1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MARLOU H., Case No.: 3:24-cv-02118-AHG 12 Plaintiff, ORDER RESOLVING JOINT MOTION FOR JUDICIAL REVIEW 13 v.
14 FRANK BISIGNANO, Commissioner of [ECF No. 24] Social Security,1 15
16 Defendant. 17
18 Plaintiff Marlou H. (“Plaintiff”) filed this action on November 12, 2024, seeking 19 review of the Commissioner of Social Security’s (“Commissioner”) denial of her 20 application for Supplemental Security Income. ECF No. 1. The parties consented to 21 proceed before a Magistrate Judge on November 18, 2024. ECF No. 6; General Order 707 22 (S.D. Cal. Apr. 12, 2019). Pursuant to the Court’s Order, the parties filed a Joint Motion 23 24 25 26 1 Frank Bisignano became the Commissioner of the Social Security Administration on 27 May 7, 2025. Although Plaintiff originally brought this action against Former Commissioner Martin O’Malley, this case may properly proceed against Frank Bisignano 28 1 for Judicial Review (“Joint Motion”) on July 14, 2025. ECF No. 24. The Court has taken 2 the Joint Motion under submission without oral argument. 3 For the reasons set forth below, the Court resolves the Joint Motion in Plaintiff’s 4 favor, REVERSES the Commissioner’s final decision, and REMANDS this action for the 5 calculation and award of benefits. 6 I. PROCEDURAL BACKGROUND 7 On August 10, 2018, Plaintiff filed an application for Supplemental Security 8 Income, alleging disability as of August 1, 2018, due to anxiety, depression, and post- 9 traumatic stress disorder (“PTSD”). AR 198, 221. The application was denied initially and 10 on reconsideration, after which Plaintiff requested a hearing before an administrative law 11 judge (“ALJ”). AR 81–108, 127–28. A hearing was held on October 20, 2020. AR 33–74. 12 On November 19, 2020, the ALJ issued a decision denying Plaintiff’s application. AR 28. 13 The Appeals Council denied Plaintiff’s request for review on July 26, 2021, rendering the 14 ALJ’s decision the final decision of the Commissioner. AR 1, 195–97. 15 Plaintiff timely appealed the Commissioner’s final decision to this Court on 16 September 7, 2021. AR 544-47. On March 22, 2023, the Court found that the ALJ 17 committed reversible error by rejecting Plaintiff’s testimony without providing specific, 18 clear, and convincing reasons and remanded the matter for further administrative 19 proceedings. AR 555-72. 20 While that appeal was pending, Plaintiff filed a subsequent application for 21 Supplemental Security Income on August 5, 2022. AR 579. The State Agency found 22 Plaintiff disabled on the subsequent claim on March 24, 2023. AR 579–85. Following 23 remand in the present matter, the ALJ conducted a hearing on May 14, 2024. AR 490–518. 24 On July 17, 2024, the ALJ issued a decision concluding that Plaintiff was not disabled 25 between August 1, 2018, and August 4, 2022. AR 613. The ALJ decision became the final 26 decision of the Commissioner, and Plaintiff filed this action on November 12, 2024. 27 ECF No. 1. 28 // 1 II. STANDARD OF REVIEW 2 Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the 3 Commissioner’s decision to deny benefits. The Commissioner’s decision will be disturbed 4 only if it is not supported by substantial evidence or if it is based upon the application of 5 improper legal standards. Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010). 6 Substantial evidence means “such relevant evidence as a reasonable mind might 7 accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 8 (2019) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). The 9 standard requires “more than a mere scintilla” of evidence, “but less than a preponderance.” 10 Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) (citation omitted). The standard is 11 “highly deferential.” Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 12 2009). Thus, “‘[w]here evidence is susceptible to more than one rational interpretation,’ 13 the ALJ’s decision should be upheld.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) 14 (quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)). However, the Court “must 15 consider the entire record as a whole, weighing both the evidence that supports and the 16 evidence that detracts from the Commissioner’s conclusion, and may not affirm simply by 17 isolating a specific quantum of supporting evidence.” Garrison v. Colvin, 759 F.3d 995, 18 1009 (9th Cir. 2014) (internal quotation marks omitted). The ALJ is responsible for 19 determining credibility and resolving conflicts in medical testimony and is also responsible 20 for resolving any ambiguities in the record. Magallanes v. Bowen, 881 F.2d 747, 750 (9th 21 Cir. 1989). Further, “[t]he grounds upon which an administrative order must be judged are 22 those upon which the record discloses that its action was based.” SEC v. Chenery Corp., 23 318 U.S. 80, 87 (1943). 