Roxanne Nunez v. Commissioner of Social Security

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROXANNE NUNEZ, No. 2:24-cv-03141-CKD 12 Plaintiff, 13 v. ORDER 14 COMMISSIONER OF SOCIAL SECURITY, 15 Defendant. 16

17 18 Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security 19 (“Commissioner”) denying applications for Disability Income Benefits (“DIB”) and 20 Supplemental Security Income (“SSI”) under Titles II and XVI of the Social Security Act 21 (“Act”), respectively. The parties have consented to magistrate judge jurisdiction for all 22 purposes, including entry of judgment. (ECF No. 6.) For the reasons discussed below, the court 23 will grant plaintiff’s motion for summary judgment, remand for further proceedings, and deny the 24 Commissioner’s motion for summary judgment. 25 //// 26 //// 27 //// 28 //// 1 BACKGROUND 2 Plaintiff, born in 1980, applied for DIB1 on November 18, 2020, alleging disability 3 beginning November 9, 2018. Administrative Transcript (“AT”) 99. Plaintiff alleged she was 4 unable to work due to fibromyalgia, bodily pain, memory loss, ADHD, chronic fatigue syndrome, 5 PTSD, anxiety, and panic attacks. AT 47. On December 5, 2023, the ALJ issued a decision 6 finding plaintiff not disabled. The ALJ made the following findings (citations to 20 C.F.R. 7 omitted): 8 1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2024. 9 2. The claimant has not engaged in substantial gainful activity since 10 November 9, 2018, the alleged onset date. 11 3. The claimant has the following severe impairments: history of alcohol abuse with Cirrhosis; opiate use disorder; chronic pain syndrome; 12 depression, posttraumatic stress disorder; and attention deficit hyperactivity disorder (“ADHD”). 13 4. The claimant does not have an impairment or combination of impairments 14 that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. 15 5. After careful consideration of the entire record, the undersigned finds that 16 the claimant has the residual functional capacity to perform light work except the claimant can never have exposure to hazards such as unprotected 17 heights, heavy machinery, or driving commercially; can never climb ladders, ropes, and scaffolds; can perform unskilled, repetitive, simple, and routine 18 work only; and can never perform fast-paced production line work. 19 6. The claimant is unable to perform any past relevant work. 20 7. The claimant was born [in 1980] and was 38 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date. 21 8. The claimant has at least a high-school education. 22 9. Transferability of job skills is not material to the determination of 23 disability[.] 24 10. Considering the claimant’s age, education, work experience, and

25 1 Disability Insurance Benefits are paid to disabled persons who have contributed to the Social Security program, 42 U.S.C. § 401 et seq. Supplemental Security Income is paid to disabled 26 persons with low income. 42 U.S.C. § 1382 et seq. Both provisions define disability, in part, as 27 an “inability to engage in any substantial gainful activity” due to “a medically determinable physical or mental impairment. . . .” 42 U.S.C. §§ 423(d)(1)(a) & 1382c(a)(3)(A). 28 1 residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform.2 2 11. The claimant has not been under a disability, as defined in the Social 3 Security Act, from November 9, 2018, through the date of this decision.

