Mayo v. Kijakazi

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORINIA

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11 ERIKA M.,1 Case No.: 22cv651-MSB

12 Plaintiff,

ORDER REVERSING DECISION OF

13 v. COMMISSIONER AND REMANDING FOR

FURTHER ADMINISTRATIVE

14 KILOLO KIJAKAZI, Acting Commissioner of

PROCEEDINGS [ECF NO. 15]

Social Security,2

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Defendant.

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18 On May 9, 2022, Plaintiff Erika M. commenced this action against Defendant

19 Kilolo Kijakazi, Acting Commissioner of Social Security, for judicial review under 42 U.S.C.

20 § 405(g) of a final adverse decision for disability insurance benefits. (ECF No. 1.) Based

21 on all parties’ consent (see ECF Nos. 4, 7), this case is before the undersigned as

22 presiding judge for all purposes, including entry of final judgment. See 28 U.S.C. §

23 636(c). Now pending before the Court is the parties’ Joint Motion for Judicial Review

24 (“Joint Motion”). (ECF No. 15 (“J. Mot.”)) The Court has carefully reviewed the Joint

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1 Under Civil Local Rule 7.1(e)(6)(b), “[o]pinions by the court in [Social Security cases under 42 U.S.C. §

27 405(g)] will refer to any non-government parties by using only their first name and last initial.”

2 For the reasons set forth below, the Court ORDERS that judgment be entered

3 REVERSING the Commissioner’s decision and REMANDING this matter for further

4 administrative proceedings consistent with this Order.

5 I. PROCEDURAL BACKGROUND

6 On February 5, 2020, Plaintiff filed an application for supplemental security

7 income benefits under Title XVI of the Social Security Act, alleging disability beginning on

8 January 1, 2017. (AR 147–52.) The Commissioner denied the application initially on

9 August 18, 2020, and again upon reconsideration on September 30, 2020. (AR 87–91,

10 95–100.) On October 7, 2020, Plaintiff requested a hearing before an administrative law

11 judge (“ALJ”). (AR 101–03.) On April 12, 2021, ALJ Jay Levine held a telephonic hearing,

12 during which Plaintiff was represented by counsel. (AR 30–56.) An impartial vocational

13 expert (“VE”), Nelly Katsell, and Plaintiff’s mother, Cynthia Smith, also appeared and

14 testified at the hearing. (AR 15.) In a written decision dated June 3, 2021, ALJ Levine

15 found that Plaintiff had not been under a disability from February 5, 2020, the date the

16 application was filed, through the date of his decision. (AR 12–29.)

17 On June 8, 2021, Plaintiff requested review of the ALJ’s decision, asserting that

18 “[t]he ALJ made substantive errors.” (AR 145–46.) The Appeals Council denied

19 Plaintiff's request for review on March 24, 2022, making ALJ Levine’s decision the final

20 decision of the Commissioner. (AR 1–6); see also 42 U.S.C. § 405(g). This timely civil

21 action followed.

22 II. SUMMARY OF THE ALJ’S FINDINGS

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

24 sequential evaluation process. See 20 C.F.R. § 416.920(a). At step one, the ALJ found

25 that Plaintiff had not engaged in substantial gainful activity since February 5, 2020, the

26 application date.3 (AR 17.) At step two, the ALJ found that Plaintiff had the following

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2 Tourette’s syndrome, obsessive compulsive disorder (“OCD”), attention deficit

3 hyperactivity disorder (“ADHD”), and learning disorder. (Id.) The ALJ also determined

4 that Plaintiff’s “possible alcohol and THC use disorder” was not a severe impairment

5 because it minimally interfered with her ability to work. (Id.) At step three, the ALJ

6 found that Plaintiff did not have an impairment or combination of impairments that met

7 or medically equaled the severity of an impairment in the Commissioner’s Listing of

8 Impairments. (AR 18.) Specifically, the ALJ concluded that Plaintiff’s mental

9 impairments did not meet the criteria for listed impairment 12.11, neurodevelopmental

10 disorders.4 (Id.) See also 20 C.F.R. Part 404, Subpart P, Appendix 1.

11 Based on his evaluation of the full record, the ALJ determined Plaintiff had the

12 residual function capacity (“RFC”) “to perform a full range of work at all exertional levels

13 but with the following nonexertional limitations: simple, repetitive tasks in a non-public

14 setting with occasional interaction with coworkers.” (AR 19.) The ALJ found that

15 Plaintiff’s medically determinable impairments could reasonably be expected to cause

16 the alleged symptoms; however, he noted “the intensity, persistence and limiting

17 effects of these symptoms” were inconsistent with the medical and other evidence. (AR

18 20.) Further, the ALJ determined Plaintiff’s history of ADHD, OCD, and Tourette’s

19 syndrome did not preclude her from working because she could control these

20 symptoms with proper adherence to medication and other treatment. (AR 20–24.) At

21 step four, the ALJ found Plaintiff had no past relevant work experience. (AR 24.) Finally,

22 at step five the ALJ found that given Plaintiff’s age, education, work experience, and

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granted the oral motion. (AR 33–34.) Accordingly, the Court will use February 5, 2020, as the start of

25 the alleged disability period.

4 The ALJ focused his analysis on paragraph B of listing 12.11, finding Plaintiff had moderate limitations

26 in: (1) understanding, remembering, or applying information; (2) interacting with others; and (3)

concentrating, persisting, or maintaining pace. (AR 18.) The ALJ also found Plaintiff had a mild

27 limitation in (4) adapting or managing oneself. (Id.) Because Plaintiff did not have at least “one

2 economy. (AR 25.) The VE testified that a hypothetical person fitting Plaintiff’s profile

3 could perform jobs such as document preparer (sedentary RFC, 38,000 jobs available

4 nationally); shipping/receiving weigher (light RFC, 28,000 jobs available nationally); and

5 garment maker (medium RFC, 22,000 jobs available nationally). (Id.) Therefore, the ALJ

6 concluded that Plaintiff was not disabled. (Id.)

