# Wisnesky v. Kijakazi

> District Court, S.D. California · September 16, 2024

URL: https://www.frixlaw.com/law-library/cases/10640537

## Case

- **Court:** District Court, S.D. California
- **Decided:** September 16, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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10 UNITED STATES DISTRICT COURT
11 SOUTHERN DISTRICT OF CALIFORNIA
12
13 CHRISTOPHER W., Case No.: 23-cv-01107-JLB

14 Plaintiff,
ORDER GRANTING PLAINTIFF’S
15 v. MERITS BRIEF

16 MARTIN O’MALLEY, Commissioner of
[ECF No. 13]
Social Security,1
17
Defendant.
18
19
20 On June 16, 2023, Plaintiff Christopher W. (“Plaintiff”) filed a complaint pursuant
21 to 42 U.S.C. § 405(g) seeking judicial review of a decision by the Commissioner of Social
22 Security (the “Commissioner”) denying his application for disability insurance benefits.
23

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25 1 Martin O’Malley became the Commissioner of Social Security (“the Commissioner") on
December 20, 2023. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Martin
26
O’Malley should be substituted for Kilolo Kijakazi as the defendant in this suit. No further
27 action need be taken to continue this suit by reason of the last sentence of section 205(g)
of the Social Security Act, 42 U.S.C. § 405(g).
28
1 (ECF No. 1.) Before the Court and ready for decision is Plaintiff’s merits brief. (ECF No.
2 13.) The Commissioner filed an opposition (ECF No. 15), and Plaintiff filed a reply (ECF
3 No. 16). For the reasons set forth herein, the Court GRANTS Plaintiff’s merits brief,
4 reverses the Commissioner’s decision, and remands this matter for further administrative
5 proceedings pursuant to sentence four of 42 U.S.C. § 405(g).
6 I. PROCEDURAL BACKGROUND
7 On or around April 17, 2020, Plaintiff filed an application for disability insurance
8 benefits under Title II of the Social Security Act, alleging disability beginning April 30,
9 2016. (Certified Administrative Record (“AR”), at 182–83.) Based on a prior application
10 for a Period of Disability and Disability Insurance Benefits and Supplemental Security
11 Income filed on May 30, 2018, Plaintiff was previously found disabled for the closed
12 period of April 30, 2016, through September 30, 2019, upon Administrative Law Judge
13 Jay E. Levine’s final, December 20, 2019 decision. (AR 82–96.) After the instant
14 application’s initial denial and upon reconsideration (AR 125–28, 129–37), Plaintiff
15 requested an administrative hearing before Administrative Law Judge Andrew Verne
16 (“ALJ”) (AR. 142–43). An administrative hearing was held on June 10, 2021. (AR 55–
17 81.) Plaintiff, represented by counsel, gave testimony, as did a vocational expert (“VE”).
18 (AR 55–81.)
19 As reflected in his June 28, 2021 Decision (“Decision”), the ALJ found that Plaintiff
20 was not under a disability, as defined in the Social Security Act, from December 21, 2019,
21 through the date of decision. (AR 17–30.)3 The Decision became the Commissioner’s
22
23
24 2 Plaintiff submitted this filing as a Motion for Summary Judgment. However, such
25 procedure is displaced by merits briefing under the Supplemental Rules for Social Security
Actions Under 42 U.S.C. § 405(g), Rule 5. Thus, the Court will construe Plaintiff’s filing
26
to be his Merits Brief.
27 3 Administrative Law Judge Andrew Verne found the presumption of continuing non-
disability to have been rebutted due to a showing of changed circumstances affecting the
28
1 final decision on June 28, 2021, when the Appeals Council denied Plaintiff’s request for
2 review. (AR 6–11.) This civil action followed.
3 II. PLAINTIFF’S RELEVANT MEDICAL HISTORY
4 The record reflects that Plaintiff’s (DOB: July 1988) relevant medical history and
5 claim for benefits revolve centrally around a diagnosis of Postural Orthostatic
6 Tachychardia Syndrome (“POTS”), and a seizure disorder that some, but not all, of his
7 medical providers have linked to POTS. (See AR 370, 406, 422.) In sum, when Plaintiff
8 first began having seizure-like events, he was diagnosed with epilepsy and put on anti-
9 seizure medication. (AR 409.) However, an electroencephalogram (“EEG”) in February
10 2019 was negative for abnormal brain activity. (AR 258, 340, 373, 376.) A tilt-table test
11 in May 2018 yielded “profoundly abnormal” results and was the basis for his eventual
12 POTS diagnosis. (AR 252, 387, 451.) POTS is a cardiac disorder, not a neurological
13 disorder. (AR 41.) Thereafter, Plaintiff was taken off anti-seizure medications and treated
14 for POTS rather than epilepsy. (AR 41, 395.)
15 A. Medical History through Closed Period of Disability, December 21, 2019
16 Plaintiff’s symptoms began in or around 2016. (AR 409.) Early UC San Diego
17 Health records reflect that symptoms in November 2017 included seizures, dizziness,
18 nausea and vomiting, hypertension, and tachycardia. (AR 250.)
19 Among the earliest physician notes are those from a March 17, 2018 visit with Dr.
20 Bui of Blue Coast Cardiology, who noted:
21 Two years ago, without any provocation, he starting [sic] having
seizures. He describes an aura preceding the event, like a light
22
flashing before his eyes. He then experiences nausea and
23 nystagmus. He was evaluated by neurology and then put on a
number of antiseizure meds . . . The seizures seem to have
24
stopped, but he continues to have episodes of dizziness about
25 twice a month. These are associated with nausea, vomiting,
26
27
adjudicated period and determined the period at issue began the day after the prior decision:
28
1 nystagmus. His mother notices that his pupils are large during
those time. During his last neurology appt, he had a spell . . .
2
Prior to the seizures, about 5 years ago, he was drinking rather
3 heavily to the point of developing fatty liver. He drank like that
for 2 years, then stopped for 1 year before the seizures started.
4
(AR 408.)
5
Dr. Bui noted a prior diagnosis of epilepsy but questioned whether the symptoms
6
could in fact be caused by POTS instead. (AR 409.) Plaintiff continued to seek treatment
7
and diagnosis throughout 2018, including a tilt table test with “profoundly abnormal”
8
results, the basis for his eventual formal POTS diagnosis. (AR 252, 406.) Plaintiff was
9
referred to a neurologist, who believed his seizures may in fact be due to POTS, and was
10
prescribed metoprolol, “which has helped.” (AR 406.) Dr. Bui noted mixed progress on
11
September 20, 2018: “He did have 1 episode of aura and syncope, but this is a significant
12
decrease from before. He remains nauseated and vomiting, losing about 20 [pounds] since
13
his last visit.” (AR 403.)
14
In September 2019, Plaintiff presented at Tri-City Medical Center emergency
15
department with “seizure-like” symptoms, though an EEG was negative for abnormal brain
16
activities. (AR 258.) Plaintiff’s complaints included multiple, recent seizure-like episodes,
17
with visual auras and a shaking body. (AR 258.) The records note a history of POTS and
18
alcohol abuse. (AR 259.) At the time, Plaintiff had a metoprolol prescription for his
19
symptoms. (AR 258.)
20
Plaintiff’s medication changed in 2019, with a reduction in metoprolol from 50mg
21
to 25 mg daily due to side effects. (AR 373.) Dr. Bui described Plaintiff as “now doing
22
well back on metoprolol 50 and 25 mg.” (AR 373.) Though Plaintiff continued having
23
cycles of feeling well and poorly, the cycles were “not as bad as symptoms had been prior
24
to metoprolol.” (AR 373.) Plaintiff’s condition appeared to have likewise improved by
25
October 2019, with POTS, “controlled on metoprolol and salt tablets . . .” (AR 370.) Dr.
26
Bui’s notes on October 21, 2019, state that “in August 26, he had a seizure, and that on the
27
previous September 11 he had visited the hospital for trembling hands and blood sugar in
28
1 the 70s.” (AR 370.) Dr. Bui believed these symptoms to be caused by POTS, rather than
2 epilepsy, noting that UC San Diego Neurology did not believe Plaintiff had suffered a
3 seizure. (AR 370.)
4 Around this time, Plaintiff testified at his November 20, 2019, hearing for his prior
5 claim. Plaintiff testified that his driver’s license was no longer active due to “seizures, or
6 what [his doctors] call episodes.” (AR 38.) He confirmed, in response to the ALJ’s
7 questioning, that he was on three medications at that time. (AR 50.) Plaintiff testified that
