Van Metre v. Commissioner Social Security Administration

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

STEVEN V.1, Case No. 3:21-cv-1373-SI

Plaintiff, OPINION AND ORDER

v.

KILOLO KIJAKAZI, Acting

Commissioner of Social Security,

Defendant.

Betsy R. Shepherd, 425 Riverwalk Manor Dr., Dallas, GA 30132. 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;

Frederick Fripps, 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.

Plaintiff Steven V. appeals the final decision of the Commissioner of the Social Security

Administration (Commissioner) denying Plaintiff’s application 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) under Title II 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). As explained below, the Court reverses the Commissioner’s decision and

remands for further proceedings.

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)). It means “such relevant evidence as a reasonable mind might accept as adequate

to support a conclusion.” Id. (quoting Andrews, 53 F.3d at 1039).

If 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 formerly worked as a deputy sheriff. AR 48. He applied for DIB on July 23,

2018, alleging disability beginning December 26, 2017. AR 25, 173. Plaintiff was born on

September 1, 1973, and was 44 years old at the alleged onset date of his disabilities; he is now 49

years old. AR 66, 173. Plaintiff alleges a combination of medical impairments, including post-

traumatic stress disorder (PTSD), depression, anxiety, osteoarthritis of the right shoulder, and

obesity, see AR 27, 90, and an inability to work due to PTSD. AR 66-67, 199.

The Commissioner denied these claims on July 11, 2019, and again upon reconsideration

on April 22, 2020. AR 25. Plaintiff then filed a written request for hearing before an

administrative law judge (ALJ), received on June 19, 2020. Id. Plaintiff participated in a

telephone hearing with his attorney, ALJ Derek Johnson, and a vocational expert (VE) on

November 5, 2020. Id. In a decision dated November 30, 2020, the ALJ found that Plaintiff is

not disabled. AR 22-38. Plaintiff timely appealed the ALJ’s decision to the Appeals Council,

which denied his request for review on July 27, 2021. AR 1-6. The Appeals Council’s denial

made the ALJ’s opinion the final decision of the Commissioner. Plaintiff appeals that decision to

this Court. Plaintiff’s appeal focuses on his alleged mental disabilities, including PTSD.

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 could

be 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

As a preliminary step to Plaintiff’s DIB claim, the ALJ found that Plaintiff met the

insured status through December 31, 2023. At step one of the sequential analysis, the ALJ

determined that Plaintiff had not engaged in substantial gainful activity since December 26,

2017, the alleged onset date. AR 27. At step two, the ALJ found that Plaintiff suffered from five

severe medically determinable impairments: right shoulder osteoarthritis; obesity; depression;

anxiety; and PTSD. Id. At step three, the ALJ determined that Plaintiff does not have an

impairment or combination of impairments that meets or medically equals the severity of the

listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. AR 28.

The ALJ next determined that Plaintiff had the RFC to perform light work as defined

in 20 C.F.R. 404.1567(b) with these limitations:

[H]e can never crawl or climb ladders, ropes, or scaffolds. He can

tolerate occasional exposure to extreme cold and vibration. He can

tolerate no exposure to hazards such as unprotected heights and

moving mechanical machinery. He can occasionally reach

overhead with the dominant right upper extremity. He can

understand, remember, and carry out simple, routine tasks in a

routine work setting involving few workplace changes. He can

never perform rapid pace assembly line work. He can tolerate

occasional superficial interaction with the general public. He can

tolerate occasional interaction with supervisors and coworkers but

not in a cooperative or team effort.

AR 30. In reaching his RFC assessment, the ALJ found that Plaintiff’s statements related to the

intensity, persistence, and limiting effects of his alleged symptoms were not entirely consistent

with the medical evidence and other evidence in the record. AR 31. After finding that “[t]he

evidence suggests that the claimant is more active and capable than he alleged” and “[t]he

medical evidence does not substantiate the alleged severity of the claimant’s condition,” AR 31,

the ALJ concluded that the evidence did not support a more restrictive RFC assessment. AR 36.

At step four, the ALJ determined that Plaintiff could not perform any of his past relevant

work. Id. At step five, after considering Plaintiff’s age, education, work experience, and RFC,

the ALJ found that Plaintiff could perform jobs existing in significant numbers in the national

economy. AR 37. Accordingly, the ALJ concluded that Plaintiff was not disabled from the

alleged onset date through November 30, 2020, the date of the ALJ’s decision. AR 38.

DISCUSSION

Plaintiff argues that the ALJ erred by: (1) failing to conclude at step three that Plaintiff’s

mental impairments meet or equal a listed impairment for trauma- and stressor-related disorders,

Listing 12.15; (2) improperly discounting the medical opinions of Drs. Soroush Mohandessi,

M.D., and Sarah Eckstein, Ph.D.; (3) improperly rejecting Plaintiff’s testimony; and (4) reaching

an improper conclusion at step five. Because Plaintiff’s argument that the ALJ erred in

evaluating whether Plaintiff meets or equals Listing 12.15 depends in part on the testimony of

Plaintiff and Drs. Mohandessi and Eckstein, the Court discusses these issues first.