7 III. DISPUTED ISSUES

8 The parties have briefed two issues in their Joint Motion, which Plaintiff asserts

9 are grounds for reversal:

10 1. Whether the ALJ properly considered the examining opinion of Dr. Kathy

11 Vandenburgh;

12 2. Whether the ALJ properly considered the testimony of Plaintiff.

13 (J. Mot. at 4.)

14 IV. STANDARD OF REVIEW

15 Section 405(g) of the Social Security Act allows unsuccessful applicants to seek

16 judicial review of the Commissioner’s final decision. See 42 U.S.C. § 405(g). The scope

17 of judicial review is limited, and the denial of benefits will only be disturbed if it is not

18 supported by substantial evidence or contains a legal error. Luther v. Berryhill, 891 F.3d

19 872, 875 (9th Cir. 2018). “Substantial evidence” is a “‘term of art used throughout

20 administrative law to describe how courts are to review agency factfinding.’” Biestek v.

21 Berryhill, 139 S. Ct. 1148, 1154 (2019) (quoting T-Mobile South, LLC v. Roswell, 574 U.S.

22 293, 301 (2015)). The Supreme Court has said substantial evidence means “more than a

23 mere scintilla,” but only “such relevant evidence as a reasonable mind might accept as

24 adequate to support a conclusion.” Id. (quoting Consol. Edison Co. v. NLRB, 305 U.S.

25 197, 229 (1938)). The Ninth Circuit explains that substantial evidence is “more than a

26 mere scintilla but less than a preponderance.” Revels v. Berryhill, 874 F.3d 648, 654 (9th

27 Cir. 2017) (quoting Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 573, 576 (9th

2 ALJ’s decision must be upheld. See Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir.

3 2008). This includes deferring to the ALJ’s credibility determinations and resolutions of

4 evidentiary conflicts. See Lewis v. Apfel, 236 F.3d 503, 509 (9th Cir. 2001). Even if the

5 reviewing court finds that substantial evidence supports the ALJ’s conclusions, the court

6 must set aside the decision if the ALJ failed to apply the proper legal standards in

7 weighing the evidence and reaching his or her decision. See Batson v. Comm’r Soc. Sec.

8 Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). The reviewing court may enter a

9 “judgment affirming, modifying, or reversing” the Commissioner’s decision. 42 U.S.C. §

10 405(g). The reviewing court may also remand the case to the Social Security

11 Administration for further proceedings. Id. However, the reviewing court “may not

12 reverse an ALJ’s decision on account of an error that was harmless.” Molina v. Astrue,

13 674 F.3d 1104, 1111 (9th Cir. 2012).

14 V. DISCUSSION

15 A. Whether the ALJ Properly Considered Dr. Kathy Vandenburgh’s Opinion

16 1. Summary of the parties’ arguments

17 Plaintiff argues that the ALJ erred by not properly incorporating Dr. Kathy

18 Vandenburgh’s opinion on limitations into his RFC finding or giving “specific and

19 legitimate” reasons for rejecting those limitations, despite giving Dr. Vandenburgh’s

20 opinion partial persuasive weight. (J. Mot. at 4–13.) Specifically, Plaintiff argues the ALJ

21 erred by not including the following limitations in his RFC determination: (1) moderate

22 limitation sustaining an ordinary routine without supervision; (2) likely moderate to

23 marked limitation maintaining appropriate pace and persistence; (3) marked

24 impairment coping with work-related stress; and (4) possible moderate limitation

25 concentrating for more than an hour at a time. (Id. at 9–10.) Further, Plaintiff argues

26 that the ALJ did not provide legally sufficient reasons for failing to incorporate these

27 four limitations into the RFC. (Id. at 11–12.) Plaintiff says that when any of the

2 not adequately capture Dr. Vanderburgh’s opinion as to Plaintiff’s functional limitations.

3 (Id. at 13.)

4 In response, the Commissioner argues that the ALJ reasonably considered Dr.

5 Vandenburgh’s opinion, found it partially persuasive, and accounted for it in the RFC

6 finding. (Id. at 14–19.) The Commissioner argues that the ALJ properly incorporated Dr.

7 Vanderburgh’s opinion into Plaintiff’s RFC by finding that Plaintiff was “‘capable of

8 simple, repetitive tasks,’ without public interaction and only occasional co-worker

9 interaction,” thereby ensuring a reduced-stress workplace. (Id. at 15.) Further, the

10 Commissioner maintains that the ALJ properly assessed the other “less than marked”

11 limitations pursuant to the Agency’s standards and found that Plaintiff’s impairments

12 did not preclude her from all work-related activities. (Id. at 15–16.) Specifically, the

13 Commissioner argues that: (1) Dr. Vandenburgh’s assessment that Plaintiff’s limitations

14 were moderate for sustaining an ordinary routine and maintaining pace and persistence

15 did not require greater restrictions beyond limiting Plaintiff to simple, repetitive work;

16 and (2) Dr. Vandenburgh’s finding that Plaintiff “may have moderate impairment

17 concentrating” for more than one hour was speculation rather than a medical opinion,

18 and it did not require greater limitations. (Id. at 15–17.) In sum, the Commissioner

19 contends that the ALJ reasonably interpreted Dr. Vanderburgh’s opinion and crafted an

20 RFC finding consistent with the limitations Dr. Vanderburgh identified. (Id. at 19.)

21 2. Applicable law

22 Plaintiff applied for supplemental security income on February 5, 2020. (AR 15.)

23 Because this is after March 27, 2017, the Social Security Administration’s revised

24 regulations for considering medical opinions apply. See 20 C.F.R. § 404.1520c (2017).

25 Under the revised regulations, the ALJ does “not defer or give any specific evidentiary

26 weight, including controlling weight, to any medical opinion(s).” Id. § 404.1520c(a).

27 Instead, the ALJ must the evaluate the persuasiveness of those opinions using the

2 knowledge of other evidence and whether there was subsequently submitted evidence.

