Robert K. v. Frank Bisignano, Acting Commissioner of Social Security

Opinion

1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 ROBERT K., Case No.: 25-cv-00312-JLB

14 Plaintiff, ORDER GRANTING PLAINTIFF’S 15 v. MERITS BRIEF

16 FRANK BISIGNANO, Acting [ECF No. 14] Commissioner of Social Security, 17 Defendant. 18 19 20 On February 11, 2025, plaintiff Robert K. (“Plaintiff”) filed a complaint pursuant to 21 42 U.S.C. § 405(g) seeking judicial review of a decision by the Commissioner of Social 22 Security (the “Commissioner”) denying his application for disability insurance benefits and 23 supplemental security income (“SSI”) benefits. (ECF No. 1.) 24 Before the Court and ready for decision is Plaintiff’s merits brief. (ECF No. 14.) 25 The Commissioner filed an opposition (ECF No. 16), and Plaintiff filed a reply 26 (ECF No. 17). For the reasons set forth herein, the Court GRANTS Plaintiff’s merits brief, 27 reverses the decision of the Commissioner, and remands this matter for further 28 administrative proceedings pursuant to sentence four of 42 U.S.C. § 405(g). 1 I. PROCEDURAL BACKGROUND 2 On April 30, 2022, Plaintiff filed an application for a period of disability and 3 disability insurance benefits under Title II of the Social Security Act and for SSI under 4 Title XVI of the Social Security Act, alleging disability beginning November 1, 2019. 5 (Certified Administrative Record [“AR”], at 453–66, 27.) The claims were denied initially 6 and upon reconsideration. (AR 352–57, 365–76.) Subsequently, Plaintiff requested and 7 was granted an administrative hearing before an administrative law judge (“ALJ”). (AR 8 382–83.) 9 An administrative hearing was held on October 31, 2023. (AR 44–63.) At the 10 hearing, Plaintiff was represented by counsel and testimony was solicited from Plaintiff 11 and a vocational expert (“VE”). (AR 44–63.) On February 28, 2024, the ALJ issued his 12 decision, finding Plaintiff was not disabled, as defined in the Social Security Act, from 13 November 1, 2019, through the date of decision. (AR 24-43.) 14 The ALJ’s decision became the final decision of the Commissioner on 15 January 7, 2025, when the Appeals Council denied Plaintiff’s request for review. (AR 1– 16 7.) Plaintiff exhausted administrative remedies and timely filed this civil action on 17 February 11, 2025. (ECF No. 1.) 18 II. SUMMARY OF THE ALJ’S FINDINGS 19 In rendering his decision, the ALJ followed the Commissioner’s five-step sequential 20 evaluation process. See 20 C.F.R. §§ 404.1520(a), 416.920(a). At step one, the ALJ found 21 that Plaintiff had not engaged in substantial gainful activity since November 1, 2019, the 22 alleged onset date. (AR 29.) 23 At step two, the ALJ found that Plaintiff had the following severe impairments: HIV, 24 asymptomatic; congestive heart failure; anxiety disorder, post-traumatic stress disorder 25 (“PTSD”), agoraphobia, and attention deficit hyperactivity disorder (“ADHD”). (AR 30.) 26 At step three, the ALJ found that Plaintiff did not have an impairment or combination 27 of impairments that met or medically equaled the severity of one of the impairments listed 28 in the Commissioner’s Listing of Impairments. (AR 30.) 1 Next, the ALJ determined that Plaintiff had the residual functional capacity (“RFC”) 2 “to perform medium work” as defined in 20 C.F.R. §§ 404.1567(c) and 416.967(c), with 3 the following limitations: 4 [the claimant can] understand, remember, carry out, and apply simple job instructions and simple repetitive tasks, unskilled work; can interact 5 appropriately with coworkers and supervisors, should not be teamwork or 6 collaborative work; can appropriately make handoffs of work materials and products to coworkers and supervisors; non-public; can appropriately respond 7 to supervision, routine work situations and settings and changes in routine 8 work situations and settings; can appropriately make decisions, ask questions, and use judgment. 