A. Plaintiff’s Testimony

1. Standards

A claimant “may make statements about the intensity, persistence, and limiting effects of

his or her symptoms.” SSR 16-3p, 2017 WL 5180304, at *6 (Oct. 25 2017).2 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).

“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

2 Effective March 28, 2016, Social Security Ruling (SSR) 96-7p was superseded by SSR

16-3p, which eliminates the term “credibility” from the agency’s sub-regulatory policy. SSR 16-

3p; Titles II and XVI: Evaluation of Symptoms in Disability Claims, 81 Fed. Reg. 14166 (Mar.

16, 2016). Because, however, case law references the term “credibility,” it may be used in this

Opinion and Order.

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

Smolen, 80 F.3d at 1281). It is “not sufficient for the ALJ to make only general findings; he must

state which pain testimony is not credible and what evidence suggests the complaints are not

credible.” Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). 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).

2. Analysis

The ALJ does not dispute that Plaintiff’s medically determinable impairments could

reasonably be expected to cause the alleged symptoms, and the ALJ made no finding of

malingering. Accordingly, the Court moves to the second step of the credibility analysis, at

which the ALJ was required to make specific, clear, and convincing findings to support his

rejection of Plaintiff’s testimony. Lingenfelter, 504 F.3d at 1036. The ALJ found that the

objective medical evidence was inconsistent with the degree of impairment Plaintiff reported and

asserted that Plaintiff’s ability to perform activities of daily living contradicted Plaintiff’s

allegations. AR 31.

a. Specificity

An ALJ must specifically identify what evidence contradicted what

testimony. See Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1103 (9th

Cir. 2014) (stating that 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” (quoting Vasquez v. Astrue, 572 F.3d 586, 592 (9th Cir. 2009))). 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, 494 (quoting Burrell v. Colvin, 775

F.3d 1133, 1138 (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)); Treichler, 775 F.3d at 1103

(rejecting the argument that because the ALJ “set out his RFC and summarized the evidence

supporting his determination” the court could infer “that the ALJ rejected [petitioner’s]

testimony to the extent it conflicted with that medical evidence”); 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.”). 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.

Plaintiff contends that the ALJ erred in failing to identify specific aspects of the record

that deviated from specific aspects of Plaintiff’s testimony. The ALJ, however, did specify

testimony that he found not credible and cited portions of the record that the ALJ found not to

support that testimony, as follows:

The evidence suggests that the claimant is more active and capable

than he alleged. He testified that he did not have any hobbies, that

he mostly stayed at home other than attending his appointments

and taking his youngest child to and from school, and that he did

not really socialize outside of his best friend. According to the

evidence, however, he enjoyed working out at the gym

(3F29)[AR 339], he had an active social life with a close group of

friends, and he engaged in many leisure activities with and without

his friends (5F2)[AR 446].

AR 31. The ALJ also generally asserted that the medical evidence does not substantiate

Plaintiff’s claimed limitations. Whether these proffered reasons are clear and convincing and

supported by substantial evidence is analyzed below.

b. Daily Living Activities

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

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

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

F.3d 625, 639 (9th Cir. 2007). For daily activities to discount subjective symptom testimony, the

activities need not resemble 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 cannot 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 several months or years and to treat them as a basis for

concluding that a plaintiff is able to work. See Garrison v. Colvin, 759 F.3d 995, 1017 (9th

Cir. 2014).

In discussing the functional limitations of Plaintiff’s PTSD, the ALJ cited evidence of

Plaintiff’s ability to live on his own, drive, take his son to school, cook, and care for his children

and a puppy as indications that Plaintiff had basic memory abilities, sustained attention skills,

and ability to manage himself. AR 29 (citing, e.g., AR 447 (describing no impairment in

activities of daily living) and AR 499 (“Daytime function: He feels able to function ok.”)). As for

Plaintiff’s testimony that he avoids socializing and struggles to be around people, the ALJ cited

evidence that the ALJ described as indicating only a moderate limitation in interacting with

others, such as the ability to go to the gym, take his children to the park and movies, and

maintain an active social life. AR 29 (citing, e.g., AR 446 (“[Plaintiff] described having an active

social life with a close group of friends. He endorsed current engagement in many leisure

activities with (and without) his friends.”)).

