Hart v. Commissioner Social Security Administration

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

JOHN H.1, Case No. 1:21-cv-1233-SI

Plaintiff, OPINION AND ORDER

v.

KILOLO KIJAKAZI, Acting Commissioner

of Social Security,

Defendant.

Katherine L. Eitenmiller and Katie Taylor, WELLS, MANNING, EITENMILLER & TAYLOR, P.C., 474

Willamette Street, Eugene, OR 97401. Of Attorneys for Plaintiff.

Natalie K. Wight, United States Attorney, and Renata Gowie, Civil Division Chief, UNITED

STATES ATTORNEY’S OFFICE, 1000 S.W. Third Avenue, Suite 600, Portland, OR 97204;

Joseph J. Langkamer, Special Assistant United States Attorney, OFFICE OF GENERAL COUNSEL,

Social Security Administration, 701 Fifth Avenue, Suite 2900 M/S 221A, Seattle, WA 98104.

Of Attorneys for Defendant.

Michael H. Simon, District Judge.

John H. brings this appeal to challenge the decision of the Commissioner of the Social

Security Administration (Commissioner) denying applications for Disability Insurance Benefits

1 In the interest of privacy, this Opinion and Order uses only the first name and the initial

of the last name of the non-governmental party in this case. When applicable, this Opinion and

Order uses the same designation for a non-governmental party’s immediate family member.

(DIB) and Supplemental Security Income (SSI) under Titles II and XVI of the Social Security

Act (Act). The Court has jurisdiction to hear this appeal pursuant to 42 U.S.C. § 1383(c)(3),

which incorporates the review provisions of 42 U.S.C. § 405(g). For the reasons explained

below, the Court reverses the Commissioner’s decision.

STANDARD OF REVIEW

The district court must affirm the Commissioner’s decision if it is based on the proper

legal standards and the findings are supported by substantial evidence. 42 U.S.C. § 405(g); see

also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). “Substantial evidence” means

“more than a mere scintilla but less than a preponderance.” Bray v. Comm’r of Soc. Sec.

Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039

(9th Cir. 1995)). Rather, substantial evidence means “such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” Id. (quoting Andrews, 53 F.3d at 1039).

When the evidence is susceptible to more than one rational interpretation, the Court must

uphold the Commissioner’s conclusion. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).

Variable interpretations of the evidence are insignificant if the Commissioner’s interpretation is a

rational reading of the record, and this Court may not substitute its judgment for that of the

Commissioner. See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193, 1196 (9th

Cir. 2004). “[A] reviewing court must consider the entire record as a whole and may not affirm

simply by isolating a specific quantum of supporting evidence.” Orn v. Astrue, 495 F.3d 625,

630 (9th Cir. 2007) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)

(quotation marks omitted)). A reviewing court, however, may not affirm the Commissioner on a

ground upon which the Commissioner did not rely. Id.; see also Bray, 554 F.3d at 1226.

BACKGROUND

A. Plaintiff’s Application

Plaintiff applied for DIB and SSI on March 9, 2018, alleging disability beginning on

October 26, 1978. AR 15, 73. Plaintiff was born on October 26, 1978. AR 72. In April 2020,

Plaintiff amended his alleged onset date to August 13, 2017. AR 16, 257. Thus, Plaintiff was 38

years old as of his amended alleged onset date. In his application, Plaintiff alleged a nonverbal

learning disability, proprioception, communication difficulties, and depression. AR 72, 73. The

Commissioner denied Plaintiff’s applications initially on November 29, 2018, and again upon

reconsideration in March 2019. AR 15. Thereafter, Plaintiff requested a hearing before an

Administrative Law Judge (ALJ). Id.

On January 26, 2021, Plaintiff attended a telephonic hearing. AR 15. The ALJ issued a

decision denying Plaintiff’s claim for benefits in February 2021. AR 24. Plaintiff requested

review of the ALJ’s decision, which the Appeals Council denied. AR 1. Accordingly, the ALJ’s

decision is the final decision of the agency and Plaintiff seeks judicial review of that decision.