3 Id. § 404.1520c(c)(1)–(5). The two most important factors are supportability and

4 consistency. Id. § 404.1520c(b)(2). “Supportability” measures the degree to which

5 objective medical evidence and supporting explanations buttress a medical finding. Id.

6 §§ 404.1520c(c)(1); 416.920c(c)(1). “Consistency” is the extent to which an opinion or

7 finding is consistent with evidence from other medical sources and non-medical sources

8 in the record. Id. §§ 404.1520c(c)(2); 416.920c(c)(2). The more relevant the objective

9 evidence and supporting explanations are to support the medical source, and the more

10 consistent the source is with other evidence in the record, the more persuasive the

11 medical opinion will be. See Zhu v. Comm'r of Soc. Sec., No. 20-3180, 2021 WL

12 2794533, at *6 (10th Cir. July 6, 2021).

13 Under the revised regulations, “an ALJ's decision, including the decision to

14 discredit any medical opinion, must simply be supported by substantial evidence.”

15 Woods v. Kijakazi, 32 F. 4th 785, 787 (9th Cir. 2022); see also Sloane S. v. Kijakazi, No.

16 21cv1043-MMA-MSB, 2023 WL 2017284, at *4 (S.D. Cal. Feb. 15, 2023). ALJs must

17 address how they considered the consistency and supportability factors in sufficient

18 detail to allow a reviewing court to determine whether that reasoning is supported by

19 substantial evidence. Titus L.S. v. Saul, No. 20cv04825-AFM, 2021 WL 275927, at *7

20 (C.D. Cal. Jan. 26, 2021) (citing Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020)); Zhu,

21 2021 WL 2794533, at *6 (applying the substantial evidence standard under the new

22 2017 regulations). The Ninth Circuit has indicated that ALJs should attempt to use these

23 terms “with precision.” Woods, 32 F.4th at 793 n.4.

24 Finally, it is the ALJ’s responsibility, not the claimant’s physicians, to determine an

25 individual’s RFC. See 20 C.F.R. § 404.1545. The RFC is the most a person can do despite

26 her physical or mental impairments. Id. § 404.1545(a). In formulating an RFC, the ALJ

27 must consider all medically determinable impairments and evaluate “all of the relevant

2 into account a claimant’s limitations is defective.” Valentine v. Comm’r Soc. Sec.

3 Admin., 574 F.3d 685, 690 (9th Cir. 2009); Samples v. Comm’r Soc. Sec. Admin, 466 Fed.

4 App'x 584, 586 (9th Cir. 2012). The RFC need not quote every finding, so long as it

5 generally captures the limitations in the medical opinion. See Stubbs-Danielson v.

6 Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008).

7 3. Dr. Vandenburgh’s opinion and the ALJ’s treatment thereof

8 Dr. Kathy Vandenburgh, a consultative psychological examiner, examined Plaintiff

9 on August 5, 2020. (AR 268–76.) Dr. Vandenburgh reviewed Plaintiff’s medical history

10 and administered a complete psychological evaluation, the Wechsler Adult Intelligence

11 Scale-IV test, and the Wechsler Memory Scale-IV test. (AR 269.) After the examination,

12 Dr. Vandenburgh submitted a medical source statement (“MSS”) based on Plaintiff’s

13 “supplied records, presentation, interaction with evaluator, test scores, and information

14 she provided this evaluator,” which indicated the following:

15 • No limitations: (1) ability to socially interact with others at an age-

appropriate level; (2) ability to understand instructions; (3) ability to

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complete simple and detailed tasks; and (4) ability to avoid normal

17 hazards.

• Mild to moderate limitations: (1) remembering detailed information.

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• Moderate limitations: (1) ability to sustain an ordinary routine without

19 sustained supervision; and (2) possible impairment concentrating for

periods of time longer than one hour.

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• Moderate to marked limitations: (1) maintaining appropriate pace and

21 persistence.

22 • Marked limitations: (1) coping with work related stress; and (2) ability

to complete complex tasks. (AR 275.)5

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The ALJ summarized Dr. Vandenburgh’s findings as follows:

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Dr. Vandenburgh opined that the claimant has moderate limitations in her

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ability to sustain an ordinary routine without supervision, she would have

26 moderate to marked limitations in maintaining appropriate pace and

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2 although she could complete simple and detailed tasks. She would have

mild to moderate impairment in remembering detailed information,

3 marked limitations in coping with work stress, marked limitations in

completing complex tasks, and would have moderate impairment

4

concentrating for longer than 2 hours at a time.

5 (AR 22–23.) The ALJ found Dr. Vandenburgh’s opinion “partially persuasive because it is

6 supported and consistent with the record as a whole.” (AR 23.) He continued:

7 The record shows that the claimant has a history of tics, OCD, ADHD, and a

learning disorder and was in special education in high school. She is able to

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take college courses although she has struggled academically, was able to

9 complete an intake questionnaire by herself, and reported being able to go

out on her own and use public transportation. Dr. Vandenburgh’s mental

10

status exam was generally unremarkable and noted that the claimant was

11 pleasant and cooperative, she was alert, understood simple test questions,

had normal mannerisms . . . The treating records show that the claimant’s

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symptoms have generally remained stable even without being compliant

13 with medication. Although she presented and reported increased tics or

anxiety, the record shows that the claimant is noncompliant with her

14

treatment regimen as discussed above. Overall, I find the claimant capable

15 of simple, repetitive tasks in a nonpublic setting. The claimant is able to

understand and answer questions appropriately, has adequate response

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time, is attending college courses, and could navigate public transportation

17 on her own. (Id.)

18 4. Analysis

19 Although the ALJ failed to explain how he considered the supportability and

20 consistency factors in detail, the Court finds that there is nonetheless substantial

21 evidence supporting the ALJ’s evaluation of Dr. Vandenburgh’s opinion as “partially

22 persuasive.” Woods, 32 F. 4th at 787. Here, the ALJ determined Plaintiff had the RFC

23 “to perform a full range of work at all exertional levels but with the following

24 nonexertional limitations: simple, repetitive tasks in a non-public setting with occasional

25 interaction with coworkers.” (AR 19.) This RFC determination fairly accounted for Dr.