The ALJ mischaracterized several of these activities. On Plaintiff’s ability to care for his

children, the ALJ ignores that Plaintiff only has custody of his children every other week,

Plaintiff’s son wakes Plaintiff up in the morning to take him to school, and Plaintiff does very

little before picking up his son in the afternoon. AR 62. On memory and attention, the ALJ

spotlights Plaintiff’s ability to cook, but Plaintiff reports that he is unable to get through a recipe

without reading it multiple times. AR 224, 257. On interacting with others, the ALJ cites an

orthopedic intake form in which Plaintiff reported that he enjoys working out at the gym,

AR 339, 578, but the ALJ offers no evidence about Plaintiff’s frequency of gym visits, the

duration of this visits, or how much social interaction Plaintiff might have during his workouts.

In fact, Plaintiff states that he “tr[ies] and go[es] to [the] gym” and exercises three times a week,

but otherwise does not like leaving his house. AR 220, 223-25. Plaintiff’s occasional gym visits

do not undermine his testimony about his “depression days,” when Plaintiff does not leave the

house, AR 494, or his reported dislike of crowds. Attending a gym is not necessarily inconsistent

with avoiding crowds—there are times a gym is less likely to have crowds. See, e.g., Bryant v.

Comm’r of Soc. Sec. Admin., 2020 WL 13470566, at *7 (N.D. Fla. Sept. 15, 2020) (noting that

claimant “goes to the gym when it is empty to avoid people because he does not like crowds”);

John N. v. Berryhill, 2019 WL 1861311, at *3 (C.D. Cal. Apr. 25, 2019) (noting that claimant

goes to the gym but avoids crowds there); Guzman v. Colvin, 2016 WL 4745175, at *4 (D.N.J.

Sept. 12, 2016) (noting that claimant “frequents a gym . . . although he does so only when there

are not too many people around because he feels anxious in crowds”). The ALJ did not follow up

with Plaintiff regarding his reported gym use and instead made an unsupported assumption based

on a medical chart note. Further, Plaintiff should not be penalized for attempting to exercise. Cf.

Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998).

The ALJ also points to Plaintiff’s purported social abilities, but Plaintiff does not

socialize beyond his best friend and preestablished relationships. AR 63, 223, 446. The ALJ also

cites to one report of Plaintiff taking his children to the park and movies, AR 301, which could

contradict Plaintiff’s anxiety around crowds, but no evidence indicates whether these were

frequent activities or rather “a few isolated instances of improvement over a period of months or

years,” which do not form “a basis for concluding [that] a plaintiff is capable of working.” See

Garrison, 759 F.3d at 1017. The ALJ also gave no consideration as to whether these glimpses of

functionality merely represented “the unpredictable course of mental illness, [in which]

symptom-free intervals and brief remissions are generally of uncertain duration and marked by

the impending possibility of relapse.” Id. at 1017 n.22 (bracket omitted).

Moreover, Plaintiff’s abilities to live on his own, drive, cook, and care for his children do

not contradict Plaintiff’s testimony that he sleeps poorly because of PTSD-related nightmares, is

often too fatigued to sustain focus for long enough to make it through a typical workday, and has

bad days of depression several times each week during which he does not leave the house.

AR 54-55. The key issue here is whether Plaintiff can sustain activity for a full workday and

work week. Plaintiff’s attempts to maintain basic levels of care for his family despite the

symptoms of his mental illness do not undermine his testimony about the severity of his overall

disability. See Vertigan, 260 F.3d at 1050. Considered within the context of Plaintiff’s PTSD and

depression, and without more specific information about their frequency and duration, these

listed activities do not give the ALJ a clear and convincing reason supported by substantial

evidence to disregard Plaintiff’s testimony. The Court finds that the ALJ erred in discounting

Plaintiff’s subjective complaints.

c. Objective Medical Evidence

An ALJ may consider the lack of corroborating objective medical evidence as a “relevant

factor in determining the severity of the claimant’s” alleged symptoms. Rollins v.

Massanari, 261 F.3d 853, 857 (9th Cir. 2001). The ALJ may not, however, “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 Robbins v. Soc. Sec. Admin., 466 F.3d 880,

883 (9th Cir. 2006) (stating that the ALJ may not discount testimony “solely because” the

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

evidence”); 20 C.F.R. § 404.1529(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 cited medical evidence indicating that Plaintiff regularly showed normal speech;

logical and linear thought process; alertness and orientation; ability to perform serial testing; and

intact attention, concentration, and memory on interview. AR 29 (citing AR 317-18, 325, 331,

349, 447-49, 455, 461, 467, 478, 488-95, 518, 527, 533, 538). The ALJ also noted that Plaintiff

often had normal mood and affect. AR 29 (citing AR 317-18, 325, 455, 461, 467, 509, 518, 529).

The ALJ relied on this record to question whether the degree of functional impairment Plaintiff

professed met his true capabilities. Even if this objective medical evidence does not support

Plaintiff’s claimed limitations, that alone does not provide a clear and convincing reason to

discount his testimony. Robbins, 466 F.3d at 883.