B. The Sequential Analysis

A claimant is disabled if he or she is unable to “engage in any substantial gainful activity

by reason of any medically determinable physical or mental impairment which . . . has lasted or

can be expected to last for a continuous period of not less than 12 months[.]” 42 U.S.C.

§ 423(d)(1)(A). “Social Security Regulations set out a five-step sequential process for

determining whether an applicant is disabled within the meaning of the Social Security Act.”

Keyser v. Comm’r Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011); see also 20 C.F.R.

§§ 404.1520 (DIB), 416.920 (SSI); Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Each step may

be potentially dispositive. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The five-step sequential

process asks the following series of questions:

1. Is the claimant performing “substantial gainful activity?” 20 C.F.R.

§§ 404.1520(a)(4)(i), 416.920(a)(4)(i). This activity is work involving

significant mental or physical duties done or intended to be done for pay

or profit. 20 C.F.R. §§ 404.1510, 416.910. If the claimant is performing

such work, she is not disabled within the meaning of the Act. 20 C.F.R.

§§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is not performing

substantial gainful activity, the analysis proceeds to step two.

2. Is the claimant’s impairment “severe” under the Commissioner’s

regulations? 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An

impairment or combination of impairments is “severe” if it significantly

limits the claimant’s physical or mental ability to do basic work activities.

20 C.F.R. §§ 404.1521(a), 416.921(a). Unless expected to result in death,

this impairment must have lasted or be expected to last for a continuous

period of at least 12 months. 20 C.F.R. §§ 404.1509, 416.909. If the

claimant does not have a severe impairment, the analysis ends. 20 C.F.R.

§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a severe

impairment, the analysis proceeds to step three.

3. Does the claimant’s severe impairment “meet or equal” one or more of the

impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so,

then the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii),

416.920(a)(4)(iii). If the impairment does not meet or equal one or more of

the listed impairments, the analysis continues. At that point, the ALJ must

evaluate medical and other relevant evidence to assess and determine the

claimant’s “residual functional capacity” (RFC). This is an assessment of

work-related activities that the claimant may still perform on a regular and

continuing basis, despite any limitations imposed by his or her

impairments. 20 C.F.R. §§ 404.1520(e), 404.1545(b)-(c), 416.920(e),

416.945(b)-(c). After the ALJ determines the claimant’s RFC, the analysis

proceeds to step four.

4. Can the claimant perform his or her “past relevant work” with this RFC

assessment? If so, then the claimant is not disabled. 20 C.F.R.

§§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant cannot perform

his or her past relevant work, the analysis proceeds to step five.

5. Considering the claimant’s RFC and age, education, and work experience,

is the claimant able to make an adjustment to other work that exists in

significant numbers in the national economy? If so, then the claimant is

not disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v),

404.1560(c), 416.960(c). If the claimant cannot perform such work, he or

she is disabled. Id.

See also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001).

The claimant bears the burden of proof at steps one through four. Id. at 953; see also

Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999); Yuckert, 482 U.S. at 140-41. The

Commissioner bears the burden of proof at step five. Tackett, 180 F.3d at 1100. At step five, the

Commissioner must show that the claimant can perform other work that exists in significant

numbers in the national economy, “taking into consideration the claimant’s residual functional

capacity, age, education, and work experience.” Id.; see also 20 C.F.R. §§ 404.1566, 416.966

(describing “work which exists in the national economy”). If the Commissioner fails to meet this

burden, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If, however,

the Commissioner proves that the claimant is able to perform other work existing in significant

numbers in the national economy, the claimant is not disabled. Bustamante, 262 F.3d at 953-54;

Tackett, 180 F.3d at 1099.

