“Although he did not recite it in his decision’s brief 11 ‘Findings,’ the ALJ did note in his ‘Statement of the Case’ repeated evidence that Lewis did not 12 comply with his prescribed treatment.”
How later courts described this case
- “Although he did not recite it in his decision’s brief 11 ‘Findings,’ the ALJ did note in his ‘Statement of the Case’ repeated evidence that Lewis did not 12 comply with his prescribed treatment.”
- “[I]t is the responsibility of the ALJ, not the claimant’s physician, to determine 6 residual functional capacity.”
Written by the judges who cited it.
The opinion
1
2
3
4
5 UNITED STATES DISTRICT COURT
6 EASTERN DISTRICT OF CALIFORNIA
7
8 JOHN MICHAEL SMITH, Case No. 1:21-cv-00481-CDB (SS)
9 Plaintiff, ORDER GRANTING PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT
10 v. AND REMANDING ACTION FOR
FURTHER PROCEEDINGS UNDER
11 COMMISSIONER OF SOCIAL SENTENCE FOUR OF 42 U.S.C. § 405(g)
SECURITY,
12 (Doc. 15)
Defendant.
13
14 Plaintiff John Michael Smith (“Plaintiff”) seeks judicial review of the final decision of the
15 Commissioner of Social Security (“Commissioner” or “Defendant”) denying his application for
16 supplemental security income (“SSI”). (Docs. 1, 15). Defendant filed an opposition to Plaintiff’s
17 brief. (Doc. 21). The matter is currently before the Court on the Administrative Record (Doc. 10)
18 and the parties’ briefs, which were submitted without oral argument.1
19 I. BACKGROUND
20 On March 23, 2018, Plaintiff filed an application for SSI, alleging disability beginning
21 January 1, 2021. (Administrative Record (“AR”) 19, 68-69). The claim was initially denied on
22 June 28, 2018, and upon reconsideration on September 14, 2018. (AR 19, 68,96). Thereafter,
23 Plaintiff filed a request for a hearing before an Administrative Law Judge (“ALJ”). (AR 19). The
24 hearing was held via telephone on June 10, 2020, due to the extraordinary circumstances
25 presented by the COVID-19 pandemic. Id. Plaintiff was represented by counsel at the hearing. A
26
1 The parties have consented to the jurisdiction of a United States Magistrate Judge and
27
this action has been assigned to the undersigned for all purposes pursuant to 28 U.S.C. 636(c)(1).
(Doc. 10).
1 vocational expert (“VE”) also appeared and testified during the hearing. The ALJ issued a
2 decision denying Plaintiff’s claim for benefits on June 30, 2020. (AR 5, 18). Plaintiff sought
3 review from the Appeals Counsel, which then affirmed the ALJ on September 23, 2020. (AR 5).
4 On February 13, 2021, the Appeals Counsel granted Plaintiff a 35-day extension to file a civil
5 action. (Doc. 1 ⁋9; AR 1). Plaintiff initiated this action on March 22, 2023. (Doc. 1).
6 The ALJ conducted the five-step disability analysis and made the following findings of
7 fact and conclusions of law in his decision. (AR 21-29).2 At step one, the ALJ found that Plaintiff
8 had not engaged in substantial gainful activity since March 23, 2018. (AR 23). At step two, the
9 ALJ found that Plaintiff’s schizoaffective disorder, depressive disorder, and polysubstance
10 (marijuana and methamphetamine) abuse disorders were severe impairments. Id.
11 At step three the ALJ found that Plaintiff’s mental impairments, considered individually
12 or in combination did not meet or medically equal the criteria of listings 12.04 (depressive,
13 bipolar and related disorders) and 12.06 (anxiety and obsessive-compulsive disorders). The ALJ
14 analyzed the “paragraph B” criteria under 20 C.F.R., Part 404, Subpart P, Appendix 1.3 The ALJ
15 found that Plaintiff had a mild limitation in understanding, remembering or applying information.
16 (AR 24). Plaintiff also has a moderate limitation in interacting with others; concentrating,
17 persisting, or maintaining pace; and adapting or managing oneself. Id. The ALJ found that
18 Plaintiff did not satisfy the paragraph B criteria as his mental impairments did not cause at least
19 two “marked” limitations or one “extreme” limitation. Id. The ALJ also considered whether
20 Plaintiff satisfied the “paragraph C” criteria, finding that “[i]n this case, the evidence fails to
21 establish the presence of the ‘paragraph C’ criteria.” Id.
