Stewart v. Kijakazi

1

2

3

4 UNITED STATES DISTRICT COURT

5 NORTHERN DISTRICT OF CALIFORNIA

6 EUREKA DIVISION

7

8 EMILY S.,1 Case No. 22-cv-01331-RMI

9 Plaintiff,

ORDER RE: CROSS-MOTIONS FOR

10 v. SUMMARY JUDGMENT

11 KILOLO KIJAKAZI, Re: Dkt. Nos. 18, 19

12 Defendant.

13

14 INTRODUCTION

15 Plaintiff seeks judicial review of an administrative law judge (“ALJ”) decision denying her

16 application for disability insurance benefits under Title II of the Social Security Act. See Admin.

17 Rec. at 1372-1387.2 In October of 2018, Plaintiff filed an application for Title II benefits alleging

18 an onset date of January 3, 2018.3 Id. at 207. Plaintiff’s application was denied, as was her request

19 for reconsideration. Id. at 120, 123. An administrative hearing was held before an ALJ on

20 November 14, 2019. Id. at 36-81. On November 27, 2019, the ALJ entered an unfavorable

21 decision, finding Plaintiff not disabled. Id. at 16-27. In June of 2020, the Appeals Council denied

22 Plaintiff’s request for review. Id. at 1-3. Plaintiff sought judicial review of the decision in June of

23 2020 (see id. at 1442-43), and in June of 2021 the parties stipulated to a voluntary remand of the

24

25 1 Pursuant to the recommendation of the Committee on Court Administration and Case Management of the Judicial

Conference of the United States, Plaintiff’s name is partially redacted.

26

2 The Administrative Record (“AR”), which is independently paginated, has been filed in fifty-four attachments to

27 Docket Entry #15. See (dkts. 15-1 through 15-54).

1 case to the Commissioner for further proceedings. See id. at 1446-47.

2 After a hearing in November of 2021 (see id. at 1398-1437), an ALJ issued a second

3 unfavorable decision on December 6, 2021, finding Plaintiff not disabled. Id. at 1372-87. A few

4 months later, in March of 2022, Plaintiff sought review in this court (see Compl. (dkt. 1) at 1-2)

5 and the instant case was initiated. Because Plaintiff did not file written exceptions within thirty

6 days of the ALJ’s decision nor did the Appeals Council otherwise assume jurisdiction within sixty

7 days without written exceptions being filed (see 20 C.F.R § 404.984(a)), the ALJ’s decision is the

8 “final decision” of the Commissioner of Social Security which this court may review. See 24

9 U.S.C. §§ 405(g), 1383(c)(3). Both parties have consented to the jurisdiction of a magistrate judge

10 (dkts. 3 & 10), and both parties have moved for summary judgment (dkts. 18 & 19). For the

11 reasons stated below, Plaintiff’s motion is GRANTED, and Defendant’s motion is DENIED.

12 LEGAL STANDARDS

13 The Commissioner’s findings “as to any fact, if supported by substantial evidence, shall be

14 conclusive.” 42 U.S.C. § 405(g). A district court has a limited scope of review and can only set

15 aside a denial of benefits if it is based on legal error. Flaten v. Sec’y of Health and Human Servs.,

16 44 F.3d 1453, 1457 (9th Cir. 1995). The phrase “substantial evidence” appears throughout

17 administrative law and directs courts in their review of factual findings at the agency level. See

18 Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019). Substantial evidence is defined as “such

19 relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id.

20 (quoting Consol. Edison Co. v. NRLB, 305 U.S. 197, 229 (1938)); see also Sandgathe v. Chater,

21 108 F.3d 978, 979 (9th Cir. 1997). “In determining whether the Commissioner’s findings are

22 supported by substantial evidence,” a district court must review the administrative record as a

23 whole, considering “both the evidence that supports and the evidence that detracts from the

24 Commissioner’s conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). The

25 Commissioner’s conclusion is upheld where evidence is susceptible to more than one rational

26 interpretation. See Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).

27

1 SUMMARY OF THE RELEVANT EVIDENCE

2 Plaintiff raises three claims, the first two of which assign error to the ALJ’s evaluation of

3 Plaintiff’s testimony and the testimony of two third-party witnesses. See Pl.’s Mot. (dkt. 18) at 5,

4 14-22.4 Accordingly, the following is a summary of the evidence relevant to those claims.

