Lewis v. Kijakazi

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7 UNITED STATES DISTRICT COURT

8 NORTHERN DISTRICT OF CALIFORNIA

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10 CRYSTAL L.,1 Case No. 22-cv-05180-TSH

11 Plaintiff,

ORDER RE: CROSS-MOTIONS FOR

12 v. SUMMARY JUDGMENT

13 KILOLO KIJAKAZI, Re: Dkt. Nos. 23, 31

14 Defendant.

15

16 I. INTRODUCTION

17 Plaintiff Crystal L. moves for summary judgment to reverse the decision of Defendant

18 Kilolo Kijakazi, Acting Commissioner of Social Security, denying Plaintiff’s claim for disability

19 benefits under the Social Security Act, 42 U.S.C. § 401 et seq. ECF No. 23. Defendant cross-

20 moves to affirm. ECF No. 31. Pursuant to Civil Local Rule 16-5, the matter is submitted without

21 oral argument. Having reviewed the parties’ positions, the Administrative Record (“AR”), and

22 relevant legal authority, the Court hereby GRANTS Plaintiff’s motion and DENIES Defendant’s

23 cross-motion for the following reasons.2

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1 Partially redacted in compliance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the

recommendation of the Committee on Court Administration and Case Management of the Judicial

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Conference of the United States.

1 II. PROCEDURAL HISTORY

2 On July 10, 2020, Plaintiff filed an application for Social Security Disability Insurance and

3 Supplemental Security Income benefits with a disability onset date of January 20, 2019. AR 339-

4 342. Following denial at the initial and reconsideration levels, Plaintiff requested a hearing before

5 an Administrative Law Judge (“ALJ”). AR. 268-69. An ALJ held a hearing on June 21, 2021 and

6 issued an unfavorable decision on August 4, 2021. AR 20-33. The Appeals Council denied

7 Plaintiff’s request for review on August 2, 2022. AR 1-7. Plaintiff now seeks review pursuant to

8 42 U.S.C. § 405(g).

9 III. ISSUES FOR REVIEW

10 Plaintiff raises two issues on appeal: (1) the ALJ Residual Functional Capacity (“RFC”)

11 determination is not supported by substantial evidence; and 2) the Vocational Witness (“VW”)

12 testimony was of no evidentiary value and legally insufficient.

13 IV. STANDARD OF REVIEW

14 42 U.S.C. § 405(g) provides this Court’s authority to review the Commissioner’s decision

15 to deny disability benefits, but “a federal court’s review of Social Security determinations is quite

16 limited.” Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015). “An ALJ’s disability

17 determination should be upheld unless it contains legal error or is not supported by substantial

18 evidence.” Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) (citations omitted). Under this

19 standard, the Court looks to the existing administrative record and asks “whether it contains

20 ‘sufficient evidence’ to support the agency’s factual determinations.” Biestek v. Berryhill, 139 S.

21 Ct. 1148, 1154 (2019) (simplified). Substantial means “more than a mere scintilla,” but only

22 “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”

23 Id. (simplified).

24 The Court “must consider the entire record as a whole, weighing both the evidence that

25 supports and the evidence that detracts from the Commissioner’s conclusion, and may not affirm

26 simply by isolating a specific quantum of supporting evidence.” Garrison, 759 F.3d at 1009

27 (citation omitted). “The ALJ is responsible for determining credibility, resolving conflicts in

1 can reasonably support either affirming or reversing a decision,” the Court may not substitute its

2 own judgment for that of the ALJ.” Id. (citation omitted).

3 Even if the ALJ commits legal error, the ALJ’s decision will be upheld if the error is

4 harmless. Molina v. Astrue, 674 F.3d 1104, 1111, 1115 (9th Cir. 2012). “[A]n error is harmless

5 so long as there remains substantial evidence supporting the ALJ’s decision and the error does not

6 negate the validity of the ALJ’s ultimate conclusion.” Id. (simplified). But “[a] reviewing court

7 may not make independent findings based on the evidence before the ALJ to conclude that the

8 ALJ’s error was harmless.” Brown-Hunter, 806 F.3d at 492. The Court is “constrained to review

9 the reasons the ALJ asserts.” Id. (simplified).

10 V. DISCUSSION

11 A. Framework for Determining Whether a Claimant Is Disabled

12 A claimant is considered “disabled” under the Social Security Act if two requirements are

13 met. See 42 U.S.C. § 423(d); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). First, the

14 claimant must demonstrate “an inability to engage in any substantial gainful activity by reason of

15 any medically determinable physical or mental impairment which can be expected to result in

16 death or which has lasted or can be expected to last for a continuous period of not less than 12

17 months.” 42 U.S.C. § 423(d)(1)(A). Second, the impairment or impairments must be severe

18 enough that the claimant is unable to perform previous work and cannot, based on age, education,

19 and work experience “engage in any other kind of substantial gainful work which exists in the

20 national economy.” Id. § 423(d)(2)(A).

21 The regulations promulgated by the Commissioner of Social Security provide for a “five-

22 step sequential evaluation process.” 20 C.F.R. § 404.1520(a)(1) (disability insurance benefits); id.

23 § 416.920(a)(4) (same standard for supplemental security income). This process ends when the

24 ALJ can make a finding that the claimant is or is not disabled. Id. § 404.1520(a)(4). The claimant

25 bears the burden of proof at steps one through four. Ford v. Saul, 950 F.3d 1141, 1148 (9th Cir.