22
2 The ALJ’s decision is summarized to the extent it is relevant to the issues brought for
23 review by Plaintiff.
24 3 The “paragraph B criteria” evaluates mental impairments in the context of four broad
areas of functioning: (1) understanding, remembering, or applying information; (2) interacting
25 with others; (3) concentrating, persisting, or maintaining pace; and (4) adapting or managing
oneself. 20 C.F.R. § Pt. 404, Subpt. P, App. 1. The severity of the limitation a claimant has in
26 each of the four areas of functioning is identified as either “no limitation,” “mild,” “moderate,”
“marked,” or “extreme.” Id. To satisfy the paragraph B criteria, a claimant must have an
27
“extreme” limitation in at least one of the areas of mental functioning, or a “marked” limitation in
at least two of the areas of mental functioning. Id.
1 The ALJ further determined Plaintiff’s residual functional capacity (“RFC”) as follows:
2 . . . [T]he claimant has the residual functional capacity to perform a
full range of work at all exertional levels but with the following non-
3 exertional limitations: no climbing ladders, ropes, and scaffolds; no
exposure to moving mechanical parts and unprotected heights. He is
4 limited to work uncomplicated enough to learn within 30 days and
no hourly quotas/conveyor belts. He is limited to occasional, simple
5 workplace changes. He is limited to occasional interaction with co-
workers and supervisors. He is limited to no public interaction or
6 work in the vicinity of the public.
7 (AR 25).
8 At step four, the ALJ considered Plaintiff’s symptoms and the extent to which those
9 symptoms could be accepted as consistent with the objective medical evidence and other evidence
10 on the record. (AR 25 citing 20 C.F.R § 416.929 and SSR 16-3p). The ALJ examined Plaintiffs
11 allegations of schizoaffective disorder and depressive disorder. (AR 25 citing AR 254). At the
12 hearing, Plaintiff testified that he is in a transient living situation. (AR 41). Plaintiff previously
13 worked at temporary job agencies, but the voices in his head and visions caused him to believe
14 that his co-workers were trying to hurt him. Plaintiff further testified that he hears auditory
15 hallucinations daily, and while medications minimize the hallucinations, they are unable to stop
16 them completely. Plaintiff also testified that the voices make it difficult for him to interact with
17 others. (AR 25).
18 The ALJ also summarized Plaintiff’s medical record. (AR 26). During a consultative
19 examination on June 11, 2018, by Megan Stafford, Psy.D. (“Dr. Stafford”) Plaintiff reported that
20 he had used methamphetamine since he was 18 up until 2017. (AR 373). Plaintiff also drank
21 alcohol daily for 10 to 15 years but had been sober since 2015. Id. Dr. Stafford reported that
22 Plaintiffs mood appeared euthymic, and that his affect was restricted. Id. Plaintiff reported that
23 he was on Clonidine, Remeron and Lamictal. (AR 404-5). Plaintiff also stated he has difficulty
24 controlling his anger and previously had been arrested for possession of a controlled substance,
25 grand theft auto, assault with a deadly weapon and attempted murder. (AR 372). Plaintiff
26 reported paranoia and anxiety, which resulted in panic attacks and caused him to quit his prior
27 job. (AR 372-73).
1 effects of his symptoms and his allegations of disabling schizoaffective and depressive disorder
2 were inconsistent with the record. (AR 26). In doing so, the ALJ acknowledged Plaintiff’s
3 behavioral health facility admission and history of mental health treatment and noted that
4 following treatment and adjustment in medication, Plaintiff’s symptoms had improved. Id. The
5 ALJ noted that Plaintiff’s memory was intact and his thought process was logical, which made
6 him capable of work uncomplicated enough to learn within 30 days with restrictions of no hourly
7 quotas/conveyor belts and only occasional, simple workplace changes. (Id. citing AR 373-74,
8 396, 477). However, the ALJ further found that due to Plaintiff’s poor coping and impulse
9 controls, his difficulty controlling anger, and his irritable mood, Plaintiff is limited to occasional
10 interaction with co-workers, supervisors, and no public interaction or work in vicinity of the
11 public. (Id. citing AR 372, 401, 424, 477).
