Reynolds v. Commissioner of Social Security Administration

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Cynthia J Reynolds, No. CV-22-00404-PHX-SMB

10 Plaintiff, ORDER

11 v.

12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Plaintiff challenges the denial of her application for Disability Insurance Benefits 16 (“DIB”) under Title II of the Social Security Act (“the Act”) by Defendant, the 17 Commissioner of the Social Security Administration (“Commissioner” or “Defendant”). 18 Plaintiff exhausted administrative remedies and filed a Complaint seeking judicial review 19 of the denial. (Doc. 1.) The Court exercises jurisdiction pursuant to 42 U.S.C. § 405(g). 20 Having reviewed Plaintiff’s Opening Brief (Doc. 12, “Pl. Br.”), Defendant’s Answering 21 Brief (Doc. 14, “Def. Br.”), Plaintiff’s Reply (Doc. 15, “Reply”), and the Administrative 22 Record (Doc. 11, “AR.”), the Court hereby reverses the Commissioner’s unfavorable 23 decision and remands for additional proceedings. 24 I. THE SEQUENTIAL EVALUATION PROCESS AND JUDICIAL REVIEW 25 To determine whether a claimant is disabled for purposes of the Act, the 26 Administrative Law Judge (“ALJ”) follows a five-step process. E.g., 20 C.F.R. § 27 404.1520(a)(4). The claimant bears the burden of proof at the first four steps, but the 28 burden shifts to the Commissioner at step five. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th 1 Cir. 1999). At the first step, the ALJ determines whether the claimant is engaging in 2 substantial, gainful work activity. 20 C.F.R. § 404.1520(a)(4)(i). If the claimant is 3 engaged in disqualifying work, she is not disabled. Id. If she is not engaged in such work, 4 the analysis proceeds to step two, where the ALJ determines whether the claimant has a 5 “severe” medically determinable physical or mental impairment. Id. § 404.1520(a)(4)(ii). 6 If the claimant has no such impairment, she is not disabled. Id. If she does, the analysis 7 proceeds to step three, where the ALJ considers whether the claimant’s impairment or 8 combination of impairments meets or is medically equivalent to an impairment listed in 9 Appendix 1 to Subpart P of 20 C.F.R. Part 404. Id. § 404.1520(a)(4)(iii). If so, the 10 claimant is disabled. Id. If not, the ALJ assesses the claimant’s residual functional 11 capacity (“RFC”) and proceeds to step four,1 where the ALJ determines whether the 12 claimant is still capable of performing her past relevant work. Id. § 404.1520(a)(4)(iv). If 13 the claimant can perform her past relevant work, she is not disabled. Id. If she cannot, the 14 analysis proceeds to the fifth and final step, where the ALJ determines if the claimant can 15 perform any other work in the national economy based on her RFC, age, education, and 16 work experience. Id. § 404.1520(a)(4)(v). If the claimant cannot perform any other work, 17 she is disabled. Id. 18 The Court may set aside the Commissioner’s disability determination only if the 19 determination is not supported by substantial evidence or is based on legal error. Orn v. 20 Astrue, 495 F.3d 625, 630 (9th Cir. 2007). “Substantial evidence is more than a mere 21 scintilla but less than a preponderance . . . It is such relevant evidence as a reasonable 22 mind might accept as adequate to support a conclusion.” Id. (quotations and citations 23 omitted). In determining whether substantial evidence supports a decision, the court 24 “must consider the entire record as a whole and may not affirm simply by isolating a 25 specific quantum of supporting evidence.” Id. (quotations and citations omitted). 26 Generally, “[w]here the evidence is susceptible to more than one rational interpretation, 27 one of which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.”