9 10 (AR 32.) 11 For purposes of his step four determination, the ALJ found that Plaintiff was unable 12 to perform any of his past relevant work. (AR 35.) 13 At step five, based on the VE’s testimony that a hypothetical person with Plaintiff’s 14 vocational profile and RFC could perform the requirements of occupations that existed in 15 significant numbers in the national economy (e.g., packager, industrial cleaner, and 16 assembler), the ALJ found that Plaintiff had not been under a disability, as defined by the 17 Social Security Act, since November 1, 2019, through the date of decision. (AR 36–37.) 18 III. PLAINTIFF’S CLAIMS OF ERROR 19 As reflected in Plaintiff’s merits brief, the disputed issues that Plaintiff is raising as 20 the grounds for reversal and remand are as follows: 21 1. Whether the ALJ erred in assessing Plaintiff’s physical RFC. (ECF No. 14 at 22 4–6.) 23 2. Whether the ALJ erred in assessing the opinion of consultative psychological 24 examiner, Montez McCarthy, PsyD. (Id. at 6–9.) 25 3. Whether the ALJ erred in assessing Plaintiff’s subjective symptom testimony. 26 (Id. at 9–13.) 27 /// 28 /// 1 IV. STANDARD OF REVIEW 2 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to 3 determine whether the Commissioner’s findings are supported by substantial evidence and 4 whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846 5 (9th Cir. 1991). Substantial evidence means “more than a mere scintilla” but less than a 6 preponderance. Richardson v. Perales, 402 U.S. 389, 401 (1971); Desrosiers v. Sec’y of 7 Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial evidence is 8 “such relevant evidence as a reasonable mind might accept as adequate to support a 9 conclusion.” Richardson, 402 U.S. at 401. This Court must review the record as a whole 10 and consider adverse as well as supporting evidence. Green v. Heckler, 803 F.2d 528, 11 529- 30 (9th Cir. 1986). Where evidence is susceptible to more than one rational 12 interpretation, the Commissioner’s decision must be upheld. Gallant v. Heckler, 753 F.2d 13 1450, 1452 (9th Cir. 1984). 14 V. DISCUSSION 15 A. The ALJ Erred in Assessing the State Agency Medical Consultants’ 16 Opinions and Plaintiff’s Physical RFC. 17 1. Parties’ Arguments 18 Plaintiff argues that the ALJ erred by finding only “partially persuasive” the opinions 19 of the state agency medical consultants, S. Lee, M.D. and G. Spellman, M.D., with respect 20 to Plaintiff’s physical RFC and then by formulating his own lay RFC instead of developing 21 the record further. (ECF No. 14 at 4–6.) Plaintiff further argues that the late evidence he 22 submitted to the Appeals Council is “highly relevant” and supports a finding that the ALJ 23 erred in assessing the RFC. (Id. at 5–6.) 24 In response, the Commissioner argues that the ALJ properly assessed the RFC. 25 (ECF No. 16 at 2–4.) The Commissioner contends that the ALJ properly translated and 26 incorporated the clinical findings in the record into a succinct RFC. (Id. at 2–3.) The 27 Commissioner highlights the revised regulations which “expressly state that the RFC is an 28 administrative finding, not a medical opinion, which only the ALJ may make. (Id. at 3.) 1 The Commissioner further argues that there is not a reasonable probability that the evidence 2 submitted to the Appeals Council would change the outcome of the decision. (Id. at 3–4.) 3 2. Applicable Law 4 A claimant’s RFC “is the most [a claimant] can still do despite [his] limitations.” 20 5 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1); see also Laborin v. Berryhill, 867 F.3d 1151, 6 1153 (9th Cir. 2017) (“The RFC is an administrative assessment of the extent to which an 7 individual’s medically determinable impairment(s), including any related symptoms, . . . 