James v. Saul

• Court: District Court, N.D. California
• Decided: May 17, 2021
• Docket: 3:20-cv-03505
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 K.J., 7 Case No. 20-cv-03505-JCS Plaintiff, 8 v. ORDER GRANTING PLAINTIFF’S 9 MOTION FOR SUMMARY ANDREW SAUL, JUDGMENT, DENYING 10 DEFENDANT’S MOTION FOR Defendant. SUMMARY JUDGMENT, AND 11 REMANDING FOR FURTHER PROCEEDINGS 12 Re: Dkt. Nos. 21, 24 13

14 I. INTRODUCTION 15 On September 1, 2016, Plaintiff K.J.1 applied for supplemental security income (“SSI”) 16 under Title XVI of the Social Security Act and disability under Title II of the Social Security Act 17 alleging disability beginning October 15, 2014. Admin. Record (“AR,” dkt. 15) 132, 317-31. The 18 claim was denied initially and upon reconsideration, and Wynne O’Brien-Persons, an 19 administrative law judge (“ALJ”), held a hearing on April 16, 2019. AR 38-67 204-09, 213-19. 20 On May 22, 2019, the ALJ denied Plaintiff’s application and on April 7, 2020, the Appeals 21 Council denied Plaintiff’s appeal of the ALJ’s decision, making it the final decision of the 22 Defendant Commissioner of the Social Security Administration (“Commissioner”). AR 1-7, 13- 23 37. After the Appeals Council denied review, Plaintiff sought review in this court pursuant to 42 24 U.S.C. § 405(g). Presently before the Court are the parties’ cross-motions for summary 25 judgment.2 For the reasons stated below, the Court GRANTS Plaintiff’s Motion for Summary 26 1 Because opinions by the Court are more widely available than other filings and this Order 27 contains potentially sensitive medical information, this Order refers to Plaintiff using only her 1 Judgment, DENIES the Commissioner’s Motion for Summary Judgment, and REMANDS for 2 further administrative proceedings consistent with this order.3 3 II. BACKGROUND 4 A. The Five-Step Framework 5 Disability insurance benefits are available under the Social Security Act (the “Act”) when 6 an eligible claimant is unable “to engage in any substantial gainful activity by reason of any 7 medically determinable physical or mental impairment . . . which has lasted or can be expected to 8 last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); see also 42 9 U.S.C. § 423(a)(1). A claimant is only found disabled if their physical or mental impairments are 10 of such severity that they are not only unable to do their previous work but also “cannot, 11 considering [their] age, education, and work experience, engage in any other kind of substantial 12 gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A). 13 The Commissioner has established a sequential, five-part evaluation process to determine 14 whether a claimant is disabled under the Act. See Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 15 1999) (citing 20 C.F.R. § 404.1520). The claimant bears the burden of proof at steps one through 16 four, but the burden shifts to the Commissioner at step five. Id. “If a claimant is found to be 17 ‘disabled’ or ‘not disabled’ at any step in the sequence, there is no need to consider subsequent 18 steps.” Id. 19 At step one, the ALJ considers whether the claimant is presently engaged in “substantial 20 gainful activity.” 20 C.F.R. § 404.1520(a)(4)(i).4 If the claimant is engaged in such activity, the 21 ALJ determines that the claimant is not disabled, and the evaluation process stops. Id. If the 22 claimant is not engaged in substantial gainful activity, the ALJ continues to step two. See id. 23 At step two, the ALJ considers whether the claimant has “a severe medically determinable 24 physical or mental impairment” or combination of such impairments that meets the regulations’ 25 Administrative Record. The parties and their counsel are admonished to comply with the Court’s 26 orders in all future cases. 3 The parties have consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. 27 § 636(c). 1 twelve-month durational requirement. 20 C.F.R. §§ 404.1509, 404.1520(a)(4)(ii). An impairment 2 or combination of impairments is severe if it “significantly limits [the claimant’s] physical or 3 mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c). If the claimant does not have 4 a severe impairment, disability benefits are denied. 20 C.F.R. § 404.1520(a)(4)(ii). If the ALJ 5 determines that one or more impairments are severe, the ALJ proceeds to the next step. See id. 6 At step three, the ALJ compares the medical severity of the claimant’s impairments to a 7 list of impairments that the Commissioner has determined are disabling (“Listings”). See 20 8 C.F.R. § 404.1520(a)(4)(iii); see also 20 C.F.R. Pt. 404, Subpt. P, App. 1. If one or a combination 9 of the claimant’s impairments meets or equals the severity of a listed impairment, the claimant is 10 disabled. 20 C.F.R. § 404.1520(a)(4)(iii). Otherwise, the analysis continues. See id. 11 At step four, the ALJ must assess the claimant’s residual functional capacity (“RFC”) and 12 past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). The RFC is “the most [a claimant] can still 13 do despite [that claimant’s] limitations . . . based on all the relevant evidence in [that claimant’s] 14 case record.” 20 C.F.R. § 404.1545(a)(1). The ALJ then determines whether, given the claimant’s 15 RFC, the claimant would be able to perform their past relevant work. 20 C.F.R. 16 § 404.1520(a)(4)(iv). Past relevant work is “work that [a claimant has] done within the past 15 17 years, that was substantial gainful activity, and that lasted long enough for [the claimant] to learn 18 to do it.” 20 C.F.R. § 404.1560(b)(1). If the claimant is able to perform their past relevant work, 19 then the ALJ finds that they are not disabled. 20 C.F.R. § 404.1520(a)(4)(iv). If the claimant is 20 unable to perform their past relevant work, then the ALJ proceeds to step five. See id. 21 At step five, the Commissioner has the burden to “identify specific jobs existing in 22 substantial numbers in the national economy that claimant can perform despite [the claimant’s] 23 identified limitations.” Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (quoting Johnson v. 24 Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995)). If the Commissioner meets this burden, the 25 claimant is not disabled. See 20 C.F.R. § 404.1520(a)(4)(v). Conversely, the claimant is disabled 26 and entitled to benefits if there are not a significant number of jobs available in the national 27 economy that the claimant can perform. 20 C.F.R. § 404.1560(c). B. Supplemental Regulations for Determining Mental Disability 1 2 The Social Security Administration has supplemented the five-step general disability 3 evaluation process with regulations governing the evaluation of mental impairments at steps two 4 and three of the five-step process. See generally 20 C.F.R. § 404.1520a. First, the Commissioner 5 must determine whether the claimant has a medically determinable mental impairment. 20 C.F.R. 6 § 404.1520a(b)(1). Next, the Commissioner must assess the degree of functional limitation 7 resulting from the claimant’s mental impairment with respect to the following functional areas: (1) 8 understand, remember, or apply information; (2) interact with others; (3) concentrate, persist, or 9 maintain pace; and (4) adapt or manage oneself. 20 C.F.R. §§ 404.1520a(b)(2), (c)(3). Finally, 10 the Commissioner must determine the severity of the claimant’s mental impairment and whether 11 that severity meets or equals the severity of a mental impairment listed in Appendix 1. 20 C.F.R. 12 § 404.1520a(d). If the Commissioner determines that the severity of the claimant’s mental 13 impairment meets or equals the severity of a listed mental impairment, the claimant is disabled. 14 See 20 C.F.R. § 404.1520(a)(4)(iii). Otherwise, the evaluation proceeds to step four of the general 15 disability inquiry. See 20 C.F.R. § 404.1520a(d)(3). 