C. The ALJ’s Decision

The ALJ applied the five-step sequential process to determine whether Plaintiff was

disabled. AR 16-19. As a preliminary step for Plaintiff’s DIB claim, the ALJ found that Plaintiff

met the insured status requirement through March 31, 2021. AR 17. At step one, the ALJ

determined that Plaintiff had not engaged in substantial gainful activity after his alleged onset

date of August 13, 2017. Id. At step two, the ALJ determined that Plaintiff suffered from the

following severe impairments: depressive disorder; unspecified neurodevelopment disorder

(nonverbal learning disorder); obsessive-compulsive personality disorder; generalized anxiety

disorder; and substance abuse (status-post substance rehab program). AR 17-18.

At step three, the ALJ concluded that Plaintiff did not have an impairment or

combination of impairments that meets or equals a Listing. AR 18. Because the ALJ found no

impairment qualifying Plaintiff as disabled, the ALJ assessed Plaintiff’s RFC before moving to

step four of the sequential analysis. AR 19-22. The ALJ found that Plaintiff could perform a full

range of work at all exertional levels, but had the following additional nonexertional limitations:

[Plaintiff] is limited to understanding, remembering, and carrying

out only simple, routine tasks consistent with DOT GED reasoning

level of 2 or less and is incapable of fast passed, production-type of

work. His is capable of only occasional, brief, superficial

interaction with co-workers, supervisors and the public. He needs

static work environment with few changes in work routines and

settings.

AR 19.

At step four, the ALJ found that Plaintiff was unable to perform any of his past relevant

work. AR 22. At step five, the ALJ considered Plaintiff’s age, education, work experience, RFC,

and the opinion of a vocational expert. From this five-step process, the ALJ determined Plaintiff

could perform jobs existing in significant numbers in the national economy. AR 23. The ALJ

therefore concluded that Plaintiff was not disabled from the amended alleged onset date through

February 22, 2021, the date of the ALJ’s decision. AR 24.

DISCUSSION

Plaintiff contends that the ALJ erred in discounting Plaintiff’s testimony and rejecting lay

witness testimony. Each alleged error is addressed in turn

A. Plaintiff’s Testimony

There is a two-step process for evaluating a claimant’s testimony about the severity and

limiting effect of the claimant’s symptoms. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009).

“First, the ALJ must determine whether the claimant has presented objective medical evidence of

an underlying impairment ‘which could reasonably be expected to produce the pain or other

symptoms alleged.’” Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (quoting

Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). When doing so, “the claimant

need not show that her impairment could reasonably be expected to cause the severity of the

symptom she has alleged; she need only show that it could reasonably have caused some degree

of the symptom.” Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996). Here, the ALJ found the

that Plaintiff suffered severe impairments, thus satisfying this first step of the two-step

evaluation. AR 17-18.

“Second, if the claimant meets this first test, and there is no evidence of malingering, ‘the

ALJ can reject the claimant’s testimony about the severity of her symptoms only by offering

specific, clear and convincing reasons for doing so.’” Lingenfelter, 504 F.3d at 1036 (quoting

Smolen, 80 F.3d at 1281). Those reasons must be “sufficiently specific to permit the reviewing

court to conclude that the ALJ did not arbitrarily discredit the claimant’s testimony.” Orteza v.

Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (citing Bunnell, 947 F.2d at 345-46). An ALJ may not

single out isolated examples of temporary well-being or relief from disabling symptoms to reject

testimony as inconsistent with the medical record as a whole. Garrison v. Colvin, 759 F.3d 995,

999 (9th Cir. 2014); see also Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001) (noting

that just because “a person who suffers from severe panic attacks, anxiety, and depression makes

some improvement does not mean that the person’s impairments no longer seriously affect her

ability to function in a workplace”).