8 may cause physical or mental limitations or restrictions that may affect his or her capacity 9 to do work-related physical and mental activities.” (citation omitted)). The ALJ is 10 “responsible for assessing [the RFC].” 20 C.F.R. §§ 404.1546(c), 416.946(c). Specifically, 11 it is an ALJ’s responsibility to translate medical opinions into concrete, functional 12 limitations. See Rounds, 807 F.3d at 1006 (“[T]he ALJ is responsible for translating and 13 incorporating clinical findings into a succinct RFC.”). The ALJ must determine a 14 claimant’s RFC “based on all of the relevant medical and other evidence,” and will consider 15 “any statements about what [the claimant] can still do that have been provided by medical 16 sources” and “descriptions and observations of [the claimant’s] limitations” provided by 17 the claimant and other non-medical sources. 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3); 18 Laborin, 867 F.3d at 1153. 19 The ALJ need only consider those limitations supported by the record and need not 20 take into account properly rejected evidence or subjective complaints. See Bayliss v. 21 Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). A district court must uphold an ALJ’s 22 RFC assessment when the ALJ has applied the proper legal standard and substantial 23 evidence in the record as a whole supports the decision. Id. 24 An ALJ has “a special duty to fully and fairly develop the record and to assure that 25 the claimant’s interests are considered.” Widmark v. Barnhart, 454 F.3d 1063, 1068 (9th 26 Cir. 2006) (citation omitted). The ALJ must consider all relevant records in its analysis 27 because the RFC must be “based on all the relevant evidence in [the claimant’s] case 28 record.” 20 C.F.R. §§ 404.1545, 416.945 (emphasis added). However, “[a]n ALJ’s duty 1 to develop the record further is triggered only when there is ambiguous evidence or when 2 the record is inadequate to allow for proper evaluation of the evidence.” Mayes v. 3 Massanari, 276 F.3d 453, 459–60 (9th Cir. 2001) (citing Tonapetyan v. Halter, 242 F.3d 4 1144, 1150 (9th Cir. 2001)). 5 When the duty to develop the record is triggered, an ALJ may discharge the duty in 6 several ways, including subpoenaing the claimant’s physicians, submitting questions to the 7 claimant’s physicians, continuing the hearing, or keeping the record open after the hearing 8 to allow supplementation of the record. Tonapetyan, 242 F.3d at 1150 (citing Tidwell v. 9 Apfel, 161 F.3d 599, 602 (9th Cir. 1998)). As some courts have persuasively observed, 10 “[t]he ALJ does not have to exhaust every possible line of inquiry in an attempt to pursue 11 every potential line of questioning. The standard is one of reasonable good judgment.” 12 Hawkins v. Chater, 113 F.3d 1162, 1168 (10th Cir. 1997) (internal citations omitted). The 13 burden is on Plaintiff to “furnish medical and other evidence that [the ALJ] can use to reach 14 conclusions about [the claimant’s] medical impairments(s).” Mayes, 276 F.3d at 459 15 (quoting 20 C.F.R. § 404.1512(a)). 16 3. Analysis 17 On July 1, 2022, and January 17, 2023, the state agency medical consultants, S. Lee, 18 M.D. and G. Spellman, M.D., assessed Plaintiff with a light exertional level and occasional 19 postural limitations. (AR 268–70, 288–90, 311–14, 333–36.) The ALJ found these 20 opinions “partially persuasive where it is partially supported by and consistent with the 21 record[.]” (AR 34.) However, the ALJ found “a medium exertional level accounts for 22 [Plaintiff’s] severe physical conditions.” (AR 34.) The ALJ noted that the “record 23 indicates [Plaintiff’s] HIV was asymptomatic and well controlled on medication.” (AR 24 34.) The ALJ also noted that the “record indicates [Plaintiff’s] CHF was improved on 25 medication” and his “9/15/22, 2/23/23, 6/22/23 physical examinations were within normal 26 limits.” (AR 34–35 (citing Ex 6F/19–20).) The ALJ added that the state agency medical 27 consultants “did not have the opportunity to review subsequent evidence.” (AR 35.) 