5 Plaintiff’s Testimony

6 2019 Hearing

7 At the administrative hearing held in November of 2019, Plaintiff testified to the

8 following: she can prepare food for herself (AR at 53); she drives roughly twice per month and, on

9 a two-day, ten-hour road trip she found it was more comfortable to drive than to be a passenger

10 (id.); she goes to the store once a week (id.); she can perform self-care, but does so much less

11 frequently (e.g., washes about once per week) (id. at 55); she watches television (id. at 55-56); she

12 cannot focus enough to read, despite her love for it (id. at 56); she listens to music when she does

13 not have a headache (id.); housework is challenging, with sometimes more than a week passing

14 between doing things such as washing dishes (id.); she takes care of an elderly dog, which she

15 walks around the block and occasionally slightly further (id. at 56-57); she took a six-day trip to

16 California (id. at 57); she took a four-day trip to Florida, but it was a “horrible . . . terrible

17 decision” as she spent half of the trip in the condominium and needed assistance from TSA after

18 her “body just completely stopped working” (id. at 57-58, 68); she talks on the phone on days that

19 she feels well (id. at 58); she walks to nearby restaurants and/or a movie theater with her husband

20 once a week (id.); she takes wellness classes at the rape crisis center (id. at 59); she takes the bus

21 roughly two times per week, unless she is having a bad week (id.); she socializes once every

22 couple of weeks (id.); she had a foster child for four months in 2018, but the child attempted

23 suicide and Plaintiff is no longer a licensed foster parent (id. at 62); she has migraines

24 approximately six to eight times per month (id. at 66); she has found Zoloft helpful for her

25 anxiety, although not so much for her depression (id. at 63); her daily pain level is at an eight on a

26 ten-point scale (id. at 69); her pain and fatigue require her to lie down frequently, sometimes for

27

1 an entire day, and she structures her day so that she can spend at least two hours of it in bed (id. at

2 69-70); and, when she is “stable” she does not spend all day crying or get into arguments (id. at

3 70-71).

4 2021 Hearing

5 At the hearing in November of 2021, Plaintiff testified that: “intense pain” and “intense

6 anxiety and depression” prevented her from working full-time (id. at 1410); she attempted to work

7 as an online tutor for three to four hours per week, but this was “extraordinarily challenging” as

8 she had to cancel a session at least once a week (id.); she attempted working as a dog sitter, but the

9 physical exertion was “too much” (id.); she would have issues lifting anything repetitively other

10 than a piece of paper and a pencil (id. at 1411); she can only sit for fifteen minutes before needing

11 to change positions (id.); at least twice a week her pain is such that she cannot walk just over a

12 block to the grocery store (id. at 1412); she had to put down her elderly dog because she could not

13 care for it anymore (id. at 1413); being in public situations is “extraordinarily hard” (id. at 1414);

14 grocery shopping is “very hard” because it takes her a long time to read labels, the smells are

15 overwhelming, and it is “extremely challenging” when people talk to her in the store (id.); she

16 orders out at least three days a week because she is unable to cook (id. at 1415); her migraines are

17 triggered by stress, smells, food, temperature, and light (particularly indoor, fluorescent lighting)

18 (id. at 1415-16); her migraines last for several days, during which she cancels everything and stays

19 in bed (id. at 1417); she began “gentle yoga classes,” but stopped after three weeks due to pain (id.

20 at 1417-18); her post-traumatic stress disorder (“PTSD”) is triggered by authority, and she often

21 “lash[es] out” at people (id. at 1419); she has “keyed” cars simply for blocking the crosswalk (id.);

22 her depression often makes it hard for her to get out of bed, and she cries “at the drop of a hat”

23 (id.); she fidgets constantly, which makes others uncomfortable (id.); she is “easily startled” and

24 frequently screams out loud in her apartment building (id. at 1420); she has difficulty interacting

25 with men: she will cross the street when men are coming, has refused to be seen by a male doctor,

26 and specifically sought out a female divorce attorney (who allegedly quit because of how Plaintiff

27 treated her) (id. at 1420-21); she tried to complete a “yoga teacher training,” but was

1 and refused to attend check-ins with the teachers (id. at 1421).

2 Third-Party Testimony

3 Rebecca Stewart, Plaintiff’s sister, submitted a third-party statement to the following:

4 Plaintiff is volatile, reactionary, and often yells and/or cries in hard conversations or when difficult

5 topics arise (id. at 1690-91); she makes small issues into large crises (id.); she does not have

6 control over her emotions (id.); the combination of her physical and mental issues make it difficult

7 for her to do things consistently (id.); she lets dishes pile up and frequently cancels plans because

8 she is too tired, in too much pain, or lacks the energy (id.); she could not accomplish tasks

9 requested by her divorce attorneys without help from family members (id.).

10 Linda McSweeney, a teaching assistant in a graduate course that Plaintiff briefly attended,

11 also submitted a third-party statement which, among other things, included several emails between

12 herself and Plaintiff regarding Plaintiff’s inability to participate in class (id. at 846-50).

13 THE FIVE-STEP SEQUENTIAL ANALYSIS FOR DETERMINING DISABILITY

14 A person filing a claim for social security disability benefits (“the claimant”) must show

15 that she has the “inability to do any substantial gainful activity by reason of any medically

16 determinable impairment” which has lasted or is expected to last for twelve or more months. See

17 20 C.F.R §§ 416.920(a)(4)(ii), 416.909. The ALJ must consider all evidence in the claimant’s case

18 record to determine disability (see id. at § 416.920(a)(3)) and must use a five-step sequential

19 evaluation process to determine whether the claimant is disabled. Id. at § 416.920; see also id. at §

20 404.1520. While the claimant bears the burden of proof at steps one through four (see Ford v.

