Morris v. Kijakazi

Opinion

1 Mar 03, 2023

SEAN F. MCAVOY, CLERK 2

3 4 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 5

6 SAMANTHA M.,1 No. 4:21-cv-5123-EFS

7 Plaintiff, ORDER GRANTING PLAINTIFF’S 8 v. SUMMARY-JUDGMENT MOTION, DENYING DEFENDANT’S 9 KILOLO KIJAKAZI, Acting SUMMARY-JUDGMENT MOTION, Commissioner of Social Security, AND REMANDING FOR FURTHER 10 PROCEEDINGS Defendant. 11 12 13 Plaintiff Samantha M. appeals the denial of benefits by the Administrative 14 Law Judge (ALJ). Because the ALJ failed to adequately develop the record 15 regarding Plaintiff’s claimed mental impairments, the Court reverses the ALJ’s 16 decision and remands this matter for further proceedings. 17 /// 18 // 19 / 20

21 1 For privacy reasons, Plaintiff is referred to by first name and last initial or as 22 “Plaintiff.” See LCivR 5.2(c). 23 1 I. Five-Step Disability Determination 2 A five-step evaluation determines whether a claimant is disabled.2 Step one

3 assesses whether the claimant is engaged in substantial gainful activity.3 Step two 4 assesses whether the claimant has a medically severe impairment or combination 5 of impairments that significantly limit the claimant’s physical or mental ability to 6 do basic work activities.4 Step three compares the claimant’s impairment or 7 combination of impairments to several recognized by the Commissioner to be so 8 severe as to preclude substantial gainful activity.5 Step four assesses whether an 9 impairment prevents the claimant from performing work she performed in the past

10 by determining the claimant’s residual functional capacity (RFC).6 Step five 11 assesses whether the claimant can perform other substantial gainful work—work 12 that exists in significant numbers in the national economy—considering the 13 claimant’s RFC, age, education, and work experience.7 14 15

17 2 20 C.F.R. §§ 404.1520(a), 416.920(a). 18 3 Id. §§ 404.1520(a)(4)(i), (b), 416.920(a)(4)(i), (b). 19 4 Id. §§ 404.1520(a)(4)(ii), (c), 416.920(a)(4)(ii), (c). 20 5 Id. §§ 404.1520(a)(4)(iii), (d), 416.920(a)(4)(iii), (d). 21 6 Id. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). 22 7 Id. §§ 404.1520(a)(4)(v), (g), 416.920(a)(4)(v), (g). 23 1 II. Background 2 In May 2019, Plaintiff filed an application for benefits under Title 16,

3 claiming disability based on attention-deficit/hyperactivity disorder (ADHD), 4 depression, anxiety, shrapnel in her right knee, and foot pain.8 Plaintiff alleged 5 an onset date of September 29, 2018.9 After the agency denied her applications 6 initially and on reconsideration,10 Plaintiff requested a hearing before an ALJ. 7 In October 2020, ALJ Donna Walker held a telephonic hearing through 8 which she heard testimony from medical expert Jay Toews, EdD, Plaintiff, and a 9 vocational expert.11 In November 2020, the ALJ issued a written decision denying

10 disability.12 11 // 12

13 8 AR 191, 223. 14 9 AR 191. 15 10 AR 73–83 (initial denial); AR 84–98 (denial on reconsideration). Although the 16 record contains references regarding Plaintiff transitioning from female to male, 17 Plaintiff consistently uses female pronouns in her briefing. See generally ECF 18 Nos. 14, 20. Based on Plaintiff’s apparent pronoun preference—and for the sake of 19 consistency and clarity—the Court uses only female pronouns to refer to Plaintiff. 20 Any misgendering is inadvertent; no disrespect is intended. 21 11 AR 38–71. 22 12 AR 15–26. 23 1 As to the sequential disability analysis, the ALJ found: 2 • Step one: Plaintiff had not engaged in substantial gainful activity since

3 March 1, 2019, the application date. 4 • Step two: Plaintiff had the following medically determinable severe 5 impairments: adjustment disorder, with anxiety, and personality 6 disorder, unspecified. 7 • Step three: Plaintiff did not have an impairment or combination of 8 impairments that met or medically equaled the severity of one of the 9 listed impairments.

10 • RFC: Plaintiff had the RFC to perform work at all exertional levels but 11 limited to work that is: 12 o simple, routine, and predictable; 13 o commensurate an SVP rating of 2; 14 o free from production quotas, 15 o possibly in proximity to, but not requiring close cooperation with, co-

16 workers and supervisors; and 17 o away from the general public.13 18 • Step four: Plaintiff had no past relevant work. 19 // 20 / 21

22 13 See AR 20. 23 1 • Step five: considering Plaintiff’s RFC, age, education, and work history, 2 Plaintiff could perform work that existed in significant numbers in the

3 national economy, such as assembler, small parts; laundry worker I; and 4 laborer, stores.14 5 In reaching her decision, the ALJ found Dr. Toews’ testimony persuasive and 6 relied on it heavily in assessing Plaintiff’s mental impairments and related 7 testimony.15 The ALJ found Plaintiff’s medically determinable impairments could 8 reasonably be expected to cause some of the alleged symptoms, but her statements 9 concerning the intensity, persistence, and limiting effects of those symptoms were

10 “not entirely consistent with the medical evidence and other evidence in the 11 record.”16 12 Plaintiff requested review of the ALJ’s decision by the Appeals Council, 13 which denied review.17 Plaintiff then appealed to this Court. 14 //// 15 ///

16 // 17 / 18

19 14 AR 25. 20 15 See AR 21–24. 21 16 AR 21. 22 17 AR 1–6. 23 1 III. Standard of Review 2 A district court’s review of the Commissioner’s final decision is limited.18

3 The Commissioner’s decision is set aside “only if it is not supported by substantial 4 evidence or is based on legal error.”19 Substantial evidence is “more than a mere 5 scintilla but less than a preponderance; it is such relevant evidence as a reasonable 6 mind might accept as adequate to support a conclusion.”20 Because it is the role of 7 the ALJ to weight conflicting evidence, the Court upholds the ALJ’s findings “if 8 they are supported by inferences reasonably drawn from the record.”21 Further, 9 the Court may not reverse an ALJ decision due to a harmless error—one that “is

10 inconsequential to the ultimate nondisability determination.”22 11 12 13

14 18 42 U.S.C. § 405(g). 15 19 Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). 16 20 Id. at 1159 (quoting Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997)). 17 21 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). See also Lingenfelter v. 18 Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (The court “must consider the entire 19 record as a whole, weighing both the evidence that supports and the evidence that 20 detracts from the Commissioner's conclusion,” not simply the evidence cited by the 21 ALJ or the parties.) (cleaned up). 22 22 Molina, 674 F.3d at 1115 (cleaned up). 23 1 IV. Analysis 2 Plaintiff argues the ALJ erred by (1) failing to develop the record regarding

3 Plaintiff’s diagnosis of autism, (2) improperly discounting Plaintiff’s symptom 4 reports, and (3) failing to fully consider the impact of Plaintiff’s personality 5 disorder when analyzing the evidence of record.23 For the reasons that follow, the 6 Court agrees that the ALJ failed to adequately develop the record regarding 7 Plaintiff’s claimed (and seemingly diagnosed) impairment of autism. And, because 8 that error requires reversal for additional proceedings and a new sequential 9 evaluation, the Court does not reach Plaintiff’s other assignments of error.

10 A. Development of the Record: Plaintiff shows reversible error. 11 Plaintiff first argues that the ALJ failed to adequately develop the record 12 regarding Plaintiff’s claimed impairment of autism.24 Plaintiff contends that the 13 ALJ should have inquired further regarding autism in light of Plaintiff’s pre- 14 hearing brief (in which she asserted autism spectrum disorder as a severe 15 impairment),25 her testimony regarding autism being the biggest obstacle to

16 employment, her self-reports of being diagnosed with autism as a child, and 17 psychological reports which included autism as a possible diagnosis. 18 19

20 23 See ECF No. 14 at 2. 21 24 ECF No. 14 at 5–8. 22 25 See AR 294–95. 23 1 1. An ALJ’s Duty to Develop the Record 2 Although a claimant carries the burden of proving disability in Social

3 Security cases,26 the ALJ nonetheless “has a special duty to fully and fairly develop 4 the record and to assure that the claimant’s interests are considered.”27 To begin 5 with, unless the alleged onset date is less than 12 months before the claimant filed 6 her application, the ALJ in every case is required to develop the claimant’s 7 “complete medical history” for “at least” the 12 months preceding the month of 8 filing.28 But the ALJ may need to develop the claimant’s medical history even 9 further back if “there is a reason to believe that development of an earlier period is

10 necessary.”29 Similarly, the circumstances of a given case may require additional 11 development of the evidence relating to a particular issue. “The ALJ’s duty to 12 supplement a claimant’s record is triggered by ambiguous evidence, the ALJ’s own 13 finding that the record is inadequate[,] or the ALJ’s reliance on an expert’s 14 conclusion that the evidence is ambiguous.”30 15

16 26 42 U.S.C. § 423(d)(5)(A); 20 C.F.R. § 416.912(a). 17 27 Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996) (quoting Brown v. Heckler, 18 713 F.2d 441, 443 (9th Cir. 1983)). 19 28 20 C.F.R. § 416.912(b)(1). 20 29 Id. 21 30 Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005). See also Mayes v. 22 Massanari, 276 F.3d 453, 459–60 (9th Cir. 2001) (“An ALJ’s duty to develop the 23 1 2. Dr. Marks’ Psychological Evaluations of Plaintiff 2 As Plaintiff points out, the first discussion of autism in the current record

3 was by psychologist N.K. Marks, PhD, in December 2016, when she included it as a 4 rule-out diagnosis.31 It was in December 2016 that Dr. Marks performed her first 5 psychological evaluation of Plaintiff, which included a clinical interview but lacked 6 any records to review.32 Dr. Marks expressly labeled autism as a rule-out 7 diagnosis,33 explaining in her report, “[Plaintiff] has some avoidance features and 8 possible cluster B characteristics.34 She may have some autistic tendencies, 9 however, in her inability to read people clearly. More data would be needed to

10 11

12 record further is triggered only when there is ambiguous evidence or when the 13 record is inadequate to allow for proper evaluation of the evidence.”). 14 31 ECF No. 14 at 6 (citing AR 813). 15 32 AR 810–16. 16 33 AR 813 (“R/O Autism Spectrum, Level 1”). 17 34 AR 812. According to the Mayo Clinic, “Cluster B personality disorders are 18 characterized by dramatic, overly emotional[,] or unpredictable thinking or 19 behavior. They include antisocial personality disorder, borderline personality 20 disorder, histrionic personality disorder and narcissistic personality disorder.” See 21 https://www.mayoclinic.org/diseases-conditions/personality-disorders/symptoms- 22 causes/syc-20354463 (accessed Feb. 24, 2023). 23 1 diagnose.”35 Dr. Marks further explained, “[Plaintiff] presents with a myriad of 2 symptoms and observations over time will help clarify diagnosis.”36 Dr. Colby, a

3 state-agency psychologist, reviewed and agreed with Dr. Marks’ December 2016 4 report, including the rule-out diagnosis of autism spectrum disorder.37 5 In December 2017, Dr. Marks evaluated Plaintiff a second time, with 6 Plaintiff endorsing the same symptoms as the year before.38 Plaintiff further 7 reported that she was diagnosed with autism in school, but that when she 8 transferred schools, her new school “did not carry that diagnosis through.”39 9 Dr. Marks noted under the treatment-history portion of her report that “[Plaintiff]

10 still has many problems dealing with others, considerable anxiety[,] and has little 11 idea of what is expected of her.”40 Then, in her clinical findings regarding autism, 12 Dr. Marks noted, “Records pending. [Plaintiff] presents with social[ly] awkward 13 behavior, poor social understanding, limited insight, immaturity, significant social 14 anxiety. She is somewhat literal, has constricted affect, little sense of humor, 15

17 35 AR 812. 18 36 AR 814. 19 37 AR 808–09. 20 38 AR 817–22. 21 39 AR 818. 22 40 AR 818. 23 1 avoids others. She reports that she was in life skills due to her poor social skills 2 and academics, diagnosed with autism in [grade school].”41

3 Under diagnoses, Dr. Marks no longer attached the “rule-out” qualifier to 4 the autism diagnosis; nor did she otherwise expressly label it as a “provisional” or 5 “differential” diagnosis. Rather, Dr. Marks wrote, “Autism spectrum disorder— 6 further assessment is planned.”42 And, under the prognosis/plan portion of her 7 report, Dr. Marks explained, “Records have been requested from her past schools 8 regarding autism diagnosis. She presents as socially awkward today, somewhat 9 literal, reports high levels of social anxiety and poor social understanding. A full

10 assessment is recommended to determine cognitive levels, document autism 11 symptoms.”43 12 The record lacks any indication as to whether the “full assessment” 13 recommended by Dr. Marks ever took place or, if so, what the assessment says 14 regarding Plaintiff’s claim of autism as a medically determinable impairment. The 15 same is true regarding the school records that Dr. Marks requested. However,

16 when state-agency consulting psychologist Luci Carstens, PhD, PS, reviewed 17

18 41 AR 819 (emphasis added). See also AR 818 (noting Plaintiff presented “as very 19 literal, no sense of humor”). 20 42 AR 819 (emphasis added). Dr. Marks also included other diagnoses that are not 21 relevant for purposes of the Court’s decision. 22 43 AR 820–21 (emphasis added). 23 1 Dr. Marks’ December 2017 report, Dr. Carstens opined that the diagnosis of “an 2 autism spectrum disorder” was supported by available objective medical evidence.44

3 Dr. Carstens did not appear to treat the autism diagnosis as still being limited to a 4 rule-out diagnosis. 5 3. Dr. Toews’ Testimony 6 At the hearing, Dr. Toews—on whom the ALJ relied extensively throughout 7 her decision—testified first. Dr. Toews said that based on his review of the records, 8 Plaintiff’s psychological issues appeared to be mostly “adjustment related 9 problems,” and Dr. Toews opined that “the most correct diagnosis would be an

10 adjustment disorder with anxiety.”45 11 Notably, in reviewing the medical evidence, Dr. Toews credited Dr. Marks as 12 giving one of the two best psychological evaluations in the record.46 And Dr. Toews 13 commented only briefly on the subject of autism. Dr. Toews observed, “Dr. Mark[s] 14 felt [Plaintiff] had avoidant personality features and raised a question as to 15 whether or not there might be some kind of signs of autism and some kind of signs

16 17 18

19 44 See AR 823. Dr. Carstens also explained that Dr. Colby’s December 2016 review 20 of medical evidence similarly reflected such a diagnosis. See AR 823. 21 45 AR 46. 22 46 AR 46–47. 23 1 of ADHD.”47 But Dr. Toews gave no additional information or analysis regarding 2 autism or ADHD and simply noted, “Those were not confirmed. There was no

3 further testing.”48 4 The ALJ did not inquire further with Dr. Toews regarding autism, its signs 5 and symptomology, or whether a confirmed diagnosis would alter his analysis of 6 the available evidence. According to the Listings, the signs and symptoms of 7 autism spectrum disorder can include “behavioral difficulties, including 8 hyperactivity, short attention span, impulsivity, aggressiveness, or self-injurious 9 actions.”49 And much of the record reflects Plaintiff exhibiting behavior that—at

10 least arguably—matches those symptoms.50 Lacking any discussion by Dr. Toews, 11 12

