Seely v. O'Malley

• Court: District Court, E.D. Washington
• Decided: May 21, 2024
• Docket: 2:24-cv-00001
• Status: Unknown

Opinion

1 FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 2 May 21, 2024 3 SEAN F. MCAVOY, CLERK 4 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 5 6 DEJALENDA S.,1 No. 2:24-cv-0001-EFS 7 Plaintiff, ORDER REVERSING THE ALJ’S 8 v. DENIAL OF BENEFITS, AND REMANDING FOR MORE 9 MARTIN O’MALLEY, Commissioner of PROCEEDINGS Social Security, 10 Defendant. 11 12 13 Plaintiff Dejalenda S. asks the Court to reverse the Administrative Law 14 Judge’s (ALJ) denial of Title 2 and Title 16 benefits. Because the ALJ’s findings 15 regarding Dr. Uhl’s opinion and Plaintiff’s symptom reports are not supported by 16 substantial evidence, this matter is remanded for further proceedings. 17 I. Background 18 Plaintiff applied for benefits under Titles 2 and 16, claiming disability 19 beginning January 2, 2018, based on anxiety, depression, complex post-traumatic 20 21 1 For privacy reasons, Plaintiff is referred to by first name and last initial or as 22 “Plaintiff.” See LCivR 5.2(c). 23 1 stress disorder (PTSD), and personality disorder.2 After the agency denied benefits, 2 ALJ Marie Palachuk held a telephone hearing in May 2023, at which Plaintiff and

3 a vocational expert testified.3 4 Plaintiff testified that her daily anxiety and depression, along with her 5 PTSD, makes it difficult to focus, concentrate, and interact with others.4 She 6 shared that she lived in a number of foster homes as a child, was run over by a 7 vehicle when she was four-years-old, and has been sexually abused.5 Because of 8 her difficulty interacting with others, she only goes shopping when necessary and 9 prefers to go shopping with another person for emotional support.6 She has about

10 five anxiety attacks per week, including when she is at the grocery store.7 She was 11 hospitalized in October 2019 because her suicidal ideation worsened.8 She takes 12 medication for her anxiety but her medication makes her feel zombie-like and 13 groggy.9 She testified that she fixes meals for her 8-year-old son and herself. She 14

15 2 AR 207–30. 16 3 AR 96–112, 35–51. 17 4 AR 39–40. 18 5 AR 41. 19 6 AR 40. 20 7 AR 40–42. 21 8 AR 41. 22 9 AR 43. 23 1 has difficulty showering because showering triggers a difficult childhood memory, 2 and she has difficulty sleeping due to nightmares.10 She stated that she and her

3 son were living with friends at the moment, but she was trying to find her own 4 housing. While she has her driver’s license, she does not own a vehicle.11 5 The ALJ issued a decision denying benefits.12 The ALJ found Plaintiff’s 6 alleged symptoms were “not entirely consistent with the medical evidence and 7 other evidence in the record.”13 The ALJ considered the lay statement from 8 Plaintiff’s friend.14 As to the medical opinion and prior administrative findings, the 9 ALJ found:

10 • the administrative findings of State agency psychological consultants, 11 Carol Moore, PhD, and Dan Donahue, PhD, persuasive. 12 13 14

15 10 AR 43–44. 16 11 AR 45. 17 12 AR 14–34. Per 20 C.F.R. §§ 404.1520(a)–(g), 416.920(a)–(g), a five-step 18 evaluation determines whether a claimant is disabled. 19 13 AR 24. As recommended by the Ninth Circuit in Smartt v. Kijakazi, the ALJ 20 should consider replacing the phrase “not entirely consistent” with “inconsistent.” 21 53 F.4th 489, 499, n.2 (9th Cir. 2022). 22 14 AR 25–26. 23 1 • the examining psychological opinion of W. Douglas Uhl, PsyD, not 2 persuasive.15

3 As to the sequential disability analysis, the ALJ found: 4 • Step one: Plaintiff had not engaged in substantial gainful activity 5 since January 2, 2018, the alleged onset date; and her date last 6 insured was March 31, 2018. 7 • Step two: Plaintiff had the following medically determinable severe 8 impairments: major depressive disorder, PTSD, and personality 9 disorder.

10 • Step three: Plaintiff did not have an impairment or combination of 11 impairments that met or medically equaled the severity of one of the 12 listed impairments. 13 • RFC: Plaintiff had the RFC to: 14 perform a full range of work at all exertional levels but with the following nonexertional limitations: able to understand, 15 remember, and carry out simple and routine tasks; able to maintain concentration, persistence, and pace on simple, 16 routine tasks for two hour intervals between regularly scheduled breaks; need a predictable environment with 17 seldom change; should have no more than occasional and superficial, meaning non-collaborative, interaction with the 18 public or coworkers; dealing with things rather than people; and working independently. 19 • Step four: Plaintiff has no past relevant work. 20 21

22 15 AR 26. 23 1 • Step five: considering Plaintiff’s RFC, age, education, and work 2 history, Plaintiff could perform work that existed in significant

3 numbers in the national economy, such as hotel housekeeper, wall 4 cleaner, and hand packager.16 5 Plaintiff timely requested review of the ALJ’s decision by the Appeals 6 Council and now this Court.17 7 II. Standard of Review 8 The ALJ’s decision is reversed “only if it is not supported by substantial 9 evidence or is based on legal error” and such error impacted the nondisability

10 determination.18 Substantial evidence is “more than a mere scintilla but less than 11 a preponderance; it is such relevant evidence as a reasonable mind might accept as 12 adequate to support a conclusion.”19 13

14 16 AR 17–28. 15 17 AR 1–11. 16 18 Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). See 42 U.S.C. § 405(g); 17 Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) ), superseded on other 18 grounds by 20 C.F.R. § 416.920(a) (recognizing that the court may not reverse an 19 ALJ decision due to a harmless error—one that “is inconsequential to the ultimate 20 nondisability determination”). 21 19 Hill, 698 F.3d at 1159 (quoting Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 22 1997)). See also Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (The 23 1 III. Analysis 2 Plaintiff argues the ALJ erred when evaluating Dr. Uhl’s opinion and

3 Plaintiff’s symptom reports, resulting in an incomplete RFC. The Commissioner 4 argues that the ALJ’s nondisability finding is supported by substantial evidence, 5 particularly because Plaintiff had infrequent treatment and unilaterally stopped 6 taking medication for her severe mental impairments, resulting in a self-inflicted 7 deterioration of her symptoms. As is explained below, the ALJ’s challenged 8 findings underlying the nondisability decision are not supported by substantial 9 evidence.