The Court concludes that the ALJ erred in discounting Plaintiff’s subjective symptom

testimony. This error is harmful because, for example, Plaintiff’s professed inability to leave the

house could result in a high degree of absenteeism. As the VE testified, missing three days of

work per month would preclude all work for entry-level jobs and would be “very problematic in

most work environments.” AR 52. Under this scenario, the ALJ would have had to find Plaintiff

disabled.

B. Medical Evidence

1. Standards

Plaintiff applied for benefits on July 23, 2018. For claims filed on or after March 27,

2017, Federal Regulation 20 C.F.R. § 404.1520c governs how an ALJ must evaluate medical

opinion evidence in the context of DIB. See Revisions to Rules Regarding the Evaluation of

Medical Evidence, 82 Fed. Reg. 5844 (Jan. 18, 2017). Under these new regulations, ALJs no

longer “weigh” medical opinions, but rather determine which are most “persuasive.” 20 C.F.R.

§ 404.1520c(a)-(b). The new regulations eliminate the hierarchy of medical opinions and state

that the agency does not defer to any particular medical opinions, even those from treating

sources. Id.; see also Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022) (“The revised social

security regulations are clearly irreconcilable with our caselaw according special deference to the

opinions of treating and examining physicians on account of their relationship with the

claimant.”). Under the new regulations, the ALJ primarily considers the “supportability” and

“consistency” of the opinions in determining whether an opinion is persuasive. 20 C.F.R.

§ 404.1520c(c). Supportability is determined by whether the medical source presents

explanations and objective medical evidence to support his or her opinion. Id. § 404.1520c(c)(1).

Consistency is determined by how consistent the opinion is with evidence from other medical

and nonmedical sources. Id. § 404.1520c(c)(2).

An ALJ may also consider a medical source’s relationship with the claimant by looking

to factors such as the length of the treatment relationship, the frequency of the claimant’s

examinations, the purpose of the treatment relationship, the extent of the treatment relationship,

and whether there is an examining relationship. Id. § 404.1520c(c)(3). An ALJ is not, however,

required to explain how he or she considered these secondary medical factors, unless he or she

finds that two or more medical opinions about the same issue are equally well-supported and

consistent with the record but not identical. Id. § 404.1520c(b)(2)-(3).

The regulations require ALJs to “articulate . . . how persuasive [they] find all of the

medical opinions” and “explain how [they] considered the supportability and consistency

factors.” Id. § 404.1520c(b). The Court must, moreover, continue to consider whether the ALJ’s

analysis has the support of substantial evidence. See 42 U.S.C. § 405(g); see also Woods, 32

F.4th at 792 (“Our requirement that ALJs provide ‘specific and legitimate reasons’ for rejecting a

treating or examining doctor’s opinion, which stems from the special weight given to such

opinions is likewise incompatible with the revised regulations. . . . Even under the new

regulations, an ALJ cannot reject an examining or treating doctor’s opinion as unsupported or

inconsistent without providing an explanation supported by substantial evidence.” (citation

omitted)).

2. Analysis

a. Dr. Mohandessi

Dr. Mohandessi is Plaintiff’s treating psychiatrist. Dr. Mohandessi first saw Plaintiff in

January 2019. Dr. Mohandessi noted that Plaintiff had experienced symptoms of depression,

nightmares, avoidance, flashbacks, and poor sleep, and that Plaintiff met criteria for Major

Depressive Disorder and PTSD. AR 486, 488. Dr. Mohandessi continued to see Plaintiff

throughout 2019 and 2020. In March and May 2019, Dr. Mohandessi noted Plaintiff continued to

have nightmares and heightened anxiety. AR 489-90. Dr. Mohandessi recorded on June 25, 2019

that Plaintiff had been having worsened anxiety, trauma triggers, and nightmares in the two

weeks since his evaluation with Dr. Eckstein. AR 492. Dr. Mohandessi noted in February 2020

that Plaintiff had been diagnosed with obstructive sleep apnea and continued to have high

anxiety, days of depression when he did not want to get out of bed, poor energy, anhedonia,

insomnia, and nightmares. AR 494. Finally, in October 2020, Dr. Mohandessi completed a

mental RFC assessment, opining that Plaintiff would be severely limited in a number of work

functions, had moderately severe limitations in others, and that overall, Plaintiff would be

markedly limited in performing activities of daily living, maintaining social functioning, and

maintaining concentration, persistence, and pace. AR 775-81.

The ALJ concluded that Dr. Mohandessi’s opinions were not persuasive. AR 35. The

ALJ gave three reasons for this assessment: (1) Dr. Mohandessi’s opined limitations predate the

treating relationship, (2) supportability, and (3) consistency. See id. 35-36. First, the ALJ found

that Dr. Mohandessi’s opinions are not well supported because Dr. Mohandessi opined that

Plaintiff’s limitations had applied since December 2017, but first saw Plaintiff in January 2019.