Consideration of subjective symptom testimony “is not an examination of an individual’s

character,” and requires the ALJ to consider all of the evidence in an individual’s record when

evaluating the intensity and persistence of symptoms. SSR 16-3p, available at 2016

WL 1119029, at *1-2. The Commissioner recommends assessing: (1) the claimant’s statements

made to the Commissioner, medical providers, and others regarding the claimant’s location,

frequency and duration of symptoms, the impact of the symptoms on daily living activities,

factors that precipitate and aggravate symptoms, medications and treatments used, and other

methods used to alleviate symptoms; (2) medical source opinions, statements, and medical

reports regarding the claimant’s history, treatment, responses to treatment, prior work record,

efforts to work, daily activities, and other information concerning the intensity, persistence, and

limiting effects of an individual’s symptoms; and (3) non-medical source statements, considering

how consistent those statements are with the claimant’s statements about his or her symptoms

and other evidence in the file. See id. at *6-7.

The ALJ’s decision relating to a claimant’s subjective testimony may be upheld overall

even if not all the ALJ’s reasons for discounting the claimant’s testimony are upheld. See

Batson, 359 F.3d at 1197. The ALJ may not, however, discount testimony “solely because” the

claimant’s symptom testimony “is not substantiated affirmatively by objective medical

evidence.” Robbins, 466 F.3d at 883.

An ALJ must specifically identify what evidence contradicted what

testimony. See Smolen, 80 F.3d at 1284 (“The ALJ must state specifically which symptom

testimony is not credible and what facts in the record lead to that conclusion.”). A court “cannot

review whether the ALJ provided specific, clear, and convincing reasons for rejecting [a

clamaint’s] pain testimony where . . . the ALJ never identified which testimony she found not

credible, and never explained which evidence contradicted that testimony.” Lambert v. Saul, 980

F.3d 1266, 1277 (9th Cir. 2020) (emphasis in original) (quoting Brown-Hunter v. Colvin, 806

F.3d 487, 494 (9th Cir. 2015)). “[A]n ALJ does not provide specific, clear, and convincing

reasons for rejecting a claimant’s testimony by simply reciting the medical evidence in support

of his or her residual functional capacity determination” but must “specify which testimony she

finds not credible,” and the district court may not “comb the administrative record to find

specific conflicts.” Brown-Hunter, 806 F.3d at 489 (quoting Burrell v. Colvin, 775 F.3d 1133,

1139 (9th Cir. 2014)); see also Lambert, 980 F.3d at 1278 (stating that “provid[ing] a relatively

detailed overview of [a claimant’s] medical history . . . ‘is not the same as providing clear and

convincing reasons for finding the claimant’s symptom testimony not credible.’”) (emphasis in

original) (quoting Brown-Hunter, 806 F.3d at 494). Instead, the ALJ must “identify the

testimony she found not credible” and “link that testimony to the particular parts of the record

supporting her non-credibility determination.” Brown-Hunter, 806 F.3d at 494. Failure to do so

is legal error. Id.

The ALJ found that Plaintiff’s impairments could reasonably be expected to cause the

alleged symptoms and did not find evidence of malingering. The ALJ, however, discounted the

extent of Plaintiff’s alleged symptoms because his symptoms improved with treatment, he could

work on a literary project, and his symptoms were “inconsistent because they are not supported

by the medical evidence record.” Each reason is addressed in turn.2

1. Improvement with Treatment

A claimant’s improvement with treatment is “an important indicator of the intensity and

persistence of . . . symptoms.” 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3). “[E]vidence of

medical treatment successfully relieving symptoms can undermine a claim of disability.”

Wellington v. Berryhill, 878 F.3d 867, 876 (9th Cir. 2017); see also Warre v. Comm’r of Soc.

Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (“Impairments that can be controlled

effectively with medication are not disabling for the purpose of determining eligibility for SSI

2 The Commissioner argues additional reasons in her brief, but those reasons are post hoc

rationalizations provided by the Commissioner. The Court discusses only the reasons provided

by the ALJ in his opinion. See Bray, 554 F.3d at 1225 (“Long-standing principles of

administrative law require us to review the ALJ’s decision based on the reasoning and factual

findings offered by the ALJ—not post hoc rationalizations that attempt to intuit what the

adjudicator may have been thinking.”).

benefits.”). “Reports of ‘improvement’ in the context of mental health issues must be interpreted

with an understanding of the patient’s overall well-being and the nature of her symptoms and

with an awareness that improved functioning while being treated and while limiting

environmental stressors does not always mean that a claimant can function effectively in the

workplace.” Garrison, 759 F.3d at 1017 (cleaned up). “The fact that a person suffering from

depression makes some improvement does not mean that the person’s impairment no longer

seriously affects his ability to function in a workplace.” Ghanim v. Colvin, 763 F.3d 1154, 1162

(9th Cir. 2014) (cleaned up).

As the Ninth Circuit explained in Garrison,

It is error to reject a claimant’s testimony merely because

symptoms wax and wane in the course of treatment. Cycles of

improvement and debilitating symptoms are a common occurrence,

and in such circumstances it is error for an ALJ to pick out a few

isolated instances of improvement over a period of months or years

and to treat them as a basis for concluding a claimant is capable of

working.

Garrison, 759 F.3d at 1017.

The ALJ isolated a few examples of Plaintiff’s improved symptoms following treatment

for depression. In May 2015, Plaintiff was evaluated by Dr. Mercedes Dickinson, Ph.D. AR 423.

In her recommendation, Dr. Dickinson suggested that Plaintiff seek counseling to address his

depression even though his symptoms appeared adequately managed. AR 428. The ALJ

highlighted that in November 2015, Plaintiff reported his depressive symptoms improved with

medication management. AR 20, citing AR 444. The ALJ also referenced Plaintiff’s report of

similar good results for depression symptoms in a January 2017 treatment note. AR 20, citing

AR 456. The ALJ summarized from these two treatment notes that Plaintiff “has reported that

medication management is effective in managing Plaintiff’s depressive symptoms.” AR 20,

citing AR 444, 456. The ALJ also noted that Plaintiff had managed his anxiety with daily

cannabis use. AR 20. Plaintiff testified that as of the hearing he had not treated with cannabis

in 18 months and the record supports that he had ended his cannabis use. AR 46, 548.

The ALJ relies on a handful of treatment notes where Plaintiff self-reports that he is

“doing well.” For example, the ALJ cites a June 2020 treatment note where Plaintiff states that

he is doing well. AR 21. A further review of that treatment note belies Plaintiff’s self-report.

Plaintiff was moving in with his parents because of his limitations. In addition, Plaintiff had so

much difficulty focusing during that treatment session it was shortened. AR 548. The ALJ should

have considered these facts and not merely the superficial statement by Plaintiff that he was

“doing well.”

Additionally, reports of improvement in symptoms “must also be interpreted with an

awareness that improved functioning while being treated and while limiting environmental

stressors does not always mean that a claimant can function effectively in a workplace.”

Garrison, 759 F.3d at 1017 (citing Scott v. Astrue, 647 F.3d 734, 739-40 (7th Cir. 2011) (“There

can be a great distance between a patient who responds to treatment and one who is able to enter

the workforce.”). Here, the ALJ failed to consider whether Plaintiff’s reports of improvements

was the product of his environment—with limited stressors and being taken care of by his

parents—and how that might change once Plaintiff is not in such a setting. See, e.g., Hutsell v.

Massanari, 259 F.3d 707, 712 (8th Cir. 2001) (“We also believe that the Commissioner

erroneously relied too heavily on indications in the medical record that Hutsell was ‘doing well,’

because doing well for the purposes of a treatment program has no necessary relation to a

claimant’s ability to work or to her work-related functional capacity.”).