13 47 AR 47. See also AR 49 (regarding the Listing for autism spectrum disorder, 14 Dr. Toews saying, “I think . . . there is insufficient evidence. There was no follow 15 up to the diagnosis under that category.”). 16 48 AR 47. See also AR 49 (regarding the Listing for autism spectrum disorder, 17 Dr. Toews saying, “I think . . . there is insufficient evidence. There was no follow 18 up to the diagnosis under that category.”). 19 49 Listing 12.00(B)(8), 20 C.F.R. § Pt. 404, Subpt. P, App. 1. 20 50 See, e.g., AR 377–402 (inpatient treatment for suicidal ideation); AR 497 (noting 21 “reckless behavior of writing on her doors”); AR 596 (Plaintiff reporting poor 22 concentration and increased anger and irritability, stating that “any little thing” 23 1 or any other evidence to inform the issue, it is unclear whether a confirmed 2 diagnosis of autism would have altered any of Dr. Toews’ opinions, particularly his

3 opinion that much of Plaintiff’s problems were “due to motivation and 4 noncompliance, not any mental illness,” and that she “would be highly responsive 5 to a behavior modification program.”51 6 4. Plaintiff’s Testimony 7 After Dr. Toews concluded and hung up, Plaintiff presented testimony. The 8 ALJ started by asking Plaintiff for her name, date of birth, education, and recent 9 work history. Plaintiff’s counsel then proceeded to ask Plaintiff about her claimed

10 impairments.52 Although Plaintiff also described suffering from social anxiety, 11 depression, and ADHD, she testified that autism was “the main reason” why she 12 could not work.53 Plaintiff did not elaborate on her autism symptoms or how 13 autism specifically limited her ability to work. Yet, the ALJ never asked Plaintiff 14 any clarifying questions about autism or why she believed it to be her most 15 significant impairment. Indeed, after asking the basic introductory questions, the

16 ALJ did not ask Plaintiff any follow-up questions at all. 17

18 will cause her to “lose [her] cool” and she will scream at others.); AR 860 (“Sores on 19 arms from picking at skin.”). 20 51 AR 50, 54. 21 52 AR 57–64. 22 53 AR 59–61. 23 1 5. The ALJ’s Finding 2 In rejecting autism as a medically determinable impairment, the ALJ stated:

3 [A]lthough the claimant testified at the hearing to being most limited in terms of her ability to work by autism, and that difficulty with 4 treatment compliance has been limited by an attention deficit disorder, these and other mental impairments mentioned in the 5 medical evidence of record are found to be non-medically determinable. Along these lines, consistent with Dr. Toews’s hearing 6 testimony, it appears that autism and an attention deficit disorder, have been specifically identified by other psychologists as constituting 7 only rule out diagnoses with further assessment needed.”54

8 But, given the change in Dr. Marks first expressly labeling autism as a rule- 9 out diagnosis and then omitting any such label in her second report, as well as 10 Dr. Carstens’ endorsement of a qualifier-free diagnosis of “an autism spectrum 11 disorder,” there is good cause to question whether autism was truly just included 12 as a rule-out diagnosis. More, even assuming the ALJ reasonably interpreted the 13 autism diagnoses as “constituting only rule out diagnoses,” the ALJ’s own finding 14 seemingly acknowledged that “further assessment” was necessary before the ALJ 15 could properly determine whether Plaintiff had autism (and/or ADHD) as 16 medically determinable impairments. 17 Additionally, Dr. Toews never gave an opinion as to whether Plaintiff truly 18 has autism; Dr. Toews merely indicated that the question was raised but never 19 answered—in other words, that the record remained ambiguous on that issue. 20 Based on the combination of Dr. Toews’ testimony, Dr. Marks’ psychological 21

22 54 AR 18 (emphasis added) (citing AR 808, 813, 819). 23 1 evaluations, Dr. Carstens’ reviewing opinion, Plaintiff’s pretrial briefing, and 2 Plaintiff’s hearing testimony, the ALJ should have been alerted to the need to

3 inquire further before rejecting autism as a medically determinable impairment.55 4 After all, “it is incumbent upon the ALJ to scrupulously and conscientiously probe 5 into, inquire of, and explore for all the relevant facts. [S]he must be especially 6 diligent in ensuring that favorable as well as unfavorable facts and circumstances 7 are elicited.”56 8 6. Reversible Error 9 Due to a noted lack of medical evidence, the current record remains

10 ambiguous as to whether Plaintiff has autism.57 The ALJ therefore erred by failing 11 to adequately develop Plaintiff’s “complete medical history, including arranging for 12 a consultative examination(s) if necessary, and making every reasonable effort to 13 help [her] get medical reports from [her] own medical sources,” before determining 14 that she was not disabled.58 15

16 55 See Webb, 433 F.3d at 687; Mayes, 276 F.3d at 459–60. 17 56 Celaya v. Halter, 332 F.3d 1177, 1183 (9th Cir. 2003) (quoting Higbee v. Sullivan, 18 975 F.2d 558, 561 (9th Cir. 1992)). 19 57 See Webb, 433 F.3d at 687 (“[A]n ALJ may find that a claimant lacks a medically 20 severe impairment or combination of impairments only when h[er] conclusion is 21 ‘clearly established by medical evidence.’” (quoting SSR 85-28)). 22 58 20 C.F.R. § 416.945(a)(3). 23 1 Errors by an ALJ at step two of the evaluation process are frequently 2 deemed inconsequential—the idea being that such error “could only have

3 prejudiced [the claimant] in step three (listing impairment determination) or step 4 five (RFC) because the other steps, including this one, were resolved in her 5 favor.”59 Here, however, neither the ALJ’s decision nor the overall record provide a 6 basis for the Court to assess whether, or to what extent, an accurate autism 7 diagnosis might have altered the rest of the sequential evaluation process, 8 including steps three and five. The Court therefore “cannot conclude that the 9 ALJ’s decision was based on substantial evidence that took the totality of

10 [Plaintiff]’s medical condition[s] into account.60 The ALJ’s error was consequential 11 and warrants reversal.61 12 B. Remand: Further proceedings are required. 13 The record does not clearly establish that Plaintiff is disabled, and remand 14 for further proceedings is necessary to further develop the record and to resolve 15

16 17 18 19

20 59 See Burch v. Barnhart, 400 F.3d 676, 682 (9th Cir. 2005). 21 60 Celaya, 332 F.3d at 1184. 22 61 See Molina, 674 F.3d at 1115. 23 1 outstanding questions of fact.62 Because the new evidence will likely inform nearly 2 every aspect of the ALJ’s analysis, a new sequential evaluation is necessary.

3 On remand, the ALJ shall further develop the record regarding Plaintiff’s 4 claimed mental impairments—particularly autism spectrum disorder and ADHD— 5 and then conduct the disability evaluation anew, beginning at step two and subject 6 to the following directions. 7 1. The ALJ shall inquire further with Plaintiff regarding her claimed mental 8 impairments, including the related symptoms, behaviors, and/or other 9 limitations.

10 2. The ALJ is encouraged to make reasonable efforts to obtain Plaintiff’s 11 school records as well as any other records the ALJ believes may inform 12 the analysis regarding Plaintiff’s claimed mental impairments, particularly 13 autism. 14 3. Unless further development of the record otherwise reveals a psychological 15 evaluation that is adequately on point, supported, explained, and recent,

16 the ALJ shall order a psychological evaluation of Plaintiff that specifically 17 addresses autism spectrum disorder and ADHD as potential diagnoses. 18 19

20 62 See Leon v. Berryhill, 800 F.3d 1041, 1045 (9th Cir. 2017); Garrison v. Colvin, 21 759 F.3d 995, 1020 (9th Cir. 2014). See also ECF No. 14 at 17 (seeking remand for 22 further development of the record). 23 1 4. Unless it is clear after further development that the evidence does not 2 support autism as a medically determinable impairment, the ALJ shall

3 obtain additional medical-expert evidence from a psychologist regarding 4 the signs and symptoms of autism and explaining what, if any, behaviors 5 exhibited by Plaintiff throughout the record could reasonably be attributed 6 to autism. At the ALJ’s discretion, the ALJ may direct that these issues be 7 expressly addressed as part of the above psychological evaluation, or the 8 ALJ may consult a different psychologist to elicit such evidence. 9 5. If the ALJ again discounts Plaintiff’s symptom reports, the ALJ must

10 articulate specific, clear, and convincing reasons for doing so.63 General 11 findings are insufficient because the Court cannot affirm discounting 12 Plaintiff’s symptoms for a reason not articulated by the ALJ.64 The ALJ 13 must identify what symptoms are being discounted and what evidence 14 undermines these symptoms.65 Additionally, when providing reasons for 15 rejecting Plaintiff’s symptom reports, the ALJ should be mindful of the

16 following: 17

18 63 Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (quoting Lingenfelter, 504 19 F.3d at 1036). 20 64 See Garrison, 759 F.3d at 1010. 21 65 Ghanim, 763 F.3d at 1163 (requiring the ALJ to sufficiently explain why he 22 discounted claimant’s symptom claims)). 23 1 a. “[I]t is a questionable practice to chastise one with a mental 2 impairment for the exercise of poor judgment in seeking

3 rehabilitation.”66 Absent additional explanation and/or evidence, a 4 simple failure by the claimant to consistently take prescribed mental- 5 health medications is unlikely to constitute a clear and convincing 6 reason for discounting a claimant’s mental-health symptom 7 testimony, especially if such noncompliance or lack of treatment may 8 be attributed to the claimant’s mental impairments and/or a lack of 9 access to the treatment in question.67

10 b. Absent an explanation as to how a claimant’s reported activities 11 directly contradict specifically identified symptom testimony, an ALJ 12 may reject such symptom testimony only upon making “specific 13 findings relating to the daily activities and their transferability” to a 14 work setting.68 15

16 66 Regennitter v. Comm’r of Soc. Sec. Admin., 166 F.3d 1294, 1209–1300 (9th Cir. 17 1999). 18 67 See Garrison, 759 F.3d at 1018 n.24 (Symptom testimony cannot be rejected for 19 lack of treatment if “the record affords compelling reason to view such departures 20 from prescribed treatment as part of claimants’ underlying mental afflictions.”). 21 68 See Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007); See also Vertigan v. Halter, 22 260 F.3d 1044, 1050 (9th Cir. 2001) (The Ninth Circuit has “repeatedly asserted 23 1 c. For evidence of successful treatment/improvement to provide a valid 2 basis for rejecting a claimant’s mental-health symptom reports, the

3 record must demonstrate that (1) the relief is lasting, and (2) the type 4 and degree of relief are such that it is truly at odds with the symptom 5 reports being rejected.69 6 V. Conclusion 7 Plaintiff establishes the ALJ erred. The ALJ is to develop the record and 8 reevaluate—with meaningful articulation and evidentiary support—the sequential 9 process as set forth above.

10 Accordingly, IT IS HEREBY ORDERED: 11 1. Plaintiff’s Motion for Summary Judgment, ECF No. 14, is 12 GRANTED. 13 2. The Commissioner’s Motion for Summary Judgment, ECF No. 19, is 14 DENIED. 15 3. The Clerk’s Office shall enter JUDGMENT in favor of Plaintiff.

16 17

18 that the mere fact that a plaintiff has carried on certain daily activities, such as 19 grocery shopping, driving a car, or limited walking for exercise, does not in any way 20 detract from her credibility as to her overall disability.”). 21 69 See Garrison, 759 F.3d at 1017–18; see also Reddick v. Chater, 157 F.3d 715, 723 22 (9th Cir. 1998)). 23 1 4. The decision of the ALJ is REVERSED and this matter is 2 REMANDED to the Commissioner of Social Security for further 3 proceedings pursuant to sentence four of 42 U.S.C. § 405(g). 4 || 5 || /// 6 7 8 5. The case shall be CLOSED. 9 IT IS SO ORDERED. The Clerk’s Office is directed to file this order and 10 || provide copies to all counsel. 11 DATED this 3rd day of March 2023. 1 Med Fhe 13 EDWARD F.SHEA Senior United States District Judge 14 15 16 17 18 19 20 21 22 23

ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 22