 or equal a listed impairment.” Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001). 11 Plaintiff argues her condition meets the evidentiary requirements of listing 12 11.02(A), (B), and (C). She notes that during her May 2019 treatment visit with 13 Dr. Lehnhoff she reported, despite her earlier accounts of rare tonic-clonic seizures, that 14 her seizures now occurred “usually about once per month,” including recent consecutive 15 episodes from the same day. (AR. at 612.) Plaintiff argues her treatment notes with her 16 specialist providers provide evidence sufficient to meet the requirements of 11.02(B) for 17 dyscognitive seizures, and that her reports of routine tonic-clonic seizures, combined with 18 the mental limitations Dr. Coelho described, are sufficient to meet the requirements of 19 11.02(C). (Pl. Br. at 12.) 20 Plaintiff did not make a statement at the hearing or submit a pre-hearing brief 21 drawing the ALJ’s attention to any particular subsection of Listing 11.02, and thus did little 22 to meet her burden. See, e.g., Burch v. Barnhart, 400 F.3d 676, 683 (9th Cir. 2005) (“The 23 district court correctly explained that Burch ‘bears the burden of proving that ... she has an 24 impairment that meets or equals the criteria of an impairment listed in Appendix 1 of the 25 Commissioner's regulations.’”); Bowen v. Yuckert, 482 U.S. 137, 146 n. 5 (1987) (“It is not 26 unreasonable to require the claimant, who is in a better position to provide information 27 about his own medical condition, to do so.”) 28 1 Nevertheless, the ALJ still evaluated Plaintiff’s evidence under the appropriate 2 listing heading—11.02 for “[e]pilepsy[] documented by a detailed description of a typical 3 seizure . . . .”9 (AR at. 23-24.) The ALJ noted there was no evidence to support three 4 consecutive months of tonic-clonic seizures despite adherence to treatment, which applies 5 to section 11.02(A), but he did not cite specific factual findings applicable to other 6 subsections of the listing. (AR. at 23.) An ALJ need not make specific findings as to every 7 subsection of the listings if he otherwise provides sufficient “foundations on which the 8 ultimate factual conclusions are based.”10 Gonzalez v. Sullivan, 914 F.2d 1197, 1201 (9th 9 Cir. 1990) (quoting Lewin v. Schweiker, 654 F.2d 631, 634 (9th Cir.1981)). An extensive 10 discussion and summarization of the evidence in the record is an adequate factual 11 foundation. Gonzalez, 914 F.2d at 1201. Here, the ALJ provided a lengthy discussion of 12 his evaluation of the evidence later in the decision. (AR. at 26-32.) He noted Plaintiff’s 13 earlier reports of sporadic and infrequent seizures (AR. at 26), and her failure to take 14 prescribed medications or take medications as prescribed. (AR. at 26, 28-29.) Moreover, 15 even assuming Plaintiff’s subjective report, standing alone, was sufficient to prove a 16 disability under this listing, Plaintiff’s report she experiences seizures “usually about once 17 per month” (AR. at. 612) still does not definitively establish three consecutive months of 18 general tonic-clonic seizures with adherence to treatment. 19 Regarding 11.02(B), which requires a showing of weekly dyscognitive seizures for 20 three consecutive months despite adherence to prescribed treatment, while Plaintiff did 21 report seizure-like activity similar to dyscognitive seizures,11 Plaintiff did not make the 22 showing these episodes occurred once per week for three consecutive months in the 23 relevant period. Dr. Lehnhoff documented that “patient’s husband thinks that sometimes

24 9 20 C.F.R. § Pt. 404, Subpt. P, App. 1, 11.02.

25 10 Here, the factual conclusion at issue is that Plaintiff’s condition does not meet or medically equal the requirements of listing 11.02, including any subsection of 11.02. The ALJ stated 26 he had “considered [Plaintiff’s] seizures under section 11.02 of the Listings[,]” (AR. at 23) meaning he had considered Plaintiff’s eligibility under 11.02 as a whole, although he did not 27 make specific findings at step three pertaining to subsections (B), (C), or (D).

28 11 20 C.F.R. § Pt. 404, Subpt. P, App. 1, 11.00(H)(1)(b). 1 she has spells where she ‘blanks out’ during conversations, and asks people to repeat 2 things.” (AR. at 303.) Dr. Lehnhoff also noted Plaintiff’s husband described episodes 3 where Plaintiff cannot remember entire days despite her being awake and active, but there 4 was no indication as to how often this occurs. (AR. at 303.) When asked to describe how 5 often she experiences “blank out” seizures at her hearing, Plaintiff testified they are 6 “random and grand.” (AR. at 49.) This is insufficient to establish the frequency criterion. 7 Moreover, the ALJ’s larger examination of the record provided a factual basis for 8 his conclusion Plaintiff’s conditions do not meet the other subsections of 11.02 due to her 9 failure to adhere to prescribed treatment. Gonzalez, 914 F.2d at 1201. The ALJ, for 10 instance, noted Plaintiff repeatedly failed to follow treatment recommendations, including 11 not taking medications that were prescribed,12 not taking medications as prescribed,13 12 failing to follow-up with specialized mental health providers, and failing to attend 13 diagnostic testing ordered by her treating specialist.14 For these same reasons, Plaintiff’s 14 seizures do not meet the requirements of Listing 11.02(C)(2), (3), and (4), which all require 15 adherence to prescribed treatment.15 Consequently, the ALJ did not err by failing to 16 explicitly consider each of these listing subsections. 17

18 12 The ALJ stated, “The claimant reported she had daily migraine headaches. Yet she admitted she had not started Rizatriptan since it had been prescribed at her last visit.” (AR. 19 at 28.) The ALJ also noted, “Dr. Lehnhoff stated she had also prescribed the claimant Effexor for her headaches, which would also help with her symptoms of depression and anxiety. 20 However, the claimant admitted she never started taking it.” (AR. at 29.)

