Montoya v. Commissioner of Social Security

• Court: District Court, W.D. Washington
• Decided: February 27, 2024
• Docket: 3:23-cv-05549
• Status: Unknown

Opinion

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5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 VINCENT W. M., 8 Plaintiff, CASE NO. C23-5549-BAT 9 v. ORDER REVERSING THE 10 COMMISSIONER’S DECISION COMMISSIONER OF SOCIAL SECURITY, 11 Defendant. 12

13 Plaintiff appeals the ALJ’s denial of his application for Supplemental Security Income 14 (“SSI”). He contends the ALJ misevaluated the medical opinion evidence, his testimony, lay 15 witness testimony, his residual functional capacity (“RFC”), and that the resulting step five 16 findings are therefore erroneous. Dkt. 12 at 1. For the reasons below, the Court REVERSES 17 the Commissioner’s final decision and REMANDS the matter for further administrative 18 proceedings under sentence four of 42 U.S.C. § 405(g). 19 BACKGROUND 20 Plaintiff is currently twenty-six years-old, has a high school education, and no past 21 relevant work. Tr. 29. Plaintiff had an individualized education plan (“IEP”) and received 22 23 1 special education services throughout elementary school and high school based on an emotional, 2 behavioral, and communication disorder.1 Tr. 280-323. 3 On April 2, 2019, Plaintiff applied for benefits, alleging disability beginning January 1, 4 2005.2 Tr. 201-06, 16. His application was denied initially and on reconsideration. Tr. 53-66,

5 67-82. The ALJ conducted a hearing on April 4, 2022, and on May 10, 2022, issued a decision 6 finding Plaintiff not disabled. Tr. 37-52, 16-31. As the Appeals Council denied Plaintiff’s 7 request for review, the ALJ’s decision is the Commissioner’s final decision. Tr. 1-6. 8 DISCUSSION 9 A. Medical Opinion Evidence3 10 11

12 1 Plaintiff was “mainstreamed” beginning his sophomore year of high school but nevertheless continued to receive special education instruction and additional accommodations and assistance. 13 See Tr. 281, 284, 287, 298. 2 Supplemental security income benefits are not retroactive to the disability onset date but are 14 payable one month following the month in which the application was filed. See 20 C.F.R. § 416.335. Accordingly, the relevant period in this case was May 2019, one month after Plaintiff 15 filed his April 2019 application, through May 2022, the date of the ALJ’s decision. 3 The Court notes in addition to the below challenged opinions, Plaintiff also argues generally the 16 ALJ failed to properly evaluate “other medical evidence,” and this failure constituted error because the medical evidence supported the challenged medical opinions. See Dkt. 12 at 5-8. 17 Plaintiff, however, simply summarizes various medical findings and fails to develop a coherent argument or specify which medical evidence he contends supports a particular challenged 18 medical opinion. As Plaintiff challenges the ALJ’s treatment of multiple medical opinions, Plaintiff’s summary falls short of appellate review requirements. See Putz v. Kijakazi, 2022 WL 19 6943095 (9th Cir. Oct. 12, 2022) (citing Sekiya v. Gates, 508 F.3d 1198, 1200 (9th Cir. 2007)). The Court will not “manufacture arguments where none is presented.” Indep. Towers of Wash. 20 v. Washington, 350 F.3d 925, 929 (9th Cir. 2003). Counsel is admonished that in future cases filed before this Court, he must delineate and explain with specificity what challenged medical 21 evidence supports a particular challenged medical opinion – and why. See Putz, 2022 WL 6943095, at *2 (noting that claimant waived “any argument based on [clinical] findings” where 22 claimant, who was represented by the same counsel as the instant case, “simply list[ed] numerous clinical findings, unaccompanied by argument”). Accordingly, the Court focuses on 23 the errors explicitly identified in Plaintiff’s briefing and will not address Plaintiff’s summaries further. 1 Plaintiff challenges the ALJ’s evaluation of four medical opinions, including: (1) Dr. 2 William Weiss’s October 2019 examining psychological opinion, Tr. 496-501; (2), Dr. Todd 3 Bowerly’s October 2019 examining DSHS psychological opinion, Tr. 537-41; and (3) and (4) 4 October 2019 and February 2020 opinions of non-examining state agency psychologists, Drs.

5 John Wolfe and Jan Lewis, respectively, Tr. 59-64, 74-80.4 6 Under the applicable regulations, the ALJ must articulate the persuasiveness of each 7 medical opinion, specifically with respect to whether the opinions are supported and consistent 8 with the record. See 20 C.F.R. §§ 404.1520c(a)-(c), 416.920c(a)-(c). An ALJ’s consistency and 9 supportability findings must be supported by substantial evidence. See Woods v. Kijakazi, 32 10 F.4th 785, 792 (9th Cir. 2022). 11 1. Examining Psychologist Dr. Weiss’ Opinion 12 In October 2019, Dr. Weiss reviewed Plaintiff’s special education and medical records, 13 examined Plaintiff, and administered several mental and cognitive tests before diagnosing 14 Plaintiff with “autism spectrum disorder requiring substantial support without accompanying

15 intellectual . . . [or] language impairment[s],” major depressive disorder, and generalized anxiety 16 disorder. Tr. 500. Dr. Weiss opined Plaintiff possessed marked impairments in three out of four 17 categories, including social interaction, adaptation, and concentration and persistence.5 Tr. 501. 18 The ALJ found Dr. Weiss’ opinion was “unpersuasive because it [was] overly restrictive.” Tr. 19 27. 20 21 4 To the extent that Plaintiff also intended to challenge the ALJ’s evaluation of the August 2019 22 opinion from Plaintiff’s treating therapist, Mark Medina, LICSW, as discussed in more detail below, Plaintiff failed to adequately state an argument. See Tr. 492. 23 5 Dr. Weiss also opined that Plaintiff’s recent and remote memory were both “impaired.” Tr. 501. 1 a. ALJ’s Supportability Findings 2 The ALJ found Dr. Weiss’ opinion was unsupported by Dr. Weiss’ “own exam notes,” 3 citing generally to the exam notes without further explanation. See Tr. 27 (citing “11F/2-6,” or 4 Tr. 497-501).

5 The ALJ additionally stated Dr. Weiss’ opinion was “unsupported” by other “evidence in 6 the file,” including Dr. Bowerly’s exam notes, treatment notes from providers with Life Stance 7 and Real Life Counseling[,] and [Plaintiff’s] statements regarding his activities of daily living.” 8 Tr. 27. Here, and throughout the decision, the ALJ conflates the supportability and consistency 9 factors. See Woods, 32 F.4th at 792-94 & n.4 (consistency and supportability constitute two 10 distinct factors that should be treated separately). The ALJ’s comparison of Dr. Weiss’ opinion 11 with the longitudinal record and other opinions and evidence within the longitudinal record, Tr. 12 27, constituted consistency – as opposed to supportability findings – as defined by the 13 controlling regulations. See 20 C.F.R. § 416.920c(c)(2) (Regarding “consistency,” the 14 regulations provide that “[t]he more consistent a medical opinion(s) or prior administrative

15 medical finding(s) is with the evidence from other medical sources and nonmedical sources in 16 the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) 17 will be.”); cf. 20 C.F.R. § 416.920c(c)(1) (Regarding “supportability,” the regulations provide 18 that “[t]he more relevant the objective medical evidence and supporting explanations presented 19 by a medical source are to support his or her medical opinion(s) or prior administrative medical 20 finding(s), the more persuasive the medical opinions or prior administrative medical finding(s) 21 will be.”). 22 The Court has, therefore, addressed the ALJ’s findings comparing Dr. Weiss’ opinion 23 with Dr. Bowerly’s exam notes, treatment notes from other providers, including Life Stance and 1 Real Life Counseling, and the other evidence regarding Plaintiff’s activities of daily living, 2 below with its discussion of the consistency factor. 3 Regarding supportability, Plaintiff argues the ALJ erred because Dr. Weiss’ opinion was 4 supported by his abnormal clinical findings. See Dkt. 12 at 4-5. The Commissioner counters the