24 The Court may also overturn the Commissioner’s denial of benefits if the denial is 25 based on legal error. Garcia v. Comm’r of Soc. Sec., 768 F.3d 925, 929 (9th Cir. 2014). 26 However, even if the Court finds the decision was based on legal error, a court may not 27 reverse an ALJ’s decision if the error is harmless, “which exists when it is clear from the 28 record that the ALJ’s error was inconsequential to the ultimate nondisability 1 determination.” Id. at 932 (internal quotations and citation omitted); see also Burch, 400 2 F.3d at 679 (citation omitted). 3 III. SUMMARY OF ALJ’S FINDINGS 4 An ALJ follows a five-step sequential evaluation process in assessing whether a 5 claimant is disabled. 20 C.F.R. § 416.920; Tackett v. Apfel, 180 F.3d 1094, 1098–99 (9th 6 Cir. 1999). In the first step, an ALJ must determine whether the claimant is currently 7 engaged in substantial gainful activity; if so, the claimant is not disabled and the claim is 8 denied. Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006); see also 20 C.F.R. 9 § 416.920(a)(4). Here, at step one, the ALJ determined that Plaintiff has not engaged in 10 substantial gainful activity since the alleged disability onset date of August 1, 2018. 11 AR 604. 12 At step two, an ALJ must determine whether the claimant has a “severe” impairment 13 or combination of impairments significantly limiting her ability to do basic work activities; 14 if not, a finding of nondisability is made and the claim is denied. Lounsburry, 468 F.3d at 15 1114. Here, at step two, the ALJ determined that Plaintiff has the following severe 16 impairments: depression and PTSD.2 AR 604. 17 At step three, an ALJ must determine whether the impairment or combination of 18 impairments meets or equals an impairment in the Listing of Impairments (“Listings”) set 19 forth at 20 C.F.R. § 404, subpart P, appendix 1; if so, disability is conclusively presumed 20 and benefits are awarded. Lounsburry, 468 F.3d at 1114. Here, the ALJ determined that 21 Plaintiff’s severe impairments, separately or in combination, do not meet or medically 22 equal an impairment in the Listings. AR 605. 23 Between step three and step four, an ALJ must determine the claimant’s residual 24 functional capacity (“RFC”). An RFC is “an assessment of an individual’s ability to do 25
26 27 2 At step two, the ALJ did not include anxiety as a severe impairment, although it had been found severe in the underlying case (No. 21-cv-1574; AR 21). This omission does not 28 1 sustained work-related physical and mental activities in a work setting on a regular and 2 continuing basis[,]” taking into consideration the “functional limitations and restrictions 3 that result from an individual’s medically determinable impairment or combination of 4 impairments, including the impact of any related symptoms.” Soc. Sec. Ruling (“SSR”)3 5 96-8p, 1996 WL 374184, at *1 (S.S.A. July 2, 1996). It reflects the most a claimant can do 6 despite her limitations. See Smolen v. Chater, 80 F.3d 1273, 1291 (9th Cir. 1996). An RFC 7 assessment must include an individual’s functional limitations or restrictions as a result of 8 all of her impairments – even those that are not severe (see 20 C.F.R. § 416.945(a)(1)–(2), 9 (e)) – and must assess her “work-related abilities on a function-by-function basis.” SSR 10 96-8p, 1996 WL 374184, at *1; see also Valentine, 574 F.3d at 690 (“an RFC that fails to 11 take into account a claimant’s limitations is defective”). The RFC determination is an 12 administrative finding reserved to the ALJ. 20 C.F.R. § 416.946(c). It must be based on all 13 of the relevant evidence, including the diagnoses, treatment, observations, and opinions of 14 medical sources, such as treating and examining physicians. 20 C.F.R. § 416.945(a)(3). 15 Here, the ALJ assessed that Plaintiff’s RFC allows her “to perform a full range of 16 work at all exertional levels but with the following nonexertional limitations: 17 understanding, remembering, and carrying out simple, routine, repetitive tasks with breaks 18 every two hours; no interaction with the general public; occasional work-related, non- 19 personal, non-social interaction with co-workers and supervisors involving no more than a 20 brief exchange of information or hand-off of product; cannot perform highly time- 21 pressured tasks; is limited to generally goal-oriented work, not time-sensitive strict 22 production quotas (that is, production rate pace work with strict by the minute or by the 23 hour production quotas that are frequently and/or constantly monitored by supervisors or 24 25 26 3 “SSRs do not have the force of law. However, because they represent the Commissioner’s 27 interpretation of the agency’s regulations, we give them some deference. We will not defer to SSRs if they are inconsistent with the statute or regulations.” Holohan v. Massanari, 246 28 1 that are fast paced); must work in a low-stress environment where there are few workplace 2 changes; minimal decision-making capability such that [the claimant] would be unable to 3 exercise substantial discretion in carrying out work activities.” AR 607. 