AR 36. This reason is not supported by substantial evidence. There is no requirement, nor does

the Commissioner cite any authority, that a doctor may not opine as to limitations that predated

the doctor’s first visit with a claimant. Moreover, Dr. Mohandessi had reviewed Plaintiff’s

previous medical records and spoke with Plaintiff’s previous treating therapist (Drew Prochniak),

AR 489, indicating that Dr. Mohandessi was aware of Plaintiff’s mental status since December

2017.

Second, the ALJ found that Dr. Mohandessi’s notes do not support severe functional

limitations. AR 36. The ALJ points to portions of Dr. Mohandessi’s notes that the ALJ found

reflect a generally logical and linear thought process, AR 488-95, and normal grooming and

speech, AR 488, 493-95. Plaintiff argues that the ALJ inappropriately extrapolated from

observations that occurred in a one-on-one clinical environment to conclude that Plaintiff could

sustain these observed functions in a real-life work setting. In so doing, Plaintiff argues, the ALJ

improperly substituted his own lay opinion for the opinions of Plaintiff’s treating provider,

taking Dr. Mohandessi’s clinical findings and reinterpreting them to support the ALJ’s

conclusions.

The ALJ does not explain how a doctor’s observations of a patient’s coherent thought

process and social presentation in a clinical setting reduce support for that same doctor’s

functional assessment of the patient’s ability to perform sustained and regular work.3 For

example, the ALJ does not answer whether a logical and linear thought process necessarily

implies that Plaintiff could complete a normal workday without interruptions from

psychologically based symptoms. Similarly, it is unclear how normal grooming and speech

might indicate that Plaintiff could get along with coworkers or peers without exhibiting

behavioral extremes. Without further elucidation from the ALJ, the Court concludes that the

ALJ’s assessment of the “supportability” of Dr. Mohandessi’s opinions is not based on

substantial evidence.

Third, the ALJ points to the inconsistency of Dr. Mohandessi’s opinion with the broader

record. To support this finding, the ALJ cites multiple exhibits purportedly showing Plaintiff’s

normal mental functioning, normal grooming and eye contact, and an ability to perform activities

of daily living, such as driving, cooking, caring for himself and his children, maintaining a social

life, and going to the gym. The Court has already rejected the ALJ’s characterization of

Plaintiff’s activities of daily living and purported social life. For the same reasons those were

insufficient to discount Plaintiff’s testimony, they are insufficient to render Dr. Mohandessi’s

opinion unsupported.

3 The Court notes that such an assumption may distort the purpose of similar medical

records. As the Ninth Circuit has noted, “The primary function of medical records is to promote

communication and recordkeeping for health care personnel—not to provide evidence for

disability determinations. We therefore do not require that a medical condition be mentioned

in every report to conclude that a physician’s opinion is supported by the record.” Orn v.

Astrue, 495 F.3d 625, 634 (9th Cir. 2007). A doctor’s record-keeping need not express the full

extent of a patient’s functional impairments every time the patient is seen. Further, observing that

a patient is coherent and adequately groomed at appointments does not say everything about the

patient’s psychological profile or ability to work.

Regarding the purportedly inconsistent medical evidence, Plaintiff contends that the

exhibits cited by the ALJ are from irrelevant examinations focused on Plaintiff’s orthopedic

issues and not his mental health, or otherwise do not support the ALJ’s lay conclusions. See, e.g.,

AR 318 (emergency room chart for wrist pain, noting that “[h]e is oriented to person, place, and

time. He appears well-developed and well-nourished. No distress”). But “consistency” is not so

narrowly evaluated. See 20 C.F.R. § 404.1520c(c)(2) (describing consistency as determined by a

comparison between the medical opinion and “evidence from other medical and nonmedical

sources”). And the ALJ does cite evidence from mental health contexts. See, e.g., AR 478

(mental health evaluation chart note describing Plaintiff’s “therapeutic strengths” as “[f]lexibility

in thinking and behavior,” “[g]ood expressive language and communication skills,” and well-

organized thinking).

The ALJ fails to demonstrate that the medical evidence is inconsistent with

Dr. Mohandessi’s functional assessments. Looking at other clinical records, the ALJ found that

Plaintiff regularly showed normal speech and affect; logical and linear thought process; alertness

and orientation; ability to perform serial testing; and intact attention, concentration, and memory

on interview. AR 36. The ALJ, however, failed to explain the relevance of Plaintiff’s interactions

with clinicians in a clinical setting to Dr. Mohandessi’s opinion that Plaintiff suffered from

severe or marked limitations in his ability to respond appropriately to a work setting. It is unclear

how Plaintiff’s ability to interact with doctors in a clinical setting is inconsistent with

Dr. Mohandessi’s opinion regarding Plaintiff’s functional limitations at work. McReynolds v.