8 he had to stop working due to the episodes described above, and that his doctors determined
9 the issue was POTS, rather than epilepsy. (AR 40–41.) He described the episodes as being
10 “more controlled . . . one to two times a month . . . sporadic . . . I can only know when they
11 are coming . . . because I see, they call it an aura, and then I have enough time to lay down
12 so I don’t fall on my face.” (AR 41.) Plaintiff stated that when not having episodes, he
13 went to the gym approximately five times per week, and that he helped around the home
14 when he could. (AR 43–46.) He testified that he had no current or past problems with
15 alcohol or drugs, besides one DUI years before. (AR 39–40.)
16 On examination by his attorney, Plaintiff testified that his symptoms included
17 “blurred vision” and vision affected by bright neon-like colors—a condition occurring
18 “most of the time,” and not merely during POTS episodes. (AR 47–48.) He stated that the
19 addition of Gatorade to his diet had led to significant improvement since October 2019,
20 though he still experienced “vomiting, lack of appetite, lack of sleep, and the vision.” (AR
21 49.) Prior to October 2019, he experienced episodes three to five times a month, with
22 recovery from them taking four to five hours. (AR 50.) However, he had suffered only
23 one episode in the month since. (AR 50.)
24 B. Medical History Post-December 21, 2019
25 Medical records for a visit with Dr. Bui on December 30, 2019, note that “[Plaintiff]
26 remains stable on metoprolol succinate 50 mg BID, along with Gatorade.” (AR 367.)
27 Further records from a March 2020 visit indicate that Plaintiff had “been having cycles of
28 nausea, vomiting, no sleep.” (AR 364.) As of April 30, 2020, Dr. Taub, of UC San Diego
1 Health noted Plaintiff suffering “presyncopal” and “syncopal” episodes once a month,
2 which were reported to include waves of nausea, vomiting, and sleeplessness. (AR 307.)
3 “His bothersome symptoms are [inability] to focus with his vision . . . ‘foggy’ memory.
4 Has difficulty with coordination at times.” (AR 307.) Plaintiff at times experienced
5 tremors. (AR 346.) When Plaintiff was not suffering an episode, he was a frequent runner,
6 often running several miles per day. (AR 307.) Plaintiff’s diagnoses at that time, by UC
7 San Diego Health gastroenterologist Dr. Kunkel, were POTS syndrome as diagnosed on a
8 table test, and a seizure disorder. (AR 307.) Dr. Kunkel noted that Plaintiff had “cyclical
9 vomiting with nausea . . . . He has been started on TCA (amitriptyline) by outside provider
10 and so far this has extinguished his CVS symptoms.” (AR 315.)
11 Dr. Taub stated that “[Plaintiff] tells me he has good days and bad days. On bad
12 days, he has dizziness, nausea, light-headedness, and he is unable to run and go to the gym.
13 He has lost 3 pounds unintentionally over the past year.” (AR 307.) Notes from Dr. Bui
14 conflict with the reports of weight loss. (AR 340.) Dr. Taub reported “good functional
15 status . . . some benefit with a beta blocker.” (AR 310.) As of April 21, 2020, Plaintiff
16 “recently started on amitriptyline 25 mg nightly by his POTS specialist and this has helped
17 immsenely [sic] with his sleep.” (AR 314.) “[He] has not had any episodes of
18 nausea/vomiting/abdominal pain since starting on this medication.” (AR 314.) Dr. Bui
19 likewise noted that “the POTS has been controlled on high dose metoprolol, but not
20 completely.” (AR 339.)
21 Examination notes from a telemedicine appointment with his primary care
22 physician, Dr. Hall of Optum Care, in April 2020, contain similar findings. Dr. Hall noted
23 chronic conditions including weight loss (stable), epileptic seizures related to external
24 causes, not intractable (remission), alcohol dependence (remission), nausea with vomiting
25 (chronic), and orthostatic hypotension (chronic). (AR 350.) Dr. Hall also noted a positive
26 finding for tremors, which “worsened during episodes of POTS” and that Plaintiff had
27 “[n]o episodes since I last saw him.” (AR 351–52.) Dr. Hall found that certain symptoms
28 were “suspicious for alcohol withdraw,” including some of the seizure-like symptoms and
1 loss of consciousness. (AR 350–51.) Plaintiff’s medical history at this visit reflects prior
2 issues with alcoholism and a sobriety date in September 2019. (AR 350–51.) Upon return
3 televisit in June 2020, Dr. Bui noted that Plaintiff was “feeling very poorly . . . in bed all
4 day throwing up.” (AR 342.) Dr. Bui again voiced uncertainty as to what was causing
5 Plaintiff’s vomiting. (AR 342–43.) However, Dr. Bui restated that he always felt Plaintiff’s
6 seizures were caused by POTS. (AR 342.) He also noted, “We have been following him
7 for POTS, controlled on metoprolol and salt tablets,” that “he remained stable on
8 metoprolol succinate 50 mg BID, along with Gatorade,” and that, again, “[a]t this point,
9 the POTS has been controlled on high dose metoprolol, but not completely.” (AR 342–43.)
10 In a July 2020 visit, Dr. Hall recorded Plaintiff’s POTS “[m]anifesting with sleep
11 instability, cognitive fogginess, cyclic nausea and vomiting, occasional diarrhea, early
12 satiety, extreme fatigue . . . [e]pisodes of visual aura prior to loss of consciousness.” (AR
13 346.) Dr. Hall attributed Plaintiff’s current vomiting and nausea to POTS and noted
14 “[l]ong-standing cyclic episodes occurring about twice monthly lasting for 12-24 hours
15 without obvious provocation . . . sometimes gets episodes of syncope afterwards.” (AR
16 346.) Additionally, he noted Plaintiff exercised multiple times per week. (AR 347.)
17 Notes by Dr. Taub on June 26, 2020, reflect a diagnosis of POTS and seizure
18 disorder, and that Plaintiff
19 reports he has a stretch of 2-3 weeks of really good then really
bad. Reports May 25-28 was really bad, has non[-]stop vomiting,
20
difficulty eating, lightheaded, dizzy, insomnia, tries to drink as
21 much water and tries to take meds but keeps vomiting. Then he
recovers for 3 days so it takes about a week to get back to good
22
days.
23
24 (AR 422.) The notes further reflect that Plaintiff ran three miles daily and lifted weights
25 when feeling good, that he had active medications for POTS including fludrocortisone,
26 sodium chloride, and metoprolol. (AR 422, 433.)
27 On June 16, 2020, Dr. Sin, of the State Agency, issued a report regarding Plaintiff’s
28 condition finding, in summary, that Plaintiff had POTS, Plaintiff’s POTS caused his
1 episodes, there was “some benefit” with beta blocker, salt tablets and Gatorade, he
2 experienced presyncope/syncope once a month, and he had “[g]ood functional status, runs
3 3 miles twice a day, goes to gym.” (AR 107.) Dr. Sin assessed Plaintiff’s condition as
4 “non-severe since 10/1/19.”4 (AR 107.)
5 A September 3, 2020, televisit with Dr. Bui resulted in nearly identical findings to
6 that of the earlier June 2020 visit: in summary, that Plaintiff’s POTS was controlled, but
7 not completely, by metoprolol and salt tablets, taken with Gatorade. (AR 357.) However,
8 as in June 2020, Dr. Bui noted that Plaintiff was feeling poorly on that day, throwing up
9 all day. (AR 357, 379.)
10 Plaintiff’s health records continue to 2021. Notes from a January 7, 2021, visit to
11 Dr. Bui reflect that POTS was controlled on metoprolol and salt tablets, but “not
12 completely.” (AR 450.) Dr. Bui noted that “Since his last visit, he continues to have what
13 sounds like visual migraines. He has not slept for 3 days. Feels poorly.” (AR 450.) For
14 his vomiting, Plaintiff had a prescription Prochlorperazine Maleate and Amitriptlyine,
15 though “nothing [had] really worked.” (AR 450–51.) At a January 21, 2021, visit with Dr.
16 Bui Plaintiff’s condition was “stable on metoprolol succinate 50 mg BID, along with
17 Gatorade” with his POTS “controlled on metoprolol and salt tablets.” (AR 448.) Plaintiff
18 sought a decrease in his amitriptyline due to side effects. (AR 448.) Dr. Bui also noted
19 the eye condition “nystagmus,” referring Plaintiff for further treatment. (AR 448.)
20 Ongoing medication included the Metoprolol, Ondansetron, Prochlorperazine Maleate (for
21 vomiting), and Amitriptyline HCI. (AR 448–49.)
22 Notes from a February 2021 telemedicine visit with Dr. Hall reflect that further GI
23 motility studies were deferred because the nausea and vomiting could be attributed to
24 POTS. (AR 437.) In addition to nausea and hypotension, Dr. Hall noted “vision
25