26 2020) (citation omitted).

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

1 involves significant mental or physical activities.” Ford, 950 F.3d at 1148 (simplified). Here, the

2 ALJ determined Plaintiff had not performed substantial gainful activity since January 20, 2019.

3 AR 25.

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

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

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

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

8 20 C.F.R. § 404.1520(c). Here, the ALJ determined Plaintiff had the following severe

9 impairments: degenerative disc disease; asthma; and essential hypertension. AR 25.

10 At step three, the ALJ evaluates whether the claimant has an impairment or combination of

11 impairments that meets or equals an impairment in the “Listing of Impairments” (referred to as the

12 “listings”). See 20 C.F.R. § 404.1520(a)(4)(iii); 20 C.F.R. Pt. 404 Subpt. P, App. 1. The listings

13 describe impairments that are considered “to be severe enough to prevent an individual from doing

14 any gainful activity.” Id. § 404.1525(a). Each impairment is described in terms of “the objective

15 medical and other findings needed to satisfy the criteria of that listing.” Id. § 404.1525(c)(3).

16 “For a claimant to show that his impairment matches a listing, it must meet all of the specified

17 medical criteria. An impairment that manifests only some of those criteria, no matter how

18 severely, does not qualify.” Sullivan v. Zebley, 493 U.S. 521, 530 (1990) (footnote omitted). If a

19 claimant’s impairment either meets the listed criteria for the diagnosis or is medically equivalent

20 to the criteria of the diagnosis, he is conclusively presumed to be disabled, without considering

21 age, education, and work experience. 20 C.F.R. § 404.1520(d). Here, the ALJ determined

22 Plaintiff did not have an impairment or combination of impairments meeting the listings. AR 29.

23 If the claimant does not meet or equal a listing, the ALJ proceeds to step four and assesses

24 the claimant’s RFC, defined as the most the claimant can still do despite their limitations (20

25 C.F.R. § 404.1545(a)(1)), and determines whether they are able to perform past relevant work,

26 defined as “work that [the claimant has] done within the past 15 years, that was substantial gainful

27 activity, and that lasted long enough for [the claimant] to learn to do it.” 20 C.F.R. §

1 relevant work, the claimant is not disabled. Id. § 404.1520(f). Here, the ALJ determined Plaintiff

2 has the RFC to perform “light work, as defined in 20 C.F.R. 404.1560(b) and 416.967(b), except

3 she should avoid concentrated exposure to respiratory irritants.” AR 29. Based on the RFC, the

4 ALJ concluded that Plaintiff “is capable of performing past relevant work as a quality control

5 technician (012.261-014, SVP 7, light, performed at medium). This work does not require the

6 performance of work-related activities precluded by the claimant’s residual functional capacity.”

7 AR 32.

8 At step five, the burden shifts to the agency to prove that “‘the claimant can perform a

9 significant number of other jobs in the national economy.’” Ford, 950 F.3d at 1149 (quoting

10 Thomas v. Barnhart, 278 F.3d 947, 955 (9th Cir. 2002)). To meet this burden, the ALJ may rely

11 on the Medical-Vocational Guidelines (commonly known as “the grids”), 20 C.F.R. Pt. 404 Subpt.

12 P, App. 2,3 or on the testimony of a vocational expert. Ford, 950 F.3d at 1149 (citation omitted).

13 “[A] vocational expert or specialist may offer expert opinion testimony in response to a

14 hypothetical question about whether a person with the physical and mental limitations imposed by

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

16 either as the claimant actually performed it or as generally performed in the national economy.”

17 20 C.F.R. § 404.1560(b)(2). An ALJ may also use other resources such as the Dictionary of

18 Occupational Titles (“DOT”).4 Id. Here, the ALJ determined that, even if precluded from her

19 prior skilled work, Plaintiff would be able to perform unskilled light work and thus would not be

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3 The grids “present, in table form, a short-hand method for determining the availability and

numbers of suitable jobs for a claimant.” Lounsburry v. Barnhart, 468 F.3d 1111, 1114-15 (9th

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Cir. 2006) (citing Tackett, 180 F.3d at 1101). They consist of three tables, for sedentary work,

light work, and medium work, and a claimant’s place on the applicable table depends on a matrix

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of four factors: a claimant’s age, education, previous work experience, and physical ability. Id.

“For each combination of these factors, [the grids] direct a finding of either ‘disabled’ or ‘not

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disabled’ based on the number of jobs in the national economy in that category of physical-

exertional requirements.” Id.

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4 The Dictionary of Occupational Titles by the United States Department of Labor, Employment &

Training Administration, may be relied upon “in evaluating whether the claimant is able to

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perform work in the national economy.” Terry v. Sullivan, 903 F.2d 1273, 1276 (9th Cir. 1990).

The DOT classifies jobs by their exertional and skill requirements and may be a primary source of

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information for the ALJ or Commissioner. 20 C.F.R. § 404.1566(d)(1). The “best source for how

1 considered disabled. AR 32-33.