26 Vanderburgh’s opinion, including the two most severe limitations she assessed. First,

27 Dr. Vandenburgh found a marked limitation in Plaintiff’s ability to complete complex

2 Second, Dr. Vandenburgh assessed a marked limitation in Plaintiff’s ability to cope with

3 work-related stress, which is reflected in the RFC’s limitation to a “non-public setting

4 with occasional interaction with coworkers.” (Id.)

5 Additionally, the ALJ’s RFC assessment sufficiently accommodated the less than

6 “marked” limitations that Dr. Vandenburgh identified. Dr. Vandenburgh found Plaintiff

7 “will likely have moderate to marked impairment” in maintaining appropriate pace and

8 persistence. (AR 275.) When limitations are defined within a range—as they were here

9 by Dr. Vanderburgh—it is appropriate for the ALJ to make findings within the least

10 restrictive portion of that range. See McGee v. Kijakazi, No. 20-36074, 2021 WL

11 5860899, at *1 (9th Cir. Dec. 10, 2021) (holding that an ALJ did not err when he

12 incorporated a restroom break every ninety minutes, even though the claimant testified

13 to requiring a break every sixty to ninety minutes). Although the ALJ did not specifically

14 incorporate “pace and persistence” into his RFC, he discussed this when considering

15 whether Plaintiff met the definition of one of the Commissioner’s Listing of

16 Impairments. (AR 18.) The ALJ stated, “[w]ith regard to concentrating, persisting or

17 maintaining pace, the claimant has a moderate limitation.” (AR 18.) Given Dr.

18 Vanderburgh’s finding that Plaintiff could perform simple and detailed tasks with no

19 limitations, it was reasonable for the ALJ to omit pace from his RFC determination while

20 still limiting Plaintiff to simple, repetitive tasks. (AR 19, 275.) See Stubbs-Danielson, 539

21 F.3d at 1174 (holding that an RFC limited to “simple tasks” incorporated more specific

22 limitations, “including those related to pace and the other mental limitations regarding

23 attention, concentration, and adaptation”).

24 Next, Dr. Vandenburgh found Plaintiff had a moderate limitation in her “ability to

25 sustain an ordinary routine without sustained supervision.” (AR 275.) The Agency

26 considers a moderate limitation to mean the individual has a “fair” ability to function

27 “independently, appropriately, effectively, and on a sustained basis.” 20 C.F.R. pt. 404,

2 874, 880 (9th Cir. 2017) (finding substantial evidence supporting an RFC that limited

3 plaintiff to simple routine tasks in a non-public setting, with occasional interaction with

4 coworkers.) Additionally, “[w]here evidence is susceptible to more than one rational

5 interpretation, it is the ALJ's conclusion that must be upheld.” Burch v. Barnhart, 400

6 F.3d 676, 679 (9th Cir. 2005).

7 Finally, Dr. Vandenburgh opined that Plaintiff “did not have any difficulty

8 attending and concentrating during the one-hour evaluation,” but because of her ADHD

9 diagnosis she “may have moderate impairment concentrating for longer periods of

10 time.” (AR 275.) The Court agrees with the Commissioner that this statement is

11 speculative and does not address “what the [Plaintiff] can still do despite her

12 impairments.” (J. Mot. at 17.) The RFC needs to be consistent with the relevant

13 assessed limitations, but not identical to them. See Turner v. Comm'r of Soc. Sec., 613

14 F.3d 1217, 1223 (9th Cir. 2010) (holding the ALJ did not err by rejecting a doctor’s

15 opinion that the plaintiff “could not perform simple, repetitive tasks in an environment

16 without public contact or background activity” because he sufficiently incorporated the

17 doctor’s observations into his RFC determination). Here, Dr. Vandenburgh’s opinion

18 that Plaintiff may be moderately limited in terms of concentrating for more than one

19 hour is based on Plaintiff’s ADHD diagnosis; however, she did not directly observe

20 Plaintiff struggling to concentrate for more than one hour. (AR 275.) Further, pursuant

21 to the Agency’s definition, a moderate limitation means that Plaintiff would have a

22 “fair” ability to concentrate for longer periods of time. 20 C.F.R. pt. 404, subpt. P, app.

23 1, § 12.00F(2)(c). Plaintiff also testified that although she gets distracted or bored easily,

24 she could probably handle a “four or five-hour shift.” (AR 43.) Considering this, it was

25 reasonable for the ALJ’s RFC determination to omit time restrictions.

26 / / /

27 / / /

2 After finding Dr. Vandenburgh’s opinion “partially persuasive,” the ALJ was

3 required to discuss the consistency and supportability factors in some detail. Ford, 950

4 F.3d at 1154; Zhu, 2021 WL 2794533, at *6. Although he failed to do so, the Court finds

5 this error was harmless, as there is substantial evidence supporting the ALJ’s evaluation.

6 Woods, 32 F. 4th at 792. Additionally, the ALJ’s RFC determination sufficiently

7 addressed Dr. Vandenburgh’s findings of marked limitations in Plaintiff’s “ability to

8 complete complex tasks” and “coping with work related stress,” by limiting Plaintiff to

9 simple, repetitive work with limited social interactions. (AR 19, 275.) Further, it was

10 reasonable for the ALJ’s RFC to omit additional limitations for the less than marked

11 impairments that Dr. Vandenburgh identified. See Turner, 613 F.3d at 1223 (holding

12 that the RFC needs to be consistent with the relevant assessed limitations, but not

13 identical to them). Thus, the ALJ reasonably interpreted Dr. Vandenburgh’s opinion and

14 accounted for Dr. Vanderburgh’s limitations in his RFC determination.

