Jenaya B. v. Frank Bisignano, Commissioner of Social Security

• Court: District Court, E.D. Washington
• Decided: March 31, 2026
• Docket: 1:25-cv-03028
• Status: Unknown

Opinion

EASTERN DISTRICT OF WASHINGTON 1 Mar 31, 2026 2 SEAN F. MCAVOY, CLERK 3

4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF WASHINGTON 6 JENAYA B., No. 1:25-CV-03028-JAG 7

8 Plaintiff, ORDER REMANDING FOR FURTHER PROCEEDINGS 9 v. 10 FRANK BISIGNANO, 11 Commissioner of Social Security,1 12 13 Defendant.

15 BEFORE THE COURT is Plaintiff’s Opening Brief, the Commissioner’s 16 Brief in response, and Plaintiff’s Reply Brief. ECF Nos. 13, 17, 18. Attorney 17 Amy Gilbrough represents Jenaya B. (Plaintiff); Special Assistant United States 18 Attorney Melissa Delguercio represents the Commissioner of Social Security 19 (Defendant). The parties have consented to proceed before the undersigned by 20 operation of Local Magistrate Judge Rule (LMJR) 2(b)(2), as no party returned a 21 Declination of Consent Form to the Clerk’s Office by the established deadline. 22 ECF No. 2. After reviewing the administrative record and briefs filed by the 23 parties, the Court GRANTS Plaintiff’s Motion for Summary Judgment; DENIES 24 Defendant’s Motion for Summary Judgment; and the case is REMANDED FOR 25 FURTHER PROCEEDINGS. 26

27 1 Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Frank Bisignano 28 is substituted as the defendant in this suit. See 42 U.S.C. § 405(g). 1 I. JURISDICTION 2 Plaintiff filed an application for Supplemental Security Income on August 2, 3 2016, alleging disability since December 1, 2012. Tr. 15. Plaintiff’s claim was 4 denied initially and on reconsideration, and she requested a hearing before an 5 Administrative Law Judge (ALJ). Tr. 15. A hearing was held on September 13, 6 2019, at which vocational expert Robert Simmons and Plaintiff, who was 7 represented by counsel, testified. Tr. 44-56. A second hearing was held on 8 January 16, 2020, at which medical experts James M Haynes, MD and Faren Ray 9 Atkins, Phd. testified. Tr. 57-84. ALJ Howard Prinsloo presided over both 10 hearings. Tr. 44-56, 57-84. The ALJ denied benefits on March 11, 2020. 11 Tr. 11-37. The Appeals Council denied review. Tr. 2111. Defendant sought 12 review with the district court. Beavert v. Kijakazi, No. 1:20-CV-03180-JTR. On 13 appeal to the district court, the Court granted a stipulated motion for remand. 14 Tr. 2121-2122. The Appeals Council issued an order on October 25, 2021, 15 providing instructions to the ALJ on remand. Tr. 2125-2128. 16 Another hearing was held on April 27, 2023, at which vocational expert 17 Franklin Corbin and Plaintiff, who was represented by counsel, testified. Tr. 2481- 18 2504. A subsequent hearing was also held on April 25, 2024, at which Dr. Tonia 19 Porchia testified briefly. Tr. 2071-2078. Upon realization that the medical records 20 in the file were not complete, the hearing was continued. Tr. 2076-2078. A final 21 hearing was held on September 26, 2024, at which Dr. David Peterson testified and 22 23 Plaintiff amended her application to reflect a closed period ending on December 24 20, 2020. Tr. 2036-2069. ALJ Howard Prinsloo presided over all hearings. The 25 ALJ denied benefits on October 25, 2024. Tr. 1967-1994. The ALJ’s decision 26 became the final decision of the Commissioner, which is appealable to the district 27 court pursuant to 42 U.S.C. § 405(g). Plaintiff filed this action for judicial review 28 on February 21, 2025. ECF No. 1. 1 II. STATEMENT OF FACTS 2 The facts of the case are set forth in detail in the transcript of proceedings 3 and the ALJ’s decision and are only briefly summarized here. Plaintiff was born in 4 2000 and was 16 on the alleged onset date. ECF No. 13 at 2. Plaintiff turned 18 5 during the closed period covered by her application. Id. Therefore, the ALJ 6 considered Plaintiff’s claim under both the child and adult standards. 7 III. STANDARD OF REVIEW 8 The ALJ is responsible for determining credibility, resolving conflicts in 9 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 10 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with 11 deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel, 12 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 13 only if it is not supported by substantial evidence or if it is based on legal error. 