4 At step four of the disability analysis, if an ALJ determines a claimant has sufficient 5 RFC to perform past relevant work, the claimant is not disabled and the claim is denied. 6 Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). The claimant has the burden of 7 proving that she is unable to perform past relevant work at step four. Id. If the claimant 8 meets this burden, a prima facie case of disability is established. Id. Here, at step four, the 9 ALJ determined that Plaintiff did not have past relevant work. AR 612. 10 At step five, the burden shifts to the ALJ to establish that the claimant is not disabled 11 because there is other work existing in “significant numbers” in the national or regional 12 economy the claimant can do, considering the claimant’s RFC, age, education, and work 13 experience. 20 C.F.R. § 416.960(c)(1), (c)(2); see also 20 C.F.R. § 416.920(g)(1). An ALJ 14 usually meets this burden either (1) by the testimony of a vocational expert who assesses 15 the employment potential of a hypothetical individual with all of the claimant’s physical 16 and mental limitations that are supported by the record, or (2) by reference to the Medical- 17 Vocational Guidelines at 20 C.F.R. part 404, subpart P, appendix 2. Lounsburry, 468 F.3d 18 at 1114–15. Here, at step five, the ALJ found that Plaintiff could perform the occupations 19 of floor waxer (DOT 381.687-034), caretaker (DOT 301.687-010), collator operator (DOT 20 208.685-010), routing clerk (DOT 222.687-022), marker (DOT 209.587-034), and router 21 (DOT 222.587-038), so the ALJ determined that Plaintiff was not disabled. AR 612–13. 22 IV. THE ALJ ERRED IN DISCREDITING PLAINTIFF’S TESTIMONY 23 A. Parties’ Positions 24 Plaintiff contends that the ALJ’s RFC assessment is not supported by substantial 25 evidence because the ALJ—both in the initial decision and on remand—discounted 26 Plaintiff’s subjective symptom testimony without identifying the specific statements at 27 issue or providing clear and convincing reasons for rejecting them. ECF No. 24 at 5, 10– 28 14. Plaintiff further argues that, despite the absence of any medical opinion evidence 1 addressing Plaintiff’s functional limitations, the ALJ nevertheless relied on his own 2 interpretation of the medical record. Id. at 6-9. Plaintiff maintains that these errors were 3 harmful and that remand for an award of benefits is warranted under the credit-as-true 4 doctrine. Id. at 25.4 5 Defendant responds that the ALJ did not err in evaluating Plaintiff’s testimony and 6 contends that the RFC reasonably accounted for Plaintiff’s limitations. Id. at 17–19. 7 Defendant maintains that the ALJ properly relied on Plaintiff’s ability to attend an 8 amusement park and volunteer in a substance abuse program as inconsistent with her 9 allegations. Id. at 20. Defendant further argues that the absence of inpatient psychiatric 10 hospitalizations supports the ALJ’s findings. Id. Alternatively, Defendant asserts that, even 11 if error occurred, remand for an award of benefits would be inappropriate because the 12 record does not establish disability. Id. at 26. 13 For the reasons discussed below, the Court concludes that the ALJ again committed 14 reversible error in evaluating Plaintiff’s subjective symptom testimony. 15 B. Plaintiff’s Subjective Symptom Testimony on Remand 16 The ALJ reviewed Plaintiff’s statements regarding the severity, persistence, and 17 functional impact of her mental health symptoms, as reflected in her Disability Reports and 18 her testimony at the May 14, 2024 hearing on remand. AR 492–518. In her Disability 19 Report dated August 10, 2018, Plaintiff reported that she was unable to work due to anxiety, 20 depression, and PTSD. AR 221. In a subsequent Disability Report dated 21 December 31, 2018, Plaintiff reported worsening symptoms, including problems sleeping, 22 heightened anxiety, and panic attacks accompanied by shortness of breath and chest pain. 23 AR 237. As to daily activities, the report states that “[d]ue to depression and anxiety, 24 personal hygiene can be forgotten. It can take days to be able to take care of those needs. 25
