Opinion

Student v. Kijakazi

Court
District Court, S.D. California
Filed
Mar 3, 2023
Cited by
0 cases
Authority
More cited than 19.2%

Under 20 C.F.R. § 404.1520c, “an ALJ cannot reject an examining 8 or treating doctor’s opinion as unsupported or inconsistent without providing 9 an explanation supported by substantial evidence.”

How later courts described this case

  • Under 20 C.F.R. § 404.1520c, “an ALJ cannot reject an examining 8 or treating doctor’s opinion as unsupported or inconsistent without providing 9 an explanation supported by substantial evidence.”
  • concluding that claimant’s search for 8 work was not a clear and convincing reason to reject her testimony
  • “[A] finding that 1 support for the severity of his pain”
  • “[A]n ALJ may not 24 reject a claimant’s subjective complaints based solely on a lack of medical 25 evidence to fully corroborate the alleged severity of pain.”

Written by the judges who cited it.

The opinion

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 KIMBERLI M. S., Case No.: 21cv1836-AJB-MDD

12 Plaintiff,

REPORT AND

13 v. RECCOMENDATION RESOLVING

JOINT MOTION FOR JUDICIAL

14 KILOLO KIJAKAZI, Acting

REVIEW IN FAVOR OF

Commissioner of Social Security,

15 PLAINTIFF AND REMANDING TO

Defendant. THE COMMISSIONER

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[ECF NO. 14]

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This report and recommendation is submitted to the United States

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District Judge Anthony J. Battaglia pursuant to 28 U.S.C. § 636(b)(1) and

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Local Civil Rule 72.1(c) of the United States District Court for the Southern

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District of California.

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Kimberli M. S. (“Plaintiff”) filed this action pursuant to 42 U.S.C. §

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405(g) seeking judicial review of the final administrative decision of the

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Commissioner of the Social Security Administration (“Commissioner”)

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regarding Plaintiff’s application for disability benefits and supplemental

1 security income payments. (ECF No. 1). The Administrative Law Judge

2 (“ALJ”) found that Plaintiff was not disabled from the date last insured,

3 January 31, 2013, through August 30, 2020, and denied Plaintiff’s claim for

4 benefits. (AR at 14-26 [Administrative Record “AR”]).

5 Now pending before the Court is the parties’ Joint Motion for Judicial

6 Review filed on October 27, 2022. (ECF No. 14). For the reasons set forth

7 below, the Court RECOMMENDS that judgment be entered REVERSING

8 the decision of the Commissioner and REMANDING this matter for further

9 administrative proceedings consistent with the findings presented herein.

10 I. PROCEDURAL BACKGROUND

11 Plaintiff applied for Title II Social Security Disability Insurance

12 benefits in October 2019 and subsequent Title XVI Supplemental Security

13 Income benefits in November 2019.1 (ECF No. 9 at 14 and AR at 238-46). Her

14 applications originally alleged disability beginning February 2, 2009, when

15 she was 54 years old. (Id. at 238, 240). These claims were denied initially on

16 January 14, 2020, and again upon reconsideration on April 13, 2020. (Id. at

17 141-46). On June 29, 2020, Plaintiff filed a written request for a de novo

18 hearing. (Id. at 147-48). ALJ Andrew Verne presided over the hearing on

19 January 14, 2021. (Id. at 34-70, 178-96). At the hearing, Plaintiff amended

20 her onset date to January 31, 2013 because she did not have any medical

21 records for the years of 2009 to 2013. (AR at 62).

22 Plaintiff appeared at the hearing via telephone, represented by her

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1 The ALJ’s decision states that Plaintiff applied for Title II and Title XVI

25 benefits on October 2, 2019. The Administrative Record states Plaintiff

26 applied for Title II benefits on October 7, 2019, and Title XVI benefits on

November 7, 2019. The date discrepancies do not change the outcome of this

1 counsel, Grant Felbaum. (Id. at 34-70). Plaintiff and Vocational Expert Linda

2 Ferra testified at the hearing. (Id.).

3 On March 9, 2021, ALJ Verne issued a partially favorable decision,

4 finding that Plaintiff was not disabled within the meaning of the Social

5 Security Act prior to August 31, 2020, but she became disabled on that date

6 and continued to be disabled through the date of the ALJ’s decision. (Id. at

7 15). On August 31, 2020, Plaintiff’s age category changed to an individual of

8 advanced age, and there were no longer any jobs Plaintiff could perform that

9 existed in significant numbers. (Id. at 23-25). The ALJ found that Plaintiff

10 was not disabled prior to that date despite having severe impairments

11 concerning her knee, spine, foot, shoulder, and major depressive disorder,

12 because Plaintiff retained the ability to perform certain specified jobs with

13 stated limitations. (Id. at 17-23).

14 On April 23, 2021, Plaintiff requested the Appeals Council review the

15 ALJ’s decision. (Id. at 229-237). The Appeals Council denied the request for

16 review on August 30, 2021. (Id. at 1-6). On that date, the ALJ’s decision

17 became the final decision of the Commissioner. 42 U.S.C. § 405(h). Having

18 exhausted all administrative remedies, Plaintiff brought this timely civil

19 action, seeking judicial review pursuant to 42 U.S.C. § 405(g).

20 II. SUMMARY OF THE ALJ’S FINDINGS

21 In rendering his decision, the ALJ followed the Commissioner’s five-step

22 sequential evaluation process. See 20 C.F.R. § 404.1520. At step one, ALJ

23 Verne found that Plaintiff had not engaged in substantial gainful activity

24 since her alleged onset date. (AR at 17). ALJ Verne found at step two that

25 Plaintiff had the following severe impairments: (1) left patellar fracture; (2)

26 degenerative disk disease of the cervical spine; (3) lumbar strain secondary to

1 major depressive disorder. (Id.). Plaintiff also had non-severe impairments of

2 diabetes mellitus type II, neuropathy, obesity, cataracts, hypertension,

3 sinusitis, and history of methamphetamine use. (Id.). ALJ Verne proceeded to

4 consider Plaintiff’s impairments at step three of the sequential process.

