# Franquez v. Kijakazi

> District Court, S.D. California · January 29, 2024

URL: https://www.frixlaw.com/law-library/cases/10640156

## Case

- **Court:** District Court, S.D. California
- **Decided:** January 29, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## How later opinions describe it (automated extraction)

- noting POMS may be entitled to respect “to 21 the extent it provides a persuasive interpretation of an ambiguous regulation”
- finding 3 the ALJ’s “failure to articulate some basis for his step-three conclusion necessitate[d] 4 remand”
- finding remand was warranted where 19 the ALJ failed to “sufficiently discuss and evaluate the evidence” before concluding 20 plaintiff did not equal a listed impairment
- finding the ALJ erred by using “a few isolated instances of 6 improvement” as the basis for finding plaintiff was capable of working

## Opinion text

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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORINIA
10
11 ALAN F.,1 Case No.: 22cv1771-MSB

12 Plaintiff,
ORDER REVERSING COMMISSIONER’S
13 v. DECISION AND REMANDING FOR
FURTHER ADMINISTRATIVE
14 KILOLO KIJAKAZI, Acting Commissioner of
PROCEEDINGS [ECF NO. 14]
Social Security,2
15
Defendant.
16
17
18 On November 10, 2022, Plaintiff Alan F. (“Plaintiff”) commenced this action
19 against Defendant Kilolo Kijakazi, Acting Commissioner of Social Security
20 (“Commissioner”), for judicial review under 42 U.S.C. §§ 405(g) and 1383(c)(3) of a final
21 adverse decision for disability insurance benefits. (ECF No. 1.) Based on all parties’
22 consent (see ECF Nos. 3, 7), this case is before the undersigned as presiding judge for all
23 purposes, including entry of final judgment. See 28 U.S.C. § 636(c). Now pending
24
25
1 Under Civil Local Rule 7.1(e)(6)(b), “[o]pinions by the Court in [Social Security cases under 42 U.S.C. §
26 405(g)] will refer to any non-government parties by using only their first name and last initial.”
2 On December 20, 2023, Martin O’Malley was sworn into office as Commissioner of the Social Security
27
Administration. See https://www.ssa.gov/agency/commissioner/ (last visited on January 24, 2024).
2 14 (“Mot.”).) On May 19, 2023, the Commissioner filed an Opposition. (ECF No. 18
3 (“Opp’n”).) Finally on June 2, 2023, Plaintiff filed a Reply. (ECF No. 19 (“Reply”).) The
4 Court has carefully reviewed the parties’ pleadings [ECF Nos. 14, 18, 19], the
5 Administrative Record (“AR”) [ECF No. 10], and the Complaint [ECF No. 1]. For the
6 reasons set forth below, the Court ORDERS that judgment be entered REVERSING the
7 decision of the Commissioner and REMANDING the case for proceedings consistent
8 with this Order.
9 I. PROCEDURAL BACKGROUND
10 On May 29, 2020, Plaintiff filed an application for supplemental security income
11 benefits under Title XVI of the Social Security Act, alleging disability beginning on
12 October 14, 2003—Plaintiff’s date of birth. (AR 223–32.)3 The Commissioner denied the
13 application initially on September 9, 2020, and again upon reconsideration on February
14 2, 2021. (AR 66–74, 76–86.) On February 25, 2021, Plaintiff requested a hearing before
15 an administrative law judge (“ALJ”). (AR 109–12.) On September 14, 2021, ALJ Howard
16 Treblin held a telephonic hearing, during which Plaintiff was represented by counsel.
17 (AR 52–65.) An impartial vocational expert (“VE”), Mary Jesko, and Plaintiff’s mother,
18 Maria Valtierra, also appeared and testified at the hearing. (Id.)
19 In a written decision dated November 2, 2021 [AR 25–43], ALJ Treblin found that
20 Plaintiff had not been under a disability: (1) prior to attaining age eighteen; (2) after
21 attaining age eighteen; and (3) from May 29, 2020, the date the application was filed,
22 through the date of his decision. (AR 38, 43.) On November 3, 2021, Plaintiff requested
23 review of the ALJ’s decision. (AR 220–21.) The Appeals Council denied Plaintiff’s
24 request on September 7, 2022, making the ALJ’s decision the final decision of the
25 Commissioner. (AR 1–9.) See also 42 U.S.C. § 405(g). This timely civil action followed.
26 / / /

27
2 The ALJ evaluated Plaintiff under both the childhood and adult disability
3 standards due to Plaintiff turning eighteen during the alleged disability timeline.4 (See
4 AR 25.) First, using the three-step sequential evaluation process for children established
5 under 20 C.F.R. § 416.924(a), the ALJ determined the following:
6 1. Plaintiff had not engaged in substantial gainful activity since May 29, 2020,
the application date;
7

8 2. Prior to turning eighteen, Plaintiff had the following severe impairments:
learning disorder and intellectual disability;
9

10 3. Prior to turning eighteen, Plaintiff did not have an impairment or
combination of impairments that met or medically equaled, or functionally
11
equaled, the severity of any listed impairments, including child listings
12 112.05 and 112.11 for intellectual disability and neurodevelopmental
disorder, respectively.
13
14 (AR 30–38.)
15 Next, the ALJ followed the Commissioner’s five-step sequential evaluation process
16 for adults established under 20 C.F.R. § 416.920(a) and determined Plaintiff had not
17 been disabled since attaining age eighteen. (AR 38–43.) The ALJ noted the severe
18 impairments identified under the childhood standard—learning disorder and intellectual
19 disability—continued since Plaintiff turned eighteen and that Plaintiff had not
20 developed any new impairments since becoming an adult. (AR 38.) At step three,
21 referencing his analysis conducted under child listings 112.05 and 112.11, the ALJ again
22 found that Plaintiff’s impairments did not meet or medically equal, or functionally equal,
23 the severity of listings 12.05 and 12.11, the adult listings for intellectual disability and
24 neurodevelopmental disorder, respectively. (Id.) The ALJ then determined Plaintiff had
25
4 Plaintiff turned eighteen on October 13, 2021, after the application date but prior to the ALJ’s written
26 decision. (AR 30, 42.) Similar factors are considered for older adolescents and young adults aged
eighteen to twenty-five. See Titles II & XVI: Documenting & Evaluating Disability in Young Adults, SSR
27
11-2P (S.S.A. Sept. 12, 2011) (“[T]he evidence we consider when we make disability determinations for
2 perform a full range of work at all exertional levels but with the following
nonexertional limitations: the claimant is limited to understand, remember,
3
carry out, and apply simple repetitive tasks of 1-2 steps; can interact
4 appropriately with coworkers and supervisors, but cannot do team or
collaborative work; needs non-public work; can appropriately respond to
5
supervision, routine work situations and settings and changes in routine
6 work situations and settings; and appropriately ask questions and use
judgment.
7