26 27 4 Plaintiff additionally argued in the Joint Motion that the Administrative Record was incomplete. The Commissioner has since filed a supplemental record completing the 28 1 [Plaintiff] doesn’t leave the house much except for doctor appointments. She has trouble 2 focusing or completing tasks such as chores.” AR 241. The report further states that 3 Plaintiff’s condition was worsening, and that she “has crying spells that she can’t control 4 and panic attacks. The attacks cause shortness of breath, chest pain, and insomnia.” 5 AR 242. 6 At the hearing on May 14, 2024, Plaintiff testified that she was unable to work during 7 the relevant period due to PTSD, depression, and anxiety stemming from the murder of her 8 younger brother, who had also been her roommate. AR 500–01. She described 9 experiencing daily crying spells and falling into what she characterized as a “deep, deep 10 depression,” accompanied by difficulty concentrating. AR 501. Following these episodes, 11 Plaintiff testified that she felt weak, hopeless, and emotionally withdrawn, often staring off 12 and isolating herself. AR 505. She further reported persistent symptoms including loss of 13 appetite, insomnia, mistrust of others, and reluctance to leave her home except when 14 necessary. AR 501. Plaintiff testified that her concentration was so limited that she could 15 focus on a television program for only about five minutes before losing focus and hearing 16 things. AR 503–04. She also testified that she takes psychiatric medication and participates 17 in therapy. AR 502, 504. 18 C. Continued Issues in the Evaluation of Plaintiff’s Subjective Symptom Testimony on Remand 19 In the underlying action, the Court explained that an ALJ evaluating subjective 20 symptom testimony must do more than summarize the medical record or cite general 21 findings. Where a claimant describes distinct symptoms—such as anxiety, panic attacks, 22 crying spells, insomnia, and difficulty concentrating—the ALJ must identify the specific 23 testimony being discounted and explain how particular evidence undermines each 24 statement. The Court further explained that isolated activities, temporary improvement, or 25 selective references to treatment records do not satisfy this standard without a clear 26 explanation of how they translate into an ability to sustain employment. 27 28 1 On remand, however, the ALJ did not cure these deficiencies. Rather than applying 2 the Court’s instructions, the remand decision largely repeats the same errors by failing to 3 meaningfully engage with Plaintiff’s specific statements or to provide clear and convincing 4 reasons, supported by substantial evidence, for discounting them. 5 First, the ALJ again treated Plaintiff’s symptom allegations as a single unitary 6 complaint, rather than addressing her distinct statements individually. For example, the 7 ALJ grouped allegations of social anxiety, isolation, and difficulty with concentration 8 together and rejected them collectively based on “routine outpatient mental health 9 treatment” and Plaintiff’s “stable mental state.” AR 610. The decision does not explain 10 how routine outpatient treatment undermines Plaintiff’s testimony that she cannot interact 11 with others, maintain concentration, or function consistently in a work setting. See Lambert 12 v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020) (“[O]ur precedents plainly required the ALJ 13 to do more than was done here, which consisted of offering non-specific conclusions that 14 [Plaintiff’s] testimony was inconsistent with her medical treatment.”). The ALJ also stated 15 that Plaintiff “can perform a significant array of activities of daily living independently 16 demonstrating [her] ability to maintain overall well-being,” while elsewhere noting that 17 Plaintiff reported forgetting personal hygiene and taking days to attend to basic needs due 18 to depression and anxiety. AR 606. The ALJ did not reconcile these points or explain how 19 the cited evidence discounted Plaintiff’s testimony, again failing to link specific evidence 20 to specific statements as required. 21 The ALJ’s review of the July 2018 treatment notes also repeats the prior error. 22 Although the ALJ summarized the treatment notes, he did not identify specific testimony 23 or effectively explain how the cited evidence undermined Plaintiff’s statements. Instead, 24 the ALJ reiterated his prior observation that Plaintiff “reported a positive response to 25 medication for anxiety,” despite the Court’s earlier instruction that the same treatment 26 notes documented ongoing severe symptoms, including flash backs, dissociation, panic 27 attacks, insomnia, gastrointestinal upset, avoidance, and social isolation. AR 24, 284, 608. 28 Merely reciting medical evidence in support of an RFC determination does not constitute 1 specific, clear, and convincing reasons for discounting a claimant’s testimony. See Brown- 2 Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015). 