2 B. New Evidence Submitted to Appeals Council

3 Plaintiff submitted to the Appeals Council medical records which were not submitted to

4 the ALJ. These documents encompass medical records from Marin Community Clinic, dated June

5 9, 2021 through December 23, 2021, as well as a December 29, 2021 medical source opinion from

6 Kiere Eichelberger, Ph.D. AR 2, 10-13, 39-160. Plaintiff argues this evidence should be

7 considered part of the administrative record for the Court to consider when reviewing the ALJ’s

8 decision. Pl’s Mot. at 3.

9 “[W]hen the Appeals Council considers new evidence in deciding whether to review a

10 decision of the ALJ, that evidence becomes part of the administrative record, which the district

11 court must consider when reviewing the Commissioner’s final decision for substantial evidence.”

12 Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1163 (9th Cir. 2012); see also Harman v.

13 Apfel, 211 F.3d 1172, 1180 (9th Cir. 2000) (“[W]e properly may consider the additional evidence

14 presented to the Appeals Council in determining whether the Commissioner’s denial of benefits is

15 supported by substantial evidence . . . .”). Here, the Appeals Council stated that the additional

16 evidence provided by Plaintiff did “not show a reasonable probability that it would change the

17 outcome of the decision. We did not exhibit this evidence.” AR 2. While somewhat ambiguous,

18 the Court interprets this statement to mean that the Appeals Council considered the new evidence.

19 See, e.g., Franz v. Comm’r of Soc. Sec., No. 2:21-CV-583-KJN, 2022 WL 4537991, at *4 (E.D.

20 Cal. Sept. 28, 2022) (“The undersigned construes this as indicating Dr. Vega’s statement was in

21 fact considered—otherwise the court cannot understand how the Council could have concluded the

22 opinion would not have changed the outcome.”); Blancett v. Saul, No. 1:20-CV-00253-SKO, 2021

23 WL 1736880, at *4 (E.D. Cal. May 3, 2021) (collecting cases and determining that the most

24 plausible interpretation of the Appeals Council’s explanation – that the evidence did not show a

25 reasonable probability that it would change the outcome of the case and they did not consider and

26 exhibit evidence – was that the Council did, in fact, consider the additional evidence); Linnehan v.

27 Berryhill, No. 17-CV-04146-JSC, 2018 WL 6267846, at *8 (N.D. Cal. July 31, 2018) (“The

1 probability that it would change the outcome of the decision’ and then exclude the evidence from

2 the record based on the illogical conclusion that ‘[w]e did not consider and exhibit this

3 evidence.’”). As such, the Court considers the additional evidence in determining whether, in light

4 of the record as a whole, the ALJ’s decision is supported by substantial evidence.

5 C. Plaintiff’s Subjective Testimony

6 Plaintiff argues primarily that the ALJ erred in discounting Plaintiff’s symptoms for back

7 pain, mental impairment, and pedal edema and this discrediting impacted the RFC determination.

8 Pl.’s Mot. at 4-13. The ALJ determined that Plaintiff’s testimony regarding these conditions could

9 reasonably be expected to cause the type of alleged symptoms, but that Plaintiff’s testimony

10 regarding “the intensity, persistence and limiting effect of these symptoms are not found

11 consistent with the medical evidence and other evidence in the record to the extent inconsistent

12 with the findings herein for the reasons explained in this decision.” AR 30.

13 1. Legal Standard

14 “In evaluating the credibility of a claimant’s testimony regarding subjective pain, an ALJ

15 must engage in a two-step analysis. ‘First, the ALJ must determine whether the claimant has

16 presented objective medical evidence of an underlying impairment which could reasonably be

17 expected to produce the pain or other symptoms alleged.’” Vasquez v. Astrue, 572 F.3d 586, 591

18 (9th Cir. 2009) (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007)). And

19 second, “if the claimant meets the first test and there is no evidence of malingering, the ALJ can

20 only reject the claimant’s testimony about the severity of the symptoms if she gives ‘specific, clear

21 and convincing reasons’ for the rejection.” Vasquez, 572 F.3d at 591 (quoting Smolen v. Chater,

22 80 F.3d 1273, 1282 (9th Cir. 1996)). “At the same time, the ALJ is not required to believe every

23 allegation of [symptoms], or else disability benefits would be available for the asking, a result

24 plainly contrary to 42 U.S.C. § 423(d)(5)(A).” Molina, 674 F.3d at 1112 (citation and internal

25 quotations omitted). Along the same lines, “an individual’s statements of symptoms alone are not

26 enough to establish the existence of a physical or mental impairment or disability.” SSR 16-3P,

27 2016 WL 1119029, at *2. The clear and convincing standard “isn’t whether our court is

1 convince.” Smartt v. Kijakazi, 53 F.4th 489, 499 (9th Cir. 2022).

2 2. Analysis

3 a. Lumbar Spine Impairments

4 The ALJ noted Plaintiff’s testimony regarding her back pain during which she stated the

5 pain feels like vertebrae are “rubbing together” and that her “disc will slide out” and her muscles

6 “lock up.” AR 30. However, the ALJ found that Plaintiff had only minimal treatment for her

7 back, and that her April 16, 2021 x-rays revealed only mild degenerative spondylosis. AR 30.