Further, the ALJ’s opinion does not reference any improvement, treatment, or

management of Plaintiff’s other mental health impairments that the ALJ found were severe

impairments, including Plaintiff’s neurodevelopment disorder and obsessive-compulsive

disorder. Plaintiff has suffered from the symptoms of his mental health disorders since

childhood. AR 327, 334. For the evaluative period of August 13, 2017 to the date of the hearing,

the ALJ relied upon few instances in the record of improvement of depression or generalized

statements that Plaintiff was “doing well.” This was insufficient to show that Plaintiff’s mental

health impairments improved with treatment enough to provide clear and convincing reasons to

discount Plaintiff’s testimony.

2. Activities—Literary Project

Daily living activities may provide a basis for discounting subjective symptoms if the

plaintiff’s activities either contradict his testimony or meet the threshold for transferable work

skills. See Molina v. Astrue, 674 F.3d 1104, 1112-13 (9th Cir. 2012); Orn, 495 F.3d at 639. For

daily activities to discount subjective symptom testimony, the activities do not need to be

equivalent to full-time work; it is sufficient that the plaintiff’s activities “contradict claims of a

totally debilitating impairment.” Molina, 674 F.3d at 1113. A claimant, however, need not be

utterly incapacitated to receive disability benefits, and completion of certain routine activities is

insufficient to discount subjective symptom testimony. See id. at 1112-13 (noting that a

“claimant need not vegetate in a dark room in order to be eligible for benefits”) (quotation marks

omitted); Benecke v. Barnhart, 379 F.3d 587, 594 (9th Cir. 2004) (“One does not need to be

‘utterly incapacitated’ in order to be disabled.”). The Ninth Circuit “has repeatedly asserted that

the mere fact that a plaintiff has carried on certain daily activities, such as grocery shopping,

driving a car, or limited walking for exercise, does not in any way detract from her credibility as

to her overall disability.” Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001); see also

Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (requiring the level of activity be

inconsistent with the plaintiff’s claimed limitations to be relevant to his or her credibility and

noting that “disability claimants should not be penalized for attempting to lead normal lives in

the face of their limitations”). Moreover, particularly with certain conditions, cycles of

improvement may be a common occurrence, and it is error for an ALJ to pick out a few isolated

instances of improvement over a period of months or years and treat them as a basis for

concluding that a plaintiff is capable of working. See Garrison, 759 F.3d at 1017.

The ALJ determined that Plaintiff’s ability to focus for long periods of time on his

“passion project” of working on his Frankenstein book was sufficient for Plaintiff to “carry out

simple, routine tasks consistent with DOT GED reasoning level of 2 or less.” AR 19. This

determination is misplaced. Plaintiff testified about his work on a literary “passion project” and

hoped to have the book published. AR 20, 493. At the time of the hearing, the ALJ inquired

about the project. AR 38-43, 47-50. Plaintiff testified the project began several years ago,

is more than 3,000 pages, requires ongoing research and, as of the hearing, remains incomplete

despite motivation to publish the novel. AR 40, 47, 56-57. The fact that Plaintiff has spent years

working on a project while in a sheltered home environment, the project is close to 3,000 pages,

and remains unfinished, is not a clear and convincing reason to discount Plaintiff’s testimony

regarding his limitations in concentration, persistence, or pace. It does not provide support that

Plaintiff can perform in a work environment where he will need to focus on and complete tasks.

3. Objective Medical Evidence

The ALJ began his assessment of Plaintiff’s testimony by stating that it was “not entirely

consistent with the medical evidence and other evidence in the record for the reasons explained

in this decision” and that Plaintiff’s statements were “inconsistent because they are not supported

by the medical evidence of record.” AR 20. The ALJ continued with a general narrative

describing Plaintiff’s medical records, highlighting certain aspects of treatment notes that

supported the ALJ’s findings. AR 20-21. Nowhere did the ALJ perform the required analysis of

specifying which testimony he was discounting and linking it with which medical evidence

contradicted or failed to support the testimony. See Lambert, 980 F.3d at 1277; Brown-

Hunter, 806 F.3d at 494; Smolen, 80 F.3d at 1284.