5 At step three, the ALJ found that Plaintiff did not have a physical

6 impairment or combination of impairments that met or medically equaled

7 one of the impairments listed in the relevant sections of the Commissioner’s

8 Listing of Impairments.2 (AR at 18). The ALJ stated that a physician had not

9 recorded any findings of a listed physical impairment, and that there was no

10 evidence in the medical records of such an impairment. (Id.).

11 The ALJ also found that Plaintiff’s mental impairment did not meet the

12 criteria set out under the four broad functional areas of the disability

13 regulations for evaluating mental disorders, known as “paragraph B.” (AR at

14 18). To meet that criteria, which assesses the severity of a mental

15 impairment, Plaintiff’s impairment would have to cause two “marked”

16 limitations or one “extreme” limitation. (Id.). The ALJ determined that

17 Plaintiff’s mental impairment only caused “moderate limitation on the ability

18 to understand, remember, or apply information, mild limitation in interacting

19 with others, moderate limitation on the ability to concentrate, persist, or

20 maintain pace, and mild limitation on the ability to adapt or manage oneself.”

21 (Id.).

22 When a claimant’s impairments, or combination of impairments, do not

23 meet the criteria of a listed impairment, as was the case here, the ALJ next

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25 2 If the claimant’s impairment or combination of impairments is of a

26 severity to meet or medically equal the criteria of a listing and meets the

duration requirement (20 CFR §§ 404.1509 and 416.909), the claimant is

1 determines the claimant’s residual functional capacity (“RFC”), i.e., the

2 ability to do physical and mental work activities despite the claimant’s

3 impairments. (AR at 16). Step four then considers whether the claimant is

4 not disabled because she has the RFC to do past relevant work, and step five

5 looks at her ability to do any other work considering her RFC, age, education,

6 and work experience. (See Id.).

7 The ALJ determined at step four that Plaintiff was unable to perform

8 any past relevant work as an accounting clerk, and the vocational expert

9 agreed. (AR at 23-24, 64-66); see 20 C.F.R. §§ 404.1565 and 416.965. The ALJ

10 concluded, however, that considering Plaintiff’s age, education, work

11 experience and RFC prior to August 31, 2020, she was “capable of making a

12 successful adjustment to other work that existed in significant numbers in

13 the national economy.” (AR at 24-25). The ALJ accepted the testimony of the

14 vocational expert, who said Plaintiff could perform the requirements of

15 Housekeeper/Cleaner (DOT 323.687-014), Photocopy Machine Operator (DOT

16 207.685-014), and Marker (DOT 209.587-034). (AR at 24-25).

17 In reaching his decision, the ALJ assessed Plaintiff as retaining the

18 RFC to perform a range of light work as defined in 20 C.F.R. §§ 404.1567(b),

19 416.967(b), and SSR 83-10, with the following limitations:

20 [Plaintiff can] lift and/or carry 20 pounds occasionally and 10

pounds frequently; can stand and/or walk for 6 hours out of an 8-

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hour workday with normal breaks; can sit for 6 hours out of an 8-

22 hour workday with normal breaks; can occasionally lift overhead

with the left upper extremity; can frequently push and/or pull with

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the left lower extremity; can occasionally climb ramps or stairs;

24 cannot climb ladders, ropes and scaffolds; can occasionally perform

balancing, stooping, kneeling, and crawling; can have no

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interaction with the general public but can have occasional work-

26 related, non-personal, non-social interaction with co-workers and

supervisors involving no more than a brief exchange of information

1 or hand-off of product; cannot perform highly time pressured tasks

such that the claimant is limited to generally goal-oriented work,

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not time sensitive strict production quotas (that is, production rate

3 pace work with strict by the minute or by the hour production

quotas that are frequently and/or constantly monitored by

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supervisors or that are fast paced); limited to a low-stress

5 environment where there are few work place changes (i.e., the

claimant would not have to switch from task to task) with minimal

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decision-making capabilities (such that she would be unable to

7 exercise substantial discretion in carrying out the work activities);

and she is limited to understanding, remembering, and carrying out

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simple, routine, repetitive tasks.

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(AR at 19).

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The ALJ stated that the RFC assessment was based on all the evidence

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and the extent to which Plaintiff’s symptoms were consistent with the

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objective medical evidence and other evidence. (Id.). The ALJ also stated that

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he considered “all symptoms and the extent to which these symptoms can

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reasonably be accepted as consistent with the objective medical evidence and

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other evidence, based on the requirements of 20 CFR 404.1529 and 416.929

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and SSR 16-3p.” (Id.). The ALJ, therefore, concluded that Plaintiff was not

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disabled until the established onset date of August 31, 2020, when her age

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category changed to an individual of advanced age. (Id. at 19-23).

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III. DISPUTED ISSUES

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The first issue raised is whether the ALJ failed to properly evaluate the

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medical opinion evidence when determining Plaintiff’s RFC. The second issue

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is whether the ALJ failed to properly evaluate Plaintiff’s subjective

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statements. The issues in contention only address Plaintiff’s mental

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impairments, and the onset date of January 31, 2013, until August 30, 2020.

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Therefore, the Court only considers those impairments and dates in this

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discussion.

1 IV. STANDARD OF REVIEW

2 Section 405(g) of the Social Security Act allows unsuccessful applicants

3 to seek judicial review of a final agency decision of the Commissioner. 42

4 U.S.C. § 405(g). The scope of judicial review is limited in that a denial of

5 benefits will not be disturbed if it is supported by substantial evidence and

6 contains no legal error. Id.; see also Woods v. Kijakazi, 32 F.4th 785, 792 (9th

7 Cir. 2022) (Under 20 C.F.R. § 404.1520c, “an ALJ cannot reject an examining

8 or treating doctor’s opinion as unsupported or inconsistent without providing

9 an explanation supported by substantial evidence.”).

10 “Substantial evidence means more than a mere scintilla but less than a

11 preponderance. It means such relevant evidence as a reasonable mind might

12 accept as adequate to support a conclusion.” Revels v. Berryhill, 874 F.3d 648,

13 654 (9th Cir. 2017)(quoting Desrosiers v. Sec’y Health & Human Servs., 846

14 F.2d 573, 576 (9th Cir. 1988)); see also Richardson v. Perales, 402 U.S. 389,

15 401 (1971).