8 Plaintiff argues that the ALJ’s reasons for discounting Plaintiff’s allegations regarding back pain

9 were not supported by the overall evidence and points, in part, to new evidence in the form of an

10 MRI dated 11 days after the ALJ’s decision. Pl.’s Mot. at 5.

11 This Court finds that the additional evidence submitted to the Appeals Council calls into

12 question the ALJ’s conclusions regarding Plaintiff’s subjective pain. First, the new evidence has a

13 bearing on the ALJ’s reliance on Plaintiff’s conservative treatment. The ALJ found “the claimant

14 only has had minimal treatment for this condition during the relevant period. She is prescribed

15 only ibuprofen and topical lidocaine patches . . . .” AR 30. “[E]vidence of ‘conservative

16 treatment’ is sufficient to discount a claimant’s testimony regarding severity of an impairment.”

17 Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007) (citing Johnson v. Shalala, 60 F.3d 1428,

18 1434 (9th Cir. 1995)). However, at the time of the hearing Plaintiff had an appointment with Dr.

19 Robert Byers for her back pain. AR 60. Dr. Byers and Plaintiff met in July 2021, and he ordered

20 an MRI, which occurred on August 15, 2021. AR 40, 44. Upon review of the August 2021 MRI,

21 Dr. Byers then prescribed additional treatment, including injections for core-strengthening and

22 physical therapy. AR 46. Although Dr. Byers’ determination regarding treatment occurred after

23 the ALJ’s decision, the initial appointment with Dr. Byers occurred prior to the ALJ decision, and

24 the Court finds the closeness in time supports that the MRI and resulting treatment plan relates to

25 her condition during the relevant time period. See Newman A. v. Berryhill, No. 17-CV-03010-

26 JSC, 2019 WL 1385900, at *9 (N.D. Cal. Mar. 27, 2019) (deeming doctor’s opinion relevant

27 where it related to treatment given before the ALJ’s decision); Cuadras v. Astrue, No. 2:10-CV-

1 decision were related to the relevant period where the records post-dated the decision by less than

2 two months and referred to conditions and symptoms that manifested well prior to the ALJ’s

3 decision). This additional prescribed treatment of injections and physical therapy cuts against the

4 ALJ’s conclusion that Plaintiff was only provided minimal treatment. See Hunter v. Berryhill, No.

5 CV 17-6006-PLA, 2018 WL 4026995, at *15 (C.D. Cal. Aug. 21, 2018) (collecting cases and

6 finding two epidural injections and a ganglion block was not conservative treatment); see also

7 Garrison, 759 F.3d 995, 1015 n.20 (expressing “doubt that epidural steroid shots to the neck and

8 lower back qualify as ‘conservative’ medical treatment”); Yang v. Barnhart, No. ED CV 04-958-

9 PJW, 2006 WL 3694857, at *4 (C.D. Cal. Dec. 12, 2006) (finding physical therapy, epidural

10 injections, and pain medication did not evidence conservative treatment for back pain).

11 Further, the new evidence potentially impacts the weight the ALJ gave Plaintiff’s recent x-

12 ray. In discounting Plaintiff’s back pain the ALJ referred to Plaintiff’s April 16, 2021 x-ray,

13 which the ALJ noted “revealed only mild degenerative spondylosis.” AR 30. The ALJ compared

14 Plaintiff’s April 16, 2021 x-ray with a 2014 MRI and suggested Plaintiff’s condition was

15 unchanged. AR 31. Cursory review of Plaintiff’s August 15, 2021 MRI provides evidence that

16 Plaintiff’s spinal condition deteriorated at least some after the 2014 MRI. Compare AR 44 (2021

17 MRI reflecting disc degeneration at L2-L3, disc degeneration and moderate loss of disc height as

18 well as mild-to-moderate left foraminal stenosis at L3-L4), with AR 750 (2014 MRI reflecting that

19 L2-L3 and L3-L4 are “normal”). This new evidence potentially negates the ALJ’s reliance on the

20 April 2021 x-ray. See Colmenero v. Berryhill, No. 1:16-cv-00649-GSA, 2018 WL 3689319, at

21 *12 (E.D. Cal. Aug. 3, 2018) (“When a claimant’s condition is deteriorating, the most recent

22 evidence is most probative.”) (citing Stone v. Heckler, 761 F.2d 530, 532 (9th Cir. 1982)). In light

23 of the new evidence and its relevance, this Court cannot conclude that the April 2021 x-ray is a

24 clear and convincing reason to find Plaintiff’s back pain less severe than she reports. See

25 Carmickle v. Colvin, 645 F. App’x 575, 576 (9th Cir. 2016) (“In light of this report and the other

26 evidence the Appeals Council added to the record, which the ALJ never had the opportunity to

27 consider, we cannot conclude that substantial evidence supports the ALJ’s decision.”).

1 homeless shelter where she resides as a reason to discount the severity of her pain. AR 30. The

2 Court concludes this activity does not provide a clear and convincing reason to discount her

3 symptoms testimony. “An adverse credibility finding based on activities may be proper ‘if a

4 claimant engages in numerous daily activities involving skills that could be transferred to the

5 workplace.’” Jones v. Berryhill, No. 18-CV-01857-WHO, 2019 WL 4645170, at *15 (N.D. Cal.