3 The ALJ also again relied on Plaintiff’s report that she attended a single amusement 4 park outing with her daughters. The ALJ stated that this outing “contradicts testimony of 5 rarely being able to leave the home or function,” without explaining how a single, 6 supported family outing undermined Plaintiff’s statements regarding anxiety, panic attacks 7 with shortness of breath and chest pain, crying spells, or insomnia. AR 608. Nor did the 8 ALJ explain how this activity demonstrated an ability to sustain competitive employment. 9 This reasoning is particularly problematic given the Court’s prior instruction identifying 10 the same reasoning as insufficient. 11 As the Court previously explained, participation in a limited activity with family 12 support is not inherently inconsistent with allegations of significant mental health 13 limitations. Characterizing the Six Flags outing as contradictory—without addressing the 14 context of family support, the isolated nature of the activity, or the extensive treatment 15 notes documenting persistent symptoms—amounts to conclusory reasoning that does not 16 satisfy the clear and convincing standard. See Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th 17 Cir. 2014) (“[T]he ALJ can only reject the claimant’s testimony about the severity of the 18 symptoms if [he] gives ‘specific, clear and convincing reasons’ for the rejection.”). Nor 19 does attending an amusement park with family demonstrate “capacities that are transferable 20 to a work setting.” Jacob P. v. Comm’r of Soc. Sec., No. 3:19-cv-06063-JRC, 2020 WL 21 5747813, *4 (W.D. Wash. Sep. 25, 2020); see also Gonzalez v. Sullivan, 914 F.2d 1197, 22 1201 (9th Cir. 1990) (finding error where an ALJ failed to “specifically link the testimony” 23 about the claimant’s daily activities to the conclusion that the claimant’s testimony lacked 24 credibility and made “absolutely no finding to the effect that the ability to perform those 25 daily activities translated into the ability to perform appropriate work”). 26 Elsewhere in the decision, the ALJ similarly relied on Plaintiff’s volunteer activity 27 at an outpatient drug and alcohol treatment program as inconsistent with her testimony. 28 AR 606. The ALJ did not account for the context of this activity. Participation in a 1 volunteer role within a treatment-related program typically involves a structured, 2 supportive, and familiar environment and may be undertaken at an individual’s own pace— 3 conditions not comparable to competitive employment. Such activity does not require 4 regular attendance, adherence to workplace expectations, or ongoing interaction with 5 supervisors and coworkers. 6 One of the few substantive additions the ALJ made in the decision on remand was 7 the assertion that Plaintiff “managed to continue working despite this event until 2017,” 8 referring to the 2000 murder of Plaintiff’s brother and her subsequent PTSD 9 diagnosis. AR 608. This characterization is inaccurate. The Commissioner previously 10 determined that Plaintiff was disabled from February 1, 2006 to June 1, 2007, due to PTSD 11 and major depressive disorder. AR 75. Although Plaintiff returned to work after that period, 12 the record does not reflect continuous employment through 2017. Instead, Plaintiff worked 13 only intermittently in isolated years—2008, 2009, 2015, 2016, and 2017—with multi-year 14 gaps during which she did not work at all. AR 215. The ALJ did not account for these 15 extended periods of non-employment or explain how this disrupted work history 16 undermined Plaintiff’s testimony regarding her ongoing mental health limitations. 17 Finally, the ALJ introduced a new rationale on remand by characterizing Plaintiff’s 18 mental health condition as “stable” based on the absence of psychiatric hospitalization or 19 emergency treatment. AR 610. Although the ALJ acknowledged periods of improvement 20 and exacerbation, he concluded that Plaintiff’s condition was stable because she had no 21 psychiatric emergency room visits, no psychiatric hospitalizations, no suicide attempts, and 22 received routine outpatient treatment. This reasoning is flawed. The absence of psychiatric 23 hospitalization or emergency care is not inconsistent with disabling mental health 24 symptoms, particularly where the record reflects ongoing treatment with psychiatric 25 medication and persistent functional complaints. See Drawn v. Berryhill, 728 F. App'x 637, 26 642 (9th Cir. 2018) (rejecting an ALJ's characterization of treatment as “limited and 27 conservative” where the claimant was prescribed multiple psychiatric medications); Quiroz 28 v. Berryhill, No. 8:16-CV-02127-GJS, 2018 WL 922130, at *7 (C.D. Cal. Feb. 14, 2018) 1 (“Nothing in Social Security jurisprudence requires mentally impaired claimants to be 2 subjected to harsh treatments—whether involuntary psychiatric hospitalizations . . . or 3 other non-routine care—before they can be found to be disabled.”) (internal quotations 4 omitted); Matthews v. Astrue, No. EDCV 11–01075–JEM, 2012 WL 1144423, at *9 (C.D. 5 Cal. April 4, 2012) (“Claimant does not have to undergo inpatient hospitalization to be 6 disabled.”). 