16 An ALJ’s decision is reversed only if it “was not supported by

17 substantial evidence in the record as a whole or if the ALJ applied the wrong

18 legal standard.” Id. “To determine whether substantial evidence supports the

19 ALJ’s determination, [the Court] must assess the entire record, weighing the

20 evidence both supporting and detracting from the agency’s conclusion.”

21 Ahearn v. Saul, 988 F.3d 1111, 1115 (9th Cir. 2021) (citing Mayes v.

22 Massanari, 276 F.3d 453, 459 (9th Cir. 2001)). The Court “may not reweigh

23 the evidence or substitute [its] judgment for that of the ALJ.” (Id.). “The ALJ

24 is responsible for determining credibility, resolving conflicts in medical

25 testimony, and for resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035,

26 1039 (9th Cir. 1995).

1 the court must uphold the [ALJ’s] decision.” Mayes, 276 F.3d 453, 459 (9th

2 Cir. 2001). Section 405(g) permits the reviewing court to “affirm, modify, or

3 reverse” the Commissioner’s decision. 42 U.S.C. § 405(g). The reviewing court

4 may also remand the case to the Social Security Administration for further

5 proceedings. (Id.).

6 V. DISCUSSION

7 A. Whether the ALJ Failed to Properly Evaluate the Medical

8 Opinion Evidence When Determining Plaintiff’s Mental Residual

Functional Capacity

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10 A claimant’s RFC is determined by the ALJ and describes the Plaintiff’s

11 capabilities despite the limitations resulting from her impairments. 20 C.F.R.

12 §§ 404.1545(a)(1), 416.945(a)(1). The RFC determination considers all

13 medically determinable impairments, severe or not severe, and all relevant

14 evidence on the record, including medical opinions from medical sources. Id.

15 at §§ 404.1545(a)(2)-(3), 416.945(a)(2)-(3). Medical opinions are statements

16 from medical sources about a claimant’s abilities and limitations related to

17 the workplace and resulting from an impairment. 20 C.F.R. §§ 404.1513(a)(2),

18 416.913(a)(2).

19 Plaintiff argues that the ALJ’s RFC determination is not supported by

20 substantial evidence because he failed to “examine carefully” or “articulate”

21 how persuasive he found the examining and treating specialists’ opinions

22 based on a meaningful application of the regulating factors. (ECF No. 14 at

23 24-25). Specifically, Plaintiff argues that the ALJ erred in finding the

24 opinions of Dr. Dhamija, Dr. John, and Dr. Ryser, not persuasive.3 Plaintiff

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26 3 Plaintiff appears to erroneously refer to Dr. Tanner John as Dr. Preston

(citing Dr. John’s opinion but attributing it to a Dr. Preston), while

1 also challenges the ALJ’s evaluation of its own examining psychiatrist, Dr.

2 Bhavsar. Plaintiff argues the ALJ had a duty to seek clarification when he

3 rejected that opinion. Defendant maintains that the ALJ properly weighed

4 the evidence when evaluating Plaintiff’s RFC because the ALJ considered all

5 “relevant evidence,” and settled on the “middle ground” between the

6 divergent opinions. (Id. at 25-27).

7 The ALJ must evaluate the persuasiveness of medical source opinions

8 by considering prescribed enumerated factors. 20 C.F.R. §§ 404.1520c(c)(1)-

9 (5); 416.920c(c)(1)-(5). The “most important factors” considered are

10 consistency and supportability. Id. §§ 404.1520c(b)(2); 416.920c(b)(2). The

11 regulations describe supportability as: “[t]he more relevant the objective

12 medical evidence and supporting explanations presented by a medical source

13 are to support his or her medical opinion(s) . . . the more persuasive the

14 medical opinion(s) . . . will be.” 20 C.F.R. §§ 404.1520c(c)(1), 416.920c(c)(1).

15 Consistency is described as: “[t]he more consistent a medical opinion(s) . . . is

16 with the evidence from other medical sources and nonmedical sources in the

17 claim, the more persuasive the medical opinion(s) . . . will be.” 20 C.F.R. §§

18 404.1520c(c)(2), 416.920c(c)(2).

19 Here, the ALJ found four medical opinions unpersuasive. Courts equate

20 finding a medical source “not persuasive” with rejecting a medical opinion.

21 See, e.g., Woods v. Kijakazi, 32 F.4th 785, 792-94 (9th Cir. 2022); Steven R. T.

22 v. Kijakazi, No. 20-CV-2257-KSC, 2022 WL 2303950, at *12 (S. D. Cal. June

23 24, 2022). “An ALJ cannot reject an examining or treating doctor's opinion as

24 unsupported or inconsistent without providing an explanation supported by

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Defendant refers to Dr. John as Dr. Tanner. (ECF No. 14 at 9, 29). The court

1 substantial evidence. The agency must “articulate ... how persuasive” it finds

2 “all of the medical opinions” from each doctor or other source, 20 C.F.R. §

3 404.1520c(b), and “explain how [it] considered the supportability and

4 consistency factors” in reaching these findings, id. § 404.1520c(b)(2).” Woods,

5 32 F.4th at 792.

6 The Court examines the ALJ’s evaluation of Dr. Dhamija, Dr. John, Dr.

7 Ryser’s opinions under the consistency and supportability factors. Then, the

8 Court examines whether the ALJ had a duty to seek clarification of Dr.

9 Bhavsar’s opinion.

10 1. Dr. Dhamija & Dr. John

11 Dr. Anish Dhamija is a psychiatrist who began treating Plaintiff in July

12 2019. (See AR at 1163). On June 9, 2020, Dr. Dhamija diagnosed Plaintiff

13 with treatment-resistant depression, and an unspecified personality and

14 trauma disorder. (Id.). Dr. Dhamija found that Plaintiff had marked

15 limitations in her ability to: (1) perform activities within a schedule and

16 consistently be punctual; (2) sustain ordinary routine without supervision; (3)

17 perform at a consistent pace without rest periods of unreasonable length or

18 frequency; (4) adhere to basic standards of neatness; (5) set realistic goals;

19 and (6) make plans independently. (Id. at 1166). She remarked that Plaintiff

20 was “severely limited to do occupational activities secondary to her marked

21 impairments from mental illness.” (Id. at 1167).