10 A. Dr. Uhl’s Medical Opinion: Plaintiff establishes consequential error. 11 Plaintiff argues the ALJ erred by finding Dr. Uhl’s marked limitations 12 unpersuasive; whereas the Commissioner argues that the ALJ reasonably 13 evaluated the medical opinion.20 As is explained below, the ALJ’s consideration of 14 Dr. Uhl’s opinion is not supported by substantial evidence. 15

16 court “must consider the entire record as a whole, weighing both the evidence that 17 supports and the evidence that detracts from the Commissioner's conclusion,” not 18 simply the evidence cited by the ALJ or the parties.) (cleaned up); Black v. Apfel, 19 143 F.3d 383, 386 (8th Cir. 1998) (“An ALJ’s failure to cite specific evidence does 20 not indicate that such evidence was not considered[.]”). 21 20 The Commissioner also argues that Plaintiff waived any argument that the ALJ 22 erred by finding the State agency psychological findings of Dr. Donahue and 23 1 1. Standard 2 The ALJ must consider and articulate how persuasive she found each

3 medical opinion and prior administrative medical finding, including whether the 4 medical opinion or finding was consistent with and supported by the record.21 The 5 factors for evaluating persuasiveness include, but are not limited to, supportability, 6 consistency, relationship with the claimant, and specialization.22 Supportability 7 and consistency are the most important factors.23 When considering the ALJ’s 8 findings, the Court is constrained to the reasons and supporting explanation 9 offered by the ALJ.24

10 2. Dr. Uhl’s examination and opinion 11 In December 2020, Dr. Uhl performed a telephonic psychological evaluation 12 of Plaintiff.25 Dr. Uhl noted that Plaintiff’s speech was “very tearful, very 13

14 Dr. Moore persuasive. However, by challenging the ALJ’s evaluation of Dr. Uhl’s 15 opinion, which is more limiting that the State agency findings, Plaintiff necessarily 16 challenged the ALJ’s decision to find these State agency findings more persuasive. 17 21 20 C.F.R. §§ 404.1520c(a)–(c), 416.920c(a)–(c); Woods v. Kijakazi, 32 F.4th 785, 18 792 (9th Cir. 2022). 19 22 20 C.F.R. §§ 404.1520c(1)–(5), 416.920c(c)(1)–(5). 20 23 Id. §§ 404.1520c(b)(2), 416.920c(b)(2). 21 24 See Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014). 22 25 AR 358–68. 23 1 emotional,” she was orientated and “cooperative but fearful” with depressed and 2 anxious mood and labile affect, she dissociates, she recalled 3 of 5 words after 5

3 minutes, she answered 6 of 10 questions correctly (which was adequate for her 4 level of education), she had some ability to think abstractly, and she had some 5 insight but she could not take advantage of her insight because she was 6 emotionally fragile.26 Dr. Uhl diagnosed Plaintiff with PTSD, 7 depersonalization/derealization disorder, reactive attachment disorder, and major 8 depressive disorder (recurrent episode, severe) and opined that Plaintiff was 9 limited as follows:

10 • moderately limited in her abilities to understand, remember, and persist 11 in tasks by following very short and simple instructions and detailed 12 instructions; perform activities within a schedule, maintain regular 13 attendance, and be punctual within customary tolerances without special 14 supervision; perform routine tasks without special supervision; be aware 15 of normal hazards and take appropriate precautions; and ask simple

16 questions or request assistance. 17 • markedly limited in her abilities to learn new tasks, adapt to changes in 18 a routine work setting, make simple work-related decisions, communicate 19 and perform effectively in a work setting, maintain appropriate behavior 20 in a work setting, set realistic goals and plan independently, and 21

22 26 AR 361. 23 1 complete a normal workday and workweek without interruptions from 2 psychologically based symptoms.

3 Dr. Uhl stated that Plaintiff was unable to work for at least 18 months, should 4 continue counseling, “patience with her progression would be helpful, she is quite 5 fragile and may be a possible risk,” and that she was “too fragile at this time to 6 undergo retraining” and thus vocational training or services were not 7 recommended.27 8 3. ALJ’s findings 9 The ALJ was not persuaded by Dr. Uhl’s marked limitations because such

10 1) were not supported by objective medical evidence, instead relying too heavily on 11 the subjective report of symptoms and limitations provided by Plaintiff, and 2) 12 were inconsistent with the record as a whole, namely Plaintiff’s “sometimes 13 sporadic treatment and repeated non-compliance, her overall improvement when 14 compliant with routine and conservative treatment, . . . her discussed activities of 15 daily living such as her ability to raise her son,” and the longitudinal medical

16 history.28 Each of the ALJ’s reasons for discounting Dr. Uhl’s marked limitations 17 are not supported by substantial evidence. 18 19 20

21 27 AR 360. 22 28 AR 26. 23 1 4. The ALJ erred by finding Dr. Uhl’s psychological opinion unsupported 2 because it relied on one-time subjective reports.

3 The ALJ discounted Dr. Uhl’s marked limitations because they were not 4 based on a longitudinal review of Plaintiff’s medical history, but a one-time 5 examination based heavily on Plaintiff’s self-reported symptoms. It was 6 appropriate for the ALJ to consider whether Dr. Uhl reviewed treatment notes, 7 which he did not, instead only reviewing the DSHS Documentation Request for 8 Medical or Disability Condition. However, an opinion from a psychological 9 examination may not be found unsupported simply because it was based on the

10 claimant’s self-reported symptoms which, as is explained below, the ALJ failed to 11 discount for clear and convincing reasons.29 Moreover, Plaintiff’s statements about 12 her psychosocial history and background to Dr. Uhl were consistent with her 13 statements to her therapist and other treating providers. Based on his examination 14 and testing, Dr. Uhl found Plaintiff to be emotionally fragile with tearful/emotional 15 speech, fearful with depressed and anxious mood, labile affect, and limited ability

16 17

18 29 See Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017) (concluding that “the 19 rule allowing an ALJ to reject opinions based on self-reports does not apply in the 20 same manner to opinions regarding mental illness”). See also 20 C.F.R. §§ 21 404.1517, 416.917 (requiring that a consultative examiner hired by the SSA be 22 given “any necessary background information about your condition”). 23 1 to utilize her insight.30 On this record, without more of an explanation as to why 2 Dr. Uhl’s findings during the psychological examination did not support his opinion

3 and were inconsistent with Plaintiff’s reported and observed waxing symptoms 4 during therapy and medication-management appointments, the mere fact that his 5 opinion was based on a one-time examination of Plaintiff does not provide 6 substantial evidence to find Dr. Uhl’s opinion unsupported. 7 5. Substantial evidence does not support a finding that Plaintiff’s 8 mental-health treatment was conservative. 9 The ALJ’s finding that Plaintiff received conservative mental-health

10 treatment is not supported by substantial evidence. Typically, Plaintiff was 11 prescribed Lamictal to assist with her mood swings, olanzapine to assist with her 12 mood disorder/depression/paranoia, and prazosin to assist with her nightmares.31 13 These prescribed medications are not over-the-counter medications, and her use 14 was managed on a monthly basis. Her prescribing provider ordered an 15 electrocardiogram to ensure Plaintiff did not have cardiac risks associated with