7 Accordingly, the ALJ’s decision on remand does not meaningfully apply the 8 standards articulated by the Court. Nor did the ALJ fulfill his duty to further develop the 9 record, as discussed below. 10 D. Record Development on Remand 11 In its remand order, the Court found that the administrative record contained gaps 12 indicating that further proceedings would be useful. The record did not include a medical 13 opinion from an examining source—either a treating physician or a consultative 14 examiner—addressing Plaintiff’s functional limitations. The Court further noted that the 15 absence of such an opinion was significant given that Plaintiff’s alleged impairments were 16 mental rather than physical, rendering professional medical interpretation particularly 17 relevant. Although the record contained extensive treatment notes documenting Plaintiff’s 18 depression and anxiety, it did not include a medical evaluation explaining how those 19 conditions affected Plaintiff’s ability to perform sustained work activity— an omission that 20 was particularly consequential in light of the vocational expert’s testimony that an inability 21 to sustain work would eliminate all jobs in the national economy. 22 In Social Security proceedings, the ALJ has a duty to investigate the facts and 23 develop the arguments both for and against granting benefits. Sims v. Apfel, 530 U.S. 103, 24 110-11 (2000). Despite the Court’s guidance, the record was not further developed to 25 include medical opinion evidence addressing Plaintiff’s functional limitations. Throughout 26 Plaintiff’s disability claim, the record contains two medical opinions, both from non- 27 examining state agency consultants. On October 29, 2018, state agency psychologist Ben 28 G. Kessler, Psy.D., opined that Plaintiff’s mental impairments did not support a finding of 1 disability due to insufficient evidence. AR 85–86. On February 11, 2019, state agency 2 psychologist David Strand, Ph.D., affirmed Dr. Kessler’s assessment and likewise 3 concluded that Plaintiff’s mental impairments were not severe. AR 94–95, 103–05. The 4 ALJ found both opinions unpersuasive. AR 611. The ALJ also acknowledged that the 5 record contained no medical opinions from treating or consultative sources relating to the 6 period in question. AR 611. 7 The hearing transcript on remand further confirms that the ALJ recognized this 8 unresolved evidentiary issue. In an exchange with Plaintiff’s counsel, the ALJ agreed that 9 it was pertinent to understand why Plaintiff was later approved for disability and expressed 10 concern about the inconsistency between prior non-severe findings and the subsequent 11 award. The ALJ further acknowledged that the absence of medical opinion evidence left 12 an open question in evaluating Plaintiff’s mental limitations: 13 Attorney: So, I think the reason why it’s so pertinent to find out about why she was approved is because— 14 ALJ: Yeah, I agree. 15 Attorney: The state agency and at the reconsideration position all found 16 her limitations, her impairments non-severe. 17 ALJ: Right, it’s like it goes from non-severe all the way to being granted, so I’m kind of curious, okay, what happened, what is it that they’re 18 looking at. So, I mean, I’m going to give a full range of mental limitations 19 now but if there’s somebody [who] already adjudicated this case, you know, that’s definitely pertinent to what I’m doing. 20 Attorney: And that’s one of the issues that the District Court judge also 21 had, saying that there was no mental health opinion to kind of furnish these 22 limitations. 23 ALJ: Yeah, so it’s like now I’m—that really poses a question, you know… 24 AR 512–13. 25 Where evidence is ambiguous, or where the ALJ himself recognizes that the record 26 is inadequate to permit proper evaluation, the duty to conduct an appropriate inquiry is 27 triggered. Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001); see also Smolen, 80 28 1 F.3d at 1288 (quoting Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983)); Kohlbatz v. 2 Berryhill, No. EDCV 17-1157 JC, 2018 WL 2059645, at *4 (C.D. Cal. Apr. 30, 2018). As 3 the “final arbiter with respect to resolving ambiguities in the medical evidence,” the ALJ 4 should have taken the additional steps to acquire a medical opinion to inform how 5 Plaintiff’s conditions affect her ability to perform sustained work. Aliza W. v. Saul, No. CV 6 20-09189-JEM, 2021 WL 3190902, at *4 (C.D. Cal. July 28, 2021). The ALJ did not act 7 on this duty. 8 Rather than further developing the record, the ALJ interpreted raw medical data. The 9 ALJ evaluated a record that reflected numerous abnormal mental status findings over 10 several years, including observations of distress, tearfulness, anxiety, tangential, or 11 circumstantial thought processes, and dysphoric affect. See, e.g., AR 283–87, 292–94, 12 299–300, 484, 836, 868. Based on these findings, the ALJ concluded that Plaintiff could 13 not perform highly time-pressured work, was limited to minimal decision-making, could 14 engage in only occasional work-related interaction with coworkers and supervisors, and 15 required a low-stress environment. AR 607. By translating these findings into functional 16 limitations without medical guidance, the ALJ relied on his own lay assessment rather than 17 medical expertise. Courts have repeatedly rejected this approach, holding that an ALJ may 18 not act as his own medical expert. See Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 19 1975) (establishing that an ALJ is not qualified to interpret raw medical data and translate 20 it into functional limitations without the benefit of medical expertise); see also Kohlbatz v. 21 Berryhill, 2018 WL 2059645, at *4–5 (C.D. Cal. Apr. 30, 2018) (an ALJ may not infer 22 functional limitations from raw medical evidence); Miller v. Astrue, 695 F. Supp. 2d 1042, 23 1048 (C.D. Cal. 2010) (an ALJ may not assume the role of a medical expert). 24 In its defense, the Commissioner relies on Gilding v. Kijakazi for the proposition 25 that an RFC assessment is not undermined merely because it does not align with a medical 26 opinion in the record. No. 20-15508, 2023 WL 2535268, at *1 (9th Cir. Mar. 16, 2023). 27 That reliance is misplaced. In Gilding, the Ninth Circuit upheld the ALJ’s RFC because it 28 was supported by substantial evidence, including a medical opinion in the record apart 1 from the opinion the ALJ discounted. Id. (citing Bayliss v. Barnhart, 427 F.3d 1211, 1217 2 (9th Cir. 2005)). Here, by contrast, the ALJ rejected the only medical opinions in the record 3 and formulated the RFC without relying on any medical opinion evidence. 4 The Commissioner similarly relies on Shaibi v. Berryhill for the proposition that an 5 ALJ may translate qualitative limitations into quantitative ones. 883 F.3d 1102, 1106–07 6 (9th Cir. 2017). That reliance is also misplaced. In Shaibi, the ALJ’s translation of 7 limitations was grounded in medical opinion evidence, including examining and reviewing 8 physician opinions and a mental RFC assessment with a “summary conclusions worksheet” 9 that specifically addressed the claimant’s ability to perform multiple mental activities in 10 the workplace. Id. at 1105. Here, by contrast, the ALJ rejected medical opinion evidence, 11 did not rely on a mental RFC assessment, and relied on his own lay interpretation of raw 12 medical evidence. 13 The ALJ had alternatives available to further develop the record. The ALJ could 14 have obtained testimony from a medical expert at the hearing to review the existing record 15 and provide expert interpretation. See 20 C.F.R. § 404.1513a(b)(2); Tonapetyan v. Halter, 16 242 F.3d 1144, 1150–51 (9th Cir. 2001) (approving the use of a medical expert at the 17 hearing and recognizing the ALJ’s duty to fully and fairly develop the record, including in 18 cases involving mental impairments). Alternatively, the ALJ could have remanded the 19 matter to the state agency for reconsideration in light of additional medical evidence. 20 Evidence submitted in connection with the subsequent application may have related to the 21 period at issue here. See 20 C.F.R. § 404.948(c)(1). The ALJ elected not to resolve this 22 ambiguity. As a result, the Commissioner’s denial of disability benefits for this period 23 should be reversed. 24 E. The ALJ’s Errors Were Not Harmless 25 An ALJ’s error is harmless only if it is “inconsequential to the ultimate nondisability 26 determination.” Carmickle v. Comm’r, 533 F.3d 1155, 1162 (9th Cir. 2008). Here, the 27 ALJ’s errors were not harmless because they directly affected the RFC assessment and, in 28 turn, the nondisability determination. 1 The incorporation of certain mental limitations in the RFC—such as no interaction 2 with the general public, only occasional work-related, non-personal, non-social interaction 3 with co-workers and supervisors, and restriction to jobs requiring only minimal decision- 4 making—does not cure the ALJ’s errors. AR 607. Those limitations were formulated 5 without properly crediting Plaintiff’s subjective symptom testimony. If Plaintiff’s 6 testimony is credited as true, the record does not support a finding that she could sustain 7 employment, even with the limitations included in the RFC. 8 At the hearing, the vocational expert testified that an individual who is off task 9 15 percent or more of the workday on a regular and consistent basis would be unable to 10 perform any work in the national economy: 11 Q. If this person were off task 15 percent or more on a regular consistent basis every day, there’d be no more work for this person, right? 