14 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 15 defined as being more than a mere scintilla, but less than a preponderance. Id. at 16 1098. Put another way, substantial evidence is such relevant evidence as a 17 reasonable mind might accept as adequate to support a conclusion. Richardson v. 18 Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one 19 rational interpretation, the Court may not substitute its judgment for that of the 20 ALJ. Tackett, 180 F.3d at 1097; Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 21 595, 599 (9th Cir. 1999). If substantial evidence supports the administrative 22 23 findings, or if conflicting evidence supports a finding of either disability or non- 24 disability, the ALJ’s determination is conclusive. Sprague v. Bowen, 812 F.2d 25 1226, 1229-1230 (9th Cir. 1987). Nevertheless, a decision supported by 26 substantial evidence will be set aside if the proper legal standards were not applied 27 in weighing the evidence and making the decision. Brawner v. Secretary of Health 28 and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). 1 IV. SEQUENTIAL EVALUATION PROCESS 2 A. Childhood Disability. 3 The Social Security Act provides that a child under 18 is “disabled” for 4 purposes of SSI eligibility if the child “has a medically determinable physical or 5 mental impairment, which results in marked and severe functional limitations, and 6 which can be expected to result in death or which has lasted or can be expected to 7 last for a continuous period of not less than 12 months.” 42 U.S.C. § 8 1382c(a)(3)(C)(i). The Commissioner follows a three-step sequential process in 9 determining childhood disability: (1) whether the child is engaged in substantial 10 gainful activity; (2) if not, whether the child has a medically determinable severe 11 impairment; (3) and, if so, whether the child’s severe impairment meets, medically 12 equals, or functionally equals the severity of a set of criteria for an impairment 13 listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R. § 416.924. 14 If the Commissioner determines at step three that the claimant has an 15 impairment or combination of impairments that meets or medically equals the 16 severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, 17 Appendix 1, the analysis ends there. If not, the Commissioner decides whether the 18 child’s impairment results in limitations that functionally equal a listing. 20 C.F.R. 19 § 416.926a(a). In determining whether an impairment or combination of 20 impairments functionally equal a listing, the Commissioner assesses the claimant’s 21 functioning in terms of six domains: (1) acquiring and using information; (2) 22 23 attending and completing tasks; (3) interacting and relating with others; (4) moving 24 about and manipulating objects; (5) caring for yourself; and (6) health and physical 25 well-being. 20 C.F.R. § 416.926a(b)(1). 26 When evaluating the ability to function in each domain, the ALJ considers 27 information that will help answer the following questions “about whether your 28 impairment(s) affect your functioning and whether your activities are typical of 1 2 other children your age who do not have impairments”: 3 (i) What activities are you able to perform? 4 (ii) What activities are you not able to perform? 5 (iii) Which of your activities are limited or restricted compared to other children your age who do not have impairments? 6 (iv) Where do you have difficulty with your activities – at home, in 7 childcare, at school, or in the community? 8 (v) Do you have difficulty independently initiating, sustaining, or 9 completing activities? (vi) What kind of help do you need to do your activities, how much help 10 do you need, and how often do you need it? 11 20 C.F.R. § 416.926a(b)(2)(i)-(vi). 12 The evaluation of functional equivalence begins “by considering the child’s 13 functioning without considering the domains or individual impairments.” Title 14 XVI: Determining Childhood Disability Under the Functional Equivalence Rule – 15 The “Whole Child” Approach, SSR 08-1p, 2009 WL 396031 (Feb. 17, 2009). The 16 rules provide that “[w]hen we evaluate your functioning and decide which domains 17 may be affected by your impairment(s), we will look first at your activities and 18 limitations and restrictions.” Id. citing 20 C.F.R. § 416.926a(c). The rules instruct 19 20 the Commissioner to: 21 Look at information we have in your case record about how your functioning is affected during all your activities when we decide 22 whether your impairment or combination of impairments functionally 23 equals the listings. Your activities are everything you do at home, at school, and in your community. 24 Id. citing 20 C.F.R. § 416.926a(b). The severity of limitation in each affected 25 functional domain is then considered. This technique is called the “Whole Child” 26 approach. 27 28 1 B. Adult Disability. 2 With respect to adults, the Commissioner established a five-step sequential 3 evaluation process for determining whether a person is disabled. 20 C.F.R. §§ 4 404.1520(a), 416.920(a); see Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). In 5 steps one through four, the burden of proof rests upon the claimant to establish a 6 prima facie case of entitlement to disability benefits. Tackett, 180 F.3d at 1098-99. 7 This burden is met once a claimant establishes that a physical or mental 8 impairment prevents him from engaging in past relevant work. 20 C.F.R. §§ 9 404.1520(a)(4), 416.920(a)(4). If a claimant cannot do his past relevant work, the 10 ALJ proceeds to step five, and the burden shifts to the Commissioner to show that 11 (1) the claimant can make an adjustment to other work; and (2) the claimant can 12 perform specific jobs that exist in the national economy. Batson v. Comm’r of Soc. 13 Sec. Admin., 359 F.3d 1190, 1193-94 (9th Cir. 2004). If a claimant cannot make 14 an adjustment to other work in the national economy, the claimant will be found 15 disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 16 V. ADMINISTRATIVE FINDINGS 17 On October 25, 2024, the ALJ issued a decision finding Plaintiff was not 18 disabled as defined in the Social Security Act. Tr. 1967-1994. 19 With respect to the childhood standard of disability, the ALJ found at step 20 one that Plaintiff had not engaged in substantial gainful activity since the 21 application date, August 2, 2016. Tr. 1975. At step two, the ALJ determined 22 23 Plaintiff suffered from the following severe impairments: pseudo-seizures, somatic 24 symptom disorder, and adjustment disorder (with anxious and depressive features). 25 Tr. 1975. The ALJ found at step three that the evidence of record demonstrated 26 Plaintiff’s impairments, although severe, did not meet, medically equal, or 27 functionally equal the criteria of any of the listed impairments. Tr. 1976. As to the 28 six domains (functional equivalence), the ALJ concluded Plaintiff had less than a marked limitation in acquiring and using information, less than a marked limitation 1 2 in attending and completing tasks, less than a marked limitation interacting and 3 relating with others, no limitation in moving about and manipulating objects, a less 4 than marked limitation in caring for herself, and a marked limitation in health and 5 physical well-being. Tr. 1987. The ALJ thus determined Plaintiff’s impairments 6 resulted in only one marked limitation and no extreme limitations. Tr. 1987. 7 Because Plaintiff did not have an impairment or combination of impairments that 8 met or medically or functionally equaled the listings, it was determined that 9 Plaintiff was not disabled prior to attaining age 18. Tr. 1987. 10 Plaintiff attained age 18 on May 7, 2018. Tr. 1975. With respect to the 11 adult standard of disability, the ALJ determined Plaintiff did not develop any new 12 impairment or impairments since attaining age 18; she continued to have a severe 13 impairment or combination of impairments but her impairments did not meet or 14 medically equal the severity of one of the listed impairments; she had the residual 15 functional capacity (“RFC”) to perform a full range of work at all exertional levels 16 with the following non-exertional limitations: avoid concentrated exposure to 17 hazards such as use of hazardous machinery or exposure to unprotected heights, 18 and can engage in simple, routine tasks, with no contact with the public; she had no 19 past relevant work; and, based on the testimony of the vocational experts and 20 considering Plaintiff age, education, work experience and RFC, there are jobs that 21 exist in significant numbers in the national economy that Plaintiff can perform, 22 23 including the jobs of routing clerk, collator, hand packager, blender, and garment 24 sorter. Tr. 1987-1993. 25 Accordingly, the ALJ concluded Plaintiff was not under a disability within 26 the meaning of the Social Security Act at any time from the August 2, 2016 27 disability application date, through the closed period, ending December 20, 2020. 28 Tr. 1993. 1 VI. ISSUES 2 The question presented is whether substantial evidence exists to support the 3 ALJ's decision denying benefits and, if so, whether that decision is based on proper 4 legal standards. 5 Plaintiff contends that the ALJ erred by (1) rejecting Dr. Faren Atkins’ 6 opinion based on an absence of psychological treatment; (2) rejecting Dr. Atkins’ 7 opinion based on medical non-compliance; and (3) rejecting Dr. Atkins’ opinion 8 based on generally unremarkable examinations. 9 VII. DISCUSSION 10 The issues raised by Plaintiff are entirely focused on the ALJ’s rejection of 11 Dr. Atkins’ opinion and are not specific to either the childhood disability or adult 12 disability determination but rather apply to both determinations in the same 13 manner. For that reason, the Court will not separately address the child and adult 14 determinations. 15 A. Medical Opinions. 16 Prior to March 27, 2017, the courts distinguished among the opinions of 17 three types of acceptable medical sources: treating physicians, physicians who 18 examine but do not treat the claimant (examining physicians) and those who 19 neither examine nor treat the claimant (non-examining physicians). Lester v. 20 Chater, 81 F.3d 821, 830 (9th Cir. 1996). A treating physician’s opinion carried 21 more weight than an examining physician’s opinion, and an examining physician’s 22 23 opinion was given more weight than that of a non-examining physician. Benecke 24 v. Barnhart, 379 F.3d 587, 592 (9th Cir. 2004); Lester, 81 F.3d at 830. In 25 weighing the medical opinion evidence of record, the ALJ made findings setting 26 forth specific, legitimate reasons for doing so that were based on substantial 27 evidence in the record. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 28 1989). The ALJ was additionally required to set forth the reasoning behind the ALJ’s decisions in a way that allows for meaningful review. Brown-Hunter v. 1 2 Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (finding a clear statement of the 3 agency’s reasoning is necessary because the Court can affirm the ALJ’s decision to 4 deny benefits only on the grounds invoked by the ALJ). “Although the ALJ’s 5 analysis need not be extensive, the ALJ must provide some reasoning in order for 6 us to meaningfully determine whether the ALJ’s conclusions were supported by 7 substantial evidence.” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 8 1103 (9th Cir. 2014). 9 The Commissioner may reject the opinion of a non-examining physician by 10 reference to specific evidence in the medical record. Sousa v. Callahan, 143 F.3d 11 1240, 1244 (9th Cir. 1998). 12 B. Dr. Faren Ray Atkins. 13 Dr. Faren Ray Atkins was one of two Medical Experts that testified at the 14 hearing on January 16, 2020. Tr. 71-82. Dr. Atkins noted that his analysis is the 15 same under both the child and adult listings. Dr. Atkins agreed the seizures were 16 of psychiatric nature. Tr. 74. He opined Plaintiff’s seizures met the childhood 17 listing with marked to extreme limitations in adapting or managing oneself and 18 marked limitations in concentrating, persisting, or maintaining pace. Tr. 74-75. 19 Dr. Atkins testified that the criteria in the childhood and adult listings are the same, 20 so Plaintiff would have met the listing as an adult as well. Tr. 79-80. The ALJ 21 again gave Dr. Atkins’ opinion little weight due to absence of psychological 22 23 treatment, generally unremarkable examinations, and medical noncompliance. 24 Tr. 1978. 25 The Court first notes the ALJ failed to follow the Order of Appeals Council 26 Remanding Case to Administrative Law Judge (the “Remand Order”), in which the 27 Appeals Council found with respect to the ALJ’s first decision from March 11, 28 2020, “substantial evidence does not support the evaluation of Dr. Atkins’ opinion.” Tr. 2125. With regard to the analysis of Dr. Atkins’ opinions and 1 2 findings, the ALJ’s most recent opinion dated October 25, 2024—the opinion at 3 issue here—is strikingly similar to the ALJ’s first decision. In other words, the 4 ALJ’s analysis in the most recent opinion to discount Dr. Atkins’ opinion differs 5 little from the ALJ’s analysis in the 2020 opinion that has already been rejected by 6 the Appeals Council. 7 In the Remand Order, the Appeals Council addressed the ALJ’s rejection of 8 Dr. Atkins’ opinion on the basis Plaintiff did not pursue treatment and normal 9 mental status observations; and found the ALJ failed to develop the record. 10 Tr. 2125-2128. The Remand Order noted that it was not until October 2019 that 11 Plaintiff and her family became aware that her seizures may not be physical in 12 nature, providing rationale for seeking other treatment. Tr. 2126. The Remand 13 Order also noted there was a possibility of cost preclusion that was not further 14 explored. Tr. 2126. The Appeals Council found “the ALJ did not make the 15 findings necessary to reject the claimant’s disability claim on the basis that she did 16 not pursue treatment. In addition, as discussed above, this reasoning would be a 17 problematic basis to reject Dr. Atkins’ opinion.” Tr. 2127. In reviewing the ALJ’s 18 rejection of Dr. Atkins’ testimony based on the mental status exams, the Appeals 19 Council found it was necessary to further develop the record regarding mental 20 status functioning, noting “the current record contains material inconsistences 21 which need to be resolved.” Tr. 2127. 22 23 C. Absence of Psychological Treatment: 24 Plaintiff first argues the ALJ erred in rejecting Dr. Atkins’ opinion based on 25 the absence of psychological treatment. Plaintiff argues that this was an improper 26 basis for discounting Dr. Atkins’ opinion because Plaintiff and her parents were 27 not aware of the necessity for psychological treatment until October 2019. 28 Plaintiff further argues that she did seek psychological treatment after that point, 1 2 but the ALJ further erred when he refused to admit those records into the file. 3 At the September 2024 hearing, Plaintiff’s counsel raised his concern that 4 there were records missing from the consolidated file. Tr. 2055-2061. The ALJ 5 stated it was “unfortunate” and he would take counsel’s concerns “under 6 advisement.” Tr. 2059, 2061. In his decision, the ALJ stated “[t]he undersigned 7 notes that, given the requested closed period ending December 20, 2020, medical 8 records prepared after that date are not relevant to the determination of whether 9 one can establish disability in this case prior to December 20, 2020.” Tr. 1976. 10 Plaintiff contends the missing records show she sought psychological 11 treatment once she knew it was necessary and the ALJ failed to add those records 12 to the file. ECF No. 13 at 10. The ALJ’s statement alone that medical records 13 after the closed period are not relevant is not a sufficient reason for refusing to 14 consider those records. First, Plaintiff’s argument indicates that the records are not 15 entirely outside of the closed period (August 2, 2016-December 20, 2020). At the 16 September 2024 hearing, Plaintiff’s counsel identified records re-electing treatment 17 at Behavioral Health that were not added to the file and raised concerns that other 18 records may not have been added to the file. Tr. 2054-2061. Based on the hearing 19 transcript, it appears those records may include treatment from 2020, which would 20 almost certainly be within the closed period that ends December 20, 2020. 21 Even considering that some of the records are outside of the closed period, 22 23 that is not a sufficient reason to discount the records, much less a reason to refuse 24 to admit them entirely. The Ninth Circuit “has specifically held that medical 25 evaluations made after the expiration of a claimant’s insured status are relevant to 26 an evaluation of the pre-expiration condition.” Lester v. Chater, 81 F.3d 821, 832 27 (9th Cir. 1996). 28 The ALJ erred in finding the records are not relevant. Further, the ALJ had 1 2 a duty to fully develop the record. “Social Security proceedings are inquisitorial 3 rather than adversarial. It is the ALJ's duty to investigate the facts and develop the 4 arguments both for and against granting benefits.” Sims v. Apfiel, 530 U.S. 103, 5 110-11 (2000)). The ALJ failed to meet his obligation to develop the record by 6 ignoring the medical records. 7 Next, in relying on a failure to seek psychological care as a basis to discount 8 Dr. Atkins’ testimony, the ALJ again ignored the Remand Order. The Remand 9 Order specifically noted “it is only at this point (October 2019) that the claimant’s 10 parents first became aware of the possibility that the seizures might not be physical 11 in nature and that there might be a rationale for seeking other treatment.” Tr. 2126. 12 As in the 2020 decision, the ALJ again focused on treatment notes prior to October 13 2019 to establish a failure to seek psychological care. Tr. 1977, 1985-1986. Much 14 of this portion of the decision was the same language/analysis from the 2020 15 decision. Compare Tr. 1986-1987 with Tr. 30-31. This is insufficient, particularly 16 given the refusal of the ALJ to admit the additional treatment notes that may have 17 provided evidence of psychological care. 18 Further, the Remand Order specifically stated “the Administrative Law 19 Judge will consolidate the claims files, associate the evidence, and issue a new 20 decision on the consolidated claims.” Tr. 2128. At the September 2024 hearing, in 21 addition to requesting the new records be added to the file, Plaintiff’s attorney 22 23 raised the concern that the two claims files were not properly consolidated. There 24 was discussion between the ALJ and Plaintiff’s attorney regarding the exhibits and 25 significant confusion about what records were referred to throughout the hearing 26 since the exhibit numbers did not align. The ALJ failed to follow the Remand 27 Order by not fully consolidating the cases and associating the evidence. 28 Regardless of this requirement in the Remand Order, the ALJ erred in failing to fully develop the record and by not ensuring the claims files were properly 1 2 consolidated and all evidence associated. 3 Finally, the ALJ failed to consider why Plaintiff did not seek psychological 4 treatment sooner. Again, the Remand Order addressed this point. “The record 5 further suggests the possibility of cost preclusion (see hearing recording at 6 9:39:15), though this was not further explored.” Tr. 2126. At the January 2020 7 hearing, Plaintiff’s counsel raised the possibility of cost preclusion (“the mother 8 indicated that the child was in mental health counseling for a very brief period 9 because they have private health insurance and did not have the money to continue 10 with it” Tr. 76; “she is on private insurance from her parents…has tried to apply 11 for Washington Apple or the Medicaid here in Washington twice and declined 12 twice because her parents income is too high. And so one of the difficulties of 13 getting care for mental health has been a lack of insurance, and or lack of funds to 14 go to mental health treatment.” Tr. 82-83. 15 The Ninth Circuit has previously addressed this issue, “[d]isability benefits 16 may not be denied because of the claimant's failure to obtain treatment for lack of 17 funds.” Gamble v. Chater, 68 F.3d 319, 321 (9th Cir. 1995). The ALJ failed to 18 explore whether this is a reason Plaintiff did not seek mental health treatment. 19 Plaintiff raised this point in Plaintiff’s Opening Brief (ECF No. 13 at 9) and in 20 response, Defendant frames the issue as Plaintiff’s disagreement “with the ALJ’s 21 reasonable interpretation of the evidence.” ECF No. 17 at 8. The ALJ did not 22 23 address barriers to Plaintiff seeking treatment in his decision, despite the Remand 24 Order pointing to this deficiency (see Tr. 2127) and Plaintiff’s counsel raising the 25 issue at the January 2020 hearing. A failure to address the point entirely is not a 26 reasonable interpretation of the evidence. On this point, the ALJ failed to fully 27 develop the record. 28 The ALJ’s rejection of Dr. Atkins’ testimony on the basis that Plaintiff failed 1 2 to pursue mental health treatment is insufficient and the ALJ did not fully develop 3 the record with respect to Plaintiff’s mental health treatment. On remand, the ALJ 4 shall obtain and consider additional evidence concerning Plaintiff’s impairments in 5 order to complete the administrative record in accordance with the regulatory 6 standards regarding consultative examinations and existing medical evidence. If 7 the ALJ continues to rely on an absence of mental health treatment, the ALJ is 8 further ordered to consider any barriers to treatment that may have prevented 9 Plaintiff from obtaining mental health treatment earlier, including, but not limited 10 to, cost preclusion. 11 D. Medical Non-Compliance. 12 The second reason the ALJ offered for giving little weight to Dr. Atkins’ 13 opinion is Plaintiff’s medical non-compliance in failing to take her seizure 14 medication. The ALJ found “[t]he record also reflects a history of intentional 15 noncompliance with prescribed medication.” Tr. 1985. This reasoning is not 16 supported by the record as there is nothing in the record indicating that if Plaintiff 17 were compliant with prescribed seizure medication her symptoms would have 18 improved. Rather, the medical evidence in the record points to Plaintiff’s seizures 19 being non-epileptic and non-responsive to epilepsy medication. Plaintiff argues 20 “[g]iven that Ms. Beavert was not having epileptic seizures, compliance with 21 seizure medication would have had no effect on Plaintiff’s seizures because they 22 23 are psychogenic, not epileptic.” ECF No. 13 at 13. 24 It is permissible for the ALJ to consider noncompliance with medication, but 25 that is limited to impairments that are responsive to medication. “Impairments that 26 can be controlled effectively with medication are not disabling for the purpose of 27 determining eligibility for SSI benefits.” See, e.g., Brown v. Barnhart, 390 F.3d 28 535, 540 (8th Cir.2004); Lovelace v. Bowen, 813 F.2d 55, 59 (5th Cir.1987); see also Odle v. Heckler, 707 F.2d 439, 440 (9th Cir.1983) (affirming a denial of 1 2 benefits and noting that the claimant's impairments were responsive to medication). 3 Warre v. Comm'r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006). Here, 4 there is no evidence that the medication prescribed for epilepsy had any impact on 5 Plaintiff’s seizures, so it was improper for the ALJ to discount Dr. Atkins’ opinion 6 on the basis that Plaintiff was non-compliant with medication (see Taylor v. 7 Berryhill, 720 F. App'x 906, 907 (9th Cir. 2018) (finding ALJ erred in discrediting 8 claimant’s testimony due to noncompliance with medication when the record does 9 not support a determination that medication noncompliance affected claimant’s 10 symptoms). See also Trevizo v. Berryhill, 871 F.3d 664, 681 (9th Cir. 2017). 11 E. Generally Unremarkable Examinations. 12 The ALJ’s final reason for giving Dr. Atkins’ testimony little weight was 13 Plaintiff’s “generally unremarkable examinations.” Tr. 1978. In reaching this 14 conclusion, the ALJ cited several examination notes indicating Plaintiff had normal 15 affect and “d[id] not document debilitating, ongoing psychological signs or 16 significant mental deficits.” Tr. 1977. Plaintiff argues these findings are irrelevant 17 because Dr. Atkins’ opinion was not based on mental status findings but was based 18 on the interruptions caused by seizures. ECF No. 13 at 14. Defendant argues the 19 ALJ properly discounted Dr. Atkins’ opinion based on objective mental status 20 findings. ECF No. 17 at 12. In her reply, Plaintiff contends “it belie[s] common 21 sense to find Dr. Atkins’ opinion inconsistent with the objective mental status 22 23 findings when his opined limitations were based on Plaintiff’s interruptions from 24 her seizure disorder.” ECF No. 18 at 9. 25 In the Remand Order, the Appeals Council recognized “mental status 26 observations made by medical sources treating the claimant…do not document 27 debilitating, ongoing psychological signs or significant mental 28 deficits…Nonetheless, the record also indicates the claimant experienced seizures.” Tr. 2126-2127. The Appeals Council pointed out the material 1 2 inconsistencies in the record required further consideration and evaluation. 3 Accordingly, the issue here is whether or not the generally unremarkable 4 examinations are relevant to the alleged disability. Seizures are episodic in nature, 5 so it is necessary for the record to be further developed with respect to whether the 6 generally unremarkable examination findings that occurred outside of a seizure 7 episode are relevant to a claimant’s impairments during and after a seizure. In 8 order to resolve the issue, it is necessary for the record to be further developed. On 9 remand, the ALJ shall obtain evidence from a medical expert, preferably a 10 psychologist or a psychiatrist, regarding the relevance of the generally 11 unremarkable exams on the limitations Plaintiff would experience during and after 12 a seizure and how this would have impacted the nature and severity of and 13 functional limitations resulting from Plaintiff’s impairments. 14 The ALJ is further ordered to reconsider Dr. Atkins’ testimony in light of the 15 record as a whole, considering the consistency of Dr. Atkins’ testimony with other 16 medical opinions and taking into consideration the factors required by the 17 regulations. 18 VIII. CONCLUSION 19 “The decision whether to remand a case for additional evidence, or simply to 20 award benefits is within the discretion of the court.” Sprague v. Bowen, 812 F.2d 21 1226, 1232 (9th Cir. 1987) (citing Stone v. Heckler, 761 F.2d 530 (9th Cir. 22 23 1985)). When the Court reverses an ALJ’s decision for error, the Court “ordinarily 24 must remand to the agency for further proceedings.” Leon v. Berryhill, 880 F.3d 25 1041, 1045 (9th Cir. 2017); Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 26 2004) (“the proper course, except in rare circumstances, is to remand to the agency 27 for additional investigation or explanation”); Treichler v. Comm’r of Soc. Sec. 28 Admin., 775 F.3d 1090, 1099 (9th Cir. 2014). However, in a number of Social Security cases, the Ninth Circuit has “stated or implied that it would be an abuse of 1 2 discretion for a district court not to remand for an award of benefits” when three 3 conditions are met. Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014) 4 (citations omitted). Under the credit-as-true rule, where (1) the record has been 5 fully developed and further administrative proceedings would serve no useful 6 purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting 7 evidence, whether claimant testimony or medical opinion; and (3) if the improperly 8 discredited evidence were credited as true, the ALJ would be required to find the 9 claimant disabled on remand, the Court will remand for an award of 10 benefits. Revels v. Berryhill, 874 F.3d 648, 668 (9th Cir. 2017). 11 Plaintiff urges remand for a new hearing to reconsider the opinion of Dr. 12 Atkins and fully develop the record, ECF Nos. 13, 18. In this case, the Court finds 13 that further development is necessary for a proper determination to be made and 14 that it is appropriate that the reconsideration of Plaintiff’s claim be performed by a 15 different ALJ on remand. See Reed v. Massanari, 270 F.3d 838, 845 (9th Cir. 16 2001) (remanding to different ALJ for fair consideration of evidence despite no 17 indication of ALJ bias); Ortiz v. Chater, 1997 WL 50217 at *3 n.1 (E.D. N.Y. 18 1997) (finding that “rather than have the same ALJ review the claims a third time, 19 a fresh look by another ALJ would be beneficial.”). Accordingly, the case is 20 remanded for additional proceedings consistent with this Order. 21 Having reviewed the record and the ALJ's findings, the Court concludes the 22 23 ALJ's decision is not supported by substantial evidence and is based on legal error. 24 Accordingly, IT IS ORDERED: 25 1. Plaintiff’s Motion, ECF No. 13) is GRANTED. 26 2. Defendant’s Motion, ECF No. 17) is DENIED. 27 28 1 3. The Commissioner’s decision is REVERSED and the matter is REMANDED to the Commissioner for additional proceedings consistent with this 3 || Order. 4 4. An application for attorney fees may be filed by separate motion. 5 Judgment shall be entered for PLAINTIFF and the file shall be CLOSED. 6|| The District Court Executive is directed to file this Order and provide a copy to 7|| counsel. Judgment shall be entered for PLAINTIFF and the file shall be CLOSED. ? DATED March 31, 2026.

12 a ylige JAMES A. GOEKE 3 a” UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28