12 The ALJ found that DDS Doctors J. Collado and Anna M. Franco’s opinions were
13 persuasive. They opined that Plaintiff could understand/carry out simple one-to-two step tasks,
14 maintain concentration/persistence throughout a normal workday, interact with co-workers and
15 supervisors adequately but would have difficulty dealing with the public. (AR 27 citing 77, 93).
16 The ALJ deemed those findings to be supported by the record and consistent with Plaintiff’s
17 noted difficulty controlling his anger, his withdrawn manner, his intact memory and ability to
18 follow simple commands. (AR 27 citing 374, 396, 401, 525).
19 The ALJ also found Dr. Stafford’s opinion to be persuasive. Dr. Stafford opined that
20 Plaintiff could perform detailed and complex tasks, accept instructions, perform work activities
21 consistently without additional instructions, and to maintain regular workplace attendance. (AR
22 26 citing AR 375). Plaintiff displayed a moderate impairment in his ability to interact with others
23 as well as moderate impairment to complete a normal workday without interruptions and to deal
24 with usual workplace stress. (AR 375).
25 At step five, the ALJ found that there are jobs that exist in significant numbers in the
26 national economy that Plaintiff could perform, specifically: kitchen helper, office helper, and
27 document preparer/doc specialist. The ALJ accordingly found that Plaintiff was not disabled.
1 II. LEGAL STANDARD
2 A. The Disability Standard
3 Disability Insurance Benefits and Supplemental Security Income are available for every
4 eligible individual who is “disabled.” 42 U.S.C. §§ 402(d)(1)(B)(ii) and 1381(a). An individual
5 is “disabled” if unable to “engage in any substantial gainful activity by reason of any medically
6 determinable physical or mental impairment …”4 Bowen v. Yuckert, 482 U.S. 137, 140 (1987)
7 (quoting identically worded provisions of 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A)). To
8 achieve uniformity in the decision-making process, the Social Security regulations set out a five-
9 step sequential evaluation process to be used in determining if an individual is disabled. See 20
10 C.F.R. § 404.1520; Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1194 (9th Cir. 2004).
11 Specifically, the ALJ is required to determine:
12
(1) whether a claimant engaged in substantial gainful activity during the period of
13 alleged disability, (2) whether the claimant had medically determinable “severe”
impairments, (3) whether these impairments meet or are medically equivalent to one
14 of the listed impairments set forth in 20 C.F.R. § 404, Subpart P, Appendix 1, (4)
whether the claimant retained the RFC to perform past relevant work and (5)
15 whether the claimant had the ability to perform other jobs existing in significant
numbers at the national and regional level.
16
17 Stout v. Comm’r. Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006). The burden of proof is
18 on a claimant at steps one through four. Ford v. Saul, 950 F.3d 1141, 1148 (9th Cir. 2020) (citing
19 Valentine v. Comm’r of Soc. Sec. Admin, 574 F.3d 685, 689 (9th Cir. 2009)).
20 Before making the step four determinations, the ALJ first must determine the claimant’s
21 RFC. 20 C.F.R. § 416.920(e). The RFC is the most a claimant can still do despite their
22 limitations and represents an assessment based on all relevant evidence. 20 C.F.R. §§
23 404.1545(a)(1); 416.945(a)(1)). The RFC must consider all of the claimant’s impairments,
24 including those that are not severe. 20 C.F.R. §§ 416.920(e), 416.945(a)(2). E.g., Wells v.
25 Colvin, 727 F.3d 1061, 1065 (10th Cir. 2013) (“These regulations inform us, first, that in
26
4 A “physical or mental impairment” is one resulting from anatomical, physiological, or
27
psychological abnormalities that are demonstrated by medically acceptable clinical and laboratory
diagnostic techniques. 42 U.S.C. § 423(d)(3).
1 assessing the claimant’s RFC, the ALJ must consider the combined effect of all of the claimant’s
2 medically determinable impairments, whether severe or not severe.”). The RFC is not a medical
3 opinion. 20 C.F.R. § 404.1527(d)(2). Rather, it is a legal decision that is expressly reserved to
4 the Commissioner. 20 C.F.R. § 404.1546(c); see Vertigan v. Halter, 260 F.3d 1044, 1049 (9th
5 Cir. 2001) (“[I]t is the responsibility of the ALJ, not the claimant’s physician, to determine
6 residual functional capacity.”).
7 At step five, the burden shifts to the Commissioner to prove that Plaintiff can perform
8 other work in the national economy given the claimant’s RFC, age, education, and work
9 experience. Garrison v. Colvin, 759 F.3d 995, 1011 (9th Cir. 2014). To do this, the ALJ can use
10 either the Medical-Vocational Guidelines or rely upon the testimony of a VE. Lounsburry v.
11 Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006); Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th
12 Cir. 2001). “Throughout the five-step evaluation, the ALJ ‘is responsible for determining
13 credibility, resolving conflicts in medical testimony and for resolving ambiguities.’” Ford, 950
14 F.3d at 1149 (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)).
15 B. Standard of Review
16 Congress has provided that an individual may obtain judicial review of any final decision
17 of the Commissioner of Social Security regarding entitlement to benefits. 42 U.S.C. § 405(g). In
18 determining whether to reverse an ALJ’s decision, a court reviews only those issues raised by the
19 party challenging the decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). A
20 court may set aside the Commissioner’s denial of benefits when the ALJ’s findings are based on
21 legal error or are not supported by substantial evidence. Tackett v. Apfel, 180 F.3d 1094, 1097
22 (9th Cir. 1999).
23 “Substantial evidence is relevant evidence which, considering the record as a whole, a
24 reasonable person might accept as adequate to support a conclusion.” Thomas v. Barnhart, 278
25 F.3d 947, 954 (9th Cir. 2002) (quoting Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453,
26 1457 (9th Cir, 1995)). “[T]he threshold for such evidentiary sufficiency is not high.” Biestek v.
27 Berryhill, 139 S. Ct. 1148, 1154 (2019). Rather, “[s]ubstantial evidence means more than a
1 CalPortland Co., 993 F.3d 1204, 1208 (9th Cir. 2021) (internal quotations and citations omitted).
2 “[A] reviewing court must consider the entire record as a whole and may not affirm
3 simply by isolating a specific quantum of supporting evidence.” Hill v. Astrue, 698 F.3d 1153,
4 1159 (9th Cir. 2012) (internal quotations and citations omitted). “If the evidence ‘is susceptible
5 to more than one rational interpretation, it is the ALJ’s conclusion that must be upheld.’” Ford,
6 950 F.3d at 1154 (quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)). Even if the
7 ALJ has erred, the Court may not reverse the ALJ’s decision where the error is harmless. Stout,
8 454 F.3d at 1055-56. An error is harmless where it is “inconsequential to the [ALJ’s] ultimate
9 nondisability determinations.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008)
10 (quotation and citation omitted). The burden of showing that an error is not harmless “normally
11 falls upon the party attacking the agency’s determination.” Shinseki v. Sanders, 556 U.S. 396,
12 409 (2009).
13 III. DISCUSSION
14 Plaintiff advances two issues for the Court’s review. First, Plaintiff claims that the ALJ
15 failed to adequately consider whether his mental condition met or equaled a listed impairment for
16 which a disability finding is established at step three of the sequential analysis. Second, Plaintiff
17 claims that the ALJ erred by rejecting his subjective testimony regarding his mental symptoms.
18 (Doc. 15 p. 2).
19 A. Whether the ALJ Erred at Step Three
20 Plaintiff contends that the ALJ erred at step three by failing to conduct an adequate
21 analysis relating to Plaintiff’s impairments. (Doc. 15 p. 23-24). Plaintiff specifically contends
22 that when the ALJ evaluated whether his impairments met or equaled an affective disorder under
23 Listing 12.04 and/or an anxiety disorder under listing 12.06, he did not properly analyze the
24 “paragraph C” requirements detailed in 20 C.F.R. Part 404, Subpt. P, App. 1 §§ 12.04 or 12.06.
25 To be found disabled under these listings, Plaintiff’s mental disorder must satisfy the requirement
26 of both paragraphs A and B, or the criteria in paragraph C.
27 To satisfy the “paragraph C” criteria, a plaintiff must provide evidence that his mental
1 “serious and persistent” if “there is a medically documented history of the existence of the mental
2 disorder in the listing category over a period of at least 2 years, and evidence shows that
3 [Plaintiff’s] disorder satisfies [two conditions].” Id.
4 The first condition is that the evidence shows that the Plaintiff relies on medical treatment,
5 mental health therapy, psychosocial support, or a highly structured setting on an ongoing basis to
6 diminish the symptoms and signs of his mental disorder. The second condition is that despite the
7 diminished symptoms and signs from the treatment, the claimant has only achieved marginal
8 adjustment, which means that the claimant nevertheless has minimal capacity to adapt to changes
9 to their environment or to demands that are not already part of their daily life. Id.
10 Plaintiff claims that the ALJ’s summary conclusion that he did not meet the “paragraph
11 C” criteria was legally insufficient. (Doc. 15 p. 24). At step three, the ALJ must evaluate the
12 relevant evidence before concluding that a claimant’s impairments do not meet or equal a listed
13 impairment. A boilerplate finding is insufficient to support a conclusion that a claimant’s
14 impairment fails to meet the listing. Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir. 1990).
15 Plaintiff further claims that the ALJ’s conclusion is contrary to the evidence in the record. He
16 argues that his schizoaffective disorder has been ongoing for more than two years and that he
17 deteriorates when not provided with substantial psychosocial support. (Doc. 15 p. 25 citing AR
18 351-52, 363, 514).
19 “For a claimant to qualify for benefits by showing that his unlisted impairment, or
20 combination of impairments, is ‘equivalent’ to a listed impairment, he must present medical
21 findings equal in severity to all the criteria for the one most similar listed impairment.” Sullivan
22 v. Zebley, 493 U.S. 521, 531 (1989) (citing 20 C.F.R. § 416.926(a)). Plaintiff points to his
23 repeated episodes of decompensation after release from his February 2018 one-year treatment
24 program at Turning Point, including mental health interventions while he was in jail twice in
25 2019 and a 10-day psychiatric hospitalization in or around September 2019. (AR 490-499, 500-
26 503, 509). He further asserts that in October 2019, he began another one-year treatment plan at
27 Turning Point where he was assessed as “belligerent, threatening, uncooperative, aggressive”
1 518). Plaintiff claims that the record supports a finding that his mental health deteriorates when
2 he is not provided substantial psychosocial support and thus should meet the “paragraph C”
3 criteria. (Doc. 15 p. 25).
4 Although the ALJ summarily found that the evidence failed to establish the presence of
5 the “paragraph C” criteria, “[a]n Adjudicator’s articulation of the reason(s) why the individual is
6 or is not disabled at a later step in the sequential evaluation process will provide rationale that is
7 sufficient for a subsequent reviewer or court to determine the basis for the finding about medical
8 equivalence at step 3.” Matthew W. v. Kijakazi, No. 1:21-cv-03070-MKD, 2023 WL 2558148, at
9 *6 (E.D. Wash. Jan. 3, 2023) (quoting SSR 17-2P, 2017 WL 3928306, at *4 (effective March 27,
10 2017)). Accord, Lewis, 236 F.3d at 513 (“Although he did not recite it in his decision’s brief
11 ‘Findings,’ the ALJ did note in his ‘Statement of the Case’ repeated evidence that Lewis did not
12 comply with his prescribed treatment.”).
13 Here, the ALJ’s analysis at step four of the sequential analysis provides sufficient
14 evidence for the Court to determine the basis of his finding of the “paragraph C” criteria. For
15 example, the ALJ noted that Plaintiff underwent behavioral therapy throughout 2018 and 2019 for
16 his depression, mood instability, and anxiety. (AR 26) (citing AR 386, 390, 487, 504-22). The
17 ALJ further found that during a consultative examination in June 2018, Plaintiff was able to
18 independently attend to his personal hygiene, make basic meals, displayed fair insight and
19 judgment (AR 374, 491), which were impaired by his impulsivity and poor coping skills. (AR 26
20 citing AR 401, 525). The ALJ found that following treatment and medication, Plaintiff noted
21 improvements to the severity and frequency of his suicidal ideations as well as his auditory and
22 visual hallucinations. (AR 26 citing AR 491). The ALJ’s favorable treatment of Doctors Collado,
23 Franco, and Stafford also informs this Court’s consideration of the basis for the paragraph C
24 finding. These doctors found that Plaintiff did display social imitations but was nonetheless able
25 to work a normal workday and associated stresses with some moderate impairment. (AR 27) see
26 (AR 474-75, 77, 85).
27 The Court concludes the ALJ’s finding that Plaintiff did not meet the “paragraph C”
1 Accordingly, the Court finds no error at step three of the sequential analysis.
2 B. Whether the ALJ Erred by Failing to Provide Specific, Clear and Convincing
3 Reasons to Reject Plaintiff’s Testimony
4 Plaintiff’s next challenges the ALJ’s consideration of his subjective symptom allegations.
5 He claims that the ALJ did not provide “specific, clear and convincing reasons” to reject his
6 statements about the severity of his symptoms and their impact on his ability to work. (Doc. 15 p.
7 27).
8 “In evaluating the credibility of a claimant’s testimony regarding subjective pain, an ALJ
9 must engage in a two-step analysis.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009)
10 (citation omitted). The ALJ must first determine whether the claimant has presented objective
11 medical evidence of an underlying impairment which could reasonably be expected to cause the
12 severity of the symptoms the claimant alleges. Id. The claimant does not need to show that her
13 impairment “could reasonably be expected to cause the severity of the symptom she has alleged;
14 she need only show that it could reasonably have caused some degree of the symptom.” Id.
15 (quotation and citation omitted). If the claimant meets this first step, and there is no evidence of
16 malingering, the ALJ can only reject the claimant’s testimony about the severity of the symptoms
17 if the ALJ gives “specific, clear and convincing reasons” for the rejection. Id. (quotation and
18 citation omitted).
19 The ALJ may consider numerous factors in weighing a claimant’s credibility, including
20 “(1) ordinary techniques of credibility evaluation, such as the claimant’s reputation for lying,
21 prior inconsistent statements concerning the symptoms, and other testimony by the claimant that
22 appears less than candid; (2) unexplained or inadequately explained failure to seek treatment or to
23 follow a prescribed course of treatment; and (3) the claimant’s daily activities.” Smolen v.
24 Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). In evaluating the credibility of symptom testimony,
25 the ALJ must also consider the factors identified in Social Security Ruling (SSR) 16-3P.5 Id.
26 (citing Bunnell v. Sullivan, 947 F.2d 341, 346 (9th Cir. 1991)). Accord Bray v. Comm’r of Soc.
27
5 Smolen cites to SSR 88-13, which has since been superseded by SSR 16-3P (available at 2017
1 Sec. Admin., 554 F.3d 1219, 1226 (9th Cir. 2009). These factors include:
2 (1) Daily activities; (2) The location, duration, frequency, and intensity of
pain or other symptoms; (3) Factors that precipitate and aggravate the
3 symptoms; (4) The type, dosage, effectiveness, and side effects of any
medication an individual takes or has taken to alleviate pain or other
4 symptoms; (5) Treatment, other than medication, an individual receives
or has received for relief of pain or other symptoms; (6) Any measures
5 other than treatment an individual uses or has used to relieve pain or other
symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes
6 every hour, or sleeping on a board); and (7) Any other factors concerning
an individual’s functional limitations and restrictions due to pain or other
7 symptoms.
8 SSR 16-3P at *7. See 20 C.F.R. § 404.1529(c)(3). If the ALJ’s finding is supported by
9 substantial evidence, the court may not engage in second-guessing. Tommasetti, 533 F.3d at 1039
10 (citations and internal quotation marks omitted).
11 The clear and convincing standard is “not an easy requirement to meet,” as it is “‘the most
12 demanding required in Social Security cases.’” Garrison, 759 F.3d at 1015 (quoting Moore v.
13 Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). “A finding that a claimant’s
14 testimony is not credible must be sufficiently specific to allow a reviewing court to conclude the
15 adjudicator rejected the claimant’s testimony on permissible grounds and did not arbitrarily
16 discredit a claimant’s testimony regarding pain.” Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th
17 Cir. 2015) (citation and internal quotation marks omitted).
18 “The fact that a claimant’s testimony is not fully corroborated by the objective medical
19 findings, in and of itself, is not a clear and convincing reason for rejecting it.” Vertigan v. Halter,
20 260 F.3d 1044, 1049 (9th Cir. 2001). See also 20 C.F.R. § 404.1529(c)(2) (“[W]e will not reject
21 your statements about the intensity and persistence of your pain or other symptoms or about the
22 effect your symptoms have on your ability solely because the objective medical evidence does not
23 substantiate your statements.”). Rather, where a claimant’s symptom testimony is not fully
24 substantiated by the objective medical record, the ALJ must provide additional reasons for
25 discounting the testimony. Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005). “The ALJ
26 must specify what testimony is not credible and identify the evidence that undermines the
27 claimant’s complaints – ‘[g]eneral findings are insufficient.’” Id. (quoting Reddick v. Chater, 157
1 However, the medical evidence “is still a relevant factor in determining the severity of the
2 claimant’s pain and its disabling effects.” Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir.
3 2001). The Court of Appeals has distinguished testimony that is “uncorroborated” by the medical
4 evidence from testimony that is “contradicted” by the medical records, and concluded that
5 contradictions with the medical records, by themselves, are enough to meet the clear and
6 convincing standard. Hairston v. Saul, 827 Fed. Appx. 772, 773 (9th Cir. 2020) (quoting
7 Carmickle v. Comm’r of Soc. Sec., 533 F.3d 1155, 1161 (9th Cir. 2008)).
8 Here, the ALJ’s ruling summarized Plaintiff’s subjective symptom testimony as follows:
9 The claimant alleged schizoaffective disorder and depressive
disorder. [AR 254]. At the hearing he testified to a transient living
10 situation. He testified that he previously worked at temporary job
agencies; however, voices in his head and visions cause him to
11 believe that his co-workers were trying to hurt him. He testified that
he hears auditory hallucinations daily. He testified that the
12 medication does minimize the hallucinations but does not stop them
completely. He testified that these voices make it difficult for him to
13 interact with others.
14 (AR 25). The ALJ acknowledged that Plaintiff had a history of health facility admission, as well
15 as a history of mental health treatment, which both improved his symptoms. (AR 26 citing AR
16 490-94; 386, 390, 407; 487; 504-522). The ALJ further found that in addition to Plaintiff’s
17 improvements, Plaintiff’s memory and thought processes enabled him to work uncomplicated
18 jobs with certain limitations. (AR 26 citing 373-74; 377- 86, 477). The ALJ also found that due to
19 his symptoms, Plaintiff was limited to occasional interaction with co-workers, supervisors, and no
20 public interaction or work in the vicinity of the public. Id. (citing AR 372-73, 401; 525, 477).
21 Plaintiff argues that the ALJ failed to link portions of the record to demonstrate which of
22 Plaintiff’s statements were undermined by the record. (Doc. 15 p. 28, citing inter alia Holohan v.
23 Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001)) (holding that an ALJ “must specifically identify
24 the testimony she or he finds not to be credible and must explain what evidence undermines that
25 testimony.”) The ALJ’s ruling does identify Plaintiff’s subjective statements and does point to
26 portions of the record that purportedly undermines them. As set forth above, the ALJ
27 acknowledged Plaintiff’s testimony that he experienced auditory hallucinations, which cause him
1 testimony that the medication he takes diminishes the hallucinations but does not stop them
2 completely. (AR 25). However, Plaintiff correctly points out that many of the ALJ’s citations do
3 not lend any support to his conclusion that his symptoms have significantly improved. For
4 example, some of the ALJ’s citations reference a Turning Point treatment plan submitted by
5 Rochelle Smith on March 14, 2018. (AR 384, 390, 487). The citations reference only to the
6 treatment plan’s objectives to reduce Plaintiff’s symptoms, but the treatment plans do not
7 comment whether Plaintiff had experienced any improvement. (AR 384-88; 390).
8 Likewise, the ALJ cites to treatment notes by Sarina Singhi on June 19, 2018. (AR 407).
9 The treatment notes state that Plaintiff reported no change in his hallucinations or paranoia.
10 Plaintiff further reported that his Clonidine was not helping. (AR 407). The treatment notes
11 further reported that “[t]he meds helped with sleep, nothing else.” Id. The Court is unable to
12 discern, and the ALJ’s ruling provides no explanation regarding how these treatment notes from
13 Turning Point are evidence that Plaintiff’s symptoms have been improving with treatment.
14 Another of the ALJ’s citations refers to a Turning Point treatment plan which was
15 submitted on October 30, 2019, by Patricia Castillo. (AR 506-515). The treatment plan reported
16 that Plaintiff was at a high risk of decompensation; however, the plan stated that Plaintiff’s report
17 of paranoid delusions and hallucinations sounded rehearsed, and the drafter suspected that he was
18 malingering. (AR 513, 515). The ALJ’s reliance on this report is further cast in doubt by another
19 report drafted on January 21, 2020, indicating that Plaintiff relapsed into methamphetamine abuse
20 three to four days earlier and once again reported hallucinations and delusions. (AR 522). The
21 ALJ’s ruling does not explain how this treatment plan credibly undermines Plaintiff’s symptom
22 testimony.
23 However, at least one portion of the record relied upon by the ALJ does apply generally
24 to his discounting of Plaintiff’s testimony. In particular, the ALJ cited a discharge summary by
25 Dr. Nicholas Bechel, D.O. (“Dr. Bechel”), authored on September 4, 2019. (AR 490-493).
26 According to Dr. Bechel, Plaintiff was admitted to Community Health Centers on August 26,
27 2019, and discharged on September 4, 2019. (AR 490). The report states that Plaintiff was seen
1 and peers. However, he noted improvement to severity and frequency of suicidal ideations as well
2 as auditory and visual hallucinations.” (AR 491). The report further noted that Plaintiff’s
3 hallucinations had nearly dissipated entirely and that he denied receiving commands from his
4 hallucinations. Id.
5 Although Dr. Bechel’s treatment notes do support the ALJ’s conclusion that Plaintiff’s
6 symptoms improved, the brief period of recovery pointed out by the ALJ (less than one week)
7 does not constitute clear and convincing evidence to reject Plaintiff’s allegations. Where mental
8 issues are concerned, “it is error to reject a claimant’s testimony merely because symptoms wax
9 and wane in the course of treatment.” Garrison, 759 F.3d at 1017. An ALJ provides clear and
10 convincing reasons for disregarding a claimant’s subjective symptom testimony by charting a
11 course of improvement through description of symptoms, course of treatment and bouts of
12 remissions. Id. at 1018. In contrast, an ALJ commits error when they isolate a few short-lived
13 periods of temporary mental health improvements as evidence that undermines their subjective
14 testimony. Id. Here, although the ALJ did provide a detailed overview of Plaintiff’s medical
15 history, “providing a summary of medical evidence . . . is not the same as providing clear and
16 convincing reasons for finding the claimant’s symptom testimony not credible.” Lambert v. Saul,
17 980 F.3d 1266, 1277-78 (9th Cir. 2020) (quoting Brown-Hunter, 806 F.3d at 494).
18 Out of the record citations referenced by the ALJ, only Dr. Bechel’s discharge notes
19 arguably undermined Plaintiff’s symptom testimony by noting improvements after a short bout of
20 treatment. (AR 491). This short window of improvement does not provide clear and convincing
21 reasons for discounting Plaintiff’s testimony regarding his hallucinations and paranoia. The Court
22 is unable to discern the ALJ’s path because he merely made a credibility finding relating to
23 Plaintiff’s improvements without further explanation as to how his citations contradicted
24 Plaintiff’s testimony. Brown-Hunter, 806 F.3d at 494. Although the ALJ provided a detailed
25 summary of the medical record, his ruling does not provide an explanation as to how certain parts
26 of the administrative record undermine Plaintiff’s subjective symptom testimony. Nor does the
27 ALJ’s ruling chart a course of improvement, but instead, summarily concludes that Plaintiff’s
1 | required to point to specific facts in the record to support a finding of lack of credibility and this
2 | Court neither may accept general findings or unspecified conflicts nor comb the administrative
3 | record to find specific conflicts. Vasquez, 572 F.3d at 592; Burrell, 775 F.3d at 1133.
4 The ALJ’s error of discounting Plaintiff’s testimony without an adequate basis for support
5 | warrants remand as the Court cannot substitute its conclusions for the ALJ’s, nor can it speculate
6 | as to the grounds for the ALJ’s conclusions.
7 IV. CONCLUSION AND ORDER
8 Based on the foregoing reasons, the Court finds that the ALJ did not provide clear and
9 | convincing reasons for discounting Plaintiff's symptom testimony.
10 Accordingly, IT IS HEREBY ORDERED that Plaintiff's appeal from the decision of the
11 | Commissioner of Social Security (Doc. 15) is GRANTED, the ALJ’s decision is VACATED, and
12 | this matter is remanded to the Commissioner of Social Security for further proceedings consistent
13 || with this order.
14 The Clerk of the Court is DIRECTED to enter judgment in favor of Plaintiff John Michael
15 | Smith and against Defendant Commissioner of Social Security.
16 | IT IS □□ ORDERED.
'7 | Dated: _ January 18, 2024 | br Pr
18 UNITED STATES MAGISTRATE JUDGE
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