22 Dr. Tanner John is a psychiatrist who began treating Plaintiff on June

23 23, 2020. (See AR at 329). On January 5, 2021, Dr. John diagnosed Plaintiff

24 with major depressive disorder, which was severe and recurrent. (Id. at

25 1474). Dr. John found that Plaintiff had marked limitations in her ability to:

26 (1) carry out detailed instructions; (2) maintain attention and concentration

1 being distracted by them; (4) make simple work-related decisions; (5)

2 complete a work day without interruptions from psychological symptoms; (6)

3 perform at a consistent pace without rest periods of unreasonable length or

4 frequency; (7) accept instructions and respond appropriately to criticism from

5 supervisors; (8) adhere to basic standards of neatness; (9) respond

6 appropriately to workplace changes; (10) set realistic goals; and (11) make

7 plans independently. (Id. at 1477).

8 a. Consistency

9 The ALJ did not find Dr. Dhamija or Dr. John’s findings of marked

10 limitations persuasive, “as they [were] largely inconsistent with the

11 claimant’s conservative course of mental health treatment throughout the

12 periods at issue, as well as largely benign mental status examinations

13 throughout the file.” (AR at 22). The ALJ stated:

14 These examinations showed the claimant had some mood

instability that was stabilized with medication, and even as she was

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off psychotropic medications, she suffered no decompensation

16 episodes and had no cognitive disfunction or significant behavioral

issues that would preclude activities inconsistent with the mental

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residual functional capacity assessed herein.

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(Id.). The ALJ further concluded that Plaintiff displayed the ability to

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partake in activities that were inconsistent with marked or extreme

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functional limitations. (Id.). The ALJ stated:

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The claimant remains capable of obtaining medical and mental

22 health treatment on her own, and advocating for her own care

within the clinical setting. At the hearing, she also conveyed that

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she could concentrate to watch television, care for her own personal

24 needs, and clean her living area. She also noted she had no

problems with interacting with strangers (Testimony). The

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claimant reported similar activities in her Adult Function Report,

26 as well as the ability to handle funds, shop in stores, handle her

public benefits and EBT card, and interact with her friend (see 5E).

1 Elsewhere in the record, she noted she could “set things up” so that

she would not forget to do things (22F/5).

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(Id).

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Plaintiff argues that both doctors’ marked limitation findings are

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consistent with the record, and the ALJ failed to “compare the consistency” of

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the medical records with Dr. Dhamija and Dr. John’s opinions. (ECF No. 14

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at 13).

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In support of her argument, Plaintiff cites to several consistent records

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regarding Plaintiff’s inability to function in a work setting, such as: (1)

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depression (AR at 454, 457, 466-67, 472-73, 506, 508-09, 537, 539, 541, 549,

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625-27, 1336, and 1439-45); (2) anxiety (AR at 547, 625, and 1197); (3) an

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abnormal affect (AR at 454, 467, 473, 547, 626, 1174, 1197, 1210, 1218, 1259,

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1274, 1336, and 1449); (4) feelings of worthlessness (AR at 537, 1305); (5)

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hostility and irritability (AR at 1197, 1259); (6) disturbed sleep (AR at 537,

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543, 547, 631, 706, 1259, 1305, 1339-40, 1346, 1432, and 1465) and

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nightmares (AR at 625); (7) loss of interests (AR at 506, 1251, 1259, and

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1305); (8) decreased motivation (AR at 457, 499, 537, 547, 625, 627, 629, 631,

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1218, 1251, 1259, 1305, 1308, 1319, and 1339-1440); (9) social withdrawal or

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isolation (AR at 535, 541, 627, 701, 706, and 1346); (10) poor grooming (AR at

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626, 706); and (11) abnormal eye contact (AR at 547, 707-708). (ECF No. 14 at

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12-13).

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Defendant rightly counters that Plaintiff carefully selected excerpts

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from the record in support of her interpretation, and that the ALJ’s decision

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was supported by substantial evidence. (ECF No. 14 at 29). Defendant argues

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that the proper inquiry here is whether the ALJ’s interpretation was

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supported by substantial evidence, not whether the record contains a

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different rational interpretation. (Id.).

1 Defendant points out that “where evidence is susceptible to more than

2 one rational interpretation, it is the ALJ's conclusion that must be upheld.”

3 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). The ALJ’s

4 determination considered Plaintiff’s medical evidence and treatment history,

5 which showed that Plaintiff’s mood stabilized with medication. He also

6 mentioned several of Plaintiff’s demonstrated capabilities such as the ability

7 to concentrate and interact with strangers. While the record may give way to

8 a different interpretation of the record, such as Plaintiff’s interpretation that

9 the doctor’s marked limitation findings are consistent with the record, the

10 ALJ’s conclusion is adequately articulated, rational, and supported by

11 substantial evidence.

12 The Court finds that the ALJ did not err in evaluating the consistency

13 factor of Dr. Dhamija and Dr. John’s opinions. The ALJ’s evaluation was

14 properly articulated with substantial evidence supporting his conclusion. The

15 ALJ’s supportability finding, however, lacks proper articulation.

16 b. Supportability

17 In addition to consistency, the ALJ must consider and articulate

18 supportability in determining the persuasiveness of medical opinions. The

19 ALJ rejected Dr. Dhamija and Dr. John’s opinions, explaining that they were

20 “inconsistent” with the record, but he made no explicit determination of

21 supportability. (AR at 22). Plaintiff correctly argues that the ALJ failed to

22 address that factor in finding Dr. Dhamija and Dr. John’s marked limitation

23 findings “not persuasive.” (ECF No. 14 at 9).

24 Defendant argues that an ALJ’s decision to discredit a medical opinion

25 “must simply be supported by substantial evidence.” (Id.). See Woods, 32 F.

26 4th at 788. While Defendant is correct that substantial evidence must

1 Defendant asserts. Substantial evidence alone is not enough. See 20 C.F.R. §

2 404.1520c(b).