4 AT 101-116. 5 ISSUES PRESENTED 6 Plaintiff argues that the ALJ committed the following errors in finding plaintiff not 7 disabled: (1) the ALJ failed to provide sufficient reasons for discounting plaintiff’s subjective 8 symptom testimony; and (2) the ALJ erred in evaluating the medical opinions of two treating 9 physicians and two reviewing psychological consultants. 10 LEGAL STANDARDS 11 The court reviews the Commissioner’s decision to determine whether (1) it is based on 12 proper legal standards pursuant to 42 U.S.C. § 405(g), and (2) substantial evidence in the record 13 as a whole supports it. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial 14 evidence is more than a mere scintilla, but less than a preponderance. Connett v. Barnhart, 340 15 F.3d 871, 873 (9th Cir. 2003) (citation omitted). It means “such relevant evidence as a reasonable 16 mind might accept as adequate to support a conclusion.” Orn v. Astrue, 495 F.3d 625, 630 (9th 17 Cir. 2007), quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). “The ALJ is 18 responsible for determining credibility, resolving conflicts in medical testimony, and resolving 19 ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citations omitted). 20 “The court will uphold the ALJ’s conclusion when the evidence is susceptible to more than one 21 rational interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). 22 The record as a whole must be considered, Howard v. Heckler, 782 F.2d 1484, 1487 (9th 23 Cir. 1986), and both the evidence that supports and the evidence that detracts from the ALJ’s 24 conclusion weighed. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The court may not 25 affirm the ALJ’s decision simply by isolating a specific quantum of supporting evidence. Id.; see 26 also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the 27 2 Relying on vocational expert (VE) testimony, the ALJ found that plaintiff could perform jobs 28 such as housecleaner, price marker, and mail sorter. AT 116. 1 administrative findings, or if there is conflicting evidence supporting a finding of either disability 2 or nondisability, the finding of the ALJ is conclusive, see Sprague v. Bowen, 812 F.2d 1226, 3 1229-30 (9th Cir. 1987), and may be set aside only if an improper legal standard was applied in 4 weighing the evidence. See Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). 5 ANALYSIS 6 A. Subjective Symptom Testimony 7 Plaintiff argues that the ALJ failed to provide legally sufficient reasons for discounting her 8 testimony as to mental and physical limitations, including “detailed symptom testimony specific 9 to her well-documented, longstanding diagnosis of fibromyalgia.” (ECF No. 11 at 11.) 10 1. Plaintiff’s Testimony 11 The ALJ summarized plaintiff’s hearing testimony and January 2022 function report at 12 length. AT 107-108. Plaintiff stated, in part, that she had 13 difficulty with lifting, squatting, bending, standing, reaching, walking, sitting, kneeling, talking, stair climbing, memory, 14 completing tasks, concentration, understanding, following instructions, using hands, and getting along with others. The 15 claimant reported that she could walk a block or half a block [and] that her ability to concentrate was sporadic. [She] stated that at times 16 she could not leave her bed for four or five days at a time. 17 AT 107, citing AT 310-320. At the October 2023 hearing, plaintiff testified that she worked at 18 Lowe’s up to eight hours a week with “a lot of breaks.” AT 18-19. She stated that she could 19 stand for 10-15 minutes and used a bench at the register at work. AT 28. Plaintiff testified that 20 she could go up and down the stairs in her home. AT 29. She testified that she took multiple 21 medications (AT 31) and had anxiety, depression, and memory problems. AT 34. She stated that 22 she had been using a cane since 2020 but it had not been prescribed by a doctor, and that she used 23 a chair in the shower. AT 35-36. Plaintiff testified that she had a “good day” about every two 24 months, and on those days, she made jewelry for about an hour. AT 37-38. 25 2. The ALJ’s Decision 26 At step two, the ALJ noted that plaintiff was diagnosed with fibromyalgia and chronic 27 pain syndrome in July 2020. AT 104. The ALJ concluded that fibromyalgia was a non-medically 28 determinable impairment according to the Soc. Sec. Rul. 12-2-p criteria. AT 103-104. However, 1 the ALJ found chronic pain syndrome to be a severe impairment and explained that she 2 “considered the claimant’s pain complaints including those made related to fibromyalgia . . . in 3 regard to chronic pain syndrome.” AT 102, 104. 4 After summarizing plaintiff’s self-reports and testimony, the ALJ found that plaintiff’s 5 “statements concerning the intensity, persistence, and limiting effects of [her] symptoms are not 6 entirely consistent with the medical evidence and other evidence in the record[.]” AT 109. 7 “First,” the ALJ wrote, “in regards to complaints such as fatigue, dizziness, difficulty 8 sleeping, pain, chronic pain syndrome, or trouble concentrating,” the record showed that plaintiff 9 was “consistently and across providers” described as “awake and alert.” AT 109. As to pain, the 10 ALJ cited evidence that plaintiff’s pain medications “generally . . . work[ed]” in controlling her 11 pain. AT 109 (record citations omitted). Similarly, the ALJ cited evidence that plaintiff’s fatigue 12 was “well managed” with medication. AT 109; AT 111 (“the treatment record generally showed 13 the claimant’s pain responded to medication.”). Nonetheless, taking plaintiff’s pain into account, 14 the ALJ limited her to simple work at the light exertional level. AT 109. 15 As to plaintiff’s claimed “problems walking, sitting, and standing . . . or having postural 16 limitations,” the ALJ noted that “the record consistently and across providers shows normal gait” 17 and that, at a March 2022 exam, plaintiff “got on and off the examination table [and took her 18 shoes off] without difficulty[.]” AT 109. The ALJ concluded that plaintiff could perform the 19 standing, walking, and other physical requirements of light work. AT 109; see also AT 110 20 (finding plaintiff physically capable of light work), AT 111 (noting plaintiff held part-time job 21 requiring interacting with the public, walking, and standing). 22 As to plaintiff’s claimed problems with memory and concentration, the ALJ cited 23 evidence of “fairly unremarkable” mental exams and evidence that, in 2021, plaintiff’s inattention 24 was “adequately addressed” with medication. AT 110-111. The ALJ also noted that plaintiff 25 declined therapy in December 2021. AT 111. The ALJ concluded that plaintiff’s mild and 26 moderate mental impairments limited her to “repetitive and routine type work that is not 27 performed in a fast paced production environment.” AT 110. 28 As to plaintiff’s claimed problems with mood and affect, the ALJ again noted mild 1 psychological exam findings and evidence that plaintiff was appropriately groomed, calm, and 2 cooperative with medical providers. AT 110 (record citations provided). The ALJ concluded that 3 the evidence supported a limitation to occasional interaction with others. AT 111. 4 3. Legal Standard 5 a. Two-step credibility determination 6 The ALJ determines whether a disability applicant is credible, and the court defers to the 7 ALJ’s discretion if the ALJ used the proper process and provided proper reasons. See, e.g., 8 Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1995). If credibility is critical, the ALJ must make an 9 explicit credibility finding. Albalos v. Sullivan, 907 F.2d 871, 873-74 (9th Cir. 1990). “Without 10 affirmative evidence showing that the claimant is malingering, the Commissioner’s reasons for 11 rejecting the claimant’s testimony must be clear and convincing.” Morgan v. Commissioner of 12 Social Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); see also Lambert v. Saul, 980 F.3d 1266, 13 1277–78 (9th Cir. 2020). 14 In evaluating whether subjective complaints are credible, the ALJ should first consider 15 objective medical evidence and then consider other factors. Bunnell v. Sullivan, 947 F.2d 341, 16 344 (9th Cir. 1991) (en banc). If there is objective medical evidence of an impairment, the ALJ 17 then may consider the nature of the symptoms alleged, including aggravating factors, medication, 18 treatment and functional restrictions. See id. at 345-47. The ALJ also may consider: (1) the 19 applicant’s reputation for truthfulness, prior inconsistent statements or other inconsistent 20 testimony, (2) unexplained or inadequately explained failure to seek treatment or to follow a 21 prescribed course of treatment, and (3) the applicant’s daily activities. Smolen v. Chater, 80 F.3d 22 1273, 1284 (9th Cir. 1996). Work records, physician and third party testimony about nature, 23 severity and effect of symptoms, and inconsistencies between testimony and conduct also may be 24 relevant. Light v. Social Security Administration, 119 F.3d 789, 792 (9th Cir. 1997). A failure to 25 seek treatment for an allegedly debilitating medical problem may be a valid consideration by the 26 ALJ in determining whether the alleged associated pain is not a significant nonexertional 27 impairment. See Flaten v. Secretary of HHS, 44 F.3d 1453, 1464 (9th Cir. 1995). 28 //// 1 b. Fibromyalgia 2 “Fibromyalgia is ‘a rheumatic disease that causes inflammation of the fibrous connective 3 tissue components of muscles, tendons, ligaments, and other tissue.’” Revels v. Berryhill, 874 4 F.3d 648, 656 (9th Cir. 2017) (quoting Benecke v. Barnhart, 379 F.3d 587, 589 (9th Cir. 2004)). 5 “Typical symptoms include ‘chronic pain throughout the body, multiple tender points, fatigue, 6 stiffness, and a pattern of sleep disturbance that can exacerbate the cycle of pain and fatigue.’” 7 Id. (quoting Benecke, 379 F.3d at 590). Social Security Ruling (“SSR”) 12-2p “recognizes that 8 the symptoms of fibromyalgia ‘wax and wane,’ and that a person may have ‘bad days and good 9 days.’” Revels, 874 F.3d at 657 (quoting SSR 12-2p). 10 The Ninth Circuit has held that “after a claimant has established a diagnosis of 11 fibromyalgia,” the ALJ should “consider a longitudinal record whenever possible.” Revels, 874 12 F.3d at 657; see also Franchino v. Kijakazi, 2022 WL 16548014, *1 (9th Cir. Oct. 31, 2022) 13 (unpublished). Moreover, “the medical evidence must be construed in light of fibromyalgia’s 14 unique symptoms and diagnostic methods[.]” Revels, 874 F.3d at 662; see also Franchino, 2022 15 WL 16548014, *2. It is not uncommon that individuals with fibromyalgia have “muscle strength, 16 sensory functions, and reflexes [that] are normal.” Id. at 656 (cleaned up). However, where a 17 claimant’s “statements . . . contradict the medical record or are inconsistent with her actions[,]” 18 this can “detract from her credibility” even with a fibromyalgia diagnosis. Franchino, 2022 WL 19 16548014, *2. 20 4. Analysis 21 As noted above, the ALJ found plaintiff’s diagnosed fibromyalgia to be non-severe. 22 However, the ALJ considered plaintiff’s subjective complaints of pain in the context of severe 23 chronic pain syndrome and ultimately limited plaintiff to simple work at the light level due to 24 pain. AT 109. 25 In evaluating credibility, the ALJ considered plaintiff’s numerous claimed symptoms as to 26 pain, fatigue, mobility, mental symptoms, and mood symptoms based on the longitudinal record 27 of treatment, as required with a fibromyalgia diagnosis. However, having found plaintiff’s 28 fibromyalgia nonsevere, the ALJ applied the standard two-part analysis and found plaintiff’s 1 multiple symptom allegations somewhat inconsistent with the medical record which contains 2 numerous unremarkable physical and mental findings during the period of alleged disability. The 3 ALJ also considered that plaintiff was capable of working part-time in a public facing role, had 4 good results with medications for her symptoms3, and at times opted to discontinue psychotropic 5 medications or start therapy. AT 111. Plaintiff contends that her fibromyalgia should have 6 factored more into the ALJ’s credibility analysis; however, she has not shown error on this basis. 7 As the ALJ used the proper process and provided proper reasons, the court defers to the ALJ’s 8 credibility analysis. 9 B. Medical Opinions 10 Plaintiff argues that she has disabling pain, fibromyalgia, chronic dysfunction, and severe 11 mental impairment. She challenges the ALJ’s assessment of the following medical opinions: (1) 12 the opinions of her primary care physician, Dr. Galang; (2) the opinions of treating psychiatrist 13 Dr. Correia; and (3) the opinions of state agency reviewing consultants Dr. Bergmann-Harms and 14 Dr. Barsukov. 15 “The ALJ is responsible for translating and incorporating clinical findings into a succinct 16 RFC.” Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015). In doing so, 17 the ALJ must articulate a “substantive basis” for rejecting a medical opinion or crediting one 18 medical opinion over another. Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014); see also 19 Marsh v. Colvin, 792 F.3d 1170, 1172-73 (9th Cir. 2015) (“an ALJ cannot in its decision totally 20 ignore a treating doctor and his or her notes, without even mentioning them”). 21 The applicable rules provide that adjudicators for the Social Security Administration, 22 including ALJs, evaluate medical opinions according to the following factors: supportability; 23 consistency; relationship with the claimant; specialization; and other factors such as the medical 24 source's familiarity with other evidence in the record or with disability program requirements. 20

25 3 See, e.g., AT 423 (2021 note that oxycodone “controlled her pain extremely well”), 916 (2021 note that plaintiff’s mental symptoms were “reasonably well addressed” off medication), 1011 26 (2023 note that medication was “controlling her pain” with no side effects), 1032 (2022 medical 27 note that plaintiff was “stable” on oxycodone with no side effects); 1062 (2023 note that mental symptoms were “well addressed” on medication). 28 1 C.F.R. § 416.920c(c)(1)-(5). The most important of these factors are supportability and 2 consistency. 20 C.F.R. § 416.920c(b)(2). Supportability is the extent to which an opinion or 3 finding is supported by relevant objective medical evidence and the medical source’s supporting 4 explanations. 20 C.F.R. § 416.920c(c)(1). Consistency is the extent to which an opinion or 5 finding is consistent with evidence from other medical sources and non-medical sources, 6 including the claimants themselves. 20 C.F.R. §§ 416.920c(c)(2), 416.902(j)(1). The ALJ will 7 articulate how he considered the most important factors of supportability and consistency, but an 8 explanation for the remaining factors is not required except when deciding among differing yet 9 equally persuasive opinions or findings on the same issue. 20 C.F.R. § 416.920c(b). The new 10 regulations “still require that the ALJ provide a coherent explanation of his reasoning” and 11 establish “a minimum level of articulation to be provided in determinations and decisions, in 12 order to provide sufficient rationale for a reviewing adjudicator or court.” Sam-Chankhiao v. 13 Kijakazi, 2:20-cv-0186 DB, 2022 WL 4226170, at *3 (E.D. Cal. Sept. 13, 2022), citing Hardy v. 14 Commissioner, 554 F.Supp.3d 900, 906 (E.D. Mich. 2021). 15 1. Dr. Galang 16 Dr. Gerardo Galang was plaintiff’s primary care provider between 2019 and 2023. The ALJ 17 evaluated two of his opinions in the record, one in August 2021 and the other in September 2023. 18 The ALJ summarized these opinions as follows: 19 [Dr. Galang opined in August 2021] that the claimant could lift ten pounds occasionally, stand and walk for two hours of an eight-hour 20 workday, and sit for less than six hours of an eight-hour workday. Dr. Galang indicated that the claimant was limited in all manipulative 21 activities. [He] cited to chronic pain, fibromyalgia, and pain medications. 22 23 AT 111, citing AT 1004-1010. 24 In September 2023, in a second form questionnaire, Dr. Galang indicated more severe 25 limitations. Dr. Galang opined that plaintiff could sit for two hours total and stand and walk less 26 than two hours of an eight-hour workday; would require five to six unscheduled breaks per day 27 that would last for hours; and could rarely perform manipulative tasks and lift less than ten 28 1 pounds. Dr. Galang opined that plaintiff would have bad days and be absent more than five days 2 a month, off-task more than fifty percent of the time, and unable to do any physical work due to 3 fibromyalgia flares. AT 112-13, citing AT 1089-1092. Summarizing this opinion, the ALJ 4 noted: 5 Dr. Galang cited to joint and back pain, on-and-off headaches, numbness, and tingling of the extremities. [He] cited to bilateral 6 tenderness and limited range of motion. Dr. Galang stated that the claimant had a poor prognosis. 7 AT 1124, citing 1089-1092. 8 The ALJ wrote that she did not find Dr. Galang’s opinions persuasive for the following 9 reasons: 10 First, the first form questionnaire was not supported by citations to 11 objective evidence. The second form cited to bilateral tenderness and limited range of motion, but this is not consistent with the 12 evidence or supported by Dr. Galang’s own treatment notes. Dr. Galang’s examinations were consistently unremarkable including 13 describing the claimant as awake and alert and not showing abnormalities of the extremities [record citations omitted]. The 14 claimant being awake and alert and no mention of concentration difficulty does not support she would be off task. Consistently 15 normal examinations are not consistent with bad days that would cause absenteeism. Normal examinations of the extremities do not 16 support the extreme limitations Dr. Galang opined to. The evidence also did not show reduced range of motion . . . consistent with 17 manipulative limitations. Moreover, the claimant had normal gait, walked without assistance, got off the examination table without 18 difficulty, and took her shoes off without difficulty. The claimant had no tenderness in the back or knee. This is not consistent with the 19 extreme limitations Dr. Galang opined to. 20 AT 112. 21 The ALJ found that the 2021 opinion was not supported by citations to objective evidence 22 and the 2023 opinion was not supported by Dr. Galang’s treatment notes, including many normal 23 examinations. AT 112. The ALJ cited multiple exam findings that plaintiff was “awake and alert 24 and not showing abnormalities of the extremities.” AT 112. The also ALJ considered whether 25 the opinion was consistent with evidence from other medical sources, including plaintiff’s 2022 26

27 4 The ALJ noted that, later in September 2023, Dr. Galang wrote a letter finding plaintiff unable to work. AT 112, citing AT 1093. As this letter went to the ultimate issue of disability, reserved 28 for the ALJ, the ALJ did not analyze it as a medical opinion. AT 112. 1 consultative examination with Dr. Shalid Ali, who found plaintiff to have a mostly normal range 2 of motion and noted that she could get on and off the exam table without difficulty. AT 112, 3 citing AT 660-665. 4 Plaintiff argues that the ALJ “relied on select evidence in the record” and did not address Dr. 5 Galang’s consistent documentation of plaintiff’s chronic ongoing pain. However, the ALJ 6 adequately considered the factors of supportability and consistency with respect to Dr. Galang’s 7 opinions, which largely concerned plaintiff’s physical abilities, and the court finds no error on 8 this basis. 9 2. Dr. Correia 10 Dr. Maisha Correia saw plaintiff for psychiatric care every 2-4 months between 2020 and 11 2023. See AT 887, 1088. She completed two mental disorder questionnaire forms, one in June 12 2022 (AT 883-887) and one in September 2023 (AT 1088-1102), which she updated one month 13 later (AT 1098-1102). 14 In her June 2022 opinion, Dr. Correia noted that plaintiff frequently cancelled scheduled 15 visits, four in the last year. AT 883; see also AT 888 (August 2020 initial evaluation noting that 16 plaintiff no-showed to three scheduled initial visits). At that time, plaintiff was being treated for 17 complex PTSD and ADHD. AT 883, 887. Dr. Correia noted that plaintiff’s behavior and attitude 18 were “variable and at times unpredictable” (AT 884) and that plaintiff’s ability to adapt to work 19 was “likely impaired” due to “impulsivity, rejection sensitivity, distress intolerance,” and 20 difficulty concentrating and completing tasks. AT 886. 21 In the September 2023 mental impairments questionnaire, Dr. Correia diagnosed complex 22 PTSD and recurrent, moderate ADHD. AT 1088. Dr. Correia described her clinical findings, 23 including results of the mental status examination, as follows: “Hyperarousal, frequent panic 24 attacks, difficulty reacting adaptively to stressful events . . . [.]” AT 1088. Plaintiff’s prognosis 25 was “good.” AT 1088. Dr. Correia identified multiple mental symptoms, including: decreased 26 energy, feelings of guilt or worthlessness, mood disturbance, difficulty thinking or concentrating, 27 persistent disturbances of mood and affect, and “recurrent severe panic attacks . . . occurring on 28 the average of at least one a week.” AT 1089. 1 On the checkbox form, Dr. Correia indicated that plaintiff could frequently understand, 2 remember, and apply information; interact with others; concentrate, persist, or maintain pace; and 3 adapt or manage herself. AT 1090-1091. Dr. Correia also opined that plaintiff would be absent 4 from work more than four times a month due to mental symptoms. AT 1091. 5 In the October 2023 update, Dr. Correia reassessed plaintiff’s ability to concentrate, persist, or 6 maintain pace. She found that plaintiff could do so only occasionally, not frequently. AT 1101. 7 Her other findings remained the same, including the opinion that plaintiff would be absent from 8 work more than four times a month due to mental symptoms. AT 1102. 9 The ALJ did not find these opinions persuasive, calling them “vague” and “not consistent 10 with the evidence.” AT 112. The ALJ explained, in part: 11 Attention and concentration were intact for the purposes of the [August 2023] evaluation.5 Even at the claimant’s initial evaluation 12 with Dr. Correia [in 2020], the claimant had normal mental status notes other than mood and affect.6 This included intact attention and 13 concentration and ability to recall recent and remote events. These notes are not consistent with the claimant only being able to 14 occasionally concentrate, persist, and maintain pace. . . . [T]he evidence does not show more than mild and moderate impairments . 15 . . Absenteeism is not consistent with Dr. Correia’s treatment notes being fairly static. 16 17 AT 117 (emphasis added). 18 The ALJ did not cite any evidence that undercut Dr. Correia’s opinion that plaintiff would 19 be absent more than four times a month due to mental symptoms. Nor did the ALJ address 20 evidence that arguably supported this opinion, including Dr. Correia’s notes that plaintiff 21 frequently missed or cancelled scheduled appointments and her finding that plaintiff had recurrent 22 severe panic attacks. In assessing Dr. Galang’s opinion, the ALJ reasoned that “consistently 23 normal examinations are not consistent with bad days that would cause absenteeism” (AT 116); 24 however, Dr. Correia’s mental evaluations went beyond status examinations and included 25

5 Citing AT 1077-1080 (August 2023 exam report by Dr. Correia noting that “[a]ttention and 26 concentration are intact for the purposes of this evaluation.”). 27 6 See AT 895 (August 2020 initial report noting “[a]ttention and concentration are intact for 28 purposes of participating in this evaluation.”). 1 findings of impulsivity, stress intolerance, panic attacks, and other issues that could lead to 2 frequent absences from work. See Hampton v. Colvin, 149 F.Supp.3d. 1279, 1283 (W.D. Wash. 3 Feb. 25, 2016) (ALJ failed to give specific and legitimate reason supported by substantial 4 evidence for discounting medical opinion that claimant would have “difficulty keeping [a] work 5 schedule” without interruptions from her symptoms); Chang v. Astrue, 2010 WL 3186908, *7 6 (E.D. Cal. Aug. 11, 2010) (ALJ did not give clear and convincing reason to reject medical 7 opinion that claimant’s impairments were likely to produce “good days” and “bad days” resulting 8 in four absences per month). 9 Here, the ALJ erred in failing to apply the supportability and/or consistency factors to Dr. 10 Correia’s opinion with respect to mental impairment-related absences. Because the VE testified 11 that “employers tolerate on average one absence per month,” the error affected the ultimate 12 disability determination and is not harmless. See Hampton, 149 F.Supp.3d at 1284 (same). 13 Plaintiff is entitled to summary judgment on this claim.7 14 CONCLUSION 15 With error established, the court has the discretion to remand or reverse and award 16 benefits. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). A case may be remanded 17 under the “credit-as-true” rule for an award of benefits where: 18 (1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has 19 failed to provide legally sufficient reasons for rejecting evidence, 20 whether claimant testimony or medical opinion; and (3) if the improperly discredited evidence were credited as true, the ALJ 21 would be required to find the claimant disabled on remand.

22 23 Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). Even where all the conditions for the 24 “credit-as-true” rule are met, the court retains “flexibility to remand for further proceedings when 25 the record as a whole creates serious doubt as to whether the claimant is, in fact, disabled within 26 the meaning of the Social Security Act.” Id. at 1021; see also Dominguez v. Colvin, 808 F.3d 27

28 7 The court does not reach the remaining issues. 1 | 403, 407 (th Cir. 2015) (Unless the district court concludes that further administrative 2 || proceedings would serve no useful purpose, it may not remand with a direction to provide 3 || benefits.”); Treichler, 775 F.3d at 1105 (“Where . . . an ALJ makes a legal error, but the record is 4 || uncertain and ambiguous, the proper approach is to remand the case to the agency.”). 5 Here, the record as a whole creates serious doubt as to whether the claimant was, in fact, 6 || disabled during the relevant period. On remand, the ALJ is free to develop the record as needed, 7 || including asking a vocational expert hypothetical questions about available jobs based on a 8 || revised RFC. The court expresses no opinion regarding how the evidence should ultimately be 9 || weighed, and any ambiguities or inconsistencies resolved, on remand. The court also does not 10 || instruct the ALJ to credit any particular opinion or testimony. The ALJ may ultimately find 11 | plaintiff disabled during the entirety of the relevant period; may find plaintiff eligible for some 12 || type of closed period of disability benefits; or may find that plaintiff was never disabled during 13 || the relevant period, provided that the ALJ’s determination complies with applicable legal 14 || standards and is supported by the record as a whole. 15 For the reasons stated herein, IT IS HEREBY ORDERED that: 16 1. Plaintiffs motion for summary judgment (ECF No. 11) is GRANTED; 17 2. The Commissioner’s cross-motion for summary judgment (ECF No. 15) is DENIED; 18 3. Judgment is entered for plaintiff; and 19 4. This matter is remanded for further administrative proceedings consistent with this 20 | order. 21 | Dated: February 9, 2026 / □□ I / dle ae

23 UNITED STATES MAGISTRATE JUDGE 24 || 2/mune3141.dib.ckd 25 26 27 28 14