16 Appendix 1 provides impairment-specific “Paragraph A” criteria for determining the 17 presence of various listed mental impairments, but all listed mental impairments share certain 18 “Paragraph B” severity criteria in common (and some have alternative “Paragraph C” severity 19 criteria). See generally 20 C.F.R. § 404, Subpt. P, App. 1 at 12.00. Any medically determinable 20 mental impairment—i.e., one that satisfies the Paragraph A criteria of one or more listed mental 21 impairments—is sufficiently severe to render a claimant disabled if it also satisfies the general 22 Paragraph B criteria, which requires that a claimant’s mental disorder “result in ‘extreme’ 23 limitation of one, or ‘marked’ limitation of two, of the four areas of mental functioning.” Id. at 24 12.00(A)(2)(b). A claimant has a “marked” limitation if the claimant’s “functioning in this area 25 independently, appropriately, effectively, and on a sustained basis is seriously limited.” Id. at 26 12.00(F)(2)(d). A claimant with an “extreme” limitation is “not able to function in this area 27 independently, appropriately, effectively, and on a sustained basis.” Id. at 12.00(F)(2)(e). 1 evaluation discussed above. Social Security Ruling 96-8p, 1996 WL 374184, at *4 (“The 2 adjudicator must remember that the limitations identified in the ‘paragraph B’ and ‘paragraph C’ 3 criteria are not an RFC assessment but are used to rate the severity of mental impairment(s) at 4 steps 2 and 3 of the sequential evaluation process.”). If the Commissioner determines that the 5 claimant has one or more severe mental impairments that neither meet nor are equal to any listing, 6 the Commissioner must assess the claimant’s residual functional capacity. 20 C.F.R. 7 § 404.1520a(d)(3). This is a “mental RFC assessment [that is] used at steps 4 and 5 of the 8 sequential evaluation process [and] requires a more detailed assessment by itemizing various 9 functions contained in the broad categories found in paragraphs B and C of the adult mental 10 disorders listings in 12.00 of the Listing of Impairments . . . . ” Social Security Ruling 96-8p, 11 1996 WL 374184, at *4. 12 C. Factual Background5 13 Plaintiff’s impairments stem from two car accidents, in 2001 and 2004. AR 483, 492-93. 14 She suffered a traumatic brain injury (“TBI”) in the 2001 accident and was in a coma for months 15 after the accident. AR 492, 564. She had brain swelling and had to have a shunt placed in her 16 brain. AR 492, 564. As a result of this injury, Plaintiff suffers from cognitive deficits, 17 particularly with her short-term memory and attention, and has frequent migraines. AR 486-87, 18 503, 508, 564. Plaintiff also suffered damage to her right knee, leg, and ankle in the 2001 accident, 19 and further damage to her right knee in the 2004 accident. AR 483, 492-93. She also has drop 20 foot from the 2001 accident. AR 492.6 21 For several years after her accidents, Plaintiff attempted to work and attend school. She 22 had graduated high school with a 3.6 GPA in 2000, one year before her first accident, and, after 23 the accident, she earned an associate degree in general education in 2004 with a 2.8 GPA. AR 24 126, 483-84. She continued to take classes until at least 2009, although her college GPA dropped 25 5 The Court assumes the parties are familiar with the Administrative Record and will not attempt 26 to summarize the entirety of the record here. Instead, this section is meant merely to provide context for the ensuing discussion about the particular issues raised by the parties. 27 6 Plaintiff does not specifically challenge any of the ALJ’s findings regarding her physical 1 to 2.1 and she had to re-take multiple classes because of her memory problems. AR 126, 483. As 2 of 2014 she was 32 hours short of a bachelor’s degree. AR 484. Plaintiff also continued working 3 after her accidents. From the time of her first accident in 2001, to her alleged onset date in 2014, 4 Plaintiff estimated that she tried working at well over 30 different jobs, but testified that she was 5 fired from every single one of them because of her memory problems. AR 43-47, 483-84, 492. 6 1. Medical Opinions 7 In September 2014, shortly before the alleged onset date, Plaintiff was referred to Dr. 8 Duffy for a neuropsychological evaluation as part of an attempt at vocational rehabilitation. AR 9 482. Dr. Duffy performed a variety of cognitive, psychological, and neuropsychological 10 assessments of Plaintiff. AR 482-83. Dr. Duffy found that Plaintiff scored in the average range 11 for intelligence when compared to others her age, although she scored in the low average range 12 when compared to others her age with three years of college courses. AR 485-86. Dr. Duffy also 13 found deficits in Plaintiff’s memory, attention, concentration, and ability for abstraction. AR 486- 14 87. He also diagnosed Plaintiff with a personality disorder. AR 487-88. 15 Based on this testing, Dr. Duffy found that Plaintiff faced “substantial impediments to 16 employment,” including her difficulties with memory, attention, concentration, planning, and 17 problem-solving. AR 488. These difficulties meant that she would need “increased time and 18 attention to learn complex tasks and new work skills” and she would need to avoid work that 19 required a “fast sustained pace of performance.” AR 488-89. Because of these impediments, Dr. 20 Duffy opined that he did not think Plaintiff was a good candidate for full-time independent 21 employment. AR 489. Instead, he believed she should apply for Social Security disability 22 benefits and said he would be “quite surprised” if she was not eligible for benefits. AR 488. If 23 she had to work, Dr. Duffy believed “it would need to be in a job setting where the pace is slower, 24 tasks are less demanding, there is more routine and supervisors and coworkers who would 25 understand and make allowances for her mistakes.” AR 489. Dr. Duffy was “hard-put to think of 26 jobs that would be appropriate for her, given her neurocognitive impairments.” AR 489. 27 Two years later, in November 2016, Plaintiff underwent two consultative examinations in 1 performed an internal medicine evaluation, and Dr. Samuelson performed a psychological 2 evaluation. AR 492-96, 499-505. 3 Dr. Benrazavi opined that Plaintiff could lift and carry 20 pounds occasionally and 10 4 pounds frequently, stand and walk up to four hours out of an eight-hour workday, and sit up to six 5 hours. AR 495. Dr. Benrazavi also recommended the use of an AFO to prevent falls, and limited 6 walking on uneven ground, climbing, and balancing. AR 495. 7 Dr. Samuelson performed a psychiatric examination of Plaintiff and found deficits in 8 Plaintiff’s memory and attention. AR 503. Dr. Samuelson also noted that Plaintiff had 9 disinhibited speech, had difficulty answering questions, and became off task and rambled on about 10 different subjects during the testing. AR 502. Based on these noted deficits, Dr. Samuelson 11 opined that Plaintiff would have moderate difficulty performing simple and repetitive tasks and 12 marked difficulty performing complex and detailed tasks. AR 504. Dr. Samuelson also opined 13 that Plaintiff would have marked difficulty with: (1) working with the public; (2) working with 14 supervisors and co-workers; (3) maintaining attention, concentration, persistence, and pace; (4) 15 associating with day-to-day work activity, including attendance and safety; (5) accepting 16 instructions from supervisors; (6) ability to maintain regular attendance in the work place and 17 perform activities on a consistent basis; and (7) ability to perform work activities without special 18 or additional supervision. AR 504-05. Dr. Samuelson therefore found that Plaintiff is “not able to 19 work for a sustained period of time” due to her symptoms and “would not be appropriate in a work 20 setting with the exception of a structured setting with professionals trained to manage disabled 21 brain injured employees.” AR 505. 