The opinion
1
2
3
4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
6
7 STEPHANIE E., Case No. 25-cv-04880-EKL
8 Plaintiff,
ORDER REVERSING AND
9 v. REMANDING
10 SSA COMMISSIONER, et al., Re: Dkt. No. 13
Defendants.
11
12
13 Plaintiff Stephanie E.1 appeals a final decision of the Commissioner of Social Security
14 (“Commissioner”), denying her applications for disability insurance benefits and supplemental
15 security income under Titles II and XVI of the Social Security Act (“Act”), 42 U.S.C. §§ 423 et
16 seq. Having considered the parties’ briefs, legal authority, and argument held on September 10,
17 2026, the Court REVERSES and REMANDS for the reasons set forth below.
18 I. BACKGROUND
19 A. Factual Background
20 Plaintiff is a 57-year-old African American woman who “was born in French Camp,
21 California and raised all over the Bay Area.” Administrative R. at 308-309, 1387, ECF No. 10
22 (“AR”). Plaintiff was sexually assaulted as a child and as a teenager, see AR 799, 1379, 1388, and
23 has been in several abusive relationships, including a 30-year marriage that ended in a divorce in
24 2021. AR 799, 804. Based in part on these experiences, Plaintiff has received ongoing treatment
25 for depression and anxiety since her twenties. AR 309, 799. Notably, due to her depression and
26
27
1 Because this Order contains potentially sensitive medical information, Plaintiff’s name is
1 anxiety, in April 2010, Plaintiff was found to be disabled from “April 8, 2008 through May 5,
2 2009.” AR 77.
3 Plaintiff completed the 10th grade and later obtained her GED. AR 308. She worked as a
4 controller at Stanford Health Care from 2009 to 2014, AR 674-678, and then worked several
5 different jobs in the medical field between 2016 and 2018, AR 678-682. Since 2019, Plaintiff
6 attempted to work, including as a caregiver and scheduler, but the record reflects that she was only
7 employed for a few weeks or months at a time. AR 308-309, 465, 681-686. According to
8 Plaintiff, these attempts to perform work failed due to her depression. See AR 789. Plaintiff’s last
9 work attempts were in 2022, at a health care entity and temporary staffing agency, though the
10 record suggests she worked for only a limited period. See AR 685 (indicating that Plaintiff was
11 paid a total of $196.11 and $2,803 for each job, respectively, in 2022); see also AR 3353 (noting
12 “unsuccessful work attempts” after the onset date). Plaintiff lives with her adult son. AR 1505.
13 B. The ALJ’s First Unfavorable Decision
14 Plaintiff filed a Title II application for disability insurance benefits on December 4, 2019,
15 alleging that she was disabled since December 1, 2019. AR 167. Her application was denied
16 initially and on reconsideration. AR 107, 112. She appeared for a hearing before an
17 Administrative Law Judge (“ALJ”) on May 26, 2021. AR 42. In June 2021, the ALJ issued an
18 unfavorable decision. AR 480. Plaintiff’s request for review by the Appeals Council was denied.
19 AR 498. Afterward, Plaintiff sought review of her application in federal court.
20 The Court reviewed the ALJ’s decision and remanded the case for further proceedings,
21 finding that the ALJ committed multiple errors. Stephanie E. v. O’Malley, No. 22-cv-06696-RMI,
22 2024 WL 1244474 (N.D. Cal. Mar. 21, 2024) (Illman, Mag. J.). In relevant part, the Court
23 concluded that the ALJ erred in discounting Plaintiff’s subjective testimony by stating “only that
24 Plaintiff’s testimony was inconsistent with and unsupported by the medical evidence” because
25 “[s]uch general statements do not meet the ‘specific, clear and convincing’ standard and are
26 insufficient for the court’s review.” Id. at *4. The Court found that “the ALJ did not cite any
27 evidence that contradicts or is inconsistent with Plaintiff’s allegations that her depressive episodes
1 ‘essentially moderate symptoms’ does not suffice. Given the cyclic nature of Plaintiff’s alleged
2 symptoms, it is entirely reasonable that Plaintiff’s medical history would contain evidence of mild
3 or moderate symptoms alongside evidence of more severe symptoms.” Id.
4 On January 18, 2023, Plaintiff filed an application for Title II and Title XVI disability
5 benefits. The Appeals Council consolidated this application with her initial Title II application,
6 when remanding the case in accordance with Judge Illman’s order. AR 519.
7 C. The ALJ’s Decision on Remand
8 On remand, a different ALJ held a hearing on February 6, 2025, in which Plaintiff, her
9 representative, and a vocational expert participated. AR 384. On March 7, 2025, the ALJ issued a
10 final decision denying Plaintiff’s applications. AR 346.
11 The ALJ determined that Plaintiff met the insured status requirements of the Act through
12 March 31, 2026. AR 353; see also AR 351 (indicating Plaintiff’s date last insured was March 31,
13 2026). At step one of the sequential evaluation process,2 the ALJ determined that Plaintiff has not
14 engaged in substantial gainful activity since her alleged onset date of December 1, 2019, finding
15 that her work activity in 2020, 2021, and 2022, constituted unsuccessful work attempts. AR 353.
16 At step two,3 the ALJ concluded that Plaintiff has the following severe impairments:
17 “major depressive disorder; generalized anxiety disorder; obesity; hyperparathyroidism;
18 hypertension; osteoarthritis of the hips as of July 2023; and chronic kidney disease, stage 3.”
19 AR 353 (citation modified). The ALJ found that these medically determinable impairments
20 significantly limit Plaintiff’s ability to perform basic work activities. AR 353. The ALJ
21 determined that Plaintiff’s remaining impairments are not severe. AR 353-354.
22 At step three,4 the ALJ concluded that Plaintiff does not have an impairment or
23
2 In determining whether an individual is disabled under the Act, the ALJ is required to follow a
24
five-step sequential evaluation process. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). At step
one, the ALJ must determine whether the claimant has engaged in substantial gainful activity since
25
the alleged onset of the disability. Id. § 404.1520(a)(4)(i).
26 3 At step two, the ALJ must determine if the claimant has an impairment or combination of
impairments that are “severe,” meaning that the impairment or impairments “significantly limit[]
27 the claimant’s ‘physical or mental ability to do basic work activities.’” Ford v. Saul, 950 F.3d
1141, 1148 (9th Cir. 2020) (quoting 20 C.F.R. § 404.1522(a)).
1 combination of impairments that meets or medically equals the severity of one of the impairments
2 listed in the regulations. AR 354-355. As to her mental health impairments, however, the ALJ
3 found that Plaintiff had moderate limitations in three of the four areas of functioning, referred to as
4 the “paragraph B” criteria. Specifically, the ALJ determined that Plaintiff had moderate
5 limitations with respect to: (1) interacting with others; (2) concentrating, persisting, or
6 maintaining pace; and (3) adapting or managing herself. AR 355. Additionally, the ALJ found
7 that Plaintiff had a mild limitation in terms of understanding, remembering, or applying
8 information. AR 355. The ALJ also found that “the evidence fail[ed] to establish the presence of
9 the ‘paragraph C’ criteria.” AR 357 (finding “there is no evidence that the claimant’s mental
10 impairment(s) are ‘serious and persistent,’ that is, that they result in marginal adjustment or a
11 minimal capacity to adapt to changes in one’s environment or to demands that are not already part
12 of one’s life, despite ongoing medical treatment, over a period of 2 years”).
13 At step four,5 the ALJ found that Plaintiff has the residual functional capacity (“RFC”) “to
14 perform medium work as defined in 20 C.F.R. §§ 404.1567(c) and 416.967(c), with the following
15 limitations: occasional climbing of ladders, ropes or scaffolds; frequent climbing of ramps or
16 stairs, stooping, kneeling, crouching and crawling; can perform simple instructions for extended
17 periods; cannot perform work requiring a specific production rate such as assembly line work or
18 work that requires hourly quotas; can occasionally work in coordination with or in proximity to
19 others; occasional interaction with the general public and with supervisors; and can deal with
20 occasional changes in the work setting. However, she should not be expected to set goals or make
21 plans independently of others.” AR 358. The ALJ determined that Plaintiff has no past relevant
22 work. AR 374.
23 At step five,6 the ALJ found that jobs exist in the national economy that Plaintiff can
24
impairments that meets or equals an impairment in the “Listing of Impairments” set forth at 20
25
C.F.R. pt. 404, subpt. P, app. 1.
26 5 At step four, the ALJ assesses the claimant’s residual functional capacity, which is the most a
claimant can do despite their limitations. The ALJ must determine whether the claimant has the
27 capacity to do their past relevant work. If the claimant is unable to do any past relevant work or
does not have any past relevant work, the analysis proceeds to step five.
1 perform, including cleaner II, hand packager, and packaging machine operator. AR 374-375.
2 Accordingly, the ALJ concluded that Plaintiff was not disabled, as defined by the Act, from the
3 alleged onset date through the date of the decision. AR 375. Plaintiff timely appealed the ALJ’s
4 unfavorable decision, and the case was reassigned to this Court.
5 II. LEGAL STANDARD
6 Pursuant to 42 U.S.C. § 405(g), this Court has the authority to review the Commissioner’s
7 decision to deny benefits. The Court can affirm, modify, or reverse the agency’s decision, with or
8 without remanding the case for a rehearing. See 42 U.S.C. § 405(g). The ALJ’s decision may be
9 reversed only if it is not supported by substantial evidence or if the ALJ committed a legal error.
10 Ahearn v. Saul, 988 F.3d 1111, 1115-1116 (9th Cir. 2021) (citation omitted). Substantial evidence
11 means “more than a mere scintilla but may be less than a preponderance.” Id. (quoting Molina v.
12 Astrue, 674 F.3d 1104, 1110-1111 (9th Cir. 2012), superseded by regulation on other grounds). It
13 is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
14 Biestek v. Berryhill, 587 U.S. 97, 103 (2019).
15 When determining whether substantial evidence exists to support the Commissioner’s
16 decision, the court must “consider the entire record as a whole and may not affirm simply by
17 isolating a specific quantum of supporting evidence.” Robbins v. Soc. Sec. Admin., 466 F.3d 880,
18 882 (9th Cir. 2006) (citation modified). If the evidence supports more than one rational
19 interpretation, the court must defer to the Commissioner’s decision. Ahearn, 988 F.3d at 1115-
20 1116 (citation omitted). “Finally, the court will not reverse an ALJ’s decision for harmless error,
21 which exists when it is clear from the record that the ALJ’s error was inconsequential to the
22 ultimate nondisability determination.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008)
23 (citation modified).
24
25
26
in “significant numbers in the national economy.” 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1560(c).
27 In making this determination, the ALJ may rely on the Medical-Vocational Guidelines, 20 C.F.R.
pt. 404, subpt. P, app. 2, or on the testimony of a vocational expert, utilizing the same RFC and
1 III. DISCUSSION
2 On appeal, Plaintiff argues that the ALJ erred when (1) analyzing two medical opinions
3 when formulating the RFC; (2) discounting Plaintiff’s subjective testimony; and (3) determining
4 that Plaintiff did not meet or equal a listing at step three. Pl. Br., ECF No. 13. Based on these
5 errors, Plaintiff argues that the Court should remand for an immediate award of benefits. The
6 Court finds that the ALJ erred when analyzing one of the two medical opinions and by discounting
7 Plaintiff’s subjective testimony,7 and remands the case for a partial award of benefits with further
8 instructions.
9 A. Medical Opinions
10 Plaintiff argues that the ALJ erred in her analysis of Drs. Jacklyn Chandler and Tiadora
11 Kim’s medical opinions. Under the applicable regulations, the ALJ is required to evaluate the
12 “persuasiveness” of all medical opinions in the record based on: (1) supportability,
13 (2) consistency, (3) relationship with the claimant, (4) specialization, and (5) other factors, such as
14 “evidence showing a medical source has familiarity with the other evidence in the claim or an
15 understanding of [the] disability program’s policies and evidentiary requirements.” 20 C.F.R.
16 § 404.1520c. The first two factors – supportability and consistency – are considered the most
17 important, and the ALJ is required to explicitly address them. Id. § 404.1520c(b)(2); see Stiffler v.
18 O’Malley, 102 F.4th 1102, 1106 (9th Cir. 2024) (citations omitted). “Supportability means the
19 extent to which a medical source supports the medical opinion by explaining the ‘relevant . . .
20 objective medical evidence.’” Woods v. Kijakazi, 32 F.4th 785, 791-792 (9th Cir. 2022) (quoting
21 20 C.F.R. § 404.1520c(c)(1)); see also R.W. v. Comm’r of Soc. Sec., No. 25-cv-02302-EMC, 2025
22 WL 3471251, at *9 (N.D. Cal. Dec. 3, 2025) (explaining that the supportability analysis is
23 “ultimately focused on how a doctor reaches the medical opinion”). “Consistency means the
24 extent to which a medical opinion is ‘consistent . . . with the evidence from other medical sources
25 and nonmedical sources in the claim.’” Woods, 32 F.4th at 792 (quoting 20 C.F.R.
26
27
7 Because these errors require remand, the Court does not address whether the ALJ erred at step
1 § 404.1520c(c)(2)). “[A]n ALJ cannot reject an examining or treating doctor’s opinion as
2 unsupported or inconsistent without providing an explanation supported by substantial evidence.”
3 Id.
4 1. Dr. Chandler
5 The ALJ did not err in analyzing the opinion of Dr. Chandler, who conducted a
6 consultative psychological examination of Plaintiff on May 3, 2020. AR 308-311. The ALJ
7 found Dr. Chandler’s opinion was “largely persuasive” and incorporated her workplace limitation
8 findings into the RFC. See AR 369, 371-372. Because the ALJ incorporated Dr. Chandler’s
9 findings into the RFC, the ALJ did not err. See Turner v. Comm’r of Soc. Sec., 613 F.3d 1217,
10 1223 (9th Cir. 2010).
