Schaus v. O'Malley

• Court: District Court, D. Hawaii
• Decided: March 28, 2025
• Docket: 1:24-cv-00186
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT

DISTRICT OF HAWAII

PHILLIP GREGORY SCHAUS, CIV. NO. 24-00186 LEK-RT

Plaintiff,

vs.

MARTIN O'MALLEY, COMMISSIONER OF SOCIAL SECURITY;

Defendant.

ORDER: GRANTING IN PART AND DENYING IN PART PLAINTIFF’S APPEAL; REVERSING THE ADMINISTRATIVE LAW JUDGE’S DECISION; AND REMANDING THE CASE FOR FURTHER PROCEEDINGS

Plaintiff Phillip Gregory Schaus (“Plaintiff”) filed his Complaint for Review of Social Security Disability Benefits Determination (“Complaint”) on April 23, 2024, pursuant to Title 42 United States Code Section 405(g). [Dkt. no. 1.] Plaintiff appeals from Administrative Law Judge David Romeo’s (“ALJ”) July 10, 2023 Decision (“Appeal”).1 Plaintiff’s Opening

1 The Decision, including the Notice of Decision – Unfavorable and the List of Exhibits, is available in the Administrative Record Dated May 21, 2024 (“AR”) at 14-38. [AR, filed 7/3/24 (dkt. no. 11), Documents Related to Administrative Process Including Transcript of Oral Hearing, if applicable (dkt. no. 11-3) at PageID.45-68.] On July 10, 2023, Plaintiff requested review of the Decision. [Exh. 18B, AR at 184-85 (dkt. no. 11-5 at PageID.186-88).] By notice dated February 21, 2024, the Appeals Council denied Plaintiff’s request for review. [Notice of Appeals Council Action (“AC Notice”), AR at 1-5 (dkt. no. 11-3 at PageID.32-36).] Thus, the ALJ’s Decision constitutes the final decision of Defendant Martin O’Malley, Commissioner of (. . . continued) Brief was filed on August 2, 2024. [Dkt. no. 13.] The Commissioner filed the Answering Brief on August 30, 2024, and Plaintiff filed his Reply Brief on September 13, 2024. [Dkt. nos. 15, 16.] The Court finds this matter suitable for disposition without oral argument pursuant to Rule LR7.1(c) of

the Local Rules of Practice for the United States District Court for the District of Hawaii (“Local Rules”). On November 13, 2024, an entering order was issued informing the parties of this Court’s ruling on the Appeal. [Dkt. no. 17.] The instant Order supersedes that entering order. For the reasons set forth below, Plaintiff’s Appeal is granted in part and denied in part. The Appeal is granted insofar as: this Court rules that the ALJ erred in rejecting Plaintiff’s statements about the extent and limiting effects of his tinnitus symptoms; and this Court grants Plaintiff’s request for an award of attorney’s fees and costs. The Appeal is denied in all other respects. The matter is remanded to the ALJ for

further proceedings consistent with this Order. BACKGROUND On October 25, 2021, Plaintiff protectively filed a Title II application for disability and disability insurance benefits, alleging he was disabled as of January 1, 2021.

Social Security (“the Commissioner”). [Id. at 1 (dkt. no. 11-3 at PageID.32).] Plaintiff’s claim was denied, initially and on reconsideration. On September 2, 2022, Plaintiff filed a written request for a hearing. At the June 12, 2023 hearing, the ALJ heard testimony from Plaintiff and Alissa A. Smith, M.S., C.R.C., an impartial vocational expert (“VE”). [Decision, AR at 17 (dkt. no. 11-3 at

PageID.48).] Plaintiff testified that he had been working for Boston Consulting for approximately nine or ten months when he suffered an infection.2 He was prescribed two rounds of moxifloxacin, a fluoroquinolone class antibiotic. During the second round of the antibiotic, Plaintiff was admitted to the emergency room with symptoms that suggested he was having a stroke. After a stroke was ruled out, multiple sclerosis was then suspected, but it was later ruled out. See Social Security Administration Office of Disability Adjudication and Review Transcript of 6/12/24 hearing (“Hrg. Trans.”), AR at 49-50 (dkt. no. 11-3 at PageID.80-81). Plaintiff testified that he stopped

2 It is unclear exactly when Plaintiff suffered the infection. According to Plaintiff’s wage information, he was working full-time for the Boston Consulting Group in Massachusetts during the fourth quarter of 2020, and he obtained some wages from Boston Consulting Group in the first quarter of 2021 and the first quarter of 2022, but he was also collecting unemployment in Seattle, Washington during 2022. See Exh. 5D, AR at 202 (dkt. no. 11-6 at PageID.236) (New Hire Quarter Wage/Unemployment inquiry, dated 1/10/23). At the time of the hearing, Plaintiff was living with his parents in Captain Cook, Hawai`i. [Hrg. Trans., AR at 45-46 (dkt. no. 11-3 at PageID.76- 77).] working at a subsequent job with Volt Consulting Group because he “had unexplained, very severe nerve symptoms that could be explained by” a reaction to the moxifloxacin. [Id. at 50 (dkt. no. 11-3 at PageID.81).] At the time of the June 12, 2023 hearing, Plaintiff

was still experiencing “very, very, very severe, loud, debilitating tinnitus” in both ears, which prevented him from working. [Id.] The sound was a “piercing, metallic, . . . screeching sound” that is “so incredibly loud that [Plaintiff] can hear it over almost anything.” [Id. at 51-52 (dkt. no. 11-3 at PageID.82-83).] According to Plaintiff, he experienced the severe tinnitus “24/7 for the last three years.” [Id. at 51 (dkt. no. 11-3 at PageID.82).] The tinnitus prevents him from sleeping, and the lack of adequate sleep exacerbates the tinnitus. [Id.] Plaintiff’s tinnitus is also aggravated by stress and certain sounds. Plaintiff has somatic tinnitus and anxiety, both of which cause neck tension. [Id. at 55-56 (dkt.

no. 11-3 at PageID.86-87).] Plaintiff manages the tinnitus symptoms with sound therapy devices that are intended to cover up the tinnitus sound by matching the pitch of the sound. Plaintiff testified that he uses the devices twenty-four hours a day to allow him to function at a minimum level. [Id. at 51-52 (dkt. no. 11-3 at PageID.82-83).] He testified that, because he needs so many sound therapy devices for stabilization, he is unable to carry them with him if he leaves home. As much as possible, Plaintiff tries to limit the number of times that he leaves his home. [Id. at 47 (dkt. no. 11-3 at PageID.78).] He only drives to his doctor’s office, which is nine or ten miles from his home, for

appointments approximately once a week. Most of his appointments are telehealth appointments. [Id. at 46-47 (dkt. no. 11-3 at PageID.77-78).] Plaintiff also sees a psychologist and a talk therapist. Plaintiff wears a watch that vibrates to calm his nervous system, and he wears hearing aids that play white noise. [Id. at 52-53 (dkt. no. 11-3 at PageID.83-84).] But, “because [Plaintiff’s] tinnitus is so severe, [the hearing aids] can’t really cover it. It’s just like a band aid.” [Id. at 53 (dkt. no. 11-3 at PageID.84).] Plaintiff also takes medication that “slightly dampens the effect of tinnitus, but it doesn’t fix it in itself.” [Id. at 54 (dkt. no. 11-3 at PageID.85).] The side