22 In September 2017, Plaintiff’s treating neurologist, Dr. Ferrer, referred plaintiff to Dr. 23 Crimmins for a neuropsychological evaluation. AR 125-31, 566.7 In December 2017, Dr. 24 7 Dr. Ferrer’s referral and summary of Dr. Crimmins’s findings were in the record reviewed by the 25 ALJ. AR 561, 566. Dr. Crimmins’ actual report was not, but Plaintiff submitted the report to the Appeals Council prior to the Appeals Council denying review. AR 2, 125-31. The Appeals 26 Council found that there was not a reasonable probability that the report would have changed the outcome of the decision. AR 2. Accordingly, this Court considers Dr. Crimmins’ report part of 27 the record while reviewing whether the ALJ’s findings are supported by substantial evidence. See 1 Crimmins conducted numerous tests on Plaintiff, and found that Plaintiff’s performance was in the 2 low average range for a simple attention task and in the mild deficit range for a more difficult task 3 of attention/concentration, visual scanning, working memory and mental flexibility. AR 129. Dr. 4 Crimmins also found a mild deficit in Plaintiff’s performance on a more difficult task requiring 5 attention, concentration, and motor speed. AR 129. Her ability to learn and recall a list of 6 unrelated words was in the severe range. AR 129. Her memory for new verbal information in the 7 context of a story was in the low average range, but her ability to recall that information after 30 8 minutes was in the moderate deficit range. AR 129. She also showed mild to severe deficits on 9 visual learning tasks, abstract reasoning tasks, and problem-solving tasks. AR 129. On some 10 other tests of memory and concentration, Plaintiff scored in the average or low average range. AR 11 129. Dr. Crimmins also noted that Plaintiff had “marked difficulty w[ith] comprehension” and 12 repeatedly asked questions about what had just been said or what Plaintiff was supposed to be 13 doing. AR 126. Dr. Crimmins’ found Plaintiff could “track a simple, linear conversation but 14 became notably confused with compound interrogatives.” AR 126. 15 A couple of months later, in February 2018, Dr. Ferrer, filled out a Mental Impairment 16 Questionnaire about Plaintiff. AR 539-44. Dr. Ferrer stated that Plaintiff has impairments in her 17 ability to learn and retain information, and that she may have difficulty achieving higher education 18 or performing a demanding job with significant responsibility. AR 540. Dr. Ferrer opined that 19 Plaintiff was “[l]imited but satisfactory” or “[s]eriously limited” for most areas of mental 20 functioning. AR 541-42. 21 2. Plaintiff’s Testimony 22 In her function report, Plaintiff stated that she is unable to work because of her short-term 23 memory loss, inability to stand or walk long distances due to her knee injuries, and her frequent 24 trips and falls caused by her drop foot. AR 382. She stated that she is able to prepare simple 25 meals that take 15 to 20 minutes to prepare. AR 384. She can dust, vacuum, and clean bathrooms 26 as long as she can do so at her own pace. AR 384. These chores normally take her 15 to 30 27 1 minutes each. AR 384. If they take longer, she usually has to stop and rest her knee. AR 384. 2 She cannot do yard work. AR 385. She can shop for clothes, shoes, personal care, and a short list 3 of groceries once or twice a week for 15 to 20 minutes each time. AR 385. She has trouble 4 keeping track of her finances because of her memory problems. AR 385-86. She checked boxes 5 indicating her conditions affect her ability to lift, squat, bend, stand, walk, kneel, talk, climb stairs, 6 remember things, complete tasks, concentrate, and follow instructions. AR 387. She can walk for 7 a half-mile before needing to rest and stretch for five to 10 minutes. AR 387. She sometimes 8 finishes what she starts, and can follow written instructions pretty well, but has trouble following 9 spoken instructions, although if she takes notes on the instructions, she is usually able to complete 10 the task. AR 387. She does not handle stress well. AR 388. 11 In terms of daily activities, Plaintiff said that she watches tv, researches various issues on 12 the internet, goes to live music events, talks to her friends, and goes to the gym to use the elliptical 13 or recumbent bike. AR 383, 386. Her conditions have affected all of these activities. She no 14 longer watches documentaries because she cannot remember what she learns from them. AR 386. 15 She often researches the same things on the internet because of her memory issues. AR 386. She 16 used to love dancing, but now can only attend live music events if she can sit. AR 386. She has 17 problems with her friends and family because she forgets conversations she had with them. AR 18 387. 19 At the hearing, Plaintiff also testified that she suffered a “weeklong extreme crazy 20 migraine” in 2014, after she moved to California, and that her migraines were now “constant” and 21 getting worse. AR 47, 51, 53, 55. She also said that her right knee and ankle problems made it 22 impossible for her to walk, so she had surgeries on both of them, but her left knee was now also 23 shot from compensating for her right leg problems. AR 48-49. She said that she tried to help her 24 musician boyfriend with his social media, but sometimes she was unable to complete it. AR 54. 25 D. The ALJ’s Decision 26 At step one, the ALJ found that Plaintiff has not engaged in substantial gainful activity 27 since the alleged onset date. AR 18. 1 brain injury, cognitive disorder, foot drop, osteoarthritis, status-post right knee replacement, 2 status-post right tibia and fibula fracture, and migraines. AR 19. 3 At step three, the ALJ found that Plaintiff does not have an impairment or combination of 4 impairments that meet or medically equal the severity of any Listing. AR 19. In particular, the 5 ALJ found that Plaintiff’s impairments do not meet or equal or medically equal the criteria for 6 Listings 1.02 (major dysfunction of a joint), 11.18 (traumatic brain injury), or 12.02 7 (neurocognitive disorders). AR 20. With regard to Listings 11.18 and 12.02, the ALJ considered 8 the “paragraph B” criteria for mental impairments and found that Plaintiff had a mild limitation in 9 understanding, remembering, or applying information, a mild limitation in interacting with others, 10 a moderate limitation in concentrating, persisting, or maintaining pace, and a mild limitation in 11 adapting and managing herself. AR 20-21. 12 At step four, the ALJ found that Plaintiff has the residual functional capacity to: 13 [P]erform light work as defined in 20 CFR 404.1567(b) and 14 416.967(b) except the claimant would be limited to walking and standing a total of four hours in an eight-hour workday; with 15 occasional climbing of ladders, ropes, or scaffolds; and occasional climbing of stairs, crouching, crawling, and balancing. The claimant 16 would be limited to occasional prolonged ambulation and uneven terrain with cane use on the left side. The claimant would be limited 17 to simple, routine tasks; would be off task approximately five percent of the workday; could not perform fast-paced production assembly 18 line type of work; and would be limited to occasional changes in the work setting. The claimant would need reminders two times per week 19 to stay on task. 20 AR 21. In making this assessment, the ALJ did not fully credit Plaintiff’s statements about 21 the intensity, persistence, and limiting effects of her symptoms, finding that they were “not 22 entirely consistent with the medical evidence and other evidence in the record.” AR 22-23. The 23 ALJ gave partial weight to the opinions of the medical consultative examiner, Dr. Benrazavi, and 24 the neuropsychological evaluator, Dr. Duffy, some weight to the opinions in the Mental 25 Impairment Questionnaire filled out by Plaintiff’s treating neurologist, Dr. Ferrer, and little weight 26 to the opinion of the psychological consultative examiner, Dr. Samuelson. AR 26-28. Based on 27 this RFC, and the testimony of a Vocational Expert (“V.E.”) at the hearing, the ALJ found that 1 At step five, based on Plaintiff’s RFC and the V.E.’s testimony, the ALJ found that there 2 are jobs that exist in significant numbers in the national economy that Plaintiff could perform, 3 including Cashier II, Storage Facility Rental Clerk, and Mail Clerk. AR 30-31, 63-64. The ALJ 4 therefore found Plaintiff not disabled. AR 31-32. 