28 1 In the RFC, the ALJ assessed Plaintiff with the ability to perform medium work and 2 included no postural limitations. (AR 31–32.) Therefore, the ALJ assessed Plaintiff with 3 fewer restrictions than were assessed by the state agency medical consultants. Plaintiff 4 argues that the ALJ’s decision to do so was legal error because there are no other medical 5 opinions in the record assessing Plaintiff’s physical capabilities and limitations. Plaintiff 6 contends that the ALJ improperly “created his own medical opinion for the entire period 7 and included it in the RFC assessment.” (ECF No. 14 at 5.) 8 Plaintiff does not point to any evidence the ALJ failed to consider in assessing 9 Plaintiff’s physical RFC. Rather, he argues that Plaintiff submitted “new and material 10 evidence to the Appeals Council consisting of multiple medical RFC assessments from his 11 treating doctor regarding his ability to work during the relevant period.” (ECF No. 14 at 5 12 (citing AR 254–57).) These checklist-style opinions, dated June 2021, June 2022, 13 August 2023, and March 2024,1 indicate that Plaintiff can lift, push, and pull no more than 14 ten pounds, which would be inconsistent with even light work. (AR 254–55.) This is in 15 contrast with the light work assessment of the state agency medical consultants and the 16 medium work assessment by the ALJ. The primary difference between the ability to 17 perform the light work assessed by the state agency medical consultants and the medium 18 work assessed by the ALJ is the ability to lift and carry objects.2 19

20 21 1 The Court notes that Plaintiff was only permitted to submit new and material evidence to the Appeals Council to consider “so long as the evidence relates to the period 22 on or before the ALJ’s decision.” Brewes v. Comm'r of Soc. Sec. Admin., 682 F.3d 1157, 23 1162 (9th Cir. 2012). The ALJ’s decision was issued on February 28, 2024. Therefore, this final opinion does not affect the Court’s decision. 24 2 See SSR 83-10, 1983 WL 31251, at *5–6 (Jan. 1, 1983) (the full range of light 25 and medium work “requires standing or walking, off and on, for a total of approximately 6 hours of an 8-hour workday”); 20 C.F.R. §§ 404.1567(b), 416.967(b) (“Light work 26 involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects 27 weighing up to 10 pounds.”); 20 C.F.R. §§ 404.1567(b), 416.967(c) (“Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects 28 1 During his administrative hearing before the ALJ in October 2023, Plaintiff testified 2 that he could not climb more than a single flight of stairs or walk more than fifteen to 3 twenty minutes before sitting down. (AR 51.) Plaintiff further testified that carrying a 4 gallon of milk or water would be “pushing the limits” and that he cannot carry two 12-pack 5 cans of soda at a time. (AR 52.) Plaintiff claimed these limitations are due to his congestive 6 heart failure (“CHF”) and atrial fibrillation. (AR 55; see also AR 514, 519.) Dr. Lee, a 7 state agency medical consultant, attributed Plaintiff’s CHF to his meth use. (AR 263.) 8 Plaintiff testified that he started using meth regularly following a sexual assault, but that 9 he stopped using in 2021. (AR 53–54.) Dr. Lee stated that “[i]t is well known that meth 10 induced CHF is reversible with cessation of abuse.” (AR 263.) Dr. Spellman, on 11 reconsideration, noted that the assessed limitations were “due to hypertension with past 12 episode of CHF in setting on pneumonia 5/20/20, and HIV,” but that test results and 13 examination findings from September 2022 showed a CD4 of 490, and a “BMI 27, clear 14 lungs, no edema, benign heart.” (AR 305.) 