21 13 The ALJ explained, “[T]he claimant admitted she had not used clonazepam after her seizures and instead she was taking 1 milligram of Topamax for her myoclonic jerks and 22 insomnia. Dr. Lehnhoff indicated this medication was to be used as needed, but she took it every night.” (AR. at 28.) 23 14 The ALJ noted, “Dr. Lehnhoff noted she had ordered a 72 hour ambulatory EEG to 24 evaluate ]Plaintiff’s] night-time jerks, but [Plaintiff] stated that she never went to this appointment.” (AR. at 28.) 25 15 Under the listing, “adherence to prescribed treatment means that [the claimant has] taken 26 medication(s) or followed other treatment procedures for [her] neurological disorder(s) as prescribed by a physician for three consecutive months but [her] impairment continues to 27 meet the other listing requirements despite this treatment.” 20 C.F.R. § Pt. 404, Subpt. P, App. 1, 11.00(C) (quotation marks omitted). The ALJ’s analysis shows Plaintiff did not take 28 medications that were prescribed, or that she failed to take medications as prescribed. (AR. at 27-29.) 1 d. The ALJ did not err by rejecting Plaintiff’s symptom testimony. 2 An ALJ performs a two–step analysis to evaluate a claimant’s testimony regarding 3 pain and symptoms. Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). First, the ALJ 4 evaluates whether the claimant has presented objective medical evidence of an impairment 5 “which could reasonably be expected to produce the pain or other symptoms alleged.” 6 Lingenfelter v. Astrue, 504 F.3d 1028, 1035–36 (9th Cir. 2007) (quoting Bunnell v. 7 Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc) (internal quotation marks omitted)). 8 If the claimant presents such evidence, then “the ALJ can reject the claimant’s testimony 9 about the severity of her symptoms only by offering specific, clear and convincing reasons 10 for doing so.” Garrison, 759 F.3d at 1014–15 (quoting Smolen v. Chater, 80 F.3d 1273, 11 1281 (9th Cir. 1996)). 12 Plaintiff argues the ALJ did not explain “how the medical evidence is contrary to 13 her symptom testimony[,]” and that an ALJ may not reject a claimant’s symptom testimony 14 by citing a lack of objective evidence alone. (Pl. Br. at 13-14.) Plaintiff argues the ALJ’s 15 reasoning Plaintiff was noncompliant with treatment is inconsistent with his finding at step 16 three that Plaintiff could “follow instructions from healthcare providers, [and] comply with 17 treatment outside of a doctor’s office . . . .” (Pl. Br. at 14, AR. at 24.) 18 The ALJ cited several reasons for rejecting Plaintiff’s symptom testimony, 19 including Plaintiff’s inconsistent reports regarding the frequency of her seizures, her failure 20 to attend diagnostic testing or follow-up with specialists, her non-compliance with her 21 medication regimen, and her failure to seek more frequent treatment with her specialist, 22 Dr. Lehnhoff. (AR. at 29.) But Plaintiff’s only argument regarding the ALJ’s consideration 23 of her symptom testimony is that the conclusion Plaintiff was noncompliant is inconsistent 24 with the ALJ’s prior finding Plaintiff had only a mild limitation in the area of 25 understanding, remembering, and applying information at step three. (AR. at 24.) 26 The Court sees no inconsistency. The ALJ’s conclusion at step three merely 27 pertained to Plaintiff’s mental capacity to engage with healthcare providers and follow their 28 instructions. (AR. at 24.) Plaintiff’s failure to follow prescribed treatment, seek specialist treatment, or schedule recommended diagnostic testing—despite having the mental 2 || capacity to do so—is what the ALJ concluded belied Plaintiff's symptom testimony. (AR. || at 29.) Consequently, the ALJ provided clear, convincing reasons supported by substantial 4|| evidence for discounting Plaintiffs symptom testimony. 5 e. The Court will remand for additional proceedings. 6 The Court in its discretion will remand for additional proceedings. Additional proceedings will serve the useful purpose of presenting an opportunity to resolve the 8 || vocational conflict which is the basis of this remand. In a credit-as-true analysis, further □□ proceedings are considered useful when there are conflicts and ambiguities that must be || resolved. Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1101 (9th Cir. 2014) || (citations omitted). Such is the case here. 12 IT IS THEREFORE ORDERED reversing the December 5, 2019 decision of the 13 || Commissioner of Social Security (AR. at 20-33) and remanding for further proceedings □□ consistent with this opinion. 15 IT IS FURTHER ORDERED directing the Clerk to enter judgment accordingly. 16 Dated this 7th day of June, 2022. CN 17 “wok: 18 holee— Unifga State#District Judge 19 20 21 22 23 24 25 26 27 28

-15-