5 III. ISSUES FOR REVIEW 6 1. Whether the ALJ erred by failing to provide specific and legitimate reasons for discounting 7 the opinions of examining psychologist Dr. Samuelson and examining neurologist Dr. 8 Duffy. 9 2. Whether the ALJ erred by failing to account for Plaintiff’s migraines in the RFC 10 determination. 11 3. Whether the ALJ erred by failing to provide specific, clear, and convincing reasons for 12 discounting Plaintiff’s subjective symptom testimony. 13 IV. ANALYSIS 14 A. Standard of Review 15 District courts have jurisdiction to review the final decisions of the Commissioner and may 16 affirm, modify, or reverse the Commissioner’s decisions with or without remanding for further 17 hearings. 42 U.S.C. § 405(g); see also 42 U.S.C. § 1383(c)(3). When reviewing the 18 Commissioner’s decision, the Court takes as conclusive any findings of the Commissioner that are 19 free of legal error and supported by “substantial evidence.” 42 U.S.C. § 405(g). Substantial 20 evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a 21 conclusion” and that is based on the entire record. Richardson v. Perales, 402 U.S. 389, 401. 22 (1971). “’Substantial evidence’ means ‘more than a mere scintilla,’ but ‘less than a 23 preponderance.’” Desrosiers v. Sec’y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 24 1988) (internal citation omitted). Even if the Commissioner’s findings are supported by 25 substantial evidence, the decision should be set aside if proper legal standards were not applied 26 when weighing the evidence. Benitez v. Califano, 573 F.2d 653, 655 (9th Cir. 1978) (quoting 27 Flake v. Gardner, 399 F.2d 532, 540 (9th Cir. 1968)). In reviewing the record, the Court must 1 conclusion. Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (citing Jones v. Heckler, 760 2 F.2d 993, 995 (9th Cir. 1985)). 3 B. The ALJ’s Consideration of Medical Opinion Testimony 4 1. Legal Standard 5 The Social Security Act tasks the ALJ with weighing medical testimony and resolving 6 conflicting and ambiguous medical testimony. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 7 1998). The ALJ’s discretion in this area is not entirely unfettered, however. The ALJ is generally 8 required to give more weight to the opinions of physicians that treat the claimant than to the 9 opinions of those who do not. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Likewise, the 10 ALJ generally must give more weight to the opinions of physicians who personally examine the 11 claimant, as compared to those who merely review the claimant’s medical records. Id. 12 This does not mean, however, that the opinion of a treating physician is necessarily 13 conclusive. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). Instead, an ALJ may reject 14 the opinion of a treating physician, even if the physician’s opinion is uncontradicted, if the ALJ 15 provides “clear and convincing” reasons for doing so. Lester, 81 F.3d at 830. If the treating 16 physician’s opinion is contradicted by another doctor, the standard is lowered, and the treating 17 physician’s opinion may be rejected if the ALJ provides “specific and legitimate reasons 18 supported by substantial evidence.” Id. (internal quotation marks omitted). The ALJ meets this 19 burden “by setting out a detailed and thorough summary of the facts and conflicting clinical 20 evidence, stating his interpretation thereof, and making findings.” Reddick, 157 F.3d at 725. 21 “[B]road and vague” reasons do not suffice to meet the specific and legitimate standard. 22 McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989). 23 The same standards apply when the ALJ wishes to reject the opinion of an examining 24 physician. Lester, 81 F.3d at 830-31. A non-examining physician’s opinion alone is insufficient 25 to reject the opinion of an examining or treating physician, though a non-examining physician’s 26 opinion may be persuasive when supported by other factors. Tonapetyan v. Halter, 242 F.3d 27 1144, 1149 (9th Cir. 2001). An ALJ “may reject the opinion of a non-examining physician by 1 (9th Cir. 1998). 2 An opinion that is more consistent with the record as a whole generally carries more 3 persuasiveness. See 20 C.F.R. § 404.1527(c)(4). On the other hand, brief, conclusory, 4 contradictory, or unsupported opinions generally are less persuasive. See Tonapetyan, 242 F.3d at 5 1149 (“When confronted with conflicting medical opinions, an ALJ need not accept a treating 6 physician’s opinion that is conclusory and brief and unsupported by clinical findings.”); Buck v. 7 Berryhill, 869 F.3d 1040, 1050 (9th Cir. 2017) (“A physician’s opinion can be discredited based 8 on contradictions between the opinion and the physician’s own notes.”); but see Nguyen v. Chater, 9 100 F.3d 1462, 1465 (9th Cir.1996) (“Where the purported existence of an inconsistency is 10 squarely contradicted by the record, it may not serve as a basis for the rejection of an examining 11 physician’s conclusions.”). 12 2. Analysis 13 Plaintiff challenges the weight the ALJ assigned to two examining physicians. First, 14 Plaintiff challenges the ALJ’s assignment of “little weight” to Dr. Samuelson, the psychological 15 consultative examiner. Pl.’s Mot. (dkt. 21) at 8-14. Second, Plaintiff challenges the ALJ’s 16 assignment of “partial weight” to the examining neurologist, Dr. Duffy. Pl.’s Mot. at 14. The 17 Court reviews both of these determinations for “specific and legitimate reasons supported by 18 substantial evidence” as both of these opinions were contradicted by the non-examining state 19 agency physicians, who found Plaintiff less impaired. Lester, 81 F.3d at 830-31 (internal 20 quotation marks omitted); see, e.g., AR 139-42. 21 a. Dr. Samuelson 22 Dr. Samuelson performed a psychological consultative examination of Plaintiff in 23 November 2016 and opined that Plaintiff would have marked difficulty with almost every 24 category of work-related functioning, except performing simple and repetitive tasks, where Dr. 25 Samuelson found only a moderate impairment. AR 504-05. Dr. Samuelson’s findings were based 26 on her interview and psychiatric testing of Plaintiff, which showed impaired memory and 27 attention, as well as disinhibited speech, difficulty answering questions, and a propensity to 1 these marked impairments in work-related functioning, Dr. Samuelson concluded that Plaintiff 2 would be unable to work in a normal work setting. AR 505. 3 The ALJ afforded this opinion “little weight” for three reasons: (1) the ALJ found that Dr. 4 Samuelson’s conclusions were inconsistent with Dr. Samuelson’s examination of Plaintiff; (2) the 5 ALJ found that Dr. Samuelson’s conclusions were inconsistent with the normal results from other 6 mental status examinations (“MSEs”) in the record; and (3) the ALJ found that Dr. Samuelson’s 7 conclusions were inconsistent with Plaintiff’s activities of earning an associate degree, completing 8 three years of college toward a bachelor’s degree, working multiple full-time jobs, and moving 9 from Florida to California. AR 27. The Court finds that none of these reasons satisfy the 10 “specific and legitimate reasons supported by substantial evidence” standard. 