8 (AR 38–39.)
9 The ALJ concluded that Plaintiff’s “medically determinable impairments could
10 reasonably be expected to cause the alleged symptoms; however, [Plaintiff’s]
11 statements concerning the intensity, persistence and limiting effects of these
12 symptoms” are inconsistent with the medical evidence. (AR 39–40.) At step four, the
13 ALJ found Plaintiff had no past relevant work experience. (AR 42.) Finally, at step five
14 the ALJ found that given Plaintiff’s age, education, work experience, and RFC, he could
15 perform several jobs that exist in significant numbers in the national economy. (Id.) The
16 VE testified that a hypothetical person fitting Plaintiff’s profile could perform jobs such
17 as garment folder (unskilled, light exertion, 57,000 jobs in the national economy), small
18 parts assembler (unskilled, light exertion, 48,000 jobs in national economy), and seam
19 presser (unskilled, light exertion, 28,000 jobs in the national economy). (AR 42–43.)
20 Therefore, the ALJ concluded that Plaintiff was not disabled since May 29, 2020, through
21 the date of the decision. (AR 43.)
22 III. DISPUTED ISSUES
23 Plaintiff raises five issues, which he asserts are grounds for reversal:
24 1. Whether the ALJ erred by failing to evaluate all medical opinions in the record;
25 2. Whether the ALJ erred by finding that Plaintiff did not meet or medically equal
26 child listing 112.05 or adult listing 12.05 for intellectual disability;
27 3. Whether the ALJ properly evaluated Plaintiff under child listing 112.11 and adult
2 severity of the listings;
3 5. Whether the ALJ erred by crafting an RFC that is not supported by substantial
4 evidence.
5 (Mot. at 12–26.)
6 IV. STANDARD OF REVIEW
7 Section 405(g) of the Social Security Act allows unsuccessful applicants to seek
8 judicial review of the Commissioner’s final decision. See 42 U.S.C. § 405(g). The scope
9 of judicial review is limited, and the denial of benefits will only be disturbed if it is not
10 supported by substantial evidence or contains a legal error. Luther v. Berryhill, 891 F.3d
11 872, 875 (9th Cir. 2018) (internal citations omitted). “Substantial evidence” is a “‘term
12 of art used throughout administrative law to describe how courts are to review agency
13 factfinding.’” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (quoting T-Mobile S., LLC
14 v. City of Roswell, 135 S. Ct. 808, 815 (2015)). The Supreme Court has said substantial
15 evidence means “more than a mere scintilla,” but only “such relevant evidence as a
16 reasonable mind might accept as adequate to support a conclusion.” Id. (quoting
17 Consol. Edison Co. of New York v. N.L.R.B., 305 U.S. 197, 229 (1938)). The Ninth Circuit
18 explains that substantial evidence is “more than a mere scintilla but less than a
19 preponderance.” Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) (quoting
20 Desrosiers v. Sec’y of Health & Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988).
21 Where the evidence is susceptible to more than one rational interpretation, the
22 ALJ’s decision must be upheld. See Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir.
23 2008) (citing Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)). This includes
24 deferring to the ALJ’s credibility determinations and resolutions of evidentiary conflicts.
25 See Lewis v. Apfel, 236 F.3d 503, 509 (9th Cir. 2001). Even if the reviewing court finds
26 that substantial evidence supports the ALJ’s conclusions, the court must set aside the

27 decision if the ALJ failed to apply the proper legal standards in weighing the evidence
2 modifying, or reversing” the Commissioner’s decision. 42 U.S.C. § 405(g). The reviewing
3 court may also remand the case to the Social Security Administration for further
4 proceedings. Id. However, the reviewing court “may not reverse an ALJ’s decision on
5 account of an error that is harmless.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir.
6 2012).
7 V. DISCUSSION
8 A. The ALJ Failed to Properly Consider All Medical Opinions
9 1. Summary of the parties’ arguments
10 Plaintiff contends that the ALJ erred by not evaluating, or even citing, any of the
11 findings of speech-language pathologist Bobbi Adams. (Mot. at 25–26, Reply at 5–6.)
12 The Commissioner argues that under the Social Security Administration’s (“SSA”)
13 regulations, Ms. Adams’ report did not constitute a medical opinion because it did not
14 make “any statements about what Plaintiff can still do, nor does [it] describe any
15 impairment related limitations or restrictions.” (Opp’n at 18.) Instead, the
16 Commissioner contends Ms. Adams’ report constitutes objective medical evidence;
17 thus, there was no medical opinion for the ALJ to evaluate. (Id. at 18–19.) Plaintiff also
18 argues the ALJ erred by failing to address genetic testing performed by pediatric
19 neurologist Michelle Sahagian, M.D., which indicated that Plaintiff’s intellectual
20 disability is genetic. (Mot. at 15, 19, 22.) In response, the Commissioner maintains the
21 ALJ properly discounted Dr. Sahagian’s opinion as “not persuasive because it was
22 inconsistent with the record.” (Opp’n at 13.)
23 2. Applicable law
24 Plaintiff applied for disability insurance benefits on May 29, 2020. (AR 223–32.)
25 Because this is after March 27, 2017, the SSA’s revised regulations for considering
26 medical opinions and prior administrative medical findings (“PAMFs”) apply. See 20

27 C.F.R. § 404.1520c (2017). Under the revised regulations, the ALJ is not required to
2 the ALJ must evaluate the persuasiveness of all medical opinions and PAMFs and
3 articulate his or her assessment as to each. Id. While the new regulations construe
4 medical opinions and PAMFs as different types of evidence, 20 C.F.R. § 404.1520c makes
5 clear that the persuasiveness analysis for both is identical. Id. (referring to medical
6 opinions and PAMFs collectively throughout the section).
7 In evaluating persuasiveness, the relevant factors are supportability, consistency,
8 the relationship between the source and the claimant, the source’s specialization, and
9 other factors such as the source’s knowledge of other evidence and whether there was
10 subsequently submitted evidence. 20 C.F.R. §§ 404.1520c(c)(1)–(c)(5). Though the ALJ
11 may discuss each of these factors, the regulations only require the ALJ to explain how
12 they considered the two most important factors—supportability and consistency. 20
13 C.F.R. § 404.1520c(b)(2). “Supportability” measures the degree to which objective
14 medical evidence and supporting explanations buttress a medical opinion. 20 C.F.R. §§
15 404.1520c(c)(1); 416.920c(c)(1). “Consistency” is the extent to which an opinion or
16 finding is consistent with evidence from other medical sources and non-medical sources
17 in the record. 20 C.F.R. §§ 404.1520c(c)(2); 416.920c(c)(2). If two conflicting medical
18 opinions are both equally well-supported and consistent with the record, the ALJ must
19 explain how they considered the other persuasive factors. 20 C.F.R. § 404.1520c(b)(3).
20 The Ninth Circuit has held that “the decision to discredit any medical opinion[]
21 must simply be supported by substantial evidence.” Woods v. Kijakazi, 32 F.4th 785,
22 787 (9th Cir. 2022). See also Kitchen v. Kijakazi, 82 F.4th 732, 739 (9th Cir. 2023)
23 (explaining how an ALJ weighing a medical opinion must provide an explanation
24 supported by substantial evidence, which articulates how they considered supportability
25 and consistency). The ALJ can satisfy the substantial evidence requirement “by setting
26 out a detailed and thorough summary of the facts and conflicting clinical evidence,

27 stating his interpretation thereof, and making findings.” Reddick v. Chater, 157 F.3d
2 while doing nothing more than ignoring it, asserting without explanation that another
3 medical opinion is more persuasive, or criticizing it with boilerplate language that fails to
4 offer a substantive basis for his conclusion.” Massey v. Kijakazi, No. 21-35986, 2022 WL
5 16916366, at *1 (9th Cir. Nov. 14, 2022) (quoting Garrison v. Colvin, 759 F.3d 995, 1012–
6 13 (9th Cir. 2014)).
7 3. Ms. Adams
8 a. Ms. Adams’ opinion and the ALJ’s treatment thereof
9 In September 2015, speech pathologist Bobbi Adams, CF-SLP (“Ms. Adams”)
10 evaluated Plaintiff’s eligibility for speech and/or language services based on teacher
11 interviews, a review of records, and an informal Clinical Evaluation of Language
12 Fundamentals (“CELF”) assessment. (AR 618–21.) At the time of testing, Plaintiff was in
13 sixth grade and enrolled in a general education classroom with specialized academic
14 instruction (“SAI”). (AR 618.) Ms. Adams “evaluated [Plaintiff] across multiple
15 environments, including the speech/language room and SAI classroom.” (AR 619.)
16 Under the language section, Ms. Adams noted that while “the CELF is normed, it is not
17 normed for [Plaintiff’s] cognitive level,” and he “performed poorly across all subtests
18 and did not show relative strengths in any particular section.” (AR 620.) Plaintiff’s
19 cognitive measure was based on his “last measured cognitive score [of] 67.” (Id.) The
20 report further noted that Plaintiff “interacted appropriately with the teacher and
21 interpreter, and his pragmatics were adequate for his developmental level.” (Id.)
22 Ms. Adams explained her results were consistent with information obtained
23 during the interview with Plaintiff’s SAI teacher:
24 [Plaintiff] had poor language skills throughout all settings, but his language
skills were commensurate with his cognitive abilities . . . he did not ask for
25
help when he was confused. Otherwise, his social skills seemed
26 appropriate for his developmental level. [Plaintiff] has several classroom
friends. [There are no] concerns with his articulation, voice, or fluency.
27
2 record, as “scores have been consistent throughout his educational career” and he “has
3 not previously demonstrated any relative strength in speech or language.” (Id.)
4 Ultimately, Ms. Adams found Plaintiff did not qualify for speech/language services
5 because his “speech and language skills fall within the expected range in comparison to
6 his cognitive level and [Plaintiff] does not demonstrate a disability.” (AR 621.) In his
7 written decision, the ALJ did not reference, or even cite, any of the findings of Ms.
8 Adams’ speech and language evaluation. (See AR 25–43.)
9 b. Analysis
10 Medical sources for determining disability in children and adults include speech-
11 language pathologists. See 20 C.F.R. § 416.924a(a); 20 C.F.R. § 416.902(a)(5). The
12 Commissioner appears to agree that Ms. Adams is a medical source. (See Opp’n at 18–
13 19.) However, the Commissioner contends that Ms. Adams’ findings do not constitute a
14 medical opinion under the SSA regulations, but instead constitute “objective medical
15 evidence or ‘other medical evidence.’” (Opp’n at 18.) We disagree.
16 “A medical opinion is a statement from a medical source about what you can still
17 do despite your impairment(s) and whether you have one or more impairment-related
18 limitations or restrictions.” 20 C.F.R § 416.913(a)(2). In child claims, medical opinions
19 focus on the six functional domains. 20 C.F.R. § 416.913(a)(2)(ii). Two of the functional
20 domains expressly address how language relates to overall functioning. First, in the
21 domain of acquiring and using information, children aged six to twelve “should be able
22 to use increasingly complex language (vocabulary and grammar) to share information
23 and ideas with individuals or groups, by asking questions and expressing your own ideas,
24 and by understanding and responding to the opinions of others.” 20 C.F.R.
25 § 416.926a(g)(2)(iv). Second, in the domain of interacting and relating with others,
26 children aged six to twelve “should be well able to talk to people of all ages, to share