15 B. Whether the ALJ Properly Considered Plaintiff’s Subjective Symptom Testimony

16 1. Summary of the parties’ arguments

17 Plaintiff argues that the ALJ failed to provide specific, clear, and convincing

18 reasons for rejecting Plaintiff’s subjective symptom testimony related to her medically

19 determinable impairments—Tourette’s syndrome, OCD, ADHD, and learning disorder.

20 (J. Mot. at 19–31.) Plaintiff alleges that in his written opinion, the ALJ merely provided

21 “a general discussion of the medical evidence” but did not offer “any legally sufficient

22 rationale” to discount her symptoms. (Id. at 23.) Further, Plaintiff contends that the ALJ

23 committed legal error by failing to link his reasons for rejecting Plaintiff’s subjective

24 symptom testimony to specific portions of the testimony. (Id. at 24–25.) Plaintiff says

25 the ALJ’s “articulated rationale is simply . . . that [Plaintiff]’s testimony is inconsistent

26 with the record as a whole,” which is a legal error. (Id. at 25.) Additionally, Plaintiff

27 rejects the ALJ’s conclusion that she has responded to treatment and improved; she

2 Plaintiff contends her ability to perform “sporadic daily activities” is not determinative

3 of her ability to work.6 (Id. at 27–29.)

4 In response, the Commissioner argues that the ALJ properly considered Plaintiff’s

5 subjective symptom testimony but found it was “at odds with the longitudinal record

6 and did not deserve full weight.” (Id. at 31.) For example, the Commissioner says the

7 ALJ properly discounted Plaintiff’s alleged disability due to her Tourette’s syndrome and

8 resulting motor tics because the record showed the tics were “under control with

9 medication” and Plaintiff had mostly normal speech patterns. (Id. at 32.) Additionally,

10 the Commissioner argues the ALJ properly found that Plaintiff’s inconsistent medication

11 compliance, combined with her drug and alcohol use, worsened her symptoms;

12 however, despite these problems Plaintiff demonstrated mostly “normal mental

13 function aside from mildly impaired judgment.” (Id. at 32–33.) Further, the

14 Commissioner maintains that the ALJ properly found the medical record contradicted

15 the severity of Plaintiff’s allegations and showed that her “symptoms were fairly well

16 controlled.” (Id. at 33–35.) Finally, the Commissioner argues that Plaintiff’s activities—

17 such as using a computer, navigating public transit, and taking college courses—

18 undermined her complaints of “severe and debilitating symptoms.” (Id. at 35.) Thus,

19 the Commissioner argues that the ALJ’s findings are supported by substantial evidence

20 and should be upheld. (Id. at 36.)

21 2. Applicable law

22 When evaluating the credibility of a claimant’s allegations regarding subjective

23 symptoms such as pain, the ALJ must engage in a two-step analysis. See Johnson v.

24 Kijakazi, No. 19-17359, 2022 WL 1553259, at *1 (9th Cir. May 17, 2022); Vasquez v.

25 Astrue, 572 F.3d 586, 591 (9th Cir. 2009); Lingenfelter v. Astrue, 504 F.3d 1028, 1035–36

26

27 6 Plaintiff also argues that the Court should not consider her “sporadic daily activities” because the ALJ

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

3 the pain or other symptoms alleged.” Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir.

4 2017) (quoting Garrison v. Colvin, 759 F.3d 995, 1014–15 (9th Cir. 2014)). The claimant

5 is not required to show that an underlying impairment could reasonably be expected to

6 cause the severity of the pain alleged, but only that it could have reasonably caused

7 some degree of pain. Vasquez, 572 F.3d at 591 (citing Lingenfelter, 504 F.3d at 1036).

8 Second, if the claimant meets the first step and there is no evidence of

9 malingering, then the ALJ may reject the claimant’s statements about the severity of his

10 symptoms “only by offering specific, clear and convincing reasons for doing so.”

11 Trevizo, 871 F.3d at 678 (quoting Garrison, 759 F.3d at 1014–15). “The clear and

12 convincing standard is the most demanding required in Social Security cases.” Revels,

13 874 F.3d at 655 (quoting Garrison, 759 F.3d at 1014–15). General findings are

14 insufficient, and the ALJ must identify which specific pain and symptom statements are

15 being discounted and what evidence undermines those claims. See Lambert v. Saul, 980

16 F.3d 1266, 1277 (9th Cir. 2020) (citing Treichler v. Comm’r Soc. Sec. Admin., 775 F.3d

17 1090, 1102 (9th Cir. 2014); Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005). An ALJ’s

18 failure to identify specific statements and explain why they are not credible constitutes

19 reversible error because the reviewing court cannot determine if the ALJ’s decision was

20 supported by substantial evidence. See Brown-Hunter v. Colvin, 806 F.3d 487, 489 (9th

21 Cir. 2015); see also SSR 16-3p.

22 “[B]ecause symptoms, such as pain, are subjective and difficult to quantify,” the

23 ALJ considers “all of the evidence presented,” including information about the

24 claimant’s prior work record, statements about their symptoms, evidence submitted by

25 their medical sources, and observations by the Agency’s employees and other persons.

26 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3); SSR 16-3p. Factors the ALJ may consider, in

27 addition to objective medical evidence, include Plaintiff’s daily activities; the location,

2 taken to alleviate pain; treatment; and any other measures used to relieve pain. See 20

3 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3); SSR 16-3p. The ALJ may also consider

4 inconsistencies between Plaintiff’s statements regarding pain and the medical evidence.

5 See 20 C.F.R. §§ 404.1529(c)(4), 416.929(c)(4); SSR 16-3p. “‘[O]nce the claimant

6 produces objective medical evidence of an underlying impairment, an adjudicator may

7 not reject a claimant’s subjective complaints based solely on a lack of objective medical

8 evidence to fully corroborate the alleged severity of pain.’” Bunnell v. Sullivan, 947 F.2d

9 345 (9th Cir. 1991) (quoting Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986.))

10 3. Plaintiff’s testimony

11 During the administrative hearing, Plaintiff testified that she does not have a

12 driver’s license because she would be “too distracted” on the road due to her ADHD.