16 taking the prescribed high-risk medication.32 In addition to the prescribed 17 medication, Plaintiff participated in mental-health therapy once or twice a month 18 for almost three years, and she was hospitalized for a week in the fall of 2019 due 19

20 30 AR 358–62. 21 31 See, e.g., AR 938–39, 949–50. 22 32 AR 583, 845. 23 1 to a mental-health crisis. When considering the overall approach to treating 2 Plaintiff’s mental-health disorders, substantial evidence does not support a finding

3 that she was treated conservatively.33 4 6. Substantial evidence does not support the ALJ’s finding that Dr. Uhl’s 5 opined marked limitations were inconsistent with Plaintiff’s 6 improvement “when compliant with routine and conservative 7 treatment.” 8 The ALJ found that Plaintiff improved with routine and conservative 9 treatment. In addition to being based on the erroneous finding that Plaintiff’s

10 treatment was conservative, this finding was also based on the ALJ’s decision that 11 Plaintiff’s symptoms were otherwise stable when she consistently took her 12 medication and was not reacting from negative interactions with others.34 13 These findings are impacted by the ALJ’s failure to consider whether 14 Plaintiff’s decision to stop taking prescribed medication was impacted by her 15 mental-health impairments, medication side-effects, or her relocation to new towns

16 (and necessary change in medical providers), which is discussed in more detail 17

18 33 See Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007) (recognizing over-the- 19 counter pain medication as conservative treatment); Garrison, 759 F.3d at 1015 20 n.20 (questioning whether epidural steroid shots to the neck and lower back qualify 21 as conservative medical treatment). 22 34 AR 23–24. 23 1 below. Moreover, the ALJ’s summary and analysis of the medical records fails to 2 consider Plaintiff’s reports of improvement fairly and fully against her overall

3 symptoms. 4 For instance, in April 2018, Plaintiff was observed being tired with a 5 depressed and anxious affect (along with moving her legs and in tears) and a mood 6 that was sad, euthymic, and stressed. The treatment provider wrote, “She is not 7 doing well. The PTSD and anxiety is very bad now. I think she needs to get on 8 disability. She cannot function in a job at this time. She needs to have some 9 assistance. I fear for her safety otherwise.”35 Six months later, Plaintiff was

10 observed with intermittent eye contact, tearfulness, and suicidal ideation.36 In 11 January 2019, she was observed as less distressed.37 During a behavioral-health 12 initial assessment in April 2019, Plaintiff was observed as anxious and tearful.38 13 Plaintiff began attending mental-health therapy appointments and medication- 14 management appointments at least once a month; records from a few of these 15 appointments reflect:

16 • June 11, 2019: “distraught regarding problems with a neighbor. She 17 expressed fear, anxiety and feelings of being completely 18

19 35 AR 663. 20 36 AR 336. 21 37 AR 308. 22 38 AR 370. 23 1 overwhelmed. . . . was tearful, angry, and hurt. . . . She has few 2 coping skills to deal with situations where she feels threatened or if

3 she feels her son may be at risk.”39 4 • July 17, 2019: “Client demonstrated anger and frustration most of 5 this session. She was suspicious of any person she mentioned. . . . She 6 was tearful throughout. Her thoughts appeared tangential and 7 fragmented.”40 8 • August 22, 2019: “client is tearful, describes feeling overwhelmed 9 regarding expectations of volunteer work for the senior center related

10 to DSHS. . . . Orientated x3, speech is normal rate/tone, eye contact 11 good. Affect is tearful but calms, mood mildly anxious, denies 12 depression, denies [suicidal ideation] or thoughts or feelings of harm 13 to self or others. There is no evidence of psychosis. Memory, focus, 14 and fund of knowledge is [within normal limits]. Judgement and 15 insight is fair.”41

16 17 18 19

20 39 AR 556. 21 40 AR 550. 22 41 AR 594. 23 1 • Sept. 24, 2019: “alert and orientated X’s 3. Her thoughts were 2 organized and logical . . . was tearful as described three situations

3 where her feelings of abandonment and abuse was triggered.”42 4 In October 2019, she presented as tearful, disheveled, hyperactive, agitated, 5 sad, labile, and anxious with impaired attention and a tremor and she was 6 punching her legs.43 She had been volunteering about ten hours a week as required 7 by the State in order to receive State benefits.44 A couple days later Plaintiff asked 8 to be voluntarily hospitalized because she was concerned about self-harm.45 During 9 admission, she presented with heightened symptoms of severe depression and

10 anxious mood with active suicidal ideation.46 11 She was released in about a week, and she resumed therapy sessions on at 12 least a monthly basis and monthly medication-management appointments. During 13 the November 2019 therapy session, Plaintiff’s speech was slow, she was tearful 14

15 42 AR 544. 16 43 AR 836. 17 44 AR 836, 542 (“She feels the hours of her volunteer job is causing her to feel 18 overwhelmed and feel that she can’t handle to [sic] stress of it although DSHS 19 won’t budge on the [15] hours [per week] because of the TANF rules.”). 20 45 AR 599–602, 614; see also AR 611 (noting that Plaintiff “saw her sexual abuser at 21 a store which triggered her PTSD which led to hospitalization”). 22 46 AR 599–601, 614, 1004–27, 1012. 23 1 throughout the session, but she was not observed with psychomotor agitation.47 2 During the February 2020 medication-management appointment, Plaintiff

3 appeared fatigued with an apathetic mood and constricted affect.48 4 In April 2020, Plaintiff appeared at her medication-management 5 appointment as sad, tearful, and apathetic and reported that she stopped taking 6 her medications four days prior because “she didn’t like how they made her feel 7 numb and less creative.”49 Although she continued with her therapy sessions, she 8 did not take mental-health medication until October 2020. 9 During a mental-health appointment with Dr. Alana Jackson on October 15,

10 2020, Plaintiff had a panic attack in the examination room, cried frequently during 11 the examination, and had a flat affect.50 Dr. Jackson referred Plaintiff to urgent 12 collaborative care.51 The next day, Plaintiff met with Timothy Day, PhD, who 13 observed Plaintiff with euthymic mood and full-range affect, cooperative, and 14 socially interactive with logical thought process. Based on Plaintiff’s reported 15 difficulty struggling with mania, depression, and anxious distress, Dr. Day

18 47 AR 532. 19 48 AR 823. 20 49 AR 811–14. 21 50 AR 653–55. 22 51 AR 652–55. 23 1 recommended that Plaintiff seek specialty psychiatric care to evaluate 2 medications.52

3 Days later, Plaintiff met for an initial psychiatric evaluation with ARNP 4 Caitlin McIntyre, during which she was observed with restless motor activity, 5 intact thought process, normal attention and concentration, adequate insight, and 6 intact memory. ARNP McIntyre noted that Plaintiff “demonstrates hallmark 7 symptoms of mood lability, chronic feelings of emptiness, low self-worth, chronic 8 [suicidal ideation], history of self-harm behavior and difficulty in interpersonal 9 relationships. . . . She is open to starting on a medication to manage symptoms . . .