5 ALJ appropriately found the opinion unsupported based on the “deviation between [the 6 psychologist’s] benign objective clinical findings and [his] extreme conclusions regarding 7 Plaintiff’s mental limitations.” Dkt. 18 at 7. 8 In evaluating Dr. Weiss’ opinion, the ALJ did not adequately explain her supportability 9 findings. See Tr. 27-28. However, in accordance with Kaufmann v. Kijakazi, the Court has 10 reviewed “the ALJ’s full explanation,” including “scrutiniz[ing] all of the pages of [the] ALJ’s 11 decision.” 32 F.4th 843, 851 (9th Cir. 2022). The Court notes, in discounting Plaintiff’s 12 testimony, the ALJ found both Drs. Weiss’ and Bowerly’s “examination notes do not support 13 [their opined] excessive restrictions and indeed show that a less restrictive assessment of the 14 claimant’s overall ability is warranted.” Tr. 25. Regarding Dr. Weiss’ opinion, the ALJ noted

15 Plaintiff’s mixed results on Dr. Weiss’ mental and cognitive tests and examinations. Tr. 25 16 (noting that although Dr. Weiss’ MSE demonstrated Plaintiff possessed “some tangential thought 17 processes and restrictions in his judgment and insight,” the tests also showed “good proverb 18 interpretation, good abstract thinking, good calculations, good serial sevens, very good 19 information, clear speech, and no abnormal movements”); see also Tr. 25 (asserting that while 20 Dr. Weiss’ tests showed that Plaintiff’s “recent and remote memory were less than adequate, [he] 21 also noted that [Plaintiff] correctly remembered the last school he attended, correctly named that 22 past three presidents, recited six digits forward and four backward, and recalled three of four 23 objects after a five-minute delay”). 1 The ALJ, however, failed to provide any explanation why the cited examination findings 2 outweighed or rendered unpersuasive Dr. Weiss’ other abnormal exam findings. See Tr. 25, 27. 3 The ALJ also erroneously ignored Dr. Weiss’ additional pertinent examination findings 4 regarding Plaintiff’s ASD, including Plaintiff’s “abnormal social approach,” “failure in back-

5 and-forth conversation,” “failure to initiate or respond to interactions,” “deficits in nonverbal 6 communicative behaviors used for social interaction” and “in developing, maintaining, and 7 understanding relationships,” “insistence on sameness with inflexible adherence to routines,” and 8 Plaintiff’s “highly restricted fixated interests that are abnormal in intensity and focus.” Tr. 500. 9 This failure to address Dr. Weiss’ ASD-related findings resulted in the ALJ’s impermissible 10 reliance on only those findings that were seemingly consistent with the ALJ’s RFC assessment. 11 See AR 25. Additionally, the ALJ also improperly “played doctor” in reinterpreting Dr. Weiss’ 12 examination findings, while simultaneously rejecting Dr. Weiss’ opinion based on those 13 findings. See Burget v. Comm’r of Soc. Sec., No. C17-1836 BAT, 2018 WL 4204057, at *3 14 (W.D. Wash. Sept. 4, 2018) (quoting Padilla v. Astrue, 541 F. Supp. 2d 1102, 1106 (C.D. Cal.

15 2008)) (“[A]s a lay person, an ALJ is ‘simply not qualified to interpret raw medical data in 16 functional terms.’”); see also Matthew N. C. v. Comm’r of Soc. Sec., No. 3:19-CV-05112-DWC, 17 2019 WL 4439890, at *4 (W.D. Wash. Sept. 17, 2019) (discussing Banks v. Barnhart, 434 F. 18 Supp. 2d 800, 805 (C.D. Cal. 2006)) (noting “the ALJ’s RFC determination or finding must be 19 supported by medical evidence, particularly the opinion of a treating or an examining 20 physician”). 21 Accordingly, the ALJ’s conclusion that Dr. Weiss’ opinion lacked supportability is not 22 supported by substantial evidence. However, under Woods, a finding that Dr. Weiss’ opinion is 23 inconsistent with the longitudinal record, if supported by substantial evidence, would be a 1 sufficient independent basis for the ALJ to conclude that Dr. Weiss’ opinion was unpersuasive. 2 See 32 F.4th at 792-94 & n.4. Accordingly, the Court turns to the ALJ’s consistency findings. 3 b. ALJ’s Consistency Findings 4 The ALJ found Dr. Weiss’ opinion was inconsistent because it differed from the opinions

5 of the state agency physicians, treatment notes from Plaintiff’s therapists and counselors, 6 Plaintiff’s own statements regarding his activities of daily living, and examination notes from Dr. 7 Bowerly. Tr. 27 (citing Tr. 59-60, 62-65, 75-80, 278-323, 335-36, 348-49, 350, 353, 365, 371, 8 406-11, 414-15, 418-23, 425-26, 428, 430, 442, 449-54, 456-57, 471-73, 475, 487, 493, 497-501, 9 506-07, 515-16, 537-42, 545-47, 551-53, 561-62, 586-87, 589, 591, 593, 595-98, 600-01, 602, 10 604, 606-07). 6 11 Plaintiff argues the fact Dr. Weiss’ opinion differed from the state agency psychologists’ 12 opinions is not in and of itself a sufficient reason for rejecting Dr. Weiss’ opinion, noting Drs. 13 Wolfe and Lewis did not examine or treat Plaintiff. Dkt. 12 at 4-5. Plaintiff further argues Dr. 14 Bowerly’s examination findings were, in fact, consistent with Dr. Weiss’ opinion, and the ALJ

15 failed to explain how the other cited treatment notes and records contradicted Dr. Weiss’ 16 opinion. 17 In opposition, the Commissioner cites Johnson v. Kijakazi, 2022 WL 3998572, at *1 (9th 18 Cir. 2022), in support of her argument that the ALJ properly discounted Dr. Weiss’ opinion 19 based on its inconsistency with the state agency consultants’ opinions. Dkt. 18 at 7 (construing 20 Johnson as holding that an “ALJ properly rejected a physician’s opinion where it conflicted with 21

6 The Court notes that several of the records cited by the ALJ within this string cite are in fact 22 duplicates of other records to which the ALJ also cited. See, e.g., Tr. 27 (citing to “4F22,” Tr. 371, a March 19, 2019 record from Plaintiff’s therapist, Mark Medina, which is identical to 23 “6F3,” Tr. 407, and “8F22,” Tr. 449, records to which the ALJ also cites in the same string citation). 1 the ‘highly persuasive’ opinions of two state psychological consultants”). The Commissioner 2 further contends the ALJ’s consistency findings regarding Dr. Weiss’ opinion were reasonable 3 for the reasons the ALJ explained in her subsequent evaluation of the state agency consultants’ 4 opinions. See Dkt. 18 at 8; Tr. 28-29 (ALJ’s evaluation of Drs. Lewis’ and Wolfe’s opinions).

5 Specifically, the Commissioner contends Dr. Weiss’ opinion was inconsistent with Dr. 6 Bowerly’s examination notes and the other treatment records that demonstrated “good 7 responsiveness to medication and improvement in [Plaintiff’s] symptoms during periods of good 8 compliance.” See Dkt. 18 at 8 (citing Tr. 396, 408-10, 501, 541); Tr. 28-29 (ALJ’s evaluation of 9 Drs. Lewis’ and Wolfe’s opinions). Finally, the Commissioner argues the ALJ properly found 10 Dr. Weiss’ opinion is inconsistent with Plaintiff’s “admitted daily activities” (ADL). Dkt. 18 at 11 7 (citing Tr. 496, 499-500, 540). 12 In reply, Plaintiff argues none of the ADLs cited by the ALJ and reiterated by the 13 Commissioner are inconsistent with Dr. Weiss’ opinion. Dkt. 19 at 4. Additionally, Plaintiff 14 contends there is no evidence he ever achieved “sustained improvement.” Dkt. 19 at 4.