An ALJ may not vaguely conclude that “a claimant’s testimony is ‘not consistent with the

objective medical evidence,’ without any ‘specific findings in support’ of that conclusion.”

Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1103 (9th Cir. 2014) (quoting Vasquez,

572 F.3d at 592 Astur). Simply because an ALJ “set out his RFC and summarized the evidence

supporting his determination” does not create a sufficient basis on which a court can infer “that

the ALJ rejected [the petitioner’s] testimony to the extent it conflicted with that medical

evidence.” Id. That is all the ALJ did here—he made a vague statement that Plaintiff’s testimony

conflicted with the medical evidence and summarized the evidence, highlighting the evidence

supporting the ALJ’s determination. The ALJ’s analysis fails under Treichler, Brown-Hunter,

Smolen, and other Ninth Circuit cases requiring the ALJ to identify the Plaintiff’s specific

testimony and link it with conflicting medical evidence.

Further, even if the ALJ did provide specific testimony unsupported by the medical

record, the lack of corroborating objective medical evidence alone is only a “relevant factor in

determining the severity” of claimant’s alleged symptoms. Rollins v. Massanari, 261 F.3d 853,

857 (9th Cir. 2001). The ALJ may not “discredit the claimant’s testimony as to subjective

symptoms merely because they are unsupported by objective evidence.” Berry v. Astrue, 622

F.3d 1228, 1234 (9th Cir. 2010) (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)); see

also 20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2) (noting that the Commissioner “will not reject

your statements about the intensity and persistence of your pain or other symptoms or about the

effect your symptoms have on your ability to work solely because the available objective

medical evidence does not substantiate your statements”). The ALJ failed to provide a clear and

convincing reason to discount Plaintiff’s testimony.

B. Lay Witness Testimony

“In determining whether a claimant is disabled, an ALJ must consider lay witness

testimony concerning a claimant’s ability to work.” Stout v. Comm’r, 454 F.3d at 1050, 1053

(9th Cir. 2006). Lay witness testimony about a claimant’s symptoms or how an impairment

affects [his] ability to work is competent evidence. Id. Thus, an ALJ may not reject such

testimony without comment. Id. In rejecting lay witness testimony, the ALJ need not “discuss

every witness’s testimony on an individualized, witness-by-witness basis. Rather, if the ALJ

gives germane reasons for rejecting testimony by one witness, the ALJ need only point to those

reasons when rejecting similar testimony by a different witness.” Molina, 674 F.3d at 1114.

An ALJ errs by failing to “explain her reasons for disregarding . . . lay witness testimony,

either individually or in the aggregate.” Id. at 1115 (quoting Nguyen v. Chater, 100 F.3d 1462,

1467 (9th Cir. 1996)). This error may be harmless “where the testimony is similar to other

testimony that the ALJ validly discounted, or where the testimony is contradicted by more

reliable medical evidence that the ALJ credited.” See id. at 1118-19. Additionally, “an ALJ’s

failure to comment upon lay witness testimony is harmless where ‘the same evidence that the

ALJ referred to in discrediting [the claimant’s] claims also discredits [the lay witness’] claims.’”

Id. at 1122 (quoting Buckner v. Astrue, 646 F.3d 549, 560 (8th Cir. 2011)). “[A] reviewing court

cannot consider the error harmless unless it can confidently conclude that no reasonable ALJ,

when fully crediting the testimony, could have reached a different disability determination.”

Stout, 454 F.3d at 1056.

Plaintiff’s parents and step-grandmother submitted four written statements and completed

one Third-Party Function Report on behalf of Plaintiff’s DIB and SSI claims. AR 5-8, 335-43,

344-45, 360, 389-90, 394-95, 396-97. Plaintiff’s parents Connie and Kenneth H. submitted three

written statements (one authored jointly, two authored separately). AR 344-45, 394-97. Step-

grandparent Phyllis H. attached a supplemental written statement with her Third-Party Function

Report and an additional statement dated May 8, 2020. AR 335-43, 360, 389-90. Phyllis H.

married Plaintiff’s grandfather prior to Plaintiff’s birth. AR 360.