10 [of] mood lability and reactivity.”53 She was given a one-month supply of Lamictal. 11 Plaintiff resumed mental-health therapy sessions.54 In December 2020, her 12 therapist Lisa Orr, LMHC, encouraged Plaintiff to “establish care with a medical 13 provider and consider medications to alleviate nightmares.”55 It was not until May 14 2021, following a sexual assault earlier that spring that Plaintiff regularly resumed 15 Lamictal.56 She then continued with Lamictal and prazosin, along with monthly

18 52 AR 650–52. 19 53 AR 644–49. 20 54 AR 415–57, 630–33. 21 55 AR 467. 22 56 AR 630. 23 1 medication-management appointments until May 2022, and therapy sessions at 2 least once or twice a month through January 2022.57

3 During her medication-management appointment in July 2021, Plaintiff was 4 observed with excessive and loud speech and an irritable and angry affect.58 Later 5 that month, Plaintiff was irritable and tearful at her therapy appointment.59 6 During her therapy appointment in August 2021, she discussed that she yelled at a 7 man when shopping at Walmart.60 During her medication-management 8 appointment in August 2021, she had an anxious mood, congruent affect, 9 tangential thought process, and paranoia.61 During the therapy session on the

10 same date, she was tearful and struggled with reactivity.62 During her medication- 11 management appointment in September 2021, she reported that she was doing 12 “okay” and she was observed with an anxious mood and congruent affect while 13 having a linear thought process and interactive social contact.63 During the next 14 month’s appointment, she again reported that she was doing okay but that she had 15

16 57 See, e.g., AR 384–98, 604–21, 749–50, 746–48, 754–89, 882–91, 948–70. 17 58 AR 621–23. 18 59 AR 384–87. 19 60 AR 788. 20 61 AR 746–47. 21 62 AR 782. 22 63 AR 744–45. 23 1 some bad drowsiness the last week, and she was observed as anxious with 2 paranoid thought content.64 During her therapy session in November 2021, she

3 was tearful, worried, and anxious over another report to CPS.65 During her 4 medication-management appointment that same month, she stated “[I] honestly 5 feel like I’m doing really well. I’m not attacking people no matter how much I hate 6 them,” but she was having more nightmares, woke up feeling rattled, would 7 become tearful; she was observed with a euthymic mood, congruent affect, 8 appropriate thought content, and logical and linear thought process.66 The 9 therapist commented in the December 2021 notes that Plaintiff’s emotional

10 dysregulation and emotional unavailability impacted her son.67 11 The therapy and medication-management notes from January to April 2022 12 reflect that although Plaintiff would report doing good at times, she also reported 13 feeling stressed, having lost her temper with her son, being angry at her sister, and 14 was observed as anxious and pacing at one appointment, although at another 15 appointment the provider noted that Plaintiff’s “mood does not impair her ability to

16 communicate today.”68 17

18 64 AR 742–43. 19 65 AR 756–57. 20 66 AR 1002–03. 21 67 AR 884–87. 22 68 AR 991; see also AR 882–83, 952–54, 969–96, 970–71. 23 1 In May 2022, she advised her provider that she was moving to Nevada with 2 her son and wanted to taper off medications that cause sun sensitivity.69 Although

3 her provider stated that the medications could be continued with sunscreen use, 4 Plaintiff advised she wanted to taper off her medications. Nonetheless, the provider 5 prescribed medication for three months so Plaintiff would have time to find a new 6 provider in Nevada.70 Within two months, Plaintiff returned to Washington 7 because the move to Nevada had not been safe for her and her son. Plaintiff was 8 observed as being in acute distress with anxious mood, tearfulness, and suicidal 9 ideation.71 Prazosin and olanzapine was re-prescribed but Lamictal was not

10 resumed until the next month.72 11 The most recent medical record shows that Plaintiff continued to take 12 medications as prescribed through March 2023.73 During the March 2023 13 appointment, Plaintiff was observed with labile mood, rapid fluctuation of mood, 14 anxiousness, sadness, tearfulness, and suicidal ideation.74 She reported that 15 although therapy assisted with coping skills and insight and that medication

17 69 AR 948–50. 18 70 AR 948. 19 71 AR 936–38. 20 72 AR 924–25, 938. 21 73 AR 1052. 22 74 AR 1053–54. 23 1 helped with hallucinations she was still struggling with PTSD symptoms, 2 especially labile mood, chronic passive suicidal ideations, irritability, and

3 hypervigilance/anxiety. 4 During the hearing, Plaintiff testified that she still takes mental-health 5 medication, but her medication makes her “zombie-like and super groggy.”75 6 On this record, the ALJ’s finding that Dr. Uhl’s marked limitations were 7 inconsistent with Plaintiff’s improvement with routine and conservative treatment 8 is not supported by substantial evidence. The ALJ gave undue weight to the fact 9 that Plaintiff’s symptoms were generally heightened during the year that she was

10 not taking medication, without considering whether medication side-effects, 11 Plaintiff’s mental disorders, or her relocations contributed to her stopping 12 psychotropic medication. Moreover, Plaintiff’s symptoms remained troublesome 13 notwithstanding periods of improvement. For instance, even after resuming 14 medication for about a nine-month period spanning 2022–23 and attending 15 monthly medication-management appointments during that time, Plaintiff was

16 observed with waxing symptoms during her March 2023 psychotherapeutic 17 appointment.76 Without fairly and fully considering the context of Plaintiff’s 18 19

20 75 AR 43. 21 76 The State agency psychological consultants reviewed the medical records 22 available at the time they reviewed the file in September 2021 and December 2021, 23 1 reports of improved symptoms, the ALJ’s finding that Plaintiff’s symptoms 2 improved to an extent that they were inconsistent with Dr. Uhl’s marked

3 limitations is not supported by substantial evidence.77 4 7. The ALJ erred by not considering the reasons why Plaintiff stopped 5 taking her mental-health medication. 6 The ALJ found Dr. Uhl’s opined marked limitations inconsistent with 7 Plaintiff’s “repeated [medication] non-compliance.”78 However, “the mentally ill 8 [are not to be punished] for occasionally going off their medication when the record 9 affords compelling reason to view such departures from prescribed treatment as

10 part of claimants’ underlying mental afflictions.”79 Therefore, the ALJ “must not 11

12 respectfully. They did not have the opportunity to review the medical records 13 prepared after those dates. 14 77 See Attmore v. Colvin, 827 F.3d 872, 878 (9th Cir. 2016) (“It is the nature 15 of bipolar disorder that symptoms wax and wane over time.”); Garrison v. Colvin, 16 759 F.3d 995, 1017 (9th Cir. 2014) (“Cycles of improvement and debilitating 17 symptoms are a common occurrence, and in such circumstances it is error for an 18 ALJ to pick out a few isolated instances of improvement over a period of months or 19 years and to treat them as a basis for concluding a claimant is capable of 20 working.”). 21 78 AR 26. 22 79 Garrison, 759 F.3d at 1018 n.24. 23 1 draw any inferences about an individual’s symptoms and their functional effects 2 from a failure to seek or pursue regular medical treatment without first