27 ideas, tell stories, and to speak in a manner that both familiar and unfamiliar listeners
2 Plaintiff can and cannot do despite his limitations and how those limitations relate to
3 several functional domains. See Joseph L.S. v. Kijakazi, No. 5:23-CV-00006-BFM, 2023
4 WL 5611408, at *2 (C.D. Cal. Aug. 30, 2023) (finding that a doctor’s commentary on
5 plaintiff’s inability to sustain concentration or repetitive tasks, inability to adapt to new
6 situations, attitude during testing, and intact memory qualified as a medical opinion that
7 identified impairment-related limitations); T.T. v. Comm’r of Soc. Sec., No. 2:19-CV-
8 01608-JDP (SS), 2021 WL 307561, at *5 (E.D. Cal. Jan. 29, 2021) (noting a consultative
9 speech and language examiner’s findings, which compared the plaintiff to unimpaired,
10 same-aged children, should have been treated as medical opinion evidence). But see
11 Nancy May J. v. Kijakazi, No. 2:20-CV-00486-CWD, 2022 WL 684372, at *5 (D. Idaho Mar.
12 8, 2022) (finding a doctor’s statements regarding “diagnoses and the symptoms
13 generally associated with the diagnoses are objective medical evidence” and not a
14 medical opinion assignable to specific functional limitations).
15 As noted above, Ms. Adams’ report referenced Plaintiff’s poor performance in the
16 CELF across all subtests. (AR 620.) By pointing out that the test is “normed” but not to
17 someone of Plaintiff’s cognitive level, Ms. Adams implied Plaintiff is performing poorly
18 relative to same-aged peers with average cognitive ability. (Id.) Further, Ms. Adams
19 concluded Plaintiff’s language difficulties are due to his cognitive and developmental
20 levels and not a specific speech or language-related impairment. (AR 621.) In summary,
21 Ms. Adams provided her professional opinion that Plaintiff’s poor language skills are
22 consistent with an individual with an IQ of 67. Because language is a factor in two
23 functional domains (acquiring and using information and interacting and relating to
24 others), we find Ms. Adams’ statements about Plaintiff’s language limitations are
25 relevant to his abilities in the six functional domains and constitute a medical opinion.
26 See Joseph L.S., 2023 WL 5611408, at *2. Accordingly, the ALJ was required to address

27 the persuasiveness of Ms. Adams’ opinion. See 20 C.F.R. § 404.1520c(a).
2 a. Dr. Sahagian’s opinion and the ALJ’s treatment thereof
3 Pediatric neurologist Michelle Sahagian, M.D. (“Dr. Sahagian”) first met with
4 Plaintiff in November 2020, noting the frequency of treatment to be every six months.
5 (AR 1187.) Presumably, based on this initial visit, genetic testing was ordered in
6 December 2020 that showed “[a]n approximately 4.6 Mb loss (deletion) of 7q33q34.”
7 (AR 1184.) This deletion involves several genes, the loss of which are characterized by
8 “cardiac defects, intellectual disability and facial dysmorphism,” and potentially other
9 more severe presentations. (Id.) In March 2021, Dr. Sahagian submitted a check-the-
10 box medical opinion diagnosing Plaintiff with “intellectual disability secondary to a
11 deletion of chromosome 7.” (AR 1187.) She listed Plaintiff’s diagnosis as “good –
12 condition not life threatening, but he will be dependent on care for his lifetime.” (Id.)
13 Dr. Sahagian found Plaintiff had marked5 limitations in the following functional areas:
14 1. understanding, remembering, or applying information;
15 2. interacting with others;
16 3. concentrating, persisting, or maintaining pace; and
17 4. adapting or managing oneself.
18 (AR 1187–88.) Dr. Sahagian further indicated Plaintiff had marked limitations in
19 acquiring and using information, attending and completing tasks, interacting and
20 relating with others, caring for oneself; moderate6 limitations in moving about and
21 manipulating objects; and extreme7 limitations in health and physical well-being. (AR
22 1188–90.) At the end of the report, Dr. Sahagian again noted that Plaintiff’s “intellectual
23
24
25
5 “Marked” means functioning independently, appropriately, effectively, and on a sustained basis is
26 seriously limited. 20 C.F.R. § Pt. 404, Subpt. P, App. 1 § 12.00(F)(2)(d).
6 “Moderate” means functioning in this area independently, appropriately, effectively, and on a
27
sustained basis is fair. 20 C.F.R. § Pt. 404, Subpt. P, App. 1 § 12.00(F)(2)(c)
2 1190.)
3 In his written decision, the ALJ found Dr. Sahagian’s opinion “not persuasive,” but
4 he made no explicit findings regarding supportability or consistency. Instead, he
5 provided the following threadbare assessment:
6 This opinion is not persuasive because it is inconsistent with the objective
medical record. For instance, the claimant reports having at least two
7
friends [AR 1087] and was completing his work on Google Classroom and
8 attending class via online video [AR 856]. This is inconsistent with marked
limitations in attending and completing tasks and interacting and relating to
9
others.
10 (AR 41.)
11 b. Analysis
12 Because the ALJ rejected Dr. Sahagian’s opinion as unpersuasive, he was required,
13 at minimum, to explain how he considered the supportability and consistency factors.
14 See 20 C.F.R. § 404.1520c(b)(2). The ALJ failed to do so. First, the ALJ did not reference
15 “supportability” at all in his assessment of Dr. Sahagian’s opinion. (AR 41.) The Court
16 cannot “speculate as to the grounds for the ALJ’s conclusion.” Brown-Hunter v. Colvin,
17 806 F.3d 487, 495 (9th Cir. 2015); Juan E. v. Kijakazi, No. 22-CV-0049-AGS-BGS, 2023 WL
18 5726463, at *10 (S.D. Cal. Aug. 18, 2023), report and recommendation adopted, No. 22-
19 CV-0049-AGS-BGS, 2023 WL 5734906 (S.D. Cal. Sept. 5, 2023) (holding the ALJ’s
20 supportability analysis was insufficient where it contained only a “vague reference” to
21 the medical summary and required the court to “speculate as to the grounds of his
22 conclusion”). Further, there is objective medical evidence in the record that may have
23 supported Dr. Sahagian’s findings regarding Plaintiff’s functional abilities—including
24 Plaintiff’s genetic testing results, academic achievement test results, and speech-
25 language evaluation—all of which were not discussed by the ALJ. (See generally AR
26 1184–86, 1196.)
27 Second, the ALJ failed to adequately address the consistency of Dr. Sahagian’s
2 is not permitted to reject a medical opinion as inconsistent “without providing an
3 explanation supported by substantial evidence.” Juan E., 2023 WL 5726463, at *10
4 (citing Woods, 32 F.4th at 792). Here, although the ALJ cited two records showing
5 Plaintiff had at least two friends [AR 1087] and attended virtual school [AR 856], this
6 does not constitute an explanation supported by substantial evidence. Id. As with the
7 supportability factor, by failing to meaningfully address conflicting evidence supporting
8 Plaintiff’s limitations, the Court is left to speculate as to how the ALJ reached his
9 conclusions. Brown-Hunter, 806 F.3d at 495. Additionally, district courts in the Ninth
10 Circuit and elsewhere “have remanded where evidence supporting or consistent with a
11 rejected medical opinion was ignored.” Thompson v. Comm’r of Soc. Sec., No. 2:20-CV-
12 3-KJN, 2021 WL 1907488, at *6 (E.D. Cal. May 12, 2021) (collecting cases). Thus, the
13 Court finds the ALJ erred by failing to adequately discuss the mandatory supportability
14 and consistency factors. See 20 C.F.R. § 404.1520c(b)(2).
15 5. Conclusion
16 The ALJ failed to properly evaluate all medical opinions pursuant to the SSA
17 regulations. First, the ALJ erred by omitting Ms. Adams’ report without addressing the
18 persuasiveness of it. See Garrison, 759 F.3d at 1012–13 (“[A]n ALJ errs when he rejects
19 a medical opinion or assigns it little weight while doing nothing more than ignoring it . . .
20 .”) Additionally, when assessing Dr. Sahagian’s medical opinion, the ALJ erred by failing
21 to adequately discuss the mandatory supportability and consistency factors. See 20
22 C.F.R. § 404.1520c(b)(2). On remand, the ALJ is directed to re-evaluate Ms. Adams’ and
23 Dr. Sahagian’s opinions using the appropriate and required factors.
24 B. The ALJ Erred by Finding Plaintiff Did Not Meet or Medically Equal the
25 Paragraph (B)(1) Criteria for Child and Adult Intellectual Disorders
26 1. Summary of the parties’ arguments