28 1 The “residual functional capacity is the most [the claimant] can still do despite [her] limitations.” 20 C.F.R. § 404.1545(a)(1). 1 Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citations omitted). 2 II. PROCEDURAL HISTORY 3 Plaintiff filed an application for DIB on January 7, 2019 alleging disability 4 beginning June 3, 2018. (AR. at 188.) Her applications were denied at the initial and 5 reconsideration phases of administrative review (AR. at 100-104, 108-116), and Plaintiff 6 timely requested a hearing (AR. at 120-21). ALJ Myriam Fernandez-Rice held a 7 telephonic hearing on November 3, 2020, at which the Plaintiff and a vocational expert 8 testified. (AR. at 35-54.) ALJ Fernandez-Rice issued an unfavorable decision on January 9 6, 2021. (AR. at 14-32.) 10 In that decision, the ALJ concluded Plaintiff had not engaged in disqualifying 11 work activity and that she suffered from medically-determinable, severe impairments 12 including degenerative disc disease, depression, and anxiety. (AR. at 20.) The ALJ 13 concluded Plaintiff’s impairments did not meet or medically equal the criteria of any 14 listed impairment (AR. at 20-22), and that Plaintiff retained the ability to perform 15 medium work with occasional kneeling (AR. at 22). The ALJ further limited Plaintiff to 16 “simple, repetitive, and routine tasks, with only occasional interaction with the public.” 17 (AR. at 22.) The ALJ concluded Plaintiff’s “statements concerning the intensity, 18 persistence and limiting effects of [her] symptoms are not entirely consistent with the 19 medical evidence and other evidence in the record for the reasons explained in this 20 decision.” (AR. at 23.) The ALJ found the prior administrative medical findings at the 21 reconsideration level to be “mostly persuasive, as the record supported the limitation to 22 less than a full range of medium work, though the claimant’s recognition of a need to 23 seek crisis care was more consistent with a mild limitation in adapting and managing 24 herself.” (AR. at 25.) The ALJ found the opinion of Plaintiff’s treating mental health 25 provider, NP Luis Fong, to be unpersuasive. (AR. at 25.) The ALJ asserted, “Mr. Fong 26 noted that the claimant had very significant physical limitations and would miss multiple 27 days of work per month because of her impairments. (Exhibit 14F). These findings are 28 not supported by the claimant’s physical examination results, and are inconsistent with 1 her treatment record as a whole.” (AR. at 25.) The ALJ concluded Plaintiff could perform 2 other jobs existing in significant numbers in the national economy at step five, and that 3 she is not disabled. (AR. at 26-27.) 4 Plaintiff appealed, but her request for review was denied by the Social Security 5 Appeals Council on January 21, 2022. (AR. at 1-3.) Plaintiff then filed this civil action. 6 (Doc. 1.) 7 III. DISCUSSION 8 Plaintiff raises two issues: (1) whether the ALJ erred by failing to properly assess 9 the opinions of NP Fong and the prior administrative medical findings of L. Mogrovejo, 10 Ph.D. (Pl. Br. at 11-20); and (2) whether the ALJ cited clear, convincing reasons for 11 rejecting Plaintiff’s symptom testimony (Pl. Br. at 20-23). The Court agrees the ALJ 12 failed to properly assess NP Fong’s assessment and provide legally sufficient reasons for 13 discrediting Plaintiff’s symptom testimony. For the reasons explained further below, the 14 Court finds that any error with respect to Dr. Mogrovejo’s opinion is harmless. The Court 15 remands for additional proceedings. 16 A. The ALJ erred by rejecting NP Fong’s assessment without explaining her 17 consideration of the regulatory factors or providing reasons supported by 18 substantial evidence. 19 For claims filed on or after March 27, 2017, federal regulations provide that the 20 ALJ “will not defer or give any specific evidentiary weight, including controlling weight, 21 to any medical opinion(s) or prior administrative medical finding(s), including those from 22 [the claimant’s] medical sources.” 