3 considering any explanations that the individual may provide, or other information 4 in the case record, that may explain infrequent or irregular medical visits or failure 5 to seek medical treatment[.]”80 6 Here, Plaintiff stopped taking her medication for about one year beginning 7 in the spring of 2020. At that time, Plaintiff told her provider that she stopped 8 taking her medications days prior because they made her feel numb and less 9 creative.81 The ALJ did not consider whether these side-effects were a good reason

10 for Plaintiff to discontinue the medication.82 Likewise, the ALJ did not consider 11 whether Plaintiff’s mental-health impairments impacted her decision to 12 discontinue and/or not resume medication when recommended to do so by her 13 providers.83 As the Ninth Circuit has highlighted, “it is a questionable practice to 14 chastise one with a mental impairment for the exercise of poor judgment in seeking 15

17 80 Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007) (quoting SSR 96–7p at 7–8). 18 81 AR 811–13. 19 82 See SSR 16-3p (explaining that “[a]n individual may not agree to take 20 prescription medications because the side effects are less tolerable than the 21 symptoms”). 22 83 See, e.g., AR 644–52, 467. 23 1 rehabilitation.”84 On this record, by not considering whether Plaintiff had good 2 cause for discontinuing her medication, the ALJ erred when she found Dr. Uhl’s

3 opinion inconsistent with Plaintiff’s “repeated [medication] non-compliance.” 4 8. Substantial evidence does not support the finding that Plaintiff’s 5 mental-health treatment was sporadic. 6 The ALJ appropriately considered whether Dr. Uhl’s opinion was consistent 7 with the mental-health treatment that Plaintiff received. However, when the 8 record is considered fully and fairly, substantial evidence does not support the 9 ALJ’s finding that Plaintiff’s mental-health treatment was sporadic.

10 Although Plaintiff was slow to engage in mental-health treatment after first 11 seeking treatment in the spring of 2018, she participated in mental-health therapy 12 at least once a month from October 2018 to January 2019.85 Then due to moving to 13 a new town, her mental-health therapy was paused until she resumed therapy in 14 April 2019. She began monthly medication-management appointments in June 15 2019.86 In October 2019, she had a mental-health crisis and sought voluntary

16 hospitalization for about a week.87 After release, she resumed therapy sessions on 17

18 84 Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996) (internal quotations and 19 citation omitted). 20 85 See, e.g., AR 308–21, 332, 572, 661, 664. 21 86 See, e.g., AR 544–63, 566–67, 586–95, 793, 853, 844–48. 22 87 AR 599–601, 614, 1004–27. 23 1 at least a monthly basis and monthly medication-management appointments until 2 April 2020 when she told her treating provider that she stopped taking her

3 medications because “she didn’t like how they made her feel numb and less 4 creative.”88 Although she continued with her therapy sessions, she did not take 5 mental-health medication until October 2020, at which time she took medication 6 for about one month. Then in May 2021, she began regularly taking mental-health 7 medication and attending monthly medication-management appointments, except 8 for a one-month period during the summer of 2022 when she moved to Nevada for a 9 short period. 89 She continued with her therapy sessions, at least two times a

10 month until January 2022 when she graduated from therapy.90 The therapy 11 discharge notes state that Plaintiff met 75% of her stated goals/needs: “Client 12 realized that medication compliance and regular contact with prescriber has helped 13 her manage nightmares, mood dysregulation and decreased anxiety.”91 14 15

16 17 18

19 88 AR 521–40, 580–83, 811–32. 20 89 See, e.g., AR 621–22, 632–34, 644–49, 936–50, 949–51, 953–56, 969–72, 996–98. 21 90 See, e.g., AR 384–86, AR 489–518, 754–88, 882–90. 22 91 AR 891 (cleaned up). 23 1 After “graduating” from therapy, Plaintiff continued attending monthly 2 medication-management appointments.92 In December 2023, Plaintiff advised that

3 she wanted to see a counselor again. The provider noted: 4 Patient better fit for outpatient individual psychotherapy given the severity of her symptoms. Referral placed to ABH. I believe she would 5 benefit from dialectical behavior therapy and eye movement desensitization and reprocessing modalities. Chelsey Craven LSWAIC 6 would be a good fit if available. Patient informed that there is a significant wait list at this time.93 7 The ALJ failed to explain how this record reflects sporadic mental-health 8 treatment. Although Plaintiff initially delayed for about six months in 9 participating in regular therapy, Plaintiff engaged in individual therapy sessions 10 for three years. The ALJ did not address whether Plaintiff’s mental impairments 11 contributed to her initial delay in participating in treatment, and three years of 12 regular therapy sessions is not sporadic treatment.94 Also, although Plaintiff 13 14

15 92 AR 905 (She would benefit from [dialectical behavioral therapy]. Unfortunately, 16 this group shut down through CH. She was seeing an individual therapist through 17 OBHC. She has since graduated.”); AR 937, 950, 955, 970, 990. 18 93 AR 1054 (cleaned up). 19 94 See Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996) (“[T]he fact that 20 claimant may be one of millions of people who did not seek treatment for a mental 21 disorder until late in the day is not a substantial basis on which to conclude that 22 Dr. Brown’s assessment of claimant’s condition is inaccurate.”). 23 1 (mostly) stopped taking mental-health medication from April 2020 to May 2021 2 and then again during her short move to Nevada in June 2022, she otherwise took

3 her mental-health medication when prescribed during the relevant period and 4 attended the monthly medication-management appointments. 5 Thus, Plaintiff took prescribed mental-health medication for almost 3 years 6 (spring 2019–20 and spring 2021–23) and attended the monthly medication- 7 management appointments during those periods. Substantial evidence does not 8 support a finding that this is sporadic treatment. Moreover, by not considering 9 whether Plaintiff stopped taking mental-health medication because of medication

10 side-effects or relocations or whether her mental impairments contributed to her 11 decision to stop taking medication, this record does not provide substantial 12 evidence to support the ALJ’s decision to find Dr. Uhl’s marked limitations 13 inconsistent with Plaintiff’s “sporadic” mental-health treatment. 14 9. Substantial evidence does not support the ALJ’s finding that Dr. Uhl’s 15 marked limitations are inconsistent with the cited activities of daily

16 living. 17 The ALJ found Plaintiff’s activities of daily living inconsistent with Dr. Uhl’s 18 marked limitations. The cited activities include Plaintiff’s ability to raise her son, 19 take care of pets, attend to personal care, prepare meals for herself and her son, 20 perform household chores such as dishes and mopping, use public transportation, 21 shop in stores, socialize with others in person and over the phone, attend group 22 therapy, drive a friend’s car, count change, pay bills, handle a checking and savings

23 1 account, do crafts, write, watch television, work on a screen play, pet sit for friends, 2 make art, write an autobiography, and look into taking business classes to support

3 her goal of screenwriting. 4 When assessing whether a medical opinion is consistent with the 5 longitudinal record, the ALJ may consider whether the opined limitations are 6 consistent with the claimant’s level of activity.95 Yet, an ALJ must appreciate that 7 “many home activities are not easily transferable to what may be the more grueling 8 environment of the workplace.”96 9 Here, Dr. Uhl’s marked limitations pertain to Plaintiff’s ability to learn new

10 tasks, adapt to changes, make simple work-related decisions, communicate and 11 perform effectively, maintain appropriate behavior, complete a normal 12 13

14 95 20 C.F.R. §§ 404.1520c(c)(2), 416.920c(c)(2) (comparing the medical opinion with 15 the evidence from nonmedical sources); see also Rollins v. Massanari, 261 F.3d 853, 16 856 (9th Cir. 2001) (finding claimant’s raising of two young children and 17 maintaining a household inconsistent with the medical source’s opinion); Fair v. 18 Bowen, 885 F.2d 597, 603 (9th Cir. 1989). 19 96 See Diedrich v. Berryhill, 874 F.3d 634, 643 (9th Cir. 2017) (recognizing that the 20 fact the claimant “could participate in some daily activities does not contradict the 21 evidence of otherwise severe problems that she encountered in her daily life during 22 the relevant period”). 23 1 workday/workweek, and set realistic goals and plan independently.97 Plaintiff 2 argues that the ALJ did not consider that she has panic and anxiety attacks when

3 she goes shopping, her social interactions frequently lead to conflicts, and that 4 when she attended group therapy she was triggered by other participants and her 5 behaviors triggered others. For instance, her Adult Function Report lists that 6 although she goes to a store about three times a week she goes with her son and 7 tries to be “in and out” of the store.98 8 The Court agrees that the ALJ did not explain how these activities are 9 inconsistent with Plaintiff’s pace and social-interaction difficulties as opined by

10 Dr. Uhl. Many of the cited activities relate to cognitive abilities rather than social- 11 interaction abilities, such as counting change, paying bills, handling a checking 12 and savings account, doing arts and crafts, watching television, and working on a 13 screenplay or an autobiography. As to Plaintiff’s use of public transportation, 14 shopping in stores, and attending group therapy, Plaintiff relayed she often has 15 anxiety, panic attacks, or social difficulties when doing these activities. For

16 instance, an objective of therapy was to help her develop the ability to go outside of 17 her house other than when she needs to go shopping or to a medical appointment.99 18 Plaintiff reported to her therapist that she yelled at a fellow male customer at a 19

20 97 AR 360. 21 98 AR 265. 22 99 See, e.g., AR 466, 469, 472. 23 1 grocery store to leave her alone.100 In addition, a therapy note stated, “[Client] 2 shares Support Center Staff are concerned she also has Dissociative Identity

3 Disorder do [sic] to behaviors she exhibits during groups.”101 Another note stated, 4 “We discussed possibility of joining anxiety support group when one is 5 available,”102 but later Plaintiff reported deciding not to continue with support 6 groups because they “trigger” her.103 7 Treatment records reflect that her therapist recommended that Plaintiff 8 engage in arts and crafts to relieve stress, regain emotional calmness, and decrease 9 and/or prevent disassociation.104 A behavioral health discharge summary stated:

10 Pt is highly creative and used this as a primary coping tool including working on a screenplay. Pt identified strengths from intake included: 11 “I have no filter, I think that is a strength. I’m not afraid of upsetting people with what I say because what I say comes from a pure place. I 12 try to be the light goddess my mother hallucinated I would be.105

13 14 15 16

17 100 AR 788. 18 101 AR 392. 19 102 AR 465 20 103 AR 886. 21 104 See, e.g., AR 426–27, 429–30, 465, 472, 487–88, 493, 1020. 22 105 AR 793. 23 1 Moreover, there is no indication that Plaintiff completed a screenplay or an 2 autobiography or took any classes to facilitate these stated goals. In addition, the

3 therapy notes reflect that Plaintiff spent time with animals to reduce stress.106 4 Although Plaintiff was generally the primary caretaker for her son, 5 Plaintiff’s son was in foster care for a short period, she had to address complaints 6 made to CPS by her sister, and later she moved to Nevada in hopes that extended 7 family could assist her with his care.107 During a therapy session, the therapist 8 noted that Plaintiff “was affectionate with her son although she did not filter her 9 dialogue or emotions for a 5-year-old in the room.”108 And other therapy session

10 records note that Plaintiff’s emotional dysregulation impacts her son.109 11 Substantial evidence is lacking to support the ALJ’s finding that Dr. Uhl’s 12 marked limitations are inconsistent with Plaintiff’s activities. 13 10. Summary 14 The ALJ’s assessment of Dr. Uhl’s marked limitations relied too heavily on 15 Plaintiff’s cessation of psychotropic medication without considering whether this

16 cessation was due to medication side-effects or Plaintiff’s relocations or impaired 17 insight caused by her mental impairments. This error impacted the ALJ’s 18

19 106 AR 780. 20 107 AR 395, 400, 948, 954, 1018. 21 108 AR 560. 22 109 AR 884–87. 23 1 evaluation of the longitudinal treatment record and Plaintiff’s activities, causing 2 the ALJ to find Plaintiff's treatment sporadic and conservative and that it showed

3 improvement to an extent that Plaintiff could sustain work if she remained 4 compliant with her psychotropic medications. These errors consequentially 5 resulted in the ALJ finding that Dr. Uhl’s opinion was unsupported by and 6 inconsistent with the record. 7 B. Symptom Reports: Plaintiff establishes consequential error. 8 Plaintiff argues the ALJ failed to provide specific, clear, and convincing 9 reasons supported by substantial evidence to discount her symptom reports. In

10 response, the Commissioner argues the ALJ’s findings are adequately supported by 11 reason and substantial evidence. As is discussed below, the ALJ failed to provide a 12 rationale clear enough to convince the reviewing court that Plaintiff’s symptom 13 reports should be discounted. 14 1. Standard 15 The ALJ must identify what symptom claims are being discounted and

16 clearly and convincingly explain the rationale for discounting the symptoms with 17 supporting citation to evidence.110 This requires the ALJ to “show his [or her] 18 work” and provide a “rationale . . . clear enough that it has the power to convince” 19

20 110 20 C.F.R. §§ 404.1529(c), 416.929(c); Smartt v. Kijakazi, 53 F.4th 489, 499 (9th 21 Cir. 2022); Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014); Soc. Sec. Rlg. 22 (SSR) 16-3p, 2016 WL 1119029, at *7. 23 1 the reviewing court.111 Factors the ALJ may consider when evaluating the 2 intensity, persistence, and limiting effects of a claimant’s symptoms include: 1) the

3 objective medical evidence, 2) daily activities; 3) the location, duration, frequency, 4 and intensity of pain or other symptoms; 4) factors that precipitate and aggravate 5 the symptoms; 5) the type, dosage, effectiveness, and side effects of any medication 6 the claimant takes or has taken to alleviate pain or other symptoms; 6) treatment, 7 other than medication, the claimant receives or has received for relief of pain or 8 other symptoms; and 7) any non-treatment measures the claimant uses or has used 9 to relieve pain or other symptoms.112

10 2. The ALJ’s Findings 11 The ALJ found Plaintiff’s statements about the intensity, persistence, and 12 limiting effect of her symptoms were not entirely consistent with the medical 13 evidence and other evidence in the record, specifically that Plaintiff’s “symptoms 14 were amenable to routine and conservative treatment and did not require 15 extensive further services,” Plaintiff “endorsed the ability to perform a range of

16 daily activities that suggests at least somewhat greater abilities than generally 17 alleged,” and Plaintiff’s statements to a psychiatric nurse practitioner suggested 18 19

20 111 Smartt, 53 F.4th at 499 (alteration added). 21 112 20 C.F.R. § 404.1529(c)(2), (3). See also 3 Soc. Sec. Law & Prac. § 36:26, 22 Consideration of objective medical evidence (2019). 23 1 that Plaintiff “was seeking mental health treatment in order to generate evidence” 2 to support her disability application.113.

3 3. The ALJ failed to provide a rationale clear enough to convince the 4 Court that Plaintiff’s course of and response to treatment were 5 inconsistent with Plaintiff’s reported symptoms. 6 Objective medical evidence—signs, laboratory findings, or both—is a 7 relevant factor for the ALJ to consider when assessing a claimant’s symptoms.114 8 “Signs” is defined as: 9 one or more anatomical, physiological, or psychological abnormalities that can be observed, apart from [the claimant’s] statements 10 (symptoms). Signs must be shown by medically clinical diagnostic techniques. Psychiatric signs are medically demonstrable phenomena 11 that indicate specific psychological abnormalities, e.g., abnormalities of behavior, mood, thought, memory, orientation, development, or 12 perception, and must also be shown by observable facts that can be medically described and evaluated.115 13 While an ALJ may not “reject a claimant’s subjective complaints based solely on 14 lack of medical evidence to fully corroborate” the complaint, the ALJ may discount 15 subjective complaints that are inconsistent with the objective medical evidence, so 16 17

18 113 AR 25. 19 114 20 C.F.R. §§ 404.1502(f), (g), 416.902(k, (l); Smolen v. Chater, 80 F.3d 1273, 20 1284 (9th Cir. 1996); 3 Soc. Sec. Law & Prac. § 36:26, Consideration of objective 21 medical evidence (2019). 22 115 Id. §§ 404.1502(g), 416.902(l). 23 1 long as the ALJ explains why the objective medical findings are inconsistent with 2 the claimant’s complaints.116 When considering the objective medical findings, a

3 claimant’s improvement with treatment is “an important indicator of the intensity 4 and persistence of . . . symptoms.”117 Symptom improvement, however, must be 5 weighed within the context of an “overall diagnostic picture,” particularly for 6 mental-disorder symptoms, which often wax and wane.118 Reports of improvement 7 “must be interpreted with an understanding of the patient’s overall well-being and 8 the nature of her symptoms,” as well as with an awareness that “improved 9 functioning while being treated and while limiting environmental stressors does

10 not always mean that a claimant can function effectively in a workplace.”119 11 12

13 116 Smartt, 53 F.4th at 498 (quoting Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 14 2005) (emphasis added in Smartt)). 15 117 20 C.F.R. §§ 416.929(c)(3), 404.1529(c)(3). See Warre v. Comm'r of Soc. Sec. 16 Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (“Impairments that can be controlled 17 effectively with medication are not disabling for the purpose of determining 18 eligibility for SSI benefits.”). 19 118 Holohan v. Massanari, 246 F.3d1195, 1205 (9th Cir. 2001); see also Lester v. 20 Chater, 81 F.3d 821, 833 (9th Cir. 1995) (“Occasional symptom-free periods . . . are 21 not inconsistent with disability.”). 22 119 Garrison, 759 F.3d at 1017 (cleaned up). 23 1 Here, after comparing Plaintiff’s reported symptoms to the objective medical 2 evidence, the ALJ found that Plaintiff’s symptoms were lessened by “routine and

3 conservative treatment,” highlighting that Plaintiff was only hospitalized once for 4 psychiatric reasons, and that Plaintiff had participated in “sometimes sporadic 5 mental health treatment” and “repeatedly chose[] to stop taking her medication.”120 6 As discussed above, the ALJ’s finding that Plaintiff’s mental-health 7 treatment was sporadic and conservative is not supported by substantial evidence. 8 Likewise, the ALJ focused on the medical records, which contained Plaintiff’s 9 reports of doing “okay”/better and/or normal mental-status findings, without

10 considering the overall context of these reported or observed improvements.121 11 Notably, the last medical record from March 2023 reflects that, notwithstanding 12 consistent medication compliance for the preceding nine-month period, Plaintiff 13 14 15

16 120 AR 24–25. 17 121 See Ghanim, 763 F.3d at 1164 (recognizing that context is crucial when 18 interpreting medical records); Garrison, 759 F.3d at 1017 (requiring the ALJ to 19 carefully consider “indications in the medical record that [the claimant] was ‘doing 20 well,’ because doing well for the purposes of a treatment program has no necessary 21 relation to a claimant’s ability to work or to her work-related functional capacity”) 22 (quoting Hutsell v. Massanari, 259 F.3d 707, 712 (8th Cir. 2001)). 23 1 presented with a labile mood that rapidly fluctuated during the appointment and 2 an anxious, sad, tearful affect with suicidal ideation.122

3 Therefore, absent a clear discussion about whether Plaintiff’s medication 4 noncompliance was impacted by medication side-effects or Plaintiff’s mental 5 impairments or relocations, the ALJ’s analysis of the record fails to convince the 6 Court that Plaintiff’s relief was lasting and was of the type and degree that was 7 truly at odds with Plaintiff’s reported symptoms.123 Substantial evidence does not 8 support the ALJ’s finding that Plaintiff’s reported symptoms were inconsistent 9 with the objective medical evidence.

10 4. Substantial evidence does not support the ALJ’s finding that Plaintiff’s 11 daily activities are inconsistent with her reported symptoms. 12 The ALJ found that Plaintiff’s ability to perform a range of daily activities 13 was inconsistent with her alleged symptoms.124 Like was discussed above, the 14 ALJ’s analysis of Plaintiff’s activities fails to convince the Court that Plaintiff’s 15

18 122 AR 1053–54 19 123 See Garrison, 759 F.3d at 1017–18; Reddick v. Chater, 157 F.3d 715, 723 (9th 20 Cir. 1998) (recognizing that an ALJ must account for the context of the claimant’s 21 prior report as well as the nature of his impairment and its symptoms). 22 124 AR 25 (internal citations to the record omitted). 23 1 reported symptoms are inconsistent with her activities of daily living.125 The ALJ 2 did not consider whether the nature of the activities allowed for breaks in pace or

3 separation from others. The ALJ also found Plaintiff’s ability to travel to Nevada in 4 early January 2019 and ability to relocate multiple times suggested that she 5 overstated her symptoms. However, the record contains very little facts about 6 Plaintiff’s travel to Nevada, which appears to have been to visit her boyfriend to 7 assess whether she and her son would move there.126 There is no information as to 8 whether Plaintiff drove or flew or rode a bus, the duration of the trip, or with whom 9 she interacted other than her boyfriend. Without such or similar information, the

10 ALJ’s reliance on Plaintiff’s report to her therapist that she had a very positive trip 11 to Nevada does not afford substantial evidence to discount her claims that she 12 struggles with anxiety, panic attacks, hallucinations, nightmares, and irritability. 13 Moreover, the record reflects that Plaintiff’s relocations were generally due to her 14 housing instability or desire to move away from an abuser or neighbors with whom 15 she had conflicts.127 The ALJ fails to convincingly explain why these moves should

16 be held against Plaintiff when assessing the credibility of her symptoms. 17

18 125 See Garrison, 759 F.3d at 1016; Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 19 2001). 20 126 AR 308–09. 21 127 See, e.g., AR 308, 312, 317, 333, 398, 409, 420, 492, 570, 572–73, 619, 622, 625, 22 630–31, 633, 661, 793, 899, 904. 23 1 5. The ALJ did not clearly and convincingly explain that Plaintiff sought 2 mental-health treatment solely to make a stronger case for disability

3 benefits. 4 An ALJ may discount a claimant’s symptom reports if the claimant tends to 5 exaggerate or engage in conduct to manipulate the disability-determination 6 process.128 Here, the ALJ discounted Plaintiff’s reported symptoms because during 7 her initial visit with the psychiatric nurse practitioner in March 2018 Plaintiff: 8 reported that her therapist had encouraged her to schedule the appointment in order to help her make a stronger cause for disability 9 benefits. This suggests that the claimant was seeking mental health treatment in order to generate evidence for this application, rather 10 than in a genuine attempt to obtain relief from her allegedly disabling symptoms.129 11 12 In support of this finding, the ALJ cited to Exhibit 5F/51. This is a March 6, 2018 13 initial-evaluation record, which notes Plaintiff’s presenting problem as, “Lives with 14 her 3yo son, unemployed, [r]eports trauma history since a baby. Reports PTSD 15 symptoms interferes with her daily life, cannot hold a job for a long time, and has 16 17

18 128 20 C.F.R. §§ 404.1529(c)(4), 416.929(c)(4); Smolen, 80 F.3d at 1284 (The ALJ 19 may consider “ordinary techniques of credibility evaluation,” such as reputation for 20 lying, prior inconsistent statements concerning symptoms, and other testimony 21 that “appears less than candid.”). 22 129 AR 25 (citing AR 665 (Exhibit 5F/51)). 23 1 unhealthy relationships.”130 This treatment note does not stand for the proposition 2 the ALJ states.

3 Yet, the record from the October 19, 2020 initial psychiatric evaluation 4 identifies the presenting problem as: “I know that meds are recommended for me. 5 Lisa [Orr, LMHC, her therapist,] just wanted me to talk to someone who is a 6 psychiatrist to help me get disability which I’ve been trying to do for 3 years 7 now.”131 This record does not reflect improper motivation or lack of candor by 8 Plaintiff. Instead, the record reflects that Plaintiff was candid with the evaluator 9 as to the purpose of the October 2020 psychiatric evaluation: an evaluation that

10 was mere days after Plaintiff presented with a panic attack, frequent crying, and a 11 flat affect and thus the treating provider made an urgent referral to collaborative 12 care.132 Plaintiff consistently advised evaluators and treating providers that she 13 believed she was unable to work due to her mental impairments and often 14 discussed the steps she was taking to apply for disability or other benefits.133 15

16 130 AR 664. 17 131 AR 645 (Exhibit 5F/31). 18 132 AR 653–55. 19 133 See, e.g., AR 460 (discussing with her therapist the procedural steps she is doing 20 to apply for disability); AR 664 (“Reports PTSD symptoms interferes with her daily 21 life, cannot hold a job for a long time, and has unhealthy relationships); AR 727 22 (“Working for 3 yrs to get on disability”); AR 916 (“reported she is also receiving 23 1 Plaintiff was upfront that she believes her mental-health symptoms prevent her 2 from working, and she sought assistance from her providers to support her

3 disability application and to receive other benefits as well for her and her son. 4 Plaintiff should not be penalized for advising an evaluator that she was hoping the 5 evaluation would assist with her disability application. 6 C. Other Steps: The ALJ must reevaluate on remand. 7 Because the ALJ erred when evaluating Dr. Uhl’s opined marked limitations 8 and Plaintiff’s symptom reports and these errors impacted the ALJ’s sequential 9 analysis, the Court does not analyze Plaintiff’s remaining RFC argument.

10 The record contains conflicting evidence about whether Plaintiff had good- 11 cause reasons for discontinuing her mental-health medication at times; therefore, 12 further administrative proceedings are necessary to determine if Plaintiff qualifies 13 for disability benefits. On remand, if necessary, the ALJ is to consider obtaining 14 either an updated consultative psychological examination or testimony from a 15 psychologist to address not only the psychologist’s opinion as to the level and

16 nature of Plaintiff’s non-exertional limitations but also whether Plaintiff’s mental- 17 18 DSHS assistance; food stamps and TANF and that she is in the process of applying 19 for disability); AR 938 (“She is actively pursuing help from local resources 20 regarding the homelessness and is reaching for help by coming in today for her 21 mental health issues and willing to go to OB HC for her appointment today at 22 noon.”). 23 1 || health impairments, medication side-effects, or relocations impacted her decision to 2 || discontinue her medication. 3 IV. Conclusion 4 Plaintiff establishes the ALJ erred. The ALJ is to develop the record and 5 ||reevaluate—with meaningful articulation and evidentiary support—the sequential 6 || process. 7 Accordingly, IT IS HEREBY ORDERED: 8 1. The ALJ’s nondisability decision is REVERSED, and this matter is 9 REMANDED to the Commissioner of Social Security for 10 further proceedings pursuant to sentence four of 42 U.S.C. § 11 405(g). 12 2. The Clerk’s Office shall TERM the parties’ briefs, ECF Nos. 8 and10, 13 enter JUDGMENT in favor of Plaintiff, and CLOSE the case. 14 IT IS SO ORDERED. The Clerk’s Office is directed to file this order and 15 || provide copies to all counsel. 16 DATED this _21**_ day of May 2024. M hewd fon. 18 EDWARD F. SHEA Senior United States District Judge 19 20 21 134 See Celaya v. Halter, 332 F.3d 1177, 1183 (9th Cir. 2003) (recognizing that the ALJ has a special duty to develop the record fully and fairly when necessary). 23

DISPOSITIVE ORDER - 42