effects of the medication include fatigue and drowsiness. [Id.] According to Plaintiff, his ability to hear sounds in the normal frequency range is “arguably average,” but he suffered high frequency hearing loss, which he asserts is common among people that have tinnitus caused by a drug reaction. [Id. at 53 (dkt. no. 11-3 at PageID.84).] In addition, sometimes “the tinnitus is so loud that it covers [certain sounds] up, and [he does not] hear them at all.” [Id. at 54 (dkt. no. 11-3 at PageID.85).] According to Plaintiff, audiologists use a Tinnitus Handicap Index to assess how debilitating someone’s tinnitus is, and his score is 93 or 94 out of 100, “which is considered catastrophic” and “un-functionable.” [Id. at 61 (dkt. no. 11-3

at PageID.92).] Plaintiff testified that he is “very depressed.” [Id. at 57 (dkt. no. 11-3 at PageID.88).] Plaintiff admitted having suicidal ideations, and he described one “very close call with self-harm” in March 2021, after which his parents forced him to move in with them. [Id. at 52 (dkt. no. 11-3 at PageID.83).] Later in the hearing before the ALJ, Plaintiff stated he “had suicide attempts.” [Id. at 61 (dkt. no. 11-3 at PageID.92).] Plaintiff admitted that he suffered from anxiety even before he developed tinnitus, and he has been diagnosed with obsessive- compulsive disorder. [Id. at 57-58 (dkt. no. 11-3 at PageID.88- 89).] He testified that he is “not social,” does not leave his

house, and does not stay in contact with many of his family and friends. [Id. at 61 (dkt. no. 11-3 at PageID.92).] According to Plaintiff, at times, the tinnitus is so severe that it drives him into a manic state. Plaintiff will attempt to distract himself with eating or chewing because the crunching sound that those activities make can cover the tinnitus sound. If Plaintiff feels a panic attack beginning, he will take a hot bath to distract himself. [Id. at 53 (dkt. no. 11-3 at PageID.84).] Plaintiff testified that, on average, he suffers from a few panic attacks a week, and they generally last for “[a] few hours at a time.” [Id. at 58 (dkt. no. 11-3 at PageID.89).]

Plaintiff testified that, on some days, he has “to will [him]self out of bed because of the depression [he is] in.” [Id. at 55 (dkt. no. 11-3 at PageID.86).] He spends most of his days doing research for news about tinnitus cures or developments in treating drug reactions. Other than that, Plaintiff spends his day engaging in coping or soothing behaviors to deal with his tinnitus symptoms. [Id.] Plaintiff estimates that he can pay attention to a task for thirty to forty-five minutes at a time before his tinnitus symptoms get so bad that he needs to stop and engage in his soothing behaviors. [Id. at 55-56 (dkt. no. 11-3 at PageID.86-87).] Plaintiff’s soothing behaviors, such as mindfulness techniques or a bath,

“can take hours, and sometimes if [he is] in a tinnitus flare, [he] may not stop that soothing behavior until like the end of the day[.]” [Id. at 56 (dkt. no. 11-3 at PageID.87).] His attention span is approximately the same when he is engaged in a leisure activity like watching television. [Id.] In the early stages after the onset of Plaintiff’s tinnitus, he tried to negotiate with his employer to continue “working at 50 percent capacity, and they said it was a nonstarter.” [Id. at 59-60 (dkt. no. 11-3 at PageID.90-91).] Plaintiff testified that he would have to play his pitch-match sound therapy on an external device at work for it to be effective and that playing the sound on headphones would not be

effective. [Id. at 60 (dkt. no. 11-3 at PageID.91).] When he attempted to discuss the issue with his employer, the employer instructed him to use earbuds. [Id.] The VE testified that there were three occupations, all of which exist in significant numbers in the national economy, that a hypothetical person, with the limitations that the ALJ ultimately included in Plaintiff’s residual functional capacity (“RFC”), could perform – automobile detailer, cart attendant, and lab equipment cleaner. See id. at 64 (dkt. no. 11-3 at PageID.95). The ALJ’s second hypothetical included the limitation that the individual would be off-task for more than twenty percent of the workday because of an inability to

maintain focus, attention, and concentration, and the VE responded that the hypothetical individual would be precluded from all competitive work. [Id. at 64-65 (dkt. no. 11-3 at PageID.95-96).] Similarly, in the third hypothetical, the VE testified that an individual who would be absent more than four days per month because of anxiety and depression would be precluded from all competitive work. [Id. at 65 (dkt. no. 5-3 at PageID.96).] Further, in the fourth hypothetical, the VE testified that, if the individual had to be reminded every thirty minutes to remain on task and needed occasional supervision to do his job, the individual would be precluded from competitive employment. [Id.]

The following exchange occurred during the examination of the VE by Plaintiff’s counsel: Q . . . if someone needed an at least 20- minute break every 45 minutes, sort of apart from the off task analysis, would that person be able to maintain competitive employment, sort of as an accommodation?

A No, they would not be.

Q Okay.

A Yeah, that would be an accommodation. Yes.

Q And if someone were required to play outside noise at their or audible noise from a device at their workstation, at at least a moderate noise level, would that person be able to maintain employment, or would that be require an accommodation as well?

A I believe that would be an accommodation in the workplace.

[Id. at 66 (dkt. no. 11-3 at PageID.97).] In the Decision, the ALJ found that Plaintiff was insured, for purposes of the Social Security Act, through September 30, 2026. [Decision, AR at 19 (dkt. no. 11-3 at PageID.50).] At step one of the five-step sequential analysis to determine whether a claimant is disabled, the ALJ found that Plaintiff had not engaged in substantial gainful employment since January 1, 2021, the alleged onset date. [Id.] At step two, the ALJ found that Plaintiff had the following severe impairments: “tinnitus; depression; peripheral

neuropathy; mild degenerative disc disease of the cervical spine; shoulder impairment; somatic symptom and related disorder; and anxiety disorder.” [Id. at 20 (dkt. no. 11-3 at PageID.51) (citing 20 CFR 404.1520(c)).] At step three, the ALJ found that none of Plaintiff’s impairments, either individually or in combination, met or equaled one of the impairments listed in Title 20 Code of Federal Regulations Part 404, Subpart P, Appendix 1. [Id. (citing 20 CFR 404.1520(d), 404.1525, 404.1526).] In the step four analysis, the ALJ found that Plaintiff had the RFC to perform medium work as defined in 20 CFR 404.1567(c) with the following additional restrictions: no ropes, ladders, scaffolds; no exposure to hazards or heights; no concentrated exposure vibration; can tolerate a moderate noise intensity level as defined in the [Dictionary of Occupational Titles]/[Selected Characteristics of Occupations defined in the Revised Dictionary of Occupational Titles]; can tolerate a low level of work pressure defined as work not requiring multitasking, very detailed job tasks, significant independent judgment, at production rate pace, or teamwork in completing job tasks; and can tolerate occasional interaction with coworkers, supervisors and no interaction with the public.

[Id. at 22 (dkt. no. 11-3 at PageID.53).] The ALJ found that Plaintiff’s impairments could reasonably be expected to cause the symptoms Plaintiff described, but his testimony about the intensity, persistence, and limiting effects of his symptoms was not consistent with the medical evidence and other evidence in the record. [Id. at 23 (dkt. no. 11-3 at PageID.54).] The ALJ found that Plaintiff’s claimed symptom severity was “disproportionate to medical, counseling, or mental health evidence in the record.” [Id.] The ALJ found that the record “reflect[s] a decrease in symptoms following physical therapy sessions and increased coping abilities through counseling and mental health treatment techniques.” [Id. at 24 (dkt. no. 11-3 at PageID.55).] The ALJ acknowledged that, on March 1, 2022, Plaintiff reported that his tinnitus sounds were as high as sixty decibels, which caused him to experience anxiety and mania, but the ALJ noted Plaintiff’s “assessment plans included working with a psychiatrist to find a regimen to help adjust the claimant’s mood/outlook and relax when their tinnitus was at its worst.” [Id. (citing Ex. 6F, p. 3).3]

3 Exhibit 6F is Plaintiff’s treatment records from the Capitol Hill Medical in Seattle, Washington, dated from (. . . continued) The ALJ also found that Plaintiff’s activities of daily living and the ALJ’s observations of Plaintiff during the hearing were “not entirely consistent” with Plaintiff’s account of the severity and limiting effects of his symptoms: Despite the claimant’s reported tinnitus, the claimant was able to focus sufficiently and long enough to drive once a week. Additionally, the claimant was able to testify without any observable difficulties despite reported ear ringing and had no indication of difficulty speaking. Although the claimant reported difficulties getting along with others, the claimant did not engage in any inappropriate behaviors and did not have difficulty establishing rapport or communicating with the undersigned during the hearing.

[Id. at 23 (dkt. no. 11-3 at PageID.54).] As to the medical records, the ALJ found that there was “[e]vidence of chronic tinnitus exacerbated by musculoskeletal tightness and tension and emotional factors,” and that this supported the limitations that the ALJ ultimately included in the RFC, but the ALJ found that further restrictions were not warranted in light of the “evidence of improved symptoms following physical therapy sessions and the claimant’s ability to identify contributing factors to tinnitus and employ

April 10, 2020 to March 24, 2021. [AR at 411-45 (dkt. no. 11-8 at PageID.447-81).] Page 3 is the first page an Office Visit Note for a March 1, 2022 virtual visit with Vy Chu, M.D., F.A.C.P. [AR at 413 (dkt. no. 11-8 at PageID.449).] mental health treatment techniques.” [Id. at 25 (dkt. no. 11-3 at PageID.56).] The ALJ found the opinions of Kindra Veith, Au.D., who had been Plaintiff’s audiologist from 2020, to be “partially persuasive” and “only partially supported and only partially

consistent.” See id. at 27 (dkt. no. 11-3 at PageID.58). Relevant to the instant Appeal, Dr. Veith opined that Plaintiff “would be off task 20 percent or eight hours of a standard workweek such that they could not perform simple work tasks; and an expected absenteeism of 16 hours or more per month.” [Id. (citing Ex. 23F).4] The ALJ assessed Dr. Veith’s opinions as follows: The assessment restricting the claimant to moderate noise intensity is supported by the evidence to which the audiologist cited and the claimants [sic] tinnitus complaints. However, the restrictions related to being off task and missing work are not supported given the claimant’s use of sound therapy and hearing aids and decreased tinnitus following physical therapy sessions. Those restrictions are also not consistent with the record as a whole, which includes the claimant’s identification of factors influencing tinnitus. Factors included personal relationships, stress, and musculoskeletal tightness. The record indicates the claimant was working to address such factors to decrease tinnitus and made improvements through counseling, mental health treatment, and physical therapy. Thus, the assessment is only partially

4 Exhibit 23F is a letter, dated June 1, 2023, to Dr. Veith from Plaintiff’s counsel with questions that Dr. Veith was asked to answer. Dr. Veith certified the answers on June 5, 2023. [AR at 1088-90 (dkt. no. 11-9 at PageID.1125-27).] persuasive as the assessed restriction related to noise intensity is supported and consistent but restrictions related to being off task and missing work are not supported and not consistent.

[Id. at 27-28 (dkt. no. 11-3 at PageID.58-59).] The ALJ also noted Vy Chu, M.D., F.A.C.P., opined that the claimant could work only 10 hours per week, three days per week, remotely, with a flexible schedule, with the use of sound therapy devices and sound masking machines available to the claimant, as loud as 60 decibels. Dr. Chu cited to ringing in both ears distracting the claimant from focusing and concentrating on complex work task and high sensitivity to stress and anxiety (Ex. 17F, p. 1).[5] On June 5, 2023. Dr. Chu, assessed the claimant could lift and/or carry up to 100 pounds or more but found marked and extreme limitations in paragraph B criteria and opined the claimant would need unscheduled breaks and would miss work 16 hours or more per month. Dr. Chu cited to no effective treatment for the claimant’s tinnitus and acute, non-ignorable, bilateral and painful ear ringing equivale to 30 to 50 decibels of sounds (Ex. 24F).[6]

[Id. at 27 (dkt. no. 11-3 at PageID.58).] Collectively with the assessments by Trish Gallant, P.T., and Heather Mine, M.D., the ALJ found Dr. Chu’s assessments were “not persuasive based on

5 Exhibit 17F is a State of Washington Employment Security Department form letter, dated February 19, 2022, sent to Plaintiff for his doctor to complete in connection with Plaintiff’s request for unemployment benefits. Dr. Chu certified the answers on March 17, 2022. [AR at 860-61 (dkt. no. 11-8 at PageID.896-97).]

6 Exhibit 24F is a letter, dated May 10, 2023, to Dr. Chu from Plaintiff’s counsel with questions that Dr. Chu was asked to answer. Dr. Chu certified the answers on June 5, 2023. [AR at 1091-94 (dkt. no. 11-9 at PageID.1128-31).] factors of supportability and consistency.” [Id.] The ALJ further stated: The assessments by Dr. Gallant, Dr. Chu, and Dr. Mine are not supported and are an underestimation of the claimant’s capabilities. Although the claimant symptoms of pain, tinnitus, and insomnia are documented in the record, the record also indicates the claimant’s symptoms and signs decreased, though not completely resolved, following physical therapy and through use of mental health treatment techniques. As to assessments related to the claimant’s mental health related symptoms, Dr. Gallant, Dr. Chu, and Dr[.] Mine are not qualified mental health professionals. The assessments are also not consistent with other evidence such as the claimant’s reports of decreased tinnitus and pain following physical therapy session. Thus, the assessments are not persuasive as they are not support and not consistent.

[Id.] The ALJ found that Plaintiff had past relevant work as a sales manager and as an executive assistant, but Plaintiff is not capable of performing his past relevant work. [Id. at 30 (dkt. no. 11-3 at PageID.61).] At step five, the ALJ noted that Plaintiff was in the “younger individual” category on the alleged onset date. [Id. (citing 20 CFR 404.1563).] Further, Plaintiff has at least a high school education. [Id. (citing 20 CFR 404.1564).] The ALJ found that it was irrelevant whether Plaintiff has transferable job skills because the Medical-Vocational Rules framework supported a finding that Plaintiff was not disabled, regardless of whether he had transferable skills. [Id. (citing SSR 82-41; 20 CFR Part 404, Subpart P, Appendix 2).] The ALJ found that, based on Plaintiff’s age, education, work experience, and RFC, Plaintiff could make a successful adjustment to the following jobs that exist in significant numbers in the national economy:

automobile detailer, cart attendant, and lab equipment cleaner. [Id. at 31 (dkt. no. 11-3 at PageID.62).] The ALJ therefore found that Plaintiff was not under a disability from the alleged onset date, January 1, 2021, through the date of the Decision. [Id. at 32 (dkt. no. 11-3 at PageID.45) (citing 20 CFR 404.1520(g)).] Plaintiff requested review of the ALJ’s decision. [Exh. 18B, AR at 184-85 (dkt. no. 11-5 at PageID.217-18) (request for review of Decision, dated 7/10/23).] As previously noted, the Appeals Council denied Plaintiff’s request for review, making the ALJ’s Decision the Commissioner’s final decision. [AC Notice, AR at 1 (dkt. no. 11-3 at PageID.32).]

In the instant Appeal, Plaintiff argues the Decision should be reversed because: the ALJ failed to provide sufficient reasons for the rejection of Plaintiff’s testimony and for the rejection of the opinions of multiple medical sources; and these errors were not harmless. Plaintiff argues the case should be remanded for the immediate calculation of benefits or for other appropriate proceedings. [Opening Brief at 1.] In addition, Plaintiff seeks an award of attorney’s fees and costs incurred in the Appeal. [Id. at 13.] STANDARDS “A district court has jurisdiction pursuant to 42 U.S.C. § 405(g) to review final decisions of the Commissioner of

Social Security.” Concannon v. Saul, Civ. No. 19-00267-ACK-RT, 2020 WL 1492623, at *2 (D. Hawai`i Mar. 27, 2020), aff’d, No. 20-15732, 2021 WL 2941767 (9th Cir. July 13, 2021). I. Review of Social Security Decisions The Ninth Circuit conducts a de novo review of a district court’s order in a social security appeal. Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014). Thus, in reviewing the Commissioner’s decision, this Court applies the same standards that the Ninth Circuit applies. A court will only disturb the Commissioner’s decision if it is not supported by substantial evidence or if it is based on legal error. Id. “Substantial evidence is more than a mere

scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Hill v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012) (citation and internal quotation marks omitted). In reviewing a decision by the Commissioner, a district court must consider the entire record as a whole. Id. Where the record, considered as a whole, could support either affirmance or reversal, the district court must affirm the decision. Attmore v. Colvin, 827 F.3d 872, 875 (9th Cir. 2016). To ensure a court does not substitute its judgment for the ALJ’s, it must “‘leave it to the ALJ to determine credibility, resolve conflicts in the testimony, and resolve ambiguities in the record.’” Brown-Hunter

v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (quoting Treichler, 775 F.3d at 1098). II. Five-Step Analysis The following analysis applies in cases involving review of the denial of social security disability benefits. To determine whether an individual is disabled within the meaning of the Social Security Act, and therefore eligible for benefits, an ALJ follows a five-step sequential evaluation. See 20 C.F.R. § 404.1520. The burden of proof is on the claimant at steps one through four. See Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009). At step one, the ALJ must determine if the claimant is presently engaged in a “substantial gainful activity,” § 404.1520(a)(4)(i), defined as “work done for pay or profit that involves significant mental or physical activities,” Lewis v. Apfel, 236 F.3d 503, 515 (9th Cir. 2001) (citing §§ 404.1571–404.1572, 416.971–416.975). At step two, the ALJ decides whether the claimant’s impairment or combination of impairments is “severe,” § 404.1520(a)(4)(ii), meaning that it significantly limits the claimant’s “physical or mental ability to do basic work activities,” § 404.1522(a); see Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005).

At step three, the ALJ evaluates whether the claimant has an impairment, or combination of impairments, that meets or equals the criteria of any of the impairments listed in the “Listing of Impairments” (referred to as the “listings”). See § 404.1520(a)(4)(iii); 20 C.F.R. Pt. 404 Subpt. P, App. 1 (pt. A). The listings describe impairments that are considered “to be severe enough to prevent an individual from doing any gainful activity.” § 404.1525(a). Each impairment is described in terms of “the objective medical and other findings needed to satisfy the criteria of that listing.” § 404.1525(c)(3). “For a claimant to show that his impairment matches a listing, it must meet all of the specified medical criteria. An impairment that manifests only some of those criteria, no matter how severely, does not qualify.” Sullivan v. Zebley, 493 U.S. 521, 530, 110 S. Ct. 885, 107 L. Ed. 2d 967 (1990) (footnote omitted).[7] If an impairment does not meet a listing, it may nevertheless be “medically equivalent to a listed impairment” if the claimant’s “symptoms, signs, and laboratory findings are at least equal in severity to” those of a listed impairment. § 404.1529(d)(3). But a claimant cannot base a claim of equivalence on symptoms alone. Even if the claimant alleges pain or other symptoms that makes the impairment more severe, the claimant’s impairment does not medically equal a listed impairment unless the claimant has signs and laboratory findings that are equal in severity to those set forth in a listing. § 404.1529(d)(3). If a claimant’s impairments meet or equal the criteria of a listing, the claimant is considered disabled. § 404.1520(d).

If the claimant does not meet or equal a listing, the ALJ proceeds to step four, where the ALJ assesses the claimant’s residual functional capacity (RFC) to determine whether the claimant can perform past relevant work, § 404.1520(e), which is defined as “work that [the claimant has] done within the past 15 years, that was substantial gainful activity, and that lasted long enough for [the claimant] to learn to do it,” § 404.1560(b)(1). If the ALJ determines,

7 Sullivan has been superseded by statute on other grounds. See, e.g., Kennedy v. Colvin, 738 F.3d 1172, 1174 (9th Cir. 2013). based on the RFC, that the claimant can perform past relevant work, the claimant is not disabled. § 404.1520(f).

At step five, the burden shifts to the agency to prove that “the claimant can perform a significant number of other jobs in the national economy.” Thomas v. Barnhart, 278 F.3d 947, 955 (9th Cir. 2002). To meet this burden, the ALJ may rely on the Medical-Vocational Guidelines found at 20 C.F.R. Pt. 404 Subpt. P, App. 2,4 or on the testimony of a vocational expert. Tackett v. Apfel, 180 F.3d 1094, 1101 (9th Cir. 1999). “[A] vocational expert or specialist may offer expert opinion testimony in response to a hypothetical question about whether a person with the physical and mental limitations imposed by the claimant’s medical impairment(s) can meet the demands of the claimant’s previous work, either as the claimant actually performed it or as generally performed in the national economy.” § 404.1560(b)(2). An ALJ may also use “other resources, such as the ‘Dictionary of Occupational Titles’ and its companion volumes and supplements, published by the Department of Labor.” Id.

Throughout the five-step evaluation, the ALJ “is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).

Ford v. Saul, 950 F.3d 1141, 1148–49 (9th Cir. 2020) (some alterations in Ford) (footnotes omitted). DISCUSSION I. Whether It Was Error to Discount Plaintiff’s Testimony This Court turns first to Plaintiff’s argument that the ALJ erred in discrediting his subjective symptom testimony. The ALJ found that Plaintiff’s statements about the extent and limiting effects of his tinnitus symptoms were inconsistent with the record because: the medical records showed improvement after counseling and mental health treatment; Plaintiff’s statements were inconsistent with his activities of daily living; they were not supported by the medical records; and they were inconsistent with the Hearings Officer’s personal observations of Plaintiff.

See Decision, AR at 23-24 (dkt. no. 11-3 at PageID.54-55). The Ninth Circuit has stated: To discredit a claimant’s symptom testimony when the claimant has provided objective medical evidence of the impairments which might reasonably produce the symptoms or pain alleged and there is no evidence of malingering, the ALJ must give specific, clear, and convincing reasons for rejecting the testimony by identifying which testimony the ALJ found not credible and explaining which evidence contradicted that testimony.

Laborin v. Berryhill, 867 F.3d 1151, 1155 (9th Cir. 2017) (brackets, emphases, citation, and internal quotation marks omitted). Further, those reasons must be supported by substantial evidence. Marsh v. Colvin, 792 F.3d 1170, 1174 n.2 (9th Cir. 2015). The ALJ found that Plaintiff’s “medically determinable impairments could reasonably be expected to cause the alleged symptoms[,]” [Decision, AR at 23 (dkt. no. 11-3 at PageID.54),] and the Decision does not contain a finding that Plaintiff is malingering. The ALJ was therefore required to give specific, clear, and convincing reasons, supported by substantial evidence, for rejecting Plaintiff’s testimony about the extent and limiting effects of his symptoms. The ALJ did give clear and specific reasons in this case. However, this Court finds that those reasons were not supported by substantial evidence. A. Activities of Daily Living

Contradiction of the claimant’s testimony and “meet[ing] the threshold for full-time work[ are] the two grounds [the Ninth Circuit] ha[s] recognized for using daily activities to form a basis of an adverse credibility determination.” Smith v. Kijakazi, 14 F.4th 1108, 1114 (9th Cir. 2021) (citing Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007)). The Ninth Circuit has stated: Several courts, including this one, have recognized that disability claimants should not be penalized for attempting to lead normal lives in the face of their limitations. See, e.g., Cohen [v. Sec’y of Dep’t of Health & Human Servs.], 964 F.2d [524,] 530–31 [(6th Cir. 1992)] (ruling that a claimant should not be penalized for attempting to maintain some sense of normalcy in her life); Cooper v. Bowen, 815 F.2d 557, 561 (9th Cir. 1987) (noting that a disability claimant need not “vegetate in a dark room” in order to be deemed eligible for benefits). See also Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (“Many home activities are not easily transferable to . . . the more grueling environment of the workplace, where it might be impossible to periodically rest or take medication.”).[8] Only if the level of activity

8 Fair was superseded on other grounds by Title 20 Code of Federal Regulations Section 404.1502(a). See, e.g., Mata v. Kijakazi, No. 22-35482, 2023 WL 3836421, at *3 (9th Cir. June 6, 2023). were inconsistent with Claimant’s claimed limitations would these activities have any bearing on Claimant’s credibility.

Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (some alterations in Reddick). The ALJ found that Plaintiff’s ability to drive once a week was inconsistent with Plaintiff’s subjective symptom testimony. See Decision, AR at 23 (dkt. no. 11-3 at PageID.54). Plaintiff testified that he only drives to doctor’s appointments, but most of his appointments are telehealth appointments. He estimated that he drives once a week, and the appointments are nine or ten miles from his home. See Hrg. Trans., AR at 46-47 (dkt. no. 11-3 at PageID.77-78). This amount of driving neither indicates that Plaintiff is capable of working full-time, nor does it demonstrate an inconsistency with Plaintiff’s testimony about his subjective symptoms and his limitations. Therefore, it is not relevant to Plaintiff’s credibility. See Reddick, 157 F.3d at 722. The ALJ’s reliance on Plaintiff’s driving violates the principle that “[a] claimant does not need to be utterly incapacitated in order to be disabled.” See Revels v. Berryhill, 874 F.3d 648, 667 (9th Cir. 2017) (citation and internal quotation marks omitted). B. Medical Evidence The ALJ found that the medical record contained “evidence of chronic tinnitus exacerbated by musculoskeletal tightness and tension and emotional factors.” [Decision, AR at 25 (dkt. no. 11-3 at PageID.56).] However, the ALJ found that the medical evidence was inconsistent with Plaintiff’s testimony about the extent and limiting effects of his tinnitus symptoms because Plaintiff showed improvement from physical therapy

sessions, counseling, and mental health treatment. Id. at 23-24 (dkt. no. 11-3 at PageID.54-55); see also id. at 25 (dkt. no. 11-3 at PageID.56) (“[E]vidence of improved symptoms following physical therapy sessions and the claimant’s ability to identify contributing factors to tinnitus and employ mental health treatment techniques suggest additional or more restrictive limitations are not warranted.”). The ALJ cited numerous examples of medical records showing reduced tinnitus after physical therapy sessions. See Decision, AR at 24-25 (dkt. no. 11-3 at PageID.55-56) (citing Exs. 11F, p. 17; Ex. 13F, pp. 1, 5, 7, 11, 19, 21, 29, 31, 33, 37, 45, 47, 49, 63, 65, 67, 71, 73, 75, 77; Ex. 18F, pp. 15, 17,

19; Ex. 20F, p. 65).9 The Ninth Circuit has stated:

9 Exhibit 11F is Plaintiff’s office treatment records from Seattle Anxiety Specialists, PLLC for the period from March 9, 2021 to December 1, 2021 (“SAS Records”). [AR at 670-700 (dkt. no. 11-8 at PageID.706-36).] Exhibit 13F is Plaintiff’s physical/occupational therapy records from Therapydia – Kona for the period from March 31, 2021 to April 29, 2022 (“Therapydia Records”). [AR at 702-809 (dkt. no. 11-8 at PageID.738-845).] Exhibit 18F is Plaintiff’s physical/occupational therapy records from Gallant Physical Therapy, dated from September 16, 2021 to (. . . continued) As we have emphasized while discussing mental health issues, it is error to reject a claimant’s testimony merely because symptoms wax and wane in the course of treatment. Cycles of improvement and debilitating symptoms are a common occurrence, and in such circumstances it is error for an ALJ to pick out a few isolated instances of improvement over a period of months or years and to treat them as a basis for concluding a claimant is capable of working. See, e.g., Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001) (“[The treating physician’s] statements must be read in context of the overall diagnostic picture he draws. That a person who suffers from severe panic attacks, anxiety, and depression makes some improvement does not mean that the person’s impairments no longer seriously affect her ability to function in a workplace.”). Reports of “improvement” in the context of mental health issues must be interpreted with an understanding of the patient’s overall well-being and the nature of her symptoms. See Ryan [v. Comm’r of Soc. Sec.], 528 F.3d [1194,] 1200–01 [(9th Cir. 2008)] (“Nor are the references in [a doctor’s] notes that Ryan’s anxiety and depression were ‘improving’ sufficient to undermine the repeated diagnosis of those conditions, or [another doctor’s] more detailed report.”). They must also be interpreted with an awareness that improved functioning while being treated and while limiting environmental stressors does not always mean that a claimant can function effectively in a workplace. See, e.g., Hutsell [v. Massanari], 259 F.3d [707,] 712 [(8th Cir. 2001)] (“We also believe that the Commissioner erroneously relied too heavily on indications in the medical record that Hutsell was ‘doing well,’ because doing well for the purposes of a treatment program has no necessary

April 6, 2022 (“Gallant PT Records”). [AR at 862-83 (dkt. no. 11-8 at PageID.898-919).] Exhibit 20F is Plaintiff’s physical/occupational therapy records from South Kona Physical Therapy, dated from November 15, 2022 to May 2, 2023 (“SKPT Records”). [AR 890-955 (dkt. no. 11-9 at PageID.927-92.] relation to a claimant’s ability to work or to her work-related functional capacity.”). . . .

Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014) (some alterations in Garrison) (footnotes omitted). Although tinnitus is not a mental health condition, the analysis in Garrison is applicable to the instant case because, as the ALJ noted, Plaintiff’s tinnitus was exacerbated by emotional issues, the tinnitus symptoms caused Plaintiff to experience anxiety and mania, and mental health treatment techniques were part of Plaintiff’s management of his tinnitus. See Decision, AR at 24- 25 (dkt. no. 11-3 at PageID.55-56). The ALJ was correct that multiple physical therapy records stated that Plaintiff experienced an improvement in his tinnitus symptoms after a therapy session. See, e.g., Exh. 13F (Therapydia Records) at 77 (6/30/21 Daily Note/Billing Sheet, AR at 778 (dkt. no. 11-8 at PageID.814)) (“Tinnitus was less after session today.”); id. at 65 (8/11/21 Daily Note/Billing Sheet, AR at 766 (dkt. no. 11-8 at PageID.802)) (noting “improved tinnitus after treatment”); id. at 47 (11/11/21 Daily Note/Billing Sheet, AR at 748 (dkt. no. 11-8 at PageID.784)) (“Improve[d] tinnitus with treatment with noted thoracic spine tone increase.”); id. at 31 (1/14/22 Daily Note/Billing Sheet, AR at 732 (dkt. no. 11-8 at PageID.768)) (“Tinnitus and pain

decreased with todays [sic] treatment.”); Exh. 18F at 19 (SOAP Note for 10/18/21 appointment, AR at 880 (dkt. no. 11-8 at PageID.916)) (“He noted decreased tinnitus . . . following today’s session.”). However, some of the records noting improvement after the session also indicate that the improvement was temporary and

was not an indication of improvement in Plaintiff’s symptoms between sessions. See, e.g., Exh. 13F (Therapydia Records) at 49 (11/4/21 Daily Note/Billing Sheet, AR at 750 (dkt. no. 11-8 at PageID.786)) (“Pt notes symptoms persist from last session with increased tinnitus . . . .”); id. at 37 (12/22/21 Daily Note/Billing Sheet, AR at 738 (dkt. no. 11-8 at PageID.774)) (“Tinnitus remains unchanged from last session . . . .”); id. at 29 (1/21/22 Daily Note/Billing Sheet, AR at 730 (dkt. no. 11-8 at PageID.766)) (“Pt continues to require skilled care to manage town and TMJ issues that increase tinnitus.”). All of the notes from the Therapydia Records that the ALJ cites as showing improvement after sessions list among Plaintiff’s current

complaints “tinnitus that is having a profound impact on [Plaintiff’s quality of life].” See Exh. 13 at 1, 5, 7, 11, 19, 21, 29, 31, 33, 37, 45, 47, 49, 63, 65, 67, 71, 73, 75, 77 (AR at 702, 706, 708, 712, 720, 722, 730, 732, 734, 738, 746, 748, 750, 764, 766, 768, 772, 774 (dkt. no. 11-8 at PageID.738, PageID.742, PageID.744, PageID.748, PageID.756, PageID.758, PageID.766, PageID.768, PageID.770, PageID.774, PageID.782, PageID.784, PageID.786, PageID.800, PageID.802, PageID.804, PageID.808, PageID.810, PageID.812, PageID.814)). Further, all of those records stated that one of Plaintiff’s long term treatment goals was “[p]ain and tinnitus to 6/10 at worst and 0/10 at best,” but the records show limited progress of forty or

fifty percent toward the goal. See id. The reports of Plaintiff’s improvement immediately after physical therapy sessions, when viewed in the context of his “overall well-being and the nature of [his] symptoms,” see Garrison, 759 F.3d at 1017, do not contradict Plaintiff’s testimony about the extent and limiting effects of his tinnitus symptoms. The ALJ noted that, on April 6, 2021, Plaintiff reported that there were times that he was “able to ignore [his tinnitus] with a better mindset.” [Decision, AR at 24 (dkt. no. 11-3 at PageID.55) (citing Ex. 11F, p. 11).] The cited note documented Plaintiff’s report that “it [was] easiest to ignore

it when he has spent time in a mindful yoga class (or even video games).” [Exh. 11F (SAS Records) at 11 (DAP Note for 4/6/21 appointment, AR at 680 (dkt. no. 11-8 at PageID.716)).] The fact that Plaintiff reported being sometimes able to ignore his symptoms does not necessarily mean his tinnitus did not have a serious effect on his ability to function. Further, this note is consistent with Plaintiff’s testimony that mindfulness techniques are some of the soothing behaviors he engages in to manage his tinnitus symptoms. See Hrg. Trans., AR at 56 (dkt. no. 11-3 at PageID.87). Similarly, the fact that Plaintiff worked with a psychiatrist develop ways to manage his “mood/outlook and relax

when their tinnitus was at its worst,” [Decision, AR at 24 (dkt. no. 11-3 at PageID.55) (citing Ex. 6F, p. 3),] and the fact that Plaintiff attempted to identify “personal issues, diet, and musculoskeletal tension and tightness” that caused increases in his tinnitus symptoms, [id. at 24-25 (dkt. no. 11-3 at PageID.55-56),] do not contradict Plaintiff’s testimony about the extent and limiting effects of his tinnitus symptoms. This Court therefore finds that there is no substantial evidence to support the ALJ’s finding of inconsistencies between the medical record and Plaintiff’s testimony about the extent and limiting effects of his tinnitus symptoms.

C. ALJ’s Observation of Plaintiff The ALJ also found that Plaintiff’s subjective symptom testimony was inconsistent with the ALJ’s observations of Plaintiff during the hearing because Plaintiff appeared to testify without difficulty, “did not engage in any inappropriate behaviors[,] and did not have difficulty establishing rapport or communicating with the [ALJ] during the hearing.” [Decision, AR at 23 (dkt. no. 11-3 at PageID.54).] While the ALJ’s observations are important and insightful, [t]he ALJ’s observations of a claimant’s functioning may not form the sole basis for discrediting a person’s testimony. See S.S.R. 96– 7p at 8 (“[T]he adjudicator is not free to accept or reject the individual’s complaints solely on the basis of . . . personal observations.”), available at 61 Fed. Reg. at 34,488. Instead, an ALJ’s personal observations may be used only in “the overall evaluation of the credibility of the individual’s statements.” Id.

Orn, 495 F.3d at 639 (alterations in Orn). Because the ALJ’s other reasons for rejecting Plaintiff’s subjective symptom testimony fail, the ALJ’s personal observations alone cannot support the ALJ’s adverse credibility finding. This Court finds that the ALJ failed to provide specific, clear, and convincing reasons, supported by substantial evidence, for rejecting Plaintiff’s testimony about the extent and limiting effects of his tinnitus symptoms . II. Failure to Consider Medical Opinions This Court next turns to Plaintiff’s argument that the ALJ improperly rejected the medical opinions of Dr. Veith and Dr. Chu. See Opening Brief at 10-11; see also Decision, AR at 27-28 (dkt. no. 11-3 at PageID.58-59) (discussing Dr. Veith’s assessment of Plaintiff and finding it partially persuasive); id. at 27 (dkt. no. 11-3 at PageID.58) (discussing the assessments by Dr. Gallant, Dr. Chu, and Dr. Mine and finding them not persuasive). Title 20 Code of Federal Regulations Section 404.1520c, which governs claims filed on or after March 27, 2017, states the Social Security Administration

will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from your medical sources. When a medical source provides one or more medical opinions or prior administrative medical findings, we will consider those medical opinions or prior administrative medical findings from that medical source together using the factors listed in paragraphs (c)(1) through (c)(5) of this section, as appropriate. The most important factors we consider when we evaluate the persuasiveness of medical opinions and prior administrative medical findings are supportability (paragraph (c)(1) of this section) and consistency (paragraph (c)(2) of this section)).

20 C.F.R. § 404.1520c(a). As to supportability, Section 404.1520c(c)(1) states: “The more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) . . . , the more persuasive the medical opinions . . . will be.” As to consistency, Section 404.1520c(c)(2) states: “The more consistent a medical opinion(s) . . . is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) . . . will be.” Under these regulations, “an ALJ’s decision, including the decision to discredit any medical opinion, must simply be supported by substantial evidence.” Woods v. Kijakazi, 32 F.4th 785, 787 (9th Cir. 2022). A. Dr. Veith Dr. Veith opined that Plaintiff was limited to jobs

with no more than a moderate noise level because “[l]oud sounds can exacerbate tinnitus.” [Exh. 23F, AR at 1089 (dkt. no. 11-9 at PageID.1126).] The ALJ found that this limitation was supported for the reason that Dr. Veith cited and the limitation was supported by Plaintiff’s testimony about his tinnitus symptoms. See Decision, AR at 27 (dkt. no. 11-3 at PageID.58). Dr. Veith also opined that Plaintiff’s tinnitus symptoms would cause him to be off-task for twenty percent of a forty-hour work and to be absent from work for sixteen hours or more per month. See Exh. 23F, AR at 1090 (dkt. no. 11-9 at PageID.1127). Dr. Veith gave the following explanation for these opinions: “Mr. Schaus’s tinnitus significantly impacts his

quality of life and ability to focus or concentrate. He experiences great emotional distress.” [Id.] The ALJ found that Dr. Veith’s opinions about Plaintiff being off-task or absent were not supported by, and were inconsistent with, the record before the ALJ. See Decision, AR at 27-28 (dkt. no. 11-3 at PageID.58-59). The ALJ cited: Plaintiff’s use of sound therapy and hearing aids to mitigate his symptoms; the improvement in Plaintiff’s symptoms following physical therapy sessions; and Plaintiff’s attempts to manage factors, such as stress, that exacerbated his tinnitus. See id. It is undisputed that Plaintiff used external sound therapy, wore hearing aids, had physical therapy, and underwent

other types of treatments to minimize or cope with his tinnitus symptoms. The dispute in this case concerns the effectiveness of these therapies and treatments. The ALJ’s findings that Dr. Veith’s off-task and absenteeism opinions were not supported and inconsistent must be upheld if the findings were supported by substantial evidence. See Woods, 32 F.4th at 787. Under the substantial evidence standard, “[e]ven when the evidence is susceptible to more than one rational interpretation, [a court] must uphold the ALJ’s findings if they are supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citation omitted).10 Even considering the analysis above regarding the temporary relief of

tinnitus symptoms after physical therapy sessions, see supra Discussion Section I.B, the evidence in this case is susceptible to more than one rational interpretation concerning the effectiveness of the therapies and treatments that Plaintiff

10 Molina was superseded by regulation on other grounds. See, e.g., Amalia F. v. King, Case No. 5:24-CV-01469-JDE, 2025 WL 372100, at *2 (C.D. Cal. Jan. 31, 2025) (citing Smith v. Kijakazi, 14 F.4th 1108, 1111 (9th Cir. 2021)). used. Because the ALJ’s interpretation of the evidence in the analysis of Dr. Veith’s opinions is one rational interpretation, and it is supported by reasonable inferences from the record, the ALJ’s analysis must be upheld. This Court therefore rejects Plaintiff’s argument that

the ALJ erred by concluding that Dr. Veith’s off-task and absenteeism opinions were not persuasive. B. Dr. Chu Plaintiff argues the ALJ’s analysis of Dr. Chu’s opinions was deficient because the ALJ discussed Dr. Chu’s opinions collectively with the opinions of Dr. Gallant and Dr. Mine. [Opening Brief at 11.] The Social Security Administration’s regulations state that: Because many claims have voluminous case records containing many types of evidence from different sources, it is not administratively feasible for us to articulate in each determination or decision how we considered all of the factors for all of the medical opinions and prior administrative medical findings in your case record. Instead, when a medical source provides multiple medical opinion(s) or prior administrative medical finding(s), we will articulate how we considered the medical opinions or prior administrative medical findings from that medical source together in a single analysis using the factors listed in paragraphs (c)(1) through (c)(5) of this section, as appropriate. We are not required to articulate how we considered each medical opinion or prior administrative medical finding from one medical source individually. 20 C.F.R. § 404.1520c(b)(1). The Ninth Circuit has stated that the Social Security Administration decision “must ‘articulate . . . how persuasive’ it finds ‘all of the medical opinions’ from each doctor or other source, 20 C.F.R. § 404.1520c(b), and ‘explain how [it] considered the supportability and consistency

factors’ in reaching these findings, id. § 404.1520c(b)(2).” Woods, 32 F.4th at 792 (alterations in Woods). In the instant case, after stating a collective ruling that the “assessments by Trish Gallant, P.T., D.P.T., Vy X. Chu, and Heather Mine, M.D. [were] not persuasive based on factors of support and consistency,” the ALJ provided individual discussions of Dr. Chu’s opinions. See Decision, AR at 27 (dkt. no. 11-3 at PageID.58). This Court therefore rejects Plaintiff’s argument that the ALJ erred by failing to conduct a separate analysis of Dr. Chu’s opinions. Plaintiff has failed to establish any error in the ALJ’s consideration of the medical opinions.

III. Whether the Error Was Harmless This Court has concluded that the ALJ erred by rejecting Plaintiff’s subjective testimony about the extent and limiting effects of his tinnitus symptoms. This Court cannot find that the ALJ would have made the same RFC finding if the ALJ had properly considered Plaintiff’s subjective symptom testimony. It is reasonably likely that the ALJ would have made a more restrictive RFC finding and may have ultimately concluded that Plaintiff was disabled. This Court therefore finds that that the ALJ’s errors were not harmless. See Treichler, 775 F.3d at 1099 (“An error is harmless if it is ‘inconsequential to the ultimate nondisability

determination.’” (quoting Alaska Dep’t of Envtl. Conserv. v. EPA, 540 U.S. 461, 497, 124 S. Ct. 983, 157 L. Ed. 2d 967 (2004))). In light of this Court’s rulings, the ALJ’s ultimate ruling that Plaintiff was not disabled was not supported by substantial evidence. To the extent that Plaintiff’s Appeal raises arguments which are not specifically addressed in this Order, it is not necessary for this Court to reach those arguments. This Court makes no findings or conclusions regarding those arguments. Plaintiff’s Appeal is granted insofar as the ALJ’s Decision, including the ruling that Plaintiff is not disabled, is reversed.

IV. Scope of Remand Plaintiff argues this case should be remanded solely for the calculation of benefits because, if his testimony is credited, a finding that he is disabled would be required because of the VE’s testimony that someone with the limitations that Plaintiff described in his testimony could not sustain competitive employment. See Opening Brief at 13. The Ninth Circuit has stated that, when “the record before the agency does not support the agency action, . . . the agency has not considered all relevant factors, or . . . the reviewing court simply cannot evaluate the challenged agency action on the basis of the record before it, the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.” Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744, 105 S. Ct. 1598, 84 L. Ed. 2d 643 (1985). The Supreme Court has referred to this remand requirement as the “ordinary ‘remand’ rule.” Gonzales v. Thomas, 547 U.S. 183, 185, 126 S. Ct. 1613, 164 L. Ed. 2d 358 (2006) (internal quotation marks omitted).

Treichler, 775 F.3d at 1099 (alterations in Treichler) (footnote omitted). The ordinary remand rule applies in social security cases. Id. The Ninth Circuit will “generally remand for an award of benefits only in rare circumstances, where no useful purpose would be served by further administrative proceedings and the record has been thoroughly developed.” Id. at 1100 (citations and internal quotation marks omitted). The decision to depart from the ordinary remand rule and instead remand for an award of benefits is made pursuant to a three-step analysis under the “credit-as-true” rule. See [Treichler, 775 F.3d] at 1100–01. First, the Court asks whether the ALJ failed to provide sufficient reasons for rejecting evidence and, second, if he did, the Court determines whether the record has been fully developed or if there are matters that must be resolved in order to make a benefits determination. See id. If the record has not been developed thoroughly, or if there are inconsistencies, conflicts, or gaps in the record, then a remand for further administrative proceedings is necessary. See Leon v. Berryhill, 880 F.3d 1041, 1047 (9th Cir. 2017). If there are no outstanding issues and further proceedings would not be useful, the Court can find relevant testimony credible as a matter of law. See Treichler, 775 F.3d at 1101.

Suzuki v. Saul, CIVIL NO. 19-00390 JAO-RT, 2020 WL 2112120, at *3 (D. Hawai`i May 4, 2020). In this case, the ALJ did not provide sufficient reasons for the rejection of Plaintiff’s subjective symptom testimony. However, the record is not fully developed as to the issue of whether Plaintiff would be able to maintain competitive employment if he were permitted additional breaks and if he were to use his external sound-therapy devices. See Hrg. Trans., AR at 66 (dkt. no. 11-3 at PageID.97). Therefore, further proceedings are necessary on remand to determine whether Plaintiff is disabled. Plaintiff’s request to remand solely for the determination of benefits must be denied. V. Request for Attorney’s Fees and Costs Finally, Plaintiff requests an award of reasonable attorney’s fees and costs, pursuant to Title 28 United States Code 2412(d). [Opening Brief at 13.] Section 2412(d)(1)(A) states: Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.

This district court has stated: The Equal Access to Justice Act authorizes fee-shifting to a prevailing plaintiff in an appeal from a decision by the Social Security Administration under specific circumstances. Hardisty v. Astrue, 592 F.3d 1072, 1076 (9th Cir. 2010).

Attorneys’ fees are not available to the prevailing plaintiff if the position asserted by the United States was “substantially justified.” Flores v. Shalala, 49 F.3d 562, 567 (9th Cir. 1995) (quoting 28 U.S.C. § 2412(d)(1)). The burden rests with the Government to establish that its position was substantially justified. Hardisty, 592 F.3d at 1076 n.2.

The Ninth Circuit Court of Appeals has held that district courts should focus on whether the government’s position on the particular issue on which the claimant earned remand was substantially justified, not on whether the government’s ultimate disability determination was substantially justified. Id. at 1078. Substantial justification for the purposes of the Equal Access to Justice Act “does not mean ‘justified to a high degree,’ but simply entails that the government must show that its position meets the traditional reasonableness standard— that it is ‘justified in substance or in the main,’ or ‘to a degree that could satisfy a reasonable person.’” Corbin v. Apfel, 149 F.3d 1051, 1052 (9th Cir. 1998) (quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)).

. . . . The Government’s position is “substantially justified” when the position has a “reasonable basis in law and fact.” Pierce, 487 U.S. at 566 n.2. A position can be substantially justified pursuant to the Equal Access to Justice Act even when the position is ultimately incorrect. Id. The test for determining whether a position was substantially justified focuses on whether “a reasonable person could think it correct.” A position is substantially justified if there is a genuine dispute between reasonable minds. Id.

Substantially justified does not require anything more than reasonableness. Id. The substantially justified standard is a “middle ground between an automatic award of fees and an award only where the government’s position was frivolous.” Cornella v. Schweiker, 728 F.2d 978, 982 (8th Cir. 1984) (citing H.R. Rep. No. 1418, 96th Cong., 2d Sess. 14 in 1980 U.S. Code Cong. & Ad. News 4993).

Diesta v. Saul, CIVIL NO. 15-00465 HG-RT, 2020 WL 978604, at *3 (D. Hawai`i Feb. 28, 2020), aff’d sub nom. Diesta v. Kijakazi, No. 20-15729, 2022 WL 636636 (9th Cir. Mar. 4, 2022). The ALJ’s reliance on Plaintiff’s driving to doctor’s appointments once a week to support the rejection of Plaintiff’s subjective symptom testimony did not have a reasonable basis in law and fact. See Decision, AR at 23 (dkt. no. 11-3 at PageID.54); supra Discussion I.A. Thus, the Commissioner’s defense of the ALJ’s credibility analysis on Appeal was not substantially justified. See Answering Brief at 2 & n.2. This Court therefore concludes that Plaintiff is entitled to an award of attorney’s fees and costs associated with this Appeal. Plaintiff is directed to file a motion seeking a determination of the amount of the award. Plaintiff’s motion must comply with the applicable requirements of Local Rule 54.2, and the motion will be referred to the magistrate judge in the normal course.

CONCLUSION For the foregoing reasons, Plaintiff’s appeal from the Administrative Law Judge’s July 10, 2023 Decision is HEREBY GRANTED IN PART AND DENIED IN PART. The Appeal is: GRANTED as to Plaintiff’s challenge to the ALJ’s rejection of Plaintiff’s statements about the extent and limiting effects of his tinnitus symptoms; DENIED as to Plaintiff’s challenge to the ALJ’s assessment of the opinions of Dr. Veith and Dr. Chu; GRANTED insofar as the ALJ’s Decision is REVERSED and the case is REMANDED to the ALJ for further proceedings consistent with the instant Order; DENIED as to Plaintiff’s request to remand the case solely for a determination of benefits; and GRANTED insofar

as Plaintiff’s entitled to an award of reasonable attorney’s fees and costs pursuant to Title 28 United States Code Section 2412(d)(1)(A). The Clerk’s Office is DIRECTED to enter judgment and close on April 14, 2025. This district court shall retain jurisdiction over the collateral issue of the amount of the Section 2412(d)(1)(A) award. PagelD.1218

IT IS SO ORDERED. DATED AT HONOLULU, HAWAII, March 28, 2025. se DI — Bs % = ry /s/ Leslie E. Kobayashi Leslie E. Kobayashi \ 4 Senior U.S. District Judge i > os

PHILLIP GREGORY SCHAUS VS. MARTIN O’MALLEY, COMMISSIONER OF SOCIAL SECURITY; CV 24-00186 LEK-RT; ORDER: GRANTING IN PART AND DENYING IN PART PLAINTIFF’S APPEAL; REVERSING THE ADMINISTRATIVE LAW JUDGE’S DECISION; AND REMANDING THE CASE FOR FURTHER PROCEEDINGS