20 C.F.R. § 404.1520c(a). Instead, the ALJ must 23 consider the overall persuasiveness of a medical opinion using the regulatory factors and 24 articulate her analysis of the two “most important factors,” i.e., supportability and 25 consistency. Id. § 404.1520c(b)(2). The supportability factor accounts for “the objective 26 medical evidence and supporting explanations presented by a medical source[ ]to support 27 [the] medical opinion[] . . . .” Id. § 404.1520c(c)(1). Regarding consistency, “The more 28 consistent a medical opinion(s) or prior administrative medical finding(s) is with the 1 evidence from other medical sources and nonmedical sources in the claim, the more 2 persuasive the medical opinion(s) or prior administrative medical finding(s) will be.” Id. 3 § 404.1520c(c)(2) 4 The Ninth Circuit has held these regulations abrogate (for claims filed on or after 5 March 27, 2017) the Circuit’s longstanding test “requiring an ALJ to provide ‘specific 6 and legitimate’” reasons for discrediting the contradicted opinion of an examining or 7 treating physician. Woods v. Kijakazi, 32 F.4th 785, 787, 789 (9th Cir. 2022). “Now, an 8 ALJ’s decision, including the decision to discredit any medical opinion, must simply be 9 supported by substantial evidence.” Id. at 787. The Ninth Circuit explained, however, 10 Even under the new regulations, an ALJ cannot reject an examining or treating doctor's opinion as unsupported or 11 inconsistent without providing an explanation supported by substantial evidence. The agency must “articulate ... how 12 persuasive” it finds “all of the medical opinions” from each doctor or other source, 20 C.F.R. § 404.1520c(b), and 13 “explain how [it] considered the supportability and consistency factors” in reaching these findings, id. § 14 404.1520c(b)(2). 15 Id. at 792. 16 In August 2019, NP Luis Fong—Plaintiff’s primary mental health provider— 17 completed a “Work Capacity Evaluation (Mental)[,]” listing Plaintiff’s mental health 18 diagnoses, medications, side effects, and functional limitations. (AR. at 985-87.) He 19 noted Plaintiff suffers from bipolar disorder, anxiety, and posttraumatic stress disorder, 20 and that she has a “fair” prognosis. (AR. at 985.) He concluded Plaintiff suffered several 21 “Category III” and “Category IV” limitations in different categories of mental 22 functioning (understanding/memory, sustained concentration/memory, social interaction, 23 and adaptation) reflecting that Plaintiff would be off-task for at least 10% of an eight- 24 hour workday when performing those activities. (AR. at 985-87.) He concluded Plaintiff 25 would be off-task from 25-30% overall, and that she would likely miss three days of 26 work every month. (AR. at 987.) He concluded Plaintiff would be unable to sustain full- 27 time, competitive work for at least six continuous months. (AR. at 987.) 28 In the decision, the ALJ stated the following regarding NP Fong’s assessment: 1 The undersigned considered the work capacity evaluation from Luis Fong, DNP, but found it unpersuasive. Mr. Fong 2 noted that the claimant had very significant physical limitations and would miss multiple days of work per month 3 because of her impairments. (Exhibit 14F). These findings are not supported by the claimant’s physical examination results, 4 and are inconsistent with her treatment record as a whole. 5 (AR. at 25.) 6 Plaintiff argues, “The ALJ’s entire analysis constitutes harmful legal error because 7 Dr. Fong is claimant’s psychiatric provider and his opinion was based on her mental 8 capacity to complete work-related activities.” (Pl Br. at 13.)2 Plaintiff asserts the ALJ 9 further erred by failing to explain how she considered the regulatory factors, and by 10 failing to provide any true analysis of NP Fong’s opinion. (Pl. Br. at 13.) Alternatively, 11 Plaintiff argues the ALJ’s summary of the mental health evidence was “less than 12 accurate,” citing positive mental status findings and noting that the overall record 13 supports the conclusion that Plaintiff’s symptoms remained severe. (Pl. Br. at 14-16.) 14 Plaintiff notes that the ALJ cited an entire 132-page exhibit to support her conclusion 15 Plaintiff’s symptoms improved with therapy after February 2020 (Pl. Br. at 15), and that 16 the ALJ disregarded “objective measures of [Plaintiff’s] depression and anxiety 17 symptoms throughout the record[,]” such as the PHQ-9 and GAD-7 scores reflected in 18 her treatment notes. (Pl. Br. at 17.) 19 Defendant responds that the ALJ’s reference to NP Fong’s “physical” rather than 20 “mental” limitations is a typographical error, as the ALJ appropriately noted Dr. Fong’s 21 conclusion that Plaintiff would miss multiple days of work per month. (Def. Br. at 10.) 22 Defendant argues that the ALJ concluded NP Fong’s assessment was unsupported by his 23 examination results and the overall treatment record, such as normal mental status 24 findings, which goes to the regulatory factors. (Def. Br. at 11-13.) Defendant also notes 25 the ALJ’s conclusion that Plaintiff’s condition improved with treatment. (Def. Br. at 13.) 26 Defendant argues the ALJ accurately characterized the 132-page exhibit at 21F, 27

28 2 The Court notes Mr. Fong is a psychiatric nurse practitioner (AR. at 1236), which does not change the analysis. 1 purportedly showing Plaintiff’s condition improved. (Def. Br. at 14.) 2 The Court agrees with Plaintiff. The ALJ inaccurately characterized NP Fong’s 3 assessment and failed to provide any true analysis of it in the decision. Woods, 32 F.4th at 4 792 (“The agency must ‘articulate ... how persuasive’ it finds ‘all of the medical 5 opinions’ from each doctor or other source, 20 C.F.R. § 404.1520c(b), and ‘explain how 6 [it] considered the supportability and consistency factors’ in reaching these findings, id. § 7 404.1520c(b)(2).”) The ALJ’s conclusion NP Fong’s “findings are not supported by the 8 claimant’s physical examination results, and are inconsistent with her treatment record as 9 a whole[,]” (AR. at 25), aside from being facially inaccurate, amounts to a bald 10 conclusion. The ALJ asserted conclusions addressing each factor, but she did not explain 11 how she considered those factors. See id. The ALJ must provide an “explanation 12 supported by substantial evidence.” Id. (emphasis added). The Court accepts it can draw 13 reasonable inferences from the record when they are there to be drawn. See Magallanes v. 14 Bowen, 881 F.2d 747, 755 (9th Cir. 1989) (“[W]e are not deprived of our faculties for 15 drawing specific and legitimate inferences from the ALJ’s opinion.”) Indeed, this might 16 have been appropriate had the ALJ properly described NP Fong’s opinion as mental 17 rather than physical, or if the ALJ mistakenly characterized the assessment as physical, 18 but still cited some specific evidence of Plaintiff’s mental health symptoms belying the 19 opinion in her discussion of that opinion. Treichler v. Comm’r of Soc. Sec. Admin., 775 20 F.3d 1090, 1099 (9th Cir. 2014) (an error is harmless if “the agency’s path may 21 reasonably be discerned . . . .”) (internal quotations and citations omitted). Such would 22 reinforce Defendant’s view that the ALJ’s mistake was a harmless typographical error. 23 (Def. Br. at 10.) But where the ALJ mischaracterizes the assessment and omits any direct 24 citation to the record supporting her conclusions regarding the regulatory factors, this is 25 an overreach. See Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014) (“[W]e may not 26 take a general finding—an unspecified conflict between Claimant’s testimony about daily 27 activities and her reports to doctors—and comb the administrative record to find specific 28 conflicts.”) The Court finds the current record is insufficient. Additional proceedings are 1 warranted for the ALJ to properly address NP Fong’s opinion using the regulatory factors 2 with direct citations to the supporting evidence.3 3 B. The ALJ erred by rejecting Plaintiff’s symptom testimony. 4 When evaluating a claimant’s symptom testimony, the ALJ must first assess 5 “whether the claimant has presented objective medical evidence of an underlying 6 impairment ‘which could reasonably be expected to produce the pain or other symptoms 7 alleged.’” Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (quoting Bunnell v. 8 Sullivan, 947 F.2d 341, 344 (9th Cir.1991)). If the claimant presents this evidence, the 9 ALJ may discredit the claimant’s testimony only by citing “specific, clear and convincing 10 reasons for doing so.” Id. (quotations and citations omitted). Importantly, “[o]nce the 11 claimant produces medical evidence of an underlying impairment, the Commissioner 12 may not discredit the claimant’s testimony as to the severity of symptoms merely because 13 they are unsupported by objective medical evidence.” Reddick v. Chater, 157 F.3d 715, 14 722 (9th Cir. 1998) (citations omitted). Instead, “[a]n ALJ may consider a range of 15 factors in assessing credibility, including ‘(1) ordinary techniques of credibility 16 evaluation, such as the claimant’s reputation for lying, prior inconsistent statements 17 concerning the symptoms, and other testimony by the claimant that appears less than 18 candid; (2) unexplained or inadequately explained failure to seek treatment or to follow a 19 3 The Court finds harmless any error with respect to the prior administrative medical 20 findings of L. Mogrovejo, Ph.D. Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (harmless errors are “inconsequential to the ultimate nondisability determination.”) 21 (internal quotations and citations omitted). While the ALJ did not cite clear reasons for rejecting any portion of that opinion, she still appeared to account for the limitations from 22 that opinion in her RFC. On October 15, 2019, Dr. Mogrovejo concluded Plaintiff “is able to persist at tasks that can be learned in one to three months on the job with reduced 23 public contact.” (AR. at 90, 94-95.) The ALJ’s mental RFC finding consists of “simple, repetitive, and routine tasks, with only occasional interaction with the public.” (AR. at 24 22.) The RFC appears to accommodate the limitations Dr. Mogrovejo assigned. Moreover, the various “moderate” limitations in specific functional categories that 25 Plaintiff cites do not constitute Dr. Mogrovejo’s RFC assessment. (Pl. Br. at 19-20.) Dr. Mogrovejo’s form states that “the actual mental [RFC] assessment is recorded in the 26 narrative discussion(s), which describes how the evidence supports each conclusion.” (AR. at 93.) The form also states that “[a]ny other assessment information deemed 27 appropriate may be recorded in the MRFC – Additional Explanation text box.” (AR. at 93.) While Dr. Mogrovejo did not complete the individual narrative discussion sections 28 for each functional category, his RFC can be found in the additional explanation text box. (AR. at 94-95.) 1 prescribed course of treatment; and (3) the claimant's daily activities.’” Ghanim v. Colvin, 2 763 F.3d 1154, 1163 (9th Cir. 2014) (quotations and citations omitted). 3 In the decision, the ALJ concluded Plaintiff’s “mental impairments caused 4 limitations, but not to the level she alleged.” (AR. at 24.) First, the ALJ noted Plaintiff’s 5 “voluntary admission” to the hospital for depression with psychosis symptoms in June 6 2018, citing benign mental status findings and her overall stable condition upon 7 discharge. (AR. at 24.) The ALJ further acknowledged that while Plaintiff “received 8 regular therapy treatment in 2018 and 2019,” and those records indicated “variable levels 9 of depression and anxiety,” that Plaintiff “consistently presented with normal findings on 10 her mental status examination.” (AR. at 24.) The ALJ summarized treatment notes from 11 2019 indicating Plaintiff was still exhibiting symptoms, but improving, and that while 12 Plaintiff stopped attending therapy in October 2019 to take care of her grandchild, she 13 felt physically exhausted from these responsibilities and experienced increased stress. 14 (AR. at 24.) The ALJ noted Plaintiff’s symptoms, including suicidal ideation, were 15 increasing in February 2020 but, citing a 132-page exhibit at 21F, that “later therapy 16 records from 2020 show that her symptoms improved with treatment.” (AR. at 25.) The 17 ALJ reiterated in support of her RFC findings that Plaintiff’s “symptoms improved with 18 compliance to medications and therapy, and that her worsening symptoms corresponded 19 to periods where she either was not taking her medication or stopped going to therapy.” 20 (AR. at 25.) 21 To begin, substantial evidence does not support the conclusion that Plaintiff 22 experienced sustained improvement in her mental health throughout the relevant period. 23 While Plaintiff, at times, reported feeling better overall, or that some symptoms such as 24 mood swings had improved, those same notes reflect she continued to experience other 25 symptoms (AR. at 574, 608, 619), and later notes show that Plaintiff’s improvement was 26 short-lived. In November 2018, for instance, she reported temporary improvement in 27 symptoms, but that they “revert[ed] back.” (AR. at 608.) She reported some improvement 28 with the addition of a medication, but daily tearfulness, worsening mood swings, 1 irritability, low motivation, “anxiety and racing thoughts around nighttime,” and a feeling 2 of “shaking on the inside[.]” (AR. at 608-609.) In December, Plaintiff also reported 3 temporary improvement in symptoms followed by a reversion back. (AR. at 599.) She 4 reported improved sleep but worsening mood swings, daily tearfulness, low motivation, 5 anxiety, and racing thoughts. (AR. at 599-600.) That same month, she reported the 6 medications were working “ok,” but also tearfully recalled an episode where she lashed 7 out at her grandson. (AR. at 411-12, 591.) In January 2019, she reported the medications 8 were working ok, but that her anxiety was still “10/10.” (AR. at 395.) In June 2019, 9 Plaintiff reported “doing well” and “keeping active,” (AR. at 923), but by December, her 10 symptoms were exacerbated. She reported increased stress and anxiety due to the 11 pressures of taking care of her grandchildren. (AR. at 1148.) She was described as highly 12 anxious, agitated, reactive, disagreeable, and tearful. (AR. at 1154.) Her worsening 13 symptoms continued in February 2020, when she reported increased suicidal ideation, 14 anxiety, shaking, feeling overwhelmed, and neglecting her hygiene. (AR. at 1167.) The 15 provider noted during her mental status examination that Plaintiff exhibited tremors, a 16 frustrated and hostile attitude, an impaired concentration and attention span, impaired 17 memory, an agitated, anxious, and frustrated mood, tearful and labile affect, and 18 disorganized and scattered thought content. (AR. at 1168-69.) “As we have emphasized 19 while discussing mental health issues, it is error to reject a claimant’s testimony merely 20 because symptoms wax and wane in the course of treatment. Cycles of improvement and 21 debilitating symptoms are a common occurrence, and in such circumstances it is error for 22 an ALJ to pick out a few isolated instances of improvement over a period of months or 23 years and to treat them as a basis for concluding a claimant is capable of working.” 24 Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014). Such is the case here. 25 To the extent the ALJ relied on Plaintiff’s non-compliance—in this case, her 26 decision to quit therapy for a few brief periods—the Court agrees with Plaintiff that the 27 ALJ should have considered possible reasons for that decision. Soc. Sec. Ruling (“SSR”) 28 16-3p, 2017 WL 5180304, at *9 (S.S.A. Oct. 25, 2017) (“We will not find an individual’s 1 symptoms inconsistent with the evidence in the record on this basis without considering 2 possible reasons he or she may not comply with treatment or seek treatment consistent 3 with the degree of his or her complaints.”) Although Plaintiff may have benefited from 4 continued therapy during those periods, “it is a questionable practice to chastise one with 5 a mental impairment for the exercise of poor judgment in seeking rehabilitation.’” 6 Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996) (quoting Blankenship v. Bowen, 7 874 F.2d 1116, 1124 (6th Cir.1989)). 8 The Court also agrees with Plaintiff that “the record clearly supports that the 9 added responsibility in caring for her grandchildren had a direct impact on the 10 exacerbation of her mental health symptoms therefore supporting, rather than detracting 11 from, her allegations[.]” (Pl. Br. at 22, citing AR. at 44, 1153-54, 1192.) In February 12 2020, as noted supra, when Plaintiff was caring for her grandchildren, she reported that 13 her suicidal ideation had returned, she was neglecting her hygiene, and she exhibited 14 many significant mental status findings upon examination. (AR. at 1167-69, 1171.) 