13 (AR 34–35.) Instead, she uses public transportation or walks. (Id.) Plaintiff stated that

14 she was not presently enrolled in school because she was unable to focus during online

15 classes; however, she said she previously completed four years at Palomar Community

16 College. (AR 35.) Plaintiff further testified that she had no issues with drugs or alcohol.

17 (AR 35–36.) She later clarified that she had stopped vaping and using marijuana since

18 2020 but saw no improvements to her tics or mental health. (AR 38.) With regards to

19 outside activities, Plaintiff said that she had never worked, her only friends are from

20 online video games, and she walks approximately three times per week. (AR 36–37.)

21 Plaintiff testified she is unable to work because she experiences “intense tics”

22 that cause her to pause while talking, which in turn causes her to lose concentration and

23 tic more. (AR 37.) She added that she takes prescription Prozac for her tics and

24 previously took Guanfacine, which partially helped. (Id.) Plaintiff opined that she would

25 probably “get distracted or bored easily” in a work environment and could only handle a

26 four- or five-hour shift. (AR 43.) Plaintiff testified that different people could make her

27 tics worse. (AR 39.) In terms of personal care, Plaintiff said she sometimes went two or

2 that she experiences tics every day, but the intensity fluctuates; she experiences head

3 tics approximately every three minutes. (AR 39–40.)

4 4. The ALJ’s findings

5 After summarizing Plaintiff’s testimony, the ALJ found that Plaintiff’s “medically

6 determinable impairments could reasonably be expected to cause the alleged

7 symptoms.” (AR 20.) However, the ALJ found that Plaintiff’s statements regarding “the

8 intensity, persistence, and limiting effects of these symptoms are not entirely consistent

9 with the medical evidence and other evidence in the record.” (Id.) He explained, “[t]he

10 medical evidence of record shows that the claimant has a history of ADHD, OCD and

11 Tourette’s disorder. However, the evidence does not show that the claimant’s

12 symptoms preclude her from working.” (Id.) In reaching this conclusion, the ALJ

13 highlighted the following medical records:

14 • 6/14/2016 and 7/15/2016: Plaintiff’s mental status evaluations showed poor

insight and moderately impaired judgment, but otherwise “normal affect that was

15

appropriate, congruent, and disinterested.” Plaintiff had “euthymic mood, her

16 speech was child-like but normal, [she] had coherent, logical, relevant, and

concrete thought process, had no suicidal ideations or psychotic thought content,

17

was alert and oriented in all spheres.” (AR 20 (citing AR 232, 234).)

18

• 5/4/2017: Plaintiff reported that her tics were under control with Tenex and her

19

OCD symptoms were under control with Abilify and Luvox. Her doctor discussed

20 restarting Adderall for problems with concentration, but Plaintiff did not want to

at the time. (AR 20 (citing AR 226).)

21

• 9/21/2017: Plaintiff restarted Adderall and stopped taking Abilify on her own due

22

to possible side effects. Despite stopping Abilify, Plaintiff’s mental status

23 evaluations showed that she was alert and oriented, had fair insight, mildly

impaired judgment, and normal mood, affect, speech, and thought process. (AR

24

20 (citing 224).)

25

• 11/2/2017: Plaintiff complained that her tics returned; however, the doctor

26 noted that Plaintiff was not taking her prescribed medication consistently.

Otherwise, Plaintiff was doing well. (AR 20 (citing AR 222).)

27

2 school. She indicated that the tics were a little worse and she experienced

interrupted sleep, but was again not taking her medications as prescribed. (AR 20

3 (citing AR 220).) Plaintiff’s mental status had no significant changes. (AR 21

(citing AR 220–21).)

4

• 6/5/2018: Plaintiff failed to appear for this appointment, but the doctor noted

5

that there appears to be “no urgent needs.” (AR 21 (citing AR 219).)

6 • 10/29/2018: Plaintiff remained inconsistent in taking prescribed medication, but

7 her mental exams were unchanged. She switched from Luvox to Prozac in an

attempt to improve her medication compliance. (AR 21 (citing AR 217).)

8

• 2/1/2019: Plaintiff reported increased anxiety and worsening tics, but also

9 admitted not taking medication twice a day. (AR 21 (citing AR 214).)

10 • 10/14/2019: Plaintiff reported worsening OCD symptoms, but the doctor noted

Plaintiff had been consuming THC and alcohol. Plaintiff “exhibited depressed and

11

anxious mood with congruent and constricted affect and poor insight and

12 moderate impaired judgment.” The doctor advised Plaintiff to abstain from using

drugs and alcohol. (AR 21 (citing AR 213).)7

13

14 Based on the “objective medical evidence, the treating history, the claimant’s subjective

15 complaints, and the medical opinions,” the ALJ concluded Plaintiff had the RFC to

16 perform a full range of work with some nonexertional limitations. (AR 24.)

17 5. Analysis

18 The Court now undertakes the two-step analysis to determine whether the ALJ

19 properly challenged Plaintiff’s subjective symptom testimony. See Johnson, 2022 WL

20 1553259, at *1; Lingenfelter, 504 F.3d at 1035. As discussed above, the ALJ found that

21 Plaintiff’s “medically determinable impairments could reasonably be expected to cause

22 the alleged symptoms.” (AR 20.) This satisfies step one. Trevizo, 871 F.3d at 678.

23 Accordingly, the ALJ may reject Plaintiff’s testimony about the severity of her symptoms

24 only by providing “specific, clear, and convincing” reasons. See Brown-Hunter, 806 F.3d

25

26

7 The ALJ also reviewed and summarized the following: (1) treatment records and opinions by Plaintiff’s

27 psychologist, Dr. Steven Tess; (2) consultative psychological exam performed by Dr. Kathy

2 17, 2022). In addition to giving clear and convincing reasons for rejecting Plaintiff’s

3 testimony, the ALJ “must specifically identify the testimony she or he finds not to be

4 credible and must explain what evidence undermines the testimony.” Holohan v.