6 Sept. 24, 2019) (quoting Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007)). The Ninth Circuit has

7 “repeatedly warned that ALJs must be especially cautious in concluding that daily activities are

8 inconsistent with testimony about pain, because impairments that would unquestionably preclude

9 work and all the pressures of a workplace environment will often be consistent with doing more

10 than merely resting in bed all day.” Garrison, 759 F.3d at 1016. Here, Plaintiff testified that the

11 activity took about six hours, she was on her feet about an hour and a half to two hours, and upon

12 completing this chore her feet swelled up and her back locked. AR 180. The activity appears to

13 occur only once a week. See AR 179 (“[Y]ou say you have a day they ask you to do laundry?

14 Yes.”). Given the limited time she was on her feet, the infrequency of the task, and the resulting

15 pain, the Court does not consider Plaintiff’s ability to complete seven loads of laundry to be a

16 sound basis to discount her back pain. To the extent the ALJ relied on Plaintiff’s laundry chore as

17 a reason to discount her testimony regarding the intensity, persistence, and limiting effects of her

18 conditions, that reliance was not supported by clear and convincing reasons.

19 In light of the new evidence and the error in the ALJ’s consideration of Plaintiff’s daily

20 activities, the Court does not find clear and convincing reasons to discount Plaintiff’s back pain

21 symptoms. It is also clear that the ALJ’s RFC assessment was impacted by his weighing of

22 Plaintiff’s back pain testimony. As discussed below, remand is appropriate. See Cantrell v.

23 Comm’r of Soc. Sec. Admin., 543 F. App’x 653, 654 (9th Cir. 2013) (remanding where ALJ

24 discounted plaintiff’s self-reporting related to degenerative disc disease based on a lack of

25 supporting medical evidence and the Appeals Council incorporated an x-ray showing multilevel

26 degenerative changes which the court concluded “may have implications for the agency’s reasons

27 for denying benefits.”); Janice D. H. v. Saul, No. CV 18-08010-RAO, 2019 WL 7050220, at *13

1 of Plaintiff’s condition not previously before the ALJ and warranted remand).

2 b. Mental Impairments

3 Plaintiff also argues that the ALJ did not provide clear and convincing reasons for rejecting

4 Plaintiff’s subjective symptoms testimony regarding her mental impairments. Pl’s Mot. at 8.

5 Plaintiff testified that her medication for depression and anxiety “has lessened it, but it hasn’t

6 alleviated it.” AR 177. She testified she still gets insomnia and will be up for 24 hours. AR 177.

7 She testified that it does not take much for her to get anxiety and feel like she is going to explode.

8 AR 178. She testified that she just stays in bed as much as possible and away from people. AR

9 178. In assessing Plaintiff’s subjective symptoms regarding mental health, the ALJ noted that

10 Plaintiff admitted her medication helps, but that her mental impairments cause insomnia,

11 forgetfulness, and social isolation. AR 30. The ALJ stated that these allegations were

12 unsupported by the medical evidence of record where Plaintiff’s mental status examinations were

13 consistently normal for the relevant period and the PHQ-9 and GAD-7 scores showed no more

14 than mild symptoms after the first two months of mental health treatment.5 AR 30.

15 Just as with Plaintiff’s lower back pain, this Court finds that the additional evidence

16 submitted to the Appeals Council negates the reasons the ALJ provided to dismiss Plaintiff’s

17 reported symptoms. The ALJ noted that Plaintiff’s mental status examinations were consistently

18 normal for the relevant period, which the Court finds an appropriate consideration. See 20 C.F.R.

19 § 404.1529(c)(2) (when evaluating symptoms, ALJ considers consistency with objective medical

20 evidence); see also Linda Jean T. v. Saul, No. 19-CV-07738-DMR, 2021 WL 1893137, at *6

21 (N.D. Cal. May 11, 2021) (“As to the first reason, the ALJ wrote that Plaintiff’s mental status

22 examinations do not support the degree of limitation alleged. The court finds that this is a

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5 “The Patient Health Questionnaire known as the ‘PHQ-9’ ‘is a[n] instrument for making

criteria-based diagnoses of depressive and other mental disorders commonly encountered in

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primary care.’” Norman v. Berryhill, No. 17-CV-04108-SI, 2018 WL 4519952, at *2 (N.D. Cal.

Sept. 19, 2018) (quoting Kurt Kroenke, MD, et al., The PHQ-9: Validity of a Brief Depression

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Severity Measure, 16 J. Gen. Intern. Med. 606 (2001)). “Like the PHQ-9, the Generalized Anxiety

Disorder (‘GAD’)-7 is a self-administered diagnostic instrument to measure anxiety severity.”

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Buechner v. Saul, No. 20-CV-379-WMC, 2021 WL 457610, at *2 n.3 (W.D. Wis. Feb. 9, 2021)

1 specific, clear and convincing reason to discount Plaintiff’s testimony; as discussed above,

2 treatment notes by Dr. Krishnan, Dr. Lee, and Model consistently reflect mental status

3 examinations that were largely within normal limits.”); Paulette N. v. Saul, No. 20-CV-04950-SK,

4 2021 WL 4902421, at *7 (N.D. Cal. Oct. 21, 2021) (finding normal mental status examination,

5 along with failure to seek treatment and lack of mental health treatment notes, met the “specific,

6 clear, and convincing standard required to discount Plaintiff’s testimony regarding her mental

7 health impairments.”). However, records submitted to the Appeals Council but not before the ALJ

8 show that Plaintiff’s mental status examinations waned, and on June 9, 2021, Dr. Eichelberger’s

9 mental status examination reflected that her mood was “depressed anxious.” AR 99. On August

10 4, 2021, Dr. Jamie Sanders reported in Plaintiff’s mental status examination an anxious mood,

11 thought content of preoccupations and ruminations, and cognition marked by impairment of fund

12 of knowledge and short-term memory. AR 111.

13 Further, while the ALJ also noted that Plaintiff’s PHQ-9 and GAD-7 scores reflected only

14 mild symptoms after the first two months of treatment, additional evidence shows that on July 23,

15 2021, Plaintiff registered a GAD-7 score reflecting moderate anxiety. AR 101. GAD-7 and PHQ-

16 9 scores after the ALJ’s determination, while less relevant, also reflect moderate to severe anxiety

17 and depression. See AR 119, 131, 142, 147. Plaintiff’s scores reflecting moderate depression and

18 anxiety do not provide support to discount her testimony. See Michael F. v. Kijakazi, No. 3:20-

19 CV-00524-AHG, 2021 WL 4473176, at *9-10 (S.D. Cal. Sept. 30, 2021) (citing PHQ-9 scores in

20 the moderate depression range as part of conclusion that plaintiff’s mental impairments were

21 moderate to moderately severe); cf. Smartt, 53 F.4th at 498 (“When objective medical evidence in

22 the record is inconsistent with the claimant’s subjective testimony, the ALJ may indeed weigh it as

23 undercutting such testimony.”).

24 Additionally, Plaintiff’s new evidence complicates the ALJ’s final cited reason for

25 discounting Plaintiff’s testimony – that Plaintiff’s condition improved with treatment. AR 27.

26 Improvement with treatment is an appropriate consideration in assessing subjective symptoms. 20

27 C.F.R. § 404.1529(c)(3)(iv)-(v) (effectiveness of medication to alleviate pain as well as treatment

1 improvement with medication, but argues that this improvement occurred during times she was

2 removed from the stress of a job environment. Pl.’s Mot. at 8-9. The Court recognizes that

3 “[r]eports of ‘improvement’ in the context of mental health issues must be interpreted with an

4 understanding of the patient’s overall well-being and the nature of her symptoms.” Garrison, 759

5 F.3d at 1017. “Cycles of improvement and debilitating symptoms are a common occurrence, and

6 in such circumstances it is error for an ALJ to pick out a few isolated instances of improvement

7 over a period of months or years and to treat them as a basis for concluding a claimant is capable

8 of working.” Id. Here, the Court agrees with Plaintiff that her improvement does not appear to

9 have been consistent, as the new evidence suggests that it was possibly influenced by

10 circumstance. The ALJ understandably did not take into account Plaintiff’s regression in mental

11 health symptoms, as he did not have access to these records.

12 In light of the new evidence, the Court finds that the ALJ’s determination is not supported

13 by clear and convincing reasons. As discussed below, remand is appropriate, and, as with

14 Plaintiff’s lower back pain, while the Court does not conclude that consideration of the evidence

15 will necessarily result in benefits, it is clear that the ALJ’s RFC assessment was impacted by his

16 weighing of Plaintiff’s mental health testimony. See Cantrell, 543 F. App’x at 654.

17 c. Pedal Edema Impairment

18 Plaintiff also argues that the ALJ improperly discounted the subjective pain testimony

19 regarding her pedal edema. Pl.’s Mot. at 11-12. Plaintiff testified that her legs begin to swell if

20 she stands for more than an hour. AR 30. The ALJ found the persistence and severity of

21 Plaintiff’s symptoms were inconsistent with the record evidence, specifically Plaintiff’s edema did

22 not meet the durational requirements and her testimony noted improvement. AR 30. The Court

23 finds, in light of the additional evidence presented to the Appeals Council that was not before the

24 ALJ, the ALJ’s reasoning is no longer clear and convincing.

25 The ALJ stated that Plaintiff’s pedal edema did not meet the durational requirement of

26 severity because it was first reported May 2020, last observed July 1, 2020, and last discussed

27 January 20, 2021. AR 30. In determining the severity requirement was not met, the ALJ stated

1 references to the issue therafter. AR 26. The ALJ noted that on January 20, 2021 the treating

2 physician reduced Plaintiff’s Lasix to every other day. AR 26. In the evidence submitted to the

3 Appeals Council, Plaintiff produced new evidence of an appointment with Dr. Maria Webster-

4 Longin on July 13, 2021, where there was report of leg swelling and it was noted that it improved

5 with daily lasix. AR 71. The Court finds Plaintiff’s new evidence directly bears on the ALJ’s

6 finding that the pedal edema had resolved as of January 20, 2021 and thus the ALJ’s conclusion

7 that the pedal edema resolved cannot be a clear and convincing reason to discount Plaintiff’s

8 symptoms. See Neal B. v. Saul, No. 2:19-CV-03283-MAA, 2020 WL 2468763, at *3 (C.D. Cal.

9 May 13, 2020) (holding that an ALJ’s findings were unsupported by substantial evidence because

10 the ALJ found that the plaintiff had a “possible” diagnosis of multiple sclerosis and the plaintiff

11 produced to the Appeals Council records showing a diagnosis of MS).

12 With new evidence negating the ALJ’s conclusion that the pedal edema resolved, the Court

13 finds that the ALJ has not otherwise provided clear and convincing reasons for discounting

14 Plaintiff’s testimony. The ALJ refers to notes of improvement in her pedal edema, but does not

15 further explain why this improvement is inconsistent with Plaintiff’s testimony regarding her pain.