27 Plaintiff contends the ALJ erred by concluding Plaintiff did not meet the Paragraph
2 picked” certain intelligence quotient (“IQ”) testing, while ignoring other IQ scores.
3 (Mot. at 14–16.) In response, the Commissioner argues that because Plaintiff scored 82
4 on two IQ tests, including one in August 2018, the ALJ reasonably concluded that
5 Plaintiff did not consistently have a full scale IQ below 70. (Opp’n at 12.) Accordingly,
6 the Commissioner maintains the ALJ properly evaluated the Paragraph (B)(1) criteria for
7 these listings. (Id.)
8 2. Applicable law
9 To satisfy the Paragraph (B)(1) criteria for listings 112.05 or 12.05, the claimant
10 must establish a “full scale (or comparable) IQ score of 70 or below on an individually
11 administered standardized test of general intelligence.”8 See 20 C.F.R. Pt. 404, Subpt. P,
12 App. 1, §§ 12.05(B)(1)(a), 112.05(B)(1)(a). The SSA finds IQ test results usable when they
13 meet program requirements and are administered by a qualified specialist. See 20
14 C.F.R. Pt. 404, Subpt. P, App. 1, § 112.00(H)(2)(a). The Program Operations Manual
15 System (“POMS”) is instructive to determine program requirements. See Using
16 Intelligence Tests to Evaluate Cognitive Disorders, Including Intellectual Disorder, SSA
17 POMS DI 24583.055. “Although POMS is not binding law, [POMS] is persuasive
18 authority.” Buck v. Berryhill, 869 F.3d 1040, 1050–51 (9th Cir. 2017) (citing Warre v.
19 Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1005 (9th Cir. 2006)); see also Carillo-Yeras
20 v. Astrue, 671 F.3d 731, 735 (9th Cir. 2011) (noting POMS may be entitled to respect “to
21 the extent it provides a persuasive interpretation of an ambiguous regulation”).
22 According to the POMS, “IQ scores must be current to be used to meet or
23 medically equal the IQ requirements of listings 12.05 and 112.05. Scores stabilize after
24 age sixteen and are generally considered current after that time.” DI 24583.055(I)(7).
25
26
8 Alternatively, the claimant can show “[a] full scale (or comparable) IQ score of 71–75 accompanied by
27
a verbal or performance IQ score (or comparable part score) of 70 or below on an individually
2 year; for children aged seven to sixteen with an IQ over 40, scores are considered
3 current for two years. Id. Tests for children aged sixteen or older may be considered
4 current indefinitely, provided they are “not inconsistent with the person’s current
5 functioning.” Id. Additionally, nonverbal intelligence tests9 and academic achievement
6 tests cannot be used to meet the full scale IQ requirement under listings 112.05 or

7 12.05. See DI 24583.055(I)(3); DI 24583.050(D)(3). However, nonverbal tests may be
8 used to medically equal the IQ requirements under Paragraph (B)(1) when “the person is
9 unable to undergo standard administration of a traditional intelligence test.” DI
10 24583.055(I)(3). Lastly, when the record contains multiple intelligence tests, the POMS
11 states an adjudicator should use the results from the most recent test if it was
12 programmatically acceptable. DI 24583.055(I)(8).
13 3. Analysis
14 Because evaluation of impairments under the adult standard is like that of older
15 adolescents and young adults, the analysis below is applicable to Plaintiff’s disability
16 determination under both the child and adult standards. See Titles II & XVI:
17 Documenting & Evaluating Disability in Young Adults, SSR 11-2P (S.S.A. Sept. 12, 2011)
18 (“[T]he evidence we consider when we make disability determinations for young adults
19 is generally the same as, or similar to, the evidence we consider for making disability
20 determinations for older adolescents under title XVI”). The ALJ held Plaintiff failed to
21 meet the Paragraph (B)(1) criteria for child and adult intellectual disorders because
22 Plaintiff “does not consistently have a full scale [sic] IQ score of 70 or below.” (AR 32
23 (citing AR 448).) To support his finding, the ALJ cited a single test from March 7, 2008,
24 where Plaintiff “had a [f]ull [s]cale score of 82.” (AR 32 (citing AR 448).) The ALJ’s only
25 other mention of an IQ score occurs several pages later in his discussion of Plaintiff’s
26
27
2 2009.” (AR 40 (citing AR 706).)
3 Plaintiff argues the ALJ erred by failing to consider three test scores where
4 Plaintiff scored a 70 or below: (1) a nonverbal index of 64 on the Kaufman Assessment
5 Battery for Children in October 2009 [AR 706]; (2) a full-scale score of 70 on the
6 Wechsler Nonverbal Scale of Ability in October 2009 [AR 706]; and a perceptual
7 reasoning index10 of 67 on the Wechsler Intelligence Scales for Children– Fourth Edition
8 in August 2012 [AR 707–08]. (Mot. at 15–16.) We agree. Not only did the ALJ fail to
9 mention these tests in his written decision, but he relied on a single outdated
10 intelligence test from March 7, 2008, to support his conclusion that Plaintiff did not
11 meet the Paragraph (B)(1) criteria. Plaintiff was four years old at the time of the March
12 2008 testing. (See AR 223, 448.) According to the POMS, because Plaintiff had not yet
13 attained the age of seven at the time of this testing, the score would only be considered
14 current for one year, or until March 7, 2009. See DI 24583.055(I)(7). Similarly, the
15 October 2009 IQ score cited in the ALJ’s RFC discussion would only be considered
16 current for one year, or until October 19, 2010. Id.
17 Here, the ALJ held an administrative hearing on September 14, 2021 [AR 52–65]
18 and issued his written decision on November 2, 2021 [AR 25–43]. Thus, the March 2008
19 and October 2009 IQ scores became non-current more than ten years before the
20 adjudication date and were not valid indicators for determining whether Plaintiff met
21 the Paragraph (B)(1) criteria. See DI 24583.055(I)(7); Medina v. Comm’r of Soc. Sec., No.
22 1:21-cv-1441-AWI-SAB, 2022 WL 3226141, at *12 (E.D. Cal. Aug. 10, 2022), report and
23 recommendation adopted sub nom. Medina on behalf of Minor I.I.M v. Comm’r of Soc.
24 Sec., No. 1:21-cv-1441-AWI-SAB, 2022 WL 4238884 (E.D. Cal. Sept. 14, 2022) (finding
25 that claimant’s “February 2016 test became non-current as of February 2018, well
26