The ALJ stated that he “considered” the lay witness statements but he “decline[d] to

evaluate the[ir] persuasiveness” because he they are not “opinions” under current social security

rules and regulations. AR 22. The Commissioner argues this was not error because the revised

regulations describing how to evaluate medical opinion testimony state that nonmedical opinion

testimony need not be evaluated using the same criteria as medical opinions. See 20 C.F.R.

§§ 404.1520c(d); 416.920c(d). This argument is unpersuasive.

The revised regulations describe how to evaluate medical opinion testimony. The fact

that the regulations state that nonmedical opinion testimony is not held to the same standard as

medical opinion testimony says nothing about the standard to which nonmedical opinion

testimony is held. Thus, the new regulations are not “clearly irreconcilable” with existing

caselaw and are insufficient to overrule binding Ninth Circuit precedent that an ALJ must

comment on lay witness testimony and provide germane reasons to discount it. See Woods v.

Kijakazi, 32 F.4th 785, 790 (9th Cir. 2022) (“Our precedent controls unless its reasoning or

theory is clearly irreconcilable with the reasoning or theory of intervening higher authority,

which in this case is the agency’s updated regulations.”).

The Commissioner also argues that any error the ALJ committed in failing to address the

lay witness submissions was harmless because the lay testimony identified no limitation not

already accounted for in Plaintiff’s testimony, and that the Court can therefore discount the lay

testimony for the same reasons the ALJ rejected Plaintiff’s testimony. Because the Court rejected

the ALJ’s reasons to discount Plaintiff’s testimony, those reasons do not provide a basis to

discount the lay testimony. Thus, the ALJ committed harmful error.

C. Remand for Further Proceedings

Within the Court’s discretion under 42 U.S.C. § 405(g) is the “decision whether to

remand for further proceedings or for an award of benefits.” Holohan, 246 F.3d at 1210.

Although a court should generally remand to the agency for additional investigation or

explanation, a court has discretion to remand for immediate payment of benefits. Treichler, 775

F.3d at 1099-1100. The issue turns on the utility of further proceedings. A court may not award

benefits punitively and must conduct a “credit-as-true” analysis on evidence that has been

improperly rejected by the ALJ to determine if a claimant is disabled under the Social Security

Act. Strauss v. Comm’r of the Soc. Sec. Admin., 635 F.3d 1135, 1138 (9th Cir. 2011).

In the Ninth Circuit, the “credit-as-true” doctrine is binding on this Court. Garrison, 759

F.3d at 999. The Court first determines whether the ALJ made a legal error and then reviews the

entire record to determine whether it is fully developed, free from conflicts and ambiguities, and

whether there is any useful purpose in further proceedings. Dominguez v. Colvin, 808 F.3d 403,

407 (9th Cir. 2015). Only if the record has been fully developed and there are no outstanding

issues does the Court consider whether the ALJ must find the claimant disabled on remand if the

improperly discredited evidence were credited as true. Id. If so, the Court can exercise its

discretion to remand for an award of benefits. Id. The Court retains flexibility, however, and is

not required to credit statements as true merely because the ALJ made a legal error. Id. at 408.

The ALJ committed reversible error for failing to provide specific, clear and convincing

reasons to reject Plaintiff’s subjective testimony and for rejecting lay witness testimony without

explanation. The Court does not, however, find that the record is free of all conflicts and

ambiguities. The ALJ needs to explain his reasoning regarding the lay witness testimony and

there are conflicts among, for example, some of the medical provider opinions and Plaintiff’s

testimony. The Court therefore declines to remand for an award of benefits.

CONCLUSION

The Commissioner’s decision that Plaintiff was not disabled is REVERSED AND

REMANDED for further proceedings consistent with this Opinion and Order.

IT IS SO ORDERED.

DATED this 14th day of October, 2022.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge