Tayag

1

2

3 UNITED STATES DISTRICT COURT

4 NORTHERN DISTRICT OF CALIFORNIA

5 SAN JOSE DIVISION

6

7 ARTHUR TAYAG, Case No. 25-cv-06785-BLF

8 Plaintiff,

ORDER GRANTING MOTION FOR

9 v. SUMMARY JUDGMENT

10 COMMISSIONER OF SOCIAL [Re: ECF No. 13]

SECURITY,

11

Defendant.

12

13 Plaintiff Arthur Tayag appeals a final decision of Defendant Commissioner of Social

14 Security (“Commissioner”) denying his application for disability insurance benefits under Title II

15 of the Social Security Act (“Act”), 42 U.S.C. § 423 et seq. ECF No. 13; see also ECF No. 13-1

16 (“Mot.”), 19 (“Reply”). Plaintiff asks the Court to reverse the Commissioner’s decision and

17 remand for payment of benefits or, alternatively, to remand for further administrative proceedings.

18 The Commissioner filed an opposition. ECF No. 15 (“Opp.”). The matter has been submitted

19 without oral argument, pursuant to Civil Local Rule 16-5. For the reasons discussed below, the

20 Court GRANTS Plaintiff’s motion.

21 I. BACKGROUND

22 A. Factual Background

23 Plaintiff was born on December 21, 1984. Administrative Record (“AR”) 173, ECF

24 No. 10. After completing high school and two years of college, Plaintiff served in the U.S. Navy

25 from April 26, 2007, to October 28, 2018. AR 35–36, 173. In 2014, Plaintiff suffered a traumatic

26 brain injury (“TBI”) caused by a rollover motor vehicle accident while on duty. AR 36, 39, 1260.

27 He was subsequently diagnosed with mild TBI, headaches, and convergence insufficiency;

1 and major depressive disorder, generalized anxiety, and attention deficit hyperactivity disorder.

2 AR 1651, 2382. Prior to the accident, Plaintiff worked as an air traffic controller. AR 36. After

3 the accident, he worked as a personnel service worker. AR 49.

4 Treatment notes in the record document Plaintiff’s ongoing depression and anxiety, with

5 variations in the intensity of these conditions. Plaintiff was prescribed Sertraline for his mood and

6 Adderall for his reported difficulty with focus. See, e.g., AR 1199–1200, 1204. In 2018, self-

7 reported tests indicated that Plaintiff’s depression was “severe,” including on September 19, 2018,

8 shortly before Plaintiff’s claimed disability onset date. AR 583–84; see also, e.g., AR 598

9 (“Mood: ‘anxious’”), 616 (“Mood: ‘depressed’”). On March 14, 2019, Veteran Affairs clinical

10 neuropsychologist Gary Miles, Ph.D., evaluated Plaintiff. AR 1260–64. Dr. Miles noted that

11 Plaintiff’s performance on the Minnesota Multiphasic Personality Inventory-2 (“MMPI-2”)

12 “revealed that he may have exaggerated existing symptoms,” and stated that the results would “be

13 interpreted with caution.” AR 1261. However, Dr. Miles’ other neuropsychological tests showed

14 that Plaintiff had “clinically significant anxiety and depression” and moderate and severe deficits

15 in several types of processing speed and immediate memory, and Dr. Miles concluded that “it is

16 likely that [Plaintiff’s] symptoms of depression and anxiety have a negative effect on his cognitive

17 performance.” AR 1262–63.

18 On June 27, 2019, speech pathologist Jeri C. Frakes, M.S., indicated that Plaintiff had

19 “[m]oderate-severe impairment in problem solving characterized by reduced deductive reasoning

20 and problem solving in less structured tasks” but had only “[m]ild-moderately reduced attention

21 (auditory and visual attention).” AR 1206. Similarly, on July 23, 2019, social worker Mark A.

22 Johnson indicated that testing classified Plaintiff’s depression as “moderate.” AR 1201–02. On

23 September 23, 2019, psychiatrist Ferda Sakman, M.D., diagnosed Plaintiff’s major depressive

24 disorder as being “in remission.” AR 1334; see also, e.g., AR 1443 (reflecting that Plaintiff’s

25 depression fell within the “moderate depression” category in 2020), 1620 (stating that Plaintiff

26 “sounded in good spirits”). However, by August 2, 2021, psychiatrist Shaili Jain, M.D., reported

27 that Plaintiff’s mood was “depressed,” affect was “anxious,” motivation and concentration were

1 AR 2435.

2 B. Procedural Background

3 On May 22, 2019, Plaintiff filed an application for disability insurance benefits under Title

4 II of the Act, alleging disability beginning on October 29, 2018. AR 173. An Administrative Law

5 Judge (“ALJ”) heard Plaintiff’s case on July 27, 2021, and issued a decision denying Plaintiff’s

6 application on August 4, 2021. See AR 12–24. Plaintiff appealed this decision to the U.S. District

7 Court for the Northern District of California, arguing that the ALJ erred by concluding that his

8 major depressive disorder and generalized anxiety disorder were non-severe at step two and by

9 discounting his subjective testimony as to the severity of these conditions in assessing his residual

10 functional capacity (“RFC”). See AR 1774–75. The district court affirmed the ALJ’s decision.

11 AR 1776–82. Plaintiff then appealed to the Ninth Circuit. AR 1784. On joint motion to vacate

12 and remand, the Ninth Circuit vacated the district court’s judgment and remanded the case for

13 further administrative proceedings. AR 1788; see also AR 1789–91.

14 On October 16, 2024, the Appeals Council vacated the Commissioner’s final decision and

15 remanded the case to an ALJ “for resolution of” an enumerated list of “issues,” including: (1) the

16 “other neuropsychological tests [conducted by Dr. Miles] that showed moderate deficits in

17 processing speed and immediate memory” and Dr. Miles’ conclusion that Plaintiff’s “clinically

18 significant anxiety and depression . . . likely ha[d] a negative effect on [his] cognitive domains

19 including [] processing speed [and] concentration”; (2) the “Veterans Affairs’ treatment and

20 examination record . . . document[ing] years of ongoing objective support for Claimant’s

21 allegations”; and (3) “statements from the claimant’s wife and his former supervisor [that] appear

22 to corroborate the claimant’s symptom reporting.” AR 1798–99.

23 A second administrative hearing was held telephonically on April 16, 2025. AR 1716–50.

24 At the hearing, Plaintiff requested a closed period of disability through May 4, 2022, because he

25 had returned to work thereafter as a maintenance worker. AR 1722, 1725. When asked by the

26 ALJ, Plaintiff denied that he was able to return to work because of improvements to his mental

27 health or other medical conditions. AR 1726. The ALJ then asked if Plaintiff received any

1 explained that, at the request of his physician, he was excused from being on call for a month. Id.

2 Subsequently, Plaintiff testified that although he was not sure if he was treated differently from

3 other maintenance employees, a supervisor often accompanied him and assisted with physical

4 tasks, he often called for help if a supervisor was not with him, and that he frequently missed time

5 at work due to headaches. AR 1733, 1736–41.

6 C. The ALJ’s Decision

7 On May 21, 2025, the ALJ issued a second unfavorable decision finding Plaintiff not

8 disabled. AR 1645–70. At step one, the ALJ determined that Plaintiff did not engage in

9 substantial gainful activity prior to May 5, 2022, but that he did engage in such activity thereafter.

10 AR 1651. At step two, the ALJ found that Plaintiff had the following severe impairments:

11 traumatic brain injury with neurocognitive symptoms, headaches, and convergence insufficiency;

12 degenerative disc disease (thoracic and lumbar spine); osteoarthritis of the hand; psoriasis; major

13 depressive disorder; general anxiety disorder; and attention deficit hyperactivity disorder.

14 AR 1651. At step three, the ALJ determined that Plaintiff did not have an impairment or

15 combination of impairments that meets or medically equals the severity of one of the impairments

16 listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, to be considered disabled. AR 1655.

17 The ALJ then considered Plaintiff’s RFC under 20 C.F.R. 416.920(e). The ALJ found that

18 Plaintiff had the RFC to perform medium work as defined in 20 C.F.R. 404.1567(c) subject to

19 several limitations, including that Plaintiff “could understand, remember, and carry out simple

20 instructions.” AR 1657. In support of the RFC determination, the ALJ summarized Plaintiff’s

21 hearing testimony and the record as it pertained to both physical and mental limitations.

22 AR 1658–64. In particular, the ALJ focused on records indicating that Plaintiff’s mental health

23 improved in 2019. AR 1665–67. The ALJ also pointed to the fact that Plaintiff had “some

24 inconsistently good activities of daily living.” AR 1666. On these bases, the ALJ found that

25 Plaintiff’s statements regarding the intensity, persistence, and limiting effects of his symptoms

26 were inconsistent with the record and his activities of daily living. Additionally, the ALJ briefly

27 addressed written statements from Ma Ives Tayag, Plaintiff’s spouse, and Darlito Gacuya,

1 statements because they were provided in 2018, before any apparent improvement occurred.

2 AR 1667. Finally, the ALJ discussed the examinations by Dr. Miles and Ms. Frakes and

3 discounted portions of their medical opinions. AR 1667–68.

4 At step five, in consideration of Plaintiff’s age, education, work experience, and RFC, the

5 ALJ determined that there are jobs that exist in significant numbers in the national economy that

6 Plaintiff can perform, including cleaner II, hand packager, and store laborer. AR 1669. This

7 conclusion was informed by the testimony of a vocational expert, who testified at Plaintiff’s

8 second hearing. Consequently, the ALJ found the Social Security Administration met its burden

9 in demonstrating that other work exists in significant numbers in the national economy that

10 Plaintiff can perform. AR 1669–70.

11 Based on these determinations, the ALJ concluded that Plaintiff has not been under a

12 disability from January 30, 2018, through the date of the ALJ’s decision. AR 1670.

13 II. LEGAL STANDARD

14 A. Standard of Review

15 Pursuant to 42 U.S.C. § 405(g), district courts “have power to enter, upon the pleadings

16 and transcript of the record, a judgment affirming, modifying, or reversing the decision of the

17 Commissioner of Social Security, with or without remanding the cause for a rehearing.” 42

18 U.S.C. § 405(g). However, “a federal court’s review of Social Security determinations is quite

19 limited.” Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015). Federal courts “leave it to

20 the ALJ to determine credibility, resolve conflicts in the testimony, and resolve ambiguities in the

21 record.” Id. (quoting Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir.

22 2014)).

23 A court “will disturb the Commissioner’s decision to deny benefits only if it is not

24 supported by substantial evidence or is based on legal error.” Brown-Hunter, 806 F.3d at 492

25 (internal quotation marks and citation omitted). “Substantial evidence is such relevant evidence as

26 a reasonable mind might accept as adequate to support a conclusion, and must be more than a

27 mere scintilla, but may be less than a preponderance.” Rounds v. Comm’r of Soc. Sec. Admin.,

1 “consider the entire record as a whole and may not affirm simply by isolating a specific quantum

2 of supporting evidence.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (citation

3 modified). If the evidence is susceptible to more than one rational interpretation, the ALJ’s

4 findings must be upheld if supported by reasonable inferences drawn from the record. See id.

5 Finally, even when an ALJ commits legal error, the ALJ’s decision will be upheld so long

6 as the error is harmless. See Brown-Hunter, 806 F.3d at 492. However, “[a] reviewing court may

7 not make independent findings based on the evidence before the ALJ to conclude that the ALJ’s

8 error was harmless.” Id. The court is “constrained to review the reasons the ALJ asserts.” Id.

9 (internal quotation marks and citation omitted).

10 B. Standard for Determining Disability

11 A claimant is considered “disabled” under the Act if he meets two requirements. See 42

12 U.S.C. § 423(d); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). First, the claimant must

13 demonstrate “an inability to engage in any substantial gainful activity by reason of any medically

14 determinable physical or mental impairment which can be expected to result in death or which has

15 lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C.

16 § 423(d)(1)(A). Second, the impairment or impairments must be severe enough that the claimant

17 is unable to do his previous work and cannot, based on his age, education, and work experience,

18 “engage in any other kind of substantial gainful work which exists in the national economy.” Id.

19 § 423(d)(2)(A).

20 To determine whether a claimant is disabled, an ALJ is required to employ a five-step

21 sequential analysis, examining: (1) whether the claimant is engaging in “substantial gainful

22 activity”; (2) whether the claimant has a “severe medically determinable physical or mental

23 impairment or combination of impairments that has lasted for more than 12 months”; (3) whether

24 the impairment “meets or equals” one of the listings in the regulations; (4) whether, given the

25 claimant’s RFC, she can still do her “past relevant work”; and (5) whether the claimant “can make

26 an adjustment to other work.” Ghanim v. Colvin, 763 F.3d 1154, 1160 (9th Cir. 2014); see 20

27 C.F.R. § 416.920(a)(4) (setting the evaluation standard required for review of Title XVI SSI

1 Ghanim, 763 F.3d at 1160 n.5. “The burden of proof is on the claimant at steps one through four,

2 but shifts to the Commissioner at step five.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219,

3 1222 (9th Cir. 2009).

4 III. DISCUSSION

5 Plaintiff argues that the ALJ’s RFC determination is not supported by substantial evidence

6 because the ALJ (A) improperly discounted medical opinion evidence; (B) improperly rejected

7 Plaintiff’s testimony; and (C) improperly rejected testimony from lay witnesses. Plaintiff also

8 argues that the ALJ erred by (D) asking the vocational expert incomplete hypothetical questions.

9 The Court addresses each challenge to the ALJ’s decision in turn.

10 A. Medical Opinion Evidence

11 Plaintiff argues that the ALJ improperly discounted portions of medical opinions rendered

12 by Dr. Miles in March 2019 during a neuropsychological evaluation and by Ms. Frakes in

13 February 2019 at a speech pathology appointment by failing to properly assess the persuasiveness

14 of each opinion based on its supportability and consistency. Mot. at 11–14; Reply at 1–4. The

15 Commissioner argues that the ALJ sufficiently considered whether Dr. Miles’ opinion was

16 supportable and consistent with the record, and that the limitation to “simple instructions”

17 adequately accounted for Plaintiff’s mental limitations. Opp. at 1–4. In reply, Plaintiff argues that

18 the Commissioner waived argument regarding Ms. Frakes’ evaluation by failing to address it in

19 opposition. Reply at 3–4.

20 “[T]he ALJ is responsible for translating and incorporating clinical findings into a succinct

21 RFC.” Rounds, 807 F.3d at 1006 (citation omitted). To satisfy this responsibility, “[t]he ALJ

22 must include all restrictions in the [RFC] determination,” Lubin v. Comm’r of Soc. Sec. Admin.,

23 507 F. App’x 709, 712 (9th Cir. 2013), or “explain why the ALJ chose not to accept them,”

24 Megrditchian v. O’Malley, No. 23-cv-01734-H-DEV, 2024 WL 4122458, at *5 (S.D. Cal. Sep. 9,

25 2024) (collecting cases); see also Martin v. Comm’r of Soc. Sec. Admin., 472 F. App’x 580, 580

26 (9th Cir. 2012). “The agency must ‘articulate . . . how persuasive’ it finds ‘all of the medical

27 opinions’ from each doctor or other source, 20 C.F.R. § 404.1520c(b), and ‘explain how [it]

1 § 404.1520c(b)(2).” Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022) (alterations in original).

2 Supportability concerns how “a medical source supports the medical opinion” with relevant

3 evidence, while consistency concerns how “a medical opinion is ‘consistent . . . with the evidence

4 from other medical and nonmedical sources.’” Id. at 791–92 (alteration in original) (citation

5 omitted). To reject a medical opinion as unsupported or inconsistent with the record, the ALJ’s

6 explanation must be supported by substantial evidence. Id. at 792.

7 The ALJ addressed the speech evaluation and neuropsychological evaluation in adjacent

8 paragraphs. In full, the ALJ wrote as follows:

9 There was a speech evaluation noting mild aphasia, mild to

moderately reduced attention, and mild memory impairment. There

10 was moderately severe impairment in problem-solving characteristics

(Ex. 3F, p. 29) [Ms. Frakes’ evaluation at AR 1206]. To the extent

11 that this constitutes an opinion, it is persuasive in part. The

moderately severe problem-solving limitation is somewhat supported

12 by the examination findings, including some low-end cognitive

findings, but is not consistent with the minimal ongoing mental status

13 evaluation findings and inconsistent good activities of daily living,

including ability to perform maintenance work, despite denying

14 improvement. The lack of memory issues is well supported by the

cognitive examination and consistent with the minimal memory

15 findings during treatment. However, it is not entirely consistent with

some subjective reports and ongoing mood findings. These aspects

16 of the opinion are not persuasive. The remainder of the opinion is

interpreted as consistent with the above limitations and is well

17 supported by the evaluation and is consistent with the mental status

evaluation findings and good activities of daily living and is

18 persuasive.

19 To the extent that the recommendations regarding single trail [sic]

learning and writing information down, as well as using a planner or

20 making lists indicates limitations, it appears generally consistent with

a limitation to simple tasks. To this extent, it is well supported by the

21 examination and is consistent with the minimal mental status

evaluation findings and good activities of daily living and is

22 persuasive. However, the need for lists, etc., for the same is not

consistent with the same minimal findings and noted improvement. It

23 is not consistent with the good activities of daily living. It is not

persuasive (Ex. 3F, p. 86) [Dr. Miles’ evaluation at AR 1263], nor

24 supported by the evidence.

25 AR 1667–68. The Court addresses these challenged passages in the order presented by the Parties,

26 beginning with Dr. Miles’ neuropsychological evaluation before turning to Ms. Frakes’ speech

27 pathology evaluation.

1 i. Dr. Miles’ Neuropsychological Evaluation

2 Plaintiff argues that the ALJ erred by failing to properly assess whether Dr. Miles’ medical

3 opinion was supported and consistent with the record. Mot. at 11. Specifically, Plaintiff argues

4 that because the ALJ found multiple “severe” mental impairments at step two of the sequential

5 evaluation, “the ALJ had already determined that the medical evidence in the record supports the

6 existence of these diagnoses and that the impairments result in significant limitations in [his]

7 ability to perform basic work activities.” Id. at 12. Accordingly, Plaintiff contends that “it was

8 improper for the ALJ to discount the limitations Dr. Miles assessed based on these severe

9 impairments on the belief that the mental status examination findings were ‘minimal’ or that [he

10 could] perform certain activities at home.” Id. Further, Plaintiff argues that the limitation in the

11 RFC to “simple instructions” does not address Plaintiff’s “deficits in sustaining attention for a full

12 workday or completing tasks in a timely manner” or “Dr. Miles’ opinion that [he] would need

13 some accommodations in order to remember instructions due to his difficulty learning new

14 information on the first trial.” Id. at 13.

15 In opposition, the Commissioner argues that the ALJ properly considered whether Dr.

16 Miles’ medical opinion is supported and consistent with the record. Opp. at 2. The Commissioner

17 also argues that the Ninth Circuit has held that limiting the RFC to “simple instructions”

18 sufficiently accounts for moderate mental limitations pertaining to concentration and pace. Id.

19 at 3–4 (citing Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174–76 (9th Cir. 2008)).

20 Several of Plaintiff’s arguments are unavailing. First, the ALJ’s step two determination

21 has no bearing on the subsequent RFC determination because “[s]tep two is merely a threshold

22 determination meant to screen out weak claims” and “is not meant to identify the impairments that

23 should be taken into account when determining the RFC.” Buck v. Berryhill, 869 F.3d 1040,

24 1048–49 (9th Cir. 2017). Second, the Commissioner is correct that the Ninth Circuit has

25 repeatedly found that “[t]he limitation to simple repetitive tasks adequately account[s] for [a

26 claimant’s] moderate limitations in concentration, persistence, and pace.” Hairston v. Saul, 827 F.

27 App’x 772, 773 (9th Cir. 2020) (citing Stubbs-Danielson, 539 F.3d at 1174). Plaintiff disagrees

1 The Court agrees with Plaintiff, however, that the ALJ erred by discounting portions of Dr.

2 Miles’ medical opinion based only on purported “minimal findings” in the record and by failing to

3 account for Dr. Miles’ medical opinion in the RFC. Mot at 12–13. As the Parties agree, the ALJ

4 was required to address consistency and supportability. Mot. at 11; Opp. at 2; see also Woods, 32

5 F.4th at 791–92. But the ALJ addressed only the former. Specifically, the ALJ concluded that

6 “the need for lists, etc., . . . is not consistent with the . . . minimal findings and noted

7 improvement” or “the good activities of daily living” shown in the record. AR 1668. Each of

8 these bases for discounting Dr. Miles’ recommendations go only to consistency with the

9 remainder of the record. See Woods, 32 F.4th at 791–92. Entirely absent from the ALJ’s analysis,

10 however, is any discussion of the neuropsychological evaluation itself and whether it supports Dr.

11 Miles’ medical opinion. See AR 1668. Instead, the ALJ only discusses Dr. Miles’

12 “recommendations” for “compensatory strategies,” which are stated near the end of his report,

13 without ever addressing the underlying medical findings upon which those recommendations are

14 based. See AR 1260–64, 1668; cf. Pennington v. Colvin, No. 14-cv-1747-KLS, 2015 WL

15 13237440, at *3 (C.D. Cal. Sep. 11, 2015) (citing Ghanim, 763 F.3d at 1163) (“The ALJ also errs

16 by cherry picking the portions of a medical opinion that support his decision while ignoring

17 others.”).

18 Nonetheless, the Commissioner maintains that the ALJ addressed both consistency and

19 supportability, as required. See Opp. at 2. However, the Commissioner’s argument is

20 fundamentally flawed. The Commissioner purports to restate the relevant portion of the ALJ’s

21 decision pertaining to Dr. Miles’ findings to show that “the ALJ considered and discussed

22 supportability and consistency when she assessed the persuasiveness of Dr. Miles’ opinion.” Id.

23 However, the Commissioner misattributes Ms. Frakes’ findings to Dr. Miles and, like the ALJ,

24 fails to discuss any portion of the neuropsychological evaluation. See id.; see also AR 1206 (Ms.

25 Frakes’ evaluation), 1260–64 (Dr. Miles’ evaluation). Thus, the Commissioner’s argument carries

26 no weight.

27 This error was not harmless. The ALJ repeatedly characterized the record as showing

1 medical opinions, as well as Plaintiff’s testimony and the testimony provided by two lay

2 witnesses, as discussed below. See AR 1665–68. Yet, without discussing the findings from the

3 neuropsychological evaluation, it is unclear whether substantial evidence supports the ALJ’s view

4 of the evidence. For example, Dr. Miles found that Plaintiff’s composite performance for

5 immediate memory (0.1st percentile), logical memory (0.1st percentile), divided attention (0.53rd

6 percentile), and spontaneous verbal recall (0.62nd percentile) each fell within the severely

7 impaired range; Plaintiff’s acquisition of unstructured verbal information (1.2nd percentile) and

8 delayed visual memory (1.77th percentile) fell within the moderately impaired range; and other

9 related measures of memory and concentration fell within the mildly impaired range.1 AR 1261–

10 62. Based on these results, Dr. Miles concluded that Plaintiff’s results were “remarkable for

11 moderate deficits on measures with a processing speed component and immediate memory as well

12 as mild deficits on measures of delayed memory” and that his “pattern of performance on

13 measures of immediate memory indicate that he has deficits in single trial learning with improved

14 performance across multiple trials.” AR 1262. Dr. Miles further stated that Plaintiff’s “responses

15 via the clinical interview and MMPI-2 reveal clinically significant anxiety and depression” and

16 that “it is likely that his symptoms of depression and anxiety have a negative effect on his

17 cognitive performance.” AR 1262–63. Accordingly, the ALJ erred by discounting portions of Dr.

18 Miles’ medical opinion without addressing whether Dr. Miles’ recommendations were supported

19 by the neuropsychological evaluation.

20 ii. Ms. Frakes’ Speech Pathology Evaluation

21 Plaintiff similarly argues that Ms. Frakes’ speech pathology evaluation shows that he has

22 “significant deficits in concentration, persistence, and pace which were not adequately captured by

23 the ALJ’s RFC for simple instructions.” Mot. at 13–14. Plaintiff also argues that the ALJ erred

24 by discounting Ms. Frakes’ medical opinion based on “minimal ongoing mental status evaluation

25

1 Notably, these memory findings appear to be consistent with other evidence in the record. See,

26

e.g., AR 245 (reflecting that Plaintiff’s spouse attested that “[h]e can’t focus,” is “[v]ery

forgetful,” and “needs to be reminded of all the things needed to be done”), 597 (stating on August

27

30, 2018, that Plaintiff’s “[v]isual learning and memory varied and were weak for learning

1 findings and inconsistent good activities of daily living,” AR 1668, and that the Commissioner

2 waived this issue by failing to respond, see Mot. at 14.

3 Although the Commissioner did not address Ms. Frakes’ opinion by name, the opposition

4 only discusses Ms. Frakes’ findings (rather than Dr. Miles’ findings) as discussed above, so the

5 issue is not waived. See Opp. at 2. Nor is Plaintiff’s argument regarding the limitation to “simple

6 tasks” persuasive for the reasons set out above. See Stubbs-Danielson, 539 F.3d at 1174;

7 Hairston, 827 F. App’x at 773.

8 Turning to the ALJ’s decision to discount Ms. Frakes’ finding that Plaintiff has a

9 “[m]oderate-severe impairment in problem solving characterized by reduced deductive reasoning

10 and problem solving in less structured tasks,” the ALJ properly addressed supportability. See

11 AR 1668 (finding that the limitation “is somewhat supported by the examination findings”). The

12 Court is troubled, however, by the ALJ’s generalized analysis of whether this finding is consistent

13 with the record. The ALJ asserted that this limitation is “not consistent with the minimal ongoing

14 mental status evaluation findings,” but did not identify any specific evidence pertaining to

15 problem solving that contradicts this finding. Id. As discussed above, the ALJ also failed to

16 address the findings from the neuropsychological evaluation, which may affect the ALJ’s

17 conclusion that the record showed minimal mental status evaluations. Similarly, the ALJ asserted

18 that the limitation is also “inconsistent [with] good activities of daily living, including [the] ability

19 to perform maintenance work.” Id. But the ability to perform maintenance work refers to

20 Plaintiff’s employment after the closed disability period, rather than an activity that was

21 contemporary with Ms. Frakes’ findings. Regardless, it is unclear how the ability to perform

22 maintenance work indicates that Plaintiff has a higher capacity for deductive reasoning and

23 problem solving in less structured tasks than Ms. Frakes assessed. Thus, the ALJ has not

24 identified substantial evidence supporting the decision to discount Ms. Frakes’ findings.

25 * * *

26 Accordingly, the Court finds that the ALJ erred in discounting portions of Dr. Miles and

27 Ms. Frakes’ medical opinions. The RFC was therefore deficient because the ALJ did not

1 539 F.3d at 1174 (“[A]n ALJ’s assessment of a claimant adequately captures restrictions related to

2 concentration, persistence, or pace [or other mental limitations] where the assessment is consistent

3 with restrictions identified in the medical testimony.”).

4 B. Claimant’s Subjective Testimony

5 Next, Plaintiff argues that the ALJ failed to provide specific, clear, and convincing reasons

6 for rejecting his subjective symptom testimony and instead did “little more . . . than recite the

7 objective medical evidence and then assert that it is inconsistent with [Plaintiff’s] testimony

8 without tying any specific parts of the evidence to any of the specific limitations [he] described in

9 his testimony.” Mot. at 15–19. The Commissioner argues that “the ALJ appropriately considered

10 the lack of evidentiary support for Plaintiff’s alleged limitations, his activities of daily living,

11 effectiveness of medication in controlling symptoms, and conservative treatment for his physical

12 complaints.” Opp. at 5–8.

13 “The clear and convincing standard is the most demanding required in Social Security

14 cases.” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (citation omitted). It applies

15 when, as here, the ALJ concludes that the claimant is not malingering and has “provided objective

16 medical evidence of an underlying impairment which might reasonably produce the pain or other

17 symptoms alleged.” Brown-Hunter, 806 F.3d at 492–93. Under this standard, the ALJ may not

18 rely on general findings and must instead “specifically identify what testimony is credible and

19 what testimony undermines the claimant’s complaints.” Greger v. Barnhart, 464 F.3d 968, 972

20 (9th Cir. 2006) (citation modified). In Brown-Hunter, for example, the Ninth Circuit explained

21 that “it is not sufficient for the adjudicator to make a single, conclusory statement that ‘the

22 individual’s allegations have been considered’ or that ‘the allegations are [not] credible.” 806

23 F.3d at 493 (alterations in original) (citation omitted). The court therefore held that the ALJ erred

24 by stating the “non-credibility conclusion and then summariz[ing] the medical evidence

25 supporting her RFC determination.” Id. at 494. The Court finds that the ALJ committed the same

26 error here.

27 Here, the ALJ stated that “[a]s below, the claimant’s subjective symptoms are not

1 Likewise, at the end of the decision, the ALJ concluded that:

2 As for the claimant’s statements about the intensity, persistence, and

limiting effects of his or her symptoms, they are inconsistent because

3 they are contradicted by the conservative treatment for his physical

complaints and only mild or minor radiograph and physical

4 examination findings, as well as improvement with treatment and

also, by the mostly normal range mental status evaluation findings

5 and inconsistent but good activities of daily living.

6 AR 1668. Under Brown-Hunter, neither conclusory statement is sufficient because the ALJ does

7 not identify which statements are inconsistent or provide specific reasons for the purported

8 inconsistency. See 806 F.3d at 493–94.

9 Nor is the remainder of the ALJ’s analysis sufficient under the heightened clear and

10 convincing standard. When relying on objective medical evidence to discredit a claimant’s

11 testimony, the ALJ must explain how the medical evidence is inconsistent with the testimony by

12 making “specific findings in support of that conclusion.” Treichler, 775 F.3d at 1103 (internal

13 quotation marks and citation omitted). Here, the ALJ never identified what testimony lacks

14 credibility, referring instead only to the fact that Plaintiff “alleged cognitive and social

15 limitations.” AR 1666; see also Greger, 464 F.3d at 972 (requiring the ALJ to “specifically

16 identify what testimony is credible” (citation omitted)). Meanwhile, the ALJ’s conclusion that

17 these “allegations are not entirely consistent with the record” is supported only with general

18 findings and references to the summary of the record, which are inadequate under Brown-Colvin.

19 See AR 1666 (stating that Plaintiff “had little in the way of cognitive findings during the mental

20 status evaluations, which were primarily normal” and “remained relatively minimal,” even if

21 Plaintiff “did have some ongoing mood findings . . . and some vaguely reported ongoing cognitive

22 findings.”); see also Opp. at 5 (arguing that the ALJ “properly considered that Plaintiff’s

23 statements about the alleged intensity, persistence, and limiting effects were not entirely consistent

24 with the medical evidence of record, which the ALJ summarized at length in her decision.”

25 (emphasis added)).

26 The Court remains concerned, too, by whether substantial evidence supports the ALJ’s

27 characterization of the medical record. See Pennington, 2015 WL 13237440, at *3 (“The ALJ also

1 others.”). As discussed above, the ALJ failed to address Plaintiff’s neuropsychological evaluation,

2 which may undermine the conclusion that the record reflects mild and normal cognitive findings.

3 The ALJ also repeatedly focused on evidence of improvement in 2019 without ever addressing

4 why subsequent records showing continued depression, anxiety, and associated symptoms did not

5 alter the ALJ’s analysis. See, e.g., AR 1214 (“Pt appears visibly anxious during this interview,”

6 conducted on June 19, 2019), 1585–86 (diagnosing Plaintiff with major depressive disorder on

7 April 29, 2021, after noting that Plaintiff’s mood was “irritable, sad, frustrating” and his

8 concentration and motivation were “poor”), 1605 (“Mood: depressed, anxious” on September 17,

9 2020), 2435 (“Motivation: poor” and “[c]oncentration: poor” on August 2, 2021).

10 Additionally, the ALJ concluded that Plaintiff “has some inconsistently good activities of

11 daily living.” AR 1666–67. A claimant’s daily activities may be considered to the extent those

12 activities are inconsistent with the claimed severity of his impairments, or when those activities

13 indicate “capacities that are transferable to a work setting.” Molina v. Astrue, 674 F.3d 1104,

14 1112–13 (9th Cir. 2012), superseded by regulation on other grounds. However, “disability

15 claimants should not be penalized for attempting to lead normal lives in the face of their

16 limitations. . . . Only if the level of activity [is] inconsistent with [c]laimant’s claimed limitations

17 [do] these activities have any bearing on . . . credibility.” Reddick v. Chater, 157 F.3d 715, 722

18 (9th Cir. 1998). Here, the ALJ did not explain why the identified activities—i.e., the fact that

19 Plaintiff “reported doing cardio and weight training,” “travel[ed] to the Philippines for an extended

20 period[] and more than once,” set up his daughter’s computer for school during the Covid-19

21 pandemic, and watched movies and television shows—are inconsistent with Plaintiff’s claimed

22 limitations.2 AR 1666–67; see also AR 1727. Like with the medical record, the ALJ offers only a

23 summary of the record, rather than identifying specific conflicts with Plaintiff’s testimony or

24

25

2 The Commissioner’s opposition brief also argues that the fact that Plaintiff was “helping [a]

friend with catering business, expressed desire to start his own similar business with his brother,

26

and plans to volunteer with brain tumor society where his friend works,” and that he dropped his

daughter off at kindergarten and cleaned around the house are inconsistent activities of daily

27

living. Opp. at 5–6. However, the ALJ did not identify these as bases for discounting Plaintiff’s

1 claimed limitations.

2 Finally, the ALJ concludes that the fact that Plaintiff returned to work in May 2022 is

3 inconsistent with finding that he is disabled. AR 1666–67. Plaintiff argues that returning to work

4 is immaterial because he testified that he receives accommodations at work, which he contends is

5 consistent with the statement provided by his supervisor from his prior job. Mot. at 18; see also

6 Cleveland v. Pol’y Mgmt. Sys. Corp., 526 U.S. 795, 803 (1999) (“[W]hen the SSA determines

7 whether an individual is disabled for SSDI purposes, it does not take the possibility of ‘reasonable

8 accommodation’ into account, nor need an applicant refer to the possibility of reasonable

9 accommodation when she applies for SSDI.”). The Commissioner argues that the ALJ

10 appropriately determined that there is no objective record evidence to show that Plaintiff received

11 accommodations at his new job. Opp. at 6. But the absence of evidence outside the claimed

12 disability period is not a conflict. As other courts have recognized, “return[ing] to work at the end

13 of a closed period is not inconsistent with a claim of disability during the closed period.” Aaron S.

14 v. Comm’r of Soc. Sec., No. C18-5984-BAT, 2019 WL 2223910, at *5 (W.D. Wash. May 23,

15 2019).

16 In sum, the ALJ erred because she “failed to identify the testimony she found not credible[]

17 [and therefore] did not link that testimony to the particular parts of the record supporting her non-

18 credibility determination.” Brown-Hunter, 806 F.3d at 494. Thus, the Court finds that the ALJ

19 failed to provide clear and convincing reasons supported by substantial evidence for discounting

20 Plaintiff’s testimony.

21 C. Lay Witness Testimony

22 Plaintiff similarly argues that the ALJ improperly discounted the written statements

23 provided by Ms. Tayag, his spouse, and Mr. Gacuya, his former supervisor, because the ALJ

24 failed to provide specific and legitimate reasons germane to each witness for doing so. Mot.

25 at 19–21. The Commissioner argues that “the ALJ is no longer required to provide reasons

26 germane to [non-medical sources] to reject their testimony.” Opp. at 8–9 (alterations in original)

27 (quoting Wendy J. C. v. Saul, No. 19-cv-01434-AC, 2020 WL 6161402, at *12 n.9 (D. Or. Oct. 21,

1 statements by Ms. Tayag and Mr. Gacuya. See id.

2 Historically, lay witness testimony has been viewed as providing valuable insight into a

3 claimant’s daily practices, which can help to determine a claimant’s limitations and disabilities.

4 See, e.g., Dodrill v. Shalala, 12 F.3d 915, 918–19 (9th Cir. 1993) (“Although eyewitnesses have to

5 rely to some extent on communications with the claimant in ascertaining whether she is disabled

6 or malingering, we have held that friends and family members in a position to observe a

7 claimant’s symptoms and daily activities are competent to testify as to her condition.”); Lewis v.

8 Apfel, 236 F.3d 503, 511 (9th Cir. 2001) (“Lay testimony as to a claimant’s symptoms is

9 competent evidence that an ALJ must take into account”) (citing Nguyen v. Chater, 100 F.3d

10 1462, 1467 (9th Cir. 1996)). Accordingly, the Ninth Circuit has previously stated that “[i]f the

11 ALJ wishes to discount the testimony of the lay witnesses, [s]he must give reasons that are

12 germane to each witness.” Dodrill, 12 F.3d at 919.

13 The Commissioner asserts that the germane reasons standard no longer applies to claims

14 filed on or after March 27, 2017, because the agency amended its regulations. The Ninth Circuit

15 has not issued guidance on this point. See Hudnall v. Dudek, No. 23-3727, 2025 WL 1379101, at *2

16 (9th Cir. May 13, 2025) (declining to “decide whether those regulations constitute ‘intervening

17 higher authority’ that is ‘clearly irreconcilable’ with our [germane reasons] precedent”). And

18 district courts are divided on the issue. Compare Wendy, 2020 WL 6161402, at *12 n. 9 (holding

19 that the germane reasons standard no longer applies), and Rummel v. Comm’r of Soc. Sec., No. 2:21-

20 cv-202-KJN, 2022 WL 3999860, at *9 (E.D. Cal. Sep. 1, 2022) (same), with Gardner v. Comm’r of

21 Soc. Sec. Admin., No. 22-cv-00321-TUC-LCK, 2023 WL 6173220, at *6 (D. Ariz. Sep. 21, 2023)

22 (holding that the germane reasons standard does apply).

23 The Court need not resolve this issue here because the ALJ did provide reasons for

24 discounting each lay witness’ testimony. The appropriate inquiry, therefore, is simply whether the

25 ALJ’s decision is supported by substantial evidence. The Court concludes that it is not. First, the

26 ALJ discounts both Ms. Tayag’s and Mr. Gacuya’s statements to the extent they are inconsistent

27 with “the improvement with treatment, minimal mental status evaluation findings, and only

1 consider significant medical evidence from the neuropsychological evaluation, so it is not yet clear

2 whether Plaintiff’s findings are in fact minimal or inconsistent with either statement.

3 Second, the ALJ also misrepresented Ms. Tayag’s testimony. The ALJ incorrectly states

4 that Ms. Tayag testified that Plaintiff did “not need[] reminders,” AR 1667, when she testified to

5 the opposite, see AR 245 (“He can’t focus. He needs to be reminded of all the things needed to be

6 done. Very forgetful.”). That error is significant because it reflects that the ALJ misstated

7 additional potentially-corroborative evidence regarding memory and concentration, like the

8 neuropsychological evaluation, despite receiving explicit instructions from the Appeals Council to

9 appropriately consider that portion of Ms. Tayag’s statement. See AR 1799 (instructing the ALJ

10 to address Ms. Tayag’s testimony that Plaintiff “had difficulty focusing, needed reminders, was

11 forgetful, [and] . . . needed spoken instructions repeated”).

12 Accordingly, the ALJ erred in discounting the lay witness testimony provided by Ms.

13 Tayag and Mr. Gacuya. This evidence should be considered within the context of the entire

14 administrative record, including Dr. Miles’ neuropsychological evaluation, to determine its

15 appropriate weight.

16 D. Vocational Expert

17 Finally, Plaintiff argues that the ALJ asked the vocational expert incomplete hypothetical

18 questions that resulted in unreliable testimony. Mot. at 21–22. Specifically, Plaintiff argues that

19 “the ALJ omitted [his] credible allegations, the limitations described by the lay witnesses, and the

20 limitations assessed by several examining providers, as detailed above.” Id. at 22. The

21 Commissioner argues that “Plaintiff’s fourth argument is derivative of his first three.” Opp. at 9.

22 The Court agrees and does not address this argument separately.

23 E. Remedy

24 The Act permits district courts to affirm, modify, or reverse the Commissioner’s decision

25 “with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g); see Garrison, 759

26 F.3d at 1019. Plaintiff requests that the Court remand for an award and calculation of benefits

27 because the record is fully developed. Mot. at 22–23. The Commissioner opposes this request,

] limitations.”? Opp. at 10.

2 “An automatic award of benefits in a disability benefits case is a rare and prophylactic

3 exception to the well-established ordinary remand rule.” Leon v. Berryhill, 880 F.3d 1041, 1044

4 |} (9th Cir. 2017). The Court may remand for an immediate award of benefits only where: (1) the

5 || ALJ has failed to provide legally sufficient reasons for rejecting the claimant’s testimony; (2) there

6 || are no outstanding issues that must be resolved before a determination of disability can be made;

7 || and (3) it is clear from the record that the ALJ would be required to find the claimant disabled

8 were such evidence credited. /d. at 1045. The Court must also determine, based on the record as a

9 whole, that there is no “serious doubt that [the] claimant is, in fact, disabled.” Garrison, 759 F.3d

10 at 1021.

11 These requirements are not satisfied here. The Court is sympathetic that, by remanding, it

12 || is further delaying a final decision in a case that has lingered. There are outstanding issues,

13 however, to be resolved regarding the appropriate weight to give Dr. Miles’ neuropsychological

14 || evaluation, which the Court cannot do in the first instance. Additionally, although the Court

3 15 || recognizes that Plaintiff's new job arose after the end of the disability period and is therefore not

a 16 || within the typical window of consideration, the record may benefit from further development to

17 || clarify Plaintiffs prior testimony.

18 IV. ORDER

19 For the foregoing reasons, IT IS HEREBY ORDERED that Plaintiff's motion for summary

20 || judgment is GRANTED. The determination of the ALJ is DENIED and the case is REMANDED

21 to the Commission.

22

23 Dated: September 8, 2026

2 Hainflcnan

TH LABSON FREEMAN

25 United States District Judge

26

27

28 5 Aga the Court notes that the Commissioner appears to be misattributing medical findings to