27 10 The POMS explains “[a] comparable score is an IQ score that reflects the same type and scope of a
2 and the ALJ's January 28, 2021 decision,” and was therefore invalid for determining
3 whether Plaintiff’s intellectual disorder met listing 112.05). Because the ALJ’s written
4 decision cites only outdated, invalid IQ scores, the Court finds error.
5 The Commissioner argues Plaintiff’s IQ score of 82 from August 2018 supports the
6 ALJ’s determination that Plaintiff failed to satisfy the Paragraph (B)(1) criteria. (Opp’n at
7 12 (citing AR 767).) The ALJ did not cite this test when assessing Plaintiff’s intellectual
8 functioning, so the Court cannot say whether he considered it. (See generally AR 30–
9 38.) Additionally, Plaintiff was under the age of sixteen at the time of this testing so it
10 would only be considered current for two years— until August 24, 2020. (AR 767.) See
11 also DI 24583.055(I)(7). Once again, this test would not be a valid indicator as of the
12 September 14, 2021 administrative hearing [AR 52–65] and November 2, 2021 written
13 decision [AR 25–43]. Moreover, the August 2018 test is a Test of Nonverbal Intelligence
14 – Fourth Edition, which ordinarily cannot be used to meet the requirements for listings
15 112.05 and 12.05. (AR 767.) See also DI 24583.055(I)(3) (“Many nonverbal intelligence
16 tests will not satisfy the requirements for standardized tests of general intelligence
17 found in section 12.00H of the mental disorders listings”). Nonverbal tests may be used
18 for medical equivalence in limited situations, such as when English is not the test taker’s
19 primary language, or a test taker has severe language impairments. Id. Because the ALJ
20 did not refer to the August 2018 test at all, he also did not articulate a rationale for
21 relying on a nonverbal test to assess intellectual functioning. (See generally AR 30–38.)
22 Thus, the Court does not find Defendant’s argument persuasive.
23 4. Conclusion
24 The record reflects that the ALJ overlooked at least three tests where Plaintiff had
25 an IQ score of 70 or below. (See AR 706–08.) Further, the ALJ erred by relying on a
26 single, outdated intelligence test from March 7, 2008 to support his determination that

27 Plaintiff failed to meet the Paragraph (B)(1) criteria for listings 112.05 and 12.05. (AR
2 70 on October 19, 2009. (AR 40.) Both the March 2008 and October 2009 scores—
3 which occurred when Plaintiff was merely four years old and six years old—were far
4 beyond the time to be considered valid indicators of IQ. See DI 24583.055(I)(7)
5 (explaining childhood IQ scores greater than 40 remain “current” for one to two years,
6 depending on the individual’s age at the time of testing). Thus, the ALJ’s reliance on an
7 outdated, childhood IQ score to determine intellectual disability was a legal error.
8 Indeed, in cases where IQ scores “are relied upon for the purpose of assessing [an
9 intellectual] disability, there is no question that a fully and fairly developed record . . .
10 will include a complete set of IQ scores that report verbal, non-verbal, and full-scale
11 abilities.” Garcia v. Comm’r of Soc. Sec., 768 F.3d 925, 930–31 (9th Cir. 2014) (internal
12 citations and quotations omitted) (finding the ALJ had a duty to develop the record to
13 include a complete set of IQ results and “her failure to do so was legal error.”); see also
14 Medina, 2022 WL 3226141, at *11 (concluding the invalid IQ tests in the record
15 triggered a duty to develop the record, and “failure to order further IQ testing or
16 otherwise further develop the record as to Plaintiff’s IQ scores” was reversible error);
17 Conner v. Comm’r of Soc. Sec. Admin., No. CV-17-00340-TUC-BPV, 2018 WL 4140839, at
18 *12 (D. Ariz. Aug. 30, 2018) (finding the ALJ legally erred when relying on outdated IQ
19 tests to find Plaintiff did not meet listing 12.05 IQ criteria). Here, there is a genuine
20 possibility that, had a complete set of valid IQ test scores been included in the record,
21 the results might have been different. On remand, the ALJ is instructed to re-evaluate
22 the entirety of the evidence and fully develop the record regarding Plaintiff’s IQ testing.
23 C. The ALJ Erred by Finding Plaintiff Did Not Meet or Medically Equal the
24 Paragraph (B)(2) Criteria for Child and Adult Intellectual Disorders
25 1. Summary of the parties’ arguments
26 Plaintiff next asserts the ALJ failed to consider the whole record and