26
27 4 Dr. Kalmar, of the state agency, who conducted an October 2020 assessment, concurred
without elaboration. (AR 119.)
28
1 disturbance” and requested a consult with ophthalmology. (AR 438.) The notes reflect a
2 change/renewal of metoprolol (though with a quantity and amount of zero) and termination
3 of prochlorperazine upon February 5, 2021. (AR 439.)
4 On April 10, 2021, Plaintiff visited Tri-City Medical Center emergency medicine
5 after his mother found him lying on the floor intoxicated, following an alcohol-related
6 emergency room visit the day prior. (AR 441.) The treating physician, Dr. Chiang, noted
7 no active prescriptions, and a problem/past medical history list of alcohol abuse and POTS.
8 (AR 441.) A review of symptoms revealed no recent vision problems, no heart palpitations,
9 no shortness of breath or gastrointestinal issues, and a lack of presenting symptoms beyond
10 alcohol intoxication. (AR 441.)
11 Dr. Bui’s final note on April 17, 2021, provides the last insight to Plaintiff’s
12 condition from a medical provider. Dr. Bui once again noted stability, POTS controlled
13 under metoprolol, and that Plaintiff “[was] doing well this month on current meds.” (AR
14 445–46.) Dr. Bui likewise noted:
15 Last month was a bad month, but this month has been very good.
This is the best that I have seen him. He looks refreshed, has lost
16
weight. Still with a bit of nausea. He stopped amitriptyline.
17 Cannot identify exactly what was helping him. He went to see
ophthalmology about nystagmus and was told . . . [it] is benign.
18
(AR 445.)
19
Plaintiff provided testimony on his condition during the June 10, 2021, hearing on
20
this matter before the ALJ. Asked why he was not presently working, he testified that it
21
was due to his “still having seizures . . . still having cyclical stages . . . when [he got] dizzy,
22
lightheaded, no appetite . . . can’t sleep . . . and lack of coordination. [His] vision’s gone,
23
and when it’s really bad, [he] vomit[s], like, for a good 24 hours . . . that lasts . . . three to
24
four days, then it’s usually two to three times a month.” (AR 64–65.) Plaintiff stated he
25
had a “clean and sober date” in 2019, and that he had only struggled with alcohol abuse on
26
one occasion since then, in April 2021. (AR 65–66.)
27
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1 Under examination by his attorney during the hearing, Plaintiff expanded on POTS,
2 his “main diagnosis,” testifying that he believed, based on his doctors, that the nausea,
3 vomiting, and discoordination were POTS-related. (AR 67.) He stated that he was on
4 medication for POTS and waiting to see a specialist in San Diego, and that when he was
5 feeling well he could jog and engage in a normal life, though his vision was “still not all
6 there” and his coordination was “iffy.” (AR 68.) When an episode came on, however, he
7 struggled to stand, walk, or even sit without falling, and his vision and coordination became
8 worse. (AR 68.) Plaintiff described an incident months prior in which he fell during a
9 “seizure” and knocked out his tooth. (AR 69.) He likewise testified that during these
10 episodes, which each lasted three to four days, his hands trembled so badly that he “[could
11 not] even write.” (AR 71.) Plaintiff did not state the frequency of these episodes but did
12 not object to the ALJ’s characterization of “at least a couple times a month.” (AR 69.)
13 III. SUMMARY OF THE ALJ’S DECISION
14 In rendering his decision, the ALJ followed the Commissioner’s five-step sequential
15 evaluation process. 20 C.F.R. § 404.1520(a)(4). At step one, the ALJ found that Plaintiff
16 had not engaged in substantial gainful activity since December 21, 2019, the alleged onset
17 date. (AR 23.)
18 At step two, the ALJ found that Plaintiff had the following severe impairments:
19 POTS and epilepsy. (AR 23.) The ALJ found that Plaintiff’s alleged hypertension and
20 alcohol abuse did not rise to the level of severe impairments as described in the
21 Regulations. (AR 24.)
22 At step three, the ALJ found that Plaintiff did not have an impairment or combination
23 of impairments that met or medically equaled the severity of one of the impairments listed
24 in the Commissioner’s Listing of Impairments. (AR 24–25.)
25 Next, the ALJ determined that Plaintiff had the residual functional capacity (“RFC”)
26 to perform “medium work” with the following limitations:
27 [T]he [Plaintiff] could never climb ladders, ropes or scaffolds;
occasionally climb ramps and stairs; never balance and
28
1 occasionally stoop, kneel, crouch or crawl. Lastly, he would
need to avoid all exposure to workplace hazards, such as
2
unprotected heights, dangerous or fast-moving machinery, etc.
3
(AR 25.)
4
For purposes of his step four determination, the ALJ determined that Plaintiff is
5
capable of performing past relevant work as a Valet Parker; a Bartender; or as a
6
Foodservice Worker, relying on the VE’s testimony. (AR 28.) The ALJ further determined
7
that this work does not require the performance of work-related activities precluded by
8
Plaintiff’s RFC. (AR 28.) Accordingly, the ALJ found that Plaintiff was not disabled at
9
step four. (AR 29.)
10
Although the ALJ determined that Plaintiff could perform past relevant work, he
11
nonetheless proceeded to step five pursuant to 20 C.F.R. 404.1520(f)–(h). (AR 28–29.)
12
Based on the VE’s testimony that a hypothetical person with Plaintiff’s vocational profile
13
and RFC could perform the requirements of occupations that existed in significant numbers
14
in the national economy (i.e., Automatic Machine Attendant, Hand Packager, or a Laundry
15
Worker II), the ALJ found on this alternative basis that Plaintiff was not disabled under the
16
law from December 21, 2019, through the date of decision. (AR 29.)
17
III. PLAINTIFF’S CLAIMS OF ERROR
18
As reflected in his merits brief, Plaintiff raises the following allegations as the
19
grounds for reversal and remand:
20
1. The ALJ failed to provide an RFC that encompassed the combination of
21
Plaintiff’s claimed impairments, specifically the ALJ failed to properly consider: (a)
22 Plaintiff’s tremors;5 (b) Plaintiff’s blurred vision; and (c) Plaintiff’s seizures (or episodes)
23
with nausea and vomiting. (ECF No. 13-1 at 16–19.)
24
25
26 5 Plaintiff does not expressly argue that the ALJ should have found Plaintiff’s hand tremors
27 to be a medically determinable impairment. Rather, Plaintiff seems to argue that the ALJ
failed to properly consider the tremors as a symptom of POTS. (ECF No. 13-1 at 14–16;
28
1 2. The ALJ failed to set forth clear and convincing reasons for discrediting
2 Plaintiff's symptom testimony. (ECF No. 13-1 at 21–22.)6
3 3. Because of the ALJ’s alleged failure to provide an RFC that encompasses the
4 combination of claimed impairments, his determination that Plaintiff is limited to medium
5 work was not supported by substantial evidence in the record. (Id. at 19–20.)
6 4. The ALJ erred in his analysis of Plaintiff’s past relevant work. (Id. at 20–21.)
7 IV. STANDARD OF REVIEW
8 A. The Standard of Review under 42 U.S.C. § 405(g)
9 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to
10 determine whether the Commissioner’s findings are supported by substantial evidence and
11 whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846
12 (9th Cir. 1991). Substantial evidence is “more than a mere scintilla” but less than a
13 preponderance. Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison
14 Co. of New York v. N.L.R.B., 305 U.S. 197, 229(1938)); Smolen v. Chater, 80 F.3d 1273,
15 1279 (9th Cir. 1996) (citing Richardson, 402 U.S. 389 at 401); Desrosiers v. Sec’y of
16 Health & Hum. Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). It is “such relevant evidence
17 as a reasonable mind might accept as adequate to support a conclusion.” Richardson, 402
18 U.S. at 401; Smolen, 80 F.3d at 1279. The Court must review the whole record, considering
19 evidence that supports the Commissioner’s conclusion as well as that which undermines
20 with it. Smolen, 80 F.3d at 1279; Green v. Heckler, 803 F.2d 528, 529-30 (9th Cir. 1986).
21 Where evidence is susceptible of more than one rational interpretation, the Commissioner’s
22 decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984).
23 However, a court may not affirm the ALJ’s determination “for a reason that the ALJ did
24 not assert.” Ferguson v. O’Malley, 95 F.4th 1194, 1203 (9th Cir. 2024).
25

26
27 6 Due to the overlap between this allegation and the allegation that the ALJ failed to provide
an RFC that encompassed the combination of Plaintiff’s claimed impairments, the Court
28
1 V. DISCUSSION
2 To qualify for disability benefits under the Social Security Act, a claimant must
3 show: (1) the claimant is unable “to engage in any substantial gainful activity” because of
4 a medically determinable impairment that can be expected to result in death or that has
5 lasted or can be expected to last for a continuous period of twelve months or more; and (2)
6 the claimant is unable to perform their previous work or engage in any other kind of
7 substantial gainful work which exists in the national economy because of the severity of
8 the impairment. See 42 U.S.C. § 423(d)(1)(A), (d)(2)(A).
9 A. The ALJ Did Not Set Forth Clear and Convincing Reasons to Discount
10 Plaintiff’s Symptom Testimony
11 a. Legal Standard
12 “[S]ubstantial evidence does not support an ALJ’s RFC ‘if the ALJ improperly
13 rejected [the claimant’s] testimony as to the severity of his pain and symptoms.’”
14 Ferguson, 95 F.4th at 1199 (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir.
15 2007)). In determining whether the claimant’s subjective symptom testimony is credible,
16 the ALJ first determines “whether the claimant has presented objective medical evidence
17 of an underlying impairment which could reasonably be expected to produce the pain or
18 other symptoms alleged.” Id. (quoting Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir.
19 2014). “If the claimant satisfies the first step of this analysis, and there is no evidence of
20 malingering, the ALJ can reject the claimant's testimony about the severity of [their]
21 symptoms only by offering specific, clear and convincing reasons for doing so.” Id. If the
22 ALJ fails to provide “specific, clear, and convincing reasons for discounting the claimant’s
23 testimony, then the ALJ’s determination is not supported by substantial evidence.” Id. The
24 ALJ, in this analysis, “must specifically identify what testimony is credible, and what
25 testimony it finds undermines the claimant’s complaints.” Morgan v. Comm’r of Soc. Sec.
26 Admin., 169 F.3d 595, 599 (9th Cir. 1999); Brown-Hunter v. Colvin, 806 F.3d 487, 493
27 (9th Cir. 2015) (citing Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998)).
28
1 b. The Parties’ Arguments
2 Plaintiff argues that the ALJ did not meet his obligation to precisely provide clear
3 and convincing reasons to reject Plaintiff’s symptom testimony and did not adequately cite
4 to the record to support his findings. (ECF No. 13-1 at 21–22.) Instead, Plaintiff argues,
5 the ALJ provided only general, unsupported findings to discredit Plaintiff. (Id. at 22.) The
6 Commissioner responds that the ALJ gave multiple valid reasons for discounting Plaintiff’s
7 subjective complaints. (ECF No. 15 at 7.) With respect to specificity and citations to the
8 record, the Commissioner argues that the ALJ’s analysis that preceded the stated reasons
9 for discounting the testimony contain citations to the evidence. (Id. at 11.) The
10 Commissioner therefore urges the Court to conclude that the ALJ’s separation of his
11 analysis and references to the record from his enumerated rationale does not undermine its
12 validity, as it does not deprive Plaintiff of the ability to contest the findings. (Id. at 11–12.)
13 c. Analysis
14 The ALJ offered multiple reasons for discounting Plaintiff’s symptom testimony:
15 Second7, Dr. Bui reported on June 4, 2020, that he always felt that the
claimant’s seizures were caused by POTS; however, he had remained stable
16
on 50mg metoprolol succinate, twice daily along with Gatorade.
17
Third, in progress noted by Dr. Hall, dated April 14, 2020, the doctor noted
18
that at least some of the claimant’s seizure spells could certainly be related to
19 alcohol withdrawal induced seizures/loss of consciousness symptoms
experienced in September 2019, as they sounded suspicious for alcohol
20
withdrawal with visual hallucinations and elevated liver enzymes.
21
Fourth, on February 5, 2021, Dr. Hall stated that the claimant’s recurrent
22
nausea and vomiting was likely related to alcoholic gastritis/pancreatitis, as
23 he has been sober since early September 2019 with resolution of recurrent
nausea and vomiting. The claimant had remained sober from September 2019,
24
until the date of this evaluation, and has had normal liver function tests and
25 platelet counts.
26
27
7 The ALJ’s first reason related only to Plaintiff’s benign hypertension, which is not at
28
1
Fifth, when the claimant was seen in the Tri-City Medical Center Emergency
2
Department on April 10, 2021, the doctor noted that the claimant had no active
3 prescriptions and no active home medications.

4
Sixth, on April 30, 2020, Dr. Taub noted that the claimant reported he was
5 currently running three miles, twice a day, for a total of six miles per day and
doing this 4-5 times per week. Additionally, Dr. Taub reported that the
6
claimant had probable POTS, but noted that the claimant had good functional
7 status and some benefit with beta blocker.

8
Seventh, when the claimant was seen in follow-up on June 4, 2020, with Dr.
9 Bui, the doctor reported that they had been following the claimant for POTS,
which was controlled on metoprolol and salt tablets. Again on September 3,
10
2020, progress notes showed that the claimant was unchanged and the doctor
11 reported that the claimant’s POTS and benign hypertension were stable.

12
Eighth, the objective evidence of the claimant's medical record does not
13 establish impairments likely to produce disabling pain or other limitations as
alleged for any period of 12 or more continuous months.
14

15
(AR 26–27.)
16
Each of the ALJ’s stated reasons for discounting Plaintiff’s symptom testimony
17
suffers from at least one of two failings: (1) for most, the ALJ fails to clearly identify what
18
symptom testimony he discounted; and (2) for some, the reasons are not supported by
19
record evidence—or are supported only by cherry-picked evidence not amounting to
20
substantial evidence.
21
Plaintiff testified to multiple POTS-related symptoms that prevent him from
22
working. He complained that when he had an episode, he would vomit all day and be bed-
23
ridden with nausea and dizziness for days afterward. (AR 64–65, 71.) He complained that
24
he suffered from vision problems. (AR 65, 68–70.) He complained that he had tremors
25
associated with these episodes that were sometimes severe enough that he could not write.
26
(AR 70–71.) He testified that at the time of the hearing, his episodes were occurring at a
27
frequency of approximately two to three times per month. (AR 65.)
28
1 With respect to reason number two (Plaintiff had “remained stable on 50mg
2 metoprolol succinate, twice daily along with Gatorade”), the ALJ failed to indicate
3 precisely which testimony he was rejecting. (AR 26.) The Court is left to speculate
4 whether the ALJ is rejecting the testimony that Plaintiff continues to have episodes at a
5 rate of one or two a month, or his testimony about the disabling effects of those episodes,
6 or something else entirely. Without a tie between the proffered reason and the discounted
7 testimony, the Court is not able to review the validity of the basis. This lack of explication
8 is even more problematic here because the provider’s use of the word “stable,” on which
9 the ALJ relies, does not have a clear meaning in this context. For example, in the same
10 note, Dr. Bui states both that Plaintiff “remained stable on metoprolol succinate 50 mg
11 BID, along with Gatorade,” and that “[a]t this point, the POTS has been controlled on high
12 dose metoprolol, but not completely.” (AR 343 (emphasis added).) The ALJ’s adopting
13 this term without explanation abstracts the meaning further and leaves the Court with only
14 greater uncertainty. Because the ALJ does not sufficiently identify which symptom
15 testimony he is rejecting on this stated basis, it is not a clear and convincing reason to
16 discredit the testimony.
17 For his third reason, the ALJ’s basis is that Dr. Hall “noted that at least some of the
18 claimant’s seizure spells could certainly be related to alcohol withdrawal induced
19 seizures/loss of consciousness symptoms experienced in September 2019 . . . .” (AR 26.)
20 The ALJ did not explain how a seizure in 2019, which might not have been related to
21 POTS, could be a basis for discounting Plaintiff’s testimony about the episodes that are
22 POTS related—especially when Plaintiff testified that those symptoms lasted far beyond
23 2019, the year he testified that he quit drinking regularly. (AR 67.) Therefore, this is not
24 a clear and convincing reason to discredit Plaintiff’s symptom testimony.
25 In reason four, addressing Plaintiff’s complaint of recurrent nausea and vomiting,
26 the ALJ pointed to a February 5, 2021 note by Dr. Hall that these symptoms were likely
27 related to alcoholic gastritis/pancreatitis, “as he has been sober since early September 2019
28 with resolution of recurrent nausea and vomiting.” (AR 26.) To the extent the ALJ was
1 suggesting Plaintiff’s nausea and vomiting had resolved, his reliance on this portion of Dr.
2 Hall’s notes is misplaced. It is true that, under “Alcoholism,” Dr. Hall stated “Recurrent
3 nausea and vomiting likely related to alcoholic gastritis/pancreatitis. Sober since early
4 September 2019 with resolution of recurrent nausea and vomiting.” (AR 436.) That note
5 appears to be limited specifically to nausea and vomiting resulting from alcohol abuse. In
6 the same treatment note, under “Nausea and Vomiting,” Dr. Hall discussed Plaintiff’s
7 ongoing nausea and vomiting associated with POTS:
8 Nausea and vomiting[.] Related to pots. Has underwent upper endoscopy.
Consider gastric emptying study. Consider Reglan. Long-standing cyclic
9
episodes occurring about twice monthly lasting for 12-24 hours without
10 obvious provocation associated with mild diarrhea sometimes gets episodes
of syncope afterwards . . . Reevaluate in 6 weeks, 1/20-unimproved after
11
eliminating Advil. 4/20-cyclic nausea and vomiting with no obvious cause. I
12 would like him to have evaluation at UCSD to consider pursuing motility
studies-gastric emptying. 7/20-normal abdominal ultrasound. Seen by UCSD
13
GI-motility studies deferred[] because it is felt pots can explain cyclic nausea.
14
15 (AR 437.) As the record cited does not fairly support the conclusion that Plaintiff’s nausea
16 and vomiting were only related to alcoholic gastritis/pancreatitis or that these symptoms
17 had been resolved, this is not a clear and convincing reason to discredit Plaintiff’s symptom
18 testimony.
19 The ALJ’s fifth reason was that “when the claimant was seen in the Tri-City Medical
20 Center Emergency Department on April 10, 2021, the doctor noted that the claimant had
21 no active prescriptions and no active home medications.” (AR 27.) An “ALJ is permitted
22 to consider lack of treatment in his credibility determination.” Burch v. Barnhart, 400 F.3d
23 676, 681 (9th Cir. 2005). However, the isolated note cited by the ALJ does not establish
24 that Plaintiff ceased consistent treatment for his POTS or had any actual break in his
25 medications. Rather, the medical records from Plaintiff’s regular providers and Plaintiff’s
26 own testimony reflect that Plaintiff was receiving medication during this time. (AR 68,
27 445–46 (4/17/21); cf. AR 438 (2/5/21).) Accordingly, this is not a clear and convincing
28 reason to discredit Plaintiff’s symptom testimony.
1 As his sixth reason, the ALJ pointed out that on April 30, 2020, Dr. Taub noted that
2 Plaintiff reported he was running three miles, twice a day, four to five times per week and
3 reported Plaintiff had “good functional status” and “some benefit with beta blocker.”
4 (AR 27.) Here, again, the ALJ did not specify what testimony he was discounting. Plaintiff
5 regularly reported that he was able to run when he was not having bad days and suffering
6 from dizziness, nausea, and lightheadedness. (AR 118, 275, 280-281 (“He tells me has
7 good days and bad days. On bad days, he has dizziness, nausea, light-headedness, and he
8 is unable to run or go to the gym.” (4/20)); AR 273 (“[W]hen he woke up he . . . went for
9 his run. After our phone meeting with you, maybe 3-4 days later, he had 3 days of vomiting
10 continuously. So he has been glad to be back in his routine.” (5/13/20)); AR 422 (“Reports
11 May 25-28 was really bad, has non stop vomiting, difficulty eating, lightheaded, dizzy . . . .
12 When he feels good, he runs 3 miles everyday and also lifts weights.” (6/26/20)); AR 119
13 (“During good times, runs 3 mi daily and lifts weights.” (10/20/20)).) Because the ALJ
14 did not specify whether he was discounting the frequency of Plaintiff’s reported symptoms
15 or the intensity, the Court cannot evaluate the validity of this basis. Without specification
16 and analysis by the ALJ, it is not clear to the Court that the records of Plaintiff’s exercise
17 are inconsistent with his symptom testimony, so this is not a clear and convincing reason
18 to discount it.
19 The ALJ’s reference to “good functional status” and “some benefit” from beta
20 blockers in reason six suffers the same inadequacies as reason number two addressed
21 above. (AR 27.)
22 Reason seven (POTS reported as “controlled” (June 4, 2020) and “stable”
23 (September 3, 2020) suffers the same deficits as reason number two, as addressed above.
24 (AR 27.)
25 For reason eight, the ALJ stated only, “The objective evidence of the claimant's
26 medical record does not establish impairments likely to produce disabling pain or other
27 limitations as alleged for any period of 12 or more continuous months.” (AR 27.) Without
28 further explanation, this is a mere conclusory statement rather than a basis for discounting
1 the testimony. Even if it were adequately supported, because it would be the only surviving
2 basis for discounting Plaintiff’s testimony, it would be inadequate. Although an ALJ may
3 consider whether the alleged symptoms are consistent with the medical evidence as one
4 factor in his evaluation, the ALJ may not disregard a claimant's testimony “solely because
5 it is not substantiated affirmatively by objective medical evidence.” Robbins v. Soc. Sec.
6 Admin., 466 F.3d 880, 883 (9th Cir. 2006); see also 20 C.F.R. § 404.1529(c)(2) (“[W]e
7 will not reject your statements about the intensity and persistence of your pain or other
8 symptoms or about the effect your symptoms have on your ability to work solely because
9 the available objective medical evidence does not substantiate your statements.”).
10 For these reasons, the ALJ has not set forth clear and convincing reasons to discount
11 Plaintiff’s testimony. Because the Court cannot determine which symptom testimony the
12 ALJ discounted, the Court cannot determine that the ALJ’s findings are supported by
13 substantial evidence and that the proper legal standards were applied. The lack of clarity
14 about what testimony the ALJ discounted is particularly problematic in this case, where
15 the VE testified that there would be no jobs available in the national economy that Plaintiff
16 could perform if he were to consistently miss two or more days a month, such as was
17 suggested by his testimony. (AR 79.)
18 B. In Determining Plaintiff’s RFC, the ALJ Failed to Adequately Evaluate
19 Plaintiff’s Hand Tremors, Blurred Vision, and Nausea/Vomiting
20 a. Legal Standard
21 The “RFC is an administrative assessment of the extent to which an individual's
22 medically determinable impairment(s), including any related symptoms, such as pain, may
23 cause physical or mental limitations or restrictions that may affect his or her capacity to do
24 work-related physical and mental activities.” Social Security Ruling (“SSR”) 96-8p, 1996
25 WL 374184, at *2 (Jul. 2, 1996); see 20 C.F.R. 404.1545(a); see also 20 C.F.R. §
26 416.945(a). The RFC is meant to assess “what an individual can still do despite his or her
27 limitations.” SSR 96-8p 1996 WL 374184, at *2. The RFC assessment considers
28 limitations and restrictions attributable to medically determinable impairments regardless
1 of severity. Id. at *2, *5; 20 C.F.R. 404.1545(a); see also 20 C.F.R. § 416.945(a); Valentine
2 v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009) (an RFC is defective if it
3 “fails to take into account a claimant’s limitations.”).
4 RFCs must address both an individual’s exertional and nonexertional capacities.
5 SSR 96-8p, 1996 WL 374184 at *5–6 (“[w]e will consider your ability to meet the physical,
6 mental, sensory, and other requirements of work . . .”); 20 C.F.R. 404.1545(a)(4) 20 C.F.R.
7 § 416.945(a)(4). Exertional capacity focuses on seven strength demands: “[s]itting,
8 standing, walking, lifting, carrying, pushing, and pulling.” SSR 96-8p, 1996 WL 374184
9 at *5. Nonexertional limitations capacity include “manipulative (e.g., reaching,
10 handling),” and “visual (seeing)” limitations, among others. Id. at *6; see 20 C.F.R.
11 404.1545(d).
12 The adjudicator must consider all allegations of physical and
mental limitations or restrictions and make every reasonable
13
effort to ensure that the file contains sufficient evidence to assess
14 RFC. Careful consideration must be given to any available
information about symptoms because subjective descriptions
15
may indicate more severe limitations or restrictions than can be
16 shown by objective medical evidence alone . . .

17
Id. at *5; 20 C.F.R. 404.1545(d) (“[W]e consider any resulting limitations and restrictions
18
which may reduce your ability to do past work and other work in deciding your residual
19
functional capacity.”).
20
b. The Parties’ Arguments
21
Plaintiff argues that in crafting the RFC, The ALJ failed to appropriately consider
22
Plaintiff’s complaints of: (1) hand tremors; (2) blurred vision; and (3) seizures/episodes
23
with associated nausea and vomiting. (ECF No. 13-1 at 14–19.) First, Plaintiff asserts that
24
the ALJ erred by finding that Plaintiff does not have hand tremors “against the evidence”
25
and failing to consider hand tremors in determining the RFC. (Id. at 15–16.) Plaintiff
26
relies on the ALJ hearing transcript from November 20, 2019; a purported positive
27
diagnosis for “tremors” by Dr. Hall in 2020; a purported acknowledgment by the Social
28
1 Security Administration that doctors found signs of tremors in Plaintiff’s arms and legs in
2 the Disability Determination Explanation at the initial level, dated June 16, 2020; and a
3 note from Plaintiff’s mother, Georgia W., stating that Plaintiff’s hand tremors remain at
4 issue, dated August 10, 2020. (Id.; ECF No. 16 at 7; AR 207, 346.)
5 Second, in support of his allegations that the ALJ failed to address his blurred vision,
6 Plaintiff cites to his testimony from the June 10, 2021 administrative hearing (AR 70); the
7 Disability Determination Explanation (AR 117,119); Dr. Kunkel’s note of vision and
8 coordination issues (AR 275); and Dr. Hall’s notes of blurred vision (AR 252, 439),8 which
9 purportedly demonstrate serious vision issues. (ECF No. 13-1 at 16–17.)
10 Third, Plaintiff argues that the ALJ failed to sufficiently address Plaintiff’s episodes
11 and their attendant nausea and vomiting. Specifically, Plaintiff argues that the ALJ
12 incorrectly interpreted Dr. Bui’s findings to wrongfully conclude that Plaintiff’s episodes
13 are now controlled with medication. (ECF No. 13-1 at 17–18.)9
14 c. Analysis
15 In his decision, the ALJ discussed the objective medical evidence considered in
16 crafting the RFC. First, the ALJ analyzed medical records from Drs. Taub and Kunkel.
17 (AR 25–26.) The ALJ noted a diagnosis of POTS, and that records as of April 30, 2020,
18 described that “[t]he claimant reported that he experienced good days and bad days with
19 dizziness, nausea and lightheadedness preventing him from running or going to the gym.”
20 (AR 25–26.) The ALJ took note that “Dr. Taub reported that the claimant had probable
21
22
23
24 8 The Court notes that AR 252 actually contains Dr Bui’s notes regarding a tilt table test
25 and contains nothing related to blurred vision.
9 Plaintiff also argues the ALJ erred by relying on sources outside the record, specifically
26
records of a July 2019 visit to Dr. Bui and an October 2019 consultation with Dr. June
27 Yoshii-Contreras. (ECF 13-1 17–18.) On this point, Plaintiff is utterly mistaken. The ALJ
decision Plaintiff quotes in making this argument is the December 20, 2019 decision of
28
1 POTS and noted that he had good functional status and has had some benefit with beta
2 blocker.” (AR 25–26.)
3 The ALJ likewise addressed Dr. Bui’s treatment and observations. (AR 26.) The
4 ALJ noted that Dr. Bui had “been following the claimant for POTS, which was controlled
5 on metopropol and salt tablets.” (AR 26.) He took into account reports of a seizure on
6 August 26, 2019, and hospitalization on September 11, 2019, “because [claimant’s] right
7 hand was trembling and his blood sugar was in the 70[s].” (AR 26.) The ALJ further noted
8 that Dr. Bui attributed the symptoms ascribed to seizures as more likely attributable to
9 POTS and found that Dr. Bui believed the condition was stable on medication. (AR 26.)
10 Specifically, regarding Plaintiff’s trembling, the ALJ heard Plaintiff’s testimony at
11 the June 10, 2021 hearing that he experiences trembling “sometimes” in conjunction with
12 POTS episodes and that, when occurring, render Plaintiff unable to write. (AR 70–71.)
13 There was no testimony indicating that this trembling was constant, or that it occurred other
14 than in the context of Plaintiff’s POTS episodes. Beyond Plaintiff’s own testimony,
15 references to tremors or trembling occur in the medical records sporadically. On
16 September 19, 2019, Dr. Hall documented Plaintiff’s report that when he has episodes, he
17 “feel[s] that his body is shaking.” (AR 258.) On January 17, 2020, Dr. Hall listed tremors
18 on Plaintiff’s “chronic problems” list, noting that they “[w]orsened during episodes of pots.
19 Presents today associated with almost with a [sic] asterixis like spasm/tremor on top of
20 irregular tremor.” (AR 345–46, 437.) Likewise, “[d]izziness, [t]remors” appeared as
21 “[p]ositive” in Dr. Hall’s “Review of Systems” chart. (AR 352.) However, with respect
22 to tremors, there is no further reference or explanation, including in the “assessment/plan”
23 section, nor is specific treatment discussed. (AR 351–53.) Dr. Bui likewise mentioned
24 tremors in passing, in notes which reflect that Plaintiff reports he “[w]ent to hospital
25 September 11, 2019. R hand was trembling . . .” (AR 339–44, 357–72, 381.)
26 The ALJ addressed Plaintiff’s claim of hand tremors in his Decision at the step-two
27 analysis, finding that “there is no evidence in th[e] medical records of any evaluation of
28 diagnosis of this issue; therefore, his allegation of disability due to trembling of his hands
1 is considered to be a non-medically determinable impairment.” (AR 24.) Regardless of
2 whether hand tremors were a separately diagnosed impairment, however, there was
3 testimony and record evidence that Plaintiff experienced hand tremors as a symptom of
4 POTS. The ALJ may have been correct in his conclusion that there was no diagnosis of
5 hand trembling as an independent impairment, but the ALJ erred in failing to analyze the
6 trembling as a symptom. As addressed above, the ALJ did not specify what symptom
7 testimony he discounted, so the Court cannot determine whether the ALJ failed to include
8 limitations related to hand tremors in the RFC because he found this symptom testimony
9 lacked credibility. Therefore, the ALJ erred by neither properly rejecting Plaintiff’s
10 symptom testimony about tremors nor addressing them in his RFC analysis.
11 The ALJ made no mention of Plaintiff’s vision issues in the Decision. However,
12 Plaintiff’s claims of visual impairment caused by his POTS are reflected at several points
13 in the record, including Plaintiff’s testimony at the June 10, 2021 hearing. For example,
14 Plaintiff testified that during his “cyclical stages” of dizziness and lightheadedness, “[his]
15 vision’s gone.” (AR 64–65.) Additionally, in an exchange with his attorney, Plaintiff
16 stated “[w]ell, I'm taking medication regularly, so if I'm feeling well, then I'm usually
17 mostly there, but I—my vision's still not all there. This is why I saw the optometry
18 specialist recently . . .” (AR 68.) Medical records likewise include notes of vision-related
19 symptoms. Dr. Taub noted in April 2020 that “[c]urrently [Plaintiff’s] bothersome
20 symptoms are not able to focus with his vision . . .” and others, alongside a brief statement
21 that Plaintiff “[d]enies . . . visual changes . . .” (AR 275–76.) References to Plaintiff’s
22 purported vision issues appear throughout the record in notes from Drs. Bui and Taub.
23 (See, e.g., AR 258, 275–76, 307, 409.) The ALJ did not analyze those complaints in the
24 Decision, include them in the RFC, or specifically identify them in the context of
25 discounted symptom testimony. Thus, the ALJ erred.
26 Regarding Plaintiff’s episodes, nausea, and vomiting, the ALJ’s Decision contains
27 several cited references to Dr. Taub’s and Dr. Bui’s notes on the subject, with references
28 to their opinions on the seizure-like episodes and nausea/vomiting. (AR 25–26.) The
1 ALJ’s Decision includes a summary that “[Plaintiff] was diagnosed with epilepsy,
2 unspecified, not intractable, without status epilepticus; however, Dr. Bui noted that the
3 claimant did not have epilepsy by electroencephalogram (EEG) and likely the seizures
4 were from POTS.” (AR 26.)
5 However, the ALJ’s determination that Plaintiff could perform medium work,
6 limited as to only environmental factors, does not reflect symptoms of nausea and vomiting
7 associated with Plaintiff’s episodes. (AR 25–29.) Therefore, the ALJ erred by not either
8 properly rejecting Plaintiff’s symptom testimony about nausea and vomiting or addressing
9 them in his RFC analysis.
10 C. The ALJ’s Errors are Not Harmless
11 The Court finds that the ALJ’s errors in failing to consider Plaintiff’s limitations and
12 symptom testimony merit reversal and remand. The Commissioner claims that Plaintiff
13 has not “proved” that any error related to vision testimony was harmful because Plaintiff
14 has not articulated the degree of visual limitation necessary to the RFC, and that because
15 of this the error itself was harmless. Indeed, “. . . we may not reverse an ALJ's decision on
16 account of an error that is harmless. [T]he burden of showing that an error is harmful
17 normally falls upon the party attacking the agency's determination.” Molina v. Astrue, 674
18 F.3d 1104, 1111 (9th Cir. 2012) superseded on other grounds by 20 C.F.R. § 404.1502(a).
19 Likewise, there is a “general principle that an ALJ's error is harmless where it is
20 inconsequential to the ultimate nondisability determination. In other words, in each case
21 we look at the record as a whole to determine whether the error alters the outcome of the
22 case.” Id. at 1115 (internal citations and quotation marks omitted); see also Shinseki v.
23 Sanders, 556 U.S. 396, 410 (2009). Though Plaintiff has not provided an exact
24 counterfactual, given the circumstances of this case, Plaintiff has sufficiently articulated
25 the error, the evidence in support, and the effects: essentially, that the ALJ did not give
26 proper consideration to Plaintiff’s testimony and impairments as discussed, and that had
27 the ALJ done so, such proper consideration could have resulted in a different outcome.
28 (ECF No. 13-1 at 16–20.)
1 Here, the ALJ’s errors undermine the validity of the RFC. Specifically, the RFC
2 was determined without properly assessing all claimed limitations and after discounting
3 Plaintiff’s symptom testimony without adequate support. SSR 96-8p, 1996 WL 374184 at
4 *5–6; 20 C.F.R. 404.1545(a); Ferguson, 95 F.4th at 1199. The ALJ is owed deference
5 where evidence is susceptible of more than one rational interpretation. Gallant v. Heckler,
6 753 F.2d 1450, 1452 (9th Cir. 1984). However, the ALJ must establish a written record
7 sufficient to allow the Court meaningful review, and it is not the duty nor the prerogative
8 of the district court to fill the ALJ’s shoes, as it may not “affirm[] the ALJ’s determination
9 for a reason that the ALJ did not assert.” Ferguson, 95 F.4th at 1203; see also Treichler v.
10 Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1103 (9th Cir. 2014) (“[the Court] cannot
11 substitute [its] conclusions for the ALJ's, or speculate as to the grounds for the ALJ's
12 conclusions.”). Through his silence on Plaintiff’s vision issues, and his errors in
13 considering and addressing Plaintiff’s trembling, nausea and vomiting, the ALJ left the
14 Court without an adequate record on which to review his decision and therefor remand is
15 necessary. Likewise, the ALJ did not properly articulate and support his rejection of
16 Plaintiff’s symptom testimony and the Court is not at liberty to fill in the blanks, thus
17 necessitating remand.
18 Moreover, his failure to adequately assess these limitations undermines the
19 evidentiary value of the VE’s testimony. See DeLorme v. Sullivan, 924 F.2d at 850 (“If the
20 hypothetical does not reflect all the claimant's limitations, we have held that the expert's
21 testimony has no evidentiary value to support a finding that the claimant can perform jobs
22 in the national economy”). The ALJ’s decision reflects that he relied foundationally on
23 both the RFC and the VE’s testimony in determining whether Plaintiff could perform past
24 relevant work, and whether Plaintiff could perform other jobs in the national economy.10
25

26
27 10 “In comparing the claimant’s residual functional capacity with the physical and mental
demands of this work, and considering the testimony of the vocational expert, the
28
1 ||(AR 28-29.) Thus, the ALJ’s errors in the RFC substantially undermine the later findings
2 || which relied heavily upon them and render his denial of benefits unsupportable.
3 As the Court cannot say with any degree of confidence that the ALJ’s errors were
4 || harmless, it must remand.
5 VI. CONCLUSION
6 For the reasons set forth above, the Court GRANTS Plaintiff's merits brief, reversing
7 decision of the Commissioner, and REMANDS this matter for further proceedings
8 regarding Plaintiff's claims of visual impairment, pursuant to sentence four of 42 U.S.C. §
9 ||405(g). The Clerk is directed to issue judgment in favor of the Plaintiff and against
10 || Defendant and to close the case.
11 Because the Court remands for the reasons addressed above, the Court does not address
12 || Plaintiff's remaining arguments that: 1) the ALJ’s determination that Plaintiff is limited to
13 |}medium work not supported by substantial evidence in the record; and 2) The ALJ erred in
14 || his analysis of Plaintiff's past relevant work. (ECF No. 13-1 at 19-21.)
15 IT IS SO ORDERED.
16 Dated: September 16, 2024 -

n. Jill L. Burkhardt
18 ited States Magistrate Judge
19
20
21
22
23
24
25
2oi}o020tti<“i‘< OO!
27 || (AR 28.) “Based on the testimony of the vocational expert, the undersigned concludes that
the claimant is capable of making a successful adjustment to other work that exists in
significant numbers in the national economy.” (AR 29.)

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10640537. Public record. Not legal advice.