1 FILED IN THE 2 U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 3 Nov 09, 2023 4 SEAN F. MCAVOY, CLERK 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 10 NICOLE BREANN M., No. 1:23-CV-03063-SAB 11 Plaintiff, 12 v. 13 COMMISSIONER OF SOCIAL ORDER REVERSING THE 14 SECURITY ADMINISTRATION, DECISION OF COMMISSIONER 15 Defendant. 16 17 18 Plaintiff brings this action seeking judicial review of the Commissioner of 19 Social Security’s final decision denying her application for social security benefits. 20 Plaintiff is represented by D. James Tree. The Commissioner is represented by 21 Edmund Jack Darcher, Brian M. Donovan and Ryan Ta Lu. Pending before the 22 Court are Plaintiff’s Opening Brief, ECF No. 8, the Commissioner’s Brief, ECF 23 No. 10, and Plaintiff’s Reply Brief, ECF No. 11. 24 After reviewing the administrative record, briefs filed by the parties, and 25 applicable case law, the Court is fully informed. For the reasons set forth below, 26 the Court reverses the Commissioner’s decision. 27 I. Jurisdiction 28 On April 20, 2020, Plaintiff filed an application for Title XVI application 1 supplemental security income with the onset date of December 8, 2017. She later 2 amended the alleged onset date to April 20, 2020, the filing date. Plaintiff’s 3 application was denied initially and on reconsideration. Plaintiff timely requested a 4 hearing. 5 On December 22, 2021, the ALJ held a telephonic hearing. Plaintiff 6 appeared and testified before an ALJ, with the assistance of her counsel Robert 7 Tree. Jaye Stutz, vocational expert also participated. On January 24, 2022, the ALJ 8 found that Plaintiff was not disabled. 9 Plaintiff requested review by the Appeals Council; the Appeals Council 10 denied the request on March 6, 2023. The Appeals Council’s denial of review 11 makes the ALJ’s decision the “final decision” of the Commissioner of Social 12 Security, which this Court is permitted to review. 42 U.S.C. §§ 405(g), 13 1383(c)(1)(3). 14 Plaintiff filed a timely appeal on May 5, 2023. ECF No. 1. The matter is 15 before this Court pursuant to 42 U.S.C. § 405(g). 16 II. Five-Step Sequential Evaluation Process 17 The Social Security Act defines disability as the “inability to engage in any 18 substantial gainful activity by reason of any medically determinable physical or 19 mental impairment which can be expected to result in death or which has lasted or 20 can be expected to last for a continuous period of not less than twelve months.” 42 21 U.S.C. § 423(d)(1)(A), 1382c(a)(3)(A). A claimant shall be determined to be under 22 a disability only if their impairments are of such severity that the claimant is not 23 only unable to do their previous work, but cannot, considering claimant’s age, 24 education, and work experiences, engage in any other substantial gainful work that 25 exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). The 26 Commissioner has established a five-step sequential evaluation process to 27 determine whether a person is disabled in the statute. See 20 C.F.R. 28 § 404.1520(a)(4)(i)–(v), 416.920(a)(4)(i)–(v). 1 Step One: Is the claimant engaged in substantial gainful activities? Id. 2 § 404.1520(a)(4)(i), 416.920(a)(4)(i). Substantial gainful activity is work done for 3 pay and requires compensation above the statutory minimum. Keyes v. Sullivan, 4 894 F.2d 1053, 1057 (9th Cir. 1990). If the claimant is engaged in substantial 5 activity, benefits are denied. Id. § 404.1520(b), 416.920(b). If the claimant is not, 6 the ALJ proceeds to step two. 7 Step Two: Does the claimant have a medically-severe impairment or 8 combination of impairments? Id. § 404.1520(a)(4)(ii), 416.920(a)(4)(ii). A severe 9 impairment is one that lasted or must be expected to last for at least 12 months and 10 must be proven through objective medical evidence. Id. §§ 404.1509, 416.909. If 11 the claimant does not have a severe impairment or combination of impairments, the 12 disability claim is denied. Id. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the 13 impairment is severe, the evaluation proceeds to the third step. 14 Step Three: Does the claimant’s impairment meet or equal one of the listed 15 impairments acknowledged by the Commissioner to be so severe as to preclude 16 substantial gainful activity? Id. § 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the 17 impairment meets or equals one of the listed impairments, the claimant is 18 conclusively presumed to be disabled. Id. § 404.1520(d), 416.920(d). If the 19 impairment is not one conclusively presumed to be disabling, the evaluation 20 proceeds to the fourth step. 21 Before proceeding to the fourth step, the ALJ must first determine the 22 claimant’s residual functional capacity (RFC). An individual’s residual functional 23 capacity is their ability to do physical and mental work activities on a sustained 24 basis despite limitations from their impairments. Id. § 404.1545(a)(1), 25 416.945(a)(1). The RFC is relevant to both the fourth and fifth steps of the 26 analysis. 27 Step Four: Does the impairment prevent the claimant from performing work 28 they have performed in the past? Id. § 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the 1 claimant is able to perform their previous work, they are not disabled. Id. 2 § 404.1520(f), 416.920(f). If the claimant cannot perform this work, the evaluation 3 proceeds to the fifth and final step. 4 Step Five: Is the claimant able to perform other work in the national 5 economy in view of their age, education, and work experience? Id. 6 § 404.1520(a)(4)(v), 416.920(a)(4)(v). The initial burden of proof rests upon the 7 claimant to establish a prima facie case of entitlement to disability benefits. Tackett 8 v. Apfel, 108 F.3d 1094, 1098 (9th Cir. 1999). This burden is met once a claimant 9 establishes that a physical or mental impairment prevents him from engaging in her 10 previous occupation. Id. At step five, the burden shifts to the Commissioner to 11 show that the claimant can perform other substantial gainful activity. Id. 12 III. Standard of Review 13 The Commissioner’s determination will be set aside only when the ALJ’s 14 findings are based on legal error or are not supported by substantial evidence in the 15 record as a whole. Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992) (citing 16 42 U.S.C. § 405(g)). Substantial evidence is “more than a mere scintilla,” 17 Richardson v. Perales, 402 U.S. 389, 401 (1971), but “less than a preponderance,” 18 Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975). Substantial 19 evidence is “such relevant evidence as a reasonable mind might accept as adequate 20 to support a conclusion.” Richardson, 402 U.S. at 401. 21 A decision supported by substantial evidence will be set aside if the proper 22 legal standards were not applied in weighing the evidence and making the decision. 23 Brawner v. Secr’y of Health & Human Servs., 839 F.2d 432, 433 (9th Cir. 1988).
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1 FILED IN THE 2 U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 3 Nov 09, 2023 4 SEAN F. MCAVOY, CLERK 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 10 NICOLE BREANN M., No. 1:23-CV-03063-SAB 11 Plaintiff, 12 v. 13 COMMISSIONER OF SOCIAL ORDER REVERSING THE 14 SECURITY ADMINISTRATION, DECISION OF COMMISSIONER 15 Defendant. 16 17 18 Plaintiff brings this action seeking judicial review of the Commissioner of 19 Social Security’s final decision denying her application for social security benefits. 20 Plaintiff is represented by D. James Tree. The Commissioner is represented by 21 Edmund Jack Darcher, Brian M. Donovan and Ryan Ta Lu. Pending before the 22 Court are Plaintiff’s Opening Brief, ECF No. 8, the Commissioner’s Brief, ECF 23 No. 10, and Plaintiff’s Reply Brief, ECF No. 11. 24 After reviewing the administrative record, briefs filed by the parties, and 25 applicable case law, the Court is fully informed. For the reasons set forth below, 26 the Court reverses the Commissioner’s decision. 27 I. Jurisdiction 28 On April 20, 2020, Plaintiff filed an application for Title XVI application 1 supplemental security income with the onset date of December 8, 2017. She later 2 amended the alleged onset date to April 20, 2020, the filing date. Plaintiff’s 3 application was denied initially and on reconsideration. Plaintiff timely requested a 4 hearing. 5 On December 22, 2021, the ALJ held a telephonic hearing. Plaintiff 6 appeared and testified before an ALJ, with the assistance of her counsel Robert 7 Tree. Jaye Stutz, vocational expert also participated. On January 24, 2022, the ALJ 8 found that Plaintiff was not disabled. 9 Plaintiff requested review by the Appeals Council; the Appeals Council 10 denied the request on March 6, 2023. The Appeals Council’s denial of review 11 makes the ALJ’s decision the “final decision” of the Commissioner of Social 12 Security, which this Court is permitted to review. 42 U.S.C. §§ 405(g), 13 1383(c)(1)(3). 14 Plaintiff filed a timely appeal on May 5, 2023. ECF No. 1. The matter is 15 before this Court pursuant to 42 U.S.C. § 405(g). 16 II. Five-Step Sequential Evaluation Process 17 The Social Security Act defines disability as the “inability to engage in any 18 substantial gainful activity by reason of any medically determinable physical or 19 mental impairment which can be expected to result in death or which has lasted or 20 can be expected to last for a continuous period of not less than twelve months.” 42 21 U.S.C. § 423(d)(1)(A), 1382c(a)(3)(A). A claimant shall be determined to be under 22 a disability only if their impairments are of such severity that the claimant is not 23 only unable to do their previous work, but cannot, considering claimant’s age, 24 education, and work experiences, engage in any other substantial gainful work that 25 exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). The 26 Commissioner has established a five-step sequential evaluation process to 27 determine whether a person is disabled in the statute. See 20 C.F.R. 28 § 404.1520(a)(4)(i)–(v), 416.920(a)(4)(i)–(v). 1 Step One: Is the claimant engaged in substantial gainful activities? Id. 2 § 404.1520(a)(4)(i), 416.920(a)(4)(i). Substantial gainful activity is work done for 3 pay and requires compensation above the statutory minimum. Keyes v. Sullivan, 4 894 F.2d 1053, 1057 (9th Cir. 1990). If the claimant is engaged in substantial 5 activity, benefits are denied. Id. § 404.1520(b), 416.920(b). If the claimant is not, 6 the ALJ proceeds to step two. 7 Step Two: Does the claimant have a medically-severe impairment or 8 combination of impairments? Id. § 404.1520(a)(4)(ii), 416.920(a)(4)(ii). A severe 9 impairment is one that lasted or must be expected to last for at least 12 months and 10 must be proven through objective medical evidence. Id. §§ 404.1509, 416.909. If 11 the claimant does not have a severe impairment or combination of impairments, the 12 disability claim is denied. Id. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the 13 impairment is severe, the evaluation proceeds to the third step. 14 Step Three: Does the claimant’s impairment meet or equal one of the listed 15 impairments acknowledged by the Commissioner to be so severe as to preclude 16 substantial gainful activity? Id. § 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the 17 impairment meets or equals one of the listed impairments, the claimant is 18 conclusively presumed to be disabled. Id. § 404.1520(d), 416.920(d). If the 19 impairment is not one conclusively presumed to be disabling, the evaluation 20 proceeds to the fourth step. 21 Before proceeding to the fourth step, the ALJ must first determine the 22 claimant’s residual functional capacity (RFC). An individual’s residual functional 23 capacity is their ability to do physical and mental work activities on a sustained 24 basis despite limitations from their impairments. Id. § 404.1545(a)(1), 25 416.945(a)(1). The RFC is relevant to both the fourth and fifth steps of the 26 analysis. 27 Step Four: Does the impairment prevent the claimant from performing work 28 they have performed in the past? Id. § 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the 1 claimant is able to perform their previous work, they are not disabled. Id. 2 § 404.1520(f), 416.920(f). If the claimant cannot perform this work, the evaluation 3 proceeds to the fifth and final step. 4 Step Five: Is the claimant able to perform other work in the national 5 economy in view of their age, education, and work experience? Id. 6 § 404.1520(a)(4)(v), 416.920(a)(4)(v). The initial burden of proof rests upon the 7 claimant to establish a prima facie case of entitlement to disability benefits. Tackett 8 v. Apfel, 108 F.3d 1094, 1098 (9th Cir. 1999). This burden is met once a claimant 9 establishes that a physical or mental impairment prevents him from engaging in her 10 previous occupation. Id. At step five, the burden shifts to the Commissioner to 11 show that the claimant can perform other substantial gainful activity. Id. 12 III. Standard of Review 13 The Commissioner’s determination will be set aside only when the ALJ’s 14 findings are based on legal error or are not supported by substantial evidence in the 15 record as a whole. Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992) (citing 16 42 U.S.C. § 405(g)). Substantial evidence is “more than a mere scintilla,” 17 Richardson v. Perales, 402 U.S. 389, 401 (1971), but “less than a preponderance,” 18 Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975). Substantial 19 evidence is “such relevant evidence as a reasonable mind might accept as adequate 20 to support a conclusion.” Richardson, 402 U.S. at 401. 21 A decision supported by substantial evidence will be set aside if the proper 22 legal standards were not applied in weighing the evidence and making the decision. 23 Brawner v. Secr’y of Health & Human Servs., 839 F.2d 432, 433 (9th Cir. 1988). 24 An ALJ is allowed “inconsequential” errors as long as they are immaterial to the 25 ultimate nondisability determination. Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 26 1050, 1055 (9th Cir. 2006). The court must uphold the ALJ’s denial of benefits if 27 the evidence is susceptible to more than one rational interpretation, one of which 28 supports the decision of the administrative law judge. Batson v. Barnhart, 359 F.3d 1 1190, 1193 (9th Cir. 2004). It “must consider the entire record as a whole, 2 weighing both the evidence that supports and the evidence that detracts from the 3 Commissioner’s conclusion, and may not affirm simply by isolating a specific 4 quantum of supporting evidence.” Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 5 2017) (quotation omitted). “If the evidence can support either outcome, the court 6 may not substitute its judgment for that of the ALJ.” Matney, 981 F.2d at 1019. 7 IV. Statement of Facts 8 The facts have been presented in the administrative record, the ALJ’s 9 decision, and the briefs to this Court. Only the most relevant facts are summarized 10 here. 11 At the time of the hearing, Plaintiff was 30 years old. She earned a GED and 12 has taken some online college classes, but at the time of the hearing, she was on 13 academic probation. She indicates that she is unable to engage in fulltime work due 14 to her mental impairments. She has experienced severe depression since age 13. 15 She has a history of self-harm and started cutting at age 14. She has attempted 16 suicide a number of times. 17 Plaintiff suffers from depression and anxiety and has been diagnosed with 18 bipolar disorder. She also experiences mood swings and irritability. On her bad 19 days, she describes that it feels like there is somebody inside her head who is 20 pacing back and forth, and she can’t get the person to stop. Other days, she can 21 play video games, which helps shut down her brain. She testified that she averages 22 about one good day a week, and spends the other days in bed, unable to cope. Most 23 days, she is unable to leave the house. She mostly shops for groceries online and 24 has them delivered. 25 Plaintiff has a sporadic work history. Initially, she is excited about her new 26 job, but then within a week, her anxiety and depression increases, and she ends up 27 quitting. Her longest job lasted six months. Plaintiff received pandemic 28 unemployment benefits. During that time, she applied to numerous jobs but was 1 never hired. 2 At the time of the hearing, Plaintiff’s children were 8 and 11. Her husband 3 and her parents assist with their care. 4 V. The ALJ’s Findings 5 The ALJ issued an opinion affirming denial of benefits. AR 15-27. At step 6 one, the ALJ found that Plaintiff had not engaged in substantial gainful activity 7 since April 20, 2020, the application date and the amended onset date, but noted 8 that she did receive unemployment benefits after the alleged onset date. AR 17. 9 At step two, the ALJ identified the following severe impairments: bipolar 10 disorder; depression; anxiety; attention deficit hyperactivity disorder (ADHD); 11 post-traumatic stress disorder. AR 17. 12 At step three, the ALJ found that Plaintiff did not have an impairment or 13 combination of impairments that meets or medically equals the severity of one of 14 the listed impairments. AR 18. 15 At step four, the ALJ concluded that Plaintiff has an RFC to perform:
16 a full range of work at all exertional levels but with the following non- 17 exertional limitations: can understand, remember, and carry out simple instructions and exercise simple workplace judgment; can 18 perform work that is learned by on the job training beyond a short 19 demonstration lasting up to and including one month; can respond appropriately to supervision; can have occasional interaction with 20 coworkers; can deal with occasional changes in the work 21 environment; and can work in jobs that require no interaction with the public to perform the work tasks (does not preclude working 22 environment where public is present). 23 AR 19. 24 At step five, the ALJ found that Plaintiff was capable of performing 25 representative work such as hand packager; cleaner, lab equipment; and laundry 26 worker II. AR 26. The ALJ found that Plaintiff was not disabled since April 20, 27 2020. AR 27. 28 // 1 VI. Issues 2 1. Whether the ALJ properly evaluated Plaintiff’s subjective 3 complaints. 4 2. Whether the ALJ properly evaluated the medical opinion evidence. 5 VII. Discussion 6 A. Plaintiff’s Subjective Testimony 7 Plaintiff argues the ALJ failed to provide specific, clear, and convincing 8 reasons for discounting her subjective symptom testimony. 9 In determining whether a claimant’s testimony regarding subjective pain or 10 symptoms is credible, the ALJ engages in a two-step analysis. Garrison v. Colvin, 11 759 F.3d 995, 1014 (9th Cir. 2014). “First, the ALJ must determine whether the 12 claimant has presented objective medical evidence of an underlying impairment 13 which could reasonably be expected to produce the pain or other symptoms 14 alleged.” Id. (citation and quotation omitted). If the claimant satisfies the first step 15 of the analysis, and there is no evidence of malingering, the ALJ can reject the 16 claimant’s testimony about the severity of their symptoms “only by offering 17 specific, clear and convincing reasons for doing so.” Id. (citation and quotation 18 omitted). “This is not an easy requirement to meet: The clear and convincing 19 standard is the most demanding required in Social Security cases.” Id. (citation and 20 quotation omitted). That said, if the ALJ’s credibility finding is supported by 21 substantial evidence in the record, the Court may not engage in second-guessing. 22 Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). 23 The ALJ found the medical evidence did not substantiate Plaintiff’s 24 allegations of disabling symptoms and limitations and that Plaintiff provided 25 exaggerated or inconsistent information. The ALJ concluded that Plaintiff was able 26 to independently meet her own personal needs, perform some household chores 27 and care for her children. The ALJ concluded that Plaintiff’s activities of daily 28 living served as evidence that she was capable of managing herself in order to take 1 part in a relatively normal daily or weekly routine. 2 The ALJ failed to provide convincing reasons for rejecting Plaintiff’s 3 symptom testimony. First, the ALJ erred in concluding that the medical evidence 4 does not substantiate her allegations’ of disabling symptoms or limitations. Not 5 only is this not true, but the Social Security Regulations state that the ALJ’s 6 credibility determination cannot be premised wholly on a lack of medical support 7 for the severity of their symptoms. See SSR 16-3p; Light v. Soc. Sec. Admin. 119 8 F.3d 789, 792 (9th Cir. 1997). Here, the medical records support that Plaintiff 9 suffers from anxiety and depression that interfere with her ability to work. 10 Second, the ALJ relied on her therapist’s recommendation that Plaintiff 11 exercise, get outside, watch TV and play video games to find that Plaintiff’s 12 symptom testimony was not credible. The ALJ erred in doing so, and seemingly 13 failed to appreciate the difference between recommendations and what Plaintiff 14 was actually capable of doing. Also, as Plaintiff explained at the hearing, on bad 15 days, she cannot play video games, but on some days, playing video games calms 16 her brain and minimizes the feeling that a person is pacing back and forth in her 17 head. This is not convincing evidence that Plaintiff is not being credible regarding 18 her symptom testimony. 19 Third, the ALJ rejected Plaintiff’s testimony regarding her symptoms 20 because her daily activities are not limited to the extent one would expect. This is 21 not a convincing reason because it is not true. While Plaintiff has children, she 22 testified that her husband, her parents, and others helped her care for them. The 23 record suggests that while Plaintiff may get her children off to school and performs 24 some household chores, many times she spends the rest of the day in bed due to 25 depression, which would not support full-time work. The record also demonstrates 26 that while Plaintiff has been able to take college classes, her progress is slow and at 27 the time of the hearing she was on academic probation. Thus, the fact that she has 28 engaged in online classes is not a convincing reason to reject her testimony. 1 Finally, the ALJ erred to finding that Plaintiff’s sporadic work history 2 suggests that her failure to engage in full time work was not entirely related to her 3 impairments. This is not convincing because, as Plaintiff’s testified, she has a 4 pattern of starting a job, feeling excited, but then due to her depression and anxiety, 5 she is unable to continue to work. On the contrary, substantial evidence supports 6 that Plaintiff’s long-standing mental impairments interfere with her ability to 7 maintain employment. While the ALJ pointed to Plaintiff’s receipt of pandemic- 8 associated unemployment benefits to find she was not credible, there is nothing in 9 the record to indicate whether she could perform full-time or only part-time work. 10 See Carmickle v. Commissioner, 533 F.3d 1155, 1161-62 (9th Cir. 2008). 11 The ALJ erred by failing to provide clear and convincing reasons for 12 rejecting her symptom testimony. 13 B. Evaluation of the Medical Opinions 14 The ALJ rejected the medical opinion of consultative examiner Kathryn 15 Johnson, Ph.D. The ALJ concluded that Dr. Johnson’s opinion finding marked 16 limitations were not supported by Dr. Johnson’s mental status examination, which 17 was within normal limits. The ALJ found that Dr. Johnson did not explain her 18 opinion, did not provide adequate functional limitations, and relied heavily on the 19 subjective report of symptoms and limitations provided by Plaintiff, which the ALJ 20 concluded were not entirely reliable. The ALJ concluded that Dr. Johnson’s 21 opinions were inconsistent with the medical evidence of record. 22 In evaluating medical opinion evidence, the ALJ considers the 23 persuasiveness of each medical opinion and prior administrative medical finding 24 from medical sources. 20 C.F.R. § 416.920c(a) and (b). The ALJ is required to 25 consider multiple factors, including supportability, consistency, the source’s 26 relationship with the claimant, any specialization of the source, and other factors 27 (such as the source’s familiarity with other evidence in the file or an understanding 28 of Social Security's disability program). 20 C.F.R. § 416.920c(c)(1)-(5). 1 Supportability and consistency of an opinion are the most important factors, 2 and the ALJ must articulate how they considered those factors in determining the 3 persuasiveness of each medical opinion or prior administrative medical finding. 20 4 C.F.R. § 416.920c(b)(2). The ALJ may explain how they considered the other 5 factors, but is not required to do so, except in cases where two or more opinions 6 are equally well-supported and consistent with the record. Id. 7 Supportability and consistency are further explained in the regulations: 8 (1) Supportability. 9 The more relevant the objective medical evidence and supporting explanations presented by a medical source are to support 10 his or her medical opinion(s) or prior administrative medical 11 finding(s), the more persuasive the medical opinions or prior administrative medical finding(s) will be. 12 (2) Consistency. 13 The more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other 14 medical sources and nonmedical sources in the claim, the more 15 persuasive the medical opinion(s) or prior administrative medical finding(s) will be. 16 Id. 17 Plaintiff argues the ALJ reversibly erred by improperly rejecting Dr. 18 Johnson’s opinion. The Court agrees. The ALJ ignored the fact that Dr. Johnson 19 diagnosed Plaintiff with Bipolar II disorder and Unspecified Anxiety Disorder, and 20 failed to appreciate that mental health issues commonly wax and wane. The ALJ 21 also failed to appreciate that Dr. Johnson’s conclusions were based on 22 observations, diagnoses, and prescriptions, in addition to Plaintiff’s self-reports. 23 The ALJ also failed to identify any longitudinal evidence that contracted Dr. 24 Johnson’s assessment or undermined her conclusions. Given that the ALJ erred in 25 finding that Plaintiff was not credible, the ALJ erred in relying on the fact that Dr. 26 Johnson relied, in part, on Plaintiff’s self-reporting to find that Dr. Johnson’s 27 opinion was not supported or consistent with the record. 28 1 The record does not support a finding that Dr. Johnson’s opinion was inconsistent with the notes of Plaintiff's therapist, Ms. Lopaze. While the notes 3|| indicated some improvement with medication and therapy, Ms. Lopaze’s notes failed to support any conclusion that Plaintiff had improved to the point of being 5|| able to work. Substantial evidenced does not support the ALJ’s conclusion that Dr. Johnson’s opinion was not consistent with nor supported by the record. 8 VII. Conclusion 9 Once the improperly rejected evidence is considered, it is clear that Plaintiff disabled because she is incapable of working on a regular and continuing basis. As such, a remand for an immediate award of benefits is appropriate. 12 Accordingly, IT IS HEREBY ORDERED: 13 1. For docket purposes, Plaintiff's Opening Brief, ECF No. 8 and Reply Brief, ECF No. 11, are GRANTED. 15 2. For docket purposes, the Commissioner’s Response Brief, ECF No. 10, is DENIED. 17 3. The decision of the Commissioner is REVERSED and REMANDED 18|| for an immediate award of benefits. 19 4. Judgment shall be entered in favor of Plaintiff and against Defendant. 20 IT IS SO ORDERED. The District Court Executive is hereby directed to file this Order, provide copies to counsel, and close the file. 22 DATED this 9th day of November 2023. 23 24 25 . 26 3 Loe £ 7 das... 27 Stanley A. Bastian 28 Chief United States District Judge ORDER REVERSING THE DECISION OF COMMISSIONER ~11