21 Saul, 950 F.3d 1141, 1148 (9th Cir. 2020)), “the ALJ has a special duty to fully and fairly develop

22 the record and to assure that the claimant’s interests are considered.” Brown v. Heckler, 713 F.2d

23 441, 443 (9th Cir. 1983). Here, the ALJ appropriately set forth the applicable law regarding the

24 required five-step sequential evaluation process. AR at 1373-74.

25 At step one, the ALJ must determine if the claimant is presently engaged in “substantial

26 gainful activity” (20 C.F.R § 404.1520(a)(4)(i)), which is defined as work done for pay or profit

27 and involving significant mental or physical activities. See Ford, 950 F.3d at 1148. Here, the ALJ

1 AR at 1374-75.

2 At step two, the ALJ decides whether the claimant’s impairment (or combination of

3 impairments) is “severe” (see 20 C.F.R. § 404.1520(a)(4)(ii)), “meaning that it significantly limits

4 the claimant’s ‘physical or mental ability to do basic work activities.’” Ford, 950 F.3d at 1148

5 (quoting 20 C.F.R. § 404.1522(a)). If no severe impairment is found, the claimant will not be

6 found to be disabled. 20 C.F.R. § 404.1520(c). Here, the ALJ determined that Plaintiff had the

7 following severe impairments: fibromyalgia, degenerative disc disease, migraine headaches,

8 anxiety, depression, and PTSD. AR at 1375. The ALJ found the following conditions to be non-

9 severe: left wrist fracture, endometriosis, obstructive sleep apnea, asthma, temporomandibular

10 joint disorder (“TMJ”), and gastroesophageal reflux disease (“GERD”). Id.

11 At step three, the ALJ is tasked with evaluating whether the claimant has an impairment or

12 combination of impairments that meet or equal an impairment in the “Listing of Impairments.” See

13 20 C.F.R. § 404.1520(a)(4)(iii); 20 C.F.R. Pt. 404 Subpt. P, App. 1. The listings describe

14 impairments that are considered sufficiently severe so as to prevent any individual so afflicted

15 from performing any gainful activity. Id. at § 404.1525(a). Each impairment is described in terms

16 of “the objective medical and other findings needed to satisfy the criteria in that listing.” Id. at §

17 404.1525(c)(3). In order for a claimant to show that his or her impairment matches a listing, it

18 must meet all of the specified medical criteria—an impairment that manifests only some of those

19 criteria, no matter how severely, does not “meet” that listing. See Sullivan v. Zebley, 493 U.S. 521,

20 530 (1990). If an impairment either meets the listed criteria, or if one or more impairments are

21 determined to be medically equivalent to the severity of that set of criteria, that person is

22 conclusively presumed to be disabled without a consideration of age, education, or work

23 experience. See 20 C.F.R. § 404.1520(d). Here, the ALJ determined that Plaintiff did not have an

24 impairment or combination of impairments that meets or equals the criteria or the severity of any

25 of the listings. AR at 1376-78.

26 If a claimant does not meet or equal a listing, the ALJ must formulate the claimant’s

27 residual functional capacity (“RFC”), which is defined as the most that a person can still do

1 ALJ determined that Plaintiff retained the ability to perform work at the light exertional level,

2 subject to limitations with respect to hazard exposure (unprotected heights; mechanical vibrations;

3 proximity to moving mechanical parts) and environmental conditions (occasional exposure to

4 humidity and extreme cold), with an additional limitation allowing for no more than frequent

5 interactions with people in the workplace, supervisors, coworkers, and the public. AR at 1378.

6 Following the formulation of the RFC, the ALJ must determine—at step four—whether the

7 claimant is able to perform her past relevant work, which is defined as “work that [the claimant

8 has] done within the past 15 years, that was substantial gainful activity, and that lasted long

9 enough for [the claimant] to learn to do it.” See 20 C.F.R. § 404.1560(b)(1). If the ALJ

10 determines, based on the RFC, that the claimant can perform her past relevant work, the claimant

11 will not be found disabled. Id. at § 404.1520(f). Otherwise, at step five, the burden shifts to the

12 agency to prove that the claimant can perform a significant number of jobs that are available in the

13 national economy. See Ford, 950 F.3d at 1149. To meet this burden, the ALJ may rely on the

14 Medical-Vocational Guidelines (commonly referred to as “the grids”) (20 C.F.R. Pt. 404 Subpt. P,

15 App. 2); or, alternatively, the ALJ may rely on the testimony of a vocational expert (“VE”).

16 Ford, 950 F.3d at 1149 (citation omitted). A VE may offer expert opinion testimony in response to

17 hypothetical questions about whether a person with the physical and mental limitations imposed

18 by the claimant’s medical impairment(s) can meet the demands of the claimant’s previous work,

19 either as the claimant actually performed it or as generally performed in the national economy, or

20 the demands of other jobs that may be available in the national economy. See 20 C.F.R. §