16 See Alejandra V. O. v. Saul, No. 20CV1634-AJB-LL, 2021 WL 3022671, at *8 (S.D. Cal. July 16,

17 2021), (finding same), report and recommendation adopted sub nom. Alejandra V. O. v. Kijakazi,

18 No. 20-CV-01634-AJB-LL, 2021 WL 8153633 (S.D. Cal. Aug. 26, 2021). Plaintiff’s additional

19 evidence suggests that she still had ongoing issues with pedal edema. With regard to lack of

20 treatment after January 20, 2021, the record does not show that the ALJ considered possible

21 reasons for Plaintiff’s lack of treatment. See Soc. Sec. Ruling 16-3p Titles II & XVI: Evaluation of

22 Symptoms in Disability Claims, SSR 16-3P (S.S.A. Oct. 25, 2017) (An ALJ will not find the

23 intensity or persistence of an individual’s symptoms inconsistent with the record on the basis of

24 the frequency of treatment sought by an individual without considering the possible reasons she

25 may have sought treatment consistent with the degree of her complaints). Plaintiff’s testimony

26 that her legs “look like human legs,” rather than “elephant legs” does not contradict her additional

27 testimony that her legs swelled if she stood for more than an hour. Compare Berry v. Astrue, 622

1 in completing tasks because plaintiff made contradicting statements to medical staff that he

2 engaged in many activities). As discussed above, the Court does not consider Plaintiff’s weekly

3 chore of laundry to be a daily activity providing a clear and convincing reason to discount the

4 severity of Plaintiff’s symptoms. Plaintiff testified that after completing the task, where she was

5 on her feet for between 90 minutes and two hours, her feet were swollen and painful such that she

6 had her shoes off during the testimony the next day. AR 179-180.

7 As such, the Court finds that the new evidence regarding Plaintiff’s symptoms calls into

8 question the ALJ’s reasons for concluding Plaintiff’s pedal edema symptoms were less severe than

9 she reported. The ALJ’s findings regarding Plaintiff’s symptoms had a direct impact on the ALJ’s

10 assessment of her RFC as the ALJ did not factor Plaintiff’s pedal edema into the RFC

11 determination. As discussed below, remand is appropriate.

12 D. Residual Functional Capacity Determination and New Evidence

13 RFC is the most a claimant can do despite his limitations. 20 C.F.R. § 404.1545(a)(1). It

14 is assessed by considering all the relevant evidence in a claimant’s case record. Id. When a case

15 is before an ALJ, it is the ALJ’s responsibility to assess a claimant’s RFC. 20 C.F.R. §

16 404.1546(c); see also Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001) (“It is clear that it is

17 the responsibility of the ALJ, not the claimant’s physician, to determine residual functional

18 capacity.”). “Generally, the more consistent an opinion is with the record as a whole, the more

19 weight [the ALJ] will give to that opinion.” 20 C.F.R. § 416.927(c)(4).

20 Plaintiff argues that Dr. Eichelberger’s December 29, 2021 report should be considered

21 and reflects more severe mental impairment than was assessed for Plaintiff’s RFC. Pl’s Motion at

22 10. Dr. Eichelberger was Plaintiff’s treating psychologist from June 2021 through December

23 2021, and submitted a report dated December 29, 2021 stating, in part, that she did not believe that

24 Plaintiff was capable of sustaining competitive work and would reasonably be absent from work

25 five times a month or more. AR 12-13. Although Dr. Eichelberger’s report was completed after

26 the ALJ’s decision on August 4, 2021, the Court finds that it relates to the period before the ALJ’s

27 decision as it specifically states it covers the period January 2019 to August 2021. See Baker v.

1 established case law, evidence dated after an ALJ’s decision can still be related to the period

2 before the ALJ’s decision.”) (collecting cases). As Dr. Eichelberger’s report was completed over

3 four months after the ALJ’s determination, it is also considered less persuasive. See Macri v.

4 Chater, 93 F.3d 540, 544 (9th Cir. 1996) (“Dr. Hanbery’s 1993 reports were issued after the

5 Commissioner’s decision, so they are less persuasive.”). Plaintiff traces the origins of the Macri

6 decision, and argues it is inapplicable because in the original authority, Key v. Heckler, the

7 plaintiff sought an expert’s opinion after the ALJ’s decision. Pl’s Reply at 4. There is no debate

8 that in Macri, a published Ninth Circuit opinion, the Court found the treating physician’s report

9 less persuasive because of its date of issuance. See Macri, 93 F.3d at 544. Thus, the Court finds

10 such authority applicable and provides Dr. Eichelberger’s opinion should be afforded less weight.

11 However, that Dr. Eichelberger’s report is afforded less persuasive effect is not to say that

12 Dr. Eichelberger’s report is afforded no persuasive effect. This case is similar to Brewes. 682

13 F.3d at 1163-64. There, a vocational expert testified that if a person with the plaintiff’s

14 characteristics were to miss two or more days of work per month, she would be unemployable, but

15 that otherwise plaintiff would be able to work a number of jobs. The ALJ relied on the vocational

16 expert and concluded that plaintiff could work a number of jobs and was not disabled. Id. at 1163.