15 Although the state agency medical consultants found that Plaintiff’s medical records 16 and test results indicated the ability to perform light work, the ALJ noted that they did not 17 have the opportunity to review subsequent evidence. (AR 35.) In support of his finding 18 that the state agency medical consultants’ opinions were only “partially persuasive,” the 19 ALJ cited a medical record from June 2023 indicating that Plaintiff’s HIV was 20 “undetectable” and that he was “stable” from a cardiac perspective. (AR 1373–79.) The 21 treatment note further indicates that Plaintiff’s EF [ejection fraction] increased from 40% 22 in April 20203 to 61% in June 2023, indicating improved heart function.4 (AR 1377.) 23 24 25 3 In September 2022, Plaintiff’s EF was still listed at 40%. (AR 1100.) 26 4 An EF measurement under 40% usually shows heart failure, while an EF 27 measurement between 55% and 70% is normal. See Ejection Fraction Heart Failure Measurement, American Heart Association, https://perma.cc/MDQ9-9KYW (last visited 28 1 Other records cited by the ALJ in his decision support a determination that Plaintiff’s 2 CHF improved over time. In May 2020, Plaintiff underwent an echocardiogram, which 3 showed: “1. Moderately reduced left ventricular systolic function. EF 40%. Global 4 hypokinesis. 2. Mildly reduced RV systolic function. 3. All valves function well.” (AR 5 624.) A stress test was performed in March 2022, with Plaintiff exercising on a treadmill. 6 (AR 1313–16.) Plaintiff was reported to have “[g]ood exercise capacity for [his] age” with 7 normal “blood pressure response to exercise.” (AR 1314.) His “[r]esting EKG showed 8 normal sinus rhythm.” (AR 1315.) Plaintiff had another echocardiogram in April 2023. 9 (AR 1416–18.) The updated echocardiogram showed: “1. The left ventricular size is 10 normal. The left ventricular systolic function is normal. 2. Normal pattern of left 11 ventricular diastolic filling. 3. The right ventricular size is normal and systolic function is 12 normal. 4. Dilated aortic root. 5. Normal pulmonary artery pressure with right systolic 13 pressure of 26 mmHg using an estimated right atrial pressure of 3 mmHg.” (AR 1418.) In 14 a follow up appointment with Robert Gerrad Deiss, M.D. in June 2023, Dr. Deiss noted, 15 “From a cardiac perspective [Plaintiff] is stable.” (AR 1373.) 16 Plaintiff argues that, given the ALJ’s finding of a material change, the ALJ should 17 have developed the record further instead of improperly rendering his own medical 18 opinion. (ECF No. 14 at 4–6.) Although the Ninth Circuit has stated that “ALJs are, at 19 some level, capable of independently reviewing and forming conclusions about medical 20 evidence to discharge their statutory duty to determine whether a claimant is disabled and 21 cannot work,” Farlow v. Kijakazi, 53 F.4th 485, 488 (9th Cir 2022), the Court finds that 22 the ALJ’s duty to develop the record further was triggered in this case. Substantial 23 evidence supports the ALJ’s finding that Plaintiff’s CHF improved, but the ALJ does not 24 articulate the connection between this improvement and his finding that Plaintiff could lift 25 50 pounds occasionally and 25 pounds frequently, nor does he cite any evidence directly 26 supporting this finding. When the Court takes into consideration the opinions submitted 27 to the Appeals Council from Plaintiff’s treating physicians, the Court finds that Plaintiff’s 28 physical RFC needs to be reassessed. See Brewes, 682 F.3d at 1163 (holding that “when 1 the Appeals Council considers new evidence in deciding whether to review a decision of 2 the ALJ, that evidence becomes part of the administrative record, which the district court 3 must consider when reviewing the Commissioner's final decision for substantial 4 evidence”). None of the newly submitted opinions from Plaintiff’s treating physicians, 5 which specifically ask about Plaintiff’s ability to lift, push, and pull, opine that he can lift, 6 push, or pull more than ten pounds. (See AR 254–57.) 7 Accordingly, the Court finds that the ALJ erred in assessing Plaintiff’s physical 8 RFC. 9 B. The ALJ Erred in Assessing the Opinion of Dr. McCarthy. 10 1. Parties’ Arguments 11 Plaintiff argues that the ALJ erred by improperly rejecting the opinion of 12 Dr. McCarthy, Psy.D, the state agency mental consultant. (ECF No. 14 at 6–9.) Plaintiff 13 contends that the ALJ “does not provide any analysis of Dr. McCarthy’s opinion.” (Id. at 14 7.) Plaintiff further argues that the ALJ’s mental RFC is unsupported. (Id. at 8–9.) 15 In response, the Commissioner argues that the “ALJ reasonably evaluated all the 16 medical evidence and resolved all conflicts.” (ECF No. 16 at 4.) The Commissioner 17 further argues that the ALJ properly evaluated the consistency and supportability factors 18 in rejecting Dr. McCarthy’s opinions. (Id. at 4–5.) The Commissioner contends that 19 Plaintiff simply seeks “an alternative evaluation of the record,” and argues that “this is an 20 insufficient basis to overturn the ALJ’s rational decision.” (Id. at 6.) 21 2. Applicable Law 22 Under the revised regulations which apply to claims, such as this one, filed on or 23 after March 27, 2017, an ALJ must evaluate the persuasiveness of all medical opinions in 24 the record and articulate in the decision his or her assessment as to each. See 20 C.F.R. §§ 25 404.1520c(b), 416.920c(b). In evaluating the persuasiveness of a medical opinion, an ALJ 26 will consider the following factors: (1) supportability; (2) consistency; (3) relationship with 27 the claimant, including the length, purpose, and extent of the treatment relationship, 28 frequency of examinations, and examining relationship; (4) specialization; and (5) any 1 other factors that tend to support or contradict the medical opinion, including familiarity 2 with the other evidence in the claim. See id. §§ 404.1520c(c)(1)–(5), 416.920c(c)(1)–(5). 3 Although an ALJ must consider all these factors, the only factors that the ALJ is required 4 to discuss in his or her opinion are supportability and consistency, unless two conflicting 5 medical opinions are both equally well-supported and consistent with the record. See id. 6 §§ 404.1520c(b)(2)–(3), 416.920c(b)(2)–(3). 7 In evaluating the persuasiveness of medical opinions, the “most important factors” 8 are “supportability” and “consistency.” See id. §§ 404.1520c(a), 416.920c(a); see also 9 Woods v. Kijakazi, 32 F.4th 785, 791 (9th Cir. 2022). “Supportability means the extent to 10 which a medical source supports the medical opinion by explaining the ‘relevant . . . 11 objective medical evidence.’” Woods, 32 F.4th at 791–92 (quoting 20 C.F.R. § 12 404.1520c(c)(1)). “Consistency means the extent to which a medical opinion is ‘consistent 13 . . . with the evidence from other medical sources and nonmedical sources in the claim.’” 14 Id. at 792 (quoting 20 C.F.R. § 404.1520c(c)(2)). An ALJ must “articulate . . . how 15 persuasive” he or she finds “all of the medical opinions” from each doctor or other source, 16 and “explain how [he or she] considered the supportability and consistency factors” in 17 reaching these findings. See 20 C.F.R. §§ 404.1520c(b), 416.920c(b). 18 3. Analysis 19 On September 27, 2022, Montez McCarthy, PsyD, a licensed clinical psychologist, 20 completed a Comprehensive Psychological Evaluation of Plaintiff. (AR 1075–80.) During 21 the evaluation, Plaintiff complained of “acute non-episodic agoraphobia, post traumatic 22 stress disorder, severe non-episodic anxiety with panic attacks, congestive heart failure 23 (class II, acute, systolic), atrial fibrillation, hypertension II, HIV, insomnia, [and] persistent 24 night terror.” (Id. 1076.) Plaintiff stated that “he was sexually assaulted in 2015 and has 25 nightmares about it and his mother’s death—wakes up screaming. He can’t sleep more 26 than four hours. He often wakes up confused in space and time.” (AR 1076.) 