Riven Nelson v. Kilolo Kijakazi

• Court: District Court, C.D. California
• Decided: March 21, 2023
• Docket: 5:22-cv-00588
• Status: Unknown

Opinion

Case 5:22-cv-00588-GJS Document 20 Filed 03/21/23 Page 1 of 15 Page ID #:925

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10

12 RIVEN N., Case No. 5:22-cv-00588-GJS 13 Plaintiff, v. MEMORANDUM OPINION AND 14 ORDER KILOLO KIJAKAZI, Acting 15 Commissioner of Social Security,

16 Defendant. 17 18 I. PROCEDURAL HISTORY 19 Plaintiff Riven N.1 filed a complaint seeking review of the decision of the 20 Commissioner of Social Security denying her application for a period of disability 21 and Disability Insurance Benefits (“DIB”) and her application for Supplemental 22 Security Income (“SSI”). The parties filed consents to proceed before a United 23 States Magistrate Judge (ECF Nos. 11, 14) and briefs (ECF Nos. 16 (“Pl.’s Br.”) and 24 19 (“Def.’s Br.”)) addressing the disputed issue in the case. The matter is now ready 25

27 1 In the interest of privacy, this Order uses only the first name and last initial of 28 the non-governmental party in this case. Case 5:22-cv-00588-GJS Document 20 Filed 03/21/23 Page 2 of 15 Page ID #:926

1 for decision. For the reasons set forth below, the Court finds that this matter should 2 be remanded. 3 4 II. ADMINISTRATIVE DECISION UNDER REVIEW 5 On July 22, 2019, Plaintiff filed an application for DIB, and an application for 6 SSI, alleging disability commencing on July 8, 2019. (ECF No. 13, Administrative 7 Record (“AR”) 15; see also AR 275-76.) Plaintiff’s application was denied at the 8 initial level of review and on reconsideration. (AR 15, 69, 70.) A hearing was held 9 before Administrative Law Judge Charles A. Dominick (“the ALJ”) on March 10, 10 2021, at which Plaintiff appeared without representation. (AR 61-68.) The ALJ 11 continued the hearing to allow Plaintiff time to obtain representation and the 12 continued hearing was held on June 8, 2021, with Plaintiff represented by counsel. 13 (AR 15, 35-60.) 14 On September 17, 2021, the ALJ issued an unfavorable decision applying the 15 five-step sequential evaluation process for assessing disability. (AR 15-28); see 20 16 C.F.R. §§ 404.1520(b)-(g)(1), 416.920(b)-(g)(1). At step one, the ALJ determined 17 that Plaintiff has not engaged in substantial gainful activity since the alleged onset 18 date. (AR 17.) At step two, the ALJ determined that Plaintiff has the following 19 severe impairments: obesity; seizure disorder; unspecified psychosis; attention 20 deficit hyperactivity disorder (“ADHD”); depression; schizophrenia; generalized 21 anxiety disorder; and posttraumatic stress disorder. (AR 17.) At step three, the ALJ 22 determined that Plaintiff does not have an impairment or combination of 23 impairments that meets or medically equals the severity of one of the impairments 24 listed in Appendix 1 of the Regulations. (AR 18); see 20 C.F.R. pt. 404, subpt. P, 25 app. 1. The ALJ found that Plaintiff has the residual functional capacity (“RFC”) to 26 perform medium work, as defined in 20 C.F.R. §§ 404.1567(c), 416.967(c), as 27 follows:

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[She] must avoid unprotected heights and dangerous moving machinery. 1 [She] is limited to no more than frequent reaching, handling, and 2 fingering. [She] is limited to jobs requiring no more than a reasoning level of 2. [She] must avoid fast-paced production rate pace type work. 3 [She] is limited to no more than occasional changes in the work setting. [She] is limited to occasional interaction with supervisors, co-workers, 4 and the public. 5 (AR 21-22.) At step four, the ALJ determined that Plaintiff is not able to perform 6 her past relevant work as a convenience clerk, an event crew member, and a media 7 technician. (AR 26.) At step five, based on the testimony of the vocational expert 8 (“VE”), the ALJ found that Plaintiff could perform other jobs existing in significant 9 numbers in the national economy, including representative jobs such as cleaner, and 10 box maker.2 (AR 27.) Based on these findings, the ALJ found Plaintiff not disabled 11 through the date of the decision. (AR 27.) 12 The Appeals Council denied review of the ALJ’s decision on February 23, 13 2022. (AR 1-5.) This action followed. 14 15 III. GOVERNING STANDARD 16 Under 42 U.S.C. § 405(g), the Court reviews the Commissioner’s decision to 17 determine if: (1) the Commissioner’s findings are supported by substantial 18 evidence; and (2) the Commissioner used correct legal standards. See Carmickle v. 19 Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1159 (9th Cir. 2008); Brewes v. Comm’r 20 Soc. Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012). “Substantial evidence . . . is 21 ‘more than a mere scintilla’ . . . [i]t means – and only means – ‘such relevant 22 evidence as a reasonable mind might accept as adequate to support a conclusion.’” 23 Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (citations omitted); Gutierrez v. 24

26 2 In his decision, the ALJ referred to the representative occupation as “Box 27 Marker.” (AR 27.) Based on the testimony of the VE and the Dictionary of Occupational Titles number assigned to the occupation (AR 58; DOT No. 795-684- 28 014), the actual title of the occupation is “Box Maker.” 3 Case 5:22-cv-00588-GJS Document 20 Filed 03/21/23 Page 4 of 15 Page ID #:928

1 Comm’r of Soc. Sec., 740 F.3d 519, 522-23 (9th Cir. 2014) (internal quotation marks 2 and citation omitted). 3 The Court will uphold the Commissioner’s decision when “the evidence is 4 susceptible to more than one rational interpretation.” See Molina v. Astrue, 674 5 F.3d 1104, 1110 (9th Cir. 2012), superseded on other grounds by 20 C.F.R. § 6 404.1502(a). However, the Court may review only the reasons stated by the ALJ in 7 his decision “and may not affirm the ALJ on a ground upon which he did not rely.” 8 Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). The Court will not reverse the 9 Commissioner’s decision if it is based on harmless error, which exists if the error is 10 “inconsequential to the ultimate nondisability determination, or if despite the legal 11 error, the agency’s path may reasonably be discerned.” Brown-Hunter v. Colvin, 12 806 F.3d 487, 492 (9th Cir. 2015) (internal quotation marks and citations omitted). 13 14 IV. DISCUSSION 15 Plaintiff raises the following issue challenging the ALJ’s findings and 16 determination of non-disability: the ALJ improperly rejected Plaintiff’s subjective 17 symptom testimony by failing to offer any specific, clear and convincing reasons 18 supported by substantial evidence in the record for doing so. (Pl.’s Br. 2.) As 19 discussed below, the Court agrees with Plaintiff and finds that remand is 20 appropriate. 21 22 A. LEGAL STANDARD 23 In evaluating a claimant’s subjective symptom testimony, an ALJ must 24 engage in a two-step analysis. See Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 25 (9th Cir. 2007); 20 C.F.R. § 404.1529(c). First, the ALJ must determine whether the 26 claimant has presented objective medical evidence of an underlying impairment 27 which “could reasonably be expected to produce the pain or other symptoms 28 4 Case 5:22-cv-00588-GJS Document 20 Filed 03/21/23 Page 5 of 15 Page ID #:929