5 Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001). General findings are insufficient; the ALJ

6 “must state which pain [or symptom] testimony is not credible and what evidence

7 suggests the complaints are not credible.” Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir.

8 1993) (citing Varney v. Sec’y of Health & Human Servs., 846 F.2d 581, 584 (9th Cir.

9 1988)). Here, the ALJ failed to meet the demanding “clear and convincing” standard for

10 several reasons.

11 a. Discredited testimony

12 First, the ALJ did not “specifically identify” which parts of Plaintiff’s testimony he

13 found not credible and why. Holohan, 246 F.3d at 1208; see also Brown-Hunter, 806

14 F.3d at 494 (“We cannot review whether the ALJ provided specific, clear, and convincing

15 reasons for rejecting [Plaintiff's] testimony where, as here, the ALJ never identified

16 which testimony she found credible, and never explained which evidence contradicted

17 that testimony”). The ALJ generally explained that Plaintiff’s “statements concerning

18 the intensity, persistence and limiting effects of these symptoms are not entirely

19 consistent with the medical evidence and other evidence in the record.” (AR 20.)8 The

20 Ninth Circuit has held that this boilerplate language does not rise to the level of

21 “specific, clear, and convincing” reasons for discounting a claimant’s subjective

22 testimony. See, e.g., Treichler, 775 F.3d at 1103 (holding that a boilerplate introductory

23 sentence falls short of “meeting the ALJ’s responsibility” to discuss the objective

24 evidence); Vasquez, 572 F.3d at 592 (finding that the “vague allegation that [Plaintiff’s

25

26 8 At the administrative hearing, the ALJ elicited minimal testimony about Plaintiff’s symptoms. (See

generally AR 34–45.) Plaintiff briefly discussed her symptoms when the ALJ asked if she had a driver’s

27 license, whether she was in school, and why she thought she could not work. (See AR 34–35, 37.)

2 reject Plaintiff’s subjective testimony). Because the ALJ only broadly referred to

3 Plaintiff’s statements, the Court cannot review whether the ALJ provided clear and

4 convincing reasons for rejecting her testimony. (AR 20.) See also Lambert, 980 F.3d at

5 1277 (holding that while the ALJ does not have to perform a “line-by-line exegesis of the

6 claimant’s testimony,” the ALJ must offer more than a non-specific conclusion that the

7 testimony was inconsistent with medical treatment).

8 Additionally, the ALJ failed to identify specific medical evidence that contradicted

9 Plaintiff’s testimony; instead, he provided a general summary of the medical record and

10 stated his non-credibility conclusion. (AR 20–24.) “[S]imply reciting the medical

11 evidence in support of [a] residual functional capacity determination” does not meet the

12 “clear and convincing” standard for rejecting a claimant’s testimony. Brown-Hunter,

13 806 F.3d at 489; see also Lambert, 980 F.3d at 1278 (holding that a “relatively detailed

14 overview of [the claimant’s] medical history” was not the same as providing clear and

15 convincing reasons for discounting the claimant’s testimony). The ALJ’s medical

16 summary, although detailed, does not make connections to specific portions of

17 Plaintiff’s testimony. (AR 20–24.) While it may be possible to draw inferences about

18 what testimony is inconsistent, it is the duty of the ALJ to identify those inconsistencies

19 with specificity. Lambert, 980 F.3d at 1278 (citing Brown-Hunter, 806 F.3d at 494)

20 (“Although the inconsistencies identified by the district court could be reasonable

21 inferences drawn from the ALJ’s summary of the evidence, the credibility determination

22 is exclusively the ALJ’s to make,” and the reviewing court is “constrained to review the

23 reasons the ALJ asserts.”). Thus, the Court cannot assess whether the ALJ provided

24 specific, clear, and convincing reasons for rejecting Plaintiff’s testimony where, as here,

25 he “never explained which evidence contradicted that testimony.” Brown-Hunter, 806

26 F.3d at 494; see also Juanita R. v. Kijakazi, No. 21cv1296-MDD, 2022 WL 17345782, at *4

27 (S.D. Cal. Nov. 30, 2022). The ALJ’s failure to do so constitutes a harmful error. See,

2 Plaintiff’s statements regarding pain and physical dysfunction he discredited).

3 b. Symptom management

4 Although the ALJ does not explicitly state this, he seems to discount the severity

5 of Plaintiff’s symptoms in part because they are allegedly under control with proper

6 medication compliance. See supra Part V.B.4 (discussing the ALJ’s medical record

7 summary). While the Ninth Circuit has held that the ALJ may rely on “unexplained or

8 inadequately explained failure to seek treatment or to follow a prescribed course of

9 treatment” when weighing a claimant’s credibility, see Tommasetti, 533 F.3d at 1039, it

10 has also ruled that “it is error to reject a claimant’s testimony merely because symptoms

11 wax and wane in the course of treatment.” Garrison, 759 F.3d at 1017. In the context

12 of mental health issues, improvements “must be interpreted with an understanding of

13 the patient’s overall well-being and the nature of her symptoms.” Id. (citing Ryan v.

14 Comm’r Soc. Sec. Admin., 528 F.3d 1194, 1200–01 (9th Cir. 2008)). Here, the ALJ’s

15 medical summary highlighted how Plaintiff’s tics “were under control” with medication

16 and returned or worsened when she was “not taking her medication consistently.” (AR

17 20–21.) Likewise, the ALJ noted how Plaintiff’s OCD symptoms “were under control

18 with . . . Abilify and Luvox.” (AR 20.) However, the ALJ failed to assess Plaintiff’s alleged

19 improvements as they relate to her “overall well-being and nature of her symptoms,”

20 including her other diagnosed impairments of ADHD and learning disorder. Garrison,

21 759 F.3d at 1017.

22 Additionally, an ALJ cannot rely solely on objective medical evidence to discredit

23 an individual’s subjective testimony regarding pain and symptoms. See 20 C.F.R. §

24 404.1529(c)(2); Bunnell, 947 F.2d at 346–347 (holding the “the adjudicator may not

25 discredit a claimant's testimony of pain and deny disability benefits solely because the

26 degree of pain alleged by the claimant is not supported by objective medical evidence”).