3 As mentioned, “[a]n ALJ cannot reject an examining or treating doctor's

4 opinion as unsupported or inconsistent without providing an explanation

5 supported by substantial evidence. The agency must “articulate . . . how

6 persuasive” it finds “all of the medical opinions” from each doctor or other

7 source, 20 C.F.R. § 404.1520c(b), and “explain how [it] considered the

8 supportability and consistency factors” in reaching these findings, id. §

9 404.1520c(b)(2). Woods, 32 F.4th at 792.

10 Defendant incorrectly asserts that Plaintiff’s argument fails because Dr.

11 Dhamija and Dr. John’s “opinions” consisted of checking off boxes in a

12 questionnaire, and neither doctor cited any supporting objective medical

13 findings. (ECF No. 14 at 31). This is Defendant's impression of the record, but

14 it is not the ALJ's interpretation of the facts because the ALJ did not make

15 that finding. (See AR at 22). This Court's authority is limited to grounds

16 asserted by the ALJ. See Stout v. Comm'r of the Soc. Sec. Admin., 454 F.3d

17 1050, 1054 (9th Cir. 2006). It is possible that the doctors’ opinions were not

18 supported by objective medical findings, as Defendant suggests, but that was

19 the ALJ’s issue to resolve in the first instance, not this Court’s.

20 The Court finds that the ALJ insufficiently articulated his evaluation of

21 the supportability factor in Dr. Dhamija and Dr. John’s opinions.

22 2. Dr. Ryser

23 Dr. Christina Ryser is a psychologist who evaluated Plaintiff on

24 January 5, 2021. (AR at 1463). As part of the evaluation, Dr. Ryser conducted

25 a clinical interview with a mental status examination, and a review of

26 Plaintiff’s medical records. (Id. at 1463-1471). Dr. Ryser observed that

1 appearance, presentation, speech/language, and behavior. (Id. at 1468-69).

2 The mental status examination displayed a depressed affect, somewhat

3 limited memory and concentration skills, and “fairly good” judgment. (Id. at

4 1470). Dr. Ryser diagnosed Plaintiff with persistent depressive disorder, and

5 major depressive disorder, which was recurrent and moderate. (Id.).

6 Regarding functional capacity, Dr. Ryser noted that Plaintiff appeared

7 “challenged” to consistently understand, remember, and apply information.

8 (Id. at 1471). Plaintiff, further, appeared “limited” in her ability to learn,

9 recall, use information to perform work activities, concentrate, persist,

10 maintain pace, focus on work activities, and stay on task at a sustained rate.

11 (Id.). Dr. Ryser also noted that Plaintiff would likely have difficulty relating

12 to and working with supervisors, regulating her emotions, controlling her

13 behavior, maintaining her well-being in a work-setting, and dealing with

14 normal pressures in a competitive work setting. (Id.).

15 In the Psychological/Psychiatric Impairment Questionnaire Dr. Ryser

16 conducted, she noted several signs and symptoms in support of Plaintiff’s

17 diagnosis, such as depressed mood, constricted abnormal affect,

18 anhedonia/pervasive loss of interests, decreased energy, difficulty thinking or

19 concentrating, and social withdrawal or isolation. (AR at 1459). Dr. Ryser

20 indicated the most frequent or severe symptoms as low mood, amotivation,

21 anhedonia, excessive sleep, low energy, limited memory, and

22 attention/concentration. (Id. at 1460).

23 Dr. Ryser found that Plaintiff had marked limitations in her ability to:

24 (1) understand, remember, and carry out detailed instructions; (2) maintain

25 attention and concentration for extended periods; (3) perform activities

26 within a schedule and consistently be punctual; (4) complete a work day

1 consistent pace without rest periods of unreasonable length or frequency; and

2 (6) travel to unfamiliar places or use public transportation. (AR at 1461).

3 Consistency & Supportability

4 The ALJ found Dr. Ryser’s opinion “not entirely persuasive.” (AR at 23).

5 He concurred that Plaintiff is limited in the areas Dr. Ryser noted, but he

6 found that her opinion was “quite vague as to what extent the limitations

7 affect the claimant’s abilities.” (Id.).

8 Plaintiff argues that the ALJ erred in his evaluation of Dr. Ryser’s

9 opinion because he did not articulate the consistency and supportability

10 factors, and instead, only stated that the opinion was “quite vague.” (ECF No.

11 14 at 19). The Court agrees.

12 Plaintiff contends that the ALJ’s “vague” determination is boilerplate

13 language with no connection to the record. (ECF No. 14 at 19). Dr. Ryser’s

14 opinion reported numerous areas of marked limitations, indicating that

15 Plaintiff could not perform more than two-thirds of an 8-hour workday. (AR

16 at 1461). Dr. Ryser also reported several areas of moderate-to-marked

17 limitations, indicating that Plaintiff could not perform one-third to two-thirds

18 of an 8-hour workday. (Id.). Lastly, Dr. Ryser opined that Plaintiff would

19 miss more than three days of work on average due to her impairments or

20 treatment. (Id. at 1462).

21 Defendant argues that the ALJ was correct in stating that Dr. Ryser’s

22 opinion was vague. (ECF No. 14 at 31, 32). Defendant contends that Dr.

23 Ryser’s opinions are vague because she provided general conclusions, such as

24 Plaintiff “appeared challenged,” “appear[ed] limited,” “could also be

25 challenged,” and “was likely to struggle” in some areas of mental functioning.

26 (See ECF No. 14 at 32).

1 generalized, it is not entirely vague. The ALJ and Defendant cherry-pick

2 comments from Dr. Ryser’s evaluation report that fail to fully represent her

3 opinion. A careful review of the record shows that Dr. Dhamija and Dr. John

4 used the same impairment questionnaire to assess Plaintiff’s limitations as

5 Dr. Ryser. (See AR at 1167, 1477). The ALJ did not determine that Plaintiff’s

6 limitations were “vague” in those reports.

7 The ALJ's swift evaluation of Dr. Ryser’s opinion does not allow the

8 Court to trace the path of the ALJ's reasoning, which is required. See 82 Fed.

9 Reg. at 5,858 (stating that the articulation requirements in the rules allow a

10 subsequent reviewer or reviewing court to trace the path of the adjudicator's

11 reasoning). The Court, therefore, finds that the ALJ insufficiently articulated

12 his evaluation of Dr. Ryser’s opinion.

13 The Court finds that the ALJ’s evaluations of Dr. Dhamija, Dr. John,

14 and Dr. Ryser’s opinions were inadequate. The ALJ articulated the

15 consistency factor when evaluating Dr. Dhamija and Dr. John’s medical

16 opinions, but he failed to articulate the consistency and supportability factors

17 in every other instance. This is required to trace the path of the adjudicator's

18 reasoning.

19 The Court next examines whether the ALJ had a duty to seek

20 clarification of Dr. Bhavsar’s opinion because he also found it vague.

21 3. Dr. Bhavsar

22 Dr. Madhumalti Bhavsar is a psychiatrist who evaluated Plaintiff on

23 December 15, 2019, at the request of the Social Security Administration.4 (AR

24 at 1132-1336). At the evaluation, Plaintiff reported symptoms of depression,

25

26

4 The ALJ erroneously refers to Dr. Madhumalti Bhavsar as. Dr. Dhaysar.

1 anxiety, feelings of sadness and worthlessness, not wanting to meet other

2 people, loss of interests, inconsistently showering, crying spells, feeling

3 overwhelmed and worried, feeling tired all the time, and difficulty with

4 concentration and making decisions. (Id. at 1132-33).

5 His mental status examination revealed that Plaintiff was tense, with a

6 depressed mood, blunted affect, and no psychomotor retardation. (AR at

7 1134). Dr. Bhavsar noted that Plaintiff made good eye contact, had normal

8 speech, and did not have delusions or hallucinations. (Id. at 1135). As to

9 memory, Plaintiff recalled three out of three objects immediately, and two out

10 of three objects in five minutes. (Id.). As to concentration, Plaintiff performed

11 “Serial 3s and Serial 7s,” and she was able to spell the word “music” forward

12 and backward. (Id.). Dr. Bhavsar diagnosed Plaintiff with major depression,

13 which was recurrent, and severe. (Id.).

14 As to Plaintiff’s functional assessment, Dr. Bhavsar found Plaintiff was

15 “severely limited” in her ability to: (1) follow detailed instructions; (2) interact

16 appropriately with the public; (3) comply with job rules such as safety and

17 attendance; (4) respond to changes in routine in a work setting; and (5)

18 respond to work pressure in a usual work setting. (AR at 1136). Dr. Bhavsar

19 found Plaintiff was “not limited” in her ability to follow simple, oral and

20 written instructions, nor in her daily activities. (Id.).

21 The ALJ found Dr. Bhavsar’s opinion “not persuasive,” and did not adopt

22 it. (AR at 22). The ALJ stated:

23 Dr. Dhaysar [Bhavsar] noted that the claimant was “severely

limited in multiple areas of functioning from a mental health

24

perspective. (12F/5). The term “severely” used to denote functional

25 limitations is of course vague and of little use in analyzing the case.

Proper terms of art such as “moderate, marked” etc. offer better

26

guidance to evaluate said opinion and functionality. Here, the

1 of dysfunction other than the undersigned applied as the residual

functional capacity. She demonstrated depressed mood and blunted

2

affect, but the evaluation was otherwise entirely within normal

3 limits and unremarkable for significant cognitive deficits or

behavioral issues (see 12F/3-4). The claimant also presented was

4

appropriately dressed and well-groomed. She was cooperative

5 during the examination. She reported activities of daily living that

included watching television, napping, Thus, Dr. [Bhavsar’s]

6

opinion on the claimant’s limitations far exceed the objective

7 findings conveyed during the evaluation and documented elsewhere

in the record. As such, it is not persuasive and not adopted herein.

8

(Id. at 21-22).

9

Duty to Seek Clarification

10

Plaintiff argues that the ALJ had a duty to seek clarification when he

11

found Dr. Bhavsar’s opinion vague. (ECF No. 14 at 22). The real question,

12

however, is whether the ALJ had a duty to do so.

13

In Tonapetyan v. Halter, the court states “ambiguous evidence, or the

14

ALJ's own finding that the record is inadequate to allow for proper evaluation

15

of the evidence, triggers the ALJ's duty to “conduct an appropriate inquiry.”

16

(citing Smolen, 80 F.3d at 1288; Armstrong v. Commissioner of Soc. Sec.

17

Admin., 160 F.3d 587, 590 (9th Cir.1998)). The ALJ may discharge this duty

18

in several ways, including: subpoenaing the claimant's physicians,

19

submitting questions to the claimant's physicians, continuing the hearing, or

20

keeping the record open after the hearing to allow supplementation of the

21

record. Tidwell v. Apfel, 161 F.3d 599, 602 (9th Cir. 1998); Smolen, 80 F.3d at

22

1288; Tonapetyan, 242 F.3d 1144, 1150 (9th Cir. 2001).

23

Here, there was an adequate amount of evidence in the record to

24

properly evaluate and develop the record without Dr. Bhavsar’s opinion, so a

25

duty to investigate was never triggered.

26

The ALJ had thousands of pages of Plaintiff’s medical records, including

1 multiple opinions from other psychiatrists and psychologists to inform his

2 decision. Under these circumstances, there was no duty for the ALJ to further

3 develop the record. See Ford v. Saul, 950 F.3d 1141, 1156 (9th Cir. 2020)

4 (rejecting assertion that ALJ had a duty to recontact examining physician to

5 further develop the record— “[g]iven that the ALJ had years of [plaintiff's]

6 mental health records and multiple opinions from non-examining

7 psychiatrists to inform her decision, this duty [to further develop the record]

8 was not triggered”). The ALJ finding Dr. Bhavsar’s opinion vague and of

9 “little use,” is not enough alone to trigger this duty to develop the record.

10 The Court examines next whether the ALJ erred in evaluating

11 Plaintiff’s subjective statements, which he determined were not “fully

12 support[ed]” by the record. (AR at 21-23).