11 First, the Court disagrees that Dr. Samuelson’s conclusions were inconsistent with her 12 examination of Plaintiff. AR 27. Dr. Samuelson explicitly linked the “marked” impairments she 13 found with relevant findings from her examination (impaired memory and attention, disinhibited 14 speech, distractibility, inability to stay on topic). AR 504-05. The ALJ’s decision does not 15 explain why the examination findings cited by Dr. Samuelson are insufficient to support her 16 findings of marked impairment. Instead, the ALJ simply cites to other parts of the examination 17 that were normal, without any explanation of how those normal findings are inconsistent with the 18 limitations described by Dr. Samuelson. See AR 27 (citing coherent and organized thought 19 processes, relevant and non-delusional thought content, “only mildly impaired memory,”8 and 20 normal concentration). The mere listing of other normal findings is insufficient to discount Dr. 21 Samuelson’s opinion. Willig v. Berryhill, No. 16-CV-03041-MEJ, 2017 WL 2021369, at *5 (N.D. 22 Cal. May 12, 2017) (“The ALJ erred by not explaining how the normal findings were inconsistent 23 with the abnormal findings in light of Plaintiff’s underlying conditions, and how the abnormal 24 findings in and of themselves were insufficient to support Dr. Marinos’ conclusion that Plaintiff 25 8 Dr. Samuelson did not characterize the results of the memory testing as “only mildly impaired” 26 and the ALJ offered no reason for crediting the ALJ’s own interpretation of the severity of memory impairment over the interpretation of Dr. Samuelson, a licensed professional. See 27 Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988) (“The ALJ must do more than offer his 1 had ‘work-preclusive mental limitations.’”); see also Embrey, 849 F.2d at 421 (“To say that 2 medical opinions are not supported by sufficient objective findings or are contrary to the 3 preponderant conclusions mandated by the objective findings does not achieve the level of 4 specificity our prior cases have required, even when the objective factors are listed seriatim.”); 5 Ann Cox v. Colvin, No. 15-CV-00190-JSC, 2015 WL 8596436, at *13 (N.D. Cal. Dec. 14, 2015) 6 (finding the ALJ erred where “not only did the ALJ fail to provide his own interpretation of the 7 evidence, he failed to specifically cite which work-preclusive limitation(s) were contradicted by 8 Dr. Mandelbaum’s observations.”). 9 The Court also finds the ALJ’s citation of normal results on other MSEs in the record 10 insufficient to discount Dr. Samuelson’s opinion. AR 27. The ALJ does not explain which of the 11 normal results on these MSEs contradicts which of the limitations assessed by Dr. Samuelson. See 12 AR 27. As discussed above, Dr. Samuelson’s opinions were based on her findings of impaired 13 memory and attention, disinhibited speech, distractibility, and an inability to stay on topic. AR 14 504-05. The MSEs cited by the ALJ do not contain detailed narrative statements, unlike Dr. 15 Samuelson’s examination, so they do not address the latter three findings. See AR 551, 555, 559, 16 562, 564. The only potentially contradictory findings from the other MSEs, therefore, are the 17 findings of normal attention and “grossly normal” memory. See AR 551, 555, 559, 562, 564. But 18 Plaintiff’s memory and attention problems are well-documented throughout the record. See, e.g., 19 AR 129 (mild deficits on more difficult attention/concentration tasks, moderate deficits in the 20 ability to recall new verbal information, severe deficits in the ability to learn and recall a list of 21 unrelated words); 486 (“In terms of memory and learning, she is showing Below-Average to 22 Significantly Deficient memory.”); 486-87 (Below Average to Moderately Impaired scores on 23 attention and concentration tasks); 516 (2/5 on Memory Test, 4/6 on Attention Test, summarized 24 as “markedly limited short-term memory skills for age and gender which appears to negatively 25 affect ability to live independently as well as to return to work”). 26 In addition, Plaintiff’s treating doctor, Dr. Ferrer, explicitly stated that one of the MSEs 27 cited by the ALJ “may not be adequate to completely assess [Plaintiff’s] cognitive condition.” AR 1 attention problems described above. AR 125-31, 561, 566. And the ALJ herself apparently relied 2 on Dr. Samuelson’s findings of impaired memory and attention in formulating Plaintiff’s RFC. 3 See AR 26 (“Dr. Samuelson’s mental status exam demonstrated some deficit in memory . . . and 4 concentration . . . . These results support the finding that the claimant’s TBI and resulting 5 neurocognitive disorder are severe impairments, and are consistent with the limitations assessed in 6 the above RFC.”). It is unclear how the ALJ could credit Dr. Samuelson’s findings of impaired 7 memory and attention while formulating Plaintiff’s RFC, but then use MSEs that found no 8 memory or attention deficits to discredit Dr. Samuelson’s opinions. See Ann Cox, 2015 WL 9 8596436, at * 17 (“The ALJ cannot reject an opinion only to rely on it later in order to achieve a 10 desired result.”). 11 Lastly, the Court disagrees that Plaintiff’s educational, work, and moving history after her 12 2001 accident undermine Dr. Samuelson’s opinions. AR 27. The Court first notes that all of 13 Plaintiff’s educational and work activities occurred prior to her alleged onset date, some of them 14 well before the onset date. AR 18, 23, 342-43, 367, 483, 501. None of these cited activities is 15 sufficient to discount Dr. Samuelson’s conclusions. 16 Starting with her educational history, the Court notes that Plaintiff obtained her associate 17 degree in 2004, 10 years prior to the onset date, and the Court is unaware of any evidence that she 18 took any classes after 2009, five years prior to the onset date. AR 483. The Court finds Plaintiff’s 19 ability to complete college coursework many years prior to the alleged onset date to contain very 20 little probative value. Moreover, Plaintiff’s educational history actually provides support for Dr. 21 Samuelson’s conclusions of marked limitations. It does not appear that Plaintiff was able to 22 maintain a full college-level course-load: Plaintiff completed a two-year associate degree in four 23 years,9 then managed to complete another year of college courses over the next five years. See AR 24 483-84 (Plaintiff graduated high school in 2000, obtained her associate degree in 2004, took two 25 more semesters of classes after transferring in 2008, and was 32 hours short of a bachelor’s degree 26 9 It is unclear what portion of the associate degree was completed after Plaintiff’s first accident, 27 since Plaintiff graduated high school a year before the accident. AR 484. It is possible that she 1 in 2014). Plaintiff’s post-accident college GPA was significantly lower than her pre-accident high 2 school GPA. AR 126. And Plaintiff said that she had to re-take several classes because of her 3 memory problems. AR 126. The ALJ’s decision provides no analysis to support the conclusion 4 that this level of college coursework is inconsistent with Dr. Samuelson’s findings of marked 5 impairments. 6 The ALJ’s unsupported conclusion is not only in conflict with Dr. Samuelson’s findings, 7 since Dr. Samuelson was well aware of Plaintiff’s educational history, see AR 501, but it is also in 8 conflict with Dr. Duffy’s findings. Dr. Duffy was also aware of Plaintiff’s educational history 9 when he concluded that he did not think Plaintiff was a good candidate for full-time independent 10 employment. AR 483-84, 489. In fact, Dr. Duffy explicitly addressed Plaintiff’s capacity for 11 higher education, finding that “[w]hile her grade equivalencies are generally good enough for her 12 to be able to gain re-entry into college-level courses, she may be expected to learn at a slower than 13 average rate compared to other college students at this point.” AR 486. This conclusion is 14 consistent with her history of completing college-level courses at a slow rate, with the need to re- 15 take several classes. AR 126, 483-84. The ALJ’s decision offers no reason to accept the ALJ’s 16 conclusion that Plaintiff’s educational history is incompatible with marked impairments over the 17 conclusions of two trained professionals. AR 27; See Embrey, 849 F.2d at 421-22 (“The ALJ 18 must do more than offer his conclusions. He must set forth his own interpretations and explain 19 why they, rather than the doctors’, are correct.”). 