# Van Metre v. Commissioner Social Security Administration

> District Court, D. Oregon · March 7, 2023

URL: https://www.frixlaw.com/law-library/cases/10395705

## Case

- **Court:** District Court, D. Oregon
- **Decided:** March 7, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10395705

## How later opinions describe it (automated extraction)

- noting that a “claimant need not vegetate in a dark room in order to be eligible for benefits” (quotation marks omitted)
- stating that the ALJ may not discount testimony “solely because” the claimant’s symptom testimony “is not substantiated affirmatively by objective medical evidence”

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10395705. Public record. Not legal advice.