13 B. Whether the ALJ Failed to Properly Evaluate Plaintiff’s

14 Subjective Statements

15 An ALJ assesses a claimant’s subjective statements regarding his or her

16 symptoms and limitations in two parts. §§ 404.1529(a), 416.929(a). First, an

17 ALJ must determine whether the claimant has presented objective medical

18 evidence of an underlying impairment that “could reasonably be expected to

19 produce the pain or other symptoms alleged.” (Id.). Second, if the first test is

20 met and there is no evidence of malingering, “the ALJ can reject the

21 claimant’s testimony about the severity of her symptoms only by offering

22 specific, clear and convincing reasons for doing so.” Ragudo v. Saul, 411 F.

23 Supp. 3d 1125, 1133-34 (S.D. Cal. 2019) (citing Smolen, 80 F.3d at 1281).

24 “This is not an easy requirement to meet: ‘The clear and convincing standard

25 is the most demanding required in Social Security cases.’” Garrison v. Colvin,

26 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v. Comm’r of Soc. Sec.

1 The ALJ “determine[s] credibility, resolve[s] conflicts in the testimony,

2 and resolve[s] ambiguities in the record.” Treichler v. Comm'r of Soc. Sec.

3 Admin., 775 F.3d 1090, 1098 (9th Cir. 2014). “General findings are

4 insufficient; rather, the ALJ must identify what testimony is not credible and

5 what evidence undermines the claimant’s complaints.” Brown-Hunter v.

6 Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (quoting Reddick v. Chater, 157

7 F.3d 715, 722 (9th Cir. 1998)); Burrell v. Colvin, 775 F. 3d 1133, 1139 (9th

8 Cir. 2014) (finding error where the ALJ “never connected the medical record”

9 to the claimant’s testimony and did not make “a specific finding linking a lack

10 of medical records to [the claimant’s testimony about the intensity of her . . .

11 symptoms”).

12 In assessing a claimant’s statements about his or her symptoms, the

13 ALJ may consider, inter alia, (1) the claimant’s reputation for truthfulness;

14 (2) inconsistencies in the claimant’s testimony or between her testimony and

15 her conduct; (3) the claimant’s daily living activities; (4) the claimant’s work

16 record; and (5) testimony from physicians or third parties concerning the

17 nature, severity, and effect of the claimant’s condition. Thomas v. Barnhart,

18 278 F.3d 947, 958-59 (9th Cir. 2002); see also Ghanim v. Colvin, 763 F.3d

19 1154, 1163 (9th Cir. 2014) (listing factors) (citation omitted).

20 While “an ALJ may not reject a claimant’s subjective complaints based

21 solely on a lack of medical evidence to fully corroborate the alleged severity of

22 pain . . . it is a factor that the ALJ can consider in his credibility analysis.”

23 Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005) (“[A]n ALJ may not

24 reject a claimant’s subjective complaints based solely on a lack of medical

25 evidence to fully corroborate the alleged severity of pain.”); Light v. Social

26 Security Administration, 119 F.3d 789, 792 (9th Cir. 1997) (“[A] finding that

1 support for the severity of his pain”); Social Security Ruling (SSR) 16-3p

2 (S.S.A. Oct. 25, 2017) (SSA adjudicators should “not disregard an individual’s

3 statements about the intensity, persistence, and limiting effects of symptoms

4 solely because the objective medical evidence does not substantiate the

5 degree of impairment-related symptoms alleged by the individual”).5

6 1. Plaintiff’s Subjective Statements

7 At the Administrative hearing, Plaintiff testified that she had been

8 depressed since her teens, and it had “gotten progressively worse through the

9 years.” (AR at 45). At each of her jobs, Plaintiff reported she was “more and

10 more late to work” and “just going downhill.” (Id.). Plaintiff testified to

11 sleeping 10-16 hours a day, depending on the medication she was taking. (Id.

12 at 48). She testified to not having an interest in doing anything, not even

13 leisurely activities such as going shopping, going to the movies, or going out

14 to eat. (Id.). She also testified that she sometimes “does not do the things

15 [she] should do” such as shower and eat. (Id. at 48-49). She said she felt “dead

16 of emotion and feeling.” (Id. at 49).

17 Regarding her concentration capabilities, Plaintiff said she does not

18 have much to focus on, but she can focus on “simple” things such as watching

19 a television show. (Id. at 52). She said she blames difficulties with memory on

20 “getting older.” (Id.). She stated that she only interacts with her mother and

21 roommate, and that she rarely leaves the house. (Id. at 50). She goes grocery

22 shopping once a month, and her roommate picks up additional groceries

23

24 5 Social Security Ruling 16-3p superseded SSR 96-7p and, in part, eliminated

use of the term “credibility” from SSA “sub-regulatory policy” to “clarify that

25 subjective symptom evaluation is not an examination of an individual's

26 [overall character or truthfulness] . . . [and] more closely follow [SSA]

regulatory language regarding symptom evaluation.” See SSR 16-3p, 2017

1 during the week if necessary. (Id. at 50-51). She does not typically cook

2 meals, and instead eats already prepared food such as yogurt and cereal. (Id.

3 at 57). Plaintiff stated she can load the dishwasher, vacuum every couple of

4 days, and clean occasionally. (Id. 58-59).

5 2. The ALJ’s Analysis of Plaintiff’s Subjective Statements

6 The ALJ found that the record established a medically determinable

7 impairment that could reasonably be expected to cause Plaintiff’s alleged

8 symptoms, but he concluded that Plaintiff’s statements concerning the

9 intensity, persistence, and limiting effects of her symptoms were not fully

10 supported by the record. (AR at 20).

11 This finding meets the threshold with respect to part one. Next, because

12 there was no finding that Plaintiff was malingering, the ALJ was required to

13 make specific findings stating clear and convincing reasons for rejecting

14 Plaintiff’s subjective testimony, which the Court finds he failed to do. Smolen,

15 80 F.3d at 1283-84.

16 a. Conservative Treatment

17 The ALJ stated that Dr. Dhamija’s marked limitation findings and

18 Plaintiff’s daily activities were inconsistent with her “conservative” course of

19 treatment. (AR at 22). Plaintiff argues that the ALJ failed to properly

20 evaluate her subjective statements because he labeled her course of

21 treatment “conservative.” (See AR at 22).

22 “[E]vidence of ‘conservative treatment’ is sufficient to discount a

23 claimant's testimony regarding severity of an impairment.” Parra v. Astrue,

24 481 F.3d 742, 750–51 (9th Cir.2007). The problem with the conservative-

25 treatment rationale, however, is that the ALJ never suggested what more

26 aggressive treatment options might be pursued. See Lapeirre-Gutt v. Astrue,

1 cannot be discredited for failing to pursue non-conservative treatment options

2 where none exist.”). The ALJ labeled Plaintiff’s treatment “conservative,”

3 despite the many prescribed depression medications and the extensive

4 therapy she attended.

5 While the ALJ did not state that Plaintiff should have pursued a more

6 aggressive treatment, he highlighted twice that Plaintiff did not require

7 inpatient treatment or hospitalization. (AR at 21).

8 Plaintiff correctly argues, however, that psychiatric hospitalization is

9 not required for a claimant to be found mentally disabled. See Voigt v. Colvin,

10 781 F.3d 871, 876 (7th Cir. 2015) (Posner) (finding “the institutionalization of

11 the mentally ill is generally reserved for persons who are suicidal, otherwise

12 violent, demented, or (for whatever reason) incapable of taking even

13 elementary care of themselves”). See also French v. Astrue, No. EDCV 09-

14 01489, 2010 WL 2803965 *6 (C.D.Cal. July 15, 2010) (“[a] claimant may

15 suffer from a severe mental impairment without having been hospitalized.”).

16 Moreover, the ALJ only discussed Plaintiff’s capabilities as opposed to

17 her limitations when finding the marked limitations and daily activities

18 inconsistent with Plaintiff’s “conservative” treatment. He noted that Plaintiff

19 could concentrate to watch television, care for her own person needs, clean

20 her living room, interact with strangers, handle her funds, shop in stores,

21 nap, and interact with her friend. (AR at 22).

22 The ALJ merely stating that Plaintiff’s treatment was “conservative” is

23 not sufficient for rejecting her subjective statements. The ALJ did not

24 identify which statements he was accepting or rejecting. Instead, he only

25 recited Plaintiff’s capabilities and made generalized conclusions.

26 / / / /

1 b. Applying for Jobs

2 Plaintiff also argues that the ALJ failed to evaluate her subjective

3 statements because he noted that Plaintiff applied for jobs which indicated

4 her ability to work. (AR at 21).

5 The issue is not whether a disabled person can apply for a job but

6 whether she is hired and can maintain a job. See Lopez v. Massanari, 23 Fed.

7 Appx. 667, 669-670 (9th Cir. 2001) (concluding that claimant’s search for

8 work was not a clear and convincing reason to reject her testimony). In his

9 decision, the ALJ stated Plaintiff “reported being able to apply for jobs [as] an

10 indication that she felt she was able to work despite her poor mood.” (AR at

11 21). He failed to evaluate whether Plaintiff was hirable or capable of

12 maintaining a job. Again, the ALJ only mentioned Plaintiff’s capabilities, and

13 not her limitations, besides mentioning her “poor mood.” The Court finds that

14 the ALJ rejected Plaintiff’s subjective pain statements without basing it on

15 substantial evidence.

16 The ALJ’s reasoning is not clear or specific and is insufficient for

17 discounting Plaintiff's subjective statements. The ALJ’s failure to specifically

18 identify which parts of the Plaintiff’s testimony or statements were not

19 credible, and then connect those statements to the record of alleged

20 inconsistency prevents the Court from conducting a meaningful judicial

21 review. See Reddick, 157 F.3d at 722 (“General findings are insufficient;

22 rather, the ALJ must identify what testimony is not credible and what

23 evidence undermines the claimant’s complaints.”); Smolen, 80 F.3d at 1284

24 ([a]n ALJ “must state specifically which symptom testimony is not credible

25 and what facts in the record lead to that conclusion.”); Rios v. Saul, No.

26 19CV704-LL, 2020 WL 71080, at *5 (S.D. Cal. Jan. 7, 2020).

1 VI. CONCLUSION AND RECOMMENDATION

2 The only remaining question for the Court is whether to remand for

3 further administrative proceedings or for the payment of benefits. “The

4 decision of whether to remand a case for additional evidence, or simply to

5 award benefits[,] is within the discretion of the court.” Trevizo, 871 F.3d at

6 682 (quoting Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987)).

7 “Remand for further administrative proceedings is appropriate if

8 enhancement of the record would be useful.” Benecke v. Barnhart, 379 F.3d

9 587, 593 (9th Cir. 2004). A remand for an immediate award of benefits is

10 appropriate only in rare circumstances. Leon v. Berryhill, 874 F.3d 1130 (9th

11 Cir. 2017). The Court concludes that “[t]he rare circumstances that result in

12 a direct award of benefits are not present in this case.” Id.

13 Instead, the Court finds further administrative proceedings would serve

14 a meaningful purpose so that Plaintiff’s testimony may be properly

15 evaluated. On remand, the ALJ must: (1) evaluate the consistency and

16 supportability factors in discussing each medical opinion; (2) provide specific

17 reasons for the weight given to the individual’s subjective statements; and (2)

18 those reasons must be (a) consistent with and supported by the evidence

19 cited, and (b) clearly articulated so the Plaintiff and any subsequent reviewer

20 can assess how the adjudicator evaluated the claimant’s symptoms. See SSR

21 16-3p (the ALJ must “evaluate the intensity and persistence of [the]

22 individual’s symptoms . . . and determine the extent to which [those]

23 symptoms limit his . . . ability to perform work-related activities . . . .”).

24 Based on the foregoing, the Court RECOMMENDS that the District

25 Court VACATE the ALJ’s decision and REMAND this case for further

26 administrative proceedings consistent with the findings presented herein.

1 must be filed with the Court and served on all parties no later than March

9 ||17, 2023. The document should be captioned “Objections to Report and

3 || Recommendation.”

4 IT IS FURTHER ORDERED that any reply to the objections shall be

5 || filed with the Court and served on all parties no later than March 24,

6 || 2023. The parties are advised that failure to file objections within the

7 ||specified time may waive the right to raise those objections on appeal of the

g || Court’s order. Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991).

9 | ISSO ORDERED.

10 ||}Dated: March 3, 2023

4 Miter. ow Le

Hon. Mitchell D. Dembin

13 United States Magistrate Judge

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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