20 Turning to Plaintiff’s work history in the years leading up to her alleged onset date, 21 Plaintiff testified that she tried to work many jobs but was fired from all of them because of her 22 memory problems. AR 43-47, 483-84, 492. Her difficulty working due to her memory problems 23 is corroborated by letters from her former employers and parents. AR 422-25, 427. The ALJ gave 24 these letters little or partial weight, in part because she found they were contradicted by the fact 25 that Plaintiff had worked at a substantial gainful level for nearly six years total in the thirteen years 26 between her 2001 car accident and her alleged onset date, including one job she worked for nearly 27 two years. AR 29. But the ALJ also found later in the opinion that Plaintiff is no longer able to 1 59-63. This means either Plaintiff was not actually able to perform the demands of the work at the 2 time (as Plaintiff has testified, AR 43-45) or her condition has worsened since then. Either way, if 3 Plaintiff can no longer perform her past relevant work, then the fact that she may have been able 4 perform that work in the past cannot be a basis to discount Dr. Samuelson’s findings of marked 5 impairments at this time. 6 Turning lastly to the fact that Plaintiff moved from Florida to California with her 7 boyfriend, AR 518, the ALJ provides no explanation of what activities Plaintiff performed during 8 this move, or how those activities are inconsistent with Dr. Samuelson’s findings. AR 27. 9 Accordingly, the Court finds this reason, as with the other reasons offered by the ALJ, insufficient 10 to support discounting Dr. Samuelson’s opinions.10 11 b. Dr. Duffy 12 In September 2014, as part of Plaintiff’s attempt to seek vocational rehabilitation, Dr. 13 Duffy performed a neuropsychological evaluation of Plaintiff and found deficits in Plaintiff’s 14 memory, attention, concentration, and ability for abstraction. AR 486-87. Based on this testing, 15 Dr. Duffy found that Plaintiff faced “substantial impediments to employment,” and thought that 16 she would not be a “good candidate for full-time independent employment” because he was “hard- 17 put to think of jobs that would be appropriate for her, given her neurocognitive impairments.” AR 18 488-89. Dr. Duffy also opined that he would be surprised if Plaintiff were not eligible for Social 19 Security Disability benefits, and that if she had to work it would need to be in a setting where “ the 20 pace is slower, tasks are less demanding, there is more routine and supervisors and coworkers who 21 would understand and make allowances for her mistakes.” AR 488-89. 22 The ALJ gave Dr. Duffy’s opinions partial weight. AR 27. The ALJ gave no weight to 23 Dr. Duffy’s opinions regarding whether Plaintiff would be eligible for Social Security Disability 24

25 10 The Commissioner argues that the ALJ’s decision should be upheld because the opinions of other doctors in the record contradict Dr. Samuelson’s opinions. See Def.’s Mot (dkt. 24) at 17- 26 19. The ALJ did not cite these other opinions as a reason to discount Dr. Samuelson’s opinion, so these opinions cannot support the ALJ’s decision. Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 27 1219, 1225 (9th Cir. 2009) (“Long-standing principles of administrative law require us to review 1 benefits, as eligibility for benefits is a question reserved for the Commissioner. AR 27 (citing 20 2 C.F.R. §§ 404.1527(d), 416.927(d)). The ALJ then gave some weight to Dr. Duffy’s opinions 3 about Plaintiff’s limitations because they were “generally” supported by Dr. Duffy’s examination, 4 and were consistent with Plaintiff’s educational, work, and moving history. AR 27. 5 The Court finds the ALJ erred in assessing Dr. Duffy’s opinions. The ALJ is correct that 6 whether the claimant is able to work is a question reserved for the Commissioner, and the ALJ 7 therefore was not bound to accept Dr. Duffy’s opinions about whether Plaintiff could sustain 8 employment or was eligible for benefits. 20 C.F.R. § 404.1527(d). That does not mean, however, 9 that these statements should be simply ignored, because they provide important context for Dr. 10 Duffy’s other opinions. See Hill v. Astrue, 698 F.3d 1153, 1160 (9th Cir. 2012) (finding the ALJ 11 erred in not addressing an examining physician’s opinion that the plaintiff’s “combination of 12 mental and medical problems makes the likelihood of sustained full time competitive employment 13 unlikely” because that statement “was not a conclusory statement . . . but instead an assessment, 14 based on objective medical evidence”). For example, Dr. Duffy’s opinions about whether Plaintiff 15 could perform full-time independent work inform his later statement that, if Plaintiff had to work, 16 it would need to be in a setting with a slower pace, less demanding tasks, more routine, and 17 supervisors and coworkers who would understand and make allowances for her mistakes. AR 18 488-89. The latter statement, in and of itself, does not define how slow the pace would need to be, 19 how demanding the tasks could be, and how much routine, understanding, and allowance for 20 mistakes would be needed. Knowing that Dr. Duffy was “hard-put to think of jobs that would be 21 appropriate for [Plaintiff], given her neurocognitive impairments,” AR 489, sheds light on the 22 degree of limitation that Dr. Duffy found. 23 With that context in mind, the Court finds the ALJ erred by giving Dr. Duffy’s statements 24 about Plaintiff’s limitations “some weight” without giving any explanation for why she did not 25 give those statements full weight and without explaining how the ALJ’s RFC was consistent with 26 those statements. AR 27; Reddick, 157 F.3d at 725 (finding the ALJ meets the specific and 27 legitimate standard “by setting out a detailed and thorough summary of the facts and conflicting 1 clear whether the ALJ accounted for Dr. Duffy’s opinion that Plaintiff would need supervisors and 2 coworkers who would understand and make allowances for her mistakes. AR 489. Nothing in the 3 RFC appears to account for this opinion, and the ALJ offers no explanation for whether she 4 accepted and incorporated this opinion and if so, how, or if not, why not. AR 27. The Court finds 5 this error warrants remand. Reddick, 157 F.3d at 725. 6 C. The ALJ’s Consideration of Plaintiff’s Migraines 7 Plaintiff next challenges the ALJ’s failure to incorporate any limitations in Plaintiff’s RFC 8 related to her migraine headaches. Pl.’s Mot. at 17-20. It appears that although Plaintiff has 9 suffered migraines since her 2001 accident, AR 564, she did not specifically list migraines as a 10 basis for her inability to work in her initial submissions to the Social Security Administration. See 11 AR 354, 382, 403, 416. At the hearing, Plaintiff testified that, in 2014, shortly after she moved to 12 California, she had a terrible migraine that seemed to last for a week, and that since that time, she 13 has been dealing with constant, daily migraines that are getting worse. AR 47, 51, 53, 55. 14 Plaintiff’s medical records show that in September 2017, Plaintiff reported to Dr. Ferrer that she 15 had migraines five to seven days per week but Excedrin was effective in treating them. AR 564. 16 Over the course of the next year, Dr. Ferrer proceeded to try various medications to treat her 17 migraines, which were at times somewhat successful. AR 549, 551, 553, 555, 556, 559, 561, 563, 18 564, 566. 19 The ALJ found that Plaintiff’s migraines were a severe impairment, but then concluded 20 that they “improved with medication.” AR 19, 29. It does not appear as though the ALJ 21 incorporated any migraine-related limitations in Plaintiff’s RFC. See AR 21. After the ALJ’s 22 decision, Plaintiff submitted records to the Appeals Council showing that Plaintiff went to the 23 emergency room in January 2019 complaining of a migraine that had lasted for three days. AR 24 84. She was treated with nonnarcotic medications and, a couple hours later, felt much better and 25 was discharged. AR 87-88. After she continued to have headaches for the next three days, 26 Plaintiff went to see Dr. Ferrer, who prescribed a short course of steroids and Botox injections. 27 1 AR 70-72, 74.11 2 Plaintiff argues that her medical records, including these 2019 records, show that her 3 migraines were “intractable” and not improved by medication, and therefore the ALJ’s failure to 4 account for them in the RFC was error. Pl.’s Mot. at 17-20. The Court, however, finds that the 5 evidence related to Plaintiff’s migraines is ambiguous at best. Plaintiff apparently did not seek 6 any treatment for her migraines until sixteen years after her 2001 accident and she did not initially 7 cite migraines as a basis for her inability to work in her disability application. AR 354, 382, 403, 8 416, 564. Once Plaintiff did seek treatment for her migraines, Dr. Ferrer did at times note a 9 concern that these migraines were “intractable,” AR 551, 563, however, he also noted at various 10 points that the migraines had improved, AR 549, 553, and neither he nor any other doctor 11 identified work-related limitations arising from these migraines, AR 539-44; see also AR 130, 12 488-89, 495, 504-05. While the new records submitted to the Appeals Council show that Plaintiff 13 suffered a migraine in January 2019 that appeared to last almost a week, none of those records 14 indicate that Plaintiff is now likely to continue having such long-lasting migraines. AR 70-72, 74, 15 84, 87-88. Given this ambiguous evidence, the Court cannot say that the ALJ’s determination that 16 Plaintiff’s migraines were improved by medication and did not warrant any limitations in 17 Plaintiff’s RFC was not supported by substantial evidence. Ryan v. Comm’r of Soc. Sec., 528 F.3d 18 1194, 1198 (9th Cir. 2008) (“Where evidence is susceptible to more than one rational 19 interpretation, the ALJ’s decision should be upheld.” (internal quotation marks omitted)). 20 D. The ALJ’s Consideration of Plaintiff’s Subjective Symptom Testimony 21 1. Legal Standard 22 In evaluating the credibility of a claimant’s testimony, the ALJ is required to engage in a 23 two-step analysis. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). First, the ALJ must 24 determine whether the claimant has presented “objective medical evidence of an underlying 25 impairment which could reasonably be expected to produce the pain or other symptoms alleged.” 26

27 11 The Appeals Council considered these records in determining not to review the ALJ’s decision. 1 Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (internal quotation marks and citation 2 omitted). At this step, the claimant is merely required to show that their impairment “could 3 reasonably have caused some degree” of their symptoms. Vasquez, 572 F.3d at 591 (citation 4 omitted). The claimant is not required to demonstrate that their impairment “could reasonably be 5 expected to cause the severity” of the symptoms they allege. Id. 6 Second, if the claimant satisfies the first step and there is no evidence of malingering, the 7 ALJ can only reject the claimant’s testimony about the severity of their symptoms by offering 8 “specific, clear, and convincing reasons for doing so.” Lingenfelter, 504 F.3d at 1036.12 9 “Although the ALJ’s analysis need not be extensive, the ALJ must provide some reasoning in 10 order for [the court] to meaningfully determine whether the ALJ’s conclusions were supported by 11 substantial evidence.” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1103 (9th Cir. 12 2014). These reasons must be “sufficiently specific to permit the court to conclude that the ALJ 13 did not arbitrarily discredit claimant’s testimony.” Thomas v. Barnhart, 278 F.3d 947, 958 (9th 14 Cir. 2002). 15 When weighing a claimant’s credibility, the ALJ may consider the claimant’s “reputation 16 for truthfulness, inconsistencies either in his testimony or between his testimony and his conduct, 17 his daily activities, his work record, and testimony from physicians and third parties concerning 18 the nature, severity, and effect of the symptoms of which he complains.” Light v. Soc. Sec. 19 Admin., 119 F.3d 789, 792 (9th Cir. 1997) (citation omitted). 20 2. Analysis 21 Plaintiff described, in both her function report and her hearing testimony, that she was 22 unable to work due mainly to her short-term memory problems and her inability to stand or walk 23 for long periods of time due to her knee and ankle problems and drop foot. AR 48-55, 382-89. 24 The ALJ summarized this testimony, then concluded that Plaintiff’s medically determinable 25 impairments could reasonably be expected to cause her symptoms, but her statements concerning 26

27 12 The Commissioner states an objection for the record to the Ninth Circuit’s “clear and 1 the intensity, persistence, and limiting effects of her symptoms were “not entirely consistent with 2 the medical evidence and other evidence in the record.” AR 22-23. The ALJ therefore did not 3 incorporate all of Plaintiff’s alleged symptoms into the RFC determination. See AR 21, 29-30. 4 Since the ALJ did not identify any evidence of malingering, the ALJ was required to 5 provide “specific, clear and convincing” reasons to support the decision to discount Plaintiff’s 6 subjective symptom testimony. Lingenfelter, 504 F.3d at 1036. The ALJ’s decision offers three 7 reasons to potentially meet this standard: (1) Plaintiff’s daily activities, including her educational 8 and work history, are inconsistent with her subjective testimony; (2) Plaintiff made inconsistent 9 statements to her treatment providers regarding her alcohol use; and (3) the objective medical 10 evidence in the record does not support Plaintiff’s testimony. AR 25-26, 29-30.13 The Court finds 11 that none of these reasons are sufficient to meet the “specific, clear and convincing” standard. 12 First, the Court disagrees with the ALJ’s conclusion that Plaintiff’s subjective symptom 13 testimony is inconsistent with her testimony regarding her daily activities and educational and 14 work history. See AR 25-26, 20. In addition to her educational and work history, the ALJ cites 15 the following activities as inconsistent with Plaintiff’s subjective testimony:

16 The claimant is independent in her personal hygiene and dressing. The claimant cleans her home “for a couple of hours” every morning. 17 She prepares simple meals. She drives and shops for groceries weekly. She walks for exercise at the park once or twice a week, 18 where she also socializes with friends. She tends a small vegetable garden. She goes to the gym where she rides a recumbent bicycle or 19 uses the elliptical. She is involved in a romantic relationship and will go see her partner, who is a musician, perform. 20 . . . 21 With the help of reminder notes, she is able to manage her own 22 medications. She manages her personal finances and pays her bills. The claimant watches television and uses the computer to do internet 23 research and use email. She admitted that she can follow written 24 13 The Commissioner’s brief states that the ALJ also “explicitly considered . . . that Plaintiff’s 25 regular alcohol and marijuana abuse worsened her cognitive symptoms during portions of the relevant period” in weighing Plaintiff’s testimony. Def.’s Mot. at 23. The only citation provided 26 for this claim is a twelve-page range of the Administrative Record that contains the majority of the ALJ’s decision. See Def.’s Mot. at 23-24 (citing AR 19-30). The Court’s review of the ALJ’s 27 decision does not indicate that the ALJ invoked this as a reason to discredit Plaintiff’s symptoms. instructions and can follow oral instructions if she is allowed to take 1 notes. 2 AR 25-26 (citations omitted). At no point in the decision does the ALJ explain which of 3 these daily activities contradicts which portions of Plaintiff’s testimony or how. See AR 25-26, 4 29-30. This alone is basis for reversal. Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993) (“It’s 5 not sufficient for the ALJ to make only general findings; he must state which [symptom] 6 testimony is not credible and what evidence suggests the complaints are not credible.”). 7 In addition, the Court’s review of the record does not find inconsistencies between 8 Plaintiff’s symptom testimony and her daily activities. The Court has already addressed Plaintiff’s 9 educational and work history, and why that history is not necessarily inconsistent with Plaintiff’s 10 alleged short-term memory problems. See § IV.B.2.a, supra. As for the remaining activities, the 11 ALJ’s decision leaves out several important facts that explain how Plaintiff’s activities are 12 consistent with her symptom testimony. For example, Plaintiff’s function report says that when 13 she cleans, each activity takes her between 15 and 30 minutes, and if they take longer, she has to 14 take a break to rest her knee. AR 384. Likewise, Plaintiff says that she does not cook anything 15 that takes over 15 minutes, because she cannot stand for long periods of time. AR 384. She limits 16 her grocery shopping to a short list that takes 15 to 20 minutes to complete, and she says that using 17 a grocery cart for support helps. AR 385. She drives occasionally, and not for long distances, 18 because her knee and ankle will not allow her to drive long distances. AR 57. While she does 19 walk to the park a couple times a week, she does not walk far because of her leg. AR 53. She 20 socializes with her friends, but often has difficulties with them because she forgets what they told 21 her. AR 53, 387. She can water vegetables on flat ground but cannot do any other work in the 22 garden and she falls down a lot. AR 396-97. She only attends concerts where it is possible to sit 23 down. AR 386. She needs both reminder notes and the assistance of friends or family to 24 remember to take her medications. AR 384. She usually pays her bills late and cannot keep track 25 of what she spends because of her memory problems. AR 385. She often watches reruns on tv 26 and no longer watches documentaries because she cannot remember what she has watched. AR 27 386. She researches issues on the internet, but often researches the same issues repeatedly because 1 Plaintiff’s testimony that she suffers from short-term memory loss and difficulty standing and 2 walking due to her knee, ankle, and foot problems. AR 48-55, 382-89. 3 Second, the Court disagrees with the ALJ’s conclusion that Plaintiff has given “conflicting 4 reports regarding her alcohol use.” AR 26. The ALJ correctly notes that, in September 2014, 5 Plaintiff was wearing an ankle monitor to prevent her from drinking. AR 26, 484. Then, in 6 November 2016, just over two years later, Plaintiff told Dr. Benrazavi that she did not drink, and 7 told Dr. Samuelson that she had been sober for over two years. AR 26, 493, 501. Two months 8 later, in January 2017, Plaintiff told her primary care provider that she drinks five to seven drinks 9 per week. AR 26, 508. Almost two years later, in November 2018, Plaintiff told her doctor that 10 she has two to three drinks per week. AR 26, 690. 11 While these reports indicate varying levels of alcohol consumption over time, none of 12 them are inconsistent with each other. The only two reports that were given at the same time—the 13 reports to Dr. Benrazavi and Dr. Samuelson—were consistent in that they both reported no current 14 alcohol consumption. AR 493, 501. The only report that said anything about her past alcohol 15 consumption, her report to Dr. Samuelson that she had been sober for over two years, was not 16 inconsistent with the fact that, over two years earlier, she was wearing an ankle monitor. AR 484, 17 501. The mere fact that Plaintiff reported different levels of alcohol consumption at different 18 times is not a basis to discount Plaintiff’s testimony. 19 Third, the ALJ cited various medical findings as supposedly inconsistent with Plaintiff’s 20 testimony. AR 29-30. Most of these medical findings pertained to Plaintiff’s physical 21 impairments. The ALJ cited the fact that, after her knee surgery, Plaintiff reported that she was 22 not having episodes of losing her balance and felt comfortable not using a cane. AR 29. The ALJ 23 also cited various normal results on physical exams. AR 29-30.14 But the ALJ did not explain in 24 what way these medical findings were inconsistent with Plaintiff’s testimony, see AR 29-30, and 25 the ALJ had already found elsewhere in the decision that Plaintiff’s knee and ankle injuries 26 14 The ALJ also notes that the objective medical evidence shows that Plaintiff’s migraines 27 improved with medication. AR 29. As discussed above, the Court finds that the ALJ’s decision 1 warranted exertional limitations, postural limitations, and the use of a cane, AR 21, 26. Given the 2 ALJ’s lack of specificity and apparent crediting of some degree of limitation caused by Plaintiff’s 3 knee and ankle injuries, these medical findings do not rise to the level of a “specific, clear and 4 convincing” reason to discount Plaintiff’s testimony. See Dodrill, 12 F.3d at 918 (“It’s not 5 sufficient for the ALJ to make only general findings; he must state which [symptom] testimony is 6 not credible and what evidence suggests the complaints are not credible.”); Bunnell v. Sullivan, 7 947 F.2d 341, 345 (9th Cir. 1991) (“[O]nce the claimant produces objective medical evidence of 8 an underlying impairment, an adjudicator may not reject a claimant’s subjective complaints based 9 solely on a lack of objective medical evidence to fully corroborate the alleged severity of pain.”). 10 All of the ALJ’s stated reasons for discounting Plaintiff’s subjective testimony therefore fail and 11 remand on this basis is warranted. 12 E. Remedy 13 A district court may “affirm, modify, or reverse a decision by the Commissioner ‘with or 14 without remanding the cause for a rehearing.’” Garrison v. Colvin, 759 F.3d 995, 1019 (9th Cir. 15 2014) (quoting 42 U.S.C. § 405(g)) (emphasis omitted). “If additional proceedings can remedy 16 defects in the original administrative proceeding, a social security case should be remanded.” 17 Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981). On the other hand, the court may remand 18 for award of benefits under the “credit as true” rule where: (1) “the ALJ failed to provide legally 19 sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion”; (2) 20 “there are [no] outstanding issues that must be resolved before a disability determination can be 21 made” and “further administrative proceedings would [not] be useful”; and (3) “on the record 22 taken as a whole, there is no doubt as to disability.” Leon v. Berryhill, 880 F.3d 1041, 1045 (9th 23 Cir. 2017) (citations and internal quotation marks omitted); see also Garrison, 759 F.3d at 1021 24 (holding that a district court abused its discretion in declining to apply the “credit as true” rule to 25 an appropriate case). The “credit-as-true” rule does not apply “when the record as a whole creates 26 serious doubt as to whether the claimant is, in fact, disabled within the meaning of the Social 27 Security Act,” Garrison, 759 F.3d at 1021, or when “there is a need to resolve conflicts and 1 Here, the parties agree that if the case is to be remanded, it should be remanded for further 2 || proceedings. Pl.’s Mot. at 22; Def.’s Mot. at 27. The Court will follow the parties’ wishes and 3 || remand for further proceedings. 4 || V. | CONCLUSION 5 For the foregoing reasons, the Court GRANTS Plaintiff's Motion for Summary Judgment, 6 || DENIES the Commissioner’s Motion for Summary Judgment, and REMANDS for further 7 administrative proceedings consistent with this order. 8 IT IS SO ORDERED. 9 Dated: May 17, 2021 CZ 10 J PH C. SPERO 11 hief Magistrate Judge a 12

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