12 A. Correct. 13 AR 515. Plaintiff testified that she experiences daily crying spells, significant difficulty 14 concentrating, and an inability to focus for more than approximately five minutes at a time. 15 AR 490–518. This testimony reasonably supports a finding that Plaintiff would be off task 16 at least 15 percent of the workday on a sustained basis. Under the vocational expert’s 17 testimony, such limitations would preclude all work. 18 Accordingly, the ALJ’s errors were consequential to the disability determination and 19 therefore not harmless. The Court addresses the appropriate remedy below. 20 V. THE APPROPRIATE REMEDY 21 The Court applies the “credit-as-true” rule when determining whether a case should 22 be remanded for payment of benefits or for further proceedings. Garrison, 759 F.3d at 23 1019. Under the “credit-as-true” rule, a case may be remanded for an award of benefits 24 where: (1) the record has been fully developed and further administrative proceedings 25 would serve no useful purpose; (2) the ALJ failed to provide legally sufficient reasons for 26 rejecting evidence, whether claimant testimony or medical opinion; and (3) the ALJ would 27 be required to find the claimant disabled on remand if the improperly discredited evidence 28 1 were credited as true. Garrison, 759 F.3d at 1020. Here, each of these factors weighs in 2 favor of a remand for an award of benefits. 3 The first factor weighs in favor of a remand for benefits because, at this stage, the 4 record is sufficiently developed to permit a disability determination, and further 5 administrative proceedings would serve no useful purpose. The Court identified a gap in 6 the record—the absence of an examining medical opinion—and the ALJ did not cure this 7 gap on remand. That omission, however, does not warrant yet another remand where the 8 existing record, once the improperly rejected testimony is credited as true, already 9 establishes disability. The record contains extensive longitudinal treatment evidence 10 documenting Plaintiff’s mental impairments, detailed testimony describing the functional 11 effects of those impairments, and vocational expert testimony establishing that an inability 12 to sustain work would preclude all employment. Thus, the absence of a medical opinion 13 does not create ambiguity requiring additional development where the credited evidence 14 warrants a finding of disability. Under these circumstances, remanding solely to give the 15 Commissioner another opportunity to develop evidence would serve no legitimate purpose. 16 See Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004). 17 The second factor weighs in favor of a remand for benefits because, as discussed 18 above, the ALJ failed to provide legally sufficient reasons for rejecting Plaintiff’s 19 testimony. The third factor likewise weighs in favor of a remand, because if Plaintiff’s 20 testimony concerning the limiting effects of her mental impairments were credited, there 21 would be no jobs available, as confirmed by the vocational expert. The requirement to 22 provide specific, clear and convincing reasons for rejecting a plaintiff’s symptom 23 testimony has been the standard in the Ninth Circuit for decades. See Burrell v. Colvin, 775 24 F.3d 1133, 1136–37 (recounting the history of this requirement). The ALJ’s failure to 25 adhere to this standard warrants reversal, not an additional remand that would amount to a 26 third chance to do what was required after two prior opportunities. Another remand “would 27 create an unfair ‘heads we win; tails, let’s play again’ system of disability benefits 28 | |} adjudication” that is unwarranted in light of the record that already exists with respect to 2 || Plaintiff's claim for benefits. Benecke, 379 F.3d at 595. 3 Therefore, weighing the applicable factors, the Court finds the appropriate remedy 4 to reverse the Commissioner’s decision and remand for an immediate award of benefits. 5 CONCLUSION 6 For the foregoing reasons, the Court finds that the ALJ committed reversible error 7 || by rejecting Plaintiff's testimony without providing specific, clear, and convincing reasons 8 || for doing so. 9 The Court therefore REVERSES the Commissioner’s decision pursuant to 10 U.S.C. § 405(g) and REMANDS this action for the calculation and award of benefits. 11 IT IS SO ORDERED. 12 Dated: February 18, 2026 Honorable Allison H. Goddard 14 United States Magistrate Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28