27 mischaracterized evidence when concluding Plaintiff did not meet the Paragraph (B)(2)
2 impairments did not qualify as at least “marked” limitations in three areas of mental
3 functioning: (1) understanding, remembering, or applying information; (2) interacting
4 with others; and (3) adapting or managing oneself. (Mot. at 16–22.) Plaintiff does not
5 appear to contest the ALJ’s determination in the functional area of concentrating,
6 persisting, or maintaining pace, and does not dispute the Commissioner’s assertion that
7 he waived arguments disputing this functional area. (Id.; Opp’n at 12–13 n. 2.)
8 Accordingly, the Court will address the three functional areas identified by Plaintiff.
9 2. Applicable law
10 For a claimant to meet the Paragraph (B)(2) criteria, they must demonstrate
11 “[s]ignificant deficits in adaptive functioning currently manifested by” marked
12 limitations in two areas of mental functioning or an extreme limitation in one area of
13 mental functioning. 20 C.F.R. Pt. 404, Subpt. P, App. 1, §§ 12.05(B)(2), 112.05(B)(2). The
14 four areas of mental functioning are:
15 1. Understand, remember, or apply information;
16 2. Interact with others;
17 3. Concentrate, persist, or maintain pace; and
18 4. Adapt or manage oneself.
19 Id. A marked limitation for children is present when the:
20 impairment(s) interferes seriously with your ability to independently
initiate, sustain, or complete activities. Your day-to-day functioning may be
21
seriously limited when your impairment(s) limits only one activity or when
22 the interactive and cumulative effects of your impairment(s) limit several
activities . . . It is the equivalent of the functioning we would expect to find
23
on standardized testing with scores that are at least two, but less than
24 three, standard deviations below the mean.
25 20 C.F.R. § 416.926a(e)(ii)(2). For adults, it means the claimant’s functioning in this area
26 independently, appropriately, effectively, and on a sustained basis is seriously limited.
27 See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00(F)(2)(d). An extreme limitation for
2 marked, however, “‘extreme limitation’ does not necessarily mean a total lack or loss of
3 ability to function. It is the equivalent of the functioning we would expect to find on
4 standardized testing with scores that are at least three standard deviations below the
5 mean.” Id. For adults, it means the claimant is not able to function in this area
6 independently, appropriately, effectively, and on a sustained basis. See 20 C.F.R. Pt.
7 404, Subpt. P, App. 1, § 12.00(F)(2)(e).
8 The SSA provides additional guidance on evaluating limitations in functional areas
9 B1, B3, and B4 under both the adult and child listings. 20 C.F.R. Pt. 404, Subpt. P, App. 1
10 §§ 12.05(F)(3)(f), 112.05(F)(3)(e). In these areas, “the greatest degree of limitation of
11 any part of the area of mental functioning directs the rating of limitation of that whole
12 area of mental functioning.” Id. “For example, with respect to paragraph B3, if you
13 have marked limitation in concentrating, but your limitations in persisting and
14 maintaining pace do not rise to a marked level, we will find that you have marked
15 limitation in the whole . . . area of mental functioning.” 20 C.F.R. Pt. 404, Subpt. P, App.
16 1 §§ 12.05(F)(3)(f)(ii), 112.05(F)(3)(e)(ii). Social Security Ruling 09-1p states “the rating
17 of limitation of a domain is not an ‘average’ of what activities the child can and cannot
18 do.” 11 Title XVI: Determining Childhood Disability Under the Functional Equivalence
19 Rule-the "Whole Child" Approach, SSR 09-1P at III(B) (S.S.A. Feb. 17, 2009).
20 In determining disability for children, the SSA considers medical evidence and
21 statements from nonmedical sources such as parents, teachers, and others who have
22 insight into day-to-day functioning. 20 C.F.R. § 416.924a(a)(1)–(2). Factors considered
23 when evaluating functioning include, among others, “how [a child’s] functioning
24 compares to the functioning of children [their] age who do not have impairments”;
25
26
11 Social Security Ruling 09-1p continues, “[t]he fact that a child can do a particular activity or
27
set of activities relatively well does not negate the difficulties the child has in doing other
2 amount of help or adaptations [needed], and the effects of structured or supportive
3 settings”; and special education programs. 20 C.F.R. § 416.924a(b)(1)–(9). Importantly,
4 the ALJ is required to examine evidence in the broader context of a claimant’s
5 impairment. Attmore v. Colvin, 827 F.3d 872, 877 (9th Cir. 2016) (finding the ALJ’s
6 findings were not supported by substantial evidence because the isolated
7 improvements the ALJ relied upon were not representative of the continuing severity of
8 the claimant’s symptoms); see also Diedrich v. Berryhill, 874 F.3d 634, 642 (9th Cir.
9 2017) (finding the ALJ’s improper cherry-picking of evidence was insufficient to show
10 “broader development” of plaintiff’s lack of symptoms).
11 3. Analysis
12 Because evaluation of impairments under the adult standard is like that of older
13 adolescents and young adults, the analysis below is applicable to Plaintiff’s disability
14 determination under both the child and adult standards. See SSR 11-2P.
15 a. Understanding, remembering, or applying information
16 Functional area B1—understanding, remembering, or applying information—
17 “refers to the abilities to learn, recall, and use information to perform” age-appropriate
18 (child standard) or work-related (adult standard) activities. See 20 C.F.R. Pt. 404, Subpt.
19 P, App. 1 §§ 12.00(E)(1), 112.00(E)(1).12 13 The ALJ found Plaintiff has a moderate
20 limitation in this area:
21 The claimant reports he has limitations in understanding and using what he
has learned. [AR 260]. He does not read and understand sentences in
22
comics, cartoons, books, magazines, and newspapers; spell words of more
23 than four letters; tell time; multiply and divide numbers; add or subtract
numbers over 10; understand money or make change; or understand, carry
24
25
12 Examples under the child standard include: “Understanding and learning terms, instructions,
26 procedures; following one- or two-step oral instructions to carry out a task; describing an activity to
someone else.” 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 112.00(E)(1).
27 13 Examples under the adult standard include: “Understanding and learning terms, instructions,
2 has a 3.39 GPA and is ranked 133 out of 507 students in his graduating class
[AR 848]. This is inconsistent with more severe limitations in
3 understanding, remembering, or applying information.
4 (AR 30–31.)
5 Plaintiff primarily argues the ALJ’s reliance on Plaintiff’s GPA to refute his severe
6 limitations in this area was an oversimplification and mischaracterization of the
7 academic record. (Mot. at 17–20.) We agree. As noted above, factors considered when
8 evaluating functioning include how a child functions compared to same-aged peers
9 without impairments, the effects of structured or supportive settings, and special
10 education programs. 20 C.F.R. §§ 416.924a(b)(1)–(9). According to Plaintiff’s latest
11 Individualized Education Program dated March 16, 2021 (“2021 IEP”), when Plaintiff was
12 a senior in high school, he was in special education for seventy percent of the school day
13 “because [Plaintiff] requires specialized small group instruction in functional
14 skills/academic areas.” (AR 343.) Additionally, the 2021 IEP indicates Plaintiff was
15 reading at a third-grade level with only forty percent comprehension and Plaintiff
16 required “several prompts” to compose a sentence because of his inability to recall
17 information. (AR 1196, 1201.) Further, Plaintiff was enrolled in “functional” coursework
18 designed for those on track for a certificate of completion, as opposed to the traditional
19 high school degree. (AR 848, 1194).
20 The ALJ acknowledged that Plaintiff does not “read and understand sentences in
21 comics, cartoons, books, magazines, and newspapers; spell words of more than four
22 letters; tell time; multiply and divide numbers; add or subtract numbers over 10;
23 understand money or make change; or understand, carry out, and remember simple
24 instructions.” (AR 30.) However, the ALJ discounted these limitations by simply
25 pointing to Plaintiff’s GPA and class rank. (AR 30–31.) The ALJ’s omission of key
26 information—such as the extent of Plaintiff’s enrollment in special education classes
27 and the type of support he requires during the school day—is a mischaracterization of
2 all parts of the testimony and reports.”); Jones v. Kijakazi, No. 21-16950, 2022 WL
3 4285597, at *1 (9th Cir. Sept. 16, 2022) (finding the ALJ’s omission of important
4 qualifying information was a mischaracterization of the evidence); Normalya T. v.
5 Kijakazi, No. 22-CV-02691-JST, 2023 WL 4109574, at *6 (N.D. Cal. June 20, 2023) (finding
6 the ALJ erred when she “mischaracterized the evidence on which she relied and
7 otherwise selectively cited the record to portray Plaintiff's conditions as less severe than
8 the record actually shows them to be”).
9 Plaintiff also correctly points out that the ALJ failed to account for three scores on
10 the Woodcock Johnson Test of Achievement – Fourth Edition (“WJ-IV test”) from 2015
11 to 2018. (Mot. at 18.) The WJ-IV test measures an individual’s performance compared
12 to same-aged peers [AR 769] and is considered medical evidence when evaluating
13 childhood disabilities. See 20 C.F.R. § 416.924a(a)(1)(ii); 20 C.F.R. § 416.926a(e)(ii). In
14 August 2015 and August 2017, Plaintiff scored “very low” and more than three standard
15 deviations below the mean in nearly all subtests. (AR 623–24, 768–69.) In August 2018,
16 Plaintiff’s overall performance was in the <0.1 percentile of fourteen-year-old children
17 nationally, as he scored “extremely limited” across most reading, writing, and math
18 domains. (AR 506.) Pursuant to the SSA regulations, test scores that are more than
19 three standard deviations below the mean may indicate an extreme limitation in this
20 area of functioning under the child standard. See 20 C.F.R. § 416.926a(e)(ii)(3). The ALJ
21 erred by selectively citing to the record and failing to discuss Plaintiff’s consistently low
22 academic achievement testing, thus portraying Plaintiff’s impairment as less severe than
23 it is. See Normalya T., 2023 WL 4109574, at *6 (holding the ALJ erred by
24 “mischaracterize[ing] the evidence on which she relied while ignoring significant
25 probative evidence”); Darren Jeffrey C. v. Kijakazi, No. 3:21-CV-01012-AHG, 2022 WL
26 4474261, at *16 (S.D. Cal. Sept. 26, 2022) (finding the ALJ improperly cherry-picked

27 statements in the medical record without accounting for the “overall diagnostic
2 area of mental functioning is inconsistent with the ALJ’s finding of a marked limitation in
3 the functional equivalence domain of acquiring and using information. (Mot. at 19–20.)
4 Acquiring and using information “involves how well children perceive, think about,
5 remember, and use information in all settings, which include daily activities at home, at
6 school, and in the community.” (AR 33 (citing 20 C.F.R. § 416.926a(g) and SSR 09-3p).)
7 The ALJ’s reasoning for finding a marked limitation in this functional equivalence domain
8 is nearly verbatim to the reasoning used to find a moderate limitation in the functional
9 area of understanding, remembering, or applying information. (Compare AR 30–31,
10 with AR 34.) The sole addition to the former is the ALJ’s notation that Plaintiff has been
11 in special education his entire student career. (AR 34.) Despite the broad overlap
12 between these two areas, the ALJ failed to articulate why he assessed differing levels of
13 limitation. (Compare AR 30–31, with AR 34.)
14 In summary, we find the ALJ’s determination that Plaintiff has a moderate
15 limitation in the functional area of understanding, remembering, or applying
16 information is not supported by substantial evidence. Revels, 874 F.3d at 654
17 (explaining that substantial evidence is “more than a mere scintilla but less than a
18 preponderance”). First, the ALJ mischaracterized Plaintiff’s academic record by isolating
19 his GPA and failing to consider it within the broader context of his special education
20 programming and the amount of support he received. See Reddick, 157 F.3d at 723;
21 Normalya T., 2023 WL 4109574, at *6. Further, the ALJ cherry-picked information by
22 failing to discuss Plaintiff’s performance in relation to same-aged peers on the WJ-IV
23 test—objective medical evidence that a reasonable mind would weigh in assessing this
24 functional area. Darren Jeffrey C., 2022 WL 4474261, at *16. Lastly, the ALJ did not
25 sufficiently explain his conflicting determinations of a marked limitation in the
26 functional equivalence domain of acquiring and using information, but only a moderate

27 limitation in the functional area of understanding, remembering, or applying
2 Functional area B2—interacting with others—refers to the abilities “to relate to
3 others age-appropriately at home, at school, and in the community” (child standard) or
4 “to relate to and work with supervisors, co-workers, and the public” (adult standard).
5 See 20 C.F.R. Pt. 404, Subpt. P, App. 1 §§ 12.00(E)(2), 112.00(E)(2).14 15 After finding
6 Plaintiff had a moderate limitation in interacting with others, the ALJ explained:
7 The claimant reports that his ability to communicate with others is limited
[AR 259]. He does not answer the phone or make calls, repeat stories he
8
has heard, tell jokes or riddles accurately, or explain why he did something
9 [AR 259]. He does not have friends his own age or make new friends [AR
261]. However, on May 13, 2019, it was noted the claimant is well liked by
10
students and staff and is very sociable with his friends [AR 994]. He also
11 enjoys going to “Best Buddies” lunch meetings twice a month [AR 994].
This is inconsistent with more severe limitations in interacting with others.
12