Colvin, 2014 WL 801238, at *7 (W.D. Wash. Feb. 28, 2014) (noting that “the ALJ failed to

explain the relevance of interactions with clinicians in a clinical setting to Dr. Wheeler’s opinion

that plaintiff suffered from marked limitation in his ability to respond appropriately to and

tolerate the normal pressures and expectations of a normal work setting” and finding that a

“plaintiff’s ability to interact with doctors in a clinical setting” does not “discount Dr. Wheeler’s

specific opinion regarding plaintiff’s marked limitations . . . [in] a work setting”). Therefore, the

Court concludes that the ALJ failed to explain adequately why his interpretation of Plaintiff’s

medical records was more correct than the medical opinion of Dr. Mohandessi. See Reddick, 157

F.3d at 725 (stating that an ALJ must explain why his own interpretations, rather than those of

the doctor, are correct).

The Court finds that the ALJ did not rely on substantial evidence when determining that

the inconsistency of Dr. Mohandessi’s opinions with the record rendered them unpersuasive. In

sum, neither the duration of treatment, nor supportability, nor consistency with the record is a

sufficient reason to discount Dr. Mohandessi’s opinions.

b. Dr. Eckstein

On June 11, 2019, consultative examiner Dr. Eckstein performed a psychodiagnostic

consultative examination in which she opined that Plaintiff had PTSD and major depressive

disorder. AR 449. In her functional assessment, Dr. Eckstein opined that, among other

limitations, Plaintiff would have moderate difficulty performing work activities on a consistent

basis without special or additional instructions or accommodations, moderate difficulty

maintaining regular attendance in the workplace, marked difficulty in completing a normal

workday or work week without interruptions from a psychiatric condition, and moderate-to-

marked difficulty with usual stress encountered in the workplace. AR 449-50. The ALJ found

that this opinion was not persuasive, reasoning that it was not supported by Dr. Eckstein’s own

examination notes and inconsistent with the broader record, including Plaintiff’s ability to

perform activities of daily living. AR 35. Plaintiff contends that the ALJ improperly addressed

the medical evidence because he discounted Dr. Eckstein’s opinion without substantial evidence.

Regarding “supportability,” the ALJ discounted Dr. Eckstein’s opinion by finding it not

well-supported by her own treatment notes. Dr. Eckstein’s examination showed Plaintiff had

below average to average cognitive functioning and anxious mood, but intact orientation and a

cooperative and socially appropriate demeanor. AR 448. The ALJ concluded that these treatment

notes did not support Dr. Eckstein’s assessment that Plaintiff would have marked functional

difficulties in a workplace. AR 35. For similar reasons as with Dr. Mohandessi’s report, the ALJ

did not sufficiently explain how Dr. Eckstein’s examination notes caused concern about the

reliability of the functional assessment. The Commissioner posits that “[i]t is difficult for a

reasonable mind to see how these observations support the assessed limitations,” but the

Commissioner does not explain why reasonable minds could not view Dr. Eckstein’s

observations as supporting her conclusions, just as the ALJ did not explain this reason. The

Court does not infer any conflict between Plaintiff’s cooperative behavior in the clinical

environment and Dr. Eckstein’s opined functional abilities at work. This reason, therefore, is not

supported by substantial evidence.

Similarly, regarding “consistency,” the ALJ noted that Dr. Eckstein’s opinion was

inconsistent with the record, citing the same long list of exhibits discussed in reference to

Dr. Mohandessi’s opinions. AR 35. For the same reasons, the Court concludes that the ALJ did

not rely on substantial evidence in finding that the record was inconsistent with Dr. Eckstein’s

functional assessment. Thus, the ALJ did not properly considered the evidence when determining

Dr. Eckstein’s opinion was not persuasive.

C. Whether Plaintiff’s Impairments Meet Listing 12.15

1. Standards

At step three, in order to meet or equal a listing, a claimant’s medically determinable

impairment must satisfy all of the criteria for a listing. Kennedy v. Colvin, 738 F.3d 1172, 1176

(9th Cir. 2013) (citing Sullivan v. Zebley, 493 U.S. 521, 531 (1990)); 20 C.F.R.

§ 404.1529(d)(2)-(3). “Listed impairments set such strict standards because they automatically

end the five-step inquiry, before residual functional capacity is even considered.” Id. Despite

these strict standards, the ALJ still “must evaluate the relevant evidence before concluding that a

claimant’s impairments do not meet or equal a listed impairment. A boilerplate finding is

insufficient to support a conclusion that a claimant’s impairment does not do so.” Lewis v. Apfel,

236 F.3d 503, 512 (9th Cir. 2001).

Even if a claimant’s impairments do not meet a listing, they may still equal a listing. “For

a claimant to qualify for benefits by showing that his unlisted impairment, or combination of

impairments, is ‘equivalent’ to a listed impairment, he must present medical findings equal in

severity to all the criteria for the one most similar listed impairment.” Zebley, 493 U.S. 521, 531

(1990). A determination of medical equivalence must rest on objective medical evidence. Lewis,

236 F.3d at 514; see also SSR 17-2p, 2017 WL 3928306, at *3 (effective March 27, 2017).

Specifically, “[m]edical equivalence must be based on medical findings” and “[a] generalized

assertion of functional problems is not enough to establish disability at step three.” Tackett, 180

F.3d at 1100 (citation and internal quotations omitted).