27 Aside from this reason the Court has inferred—that Plaintiff’s symptoms are stable with

2 for finding that Plaintiff’s symptoms are under control. Trevizo, 871 F.3d at 678; Brown-

3 Hunter, 806 F.3d at 489.

4 c. Daily activities

5 Lastly, the Commissioner argues that Plaintiff’s ability to perform daily activities

6 undermines her disability claims. (J. Mot. at 35.) Daily activities may be used to

7 discredit an individual’s testimony about the severity of her symptoms if: (1) the

8 activities contradict the individual’s other testimony, or (2) the activities meet the

9 threshold for transferable work skills. Orn v. Astrue, 495 F. 3d 625, 639 (9th Cir. 2007)

10 (citing Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). Here, the ALJ did not cite

11 Plaintiff’s daily activities as a reason for discounting her pain testimony; he merely

12 mentioned them in his summary of the medical record. (AR 20–24.) Thus, the Court

13 agrees with Plaintiff that the issue of Plaintiff’s “sporadic daily activities” is not properly

14 before the Court. (J. Mot. at 27–29.) See Brown-Hunter, 806 F.3d 487, 492 (9th Cir.

15 2015) (the district court is “constrained to review the reasons the ALJ asserts”) (quoting

16 Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003)).

17 Even if the ALJ had articulated Plaintiff’s daily activities as a reason to reject part

18 of her testimony, the Ninth Circuit has “repeatedly asserted that the mere fact that a

19 plaintiff has carried on certain daily activities . . . does not in any way detract from her

20 credibility as to her overall disability. One does not need to be ‘utterly incapacitated’ in

21 order to be disabled.” Vertigan v. Halter, 260 F. 3d 1044, 1050 (9th Cir. 2001) (quoting

22 Fair, 885 F.2d at 603.) Further, “disability claimants should not be penalized for

23 attempting to lead normal lives in the face of their limitations.” Reddick v. Chater, 157

24 F.3d 715, 722 (9th Cir. 1998) (citations omitted). Here, Plaintiff testified to doing

25 activities such as taking college courses, navigating public transportation, and using a

26 computer. (AR 19.) In Vertigan, the Court determined an ALJ erred by discrediting a

27 claimant’s pain allegations because she could “go grocery shopping with assistance,

2 “not necessarily transferable to the work setting” and certainly not dispositive of her

3 ability to work eight hours a day, five days a week. Id.

4 6. Conclusion

5 The ALJ erred by failing to specifically identify which of Plaintiff’s statements he

6 found not credible, or which medical evidence contradicted that testimony. Holohan,

7 246 F.3d at 1208. Although not explicitly stated, the ALJ seems to discredit Plaintiff’s

8 testimony based on Plaintiff’s symptoms being purportedly managed with proper

9 medication compliance. However, the ALJ failed to demonstrate why this undermines

10 Plaintiff’s overall complaints. Garrison, 759 F.3d at 1017. Furthermore, the ALJ may not

11 rely solely on objective medical evidence to discredit Plaintiff’s subjective symptom

12 testimony. Bunnell, 947 F.2d at 346–347. Finally, the Court cannot consider Plaintiff’s

13 daily activities because the ALJ did not articulate this as a reason for discrediting

14 Plaintiff’s testimony. Orn, 495 F. 3d at 639. Even if the ALJ had raised this issue,

15 Plaintiff’s ability to complete daily activities does not necessarily mean she can function

16 in a work environment for extended periods of time. Vertigan, 260 F. 3d at 1050

17 (finding claimant’s ability to drive, grocery shop, or walk for exercise did not discredit

18 her overall disability). Based on the foregoing, the Court finds that the ALJ failed to

19 provide clear and convincing reasons for discounting Plaintiff’s subjective symptom

20 testimony. This error was not harmless because it “precludes us from conducting a

21 meaningful review.” Michael Louis W., 2022 WL 2701988, at *10.

22 VI. CONCLUSION

23 The reviewing court may enter a “judgment affirming, modifying, or reversing”

24 the Commissioner’s decision. 42 U.S.C. § 405(g). The reviewing court may also remand

25 the case to the Social Security Administration for further proceedings. Id. The reviewing

26 court has discretion in determining whether to remand for further proceedings or award

27 benefits. See Salvador v. Sullivan, 917 F.2d 13, 15 (9th Cir. 1990); McAllister v. Sullivan,

1 || additional administrative proceedings could remedy defects in the decision. See Kail v.

2 || Heckler, 722 F.2d 1496, 1497 (9th Cir. 1984). Remand for the payment of benefits is

3 || appropriate where no useful purpose would be served by further administrative

4 || proceedings, where the record has been fully developed, or where remand would

5 || unnecessarily delay the receipt of benefits to which the disabled plaintiff is entitled. See

6 || Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); Bilby v. Schweiker, 762 F.2d

7 719 (9th Cir. 1985); Kornock v. Harris, 648 F.2d 525, 527 (9th Cir. 1980).

8 Here, Plaintiff contends that the Court should reverse and remand for payment,

9 in the alternative, reverse and remand for further administrative proceedings. (J.

10 || Mot. at 13, 30-31.) Defendant asks the Court to affirm the ALJ’s decision, or in the

11 || alternative, to remand for further proceedings. (Id. at 39.) The Court finds that remand

12 || for further proceedings is warranted because additional administrative proceedings

13 || could remedy the defects in the ALJ’s decision. Therefore, the Court ORDERS that

14 || judgment be entered REVERSING the decision of the Commissioner and REMANDING

15 matter for further administrative proceedings pursuant to sentence four of 42

16 || U.S.C. § 405(g).

17 IT IS SO ORDERED.

18 || Dated: August 8, 2023 TZ.

19 4 L <—{—

Honorable Michael S. Berg

United States Magistrate Judge

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