1 alleged.” Lingenfelter, 504 F.3d at 1036 (quoting Bunnell v. Sullivan, 947 F.2d 341, 2 344 (9th Cir. 1991)). Second, if the claimant meets the first step and there is no 3 evidence of malingering, “‘the ALJ can reject the claimant’s testimony about the 4 severity of her symptoms only by offering specific, clear and convincing reasons for 5 doing so.’” Id., 504 F.3d at 1036 (quoting Smolen v. Chater, 80 F.3d 1273, 1281 6 (9th Cir. 1996)). At the same time, the “ALJ is not required to believe every 7 allegation of disabling pain, or else disability benefits would be available for the 8 asking, a result plainly contrary to the Social Security Act.” Smartt v. Kijakazi, 53 9 F.4th 489, 499 (9th Cir. 2022) (citation and internal quotation marks omitted). 10 11 B. ANALYSIS 12 In the present case, the ALJ discounted Plaintiff’s subjective complaints 13 based on (1) perceived inconsistencies between Plaintiff’s testimony and the 14 objective medical record, (2) Plaintiff’s activities of daily living, and, according to 15 Defendant, (3) improvement with medication and medication noncompliance. (AR 16 23-24.) 17 18 1. Inconsistency with the Medical Record 19 While a lack of objective medical evidence supporting a plaintiff’s subjective 20 complaints cannot provide the only basis to reject a claimant’s subjective symptom 21 testimony (Trevizo v. Berryhill, 871 F.3d 664, 679 (9th Cir. 2017) (quoting Robbins 22 v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006))), it is one factor that an ALJ 23 can consider in evaluating symptom testimony. See Burch v. Barnhart, 400 F.3d 24 676, 681 (9th Cir. 2005) (“Although lack of medical evidence cannot form the sole 25 basis for discounting pain testimony, it is a factor the ALJ must consider in his 26 credibility analysis.”); Soc. Sec. Ruling (“SSR”) 16-3p, 2017 WL 5180304, at *5 27 (“objective medical evidence is a useful indicator to help make reasonable 28 5 Case 5:22-cv-00588-GJS Document 20 Filed 03/21/23 Page 6 of 15 Page ID #:930

1 conclusions about the intensity and persistence of symptoms, including the effects 2 those symptoms may have on the ability to perform work-related activities for an 3 adult”). “The intensity, persistence, and limiting effects of many symptoms can be 4 clinically observed and recorded in the medical evidence. . . . These findings may 5 be consistent with an individual’s statements about symptoms and their functional 6 effects. However, when the results of tests are not consistent with other evidence in 7 the record, they may be less supportive of an individual’s statements about pain or 8 other symptoms than test results and statements that are consistent with other 9 evidence in the record.” SSR 16-3p, 2017 WL 5180304, at *5. 10 As the Ninth Circuit recently held, “an ALJ’s ‘vague allegation’ that a 11 claimant’s testimony is ‘not consistent with the objective medical evidence,’ without 12 any ‘specific finding in support’ of that conclusion, is insufficient.” Treichler v. 13 Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1103 (9th Cir. 2014) (citation omitted); 14 see Laborin v. Berryhill, 867 F.3d 1151, 1153 (9th Cir. 2017) (ALJ’s statement that 15 plaintiff’s testimony regarding the intensity, persistence, and limiting effects of his 16 symptoms was not credible to the extent his testimony is “inconsistent with the 17 above residual functional capacity assessment” is an insufficient basis for 18 discrediting testimony). 19 Here, the ALJ first summarized Plaintiff’s testimony regarding her mental 20 health limitations as follows:

21 She alleges difficulties with memory and concentration and difficulties 22 completing tasks. She alleges difficulties understanding and following instructions and difficulties getting along with others. She alleges 23 difficulties with household chores and simple daily activities. She alleges difficulties handling stress and changes in routine. At her 24 hearing, . . . she indicated her mental issues, [sic] were more severe [than her physical issues] in affecting her ability to work. [She] reported she 25 had trouble socializing and speaking. She explained she experienced 26 auditory and visual hallucinations. [She] testified she had difficulty concentrating and needed reminders to shower. She expressed she spent 27 most of the day in bed. [She] testified she experienced seizures 2 to 3 times per day lasting up to 3 minutes each. 28 6 Case 5:22-cv-00588-GJS Document 20 Filed 03/21/23 Page 7 of 15 Page ID #:931

1 (AR 22 (citations omitted).) 2 The ALJ then summarized the medical evidence relating to Plaintiff’s 3 seizures and mental health impairments and limitations, repeatedly concluding that 4 Plaintiff’s subjective symptom complaints were unsupported by the objective 5 medical evidence. For instance, the ALJ summarized Plaintiff’s March 18, 2020, 6 treatment records, first noting that they reflected depressed and anxious mood and 7 mild impairment of judgment, but then noting that the mental status examination 8 findings reflected “cooperative behavior, good impulse control,” appropriate affect, 9 normal speech and language, insight into her disorder, and other “positive” findings. 10 (AR 24 (citing AR 487-504).) After his summary, the ALJ summarily concluded 11 that the “clinical findings do not support greater mental functional limitations.” (AR 12 24 (citing AR 487-504).) 13 Similarly, after summarizing Plaintiff’s March 16, 2020, consultative mental 14 health examination results, which revealed Plaintiff “to be anxious, with self- 15 reported auditory and visual hallucinations, difficulty with cognition, orientation, 16 memory, and concentration,” the ALJ also pointed out that the mental status 17 examination reflected Plaintiff to be cooperative, alert, well groomed, with good eye 18 contact, normal speech, and “having common sense understandings.” (AR 24 19 (citing AR 509-14).) The ALJ again summarily concluded that the “clinical 20 findings do not support greater mental functional limitations.” (AR 24.) 21 The records cited to by the ALJ, however, not only reflect depressed and 22 anxious mood, and impaired judgment, as well as other more “positive” mental 23 status examination results, they (as well as Plaintiff’s other treatment records) also 24 reflect ongoing mental health symptoms and diagnoses, and treatment for those 25 mental health problems. For instance, the March 18, 2020, treatment record referred 26 to by the ALJ reflected that Plaintiff reported experiencing the following symptoms 27 “nearly every day” in the prior two weeks: little interest or pleasure in doing things; 28 7 Case 5:22-cv-00588-GJS Document 20 Filed 03/21/23 Page 8 of 15 Page ID #:932

1 trouble falling asleep or staying asleep; poor appetite or overeating; trouble 2 concentrating on things; and moving or speaking so slowly that others notice, or 3 being so fidgety or restless that you move around a lot more than usual. (AR 488.) 4 Plaintiff also reported that more than half the days in the prior two weeks she felt 5 down, depressed, or hopeless, and for several days during that period she felt bad 6 about herself and felt that she would be better off dead. (AR 488.) Plaintiff scored 7 a 22 on the depression assessment, with a diagnosis of severe major depression, and 8 the anxiety assessment reflected moderate anxiety. (AR 489.) The consultative 9 examiner diagnosed Plaintiff with unspecified psychotic disorder, generalized 10 anxiety disorder, persistent depressive disorder, and health problems. (AR 512.) 11 The ALJ failed to explain how Plaintiff’s mental status examination at these 12 visits, reflecting cooperative behavior, good impulse control, being alert, and 13 “having common sense understandings,” among other things, was somehow 14 inconsistent with her subjective mental health symptom testimony, or with the 15 treating providers’ clinical assessments and treatment of her mental health issues. In 16 fact, there is no evidence that the treating providers expressed any surprise or 17 concern that an individual with severe major depression and/or generalized anxiety 18 might nevertheless also be found to be cooperative, alert, or exhibit common sense 19 understandings. Cf. Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) 20 (citation omitted) (noting that a claimant “does not need to be ‘utterly incapacitated’ 21 in order to be disabled”). 22 Moreover, an ALJ “must identify the testimony that [is being discounted], and 23 specify ‘what evidence undermines the claimant’s complaints.’” Treichler, 775 F. 24 3d at 1103 (citation omitted) (emphasis added); Brown-Hunter, 806 F.3d at 493. 25 The ALJ’s summary and conclusion here did not tie any of Plaintiff’s subjective 26 symptom testimony to the record evidence. Instead, the ALJ’s running narrative 27 regarding certain positive and negative findings in Plaintiff’s treatment records, and 28 8 Case 5:22-cv-00588-GJS Document 20 Filed 03/21/23 Page 9 of 15 Page ID #:933

1 his seeming determination that the positive mental status examination findings 2 somehow contradicted the treating providers’ clinical findings and plaintiff’s 3 subjective symptom testimony, did not provide “the sort of explanation or the kind 4 of ‘specific reasons’ we must have in order to review the ALJ’s decision 5 meaningfully, so that we may ensure that the claimant’s testimony was not 6 arbitrarily discredited,” nor can the error be found harmless. Brown-Hunter, 806 7 F.3d at 493 (rejecting the Commissioner’s argument that because the ALJ set out his 8 RFC determination and summarized the evidence supporting that determination, the 9 Court can infer that the ALJ rejected the plaintiff’s testimony to the extent it 10 conflicted with that medical evidence, because the ALJ “never identified which 11 testimony [he] found not credible, and never explained which evidence contradicted 12 that testimony”) (citing Treichler, 775 F.3d at 1103, Burrell, 775 F.3d at 1138). 13 The Court determines, therefore, that this was not a specific, clear and 14 convincing reason for discounting Plaintiff’s subjective symptom testimony. 15 Moreover, even assuming this was a specific, clear and convincing reason, it cannot 16 be the only reason. Thus, the ALJ’s determination to discount Plaintiff’s subjective 17 symptom testimony for this reason rises or falls with the ALJ’s other grounds for 18 discrediting Plaintiff’s testimony. As seen below, those other grounds are 19 insufficient as well. 20 21 2. Activities of Daily Living 22 “Engaging in daily activities that are incompatible with the severity of 23 symptoms alleged can support an adverse credibility determination.” Trevizo, 871 24 F.3d at 682 (citing Ghanim v. Colvin, 763 F.3d 1154, 1165 (9th Cir. 2014)). “Even 25 where those activities suggest some difficulty functioning, they may be grounds for 26 discrediting the claimant’s testimony to the extent that they contradict claims of a 27 totally debilitating impairment.” Id. (citing Turner v. Comm’r of Soc. Sec., 613 F.3d 28 9 Case 5:22-cv-00588-GJS Document 20 Filed 03/21/23 Page 10 of 15 Page ID #:934

1 1217, 1225 (9th Cir. 2010); Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 2 693 (9th Cir. 2009)). An ALJ may also rely on a claimant’s daily activities to 3 support an adverse credibility determination when those activities “meet the 4 threshold for transferable work skills”; i.e., where she “is able to spend a substantial 5 part of . . . her day performing household chores or other activities that are 6 transferable to a work setting.” Orn, 495 F.3d at 639. However, an ALJ “must 7 make specific findings relating to the daily activities and their transferability to 8 conclude that a claimant’s daily activities warrant an adverse credibility 9 determination.” Id. (citation and alteration omitted). A claimant need not be 10 “utterly incapacitated to be eligible for benefits, and many home activities may not 11 be easily transferable to a work environment where it might be impossible to rest 12 periodically or take medication.” Id. (quoting Fair v. Bowen, 885 F.2d 597, 603 13 (9th Cir. 1989)) (internal quotation marks omitted). Indeed, the Ninth Circuit has 14 “repeatedly asserted that the mere fact that a plaintiff has carried on certain daily 15 activities, such as grocery shopping, driving a car, or limited walking for exercise, 16 does not in any way detract from her credibility as to her overall disability.” 17 Vertigan, 260 F.3d at 1050. 18 Here, the ALJ summarized Plaintiff’s activities of daily living and concluded 19 as follows:

20 [Plaintiff] reported on consultative psychological exam that she lived 21 with her fiancé’s parents and was able to perform her own self-care skills, help with household chores, and manage her own money. She 22 reported in her function report that she was able to help care for a pet cat and enjoyed daily reading. She indicated she was able to handle her 23 personal care, prepare simple meals, utilize a dishwasher, shop in stores for basic food items and medications. While the undersigned 24 acknowledges that [Plaintiff] has some limitations performing these 25 activities, and while none of these activities is dispositive, taken together and considered in conjunction with the above medical evidence of 26 record, they suggest that [Plaintiff] can perform work within the parameters [of the RFC] on a sustained and continuous basis. 27

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1 (AR 24-25 (citations omitted).) 2 The ALJ failed to consider many of the numerous details discussed by 3 Plaintiff with respect to her activities of daily living. For instance, with respect to 4 self-care skills, Plaintiff actually reported in her Adult Function Report (AR 332-39) 5 that she rarely bathes because she is afraid of having a seizure while doing so; does 6 not shave because she experiences hallucinations when looking in the mirror; other 7 than breakfast, she often forgets to eat regular meals and is “wary” around forks and 8 knives due to spasms (AR 333); her roommate reminds her to take care of personal 9 needs and grooming because Plaintiff otherwise forgets (AR 334); once a day she 10 can prepare cereal or peanut butter sandwiches, or sometimes chicken nuggets in the 11 microwave (AR 334); she helps with the ”Dishwasher [maybe twice a month], [and] 12 check[s] the mail, sweep[s] once a month” (AR 334); she feeds the cat every other 13 day (AR 333); she reads “for about half an hour” in the morning (AR 332); she can 14 handle a savings account but does not pay bills, count change, or use a checkbook, 15 and she does not “trust self with major decisions like finances” during times where 16 “reality feels distorted” (AR 335); counting change is difficult due to her attention 17 span (AR 335); and she shops for basic food items and medications “once every few 18 weeks” for less than one hour (AR 335). 19 Not only did the ALJ mischaracterize the extent of Plaintiff’s involvement in 20 her admitted daily activities, the ALJ did not explain how those limited daily 21 activities -- even in combination -- contradict her testimony or are transferable to a 22 work setting and evidence of being able to perform “sustained and continuous” 23 work. In fact, there is no evidence that Plaintiff spent even close to a substantial 24 part of her day engaged in her daily activities, and the ALJ neither made specific 25 findings nor pointed to any record evidence to support his conclusion that Plaintiff’s 26 daily activities constituted substantial evidence that Plaintiff could perform 27 sustained and continuous work, i.e., on a daily basis for eight hours per day. 28 Accordingly, this was not a specific, clear and convincing reason to discount 11 Case 5:22-cv-00588-GJS Document 20 Filed 03/21/23 Page 12 of 15 Page ID #:936

1 Plaintiff’s subjective symptom testimony. 2 3 3. Improvement with Medication 4 In reviewing Plaintiff’s subjective symptom testimony, the ALJ stated the 5 following:

6 The undersigned also notes that [Plaintiff] reported improvement of her 7 mental health symptoms with medication. [AR 490.] Moreover, some periods of exacerbations in [her] symptoms seem to be related to 8 medication compliance issues. [AR 556.] In any event, when examined longitudinally, these treatment records demonstrate a baseline level of 9 functioning consistent with the ability to sustain work within the parameters set forth in the above residual functional capacity. 10

11 (AR 24.) 12 Defendant asserts that Plaintiff’s alleged improvement with medication and 13 her failure to follow a prescribed course of treatment are valid reasons for the ALJ 14 to discount Plaintiff’s subjective symptom testimony. (Def.’s Br. 5 (citing Warre v. 15 Comm’r of Soc. Sec. 439 F.3d 1001, 1006 (9th Cir. 2006), Tommasetti v. Astrue, 16 533 F.3d 1035, 1039 (9th Cir. 2008)).) It is not clear, however, that the ALJ 17 actually relied on those reasons to discount Plaintiff’s testimony. Instead, it seems 18 that he merely determined that even when Plaintiff was not taking her medication, 19 her baseline functioning was consistent with the ALJ’s RFC determination. 20 The two treatment notes referred to by the ALJ to support this proposition, 21 also do not provide substantial evidence for either discounting Plaintiff’s testimony, 22 or for providing a “baseline level of functioning consistent with the ability to sustain 23 work.” The March 18, 2020, treatment note (AR 490), reflecting a visit to Adelanto 24 Health Center to establish care, reflects that Plaintiff noted she had been off of her 25 Adderall (a medication for ADHD) for a “prolonged period,” which “usually” 26 makes her feel anxious and lacking in the ability to concentrate. Similarly, the 27 November 20, 2020, treatment note (AR 556) relied on by the ALJ reflects a visit to 28 Hesperia Health Center at which Plaintiff reported she had started Depakote for her 12 Case 5:22-cv-00588-GJS Document 20 Filed 03/21/23 Page 13 of 15 Page ID #:937

1 seizures, which had decreased the frequency and duration of her seizures to 1 per 2 day (instead of 2 per day) for a duration of up to 1.5 minutes (decreased from 2 to 6 3 minutes). At that visit, Plaintiff also reported a decrease in her psychotic symptoms 4 and feeling less “foggy,” and a 15-20% improvement in mood. (AR 557.) She also, 5 however, continued to endorse symptoms of depression including poor mood; 6 anhedonia; trouble falling and staying asleep; poor energy, concentration, appetite, 7 and self-worth; and a 20% improvement in anxiety, although she continued to 8 endorse mild to moderate anxiety including constant worrying about multiple things 9 and fear that something horrible will happen. (AR 557.) 10 To the extent the ALJ may have relied on Plaintiff’s alleged failure to follow 11 a prescribed course of treatment or improvement with medication to discount her 12 subjective symptom testimony, these brief mentions of Plaintiff not taking her 13 Adderall do not warrant a conclusion that Plaintiff was noncompliant with her 14 medication. Indeed, both notes provide a valid explanation for Plaintiff’s failure to 15 take the previously-prescribed Adderall -- in the March 2020 note, she appears to 16 have moved “from [A]lbequerque,” and her prescription could not be filled or 17 renewed until authorized by her new treatment center and a psychiatrist. (AR 490.) 18 The November 2020 treatment note reflects that the Adderall had not yet been 19 approved. (AR 557.) 20 Additionally, the ALJ’s concluding statement -- without explanation -- that 21 these treatment notes reflect a baseline level of functioning consistent with an ability 22 to sustain work within the parameters of the ALJ’s RFC determination, “does not . . 23 . add anything to the ALJ’s determination of either the RFC or [Plaintiff’s] 24 credibility.” See Laborin, 867 F.3d at 1154-55 (noting that it cannot be inferred 25 from the ALJ’s conclusory language discrediting the claimant’s testimony to the 26 extent it is inconsistent with the RFC determination that the ALJ rejected the 27 claimant’s testimony to the extent it conflicted with the medical evidence). 28 13 Case 5:22-cv-00588-GJS Document 20 Filed 03/21/23 Page 14 of 15 Page ID #:938

1 Accordingly, even if the ALJ’s statement regarding Plaintiff’s medication 2 efficacy or compliance is considered to be a reason given by the ALJ to discount 3 Plaintiff’s subjective symptom testimony, the Court determines that it is not a 4 specific, clear and convincing reason for doing so. 5 6 V. REMAND FOR FURTHER PROCEEDINGS 7 Where, as here, the ALJ fails to state legally sufficient reasons for discounting 8 a claimant’s subjective complaints, a court ordinarily cannot properly affirm the 9 administrative decision. See Robbins, 466 F.3d at 884-85. Additionally, the Court 10 is unable to conclude that the ALJ’s errors in evaluating Plaintiff’s subjective 11 complaints were “harmless” or “inconsequential to the ultimate non-disability 12 determination.” Brown-Hunter, 806 F.3d at 492. 13 As the circumstances of this case suggest that further administrative 14 proceedings could remedy the ALJ’s errors, remand is appropriate. See Dominguez 15 v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) (“Unless the district court concludes 16 that further administrative proceedings would serve no useful purpose, it may not 17 remand with a direction to provide benefits.”); Treichler, 775 F.3d at 1101, n.5 18 (remand for further administrative proceedings is the proper remedy “in all but the 19 rarest cases”); Harman v. Apfel, 211 F.3d 1172, 1180-81 (9th Cir. 2000) (remand for 20 further proceedings rather than for the immediate payment of benefits is appropriate 21 where there are “sufficient unanswered questions in the record”). 22 23 VI. CONCLUSION 24 For all the foregoing reasons, IT IS ORDERED that: 25 (1) the decision of the Commissioner is REVERSED and this matter is 26 REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further 27 administrative proceedings consistent with this Memorandum Opinion and Order; 28 14 Case 5:22-cv-00588-GJS Document 20 Filed 03/21/23 Page 15o0f15 Page ID #:939

1 || and 2 (2) Judgment be entered in favor of Plaintiff. 4 IT IS SO ORDERED. 6 || DATED: March 21, 2023 Uo 7 OM 8 GAIL J. STANDISH UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15