21 404.1560(b)(1). An ALJ may also use other resources for this purpose, such as the Dictionary of

22 Occupational Titles (“DOT”). Id.

23 At step four, the ALJ determined—based on the VE’s testimony—that Plaintiff could not

24 perform her past relevant work as a teacher, library media specialist, administrative clerk, small

25 business owner, or waitress. AR at 1385. At step five, again based on the VE’s testimony, the ALJ

26 determined that Plaintiff can perform the requirements of a line attendant, product sorter, or

27 conveyer tender. Id. at 1385-86. Accordingly, the ALJ determined that Plaintiff had not been

1 DISCUSSION

2 The ALJ in the present case erred in the formulation of Plaintiff’s RFC—and beyond. The

3 essence of this error is twofold: first, the ALJ failed to properly assess Plaintiff’s pain and

4 symptom testimony as well as the relevant medical testimony; second, the ALJ failed to correctly

5 evaluate the testimony of Plaintiff’s third-party witnesses. These errors are discussed in turn.

6 Plaintiff’s Pain and Symptom Testimony

7 When a claimant has medically documented impairments that “might reasonably produce

8 the symptoms or pain alleged and there is no evidence of malingering, the ALJ must give

9 ‘specific, clear, and convincing reasons for rejecting’ the testimony by identifying ‘which

10 testimony [the ALJ] found not credible’ and explaining ‘which evidence contradicted that

11 testimony.’” Laborin v. Berryhill, 867 F.3d 1151, 1155 (9th Cir. 2017) (quoting Brown-Hunter v.

12 Colvin, 806 F.3d 487, 489, 494 (9th Cir. 2015)). “This is not an easy requirement to meet: ‘the

13 clear and convincing standard is the most demanding required in Social Security cases.’” Garrison

14 v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v. Comm’r of Soc. Sec. Admin., 278

15 F.3d 920, 924 (9th Cir. 2002)). As a matter of law, it is improper “for an ALJ to discredit excess

16 pain testimony solely on the ground that it is not fully corroborated by objective medical

17 findings.” Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986).5

18 Here, the ALJ found that Plaintiff’s impairments could reasonably be expected to cause her

19 alleged symptoms, and there was no evidence of malingering. AR at 1378-79. The ALJ found,

20 however, that Plaintiff’s statements regarding “the intensity, persistence, and limiting effects of

21 these symptoms” were not “entirely consistent with the medical evidence and other evidence in the

22 record . . . .” Id. at 1379. The court finds that the rejection of Plaintiff’s testimony was erroneous

23 in that the explanations provided by the ALJ were neither clear nor convincing—while also often

24 lacking the required level of specificity.

25 Perhaps the most glaring deficiency in the ALJ’s reasoning is his misunderstanding—or

26 misconstruing—of the symptoms associated with Plaintiff’s mental health conditions. Mental

27

1 health conditions are often characterized by the cyclical nature of their symptoms. As such, any

2 improvement or changes in a claimant’s symptoms must be considered in the context of the entire

3 record. See Ghanim v. Colvin, 763 F.3d 1154, 1164 (9th Cir. 2014) (“[T]reatment records must be

4 viewed in light of the overall diagnostic record.”). In fact, the Ninth Circuit has “emphasized while

5 discussing mental health issues, [that] it is error to reject a claimant’s testimony merely because

6 symptoms wax and wane in the course of treatment.” Garrison, 759 F.3d at 1017. Because “cycles

7 of improvement and debilitating symptoms are a common occurrence . . . it is error for an ALJ to

8 pick out a few isolated instances of improvement . . . and to treat them as a basis for concluding

9 that a claimant is capable of working.” Id.

10 The ALJ in the present case made such an error by singling out brief periods of

11 improvement as the basis for discrediting Plaintiff’s mental health testimony. The ALJ cited

12 Plaintiff’s reports that, at various times, certain medications helped her symptoms, as well as “her

13 reported improvement with treatment and intact cognitive functioning.” AR at 1381. The ALJ’s

14 reliance on such reports, however, ignores a plethora of evidence documenting Plaintiff’s

15 continued struggle with multiple mental health conditions and their associated symptoms. See

16 supra pgs. 3-5; see also AR at 362-63, 365, 364-67, 379, 381, 452-53, 450, 570, 572, 715, 780,

17 782, 1725, 1761, 1814, 1830, 1856, 1877, 1885, 1939-40, 2004-05, 2012-13, 2053, 2082, 2101,

18 2112, 2125, 2155-56, 2189, 2201, 2521, 2605, 2943, 3049, 3115. To rely on a few fleeting periods

19 of improvement as the basis for discrediting Plaintiff’s testify was erroneous, as such periods were

20 far outweighed by those which indicated that Plaintiff was struggling immensely. See Lester v.

21 Chater, 81 F.3d 821, 833 (9th Cir. 1995) (“Occasional symptom-free periods—and even the

22 sporadic ability to work—are not inconsistent with disability”). Further, the mere fact that Plaintiff

23 showed signs of improvement after receiving medication and undergoing treatment does not

24 necessarily indicate that she could maintain competitive employment. See Garrison, 759 F.3d at

25 1017 (“[I]mproved functioning while being treated and while limiting environmental stressors

26 does not always mean that a claimant can function effectively in a workplace.”). As the Ninth

27 Circuit has instructed: “While ALJ’s obviously must rely on examples to show that they do not

1 a broader development to satisfy the . . . ‘clear and convincing’ standard.” Id. Such reasoning

2 applies equally well to the present case. On remand, if the ALJ seeks to discredit Plaintiff’s mental

3 health testimony—which, the court wishes to stress, is a tall order—they must do so in accordance

4 with the authorities set forth above.

5 In addition to the improper assessment of Plaintiff’s mental health testimony, much of the

6 rationale behind the rejection of Plaintiff’s remaining testimony also falls short of the required

7 standard. Among other activities, the ALJ rejected Plaintiff’s testimony based on her ability to:

8 [P]erform personal care, read, write, do paperwork, reheat food,

prepare frozen food, do laundry, clean snow off the car, organize,

9 clean, go out alone, drive, shop in stores and online, pay bills, count

change, handle a savings account, use a checkbook or money order,

10 watch television, do yoga, tutor, travel, go away for the weekend with

friends, and care for a foster child.

11

12 AR at 1381. It has routinely been recognized, however, that “[d]isability does not mean that a

13 claimant must vegetate in a dark room excluded from all forms of human and social activity.”

14 Cooper v. Bowen, 815 F.2d 557, 561 (9th Cir. 1987) (quoting Scott v. Astrue, 647 F.3d 734, 739-

15 40 (7th Cir. 2011)). Many activities that a claimant may engage in “are not easily transferable to

16 what may be the more grueling environment of the workplace, where it might be impossible to

17 periodically rest or take medication.” Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989).

18 The ALJ’s explanation fails to satisfy the clear and convincing standard because many, if

19 not most, of these activities are not necessarily inconsistent with disability. After all, a claimant

20 “does not need to be ‘utterly incapacitated’ in order to be disabled.” Vertigan v. Halter, 260 F.3d

21 1044, 1050 (9th Cir. 2001) (quoting Fair, 885 F.2d at 603). If the mere reference to a claimant’s

22 ability to engage in many of the above-mentioned activities were sufficient to reject their

23 testimony, it would be alarmingly difficult to find any claimant disabled. See Kimberlee A. F. v.

24 Kijakazi, No. 21- CV-02290-RMI, 2022 WL 4349036, at *9 (N.D. Cal. Sept. 19, 2022) (“The

25 ALJ’s adverse credibility determination appears to assume that only a perfectly catatonic person

26 (one who cannot read, count coins . . . or watch television) might be eligible for disability

27 assistance.”). The ability to do things like read, write, watch television, prepare frozen food, go out

1 The mere reference to these activities is not enough, the ALJ is required to explain in greater detail

2 how Plaintiff’s ability to engage in these activities is incompatible with disability.

3 The ALJ’s characterizations of many of these activities, moreover, are also abbreviated to

4 the point of being misleading. While citing Plaintiff’s ability to “do yoga,” the ALJ did not clarify

5 that this consisted of only three weeks of “gentle yoga classes” before pain prevented her from

6 continuing. AR at 1417-18.6 Plaintiff’s ability to “travel,” moreover, consisted of approximately

7 two to three short trips over a span of three years, one of which was characterized by Plaintiff as a

8 “horrible . . . terrible decision.” Id. at 57-58, 68. In any case, “[a] generalized statement that travel

9 is inconsistent with a claimant’s alleged limitations is insufficient without indication of what other

10 activities the claimant undertook or how much . . . w[as] required during their travel.” K.G. v.

11 Kijakazi, No. 21-CV-02953-NC, 2022 WL 2207102, at *5 (N.D. Cal. June 21, 2022).7 Finally, the

12 ALJ relied on Plaintiff’s ability to “care for a foster child.” Plaintiff’s care, however, ended after

13 four months because of the foster child’s attempted suicide. Id. at 62. While acknowledging the

14 seriousness of the situation, it is unclear to the court how such a tragic sequence of events could be

15 used as a basis for discrediting the Plaintiff. As discussed, if the ALJ still seeks to reject Plaintiff’s

16 testimony on remand, they must endeavor to provide explanations that are clear and convincing.

17 See Laborin, 867 F.3d at 1155. The ALJ’s current reasoning falls well short of this requirement.

18 Finally, in addition to the failure to provide clear and convincing reasons for rejecting the

19 testimony of Plaintiff, the ALJ also frequently failed to identify with specificity “‘which testimony

20 [the ALJ] found not credible’ and explain[ ] ‘which evidence contradicted that testimony.’”

21 Laborin, 867 F.3d at 1155 (quoting Brown-Hunter, 806 F.3d at 494). For example, the ALJ noted

22 that Plaintiff “testified that she experiences migraines triggered by stress, scents, certain foods,

23 weather, temperature swings, rain, and light exposure.” AR at 1379. The RFC, however, only

24

25 6 In any case, it is worth noting that certain “activities. . . are not necessarily transferable to the work setting with

regard to the impact of pain. A patient may do these activities despite pain for therapeutic reasons, but that does not

26 mean she could concentrate on work despite the pain . . . .” Vertigan, 260 F.3d at 1050.

27 7 See also Ciletti v. Berryhill, No. 17-CV-05646-EMC, 2018 WL 2761873, at *5 (N.D. Cal. June 8, 2018) (“[T]he

ALJ relied on the fact that [Plaintiff] went on a Disney cruise . . . to discredit his testimony . . . That judgment was

1 included a limitation with respect to Plaintiff’s ability to work in humidity and extreme cold. Id. at

2 1378. By including only this limitation, the ALJ apparently credited Plaintiff’s testimony as to the

3 effect that weather and temperature have on her migraines, but discredited Plaintiff’s testimony

4 with respect to her other migraine triggers—yet offered little explanation as to why. The only

5 possible explanation provided by the ALJ was that “[t]he claimant’s improvement with Botox

6 shows her condition is less limited than alleged.” Id. at 1380.8 Such a broad explanation, however,

7 does nothing to address why the ALJ credited certain aspects of Plaintiff’s testimony, but not

8 others. It is unclear how Plaintiff’s apparent improvement with Botox would support her

9 testimony that weather and temperature trigger migraines, but at the same time contradict her

10 testimony as to triggers such as light or scents. This is particularly troubling given Plaintiff’s

11 detailed testimony regarding light exposure (particularly fluorescent lighting) and scents, as well

12 as the numerous examples of how that impacts her daily life. Id. at 1415-16. The court should not

13 be required to piece together, through the limitations included in the RFC, which aspects of

14 Plaintiff’s testimony the ALJ found credible and which he did not. Both the ALJ’s crediting and

15 discrediting of Plaintiff’s testimony must be explained with specificity, it is not enough to simply

16 include (or not include) certain limitations in the RFC without further explanation.

17 Medical Opinions

18 A distinct—but related—issue is the ALJ’s analysis of the relevant medical opinions. Pl.’s

19 Mot. (dkt. 18) at 22-29. As set forth in detail below, the ALJ erred in the evaluation of the medical

20 opinions pertaining to Plaintiff’s mental health. The court also wishes to clarify that, in any

21 ensuing opinion, the ALJ must assess every medical opinion in strict compliance with the

22 requirements of 20 C.F.R. § 404.1520c—as set forth below.

23 Under recently promulgated regulations that apply to Plaintiff’s application,9 ALJs are

24

25 8 In addition to being insufficiently broad, the ALJ’s reasoning in this regard is questionable at best. While moderate

improvements with Botox were seen, the record suggests that Plaintiff could miss anywhere from three to five days of

26 work per month due to migraines. AR at 1380. In fact, Plaintiff testified that she would experience as many as eight

such days per month. Id. at 1417. For reference, the VE testified that consistently missing eight or more hours of work

27 per month (approximately one to two days per month) would preclude competitive employment. Id. at 1428.

1 required to evaluate the “persuasiveness” of all medical opinions according to several factors. See

2 20 C.F.R § 404.1520c(a). The first two factors—supportability and consistency—are considered

3 the most important, and the ALJ is required to explicitly address them in his or her decision. See

4 id. at § 404.1520c(b)(2); see also Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022) (“The

5 agency must . . . explain how [it] considered the supportability and consistency factors in reaching

6 these findings.”). The ALJ “may, but [is] not required to,” explain how he or she considered the

7 remaining factors listed in the regulations. 20 C.F.R. § 404.1520c(b)(2).10

8 These new regulations have supplanted the evaluation scheme that existed under 20 C.F.R.

9 § 404.1527, which included a hierarchy among medical sources, deference to certain medical

10 opinions, and the assignment of weight to all medical opinions. Ninth Circuit caselaw, since

11 overturned, interpreted these former regulations to require “that ALJs provide ‘specific and

12 legitimate reasons’ for rejecting a treating or examining doctor’s opinion . . . .” Woods, 32 F.4th at

13 792. Even under the new regulations, however, an ALJ still “cannot reject an . . . opinion as

14 unsupported or inconsistent without providing an explanation supported by substantial evidence.”

15 Id. (emphasis added); see also 42 U.S.C. § 404.405(g) (“The findings of the Commissioner of

16 Social Security as to any fact, if supported by substantial evidence, shall be conclusive.”).

17 For purposes of providing guidance on remand, the court wishes to identify several (but

18 perhaps not all) of the errors which the ALJ committed in evaluating the relevant medical

19 opinions. For example, the ALJ found the opinion of Abby Middleton, LCSW to be unpersuasive,

20 as it was “not supported by her report that states the claimant gained increased ability to identify

21 and mitigate stressors that may aggravate disabling symptoms.” AR at 1383. The record, however,

22 simply does not support the ALJ’s characterization of Ms. Middleton’s observations. While it is

23 true that Ms. Middleton stated that Plaintiff’s ability to “identify and mitigate stressors” had

24 improved, she certainly did not indicate that Plaintiff would be capable of functioning in a work

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10 The remaining, typically discretionary factors include the medical source’s relationship with the claimant

(comprised of the length, frequency, purpose, and extent of the relationship), relevant specialization(s) of the medical

1 environment. In fact, Ms. Middleton acknowledged that this improvement “does not completely

2 alleviate symptoms and does not cure Ms. Stewart’s diagnoses,” while explicitly finding that

3 Plaintiff had extreme limitations in most work-related activities. Id. at 1323, 1325-28.

4 In rejecting Ms. Middleton’s opinion, the ALJ also relied on the “generally normal

5 findings apart from mood and affect disturbances,” providing a litany of citations from the record

6 which purportedly support this proposition. Id. at 1383. The findings to which the ALJ, cites,

7 however, do not seem “generally normal”—unless consistent diagnoses of major depressive

8 disorder, generalized anxiety disorder, and/or PTSD are considered “generally normal.” Further, it

9 is unclear to the undersigned how Plaintiff’s “mood and affect disturbances” can be differentiated

10 from her underlying diagnoses. Depression and anxiety are certainly conditions that affect an

11 individual’s mood and affect. As such, Plaintiff’s “anxious” or “sad” mood and “weepy,”

12 “expansive,” or “limited” affect seem part and parcel with her underlying conditions. See, e.g., id.

13 at 362, 365, 860. Thus, it is not altogether clear how Plaintiff could have both “mood and affect

14 disturbances” and “generally normal findings.”

15 Next, the ALJ found the opinion of Dr. Thurston unpersuasive, relying on Plaintiff’s own

16 report “that she is able to deal with stress and changes in routine,” as well as Ms. Middleton’s

17 statement that Plaintiff “is able to mitigate and deal with stressors.” Id. at 1384. As for Plaintiff’s

18 ability to “deal with stress and changes in routine,” the ALJ cites to a single instance in which

19 Plaintiff responded “ok” to the following questions on a patient intake form: “How well do you

20 handle stress?”; “How well do you handle changes in routine?” Id. at 258. To rely on such

21 mundane and undetailed responses as the sole basis for finding that Plaintiff can deal with stress

22 and changes in her routine seriously overstates the record. It is also worth noting that the ALJ

23 apparently credited Plaintiff’s testimony in this regard (in other words, where it supported his

24 findings), yet discredited most of her other testimony—without any meaningful analysis as to

25 why. The same concerns also apply to the ALJ’s reliance on the previously-discussed statements

26 of Ms. Middleton about Plaintiff’s ability to mitigate and deal with stressors (statements which, as

27 discussed, were largely taken out of context).

1 all that remains of the mental health opinions are those of State Agency psychological consultants

2 Dr. Jenson and Dr. Rattan. The ALJ found these opinions persuasive for the same reasons that he

3 found Ms. Middleton’s opinion unpersuasive: “[G]enerally normal mental status examination

4 findings other than mood and affect disturbances.” Id. at 1385. As discussed, however, the ALJ’s

5 diminishing of Plaintiff’s mood and affect disturbances appears suspect in the context of mental

6 health conditions such as depression, anxiety, and PTSD. In support of his persuasiveness finding,

7 the ALJ also included the identical set of record citations that was used in rejecting Ms.

8 Middleton’s opinion. Id. at 1385. As noted supra, however, these citations simply do not support

9 the propositions for which the ALJ relies on them. The ALJ’s cursory evaluation of these opinions

10 is particularly concerning given the specific instructions from the Appeals Council to “[g]ive

11 further consideration to the prior administrative findings of Dr. Rattan and Dr. Jensen . . . .” Id. at

12 1372.

13 Furthermore, the ALJ’s evaluation of the State Agency consultants appears inconsistent

14 with the RFC. For example, both consultants found that Plaintiff had “moderate limitations in her

15 ability to . . . interact appropriately with the general public, accept instructions and respond

16 appropriately to criticism from supervisors, and get along with coworkers or peers without

17 distracting them or exhibiting behavioral extremes.” Id. at 1385 (emphasis added). The RFC,

18 however, still provided for “frequent interactions with people in the workplace, supervisors,

19 coworkers, and the public.” Id. at 1378 (emphasis added). It is unclear to the undersigned how the

20 ALJ found the consultants’ opinions persuasive, which included moderate limitations in various

21 areas of workplace interaction, yet still have allowed for frequent interactions of this kind in the

22 workplace. Compare Herb v. Comm’r of Soc. Sec., 366 F. Supp. 3d 441, 446-47 (W.D.N.Y 2019)

23 (finding that an RFC which limited the claimant to occasional interaction with the public and

24 frequent interaction with coworkers and supervisors did not properly account for the claimant’s

25 mild-to-moderate limitations in this regard) (emphasis added). On remand, the ALJ should explain

26 how the RFC incorporates these specific limitations.

27 In any ensuing opinion, the ALJ must address the concerns raised in this Order and in

1 clearly reflect the fact that these issues have been considered and addressed.

2 Third-Party Witness Testimony

3 “Lay testimony as to a claimant’s symptoms or how an impairment affects the claimant’s

4 ability to work is competent evidence that the ALJ must take into account.” Molina v. Astrue, 674

5 F.3d 1104, 1114 (9th Cir. 2012); see also 20 C.F.R. § 404.1529(a) (“We will consider all of your

6 statements about your symptoms, such as pain, and any description your medical sources or

7 nonmedical sources may provide about how the symptoms affect your activities of daily living and

8 your ability to work.”). “[C]ompetent lay witness testimony ‘cannot be disregarded without

9 comment,’ and . . . in order to discount competent lay witness testimony, the ALJ ‘must give

10 reasons that are germane to each witness.’” Molina, 674 F.3d at 1114 (quoting Nguyen v. Chater,

11 100 F.3d 1462, 1467 (9th Cir. 1996) and Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir.1993)).

12 With that being said, however, an ALJ is not required “to discuss every witness’s testimony on a

13 individualized, witness-by-witness basis. Rather, if the ALJ gives germane reasons for rejecting

14 testimony by one witness, the ALJ need only point to those reasons when rejecting similar

15 testimony by a different witness.” Molina, 674 F.3d at 1114; see also Valentine v. Comm’r Soc.

16 Sec., 574 F.3d 685, 694 (9th Cir. 2009) (holding that because “the ALJ provided clear and

17 convincing reasons for rejecting [the claimant’s] own subjective complaints, and because [the lay

18 witness’s] testimony was similar to such complaints, it follows that the ALJ also gave germane

19 reasons for rejecting [the lay witness’s] testimony”).

20 Rebecca Stewart and Linda McSweeney submitted third-party statements on behalf of

21 Plaintiff. The ALJ found these statements unpersuasive for two reasons. First, the ALJ found the

22 statements unpersuasive “because they were not assessed by acceptable medical sources.” AR at

23 1382. The fact that Ms. Stewart and Ms. McSweeney were not acceptable medical sources,

24 however, is irrelevant. An ALJ is required to both consider and discuss competent testimony from

25 lay witnesses. See Molina, 674 F.3d at 1114; Nguyen, 100 F.3d at 1467; Dodrill, 12 F.3d at 919.

26 While the revised regulations alter the assessment of testimony from acceptable medical sources

27

1 (see 20 C.F.R. § 404.1520c),11 they do not alter the above-mentioned requirements for the

2 assessment of testimony from nonmedical sources. To the extent that the ALJ relied on Ms.

3 Stewart and Ms. McSweeney’s status as nonmedical sources as grounds for findings their opinions

4 unpersuasive, this was erroneous. As for the second justification, the ALJ found that “[a]lthough

5 the statements are generally consistent with the claimant’s subjective complaints, as discussed

6 above, her subjective complaints are not consistent with the . . . evidence of record.” AR at 1382.

7 While an ALJ can reject third-party witness testimony by referring to the reasons given for

8 rejecting the claimant’s own testimony, such reasoning must itself be “clear and convincing.” See

9 Valentine, 574 F.3d at 694. As discussed in detail above, the ALJ’s rejection of Plaintiff’s own

10 pain and symptom testimony falls well short of this standard. Therefore, the mere reference to

11 such reasoning is also insufficient to properly reject the testimony of the third-party witnesses. On

12 remand, if the ALJ still seeks to reject the testimony of the third-party witnesses, they must either

13 provide reasons that are germane to each witness or refer to the clear and convincing reasons given

14 for the rejection of Plaintiff’s own testimony.

15 CONCLUSION

16 Accordingly, for the reasons stated herein, Plaintiff’s Motion for Summary Judgment (dkt.

17 18) is GRANTED, Defendant’s Cross-Motion (dkt. 19) is DENIED, and the case is remanded for

18 further proceedings consistent with the findings and conclusions set forth herein. On remand, the

19 ALJ is ORDERED to consider the issues raised in the Plaintiff’s briefing and this Order and to

20 modify any ensuing ALJ opinion such as to clearly reflect the fact that these issues have been

21 considered and addressed under the regulations and pursuant to the case authorities set forth herein

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26 11 The Commissioner argues that under the revised regulations the analysis of third-party statements is no longer

required. Def.’s Mot. (dkt. 19) at 20-23. The revised regulations, however, merely provide that an ALJ “is not required

27 to articulate how [they] consider[] evidence from nonmedical sources using the requirements in paragraphs (a)-(c) in

this section.” 20 C.F.R. § 404.1520c(d). In other words, the revised regulations simply reiterate that an ALJ does not

1 IT IS SO ORDERED.

2 Dated: June 1, 2023

3

R . ILLMAN

4 United States Magistrate Judge

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