13 (AR 31.) Like the previous functional area, Plaintiff argues the ALJ’s assessment of a
14 moderate limitation in interacting with others is not supported by substantial evidence
15 because the ALJ mischaracterized evidence and “improperly isolated information from
16 the larger context.” (Mot. at 20–21.) We agree.
17 The ALJ’s above support for finding a moderate limitation in this area comes from
18 the Strength/Preferences/Interest Section of Plaintiff’s IEP dated May 13, 2019 (“2019
19 IEP”). (AR 994.) However, later sections of the 2019 IEP provide broader context for
20 Plaintiff’s “communication development” and “social emotional/behavioral”
21 characteristics that the ALJ failed to discuss in his analysis. (See AR 31.) The 2019 IEP
22 states the following regarding Plaintiff’s communication development:
23 [Plaintiff] has good communication skills and is very sociable and well
liked by his peers and staff. At the beginning of the school year, he
24
25
14 Examples under the child standard include: “Engaging in interactive play; cooperating with others;
26 asking for help when needed; initiating and maintaining friendships; handling conflicts with others.” 20
C.F.R. Pt. 404, Subpt. P, App. 1 § 112.00(E)(2).
27 15 Examples under the adult standard include: “cooperating with others; asking for help when needed;
2 become out-going and friendly. However, it seems that he is still a
young man who is [quiet] and reserved with his words. [Plaintiff]
3 demonstrates language development that is commensurate with his
cognitive abilities. He does not usually ask questions or volunteer
4
answers in the classroom setting unless called upon.
5 (AR 994.) The 2019 IEP also described Plaintiff’s social, emotional, and behavioral
6 characteristics as follows:
7 [Plaintiff] gets along well with peers, and as stated he is well liked.
He continues to become distracted in class when certain students are
8
there and then becomes unfocused on his assignments. He likes to
9 quietly get their attention in class by smiling and staring at them. He
likes girls and continues to hug and kiss them when no one is looking
10
as was stated last school year. However, [Plaintiff] is beginning to
11 show self-advocacy skills by speaking up politely to express his needs
or concerns which shows developing maturity.
12
13 (Id.) Based on these expanded passages, it appears the ALJ improperly highlighted a few
14 statements from the 2019 IEP, rather than accurately capturing the full context of the
15 document. See, e.g., Diedrich, 874 F.3d at 642 (finding error where the ALJ “cherry-
16 picked” the absence of certain symptoms); Jones, 2022 WL 4285597, at *1 (finding error
17 where the ALJ omitted important qualifying information); Normalya T., 2023 WL
18 4109574, at *6 (finding error where the ALJ “selectively cited the record”). Further, the
19 ALJ does not explain why he relies on the 2019 IEP rather than the most recent 2021 IEP.
20 (AR 31.)
21 Additionally, Plaintiff asserts his participation in “Best Buddies” is taken out of
22 context because the ALJ did not explain the program’s structure (i.e., the school pairs
23 neurotypical peers with students with disabilities and, in this case, “Plaintiff is the
24 student with disabilities”). (Mot. at 20.) In response, the Commissioner argues that
25 being paired with neurotypical peers does not undermine Plaintiff’s interest in
26 participating with others or that he has “normal social behaviors.” (Opp’n at 14). The
27 record reveals that all “Best Buddies” activities outside of school hours are “100%
2 social activity. See Darren Jeffrey C., 2022 WL 4474261, at *16 (finding error where the
3 ALJ mischaracterized and ignored significant record evidence).
4 Plaintiff further argues his testimony at the September 14, 2021, administrative
5 hearing demonstrated limitations in interacting with others. (Mot. at 20.) We agree.
6 First, Plaintiff appeared to become confused when the ALJ asked him how much he was
7 paid for walking his dog. (AR 56.) Plaintiff initially said, “two dollars,” then changed his
8 answer to “one,” and finally said “I don’t know.” (Id.) When asked twice why he takes
9 medication, Plaintiff answered “[f]or dreams” both times. (AR 57.) When asked his
10 address, Plaintiff answered simply with the number “1108.” (AR 58.) Most of Plaintiff’s
11 answers at the hearing were a single word. (See AR 56–58). When summarizing
12 Plaintiff’s testimony in his written decision, the ALJ recited facts about Plaintiff’s
13 answers but omitted any discussion of Plaintiff’s confusion or how he interacted with
14 the ALJ or counsel. (AR 39.) The Commissioner argues that Plaintiff’s reliance on “an
15 isolated incident where [Plaintiff] was purportedly confused with the ALJ’s questioning”
16 does not undermine the ALJ’s reasonable conclusion that Plaintiff enjoys participating in
17 social events and gets along with students and school staff. (Opp’n at 14.) However,
18 the opposite is also true: Plaintiff’s ability to do certain activities well “does not negate
19 the difficulties the child has in doing other activities.” SSR 09-1p at (III)(B). Moreover,
20 the SSA does not average the evidence of all the child’s activities to determine the rating
21 of limitation within a given domain. (Id.) Thus, the ALJ’s isolation of certain activities
22 where Plaintiff may have performed adequately does not “offset” Plaintiff’s more
23 significant limitations. SSR 09-1p at (III)(B).
24 In addition to mischaracterizing evidence, the ALJ erred by failing to articulate
25 how the evidence he presented led to his conclusions, thus frustrating meaningful
26 review by the Court. See, e.g., Cohen v. Kijakazi, No. 2:21-CV-00031-VCF, 2022 WL

27 1136299, at *4 (D. Nev. Apr. 18, 2022) (determining the ALJ’s decision was not
2 conclusion”); Santiago v. Barnhart, 278 F. Supp. 2d 1049, 1058 (N.D. Cal. 2003) (finding
3 the ALJ’s “failure to articulate some basis for his step-three conclusion necessitate[d]
4 remand”). When evaluating an individual’s functioning in interacting with others, the
5 severity of limitation is based on how the individual “relate[s] to others age-
6 appropriately at home, at school, and in the community.” 20 C.F.R. Pt. 404, Subpt. P,
7 App. 1 § 112.00(E)(2).
8 Here, the ALJ cited only two statements from Plaintiff’s 2019 IEP to support his
9 conclusion that Plaintiff has a moderate limitation in this functional area. (AR 31.) The
10 ALJ did not explain why he found the 2019 IEP more credible than other evidence such
11 as the 2020 function report completed by Plaintiff’s mother (“Function Report”) [AR
12 254–64], which provides more information about how Plaintiff functions at home and in
13 the community, outside of his highly structured educational environment. Later in his
14 decision, the ALJ noted that Plaintiff reported having two friends, but provided no
15 context for the nature of these friendships and if they occurred outside of the
16 structured school environment. (AR 40–41 (citing AR 1087).) Thus, the ALJ’s mere
17 recitation of evidence without further explanation falls short of the substantial evidence
18 standard. See Santiago, 278 F. Supp. 2d at 1058 (finding remand was warranted where
19 the ALJ failed to “sufficiently discuss and evaluate the evidence” before concluding
20 plaintiff did not equal a listed impairment); see also Hahn v. Berryhill, 722 F. App’x 602,
21 604 (9th Cir. 2017) (citing Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993)) (noting an
22 ALJ must provide “reasons germane to each witness, supported by substantial evidence,
23 to reject the lay witness statements regarding [a plaintiff’s] limitations.”)
24 In conclusion, the ALJ’s determination that Plaintiff has a moderate limitation in
25 the functional area of interacting with others is not supported by substantial evidence.
26 Revels, 874 F.3d at 654. The ALJ again did not accurately portray the level of support