15 The existence of contradictory opinions from the state agency psychologists is not in and 16 of itself sufficient to render Dr. Weiss’ opinion unpersuasive. However, Plaintiff incorrectly 17 suggests Dr. Weiss’ opinion carries more weight simply based on his status as an examining 18 physician, Plaintiff is incorrect because the 2017 regulations eliminated the hierarchical 19 distinctions between treating, examining, and non-examining opinions. Nevertheless, the ALJ 20 remained obligated to explain why the less restrictive opined limitations from Drs. Lewis and 21 Wolfe were more persuasive than the marked opined limitations stated by other medical sources, 22 including Dr Weiss. See Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1103 (9th Cir. 23 2014) (“Although the ALJ’s analysis need not be extensive, the ALJ must provide some 1 reasoning in order for us to meaningfully determine whether the ALJ’s conclusions were 2 supported by substantial evidence.”); see also Bunnell v. Sullivan, 947 F.2d 341, 346 (9th Cir. 3 1991) (explaining that “a reviewing court should not be forced to speculate as to the grounds for 4 an adjudicator’s rejection” of certain evidence). To hold otherwise would relieve the ALJ of her

5 job of fully evaluating the medical opinion evidence. 6 The case relied on by the Commissioner, Johnson v. Kijakazi, is not to the contrary. See 7 2022 WL 3998572, at *1. In Johnson the Ninth Circuit upheld the ALJ’s supportability findings 8 regarding a psychologist’s opinion, while “additionally” noting the opinion conflicted with the 9 opinions of state agency psychologists. Id. (concluding psychologist’s normal examination 10 findings were sufficient to undermine her opined marked mental limitations and noting also that 11 although the psychologist noted symptoms of depression, the psychologist did not diagnose 12 depression). Here, by contrast, the ALJ’s supportability findings were insufficient. 13 The ALJ here failed to adequately explain why Drs. Lewis’ and Wolfe’s less restrictive 14 limitations were more appropriate than the marked limitations opined to by Dr. Weiss and other

15 medical sources, and also failed to provide substantial evidence in support of her adoption of the 16 less restrictive limitations in conjunction with Plaintiff’s RFC assessment. The October 2019 17 examination findings from Dr. Bowerly were not inconsistent with Dr. Weiss’ opinion. See Tr. 18 540-41; cf. Tr. 496-501. In characterizing them as such, the ALJ committed the same errors that 19 she did in finding Dr. Weiss’ opinion unsupported by his own examination findings, as discussed 20 above. Significantly, the ALJ downplayed Dr. Bowerly’s findings regarding Plaintiff’s difficulty 21 with recent memory and concentration, his “tangential thought processes,” his depressive and 22 anxious symptoms, and his limitations in judgment and insight in favor of only those findings 23 that aligned with the ALJ’s assessed RFC. See Tr. 25 (relying on observations regarding 1 Plaintiff’s grooming and presentation, along with his cooperation, good effort, clear and linear 2 thinking, and his description of his ADLs and continued treatment). However, again, there is no 3 explanation as to why the selective findings upon which the ALJ relied should be afforded more 4 weight than the other, equally pertinent findings made by Dr. Bowerly – or, importantly, how

5 and or why the particular cited findings were relevant to and or undermined Dr. Weiss’ opined 6 marked social, adaptation, and concentration limitations. 7 Moreover, like Dr. Weiss’ own exam findings, the ALJ again inappropriately played 8 expert and reinterpreted Dr. Bowerly’s findings for herself. See Tr. 25, 27. In fact, as discussed 9 in more detail below with Dr. Bowerly’s opinion, Dr. Bowerly himself opined that based on his 10 examination findings and his review of the record, Plaintiff suffered from several marked 11 limitations, including in his ability to interact socially and to adapt – an opinion that was 12 consistent with Dr. Weiss’ opinion. See Tr. 538. 13 Nor did Plaintiff’s described ADLs undermine the consistency of Dr. Weiss’ opinion. 14 Elsewhere in the ALJ’s decision, the ALJ found Plaintiff’s reported ADLs included cooking,

15 cleaning, shopping, washing dishes, feeding his pets, vacuuming, weeding and mowing the lawn, 16 buying food, playing video games, and engaging in 3D animation. See Tr. 25 (citing Plaintiff’s 17 statements to Drs. Weiss and Bowerly at Tr. 496-501, 540-41). The ALJ suggests these ADLs 18 undermined Drs. Weiss’ opined limitations. Tr. 27. Again, the ALJ fails to explain how the 19 particular activities undermined the particular marked limitations to which Dr. Weiss opined – 20 especially given the evidence that Plaintiff only shopped when driven by his parents and when 21 accompanied by a parent, and that Plaintiff required constant reminders to complete his chores 22 around the house. Moreover, “the mere fact that a plaintiff has carried on certain daily activities, 23 such as grocery shopping, driving a car, or limited walking for exercise, does not in any way 1 detract from [his] credibility as to [his] overall disability.” Vertigan v. Halter, 260 F.3d 1044, 2 1050 (9th Cir. 2001) (citations omitted); see also Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 3 1998) (citations omitted) (“disability claimants should not be penalized for attempting to lead 4 normal lives in the face of their limitations”). “One does not need to be ‘utterly incapacitated’ in

5 order to be disabled.” Vertigan, 260 F.3d at 1050 (citations omitted). 6 Finally, the ALJ failed to adequately explain how the additional records undermined Dr. 7 Weiss’ opinion. Tr. 27 (citing Tr. 59-60, 62-65, 75-80, 278-323, 335-36, 348-49, 350, 353, 365, 8 371, 406-11, 414-15, 418-23, 425-26, 428, 430, 442, 449-54, 456-57, 471-73, 475, 487, 493, 9 497-501, 506-07, 515-16, 537-42, 545-47, 551-53, 561-62, 586-87, 589, 591, 593, 595-98, 600- 10 01, 602, 604, 606-07). As the Commissioner points out, the ALJ’s evaluation of the state agency 11 psychologist’s opinions suggests the treatment and counseling records demonstrate Plaintiff 12 achieved “observable improvement when sustaining good adherence to his medication plans.” 13 Tr. 28. The Court further notes that elsewhere in her decision, the ALJ included identical string 14 citations to the same record evidence in similarly asserting that Plaintiff showed “good

15 responsiveness to medication and improvement in his symptoms during periods of good 16 compliance” and that his providers “report[ed] noticeable improvement and stability in 17 [Plaintiff’s] anxiety and depression symptoms when [he was] taking his medication as directed.” 18 Tr. 28, 29 (finding persuasive and adopting opined limitations from state agency psychologists, 19 Drs. Lewis and Wolfe); accord Tr. 26 (citing same evidence in discounting Plaintiff’s 20 testimony). 21 The ALJ errs, though, because the cited record evidence upon which she relied concerned 22 Plaintiff’s treatment for and corresponding improvement in his depression and anxiety – but not 23 Plaintiff’s ASD and/or the symptoms stemming from his ASD. See Tr. 408-09, 506. 546, 551, 1 561-62, 602 (discussing Plaintiff’s use of SSRIs, such as Zoloft and Lexapro, which at times 2 helped relieve Plaintiff’s symptoms associated with his depression and anxiety). This is in spite 3 of the fact at step two, the ALJ found in addition to depression and anxiety, Plaintiff’s ASD was 4 also severe, and Dr. Weiss’ opinion was itself based in part on Plaintiff’s ASD and related

5 symptoms. Tr. 18; see also Tr. 500 (describing Plaintiff’s abnormal social and communicative 6 behaviors, along with adaptation challenges related to his fixation and insistence on certain 7 things).7 8 Additionally, the ALJ erred in her consistency finding because the longitudinal record 9 demonstrates the symptoms associated with Plaintiff’s depression and anxiety waxed and waned 10 over time such that, as Plaintiff notes, there was no sustained improvement. Dkt. 12 at 5; Dkt. 19 11 at 4. The ALJ’s suggestion Plaintiff’s low points were the result of his noncompliance with his 12 treatment plan erroneously assumes that contrary to the evidence otherwise, Plaintiff was capable 13 of full compliance with his prescription medication. It also assumes the symptoms of Plaintiff’s 14 depression and anxiety would not have waxed and waned as they did absent the admitted

15 noncompliance. However, these assumptions ignore evidence Plaintiff remained in therapy even 16 during periods of medication noncompliance (which his mother has testified was due in large 17 part to the fact that his parents drove him and even accompanied him at times). Such 18 assumptions also fail to address the record evidence that Plaintiff’s mental and behavioral 19 impairments themselves – including his ASD – were the reason that he was unable to 20 consistently and routinely adhere to prescription medication regimens unless he had constant and 21

22 7 As noted above, the ALJ includes within the string citation multiple citations to the very same record(s) that appears multiple times within the administrative record. See infra n. 6. 23 Accordingly, the number of records to which the ALJ actually cites within the string citations are fewer than what they appear to be. 1 regular reminders to do so. See Tr. 233-34, 237. Finally, the ALJ failed to address evidence 2 regarding the physical side effects Plaintiff experienced while taking the SSRIs, which, as stated 3 in Plaintiff’s medical records, interfered with his compliance while on the medication. See Tr. 4 515.

5 For the above reasons, the ALJ erred in evaluating Dr. Weiss’ opinion. Because the error 6 affected the ALJ’s subsequent RFC assessment and his step five findings, it was not harmless. 7 2. Examining Psychologist Dr. Bowerly’s Opinion 8 Like Dr. Weiss, in October 2019, Dr. Bowerly reviewed Plaintiff’s special education 9 records, medical records, counseling records, administered several cognitive and psychological 10 tests, and examined Plaintiff. Tr. 537-41. Dr. Bowerly diagnosed autism spectrum disorder, 11 major depressive disorder, and generalized anxiety disorder. Tr. 541. He opined Plaintiff 12 possessed several moderate limitations but he was markedly limited in his abilities to adapt to 13 changes in a routine work setting, to make simple work-related decisions, to ask simple questions 14 or request assistance, to communicate and perform effectively in a work setting, to maintain

15 appropriate behavior in a work setting, to complete a normal work day and work week without 16 interruptions from psychologically-based symptoms, and to set realistic goals and plan 17 independently. Tr. 538. Dr. Bowerly also rated Plaintiff’s overall functional limitations as 18 marked. Tr. 538. The ALJ found Dr. Bowerly’s opinion not persuasive for the same reasons 19 that she found Dr. Weiss’ opinion unpersuasive. Tr. 27. 20 a. ALJ’s Supportability Findings 21 22 23 1 The ALJ found Dr. Bowerly’s opinion was unsupported by his “own exam notes.”8 Tr. 2 27; Tr. 537-41. As discussed above regarding the ALJ’s evaluation of Dr. Weiss’ opinion, 3 elsewhere in her decision, the ALJ found Dr. Bowerly’s “examination notes do not support such 4 excessive restrictions and indeed show that a less restrictive assessment of the claimant’s overall

5 ability is warranted.” Tr. 25. Again, the ALJ noted Plaintiff’s mixed results on Dr. Bowery’s 6 mental and cognitive tests and examinations, along with Plaintiff’s statements to Dr. Bowerly. 7 Tr. 25. However, the ALJ failed to adequately explain why the particular exam findings 8 outweigh or diminish the other exam findings that do not support the ALJ’s assessed RFC, and, 9 in particular, why Dr. Bowerly’s opined marked limitations are themselves undermined by the 10 mixed normal and abnormal findings. Tr. 25, 27 (observing depressive and anxious symptoms, 11 that Plaintiff displayed minimal eye contact, and that he was unable to recall any of the three 12 words given on a recent memory test). 13 b. ALJ’s Consistency Findings 14 The ALJ also found Dr. Bowerly’s opinion lacked consistency for reasons identical to

15 those she proffered in her evaluation of the consistency of Dr. Weiss’ opinion: it differed from 16 the opinions of the state agency physicians, treatment notes from Plaintiff’s therapists and 17 counselors, Plaintiff’s own statements regarding his ADLs, and Dr. Weiss’ exam findings.9 Tr. 18 27 (citing Tr. 59-60, 62-65, 75-80, 278-323, 335-36, 348-49, 350, 353, 365, 371, 406-11, 414-15, 19 418-23, 425-26, 428, 430, 442, 449-54, 456-57, 471-73, 475, 487, 493, 497-501, 506-07, 515-16, 20 537-42, 545-47, 551-53, 561-62, 586-87, 589, 591, 593, 595-98, 600-01, 602, 604, 606-07). Dr. 21 8 Again, like Dr. Weiss’ opinion, the ALJ conflated the supportability and consistency findings. 22 The Court has relabeled the respective findings as appropriate. 9 The only difference is the ALJ’s consistency findings regarding Dr. Bowerly’s opinion relied in 23 part on Dr. Weiss’ examination findings, whereas the ALJ’s consistency findings regarding Dr. Weiss’ opinion relied in part on Dr. Bowerly’s examination findings. 1 Weiss’ and Dr. Bowerly’s opinions about Plaintiff’s limitations were nearly identical in that they 2 both contained several of the same marked limitations; thus, for the same reasons discussed 3 above, the ALJ’s findings regarding the consistency of Dr. Bowerly’s opinion were not 4 supported by substantial evidence.

5 Because the error affected the ALJ’s subsequent RFC assessment and his step five 6 findings, it was not harmless. 7 3. Opinions from Non-Examining State Agency Psychologists, Drs. Lewis and Wolfe 8 In October 2019 and February 2020, Drs. John Wolfe and Jan Lewis, respectively, 9 provided opinions regarding Plaintiff’s functional limitations. Tr. 59-64, 74-80. Both 10 psychologists opined Plaintiff had no limitation in terms of his understanding and memory, but 11 had moderate limitations in his abilities to interact with others, concentrate, persist, or maintain 12 pace, and to adapt or manage himself. AR 62-64, 78-80. 13 The ALJ offered no bona fide supportability findings regarding either opinion,10 but did 14 find that both opinions were consistent with the record evidence, noting, in particular, that 15 Plaintiff “show[ed] good responsiveness to medication and improvement in his symptoms during 16 periods of good compliance,” citing to the same evidence the ALJ cited in support of her 17 evaluation of Drs. Bowerly’s and Weiss’ opinions. Tr. 28 (citing Tr. 59-60, 62-65, 75-80, 278- 18 323, 335-36, 348-49, 350, 353, 365, 371, 406-11, 414-15, 418-23, 425-26, 428, 430, 442, 449- 19 54, 456-57, 471-73, 475, 487, 493, 497-501, 506-07, 515-16, 537-42, 545-47, 551-53, 561-62, 20 586-87, 589, 591, 593, 595-98, 600-01, 602, 604, 606-07). The ALJ further found that the 21 opinions were consistent with Plaintiff’s statements regarding his ADLs. Tr. 28. 22

23 10 Again, the ALJ states that she is considering supportability, but conflates supportability and consistency. 1 The parties mainly repeat the same arguments described above regarding the ALJ’s 2 evaluation of Drs. Weiss’ and Dr. Bowerly’s opinions. Plaintiff argues the opinions are 3 inconsistent with the therapy records, the other medical opinions, and Plaintiff’s and his mother’s 4 testimony. The Commissioner counters the opinions are well-supported by and consistent with

5 Plaintiff’s activity level and treatment records.11 Dkt. 18 at 3-5. However, in addition to the 6 ADLs already discussed above, the Commissioner additionally asserts evidence that Plaintiff 7 obtained his driver’s license and went on job interviews supported the ALJ’s decision to adopt 8 the moderate limitations opined to by Drs. Wolfe and Lewis. Dkt. 18 at 5 (citing Tr. 408-09, 9 415, 499-501, 540, 545, 591, 595, 603 – all cited by ALJ, and 376 and 570 – not cited by ALJ). 10 The Court notes although the ALJ did not specifically reference Plaintiff’s driver’s 11 license and job interviews in conjunction with her evaluation of the medical opinions, the ALJ 12 nevertheless included citations to records that pertained to Plaintiff’s driver’s license and/or his 13 job search within her long string citations to record evidence. See Tr. 27-28 (citing Tr. 364, 406, 14 546, 591, 594-97, 604); Tr. 364 (Plaintiff tells his therapist in February 2019 that he is making a

15 plan with his father to practice driving once a day so that he can hopefully get his driver’s license 16 and go to school and/or get a job); Tr. 591 (Plaintiff passes the test for his driver’s license in July 17 2021, and advises his therapist that he will start applying for jobs); but see Tr. 406 (during March 18 2019, Plaintiff advises his therapist that he no longer wants to work on practicing driving or 19 getting a driver’s license because he is afraid of having an accident); Tr. 546 (Plaintiff notes in 20 January 2020 that has never gotten past the interview stage for a job); Tr. 594-97 (therapist 21

11 The Court notes that the Commissioner cites to additional reasons and evidence not relied on 22 by the ALJ. See, e.g., Dkt. 18 at 5 (citing Tr. 376, 570). Under Bray v. Commissioner, the Court is limited to the reasons provided by the ALJ. 554 F.3d 1219, 1225-26 (9th Cir. 2009) (court 23 reviews ALJ’s decision “based on the reasoning and factual findings offered by the ALJ – not post hoc rationalizations that attempt to intuit what the adjudicator may have been thinking”). 1 reports in October 2021 that Plaintiff’s parents’ desire for him to get a job is causing a lot of 2 anxiety, and notes that Plaintiff had an “awful” interview at Walmart and did not get the job); Tr. 3 604 (therapist observes in December 2021 that Plaintiff is not feeling “great” depression-wise 4 and is “anxious and apathetic” about getting a job). Additionally, elsewhere in her decision, the

5 ALJ noted Plaintiff obtained his driver’s license and reported his “next step” was to apply for 6 jobs. Tr. 26 (citing Tr. 589, 591) (therapist’s records from June and July 2021 regarding Plaintiff 7 completing his practice drives necessary to test for his driver’s license). 8 The Court finds the ALJ failed to adequately explain how the cited evidence supported 9 adopting Drs. Wolfe’s and Lewis’ opined limitations over the other medical opinions offering 10 more restrictive functional limitations. See Tr. 26, 27-29. Presumably, if Plaintiff indeed 11 utilized his driver’s license after obtaining it in 2021, and or if Plaintiff worked after obtaining 12 his driver’s license, such facts may have supported the less restrictive adaptation limitation. 13 However, the record evidence and testimony demonstrate that is not what occurred. Instead, 14 Plaintiff only ever drove one time after obtaining his license in 2021, and, as of the April 2022

15 hearing, Plaintiff did not have a job and had not enrolled in any classes since his 2016 graduation 16 from high school – facts the ALJ failed to address. See Tr. 26, 595, 604, 41, 43-44. 17 For these reasons, the ALJ’s evaluation of Drs. Wolfe’s and Lewis’ opinions is not 18 supported by substantial evidence. Because the error affected the ALJ’s subsequent RFC 19 assessment and his step five findings, it was not harmless. 20 4. Treating Therapist, Mark Medina’s Opinion 21 In August 2019, Plaintiff’s treating therapist, LICSW Mark Medina, submitted a letter 22 stating he had treated Plaintiff for generalized anxiety disorder and major depression since 23 October 2018. Tr. 492, 28. Mr. Medina stated Plaintiff had also been diagnosed with autism 1 spectrum disorder and he had the “impression that a developmental disorder may [also] be 2 present.” Tr. 492. Mr. Medina asserted Plaintiff’s “significant emotional distress prevents [his] 3 participation in activities of daily living,” and would also “likely prevent him from maintaining 4 employment.” Tr. 492.

5 The ALJ found Mr. Medina’s opinion unpersuasive. Tr. 28. In terms of supportability, 6 the ALJ stated the opinion was conclusive and overly vague, and it was unsupported by 7 Medina’s own counseling notes. Tr. 28. The ALJ provided consistency findings, including 8 record citations, that were identical to his consistency findings regarding the other medical 9 opinions. See Tr. 28. 10 Plaintiff argues “for the same reasons” the ALJ erred in rejecting Drs. Bowerly’s and 11 Weiss’ opinions, the ALJ also erred regarding Medina’s opinion. Dkt. 12 at 7. Plaintiff, 12 however, failed to comply with the Court’s scheduling order that he list all claimed errors 13 starting on page one of the opening brief. The opening brief did not properly put the 14 Commissioner on notice Plaintiff was challenging the ALJ’s findings regarding Mr. Medina’s

15 opinion. Instead, the challenge was buried in a single sentence contained in a long summary of 16 “other medical evidence.” See Dkt. 12 at 7. The Court does not fault the Commissioner for not 17 addressing this issue. See Dkt. 18. 18 Moreover, Plaintiff’s single sentence conclusory argument likening Mr. Medina’s 19 opinion to the other medical opinions fails to properly develop an argument regarding how the 20 ALJ erred – especially given the dissimilarities between Medina’s opinion and the other opinions 21 and the ALJ’s unique supportability findings regarding Medina’s opinion.12 As the Court has 22 23 12 As noted, the ALJ’s consistency findings regarding therapist Medina’s opinion were identical to her consistency findings regarding Drs. Bowerly’s and Weiss’ opinions, including the same 1 already indicated, a Plaintiff fails to establish error by simply presenting conclusory statements 2 that fail to articulate a specific rationale and basis showing how and why the ALJ harmfully 3 erred. 4 However, because the Court finds the ALJ must on remand reassess the medical opinion

5 evidence from Drs. Bowerly and Weiss and the two state agency psychologists, the Court finds it 6 appropriate that the ALJ also reassess Mr. Medina’s opinion. 7 B. Testimony of Plaintiff and his Mother 8 Plaintiff’s mother, C.B., submitted two function reports on Plaintiff’s behalf in July 2019 9 and January 2020, both of which the ALJ considered. Tr. 29; Tr. 230-37 (July 2019 function 10 report); Tr. 252-59 (January 2020 function report). 11 C.B. stated Plaintiff’s anxiety, depression, and “crippling fear of social interaction” limit 12 his ability to work. Tr. 230, 252. She explained Plaintiff possesses a “deep fear” of socializing 13 with anyone outside of his immediate family, and noted the anxiety caused by contact with 14 unknown people has resulted in Plaintiff’s public “crying outbursts.” Tr. 252, 254, 257, 237.

15 C.B. stated the only interaction with others Plaintiff tolerates is online, when people are 16 physically distant. Tr. 253, 257. When Plaintiff is stressed or there is a change in his routine, he 17 reacts with angry outbursts – “yelling, slamming doors, [and] refus[ing] to comply.” Tr. 258. 18 C.B. also stated Plaintiff has a short attention span, is easily distracted, and is often 19 unable to follow directions for new tasks. Tr. 254. She noted he is unable to focus on a single 20 task and requires regular reminders even with routine tasks, including hygiene, due to his lack of 21 focus. AR 233, 234, 237. Plaintiff can prepare simple meals, help out with dishes, feed pets, 22

23 string citation of record evidence in support. Tr. 27-28. However, the ALJ’s supportability findings were distinct from those offered regarding Drs. Bowerly and Weiss. Tr. 28. 1 and take out the recycling bin with multiple reminders. Tr. 233, 255. Plaintiff is unwilling to do 2 any additional chores at home. Tr. 255. 3 Plaintiff testified at the April 2022 hearing. Tr. 41-49. He testified he had recently 4 obtained a driver’s license in 2021, but due to his own anxiety and fear, he had only ever driven

5 once. Tr. 41 (noting that he had “done it once and that was the first and last time I’ve tried it”). 6 Plaintiff does not take public transportation, so his parents drive him to appointments or 7 shopping, and he rarely leaves the house with the exception of grocery shopping. Tr. 42, 43, 44. 8 Plaintiff had not worked or taken any classes in the nearly six years since he graduated from high 9 school in 2016. Tr. 43-44, 284. Although Plaintiff applied for and interviewed for jobs at a 10 warehouse, Walmart, and Papa John’s, he did not receive any job offers. Tr. 43-44. 11 Plaintiff testified that other than his family, he has no social interaction outside of his 12 computer. Tr. 42. He stated he does the dishes every day and he vacuums and cleans on the 13 weekend, but acknowledged he was “poor” at doing his chores consistently and he procrastinates 14 and wastes time. Tr. 42, 47. Plaintiff opined his short attention span, procrastination, and

15 “zoning out” would likely prohibit him from holding a job for any meaningful amount of time. 16 Tr. 45, 47. 17 Plaintiff testified he experiences anxiety every day related to “virtually anything,” but 18 especially related to leaving the house or when there is a stranger involved. Tr. 48. He stated he 19 can only tolerate going outside by himself to check the mail. Tr. 48. 20 The ALJ found Plaintiff presented objective medical evidence establishing generally his 21 medically determinable impairments could cause some of the symptoms alleged, and no 22 affirmative evidence of malingering. Tr. 24. The ALJ was therefore required to provide 23 “specific, clear and convincing reasons” for rejecting Plaintiff’s testimony concerning the 1 intensity, persistence, and limiting effects of his symptoms. Tommasetti v. Astrue, 533 F.3d 2 1035, 1039 (9th Cir. 2008) (quoting Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)); 3 accord Smartt v. Kijakazi, 53 F.4th 489, 499 (9th Cir. 2022) (confirming that the “clear and 4 convincing” standard continues to apply).

5 The ALJ provided multiple reasons for discounting Plaintiff’s testimony, contending that 6 the testimony was inconsistent with record evidence that demonstrated Plaintiff’s impairments 7 did “not cause more restrictions than the [ALJ’s assessed] residual functional capacity,” 8 including: 9 (1) examination notes from Drs. Bowerly and Weiss, Tr. 24-25; 10 (2) other treatment and exam notes from the record regarding Plaintiff’s responsiveness to medications and treatment, and his stability and improvement 11 when he is in compliance with his medications, Tr. 26 (citing Tr. 371, 406, 408, 410-11, 428, 430-32, 449-50, 452-53, 506, 515, 551, 561, 600, 603); 12 (3) the fact that Plaintiff obtained a driver’s license in 2021, and his “next step” was 13 looking for jobs at that time, Tr. 26 (citing Tr. 589, 591);

14 (4) Plaintiff’s therapy records that show that P was “consistently alert, fully oriented, cooperative, in no acute distress, appropriate dress, grooming, and hygiene, 15 normal speech, intact associations, logical thought processes, normal cognition, [possessed] good memory, intact fund of knowledge, focused attention and 16 concentration, normal insight, unimpaired judgement, no abnormal movements, paranoia, or hallucinations,” Tr. 26 (citing Tr. 586-87, 589, 591, 593, 595-98, 17 600-01, 603-04, 606-07);

18 (5) treatment notes from Plaintiff’s therapist and other providers that show that Plaintiff denied suicidal or homicidal ideation, Tr. 26 (citing Tr. 335-36, 348-49, 19 350, 352, 364, 371, 407-09, 414-15, 418-19, 422, 425-26, 428, 430, 442, 449-51, 454, 456-57, 459-60, 471-73, 475, 487, 493, 523); and 20 (6) educational records that showed that P was “mainstreamed” beginning his 21 sophomore year of high school and that he earned the necessary credits to graduate, along with his teachers’ reports of improvement, Tr. 24 (citing Tr. 278- 22 323, 497).

23 1 The ALJ provided identical record citations and support for the first four reasons above as those 2 she provided in conjunction with her evaluation of the medical opinion evidence. 3 Plaintiff contends the ALJ erred in evaluating his testimony, arguing that the ALJ’s 4 failure to properly evaluate the medical opinion evidence tainted her evaluation of Plaintiff’s

5 testimony. Dkt. 12 at 8. Plaintiff additionally argues the ALJ has again selectively cited to 6 certain findings, which themselves fail to undermine his testimony. 7 The Commissioner counters the ALJ reasonably rejected Plaintiff’s testimony because it 8 conflicted with objective treatment records. Dkt. 18 at 11-12. Additionally, the Commissioner 9 contends that the ALJ reasonably found Plaintiff’s testimony inconsistent with his ADLs. Dkt. 10 18 at 13. 11 In reply, Plaintiff contends ALJ did not specifically offer his ADLs as a reason for 12 discounting his testimony. Dkt. 19 at 7. Alternatively, Plaintiff asserts his ADLs did not 13 undermine his testimony as they did not show he could perform full-time competitive work. 14 The ALJ’s first four reasons set forth above do not constitute “specific, clear and

15 convincing reasons” for discounting Plaintiff’s testimony for the reasons already discussed 16 regarding the medical opinion evidence. First, the ALJ cherry-picked the examination findings 17 from both Drs. Weiss’ and Bowerly’s exams that were consistent with her RFC assessment, 18 improperly ignoring and/or discounting without explanation other abnormal findings. The ALJ 19 also improperly substituted her interpretation of the raw data for those of the psychologists. 20 Second, the records cited by the ALJ regarding alleged improvement fail to demonstrate 21 any improvement in Plaintiff’s ASD-related symptoms, and also fail to account for the fact 22 Plaintiff’s depression and anxiety-related symptoms waxed and waned over the years in part due 23 1 to noncompliance that may have been caused by Plaintiff’s ASD and the severe impairments 2 themselves. 3 Third, Plaintiff’s job search and driver’s license do not undermine Plaintiff’s testimony 4 regarding his limitations. As noted above, Plaintiff drove just once and he never obtained a

5 job.13 Fourth, the ALJ fails to adequately explain how the additional cited therapy records 6 undermine Plaintiff’s testimony. The ALJ again cherry-picked routine observations from certain 7 records without explaining how those observations impact Plaintiff’s limitations. See Tr. 26. 8 Plaintiff’s presentation at his consultative examinations and select therapy sessions, including his 9 grooming and hygiene, did not undermine his testimony; moreover, the ALJ has failed to 10 adequately address evidence that did not conform with her RFC assessment.14 The same 11 reasoning applies to the ALJ’s fifth reason: the absence of suicidal and homicidal ideations in 12 Plaintiff’s therapy records. Here, there was never any suggestion that Plaintiff’s limitations 13 stemmed from homicidal or suicidal impulses; nor was Plaintiff required to be suicidal or 14 homicidal before marked functional limitations were warranted.

15 Plaintiff is correct the ALJ did not cite to his ADLs as a specific reason for rejecting his 16 testimony. Dkt. 19 at 7; see Tr. 24-26 (ALJ’s rejection of Plaintiff’s testimony). The ALJ 17 described Plaintiff’s ADLs, as reported by Plaintiff to Drs. Weiss and Bowerly, but unlike the 18 medical opinion evidence, the ALJ did not specifically rely on them as a reason for rejecting 19 13 The Court notes that, in opposition, the Commissioner relies on evidence and reasons not 20 provided by the ALJ for discounting Plaintiff’s testimony, which the Court declines to consider. See Dkt. 18 at 12 (citing Tr. 376, 545, 591, 595); see also Bray, 554 F.3d at 1225-26. 21 14 Again, here, the Commissioner relies in part on evidence and reasons not relied on by the ALJ, which the Court does not consider. See Dkt. 18 at 12 (citing Tr. 533, 535, 544); see also Bray, 22 554 F.3d at 1225-26. The Court further notes that the Commissioner appears to have mischaracterized some of the uncited records. See, e.g., Dkt. 18 at 12 (citing Tr. 535, therapist 23 Medina’s November 2019 notes, and misconstruing Medina’s and/or Plaintiff’s apparent goal of “reduced guilt and shame” for Plaintiff as an established fact). 1 Plaintiff’s testimony. See Tr. 24-26; cf. Tr. 27. As such, the Commissioner’s related argument is 2 an impermissible post hoc rationale. Nevertheless, the Court notes for all the same reasons 3 above with respect to Drs. Bowerly’s, Weiss’, Wolfe’s and Lewis’ opinions, Plaintiff’s ADLs are 4 not a valid reason to rejecting Plaintiff’s testimony.

5 Turning to the ALJ’s sixth reason, the Court finds the ALJ failed to adequately consider 6 Plaintiff’s educational records as a whole, and instead selected only those notations and records 7 most favorable to the ALJ’s assessed RFC, without explaining why the contradictory evidence 8 should be discounted. See Tr. 24. Additionally, the ALJ erred in failing to consider the relevant 9 social security ruling (“SSR”) applicable to Plaintiff’s case, SSR 11-2p, which governs the 10 evaluation of disability in young adults. See Social Security Ruling (“SSR”) 11-2p, Titles II and 11 XVI: Documenting and Evaluating Disability in Young Adults, 2011 WL 4055665, at *1 (Sept. 12 12, 2011).15 13 Notably, among other requirements, SSR 11-2p specifically identifies four categories of 14 evidence that an ALJ should consider in determining a young adult’s functioning, including: (1)

15 evidence concerning whether the young adult received special education and related services; (2) 16 evidence pertaining to any IEP formulated for the young adult, describing the skills they needed 17 to develop; (3) evidence pertaining to IEP transition goals, whether transitioning to supervised 18 and supported work and living settings, or independent ones; and (4) considerations related to the 19 fact that goals contained in an IEP may be set at an achievable level to foster a sense of 20 21

15 A “young adult” is defined as “between the ages of 18 to approximately 25.” SSR 11-2p, 2011 22 WL 4055665, at *2. Here, Plaintiff was twenty-one years-old at the time he filed his SSI application in April 2019, and he was he was twenty-four years-old at the time the ALJ issued 23 her decision. Tr. 16, 29, 31. Thus, Plaintiff would have been a young adult under SSR 11-2p for the entire relevant period. 1 accomplishment, and “may be lower than what would be expected of a young adult without 2 impairments.” Id. at *10-13. 3 Here, the ALJ highlighted only the most favorable facts from Plaintiff’s educational 4 records, ignoring less favorable information and failing to consider Plaintiff’s IEP and records as

5 a whole. The ALJ accurately notes Plaintiff was “mainstreamed” beginning his sophomore year 6 in high school, and he earned the necessary credits to ultimately graduate from high school. Tr. 7 24. However, the ALJ failed to adequately address that although Plaintiff was “mainstreamed” 8 for some time in high school, during that time, he continued to have an IEP, continued to attend 9 regular special educational classes due to his “emotional/behavioral disability,” and, at one point 10 during his senior year, Plaintiff was failing three classes and at risk of not graduating. 16 See Tr. 11 280-82, 284, 287. While some teachers reported improvement (as noted by the ALJ), other 12 teachers simultaneously acknowledged Plaintiff’s difficulties with focus, behavior, and 13 completion of assignments. See Tr. 24; Tr. 281-83 (Plaintiff’s teachers note his refusal to take 14 his headphones off, to adequately participate in class, his absences, and his frustration when

15 situations don’t go his way). The ALJ also failed to address Plaintiff’s lengthy history receiving 16 special education services. See Tr. 298 (Plaintiff’s educational records explain that he qualified 17 for and received special education services beginning in 2004, when he was in first grade, due to 18 his emotional disturbance and behavioral and communication disorder.). 19 Given Plaintiff’s age, IEP, and receipt of special education services, SSR 11-2p required 20 the ALJ here to specifically consider how Plaintiff’s school-reported difficulties could portend 21

16 While “mainstreamed,” Plaintiff attended an integrated support class and received special 22 “staff assistant” support. Tr. 280. He went to the support class when he experienced difficulty in the mainstream class or when he disrupted the learning environment for others. Tr. 280. 23 Additionally, in accordance with his IEP, Plaintiff’s behavior was tracked regularly, and staff regularly prepared checklists to help him improve his behavior. Tr. 280. 1 work-related difficulties, and also to consider the degree to which Plaintiff’s extra school 2 supports enabled him to function at school and to graduate. See 2011 WL 4055665, at *6. In 3 particular, the ALJ was required to consider any difficulties that Plaintiff experienced at school 4 in “communicating spontaneously and appropriately in the classroom,” “maintaining attention

5 for extended periods in a classroom,” and/or “relating to authority figures and responding 6 appropriately to correction or criticism during school.” Id. at *7. Furthermore, “[t]he fact that 7 [Plaintiff] receive[d] accommodations as part of an IEP . . . may be an indication that he . . . has 8 a work-related limitation” as well. Id. at *8. Finally, SSR 11-2p required the ALJ to consider 9 that although “[t]reatment, including medications can have a positive effect on a person’s ability 10 to function in a work setting,” it, “may not resolve all of the functional limitations that result 11 from impairments.” Id. at *9. 12 Accordingly, the ALJ failed to adequately consider Plaintiff’s educational records, and, 13 therefore, this reason, as stated, did not constitute a “specific, clear and convincing” reason for 14 rejecting Plaintiff’s testimony.

15 In sum, the ALJ failed to provide a sufficient reason for rejecting Plaintiff’s testimony. 16 On remand, the ALJ should reconsider Plaintiff’s testimony, and in doing so, shall consider 17 Plaintiff’s educational records pursuant to SSR 11-2p. See Heckler v. Edwards, 465 U.S. 870, 18 873 n.3 (1984) (SSRs are binding on all SSA decision-makers); Bray, 554 F.3d at 1224 (holding 19 that SSRs “do not carry the ‘force of law,’ but they are binding on ALJs nonetheless”). 20 Turning to Plaintiff’s mother, C.B.’s testimony, the ALJ stated she found C.B.’s 21 testimony “partially persuasive,” but did not specify which portions of the testimony she found 22 persuasive and which she did not. Tr. 29. Instead, the ALJ found, even “accept[ing C.B.’s] 23 allegations as completely true,” the “level of limitation[s]” described by C.B. did “not describe 1 symptoms or limitations so severe as to preclude [Plaintiff] from working at jobs consistent with 2 the [RFC] outlined in this decision.” Tr. 29. 3 Plaintiff argues the ALJ’s reasons for rejecting C.B.’s testimony were not germane and 4 were not supported by substantial evidence. He contends C.B.’s testimony is consistent with the

5 longitudinal record, noting that the medical opinions from Drs. Bowerly, Weiss, and therapist 6 Medina supported C.B.’s testimony regarding Plaintiff’s limitations. Second, Plaintiff contends 7 the ALJ erred in failing to provide a reason C.B.’s testimony was unsupported, and the ALJ 8 further misconstrued the severity of the functional limitations warranted by C.B.’s testimony. 9 Dkt. 12 at 15. 10 The Commissioner counters the ALJ was not required to articulate how she considered 11 C.B.’s testimony under the 2017 regulations. Dkt. 18 at 14. The Commissioner then summarily 12 argues C.B.’s testimony was inconsistent with “generally unremarkable medical evidence.” Dkt. 13 18 at 15. Finally, the Commissioner argues the ALJ properly rejected C.B.’s testimony for the 14 same reasons she rejected P’s testimony. Dkt. 18 at 15.

15 The Court rejects the Commissioner’s argument the ALJ need not articulate his or her 16 consideration of the lay witness testimony. An ALJ is required to determine RFC based upon all 17 relevant evidence of record; this includes observations made by a claimant’s family, neighbors, 18 friends, or other person. See 20 C.F.R §§ 404.1454(a)(1), 404.1545(a)(3). That an ALJ can 19 disregard or reject relevant lay witness evidence for no reason is inconsistent with the 20 Commissioner’s obligation to consider such evidence, and the rule the ALJ must provide some 21 rationale in order for the Court to meaningfully determine whether the ALJ’s conclusions are 22 free of legal error and supported by substantial evidence. See, e.g., Holohan v. Massanari, 246 23 F.3d 1195, 1208 (9th Cir. 2001). 1 Here, the ALJ failed to provide any reasons for rejecting C.B.’s testimony and further 2 mischaracterized the severity of the adaptation, social, and concentration and persistence 3 limitations that would have been warranted by C.B.’s testimony. Contrary to the 4 Commissioner’s suggestion, in discounting C.B.’s testimony, the ALJ did not cite the same

5 reasons that she provided for discounting Plaintiff’s testimony. See Tr. 24-26; cf. 29. Moreover, 6 as described above, C.B.’s testimony was not identical to Plaintiff’s testimony, but was, in fact, 7 more expansive and offered the perspective of an adult close to Plaintiff regarding his behavior, 8 social interaction, focus, and ability to complete tasks and chores. See Tr. 230-37, 252-59; cf. Tr. 9 41-49. 10 Finally, C.B.’s mother was a close family member whose testimony the ALJ was 11 specifically required to consider under SSR 11-2p. See 2011 WL 4055665. SSR 11-2p instructs 12 the ALJ to consider evidence from other sources who are not medical sources, “but who know 13 and have contact with the young adult [and] can help [the ALJ] evaluate the severity and impact 14 of a young adult’s impairment(s),” including “family members, educational personnel (for

15 example, teachers and counselors), public and private social welfare agency personnel, and 16 others (for example, friends, neighbors and clergy).” Id. at *5. 17 Here, C.B., Plaintiff’s mother, attested to the help and reminders Plaintiff requires – 18 testimony SSR 11-2p recognizes is important in determining a young adult’s RFC. See Tr. 233, 19 234, 237; see also 2011 WL 4055665, at *8 (providing that “[i]f a young adult can function only 20 if he or she receives more help than would generally be provided to people without medical 21 impairments, we consider how well the young adult would function without the extra help,” and 22 clarifying that “[t]he more extra help or support of any kind that a young adult receives because 23 1 of his or her impairment(s), the less independent he or she is in functioning, and the more severe 2 we will find the limitation to be”). 3 C.B. also attested to Plaintiff’s stress response, another consideration that SSR 11-2p 4 requires the ALJ to consider. See 2011 WL 4055665, at *10 (noting that “[s]ources familiar with

5 the young adult may provide insight about the effect of stress on his. . . physical or mental 6 functioning and what, if any, psychosocial supports or structure he . . . would need when 7 experiencing work-related stress”). 8 For the above reasons, the ALJ harmfully erred in evaluating Plaintiff’s and C.B.’s 9 testimony. On remand, the ALJ must offer adequate reasons for rejecting the testimony and 10 must also properly apply SSR 11-2p. 11 C. New Evidence from Plaintiff’s Mother 12 Following the ALJ’s May 2022 decision, in July 2022, Plaintiff’s mother, C.B., submitted 13 a “rebuttal” letter in support of Plaintiff’s appeal before the Appeals Council. Tr. 12. The 14 Appeals Council considered the letter in denying review, concluding that “the reasons do not

15 provide a basis for changing the [ALJ’s] decision.” Tr. 2. 16 In the rebuttal letter, C.B. described in more detail Plaintiff’s fear of leaving the house, 17 noting: 18 [Plaintiff] has been known to absolutely refuse to leave the home when he knows he will be in a situation [where] he will be separated from us [immediate family], unless 19 it is to walk around the block in the area he has lived over fifteen years. . . , with the family dog – which he does six to seven times per year, and without speaking to 20 neighbors.

21 Tr. 12. 22 C.B. further emphasized Plaintiff only does chores like feeding pets on his parents’ 23 request, never simply because he sees it needs to be done. She also clarified Plaintiff wishes he 1 could attend college, have a job and/or a relationship with a significant other, but it is too tough 2 because his anxiety provokes “public crying, shaking, and/or distracted speaking when he is 3 outside of his bubble.” Tr. 12. C.B. further elaborated Plaintiff attended therapy, but only 4 because C.B. was with him for the first few sessions, and that while some depression and anxiety

5 medications “helped slightly,” Plaintiff and his family had found none that made “any significant 6 improvement to his emotional state or ease[d] the distracted behaviors.” Tr. 12. C.B. observed 7 Plaintiff is “not only incapable of interacting in any capacity without familiar people near or 8 outside the home alone meaningfully, he also struggles daily to maintain his personal care and 9 consistency of taking medication.” Tr. 12. 10 Plaintiff and the Commissioner both acknowledge the Court must consider the new 11 evidence in conjunction with this appeal because it was considered by the Appeals Council. See 12 Dkt. 12 at 17; Dkt. 18 at 15-16. Plaintiff argues the new evidence provides further support for 13 Plaintiff’s testimony and for the challenged medical opinions. Dkt. 12 at 17; Dkt. 19 at 9. The 14 Commissioner summarily contends “the letter does not undermine the substantial evidence

15 underlying the ALJ’s decision,” equating the new evidence with C.B.’s prior testimony and 16 asserting the ALJ already properly rejected it because “it conflicted with the benign treatment 17 evidence.” Dkt. 18 at 15. 18 “New material is material when it bear[s] directly and substantially on the matter in 19 dispute, and if there is a reasonabl[e] possibility that the new evidence would have changed the 20 outcome of the . . . determination.” Thomas L. v. Comm’r of Soc. Sec., No. 2:18-CV-00342- 21 BAT, 2018 WL 6042314, at *4 (W.D. Wash. Nov. 19, 2018) (quoting Luna v. Astrue, 623 F.3d 22 1032, 1033 (9th Cir. 2010)). Here, the new evidence concerns the degree of Plaintiff’s 23 adaptation, memory, and social limitations. C.B.’s statements in the 2022 letter go beyond those 1 in her original function reports, elaborating on Plaintiff’s inability to leave the house without his 2 immediate family due to his impairments, his fear of any social interaction beyond that with his 3 immediate family, his inappropriate behavior and outbursts, and the impact that Plaintiff’s 4 impairments have on his own ability to meet his hygiene needs and medication compliance. See

5 Tr. 12; cf. Tr. 230-37 (C.B.’s July 2019 function report), 252-59 (C.B.’s January 2020 function 6 report). Given the consistency of the statements in the new evidence with the improperly 7 rejected medical opinion evidence and the improperly rejected testimony from Plaintiff’ and his 8 mother, there is a “reasonable possibility” that the new evidence would have changed the 9 outcome of the proceedings. See Luna, 623 F.3d at 1034. Furthermore, the new evidence 10 constitutes the very type of evidence that SSR 11-2p requires an ALJ to consider in a case like 11 this one, where Plaintiff is considered a “young adult” and took special education classes and had 12 an IEP throughout his schooling. See 2011 WL 4055665, at *1-2, 5, 8, 10. 13 D. SSA Interviewer Observation 14 Plaintiff also challenges the ALJ’s failure to consider a May 30, 2019, observation from

15 SSA interviewer, D. Duff-Lear. Dkt. 12 at 13 (citing Tr. 221). During the interview, Duff-Lear 16 observed Plaintiff “had some difficulty staying focused and [was] distracted.” Tr. 221. The ALJ 17 did not consider Duff-Lear’s observation, and Plaintiff argues this constituted harmful legal 18 error. 19 Plaintiff’s interview with Duff-Lear was “intended to gather basic information about 20 Plaintiff’s condition, not to provide testimony about [his] functional limitations,” and, therefore, 21 the ALJ’s failure to assess this evidence did not constitute harmful error. See Michelle M. v. 22 Comm’r of Soc. Sec., No. 3:19-CV-05499 TLF, 2020 WL 6074460, at *6 (W.D. Wash. Oct. 13, 23 1 2020) (same). Nevertheless, the ALJ will have another opportunity on remand to consider Duff- 2 Lear’s testimony at the same time the ALJ considers other lay witness testimony. 3 E. Additional Issues 4 Plaintiff also argues the ALJ erred in her RFC assessment, and that the ALJ’s VE

5 hypotheticals failed to include all of Plaintiff’s limitations. Dkt. 12 at 17-18. For the reasons 6 above, the Court has already concluded that the ALJ erred in evaluating the medical opinion 7 evidence and Plaintiff’s and C.B.’s testimony, and that the ALJ is required to consider the new 8 evidence from C.B. Given that this case must be remanded on these other grounds, the ALJ must 9 reconsider Plaintiff’s RFC and reformulate the VE hypothetical on remand as well. 10 F. Remedy 11 Plaintiff asks the Court to remand for an immediate award of benefits rather than for 12 administrative proceedings. Dkt. 12 at 18-19. 13 Before ordering remand for an award of benefits, the Court must conclude that the 14 following three requirements are satisfied: (1) the ALJ failed to provide legally sufficient reasons

15 for rejecting evidence; (2) the record has been fully developed and further administrative 16 proceedings would serve no useful purpose; and (3) if the improperly discredited evidence were 17 credited as true, the ALJ would be required to find the claimant disabled on remand. See Brown- 18 Hunter v. Colvin, 806 F.3d 487, 495 (9th Cir. 2015). Even if all three requirements are met, the 19 Court retains flexibility to remand for further proceedings “when the record as a whole creates 20 serious doubt as to whether the claimant is, in fact, disabled within the meaning of the Social 21 Security Act.” Id. (citation omitted). 22 While the Court agrees with Plaintiff that the first and third requirements above are 23 satisfied, it cannot conclude that the record has been fully developed and that further proceedings 1 would serve no useful purpose. Accordingly, remand for further administrative proceedings is 2 the proper remedy. 3 CONCLUSION 4 For the foregoing reasons, the Commissioner’s decision is REVERSED, and this case is

5 REMANDED for further administrative proceedings under sentence four of 42 U.S.C. § 405(g) 6 On remand, the ALJ must reevaluate the medical opinion evidence, Plaintiff’s testimony, C.B.’s 7 testimony, evaluate the new evidence submitted to the Appeals Council, and reconsider 8 Plaintiff’s RFC and the ALJ’s step five findings as warranted. In conducting the requisite 9 sequential analysis on remand, the ALJ shall consider and apply the pertinent social security 10 ruling, SSR 11-2p. See 2011 WL 4055665. Additionally, the ALJ may also consider the May 11 2019 observations from SSA interviewer, D. Duff-Lear, as warranted. 12 DATED this 27th day of February, 2024. 13 A 14 BRIAN A. TSUCHIDA United States Magistrate Judge 15

16 17 18 19 20 21 22 23