Seifert v. Commissioner of Social Security

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UNITED STATES DISTRICT COURT

7 WESTERN DISTRICT OF WASHINGTON

AT TACOMA

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9 SHARON S.,

Plaintiff, CASE NO. C22-5153-MAT

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v.

11 ORDER RE: SOCIAL SECURITY

COMMISSIONER OF SOCIAL SECURITY, DISABILITY APPEAL

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Defendant.

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14 Plaintiff appeals a final decision of the Commissioner of the Social Security Administration

15 (Commissioner) denying Plaintiff’s application for disability benefits after a hearing before an

16 administrative law judge (ALJ). Having considered the ALJ’s decision, the administrative record

17 (AR), and all memoranda of record, this matter is REVERSED and REMANDED for further

18 administrative proceedings.

19 FACTS AND PROCEDURAL HISTORY

20 Plaintiff was born on XXXX, 1974.1 Plaintiff has at least a high school education and

21 previously worked as a case manager and a composite job of telephone solicitor, customer service

22 clerk, and payroll clerk. AR 22. Plaintiff filed an application for Disability Insurance Benefits

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1 Dates of birth must be redacted to the year. Fed. R. Civ. P. 5.2(a)(2) and LCR 5.2(a)(1).

1 (DIB) on February 26, 2020, alleging disability beginning June 15, 2018. AR 13. The application

2 was denied at the initial level and on reconsideration. On January 19, 2021, the ALJ held a

3 telephone hearing and took testimony from Plaintiff and a vocational expert (VE). AR 30–55. At

4 the hearing, Plaintiff amended the alleged onset date to January 1, 2020. AR 13, 37. On April 2,

5 2021, the ALJ issued a decision finding Plaintiff not disabled. AR 13–25. Plaintiff timely appealed.

6 The Appeals Council denied Plaintiff’s request for review on January 19, 2022 (AR 1–6), making

7 the ALJ’s decision the final decision of the Commissioner. Plaintiff appeals this final decision of

8 the Commissioner to this Court.

9 JURISDICTION

10 The Court has jurisdiction to review the ALJ’s decision pursuant to 42 U.S.C. § 405(g).

11 STANDARD OF REVIEW

12 This Court’s review of the ALJ’s decision is limited to whether the decision is in

13 accordance with the law and the findings are supported by substantial evidence in the record as a

14 whole. See Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993). “Substantial evidence” means more

15 than a scintilla, but less than a preponderance; it means such relevant evidence as a reasonable

16 mind might accept as adequate to support a conclusion. Magallanes v. Bowen, 881 F.2d 747, 750

17 (9th Cir. 1989). If there is more than one rational interpretation, one of which supports the ALJ’s

18 decision, the Court must uphold the ALJ’s decision. Thomas v. Barnhart, 278 F.3d 947, 954 (9th

19 Cir. 2002).

20 DISCUSSION

21 The Commissioner follows a five-step sequential evaluation process for determining

22 whether a claimant is disabled. See 20 C.F.R. § 404.1520 (2000).

23 At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity

1 since January 1, 2020, the amended alleged onset date. AR 15.

2 At step two, the ALJ found that Plaintiff has the following severe impairments: rheumatoid

3 arthritis, generalized anxiety disorder, major depressive disorder, panic disorder, and post-

4 traumatic stress disorder (PTSD). AR 15.

5 At step three, the ALJ found that Plaintiff’s impairments did not meet or equal the criteria

6 of a listed impairment. AR 16–18.

7 At step four, the ALJ found that Plaintiff has the residual functional capacity (RFC) to

8 perform light work, as defined in 20 C.F.R. § 404.1567(b), with the following limitations:

9 [T]he claimant can stand and walk for a total of four hours in an eight-

hour workday and sit for six hours in an eight-hour workday. The

10 claimant can occasionally climb ramps and stairs; occasionally balance,

stoop, kneel, crouch and crawl; and never climb ladders, ropes or

11 scaffolds. The claimant can occasionally reach overhead; frequently

reach in all other directions; and frequently handle, finger and feel with

12 the bilateral upper extremities. The claimant should avoid concentrated

exposure to extreme temperatures, vibration and hazards. The claimant

13 can perform simple, routine work with no more than occasional

workplace changes. In addition, the claimant can tolerate occasional

14 superficial contact with co-workers and the public.

15 AR 19. With that assessment, the ALJ found Plaintiff unable to perform any past relevant work.

16 AR 22–23.

17 At step five, the ALJ found that Plaintiff retains the capacity to make an adjustment to work

18 that exists in significant numbers in the national economy. With the assistance of a VE, the ALJ

19 found Plaintiff capable of performing the requirements of representative occupations such as

20 collator operator, small products assembler I, and document preparer. AR 23–24.

21 Plaintiff raises the following issues on appeal: (1) Whether the VE testimony is consistent

22 with the Dictionary of Occupational Titles (DOT); (2) whether the RFC is supported by substantial

23 evidence; and (3) whether the ALJ properly considered Plaintiff’s subjective allegations. Plaintiff

1 requests remand for further administrative proceedings. The Commissioner argues the ALJ’s

2 decision has the support of substantial evidence and should be affirmed.

3 1. VE Testimony

4 At step five, the Commissioner has the burden “to identify specific jobs existing in

5 substantial numbers in the national economy that claimant can perform despite her identified

6 limitations.” Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995). Based on the VE’s testimony,

7 the ALJ concluded that Plaintiff would be able to perform the requirements of collator operator,

8 small products assembler I, and document preparer. AR 24–25.

9 Plaintiff argues that the ALJ failed to resolve an apparent conflict between the RFC and

10 the Level 3 Reasoning required for performing the job of document preparer. Dkt. 8, at 4–5. Social

11 Security regulations require the ALJ to inquire whether the VE’s testimony is consistent with the

12 DOT and to obtain a reasonable explanation for any apparent conflict. SSR 00-4p; see also

13 Massachi v. Astrue, 486 F.3d 1149, 11452–53 (9th Cir. 2007). Here, the VE testified that a person

14 limited to simple, routine work would be able to perform the job of document preparer. AR 51–

15 52. The DOT describes that the job of document preparer requires Level 3 Reasoning. DOT

16 249.587-018, 1991 WL 672349 (document preparer, microfilming). The Ninth Circuit has held

17 that “there is an apparent conflict between the residual functional capacity to perform simple,

18 repetitive tasks, and the demands of Level 3 Reasoning.” Zavalin v. Colvin, 778 F.3d 842, 847 (9th

19 Cir. 2015); accord Buck v. Berryhill, 869 F.3d 1040, 1051 (9th Cir. 2017). Because the ALJ did

20 not identify or attempt to resolve the conflict between Plaintiff’s RFC and the Level 3 Reasoning

21 required to perform the job of document preparer, the ALJ erred by relying on the VE testimony

22 and finding that Plaintiff could perform the requirements of a document preparer at step five.

23 The Commissioner argues that any error in the ALJ’s failure to resolve an apparent conflict

1 between the RFC and Level 3 Reasoning is harmless in this case because the record shows that

2 Plaintiff has the ability to perform the challenged jobs. Dkt. 9, at 4. The Commissioner argues this

3 case is distinguishable from Zavalin—in which the Ninth Circuit found the ALJ’s failure to

4 reconcile the conflict was not harmless—because, unlike the claimant in Zavalin, Plaintiff has no

5 intellectual impairments, completed four or more years of college, and has a history of skilled

6 work. Id. at 5. The Commissioner’s argument is unpersuasive. Here, the ALJ specifically limited

7 Plaintiff to performing simple, routine work considering Plaintiff’s “problems with her short-term

8 memory, difficulty adjusting to changes in routine and statements that she often experiences

9 ‘mental fogginess’ and difficulty concentrating secondary to her rheumatoid arthritis and

10 associated symptoms,” which difficulties the ALJ found “demonstrate the claimant would have

11 greater difficulty remembering and applying information.” AR 22. Moreover, the Ninth Circuit in

12 Zavalin found that “there is no rigid correlation between reasoning levels and the amount of

13 education that a claimant has completed.” Zavalin, 778 F.3d at 847. Because the ALJ found that

14 Plaintiff’s mental impairments prevent her from performing job requirements consistent with

15 Level 3 Reasoning, the ALJ’s failure to resolve the conflict between the RFC and the Level 3

16 Reasoning required of a document preparer was not harmless.

17 Plaintiff further argues that the job of document preparer does not exist in significant

18 numbers in the national economy. Dkt. 8, at 5–6. Plaintiff requests that the Court take judicial

19 notice of the information in Wood v. Berryhill, 3:17-cv-5430, 2017 WL 6419313 (W.D. Wash.

20 2017), in which a vocational consultant testified that the job of document preparer does not exist

21 in significant numbers. Dkt. 8, at 5–6. “The reviewing court is limited to considering the contents

22 of the administrative record itself.” Delgadilla v. Kijakazi, No. 20-56211, 2022 WL 301548, at *1

23 (9th Cir. Feb. 1, 2022) (citing 42 U.S.C. § 405). Accordingly, expert testimony from an entirely

1 different case is not within the scope of this Court’s review. Additionally, because Plaintiff did not

2 challenge the VE’s testimony regarding job numbers at the administrative level, Plaintiff has

3 waived her challenge to the VE’s testimony regarding job numbers on appeal. See Shaibi v.

4 Berryhill, 883 F.3d 1102, 1108 (9th Cir. 2017) (“[W]hen a claimant fails entirely to challenge a

5 vocational expert’s job numbers during administrative proceedings before the agency, the claimant

6 forfeits such a challenge on appeal, at least when that claimant is represented by counsel.”).

7 Plaintiff next argues that the ALJ failed to resolve an apparent conflict between the RFC

8 and the frequent overhead reaching required for all three jobs identified at step five. Dkt. 8, at 6–

9 7. The DOT does not contemplate how often an individual must reach overhead.2 Where a task is

10 not specifically identified in the DOT, an expert’s testimony conflicts with the DOT only if it is

11 “at odds with the [DOT’s] listing of requirements that are essential, integral, or expected.”

12 Gutierrez, 844 F.3d at 808. The DOT defines the requirements of the jobs identified at step five as

13 follows: a document preparer “[p]repares documents . . . for microfilming, using paper cutter,

14 photocopying machine, rubber stamps, and other work devices”; a collator operator “[t]ends

15 machine that assembles pages of printed material in numerical sequence”; and a small products

16 assembler I positions parts in relation to each other, works on an assembly line, and loads and

17 unloads previously setup machines. DOT 249.587-018, 1991 WL 672349 (document preparer,

18 microfilming); DOT 208.685-010, 1991 WL 671753 (collator operator); DOT 706.684-022, 1991

19 WL 679050 (assembler, small products I). Based on these general descriptions, frequent overhead

20 reaching is not apparently or obviously an essential, integral, or expected task of the jobs identified

21 at step five, and it is likely and foreseeable that an individual limited to occasional overhead

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2 “While ‘reaching’ connotes the ability to extend one’s hands and arms ‘in any direction,’ not every job

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that involves reaching requires the ability to reach overhead.” Gutierrez v. Colvin, 844 F.3d 804, 808 (9th

Cir. 2016) (quoting SSR 85-15)).

1 reaching and frequent reaching in all other directions would be able to perform the duties required

2 of a document preparer, collator operator, and small products assembler I. Therefore, Plaintiff has

3 not shown that there is an apparent or obvious conflict between the VE’s testimony and the DOT’s

4 reaching requirements for the jobs identified at step five.

5 Although the ALJ erred by failing to resolve the conflict between the RFC and the Level 3

6 Reasoning required of a document preparer, this error was harmless. See Molina v. Astrue, 674

7 F.3d 1104, 1115 (9th Cir. 2012), superseded by regulation on other grounds (an ALJ’s error may

8 be deemed harmless where it is “‘inconsequential to the ultimate nondisability determination’”

9 (citation omitted)). With the assistance of the VE, the ALJ found that Plaintiff could also perform

10 the requirements of a collator operator and small products assembler I, which jobs represent

11 approximately 26,000 and 191,000 jobs in the national economy, respectively. AR 24, 51. Because

12 the ALJ identified other jobs Plaintiff could perform that exist in significant numbers in the

13 national economy, the ALJ’s error in finding Plaintiff capable of performing the requirements of

14 document preparer was harmless.

15 2. RFC

16 At step four, the ALJ must identify the claimant’s functional limitations or restrictions and

17 assess her work-related abilities on a function-by-function basis. See 20 C.F.R. § 404.1545; SSR

18 96-8p. The RFC is the most a claimant can do considering his limitations or restrictions. See SSR

19 96-8p. The ALJ must consider the limiting effects of all of the claimant’s impairments, including

20 those that are not severe, in assessing the RFC. 20 C.F.R. § 404.1545(e); SSR 96-8p.

21 Plaintiff argues that the ALJ did not clearly translate the medical evidence into the RFC

22 and that the RFC is not supported by any medical opinions. Dkt. 8, at 12–13. “The ALJ is

23 responsible for translating and incorporating clinical findings into a succinct RFC.” Rounds v.

1 Comm’r of Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015). Accordingly, the ALJ’s RFC

2 finding need not directly correspond to a specific medical opinion but may incorporate the opinions

3 by assessing limitations entirely consistent with, even if not identical to, limitations assessed by

4 the physician. Turner v. Comm’r of Soc. Sec. Admin., 613 F.3d 1217, 1223 (9th Cir. 2010) (the

5 ALJ properly incorporates medical findings by assessing limitation that are “entirely consistent”

6 with a physician’s limitations). Further, an ALJ’s “overinclusion of debilitating factors is

7 harmless.” See Johnson, 60 F.3d at 1436 n.9 (“[I]f a person can do a job that requires increased

8 concentration, the claimant is also capable of performing work that required less concentration.”).

9 The ALJ found the medical opinions of state agency medical and psychological consultants

10 generally persuasive; however, the ALJ assessed additional standing, walking, postural, and

11 manipulative limitations than those assessed in the consultants’ opinions considering Plaintiff’s

12 subjective complaints and symptom testimony regarding the effects of her rheumatoid arthritis and

13 joint paint. AR 21–22. Plaintiff has not identified any error in the ALJ’s incorporation of the

14 medical consultants’ opinions into the RFC. Further, the additional limitations assessed by the ALJ

15 in this case only benefit the Plaintiff. See Nacoste-Harris v. Berryhill, 711 Fed. Appx. 378, 379–

16 80 (9th Cir. 2017) (no reversible error from “an ALJ’s inclusion of additional RFC limitations that

17 benefits, rather than prejudices,” the claimant). Therefore, Plaintiff has not shown that the ALJ

18 erred by including in the RFC greater limitations than those identified in the consultants’ opinions.

19 3. Subjective Testimony

20 The ALJ must provide specific, clear, and convincing reasons, supported by substantial

21 evidence, for rejecting a claimant’s subjective symptom testimony.3 Trevizo v. Berryhill, 871 F.3d

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3 Effective March 28, 2016, the Social Security Administration (SSA) eliminated the term “credibility”

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from its policy and clarified the evaluation of a claimant’s subjective symptoms is not an examination of

character. SSR 16-3p. The Court continues to cite to relevant case law utilizing the term credibility.

1 664, 678 (9th Cir. 2017); Smolen v. Chater, 80 F.3d 1273, 1286 (9th Cir. 1996). An ALJ may reject

2 a claimant’s symptom testimony when it is contradicted by the medical evidence, but not when it

3 merely lacks support in the medical evidence. See Carmickle v. Comm’r of Soc. Sec. Admin., 533

4 F.3d 1155, 1161 (9th Cir. 2008) (“Contradiction with the medical record is a sufficient basis for

5 rejecting a claimant’s subjective testimony.”); Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir.

6 2005) (“[L]ack of medical evidence cannot form the sole basis for discounting pain testimony.”).

7 Plaintiff alleges that she cannot work because her mental impairments cause her to have

8 severe episodes of unmanageable depression and makes her unable to function, get out of bed,

9 engage with her family, and fulfill her duties at work. AR 258. At the hearing, Plaintiff testified

10 that she experiences episodes of crying spells, panic attacks, and post-traumatic stress several times

11 a week. AR 41–42. Plaintiff further alleges that her rheumatoid arthritis causes her significant pain

12 throughout her body daily, that her pain gets worse as she ages, and that her impairments affect

13 her ability to squat, kneel, remember, complete tasks, concentrate, understand, follow instructions,

14 and get along with others. AR 258, 263. At the hearing, Plaintiff testified that, due to her

15 rheumatoid arthritis, her upper body is very weak; that she has difficulty making repetitive motion,

16 lifting light weight, sitting, and typing, which causes swelling in her joints, wrists, and fingers; and

17 that she cannot sit and stand in a working position for eight hours in a day. AR 40.

18 The ALJ found that Plaintiff’s “medically determinable impairments could reasonably be

19 expected to cause the alleged symptoms; however, the claimant’s statements concerning the

20 intensity, persistence and limiting effects of these symptoms are not entirely consistent with the

21 medical evidence and other evidence in the record . . . .” AR 19.

22 a. Rheumatoid arthritis symptoms

23 Plaintiff argues that the ALJ improperly rejected Plaintiff’s symptom testimony by

1 characterizing Plaintiff’s rheumatoid arthritis “treatment of prescription pain medication and

2 weekly injections as conservative.” Dkt. 8, at 15. Citing Garrison v. Colvin, 759 F.3d 995 (9th Cir.

3 2014), Plaintiff argues that her long-term etanercept therapy via injections is not conservative

4 treatment. Dkt. 8, at 15. Plaintiff’s argument fails to show error in the ALJ’s decision for several

5 reasons. First, the ALJ did not expressly characterize Plaintiff’s rheumatoid arthritis treatment as

6 “conservative.” Second, Garrison is not analogous to this case. The injections in Garrison were

7 epidural steroid injections to the neck and lower back, which the Ninth Circuit doubted qualified

8 as “conservative” medical treatment. Garrison, 759 F.3d at 1015 n.20. Here, by contrast, Plaintiff’s

9 etanercept injections were subcutaneous (under the skin) and self-administered. See AR 1045

10 (noting that Plaintiff experienced more pain when she did not take her weekly injection). Finally,

11 unlike Garrison, the record indicates that Plaintiff’s rheumatoid arthritis symptoms were “well

12 controlled” and “doing well” under her treatment regimen. See AR 368, 997, 1039. Therefore,

13 Plaintiff has not shown that the ALJ improperly characterized Plaintiff’s rheumatoid arthritis

14 treatment as “conservative.”

15 Plaintiff next argues that the ALJ improperly rejected Plaintiff’s symptom testimony by

16 “plac[ing] undue weight on the evidence of improvement.” Dkt. 8, at 15. Regarding Plaintiff’s

17 rheumatoid arthritis, the ALJ found Plaintiff’s subjective testimony inconsistent with evidence that

18 Plaintiff’s symptoms “have been responsive to and well-controlled with her current drug therapy

19 regimen,” that Plaintiff “has not pursued alternative or more invasive treatment modalities nor

20 required frequent emergency room treatment or extended hospitalization for any recent relapses or

21 flare-ups related to her rheumatoid arthritis,” and that Plaintiff “has not required evaluation or

22 routine follow-up examination since December 16, 2019.” AR 19. “Impairments that can be

23 controlled effectively with medication are not disabling.” Warre v. Comm’r of Soc. Sec. Admin.,

1 439 F.3d 1001, 1006 (9th Cir. 2006). The ALJ cited medical records stating that Plaintiff’s

2 rheumatoid arthritis symptoms were “well controlled” and “doing well” with treatment. AR 19

3 (citing AR 368, 997, 1039). Further, there is no evidence in the record indicating that Plaintiff

4 sought treatment or medical attention related to debilitating symptoms from her rheumatoid

5 arthritis during the relevant period. See Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008)

6 (the ALJ permissibly inferred that the claimant’s “pain was not as all-disabling as he reported in

7 light of the fact that he did not seek an aggressive treatment program and did not seek an alternative

8 or more-tailored treatment program”); Burch, 400 F.3d at 681 (the ALJ may consider lack of

9 consistent treatment in evaluating subjective symptom testimony). Therefore, substantial evidence

10 supports the ALJ’s finding that Plaintiff’s subjective symptom testimony was inconsistent with

11 evidence that Plaintiff’s rheumatoid arthritis symptoms were well-controlled with treatment, and

12 the ALJ’s reasoning was specific, clear, and convincing.

13 Plaintiff argues that the ALJ was required to develop the record further because the ALJ

14 did not ask Plaintiff to explain the December 2019 follow-up and because there was no evidence

15 in the record addressing Plaintiff’s current functioning. Dkt. 8, at 16. Plaintiff’s argument is

16 unpersuasive. The ALJ’s duty to develop the record “is triggered only when there is ambiguous

17 evidence or when the record is inadequate to allow for proper evaluation of the evidence.” Mayes

18 v. Massanari, 276 F.3d 453, 459–60 (9th Cir. 2001). Here, the ALJ did not find that the evidence

19 was ambiguous or inadequate to evaluate Plaintiff’s symptom testimony. Further, the ALJ has no

20 duty to develop the record in order to establish disability. Id. at 461; see also Tidwell v. Apfel, 161

21 F.3d 599, 601 (9th Cir. 1998) (“[A]t all times, the burden is on the claimant to establish her

22 entitlement to disability insurance benefits.”).

23 Plaintiff next argues that the ALJ improperly discounted Plaintiff’s symptom testimony by

1 finding it inconsistent with evidence of Plaintiff’s activities. Dkt. 8, at 16. An ALJ may consider

2 daily activities in evaluating a claimant’s testimony regarding their physical limitations and the

3 severity of their symptoms. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (“[I]f a claimant is

4 able to spend a substantial part of his day engaged in pursuits involving the performance of

5 physical functions that are transferable to a work setting, a specific finding as to this fact may be

6 sufficient to discredit an allegation of disabling pain.” (emphasis in original)). The ALJ found that

7 Plaintiff was able to maintain her hygiene and personal care needs independently and participate

8 in activities that require fine and gross manipulation skills, such as gardening, painting, and

9 shopping online. AR 20. The ALJ further noted that Plaintiff enjoyed physical activities, such as

10 jogging, hiking, and participating in dragon boat team events. AR 20. Substantial evidence does

11 not support the ALJ’s findings. Plaintiff reported that she “very rarely” washes her hair, that

12 sometimes she cannot make herself shower, that she needs reminders to get up, get dressed, and

13 shower, and that she shops online once or twice a month for dog toys and small items. AR 40,

14 259–61. Plaintiff further testified that she paints for coping and managing her anxiety, but there

15 are no details in the record regarding what the painting activities involved. AR 42, 1038. This

16 evidence does not reasonably demonstrate that Plaintiff is able to maintain her personal care needs

17 independently or that Plaintiff’s online or painting activities required a level of fine or gross motor

18 skills that are reasonably inconsistent with Plaintiff’s testimony or reasonably transferrable to a

19 work setting. AR 40, 261; see also Fair, 885 F.2d at 603 (“The Social Security Act does not require

20 that claimants be utterly incapacitated to be eligible for benefits . . . .”). Finally, although Plaintiff

21 reported that she enjoys hobbies, such as gardening, jogging, hiking, and races, Plaintiff also

22 reported in her March 2020 Adult Function Report that she no longer does any of these activities.

23 AR 262, 1166. Even if the record indicated that Plaintiff was able to engage in some physical

1 activity, the ALJ failed to identify how and why such evidence is inconsistent with Plaintiff’s

2 testimony.4 Therefore, the ALJ erred by finding Plaintiff’s testimony regarding debilitating

3 rheumatoid arthritis symptoms inconsistent with evidence of Plaintiff’s activities, and the ALJ’s

4 reasoning was not specific, clear, convincing, or supported by substantial evidence.

5 Nevertheless, the ALJ’s error was harmless in this case because the ALJ cited other valid

6 reasons for discounting Plaintiff’s testimony regarding debilitating rheumatoid arthritis symptoms,

7 including inconsistency with evidence that Plaintiff’s rheumatoid arthritis symptoms were well-

8 controlled with treatment. See Molina, 674 F.3d at 1115 (harmless error where the ALJ gives other

9 valid reasons for discounting a plaintiff’s subjective testimony).

10 b. Mental health symptoms

11 Plaintiff argues that the ALJ improperly rejected Plaintiff’s subjective testimony by placing

12 undue weight on evidence of improvement in Plaintiff’s mental health symptoms and that the ALJ

13 failed to consider evidence that Plaintiff struggled with suicidal ideation. Dkt. 8, at 15–16. The

14 ALJ found that Plaintiff “has managed her symptoms with various modalities including medication

15 management; individual, supportive psychotherapy treatment; ACT group sessions; and

16 previously underwent electroconvulsive (ECT) therapy for severe depression” and that Plaintiff

17 “denied engaging in any self-harming behaviors, denied experiencing homicidal or suicidal

18 ideations or intentions nor has the claimant required frequent emergency psychiatric treatment or

19 inpatient psychiatric hospitalization for an altered mental status, dissociative events or psychosis

20 during the adjudicatory period.” AR 20–21. Substantial evidence does not support the ALJ’s

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4 The Commissioner argues that other evidence in the record indicates that Plaintiff engaged in greater

22 activity than alleged, such as walking four miles a day and planting a garden. Dkt. 9, at 13 (citing AR 1009).

However, Plaintiff has not alleged that her impairments affect her ability to walk. See AR 40, 263. Further,

the record provides no details regarding what Plaintiff’s gardening activities involved. See Trevizo, 871

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F.3d at 682 (finding that the ALJ did not properly reject the claimant’s testimony based on evidence of a

claimant’s childcare activities when the record provided no details as to what the activities involved).

1 findings. The record contains evidence that Plaintiff’s depression and anxiety symptoms fluctuated

2 throughout the relevant period and that Plaintiff was assessed with moderate to high risk for suicide

3 on several occasions. See, e.g., AR 338, 340, 349, 1042, 1047, 1083, 1143–44, 1158, 1182, 1228.

4 Additionally, the record indicates that Plaintiff was hospitalized for several days in June 2020

5 related to a flare in her mental health symptoms. AR 1044–82. The ALJ failed to discuss or

6 consider this evidence when evaluating Plaintiff’s symptom testimony. See Garrison, 759 F.3d at

7 1017 (“[W]hile discussing mental health issues, it is error to reject a claimant’s testimony merely

8 because symptoms wax and wane in the course of treatment.”). Therefore, the ALJ failed to

9 provide specific, clear, or convincing reasons, supported by substantial evidence, for rejecting

10 Plaintiff’s subjective testimony regarding the severity of her mental health symptoms.

11 The ALJ’s error in evaluating Plaintiff’s mental health symptoms was not harmless.

12 Although the RFC limits Plaintiff to “simple, routine work with no more than occasional

13 workplace changes” (AR 21), the RFC does not reasonably account for Plaintiff’s allegations that

14 episodes of severe depression, panic attacks, and stress related to her PTSD make her unable to

15 function, get out of bed, or fulfill job duties. See AR 258. On remand, the ALJ is directed to

16 reassess Plaintiff’s subjective testimony regarding her mental impairments and reevaluate the

17 findings at steps three through five as warranted by further consideration of the evidence.

18 CONCLUSION

19 For the reasons set forth above, this matter is REVERSED and REMANDED for further

20 administrative proceedings.

21 DATED this 17th day of October, 2022.

A

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23 MARY ALICE THEILER

United States Magistrate Judge