27 Plaintiff appears to receive during certain activities and failed to properly contextualize
2 plaintiff exaggerated her symptoms). The absence of any substantive discussion
3 surrounding these important factors, along with the ALJ’s isolation of a few favorable
4 facts, frustrates the Court’s ability to properly review the ALJ’s decision. See Garrison,
5 759 F.3d at 1017 (finding the ALJ erred by using “a few isolated instances of
6 improvement” as the basis for finding plaintiff was capable of working).
7 c. Adapting or managing oneself
8 Finally, functional area B4—adapting or managing oneself—refers to an
9 individual’s “abilities to regulate emotions, control behavior, and maintain well-being”
10 in age-appropriate activities and settings (child standard) or in a work setting (adult
11 standard). See 20 C.F.R. Pt. 404, Subpt. P, App. 1 §§ 12.00(E)(4), 112.00(E)(4).16 17 The
12 ALJ provided the following explanation for his finding that Plaintiff has a moderate
13 limitation in this area:
14 [Plaintiff] cannot cook a meal for himself, do homework, study, take his
medication, use public transportation by himself, or avoid accidents [AR
15
262]. However, on March 16, 2021, it was reported the claimant takes care
16 of all his daily needs independently and takes care of his bedroom, feeds
the chickens, and helps with yard care [AR 1196]. This is inconsistent with
17
more severe limitations in adapting or managing oneself.
18 (AR 31.)
19 Plaintiff contends the ALJ ignored relevant information and improperly isolated
20 favorable facts from the broader context. (Mot. at 21–22.) We agree. The ALJ’s
21 examples of Plaintiff’s more severe limitations are taken from his mother’s Function
22 Report [AR 262], while his examples supporting Plaintiff’s independence are taken from
23 the 2021 IEP [AR 1196]. These two sources appear to directly contradict one another, as
24

25 16 Examples under the child standard include: “Responding to demands; adapting to changes;
managing your psychologically based symptoms; distinguishing between acceptable and unacceptable
26 performance in community- or school-related activities.” 20 C.F.R. Pt. 404, Subpt. P, App. 1 §
112.00(E)(4).
27 17 Examples under the adult standard include: “Responding to demands; adapting to changes;
2 medication is directly at odds with Plaintiff “tak[ing] care of all his daily needs
3 independently.” (Compare AR 262, with AR 1196.) In theory, the 2021 IEP, which was
4 finalized approximately one year after the Function Report, could indicate Plaintiff’s
5 independence has improved. However, the 2019 IEP, completed approximately one
6 year before Function Report, contains nearly identical language to the 2021 IEP.
7 (Compare AR 874, with AR 1196.) Once again, the ALJ did not explain why he favored
8 the 2021 IEP over other evidence such as the Function Report.
9 Additionally, a closer look at the 2021 IEP reveals that the ALJ ignored other
10 relevant information related to Plaintiff’s independence. For example, on the same
11 page that the ALJ referenced, the IEP team noted that Plaintiff struggled with his
12 changing school schedule and required frequent reminders of his daily schedule. (AR
13 1196.) The IEP team also reported that Plaintiff could not find bus routes on the county
14 transit website. (AR 1205.) The ALJ did not mention this information in his decision.
15 Additionally, despite Plaintiff’s mother testifying at the administrative hearing that she
16 was in the process of obtaining a limited conservatorship [AR 60], the ALJ did not
17 mention this at all. (See generally AR 25–43.)
18 Plaintiff’s Individual Program Plan (“IPP”) completed by the San Diego Regional
19 Center (“SDRC”) on April 4, 2019, seems to provide broader context for Plaintiff’s level
20 of independence:
21 [Plaintiff] performs his personal care activities independently but, needs
reminders. His parents state that he can complete brushing his teeth,
22
combining [sic] his hair, and shaving all by himself but he needs that
23 constant reminder to finish them. As well as dressing, he can do it
independently but, needs reminders. His mother states that he likes to
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constantly wear his favorite clothes and likes to save his dirty clothes back
25 in the closet or drawer. [Plaintiff] has complete control of his bladder and
bowel movements and can go to the bathroom independently . . . His
26
mother reports that’s [Plaintiff] will not make basic meals for himself such
27 as a sandwich.
2 “self-care” and “capacity for independent living.” (AR 759.) The Commissioner
3 attempts to minimize this evidence by noting the SDRC also described Plaintiff’s
4 intellectual disability as “mild.” (Opp’n at 14 (citing AR 759).) However, there is not
5 enough information to assess how the SDRC’s rating scale correlates to the Social
6 Security disability scheme. See, e.g., Desrosiers, 846 F.2d at 576 (finding the California
7 workers’ compensation system measured work capacity “quite differently” than the
8 Social Security disability scheme).
9 Thus, the ALJ’s finding that Plaintiff has a moderate limitation in the functional
10 area of adapting and managing oneself is not supported by substantial evidence.
11 Revels, 874 F.3d at 654. The ALJ improperly isolated favorable facts from the broader
12 context and ignored relevant evidence that was contrary to his conclusion. See
13 Attmore, 827 F.3d at 877 (finding a lack of substantial evidence where the ALJ relied on
14 isolated improvements); Diedrich, 874 F.3d at 642 (finding the ALJ’s improper cherry-
15 picking of evidence was insufficient to show “broader development”).
16 D. Remaining Issues
17 Plaintiff additionally contends that the ALJ improperly evaluated Plaintiff under
18 child listing 112.11 and adult listing 12.11 for neurodevelopmental disorders [Mot. at
19 12–14]; the ALJ erred in finding that Plaintiff did not functionally equal the severity of
20 the listings [Mot. at 22–24]; and the ALJ erred by crafting an RFC not supported by
21 substantial evidence [Mot. at 24–25]. The ALJ’s evaluation of these issues suffers from
22 the same deficiencies described in the discussion above, including cherry-picking
23 isolated examples of adequate abilities, presenting information out-of-context, and
24 failing to meaningfully identify and explain evidence supporting the ALJ’s findings. See
25 supra Part V.A –C. Because remand is already required, the Court need not analyze the
26 remaining issues. See, e.g., Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012)

27 (declining to reach other assignments of error by plaintiff where the case was already
2 ex rel. Ramirez v. Astrue, 536 F. Supp. 2d 1147, 1153 n. 7 (C.D. Cal. 2008) (“[T]his Court
3 need not address the other claims plaintiff raises, none of which would provide plaintiff
4 with any further relief than granted, and all of which can be addressed on remand”).
5 VI. CONCLUSION
6 The reviewing court may enter a “judgment affirming, modifying, or reversing”
7 the Commissioner’s decision. 42 U.S.C. § 405(g). The reviewing court may also remand
8 the case to the Social Security Administration for further proceedings. Id. The reviewing
9 court has discretion in determining whether to remand for further proceedings or award
10 benefits. See Salvador v. Sullivan, 917 F.2d 13, 15 (9th Cir. 1990); McAllister v. Sullivan,
11 888 F.2d 599, 603 (9th Cir. 1989). Remand for further proceedings is warranted where
12 additional administrative proceedings could remedy defects in the decision. See Kail v.
13 Heckler, 722 F.2d 1496, 1497 (9th Cir. 1984). Remand for the payment of benefits is
14 appropriate where no useful purpose would be served by further administrative
15 proceedings, where the record has been fully developed, or where remand would
16 unnecessarily delay the receipt of benefits to which the disabled plaintiff is entitled. See
17 Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004); Hoffman v. Heckler, 785 F.2d
18 1423, 1425 (9th Cir. 1986); Bilby v. Schweiker, 762 F.2d 716, 719 (9th Cir. 1985); Kornock
19 v. Harris, 648 F.2d 525, 527 (9th Cir. 1980).
20 Here, Plaintiff contends that the Court should reverse the SSA’s decision and find
21 Plaintiff disabled. (Mot. at 26.) Alternatively, Plaintiff requests the Court remand for
22 further proceedings and that the Commissioner be ordered to properly evaluate all
23 testimony, consider any new evidence proffered, and obtain additional medical or
24 opinion evidence as needed to fully develop the record. (Mot. at 26–27.) The
25 Commissioner asks the Court to uphold the SSA’s decision, or, if the Court finds
26 reversible error, to remand the case for additional proceedings to remedy any defects.

27 (Opp’n at 21.) Because the ALJ ignored relevant opinions and evidence, failed to fully
1 || mischaracterized evidence upon which he relied, we find that remanding for further
2 || proceedings could remedy these defects. Leon v. Berryhill, 880 F.3d 1041, 1047 (9th Cir.
3 ||2017) (affirming the district court’s decision to remand for further proceedings where
4 ALJ failed to consider all evidence and the record had not been developed
5 ||thoroughly). Therefore, the Court ORDERS that judgment be entered REVERSING the
6 || decision of the Commissioner and REMANDING the case for proceedings consistent
7 || with this Order.
8 IT IS SO ORDERED.
9 || Dated: January 29, 2024 _ =
_ 2 FA —
u Honorable Michael S. Berg
United States Magistrate Judge
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10640156. Public record. Not legal advice.