Listing 12.15 is used “to evaluate trauma- and stressor-related disorders such as

posttraumatic stress disorder.” Revised Medical Criteria for Evaluating Mental Disorders, 81 Fed

Reg. 66,138, 66,159 (Sept. 26, 2016); see 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.00(B)(11)

(Listing 12.15); see also Cranor v. Kijakazi, 2022 WL 14936052, at *3 (9th Cir. Oct. 26, 2022).

To meet or equal Listing 12.15, a claimant must meet either medical and functional criteria or

medical and “serious and persistent” criteria. See 20 C.F.R. Pt. 404, Subpt. P, App. 1

§ 12.00(A)(2). These criteria are known as “Paragraph A” (medical), “Paragraph B” (functional),

and “Paragraph C” (serious and persistent) criteria. See id.

Paragraph A requires medical documentation of five characteristics, including

(1) exposure to actual or threatened death, serious injury, or violence; (2) intrusive memories,

dreams, and flashbacks; (3) avoidance of external reminders of the event; (4) disturbance in

mood or behavior; and (5) increases in arousal and reactivity, such as sleep disturbance. 20

C.F.R. Pt. 404, Subpt. P, App. 1 § 12.15. To satisfy the paragraph B criteria, Plaintiff must

demonstrate that he has one extreme or two marked limitations in four areas of functioning:

(1) understanding, remembering, or applying information; (2) interacting with others;

(3) concentrating, persisting, or maintaining pace; and (4) adapting or managing oneself. Id. A

moderate limitation is one in which a claimant’s ability to function in an area independently,

appropriately, effectively, and on a sustained basis is “fair.” Id. § 12.00(F)(2)(c). A marked

limitation is one in which a claimant’s ability to function in an area independently, appropriately,

effectively, and on a sustained basis is “seriously limited.” Id. § 12.00(F)(2)(d). An extreme

limitation means that the claimant cannot function independently, appropriately or effectively on

a sustained basis. Id. § 12.00(F)(2)(e). Finally, Paragraph C criteria require a showing that the

mental disorder is “serious and persistent.” Id. § 12.15.

2. Analysis

Plaintiff contends that he meets or equals Listing 12.15. First, Plaintiff argues that

medical providers’ treatment notes establish that Plaintiff meets all the required elements of

Paragraph A. The ALJ does not question that Plaintiff was diagnosed with PTSD; the ALJ, for

example, considers persuasive the PTSD diagnosis by Suzanne Best, Ph.D. AR 35 (citing

AR 300-10). Because Listing 12.15 is used to evaluate PTSD, whether Plaintiff meets or equals

the criteria in Paragraph A is thus not in dispute. But “[t]he mere diagnosis of an impairment

listed in Appendix 1 is not sufficient to sustain a finding of disability.” Key v. Heckler, 754 F.2d

1545, 1549 (9th Cir. 1985). Plaintiff may not rely on the diagnosis of his PTSD and other mental

impairments as a way to meet or equal the Listing unless he also meets or equals the Paragraph B

or Paragraph C criteria.4

The ALJ considered Listing 12.15 and found that Plaintiff satisfied neither Paragraph B

nor Paragraph C criteria. AR 29-30. Plaintiff does not contest the ALJ’s Paragraph C findings.

Plaintiff does, however, argue that the ALJ erred in his analysis of the Paragraph B criteria. As

noted above, Plaintiff must possess one extreme limitation or two marked limitations in

functioning to qualify as disabled under the Paragraph B criteria. 20 C.F.R. Pt. 404, Subpt. P,

App. 1, § 12.00(A)(2). The ALJ found that Plaintiff’s limitations in the Paragraph B categories

were only moderate. AR 29. The Commissioner contends that the ALJ properly evaluated the

relevant evidence before concluding that Plaintiff’s impairments do not meet the criteria of any

listing. See Lewis, 236 F.3d at 512.

The Commissioner also asserts that Plaintiff points to no medical opinion showing that

the elements of the listing were met, and no doctor opined that Plaintiff met the listing. Plaintiff,

4 Plaintiff argues that, even if it were properly determined that Plaintiff’s impairments did

not meet Listing 12.15, the ALJ failed properly to address whether Plaintiff’s impairments equal

Listing 12.15, and this alone is grounds for reversal. Plaintiff points to Marcia v. Sullivan, 900

F.2d 172, 176 (9th Cir. 1990) to argue that the ALJ’s “boilerplate” finding does not show that the

ALJ actually considered equivalence. The Ninth Circuit, however, has made clear that an ALJ’s

failure to make detailed findings at step three does not constitute reversible error provided the

ALJ discusses the record in other portions of the decision. See, e.g., Kruchek v. Barnhart, 125 F.