27 Plaintiff self-reported that he can take care of his own hygiene, bathing, and dressing. 28 (AR 1077.) He stated that he has a valid driver’s license and can independently grocery 1 shop, prepare basic (frozen) meals for himself, and manage financial matters. (AR 1077.) 2 Plaintiff can and does help with basic household chores and cleaning. (AR 1077.) Plaintiff 3 has limited social support and spends his time “trying to engage his community.” (AR 4 1077.) 5 Dr. McCarthy noted that Plaintiff “made limited eye contact with the interviewer,” 6 with Plaintiff presenting “as somewhat disorganized.” (AR 1077.) During the evaluation, 7 Plaintiff’s “mood was reported to be anxious, at 5 out of 10,” his “affect was intense,” and 8 his “speech was pressured at times.” (AR 1078.) Dr. McCarthy noted that Plaintiff 9 appeared to be in the “Average Range of Intellectual Functioning.” (AR 1078.) He further 10 found Plaintiff’s fund of knowledge and insight and judgment to be “grossly intact,” but 11 noted that Plaintiff struggled with memory, concentration, and calculation.” (AR 1078.) 12 Plaintiff’s diagnoses included: PTSD; panic disorder; amphetamine-type substance 13 use disorder, severe, in sustained remission; and with a rule out of bipolar disorder. (AR 14 1079.) The only source of information for the evaluation was Plaintiff, as no records were 15 provided for review. (AR 1075.) Dr. McCarthy assessed that Plaintiff was in a “mildly 16 chaotic” and “unstable mood” state with a grandiose tone. (AR 1079.) Dr. McCarthy 17 opined that it is possible that such unstable mood states negatively impact Plaintiff’s 18 employment. (AR 1079.) 19 With respect to the functional assessment, Dr. McCarthy determined that Plaintiff 20 could be mildly limited in understanding, remembering, and performing simple one or two- 21 step job/task instructions on a sustained basis, but markedly limited in understanding, 22 remembering, and performing detailed and complex job/task instructions on a sustained 23 basis due to his unstable mood states. (AR 1079.) Dr. McCarthy found that Plaintiff’s 24 ability to do the following could be markedly limited due to his unstable moods: 25 understand, remember, and perform detailed and complex job/task instructions on a 26 sustained basis; react to unexpected changes in routine and/or make judgments on complex 27 work-related tasks on a sustained basis; and maintain concentration and attention and 28 persist and/or maintain pace on a sustained basis. (AR 1079-80.) Dr. McCarthy further 1 found that Plaintiff could be markedly limited in his ability to maintain regular attendance 2 in the workplace, to deal with the usual stresses encountered in competitive work, and to 3 complete a normal workday or workweek without interruptions resulting from his 4 psychiatric conditions on a sustained basis due to his unstable mood states. (AR 1079–80.) 5 Lastly, Dr. McCarthy held that Plaintiff’s ability to accept instruction from supervisors, 6 interact with coworkers and/or the public on a sustained basis can be markedly limited by 7 unstable mood states. (AR 1080.) 8 In his decision, the ALJ summarized Dr. McCarthy’s findings and then stated: “The 9 undersigned finds the DDS mental consultants’5 opinions not persuasive where it is not 10 supported by and not consistent with the record including normal mental status 11 examinations and reports of ability to perform activities of daily living.” (AR 35 (citing 12 Exs. 4F/38, 6F/6, 69).) The Court finds that the ALJ erred in assessing Dr. McCarthy’s 13 opinion. 14 The Commissioner argues that “the ALJ’s terse, yet cogent findings satisfied the 15 regulatory requirements.” (ECF No. 16 at 5.) However, the ALJ does not discuss the 16 supportability factor at all. “Supportability means the extent to which a medical source 17 supports the medical opinion by explaining the relevant . . . objective medical evidence.” 18 Woods, 32 F.4th at 791–92 (internal quotation marks and citation omitted). In his decision, 19 the ALJ does not address how Dr. McCarthy failed to support his opinions. Although the 20 ALJ does discuss the consistency factor, an ALJ errs when he fails to address both factors. 21 See David C. v. Comm'r of Soc. Sec., No. 23-CV-0655-WQH-MMP, 2024 WL 3596856, 22 at *10 (S.D. Cal. July 31, 2024) (collecting cases), adopted by 2024 WL 4184086 (S.D. 23 Cal. Aug. 16, 2024). 24 25

26 27 5 The Court assumes that this is a typographical error and the ALJ intended this section to apply to Dr. McCarthy. If the Court were to interpret this otherwise, there would 28 1 With respect to the consistency factor, the Court finds that the ALJ’s evaluation is 2 not supported by substantial evidence the record. Dr. McCarthy assessed Plaintiff with 3 marked limitations due to his “unstable mood states.” (AR 1079–80.) The records cited 4 by the ALJ do not indicate a stable mood. (AR 35.) The first record cited by the ALJ, 5 dated May 24, 2022, states that Plaintiff was “doing o.k.” and noted that he appeared 6 anxious and frequently changed positions in his chair. (AR 1119.) The second record cited 7 by the ALJ, dated April 11, 2023, states that Plaintiff has “been good” and noted that his 8 affect was “euthymic, congruent with mood, no lability.” (AR 1426.) The last record cited 9 by the ALJ, dated June 27, 2023, states that Plaintiff’s mood was “terrible” and noted that 10 his affect was “dysthymic, congruent with mood, appropriately tearful, mild lability.” (AR 11 1363.) The ALJ cites no other records in his discussion of Dr. McCarthy’s opinion. 12 The ALJ also states that Dr. McCarthy’s marked limitations are inconsistent with 13 Plaintiff’s “reports of ability to perform activities of daily living.” (AR 25.) The ALJ does 14 not elaborate on this statement in the paragraph discussing Dr. McCarthy and the Court 15 cannot discern which activities of daily living the ALJ finds inconsistent with 16 Dr. McCarthy’s marked limitations due to Plaintiff’s unstable mood states. 17 Given the foregoing, the Court finds that the ALJ erred in his assessment of 18 Dr. McCarthy. The error was not harmless as it impacted Plaintiff’s mental RFC 19 determination. See Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006) 20 (defining harmless error as such error that is “inconsequential to the ultimate nondisability 21 determination”). 22 As the Court finds that the ALJ erred in assessing both Plaintiff’s mental and 23 physical RFC, the Court finds remand appropriate and declines to address Plaintiff’s 24 remaining argument regarding subjective symptom testimony.6 25

26 27 6 The Court notes that the reasons given by the ALJ for rejecting the severity of Plaintiff’s subjective symptom testimony are largely the same as those given to reject the 28 1 C. Remand for Further Administrative Proceedings is Appropriate 2 Remand for further administrative proceedings, rather than an award of benefits, is 3 || warranted because further administrative review could remedy the ALJ’s errors. See 4 || Brown-Hunter, 806 F.3d at 495 (remanding for an award of benefits is appropriate in rare 5 || circumstances). This is not a case where “further administrative proceedings would serve 6 ||no useful purpose.” Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). 7 CONCLUSION 8 For the reasons set forth above, the Court GRANTS Plaintiff’s merits brief, 9 ||reversing the decision of the Commissioner, and remands this matter for further 10 administrative proceedings pursuant to sentence four of 42 U.S.C. § 405(g). 11 IT IS SO ORDERED. 12 Dated: March 30, 2026 -

n. Jill L. Burkhardt 14 ited States Magistrate Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28