17 In response, the plaintiff submitted a letter from her treating psychologist and nurse practitioner

18 detailing her diagnosis and explaining that it was likely she would miss quite a few days a month.

19 Id. Incorporating this letter into the record as it was considered by the Appeals Council, the Ninth

20 Circuit concluded that the ALJ’s findings were unsupported by substantial evidence given the

21 contents of the letter. Id. at 1164.

22 Here, there may be basis to give Dr. Eichelberger’s report less weight based on its timing

23 and its lack of detail. However, the Court finds that, with the inclusion of Dr. Eichelberger’s

24 opinion specifically responding to the testimony of the vocational expert, there is not substantial

25 evidence in support of the ALJ’s RFC assessment. In finding Plaintiff’s impairments non-severe

26 and in finding persuasive the opinions of State agency psychiatric consultants Dr. R.A. Tyl and

27 Dr. S. Jacobson assessing only mild limitations, the ALJ specifically cited that Plaintiff exhibited

1 The ALJ also remarked that Plaintiff has exhibited consistent improvement with mild symptoms

2 and normal mental status examination for most of the relevant period. AR 28. Based on the most

3 recent records submitted to the ALJ, Plaintiff’s mental status examination reflected a mood of

4 “anxious other: mild, improved.” AR 780. As discussed above, the records submitted to the

5 Appeals Council show that Plaintiff’s mental health symptoms waned, and on June 9, 2021, Dr.

6 Eichelberger’s mental status examination reflected that her mood was “depressed anxious.” AR

7 99 (June 9, 2021 mental status examination reflecting “depressed anxious” mood); AR 101 (July

8 23, 2021 GAD-7 score registering moderate anxiety); AR 111 (August 4, 2021 mental status

9 examination reflecting an anxious mood, thought content of preoccupations and ruminations, and

10 cognition marked by impairment of fund of knowledge and short-term memory). In light of this

11 additional medical evidence negating the ALJ’s reliance on Plaintiff’s improvement of mental

12 symptoms, the Court finds that Dr. Eichelberger’s assessment may well be considered consistent

13 and supported by the record.

14 While it is not clear from the record that the ALJ would be required to award benefits

15 based on Dr. Eichelberger’s assessment, the ALJ is the appropriate adjudicator to resolve this new

16 and potentially conflicting evidence. See Hall v. Berryhill, 717 F. App’x 708, 711 (9th Cir. 2017)

17 (remanding based on a therapist’s addendum noting plaintiff would miss more than one day of

18 work per month, but noting “[i]t is not clear from the administrative record that the ALJ would be

19 required to award benefits if the medical evidence were reevaluated with Mr. Arnold’s November

20 2011 addendum to his July 2011 opinion.”).

21 E. Vocational Witness Testimony

22 Plaintiff also argues that the VW testimony was of no evidentiary value and legally

23 insufficient. AR 13-14. Plaintiff’s arguments on this point, however, rely heavily on her

24 arguments that the ALJ erred in assessing Plaintiff’s limitations related to mental health, lumber

25 spine impairment, and lower back impairment. Because the Court agrees that additional evidence

26 submitted to the Appeals Council calls into question the ALJ’s determination of these limitations,

27 the Court remands on this issue as well. On remand, the ALJ must ensure that the VW testimony

1 F. Remedy

2 The remaining question is whether to remand for further administrative proceedings or for

3 the immediate payment of benefits. The Social Security Act permits courts to affirm, modify, or

4 || reverse the Commissioner’s decision “with or without remanding the case for a rehearing.” 42

5 U.S.C. § 405(g); see also Garrison, 759 F.3d at 1019. “[W]here the record has been developed

6 || fully and further administrative proceedings would serve no useful purpose, the district court

7 should remand for an immediate award of benefits.” Benecke v. Barnhart, 379 F.3d 587, 595 (9th

8 Cir. 2004). However, “[r]emand for further proceedings is appropriate where there are

9 outstanding issues that must be resolved before a disability determination can be made, and it is

10 || not clear from the record that the ALJ would be required to find the claimant disabled if all the

11 evidence were properly evaluated.” Luther v. Berryhill, 891 F.3d 872, 877-78 (9th Cir. 2018)

12 (citations omitted). It is only “rare circumstances that result in a direct award of benefits” and

5 13 “only when the record clearly contradicted an ALJ’s conclusory findings and no substantial

14 || evidence within the record supported the reasons provided by the ALJ for denial of benefits.”

3 15 Leon vy. Berryhill, 880 F.3d 1041, 1047 (9th Cir. 2017).

16 Here, the ALJ did not have the opportunity to consider pertinent evidence when evaluating

3 17 || Plaintiffs disability claim, but it is not clear that the ALJ would be required to find Plaintiff

18 disabled. Accordingly, remand for further proceedings is appropriate.

19 VI. CONCLUSION

20 For the reasons stated above, the Court GRANTS Plaintiffs motion, DENIES

21 Defendant’s cross-motion, and REVERSES the ALJ’s decision. This matter is REMANDED for

22 || further administrative proceedings consistent with this order. The Court shall enter a separate

23 || judgment, after which the Clerk of Court shall terminate the case.

24 IT IS SO ORDERED.

25

26 Dated: November 21, 2023

27 ° | A ZN | □□

28 THOMAS S. HIXSON

United States Magistrate Judge