15 Plaintiff was “trembling throughout the session, would sit hunched over in her chair 16 avoiding eye contact and when eye contact was made, it would be a hard stare.” (AR. at 17 1171.) She reported to her case manager and behavioral health technician that she did not 18 have time to follow-up due to caring for four grandchildren, and that she felt depressed 19 and without support. (AR. at 1163.) NP Fong noted Plaintiff’s symptoms were tied to 20 these psychosocial stressors. (AR. at 1178.) Plaintiff reported increased anxiety, racing 21 thoughts, difficulty sleeping, and thoughts of self-harm in May 2020, when she was 22 “keeping [her grandchild] so many hours a day[.]” (AR. at 1230.) In June 2020, Plaintiff 23 reported improvement because a neighbor was helping with childcare. (AR. at 1241.) In 24 September, she reported increased depression and anxiety symptoms with recent family 25 strife. (AR. at 1249.) At the hearing, she testified that caring for her grandchildren caused 26 increased anxiety, crying, and irritability, and that the neighbor had been watching them 27 full-time for the past few months. (AR. at 44-45.) Because Plaintiff’s testimony regarding 28 these activities is consistent with the record, Plaintiff’s childcare activities are not a 1 sufficient basis to discredit her. Burrell v. Colvin, 775 F.3d 1133, 1137 (9th Cir. 2014) 2 (“Inconsistencies between a claimant’s testimony and the claimant’s reported activities 3 provide a valid reason for an adverse credibility determination.”) While Plaintiff, at 4 times, reported engaging in childcare activities for long hours each day, it is clear this led 5 to a significant exacerbation of her mental health symptoms. Consequently, the Court 6 finds the ALJ failed to cite clear, convincing reasons supported by substantial evidence 7 for discrediting Plaintiff’s symptom testimony. 8 C. Remedy. 9 When the Court finds harmful legal error it “ordinarily must remand to the agency 10 for further proceedings before directing an award of benefits.” Leon v. Berryhill, 880 11 F.3d 1041, 1045 (9th Cir. 2017) (citing Treichler v. Comm’r of Soc. Sec. Admin., 775 12 F.3d 1090, 1099 (9th Cir. 2014)). This is “the proper course, except in rare circumstances 13 . . . .” Treichler, 775 F.3d at 1099 (quotations omitted). To remand for payment of 14 benefits, the Court must find “(1) the record has been fully developed and further 15 administrative proceedings would serve no useful purpose; (2) the ALJ has failed to 16 provide legally sufficient reasons for rejecting evidence, whether claimant testimony or 17 medical opinion; and (3) if the improperly discredited evidence were credited as true, the 18 ALJ would be required to find the claimant disabled on remand.” Garrison, 759 F.3d at 19 1020 (citations omitted). Even if all three prongs are satisfied, however, remand for 20 additional proceedings may still be appropriate where “even though all conditions of the 21 credit-as-true rule are satisfied, an evaluation of the record as a whole creates serious 22 doubt that a claimant is, in fact, disabled.” Id. at 1021. 23 The Court finds additional proceedings would serve the useful purpose of further 24 factual development regarding Plaintiff’s current mental health limitations, especially 25 considering the improved situation regarding childcare. Leon, 880 F.3d at 1047 26 (“Remand is also useful here because ‘the presentation of further evidence . . . may well 27 prove enlightening in light of the passage of time,’ . . . .”) (quotation and citations 28 omitted). Additional proceedings would also afford the ALJ an opportunity to 1 || substantively address NP Fong’s opinion, which is warranted considering the benign mental status findings the ALJ cited in the record. 3 IT IS ORDERED that the January 6, 2021 decision of the ALJ is reversed and 4|| remanded for additional proceedings. 5 IT IS FURTHER ORDERED directing the Clerk to enter judgment accordingly 6 || and terminate this action. 7 Dated this 26th day of September, 2023. 8 9 “Ss > SO fonorable Susan M. Brnovich = 11 United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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