App’x 825, 827 (9th Cir. 2005); see also Lewis, 236 F.3d at 512-13 (distinguishing Marcia to

determine that the ALJ did not err at step three by “failing to elaborate on his determination that

[the claimant’s allegedly disabling physical and mental impairments] did not meet or equal” a

listing where the ALJ otherwise “discussed and evaluated evidence supporting his conclusion”).

Here, the ALJ discussed and evaluated evidence supporting his conclusion of Plaintiff’s

functional limitations at length in the context of the RFC and medical opinions. See AR 34-36.

The Court thus concludes that the ALJ considered equivalence.

however, specifically points to Dr. Mohandessi’s October 2020 assessments as establishing that

Plaintiff is markedly limited in at least two of the Paragraph B categories, including interacting

with others and concentration, persistence, and maintaining pace. AR 775-82. Plaintiff argues

that, even though Dr. Mohandessi’s statement was completed on an older form that did not

include all of the updated Paragraph B categories, the overall limitations Dr. Mohandessi

described would be consistent with an impairment that would meet or equal the requirements of

Listing 12.15.

The ALJ did consider Dr. Mohandessi’s opinion and found that it was not well supported

and was inconsistent with Plaintiff’s ability to perform activities of daily living, such as driving,

caring for his children, and cooking. AR 36. The Court, however, has already concluded that the

ALJ’s explanation for rejecting Dr. Mohandessi’s opinion is not supported by substantial

evidence.

Because the ALJ improperly discounted the opinions of Drs. Mohandessi and Eckhert,

the ALJ did not properly evaluate the relevant medical evidence before concluding that

Plaintiff’s impairments did not meet or equal a listed impairment. See Lewis 236 F.3d at 512. As

the discounted doctors’ opinions could affect the ALJ’s analysis of whether Plaintiff meets the

Paragraph B criteria, the ALJ’s error is harmful. The Court finds that the ALJ did not adequately

assess and must reevaluate whether Plaintiff meets or equals Listing 12.15.

D. ALJ’s Step Five Finding

Plaintiff argues that the ALJ erred at step five because the dispositive hypothetical

question posed to the VE did not account for all of Plaintiff’s limitations. A hypothetical posed

to the VE must be complete and “include all of the claimant’s functional limitations, both

physical and mental.” Flores v. Shalala, 49 F.3d 562, 570 (9th Cir. 1995); see also Matthews v.

Shalala, 10 F.3d 678, 681 (9th Cir. 1993) (“If a vocational expert’s hypothetical does not reflect

all the claimant’s limitations, then the expert’s testimony has no evidentiary value.” (cleaned

up)).

This argument is well taken. Because the ALJ failed properly to evaluate Plaintiff’s

subjective symptom testimony and the medical opinion testimony, the RFC and hypothetical

posed to the VE may not have incorporated all of Plaintiff’s limitations. Thus, the ALJ erred in

relying on the VE testimony that there were significant jobs in the economy that Plaintiff could

perform.

E. Remedy

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 (citation

omitted). 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 v.

Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099-100 (9th Cir. 2014). 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

whether 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 “settled” and binding on this

Court. Garrison v. Colvin, 759 F.3d 995, 999 (9th Cir. 2014). The court first determines whether

the ALJ made a legal error and then reviews the record as a whole to determine whether the

record is fully developed, the record is free from conflicts and ambiguities, and 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 left to be

resolved does the district court consider whether the ALJ would have to find the claimant

disabled on remand if the improperly discredited evidence were credited as true. Id. The district

court need not credit statements as true just because the ALJ made a legal error. Id. at 408.

The ALJ’s harmful error rests on the ALJ’s evaluation that the medical opinion evidence

and Plaintiff’s subjective complaints were inconsistent with the medical record. These

inconsistencies between Plaintiff’s testimony and the medical record are “exactly the sort of

issues that should be remanded to the agency for further proceedings.” Brown-Hunter, 806 F.3d

at 495 (quotation marks omitted). There are outstanding conflicts and ambiguities between the

functional assessments by Drs. Mohandessi and Eckhert, their medical opinions, the agency

medical opinions, and Plaintiff’s testimony. There are also conflicts regarding how many

workdays per month (if any) Plaintiff would miss due to his impairment, whether Plaintiff could

maintain attention and concentration, and what degree of public interaction Plaintiff could

sustain. As a result, the Court remands for further proceedings.

CONCLUSION

The Court REVERSES the Commissioner’s decision that Plaintiff was not disabled and

REMANDS for further proceedings consistent with this Opinion and Order.

IT IS SO ORDERED.

DATED this 7th day of March, 2023.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge