The opinion
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7 UNITED STATES DISTRICT COURT
8 NORTHERN DISTRICT OF CALIFORNIA
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10 VANESSA W.,1 Case No. 24-cv-08003-TSH
11 Plaintiff,
ORDER RE: CROSS-MOTIONS FOR
12 v. SUMMARY JUDGMENT
13 SSA COMMISSIONER, Re: Dkt. Nos. 20, 22
14 Defendant.
15
16 I. INTRODUCTION
17 Plaintiff Vanessa W. moves for summary judgment to reverse the Social Security
18 Administration’s denial of her claim for disability benefits under the Social Security Act, 42
19 U.S.C. § 401 et seq. ECF No. 20 (“Pl.’s Mot.”). The Commissioner cross-moves to affirm. ECF
20 No. 22 (“Def.’s Mot.”). Plaintiff filed a reply. ECF No. 26 (“Pl.’s Reply”). Pursuant to Civil
21 Local Rule 16-5, the matter is submitted without oral argument. For the reasons stated below, the
22 Court GRANTS Plaintiff’s motion and DENIES the Commissioner’s cross-motion.2
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1 Partially redacted in compliance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the
recommendation of the Committee on Court Administration and Case Management of the Judicial
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Conference of the United States.
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2 The parties consent to magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c). ECF Nos. 6,
1 II. PROCEDURAL HISTORY
2 On November 15, 2021, Plaintiff filed an application for Social Security Supplemental
3 Security Income (SSI) benefits, stating a disability onset date of April 30, 2020.3 Administrative
4 Record (AR) 223–46. Plaintiff later amended the alleged disability onset date to September 30,
5 2021. AR 37. Following denial at the initial and reconsideration levels, Plaintiff requested a
6 hearing before an Administrative Law Judge (ALJ). AR 33–67, 101–21. An ALJ held a hearing
7 on October 12, 2023, and issued an unfavorable decision on February 26, 2024. AR 14–67. The
8 Appeals Council denied Plaintiff’s request for review on September 16, 2024. AR 1–6. Plaintiff
9 now seeks review pursuant to 42 U.S.C. § 405(g).
10 III. ISSUES FOR REVIEW
11 Plaintiff raises three issues on appeal: (1) whether the ALJ’s finding that Plaintiff has no
12 severe mental impairment is supported by substantial evidence; (2) whether the ALJ provides
13 specific, clear and convincing reasons for rejecting the entirety of Plaintiff’s testimony as
14 unpersuasive; and (3) whether the ALJ articulates the factors of supportability and consistency as
15 applied to the opinion of Laura Jean Catlin, PsyD. Pl.’s Mot. at 1. Plaintiff requests the Court
16 remand with instructions to award benefits, or in the alternative, remand for further administrative
17 proceedings. Id. at 23–24.
18 In sum, the Court concludes that the ALJ erred in evaluating Plaintiff’s testimony and the
19 medical opinions. Because these errors necessarily impacted the remainder of the ALJ’s decision,
20 reversal is warranted.
21 IV. STANDARD OF REVIEW
22 42 U.S.C. § 405(g) provides this Court’s authority to review the Commissioner’s decision
23 to deny disability benefits, but “a federal court’s review of Social Security determinations is quite
24 limited.” Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015). The Commissioner’s
25 decision will be disturbed only if it is not supported by substantial evidence or if it is based on the
26 application of improper legal standards. Id. Substantial means “more than a mere scintilla,” but
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1 only “such relevant evidence as a reasonable mind might accept as adequate to support a
2 conclusion.” Biestek v. Berryhill, 587 U.S. 97, 103 (2019) (cleaned up). Under this standard,
3 which is “not high,” the Court looks to the existing administrative record and asks, “whether it
4 contains ‘sufficient evidence’ to support the agency’s factual determinations.” Id. at 102 (cleaned
5 up).
6 The Court “must consider the entire record as a whole, weighing both the evidence that
7 supports and the evidence that detracts from the Commissioner’s conclusion, and may not affirm
8 simply by isolating a specific quantum of supporting evidence.” Garrison v. Colvin, 759 F.3d
9 995, 1009 (9th Cir. 2014) (citation omitted). “The ALJ is responsible for determining credibility,
10 resolving conflicts in medical testimony, and for resolving ambiguities.” Id. at 1010 (citation
11 omitted). If “the evidence can reasonably support either affirming or reversing a decision,” the
12 Court must defer to the ALJ’s decision. Id. (citation omitted).
13 Even if the ALJ commits legal error, the ALJ’s decision must be upheld if the error is
14 harmless, meaning “it is inconsequential to the ultimate nondisability determination, or that,
15 despite the legal error, the agency’s path may reasonably be discerned, even if the agency explains
16 its decision with less than ideal clarity.” Brown-Hunter, 806 F.3d at 492 (cleaned up). But “[a]
17 reviewing court may not make independent findings based on the evidence before the ALJ to
18 conclude that the ALJ’s error was harmless” and is instead “constrained to review the reasons the
19 ALJ asserts.” Id. (cleaned up).
20 V. DISCUSSION
21 A. Framework for Determining Whether a Claimant Is Disabled
22 A claimant is “disabled” under the Social Security Act (1) “if he is unable to engage in any
23 substantial gainful activity by reason of any medically determinable physical or mental
24 impairment which can be expected to result in death or which has lasted or can be expected to last
25 for a continuous period of not less than twelve months” and (2) the impairment is “of such severity
26 that he is not only unable to do his previous work but cannot, considering his age, education, and
27 work experience, engage in any other kind of substantial gainful work which exists in the national
1 – (B)). To determine whether a claimant is disabled, an ALJ is required to employ a five-step
2 sequential analysis. See 20 C.F.R. § 404.1520(a)(1) (disability insurance benefits); id. at §
3 416.920(a)(4) (same standard for supplemental security income). The claimant bears the burden
4 of proof at steps one through four. Ford v. Saul, 950 F.3d 1141, 1148 (9th Cir. 2020) (citation
5 omitted).
6 At step one, the ALJ must determine if the claimant is presently engaged in a “substantial
7 gainful activity,” defined as “work done for pay or profit that involves significant mental or
8 physical activities.” Id. (quoting 20 C.F.R. § 404.1520(a)(4)(i)) (cleaned up). Here, the ALJ
9 determined Plaintiff had not performed substantial gainful activity since September 30, 2021, the
10 protective application date. AR 19.
11 At step two, the ALJ decides whether the claimant’s impairment or combination of
12 impairments is “severe,” meaning “that it significantly limits the claimant’s ‘physical or mental
13 ability to do basic work activities.’” Ford, 950 F.3d at 1148 (quoting 20 C.F.R. §§
14 404.1520(a)(4)(ii), 404.1522(a)). If no severe impairment is found, the claimant is not disabled.
15 20 C.F.R. § 404.1520(c). Here, the ALJ determined Plaintiff had the following severe
16 impairments: “a severe polysubstance use disorder (cocaine, methamphetamine, heroin) (20
17 C.F.R. § 416.920(c)).” AR 19.
18 At step three, the ALJ evaluates whether the claimant has an impairment or combination of
19 impairments that meets or equals an impairment in the “Listing of Impairments” (referred to as the
20 “listings”). See 20 C.F.R. § 404.1520(a)(4)(iii); id. at Pt. 404 Subpt. P, App. 1. The listings
21 describe impairments that are considered “to be severe enough to prevent an individual from doing
22 any gainful activity.” Id. at § 404.1525(a). Each impairment is described in terms of “the
23 objective medical and other findings needed to satisfy the criteria of that listing.” Id. at §
24 404.1525(c)(3). “For a claimant to show that his impairment matches a listing, it must meet all of
25 the specified medical criteria. An impairment that manifests only some of those criteria, no matter
26 how severely, does not qualify.” Sullivan v. Zebley, 493 U.S. 521, 530 (1990) (emphasis in
27 original) (footnote omitted). If a claimant’s impairment either meets the listed criteria for the
1 be disabled, without considering age, education and work experience. 20 C.F.R. § 404.1520(d).
2 Here, the ALJ determined Plaintiff did not have an impairment or combination of impairments that
3 meets the listings. AR 20.
4 If the claimant does not meet or equal a listing, the ALJ proceeds to step four and assesses
5 the claimant’s residual functional capacity (RFC), defined as the most the claimant can still do
6 despite their imitations (20 C.F.R. § 404.1545(a)(1)), and determines whether they are able to
7 perform past relevant work, defined as “work that [the claimant has] done within the past five
8 years, that was substantial gainful activity, and that lasted long enough for [the claimant] to learn
9 to do it.” 20 C.F.R. § 404.1560(b)(1)(i). If the ALJ determines, based on the RFC, that the
10 claimant can perform past relevant work, the claimant is not disabled. Id. at § 404.1520(f). Here,
11 the ALJ determined Plaintiff has no past relevant work. AR 25. The ALJ determined Plaintiff has
12 the RFC “to perform a full range of work at all exertional levels but with the following
13 nonexertional limitations: the claimant is limited to performing simple, routine tasks, and making
14 only simple work-related decisions.” AR 22. The ALJ determined “[t]ransferability of job skills
15 is not an issue because the claimant does not have past relevant work.” AR 25.
16 At step five, the burden shifts to the agency to prove that “‘the claimant can perform a
17 significant number of other jobs in the national economy.’” Ford, 950 F.3d at 1149 (quoting
18 Thomas v. Barnhart, 278 F.3d 947, 955 (9th Cir. 2002)). To meet this burden, the ALJ may rely
19 on the Medical-Vocational Guidelines (commonly known as “the grids”), 20 C.F.R. Pt. 404 Subpt.
20 P, App. 2,4 or on the testimony of a vocational expert. Ford, 950 F.3d at 1149 (citation omitted).
21 “[A] vocational expert or specialist may offer expert opinion testimony in response to a
22 hypothetical question about whether a person with the physical and mental limitations imposed by
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4 The grids “present, in table form, a short-hand method for determining the availability and
numbers of suitable jobs for a claimant.” Lounsburry v. Barnhart, 468 F.3d 1111, 1114–15 (9th
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Cir. 2006) (citing Tackett v. Apfel, 180 F.3d 1094, 1101 (9th Cir. 1999)). They consist of three
tables, for sedentary work, light work, and medium work, and a claimant’s place on the applicable
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table depends on a matrix of four factors: a claimant’s age, education, previous work experience,
and physical ability. Id. “For each combination of these factors, [the grids] direct a finding of
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either ‘disabled’ or ‘not disabled’ based on the number of jobs in the national economy in that
1 the claimant’s medical impairment(s) can meet the demands of the claimant’s previous work,
2 either as the claimant actually performed it or as generally performed in the national economy.”
3 20 C.F.R. § 404.1560(b)(2). An ALJ may also use other resources such as the Dictionary of
4 Occupational Titles (DOT).5 Id. Here, the ALJ determined that there were jobs that exist in
5 significant numbers in the national economy that Plaintiff could perform, including kitchen helper
6 (DOT 318.687-010), laundry worker II (DOT 361.685-018), and stores laborer warehouse (DOT
7 922.687-058). AR 26. As such, the ALJ determined Plaintiff was not disabled. AR 27.
8 B. Severity of Plaintiff’s Mental Impairment
9 Plaintiff argues that “the ALJ’s step two severity finding that Plaintiff has no severe mental
10 impairment is not based on substantial evidence” because (1) the “ALJ cites no evidence in
11 support of his finding that Plaintiff has no severe mental impairment”; and (2) the “ALJ otherwise
12 ignores all evidence that Plaintiff does have a severe mental impairment.” Pl.’s Mot. at 7–9
13 (emphasis in original).
14 1. Legal Standard
15 At step two of a Social Security disability inquiry, “the ALJ assesses whether the claimant
16 has a medically severe impairment or combination of impairments that significantly limits his
17 ability to do basic work activities.” Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (citing
18 20 C.F.R. § 404.1520(a)(4)(ii)). “[A]n impairment or combination of impairments may be found
19 not medically severe only if the evidence establishes a slight abnormality that has no more than
20 minimal effect on an individual’s ability to work.” Id. (emphasis in original) (cleaned up). This
21 evaluation at step two is a de minimis test intended to “to dispose of groundless claims.” Smolen
22 v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). Under this standard, an ALJ may find that a
23 claimant lacks a medically severe impairment or combination of impairments only if his
24 conclusion is “clearly established by medical evidence.” Webb, 433 F.3d at 687 (quoting Titles II
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5 The DOT classifies jobs by their exertional and skill requirements. See 20 C.F.R. §
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404.1566(d)(1); Wischmann v. Kijakazi, 68 F.4th 498, 502 (9th Cir. 2023) (“Although criticized as
having many outdated job descriptions, the DOT is typically the starting point for VEs to identify
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the occupations relevant for each claimant’s residual functional capacities.”) (cleaned up); Pinto v.
1 & XVI: Med. Impairments That Are Not Severe, SSR 85-28 (S.S.A. 1985)). The burden of
2 proving that an impairment is severe rests with the claimant. Tidwell v. Apfel, 161 F.3d 599, 601
3 (9th Cir. 1999); see Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987) (noting the claimant bears the
4 burden of showing “at step two that he has a medically severe impairment or combination of
5 impairments”).
6 For mental impairments, “the reviewer must determine whether an applicant has a
7 medically determinable mental impairment, rate the degree of functional limitation for four
8 functional areas, determine the severity of the mental impairment (in part based on the degree of
9 functional limitation), and then, if the impairment is severe, proceed to step three of the disability
10 analysis to determine if the impairment meets or equals a specific listed mental disorder.” Keyser
11 v. Comm’r Soc. Sec. Admin., 648 F.3d 721, 725 (9th Cir. 2011) (citing 20 C.F.R. §§ 404.1520a(b),
12 (c)(1) – (2)) (cleaned up). The four functional areas that must be rated are: (1) understand,
13 remember, or apply information; (2) interact with others; (3) concentrate, persist, or maintain pace;
14 and (4) adapt or manage oneself. 20 C.F.R. § 404.1520a(c)(3).
15 2. Analysis
16 In determining whether an impairment is severe, an ALJ must engage in “a careful
17 evaluation of the medical findings which describe the impairment(s) and an informed judgment
18 about its (their) limiting effects on the individual’s physical and mental ability(ies) to perform
19 basic work activities[.]”6 SSR 85-28. A medically determinable impairment “must be established
20 by objective medical evidence from an acceptable medical source.” 20 C.F.R. § 404.1521.
21 Here, Plaintiff states that she became unable to work in January 2011, due to “bipolar,
22 schizophrenia, anxiety, and depression.” AR 224. The ALJ found that Plaintiff’s
23 allegations [sic] psychological impairments, including schizophrenia,
bipolar, anxiety, and depression (1E/2), are not severe impairments
24 because there also is no probative evidence that these impairments
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6 Basic work activities are defined as the abilities and aptitudes necessary to do most jobs, such as:
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(1) walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling; (2) seeing,
hearing, and speaking; (3) understanding, carrying out, and remembering simple instructions; (4)
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use of judgment; (5) responding appropriately to supervision, co-workers and usual work
more than minimally affect the [Plaintiff’s] ability to perform basic
1 work functions, or that they have caused limitations for a continuous
period of twelve months or more.
2
3 AR 19.
4 Plaintiff argues that because the Commissioner “ignores Plaintiff’s argument that the ALJ
5 failed to cite to any specific medical evidence in support of the ALJ’s finding that Plaintiff’s
6 mental illness is not severe,” the Commissioner has waived the argument. Pl.’s Reply at 2. The
7 Court agrees.
8 The Commissioner waives—and thus concedes—an argument by failing to respond to a
9 plaintiff’s argument put forth in the plaintiff’s motion. See Stanley v. O’Malley, No. 24-cv-08776-
10 RS, 2025 WL 2263832, at *4 (N.D. Cal. Aug. 7, 2025) ( “In failing to respond to the merits of
11 Plaintiff’s claims, the Commissioner has waived those issues.”); Lloyd B. v. O’Malley, No. 23-cv-
12 05010-DMR, 2024 WL 4557333, at *4 (N.D. Cal. Oct. 22, 2024) (“The Commissioner does not
13 respond to this argument in his motion and thus concedes it.”); Arik v. Astrue, No. C-08-5564-
14 SBA, 2010 WL 2557493, at *3 (N.D. Cal. June 21, 2010) (“[T]he Commissioner waived this
15 argument by failing to raise it in his opposition to Plaintiff’s motion for summary judgment.”);
16 Jenna R. v. Comm’r Soc. Sec. Admin., No. 6:24-cv-01221-AR, 2025 WL 1144751, at *3 (D. Or.
17 Apr. 18, 2025) (“As this court previously has concluded, the Commissioner’s failure to respond to
18 a claimant’s arguments constitutes a waiver.”). Upon the Commissioner’s waiver, a court should
19 conclude that the ALJ erred in areas identified by a plaintiff for which the Commissioner fails to
20 respond. Krista B. v. Comm’r, Soc. Sec. Admin., No. 3:20-cv-01822-HL, 2021 WL 5235969, at *4
21 (D. Or. Nov. 10, 2021). This waiver rule is grounded in fairness—a claimant should not be forced
22 to relitigate issues that the Commissioner declines to independently review and assess. Id.; see
23 also Jenna R., 2025 WL 1144751, at *4 (“By refusing to undertake an analysis of plaintiff’s
24 arguments, and agreeing only to remand for additional proceedings, the Commissioner seeks a
25 mulligan or ‘do over.’”).
26 The Commissioner contends that the “medical records supported the ALJ’s step two
27 determination.” Def.’s Mot. at 3. However, the Court may only affirm the ALJ’s finding based
1 reasoning. See Sec. & Exch. Comm’n v. Chenery Corp., 332 U.S. 194, 196 (1947) (“[A]
2 reviewing court, in dealing with a determination or judgment which an administrative agency
3 alone is authorized to make, must judge the propriety of such action solely by the grounds invoked
4 by the agency.”). And the Commissioner fails to respond to Plaintiff’s argument that the ALJ’s
5 step two analysis is devoid of any reference to Plaintiff’s medical evidence. See id. at 1–7; Pl.’s
6 Mot. at 7–9. Therefore, the Court finds that the Commissioner waived this argument. See Dwight
7 F. v. O’Malley, No. 22-cv-07218-DMR, 2024 WL 3580823, at *3 (N.D. Cal. July 29, 2024)
8 (“With respect to Plaintiff's argument that the ALJ erred in finding his mental impairments non-
9 severe, the court finds that the Commissioner failed to respond to the argument and thus concedes
10 it.”). As such, the Court finds that the ALJ erred at step two in concluding that Plaintiff’s mental
11 impairments are not severe. This error was not harmless because the ALJ’s decision makes clear
12 that all of the non-exertional limits he included in Plaintiff’s RFC were for her polysubstance use
13 disorder. See AR 25 (“[T]he effects of the claimant’s polysubstance use disorder limit her to
14 performing simple, routine, work with only simple work-related decisions, at all exertional
15 levels.”); cf. S.W. v. O’Malley, No. 24-cv-00248-SVK, 2024 WL 3580825, at *4 (N.D. Cal. July
16 30, 2024).
17 C. Subjective Complaints
18 Plaintiff argues that the ALJ fails to provide specific, clear and convincing reasons for
19 rejecting the entirety of Plaintiff’s testimony as unpersuasive because (1) “the ALJ failed to
20 identify any specific testimony of Plaintiff as unsupported by or inconsistent with the record”; (2)
21 “Plaintiff’s lack of treatment is not a valid basis to discount a Plaintiff’s credibility”; and (3)
22 “contrary to the ALJ’s claim, the medical evidence does indeed include medical diagnoses
23 indicating Plaintiff suffers from bipolar disorder and schizophrenia.” Pl.’s Mot. at 9–15.
24 1. Legal Standard
25 The Ninth Circuit has established a two-step analysis for determining the extent to which a
26 claimant’s symptom testimony must be credited:
27 First, the ALJ must determine whether the claimant has presented
alleged. In this analysis, the claimant is not required to show that her
1 impairment could reasonably be expected to cause the severity of the
symptom she has alleged; she need only show that it could reasonably
2 have caused some degree of the symptom. Nor must a claimant
produce objective medical evidence of the pain or fatigue itself, or the
3 severity thereof.
4 If the claimant satisfies the first step of this analysis, and there is no
evidence of malingering, the ALJ can reject the claimant’s testimony
5 about the severity of her symptoms only by offering specific, clear
and convincing reasons for doing so. This is not an easy requirement
6 to meet: The clear and convincing standard is the most demanding
required in Social Security cases.
7
8 Garrison, 759 F.3d at 1014–15 (emphasis in original) (cleaned up). Under this standard, “the ALJ
9 must identify what testimony is not credible and what evidence undermines the claimant’s
10 complaints.” Berry v. Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010) (cleaned up). “In other words,
11 to reject the specific portions of the claimant’s testimony that the ALJ has found not to be
12 credible, we require that the ALJ provide clear and convincing reasons relevant to that portion.”
13 Smith v. Kijakazi, 14 F.4th 1108, 1113 (9th Cir. 2021); see also Lambert v. Saul, 980 F.3d 1266,
14 1268 (9th Cir. 2020) (“[T]he ALJ must identify the specific testimony that he discredited and
15 explain the evidence undermining it.”).
16 2. Analysis
17 Here, Plaintiff testified that she is homeless; she prefers to isolate from everyone; she has
18 suffered from anxiety and depression consistently since age 10 or 11; she speaks to people in a
19 rude or disrespectful way, but this should be okay because of freedom of speech; she does not do
20 anything for herself but instead relies on her sister to do everything for her; she does not like to go
21 places where there are too many people; she gets into physical fights “every day” but had not had
22 a fight in “like two weeks”; she usually starts fights with other people, both those she knows and
23 strangers; and she fights with other people whether she is sober or on drugs. AR 41–54, 62–64.
24 The ALJ summarized Plaintiff’s testimony as follows:
25 At the hearing, the claimant testified that she uses/has used crack
cocaine, heroin, and crystal methamphetamine. At the time of the
26 hearing, claimant stated that she has not used crack cocaine for about
a year and had not used heroin or crystal methamphetamine for about
27 a month-and-a-half. The claimant testified that she was prescribed
taking medication, she still experienced depression and anxiety. Her
1 depression and anxiety began when she was very young. She testified
that she has anger issues and has difficulty getting along with other
2 people. The claimant testified that she has difficulty paying attention
and often needs things repeated or demonstrated to her.
3
4 AR 22. The ALJ rejected Plaintiff’s testimony because
5 [Plaintiff] has not generally sought treatment for her alleged mental
impairments, and the medical evidence for the relevant time period
6 does not contain diagnoses, let alone clinical and objective findings,
which demonstrate that [Plaintiff] suffers from a disabling mental
7 condition(s).
8 AR 23.
9 The ALJ found that Plaintiff’s “medically determinable impairment could reasonably be
10 expected to cause the alleged symptoms,” but did not make any findings that Plaintiff was
11 malingering. See AR 22–23. Thus, to find Plaintiff’s testimony not credible, the ALJ was
12 required to “mak[e] specific findings as to credibility and stat[e] clear and convincing reasons for
13 each.” Robbins v. Social Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006).
14 Plaintiff argues that the Commissioner’s failure to respond to Plaintiff’s argument “that the
15 ALJ failed to specifically identify Plaintiff’s testimony deemed unpersuasive as required by the
16 Ninth Circuit” constitutes waiver. Pl.’s Reply at 4. The Court agrees. While the Commissioner
17 asserts that the Court should uphold the ALJ’s determination to discount Plaintiff’s testimony
18 because the “ALJ considered the entirety of Plaintiff’s medical records and other evidence in
19 assessing her subjective symptom testimony,” the Commissioner does not respond to Plaintiff’s
20 argument that the ALJ failed to identify what testimony was not credible. Def.’s Mot. at 8–14; cf.
21 Jenna R., 2025 WL 1144751, at *3 (“Although the Commissioner identifies what it characterizes
22 as specific inconsistencies in plaintiff’s testimony, it nowhere argues that the ALJ’s rationale for
23 discounting her testimony is clear and convincing, or grapples with plaintiff’s arguments about
24 why the ALJ’s reasoning fell short.”). Tellingly, the Commissioner does not engage with
25 Plaintiff’s cited authority from the Ninth Circuit requiring an ALJ to identify specific testimony
26 and specific evidence undermining that testimony. See Def.’s Mot. at 8–14; Pl.’s Mot. at 9–10.
27 Therefore, the Court finds that the Commissioner waived this argument. See, e.g., Lloyd B., 2024
1 concedes it.”). As such, the Court finds that the ALJ erred in failing to identify specific portions
2 of Plaintiff’s testimony that he found not credible. See Berry, 622 F.3d at 1234 (requiring the ALJ
3 to “identify what testimony is not credible”); Smith, 14 F.4th at 1113 (requiring the ALJ to provide
4 clear and convincing reasons for “reject[ing] the specific portions of the claimant’s testimony that
5 the ALJ has found not to be credible”); Lambert, 980 F.3d at 1277 (holding ALJ erred where she
6 “never identified which testimony she found not credible, and never explained which evidence
7 contradicted that testimony”) (emphasis in original).
8 Accordingly, it is undisputed that the ALJ failed to provide clear and convincing reasons
9 for discounting Plaintiff’s subjective symptoms. As discussed further below, this error was not
10 harmless because it impacted the ALJ’s determination that Plaintiff could perform jobs in the
11 national economy.
12 D. Medical Opinions
13 Plaintiff argues that the ALJ’s persuasiveness finding regarding the opinion of Dr. Catlin is
14 not supported by substantial evidence because (1) “the ALJ fails to cite any evidence that
15 contradicts Dr. Catlin’s opinion”; (2) “lack of treatment is not a valid reason to discredit the Catlin
16 opinion”; (3) “the ability to undergo a psychological evaluation is not dispositive of marked
17 impairment in interacting with others”; (4) “Dr. Catlin’s cognitive testing is not dispositive of
18 marked limitations”; (5) “the ALJ’s claim that Dr. Catlin did not explain her findings is false”; (6)
19 “seeking emergency care is not a valid reason to reject Dr. Catlin’s opinion”; (7) “the ALJ’s claim
20 that Dr. Catlin relied heavily on Plaintiff’s subjective complaints is false”; and (8) “the 12-month
21 durational requirement, substance use and pregnancy care are not legitimate reasons to discount
22 Dr. Catlin’s opinion.” Pl.’s Mot. at 15–23.
23 1. Legal Standard
24 For Social Security claims filed after March 27, 2017, the ALJ is required to assess the
25 persuasiveness of medical opinions in the record using the regulations outlined in 20 C.F.R. §§
26 404.1520c and 416.920c. See Woods, 32 F.4th at 791–93 (embracing the Commissioner’s new
27 regulatory framework for evaluating medical opinions). Under these new regulations, the ALJ is
1 claimant, (4) specialization, and (5) other facts including but not limited to a medical source’s
2 familiarity with the other evidence in the claim or an understanding of the disability program’s
3 policies and evidentiary requirements. See 20 C.F.R. §§ 404.1520c(c)(1) – (5), 416.920c(c)(1) –
4 (5). Of these five, the ALJ must address supportability and consistency in each assessment and
5 may, but is not required to, explain how they considered the remaining three factors. See id. at §§
6 404.1520c(b)(2), 416.920c(b)(2).
7 “Supportability means the extent to which a medical source supports the medical opinion
8 by explaining the relevant objective medical evidence.” Woods, 32 F.4th at 791–92 (cleaned up);
9 see 20 C.F.R. §§ 404.1520c(c)(1), 416.920c(c)(1) (“The more relevant the objective medical
10 evidence and supporting explanations presented by a medical source are to support his or her
11 medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical
12 opinions or prior administrative medical finding(s) will be.”). “Consistency means the extent to
13 which a medical opinion is consistent with the evidence from other medical sources and
14 nonmedical sources in the claim.” Woods, 32 F.4th at 792 (cleaned up); see 20 C.F.R. §§
15 404.1520c(c)(2), 416.920c(c)(2) (“The more consistent a medical opinion(s) or prior
administrative medical finding(s) is with the evidence from other medical sources and nonmedical
16
sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical
17
finding(s) will be.”).
18
The new regulations replace the former hierarchy of medical opinions and no longer
19
require the ALJ to give greater weight to the medical opinions of treating physicians. Woods, 32
20
F.4th at 787; see 20 C.F.R. §§ 404.1520c(a), 416.920c(a) (“We will not defer or give any specific
21
evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative
22
medical finding(s), including those from your medical sources.”). Now, the ALJ is free to
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consider the medical opinions equally and may find an opinion more persuasive than others
24
provided that substantial evidence supports such a finding. Woods, 32 F.4th at 787. Substantial
25
evidence will be found when there is “such relevant evidence as a reasonable mind might accept as
26
adequate to support a conclusion.” Biestek, 587 U.S. at 103. When rejecting a medical opinion as
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1 substantial evidence. Woods, 32 F.4th at 792. If the ALJ does so, then a court may not overturn
2 the ALJ’s decision “unless it is either not supported by substantial evidence or is based upon legal
3 error.” Luther v. Berryhill, 891 F.3d 872, 875 (9th Cir. 2018).
4 2. Analysis
5 Here, Dr. Catlin performed the following during her evaluation of Plaintiff: review of
6 Plaintiff’s Highland Hospital medical records from 2015–2023; clinical interview; mental status
7 examination; Montreal Cognitive Assessment; Beck Depression Inventory; PCL-5 PTSD checklist
8 for DSM-5. AR 1503. Based on her assessment, Dr. Catlin offered the following diagnoses for
9 Plaintiff: major depressive disorder (recurrent, severe); PTSD; mild cognitive impairment; opioid
10 use disorder (remission unknown); stimulant use disorder (moderate); alcohol use disorder;
11 substance induced bipolar and related disorder. AR 1507–08. Dr. Catlin opined that Plaintiff has
12 mostly marked limitations in all domains of functioning and that Plaintiff would be absent four or
13 more days per month and be off task more than 20% of the time. AR 1511–13. Dr. Catlin further
14 opined that Plaintiff’s “mental health condition and her impairments and inability to function in
15 the work place would still exist in even in the absence of her substance use disorder.” AR 1510.
16 Dr. Catlin explained that testing indicated “some impairment with [Plaintiff’s] cognitive
17 functioning” and “disturbances in memory and executive functioning.” Id. According to Dr.
18 Catlin, Plaintiff
19 will have great difficulty performing well and consistently in the work
place. [She] will have great difficulty understanding, remembering
20 and/or applying information given to her. [She] will have difficulty
getting along with coworkers, taking instruction from a manager or
21 supervisor, and difficulty working with the public. Her mental health
symptoms will make interacting with others very difficult. Her PTSD
22 and depressive symptoms prime her to be more irritable, emotionally
sensitive, and unable to navigate most social interaction in an
23 appropriate manner. Her paranoia and distrust of other people will
cause conflicts in the work setting.
24
25 Id.
26 The ALJ found the opinion of Dr. Catlin unpersuasive. AR 24. Regarding Dr. Catlin’s
27 opinion, the ALJ stated:
Dr. Catlin provided an extensive summary of the claimant’s
1 allegations regarding her mental health and performed a mental status
examination (MSE) and psychological testing at the request of the
2 claimant’s representative in support of claimant’s application for
benefits. As stated previously, based on her evaluation, Dr. Catlin
3 diagnosed the claimant with a major depressive disorder (MDD),
posttraumatic stress disorder (PTSD), a mild cognitive impairment,
4 substance use disorders, and a substance induced bipolar and related
disorder. (13F/2-7) Dr. Catlin also found mostly ‘marked’ (defined as
5 a seriously limited ability to function) limitations in all 4 categories
of the ‘B criteria’. (13F/10-12) However, I find Dr. Catlin’s
6 assessment of such significant limitations to be an underestimate of
the claimant’s overall functionality, inconsistent with the claimant’s
7 lack of treatment, as well as internally inconsistent with many of Dr.
Catlin’s own observations. For example, Dr. Catlin assessed that the
8 claimant has a ‘marked’ limitation in her ability to ‘initiate or sustain
a conversation’ and to ‘[u]understand and respond to social cues’
9 (13F/11) despite noting that the claimant was ‘engaged in the
evaluation and able to sustain her attention’ with clear, coherent,
10 spontaneous, and 100% intelligible speech (13F/4). On MSE, the
claimant appeared depressed and anxious, with limited insight and
11 judgment; however, the remainder of the MSE was generally normal.
(13F/4)
12
Moreover, many of the categories for which Dr. Catlin assessed
13 ‘marked’ limitations, for example ‘[d]escrib[ing] work activity to
someone else’ ‘[r]ecogniz[ing] a mistake and correcting it’,
14 [i]dentify[ing] and solving problems’, ‘[a]sk[ing] for help when
needed’, etc., were simply not reflected in testing or well-supported
15 by explanation in Dr. Catlin’s ultimate assessment narrative.
Additionally, in some of the instances summarized herein, claimant
16 demonstrated her ability to ask for help by seeking emergency care.
Thus, Dr. Catlin’s, mostly conclusory findings (13F/7-13) appear to
17 rely heavily on the claimant’s subjective complaints of severe
symptomology, which is not reflected in the record on the whole.
18 Furthermore, even if some marked limitations of function were
supported on the day of the exam, the totality of the medical evidence
19 does not indicate that such marked limitations lasted for 12 months,
or that they were not significantly affected by current substance use.
20 Dr. Catlin noted that the claimant ‘admitted she is still using alcohol
and methamphetamine.’ (13F/4) In short, I find Dr. Catlin’s opinion
21 based on her brief, onetime assessment of the claimant to be
unpersuasive. Quite tellingly, despite Dr. Catlin finding so many
22 marked limitations, medical providers treating the claimant have only
generally counseled on the effects of drug use on prenatal and
23 postpartum care—without much with regard to other mental health
disorders.
24
25 AR 24–25 (alterations in original).
26 Overall, Plaintiff argues that the ALJ failed to articulate the required factors of
27 supportability and consistency because “the ALJ did not explain any relevant objective medical
1 (“[T]he ALJ fails to cite even one page out of 1,153 possible pages of medical evidence (CAR
2 363–1515) as supporting evidence for any of the ALJ’s proffered reasons for rejecting the opinion
3 of Dr. Catlin.”). The Commissioner responds that the ALJ’s reasoning that Dr. Catlin’s opinion
4 was inconsistent with the “totality of the medical evidence” is supported by the ALJ’s discussion
5 of and citation to several medical records. Def.’s Mot. at 15 (asserting that the ALJ (at AR 25)
6 cites to AR 832, 861, 977, 979, 982, 984, 986, 1107, 1145, 1362, 1458, and 1467).7 The problem
7 with this argument—as identified by Plaintiff—is that “the ALJ did not cite to any page of the
8 record as inconsistent with the opinion of Dr. Catlin.” Pl.’s Reply at 7. Therefore, the Court
9 agrees with Plaintiff that the ALJ erred in evaluating Dr. Catlin’s opinion because the ALJ failed
10 to address the consistency factor. See Thomas S. v. Comm’r of Soc. Sec., No. C21-05213-MAT,
11 2022 WL 268844, at *4 (W.D. Wash. Jan. 28, 2022) (finding error where “the ALJ failed to
12 address whether [doctor’s] opinion is more or less consistent ‘with the evidence from other
13 medical sources and nonmedical sources in the claim’ and why [doctor’s] opinion was more or
14 less persuasive pursuant to the consistency factor”); cf. Jalissa P. v. Bisignano, No. 24-cv-06465-
15 SI, 2025 WL 2682578, at *8 (N.D. Cal. Sept. 19, 2025) (“Under the regulations, it was error for
16 the ALJ not to address the supportability factor.”). Indeed, the medical evidence in the record
17 indicates that multiple clinicians documented that Plaintiff was diagnosed with mental health
18 disorders immediately before or during the relevant time period, consistent with Dr. Catlin’s
19 findings. See AR 705, 956–58, 964, 1419, 1457, 1466, 1508. But the ALJ does not address this
20 evidence. And none of the other medical opinions or prior administrative findings are inconsistent
21 with Dr. Catlin’s opinion; these opinions merely state that there is insufficient evidence to evaluate
22 Plaintiff’s mental health impairments. See AR 68–95. Importantly, the ALJ does not address the
23 additional evidence gathered by Dr. Catlin’s clinical assessment, cognitive testing, psychological
24 inventories, and mental status examination and how that evidence was not available to the other
25
7 Even had the ALJ cited to these pages in the record, it is unclear how they would support the
26
ALJ’s finding that Dr. Catlin’s opinion was unpersuasive for lack of consistency. None of these
medical records indicate that Plaintiff does not have a mental health condition; thus, none are
27
inconsistent with Dr. Catlin’s opinion. In fact, one of the records lists “bipolar disorder” as one of
1 clinicians who offered opinions regarding Plaintiff’s mental health conditions.
2 Accordingly, the Court concludes that the ALJ erred in his consideration of Dr. Catlin’s
3 opinion and in his articulation of the medical evidence in the record. As discussed further below,
4 this error was not harmless because it impacted the ALJ’s determination that Plaintiff could
5 perform jobs in the national economy.
6 E. Remedy
7 The remaining question is whether to remand for further administrative proceedings or for
8 the immediate payment of benefits. See G.P. v. Dudek, No. 24-cv-00088-VKD, 2025 WL 945813,
9 at *4 (N.D. Cal. Mar. 28, 2025) (“If the Court determines that there has been reversible legal error,
10 the Court must then decide whether to remand for further proceedings or for an automatic award
11 of benefits.”). The Social Security Act permits courts to enter a judgment “affirming, modifying,
12 or reversing the decision of the Commissioner of Social Security, with or without remanding the
13 cause for a rehearing.” 42 U.S.C. § 405(g); see also Garrison, 759 F.3d at 1019 (“Accordingly,
14 every Court of Appeals has recognized that in appropriate circumstances courts are free to reverse
15 and remand a determination by the Commissioner with instructions to calculate and award
16 benefits.”). “[W]here the record has been developed fully and further administrative proceedings
17 would serve no useful purpose, the district court should remand for an immediate award of
18 benefits.” Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004).
19 “In determining whether to remand for benefits, the Ninth Circuit has devised a ‘three-part
20 credit-as-true standard.’” Dwight F., 2024 WL 3580823, at *2 (citing Garrison, 759 F.3d at
21 1020). Courts use the credit-as-true rule to take subjective symptom testimony or medical
22 opinion evidence “to be established as true.” Garrison, 759 F.3d at 1019–20. Under the
23 following tripart credit-as-true standard, each part must be satisfied for a court to remand to an
24 ALJ with instructions to calculate and award benefits:
25 (1) the record has been fully developed and further administrative
proceedings would serve no useful purpose;
26
(2) the ALJ has failed to provide legally sufficient reasons for
27 rejecting evidence, whether claimant testimony or medical opinion;
(3) if the improperly discredited evidence were credited as true, the
1 ALJ would be required to find the claimant disabled on remand.
2 Id. at 1020; see Trevizo v. Berryhill, 871 F.3d 664, 683 (9th Cir. 2017) (“We conclude that each of
3 the credit-as-true factors is satisfied and thus that remand for the calculation and award of benefits
4 is warranted.”).
5 However, “[r]emand for further proceedings is appropriate where there are outstanding
6 issues that must be resolved before a disability determination can be made, and it is not clear from
7 the record that the ALJ would be required to find the claimant disabled if all the evidence were
8 properly evaluated.” Luther, 891 F.3d at 877 (cleaned up). It is only “rare circumstances that
9 result in a direct award of benefits” and “only when the record clearly contradicted an ALJ’s
10 conclusory findings and no substantial evidence within the record supported the reasons provided
11 by the ALJ for denial of benefits.” Leon v. Berryhill, 880 F.3d 1041, 1047 (9th Cir. 2017).
12 Here, Plaintiff requests that the Court remand with instructions to award benefits pursuant
13 to 42 U.S.C. § 405(g). Pl.’s Mot. at 23. The Commissioner objects to the Court applying the
14 credit-as-true rule to Plaintiff’s testimony and to Dr. Catlin’s opinion, but “acknowledges that the
15 credit-as-true rule is part of this Circuit’s law[.]” Def.’s Mot. at 18 n.6. The Commissioner
16 further argues that an award for immediate benefits is not warranted because of “[t]he
17 inconsistency between Plaintiff’s subjective complaints and the overall evidence, including the
18 objective clinical findings, Plaintiff’s improvement with treatment, and her capacity to perform
19 daily activities[.]” Id. at 19.
20 The Court finds that remand for the calculation and award of benefits is warranted. Cf.
21 Jalissa P., 2025 WL 2682578, at *13–14 (remanding for an immediate award of benefits after
22 crediting as true plaintiff’s testimony and medical opinions). First, the record is extensive. It
23 contains hundreds of pages of medical records dating back over ten years and includes treatment
24 notes documenting several doctors’ visits addressing Plaintiff’s various medical and mental health
25 conditions immediately before or within the relevant time period. See AR 363–1515; cf. Trevizo,
26 871 F.3d at 683.8 The record also reflects Plaintiff’s testimony before the ALJ, her responses to
27
1 numerous questionnaires about her physical and mental limitations, and the medical opinion of an
2 examining clinician, all of which corroborate her impairments. See AR 38–64, 281–88, 1502–15;
3 cf. Trevizo, 871 F.3d at 683. Moreover, the Vocational Expert (VE) specifically opined regarding
4 the inability of an individual with Plaintiff’s psychological and intellectual limitations as described
5 by Plaintiff’s testimony and by Dr. Catlin to sustain work. See AR 64–65; cf. Trevizo, 871 F.3d at
6 683.
7 Second, as discussed, the ALJ failed to provide legally sufficient reasons for rejecting the
8 entirely of Plaintiff’s testimony and the medical opinion of Dr. Catlin. Thus, the Court credits the
9 evidence as true for this analysis. Cf. Benecke, 379 F.3d at 594 (“Because the ALJ failed to
10 provide legally sufficient reasons for rejecting Benecke’s testimony and her treating physicians’
11 opinions, we credit the evidence as true.”).
12 Finally, “[c]rediting the discredited testimony as true, there is no doubt as to plaintiff's
13 disability.” Jalissa P., 2025 WL 2682578, at *14. “The Ninth Circuit has consistently remanded
14 for an award of benefits in cases where a VE was posed a hypothetical that included the RFC that
15 a claimant would possess if improperly discredited opinions or testimony were taken as true.”
16 Tennille S. v. Kijakazi, No. 21-cv-09779-SI, 2023 WL 122396, at *13 (N.D. Cal. Jan. 6, 2023).
17 Such is the case here. If credited as true, Plaintiff’s testimony establishes that she is disabled
18 because the VE testified that someone with Plaintiff’s limitations would be unable to find full-time
19 work. See AR 22 (ALJ stating that Plaintiff “testified that she has difficulty paying attention and
20 often needs things repeated or demonstrated to her”), 62–64 (Plaintiff testifying that she gets into
21 physical fights every day, she has not been in a fight for two weeks, and she started a fight with a
22 stranger that past July), 64 (VE testifying that getting “into physical alterations with anybody at
23 the workplace . . . two times in the year” “would not be tolerated in competitive employment”),
24 64–65 (VE testifying that there would be “no jobs” for someone “unable to understand, remember
25 and carry out simple instructions”); cf. Stanley, 2025 WL 2263832, at *7 (“Had this evidence been
26
F.3d at 683; Pl.’s Mot. at 14 (“While the record does not contain the type of mental health
27
treatment records that someone with a stable home and health insurance might have, multiple
1 correctly weighed, the ALJ would have had to conclude, in keeping with the vocational expert’s
2 testimony, that there are not significant numbers of jobs in the national economy that Plaintiff can
3 perform.”). The same is true for Dr. Catlin’s opinion. See AR 1511–13 (Dr. Catlin opining that
4 Plaintiff has mostly marked limitations in all domains of functioning and that Plaintiff would be
5 absent four or more days per month and be off task more than 20% of the time); 64–65 (VE
6 testifying that there would be “no jobs” for someone “off task more than 15%” of the time, for
7 someone who “would miss more than two days of work per month,” and for someone “unable to
8 understand, remember and carry out simple instructions”).
9 Moreover, there is no “serious doubt” based on “an evaluation of the record as a whole”
10 that Plaintiff is, in fact, disabled. Garrison, 759 F.3d at 1021. Plaintiff has severe mental health
11 conditions that result in marked mental impairments, impaired cognitive functioning, an extensive
12 history of physical, emotional, and sexual trauma, and almost no job history at 38 years old. See
13 AR 1503–13; cf. Trevizo, 871 F.3d at 683. Therefore, the requirements of the Garrison test are
14 met.
15 Further, the “exceptional facts” of this case “counsel strongly in favor of remanding for
16 immediate payment of benefits.” Trevizo, 871 F.3d at 683 (citing Terry v. Sullivan, 903 F.2d
17 1273, 1280 (9th Cir. 1990)). Plaintiff has been homeless since she was a teenager, has
18 experienced depression and anxiety since she was a young child, was sexually abused as a
19 teenager, is not a high school graduate, had all six of her children removed from her care by child
20 protective services, first sought benefits more than four years ago, has extensive medical and
21 mental health needs requiring significant care, has lacked medical insurance for necessary
22 treatment, and had one job in her life for only a few days. See AR 25, 49, 223–46, 712, 1503–13;
23 cf. Trevizo, 871 F.3d at 683. “[F]urther delays at this point would be unduly burdensome.” Terry,
24 903 F.2d at 1280; cf. Vertigan v. Halter, 260 F.3d 1044, 1047, 1053 (9th Cir. 2001) (exercising
25 discretion to order payment of benefits where the claimant had applied for benefits five years
26 earlier, had only a high school education, and had no transferable work experience).
27 Accordingly, because Plaintiff satisfies the three-part credit-as-true analysis, and the Court
1 for an immediate award of benefits.
2 VI. CONCLUSION
3 For the reasons stated above, the Court GRANTS Plaintiff’s motion, DENIES
4 Defendant’s cross-motion, and REVERSES the ALJ’s decision. This matter is REMANDED for
5 an award of disability benefits. The Court shall enter a separate judgment, after which the Clerk
6 of Court shall terminate the case.
7 IT ISSO ORDERED.
8
9 || Dated: February 3, 2026
THOMAS S. HIXSON
1 United States Magistrate Judge
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