11 Plaintiff does not identify any additional restrictions the ALJ should have included in the
12 RFC to account for Dr. Chandler’s findings. Rather, Plaintiff argues that the ALJ erred in
13 conducting the supportability and consistency analyses. Pl. Br. at 16. But even if the ALJ erred in
14 conducting these analyses, any such error was harmless because the opinion as to Plaintiff’s
15 limitations was incorporated into the RFC. See, e.g., Halbert T. v. Kijakazi, No. 21-cv-500-SI,
16 2022 WL 1538655, at *4 (D. Or. May 16, 2022) (“Even if the ALJ erred in failing [to] address
17 [the doctor’s] opinion, any error was harmless because the ALJ incorporated [the doctor’s] opinion
18 as to Plaintiff’s limitations into Plaintiff’s RFC.”); Dylan S. v. Kijakazi, No. 22-cv-01139-DJA,
19 2023 WL 5846288, at *6 (D. Nev. Sep. 8, 2023) (finding that, even if ALJ erred by not finding a
20 doctor’s opinion more persuasive or in conducting the consistency analysis, “the errors would be
21 harmless because the RFC is consistent with [the doctor’s] opined limitations”).
22 2. Dr. Kim
23 Dr. Kim conducted a consultative psychological examination on December 16, 2023.
24 AR 1026-1035. In her medical source statement, Dr. Kim concluded that Plaintiff had moderate
25 limitations in her “[a]bility to sustain concentration, attention, consistency, and persistence in
26 work-related activity at a reasonable pace” and her “[a]bility to adapt to the typical stressors and
27 pressures common to a competitive work environment.” AR 1034. Dr. Kim further explained that
1 concentrating, persisting, and maintaining pace, and in adapting to common stressors and
2 pressures at the workplace. AR 1034. Dr. Kim determined that Plaintiff had no limitations in her
3 “[a]bility to understand, carry out, apply, and remember” instructions or in her “[a]bility to
4 maintain effective interpersonal interaction” with others. AR 1034.
5 It is undisputed that the ALJ did not “include a limitation for assistance or support” as to
6 Plaintiff’s persistence or adaptability in the RFC, Def. Br. at 8, ECF No. 17, despite finding Dr.
7 Kim’s report “largely persuasive,” AR 373. Thus, the central question is whether the ALJ
8 conducted proper supportability and consistency analyses, when declining to include this
9 limitation in the RFC. The Court addresses both factors in turn, before turning to the
10 Commissioner’s argument.
11 a. Supportability
12 The ALJ erred by not conducting a proper supportability analysis. The ALJ found Dr.
13 Kim’s opinion “largely persuasive[,]” and then found that Dr. Kim’s “likely” need of assistance
14 finding did not “suggest that the severity of the claimant’s mental impairments meet or medically
15 equal the” listings at step three. AR 373. However, the ALJ failed to explain why she did not
16 include this limitation in the RFC at step four. The Court is unable to discern the ALJ’s reasoning
17 and may not speculate as to her reasoning. Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219,
18 1225 (9th Cir. 2009) (explaining that courts must “review the ALJ’s decision based on the
19 reasoning and factual findings offered by the ALJ – not post hoc rationalizations that attempt to
20 intuit what the adjudicator may have been thinking”). Accordingly, the ALJ failed to conduct a
21 proper supportability analysis and, as a result, she erred.
22 b. Consistency
23 The ALJ further erred by failing to conduct a consistency analysis. The ALJ did not
24 consider whether Dr. Kim’s finding regarding the likely need for assistance and support was
25 consistent with the medical record. See AR 372-373. The ALJ did not address this in the
26 decision, and the Court may not speculate as to the ALJ’s rationale or supporting evidence.
27 Brown-Hunter v. Colvin, 806 F.3d 487, 495 (9th Cir. 2015) (“Although the ALJ’s analysis need
1 whether the ALJ’s conclusions were supported by substantial evidence.”). Consequently, the
2 Court is unable to conduct meaningful judicial review of the consistency analysis and, thus, the
3 ALJ erred. See, e.g., Robert D. v. Kijakazi, No. 20CV2132-AJB (MSB), 2021 WL 5905734, at *7
4 (S.D. Cal. Dec. 14, 2021) (“The ALJ’s failure to articulate his consistency analysis frustrates
5 meaningful judicial review and constitutes a legal error.”), report and recommendation adopted,
6 No. 20-cv-02132-AJB-MSB, 2022 WL 62908 (S.D. Cal. Jan. 6, 2022); see also Freddy D. v.
7 Kijakazi, No. EDCV 22-1873-KK, 2023 WL 12167476, at *6 (C.D. Cal. Nov. 2, 2023) (collecting
8 cases indicating that “district courts have continued to find that the ALJ errs when he rejects a
9 medical opinion without specific explanation of how he considered the supportability and
10 consistency factors”).
11 c. Commissioner’s Argument
12 The Commissioner argues that Dr. Kim’s findings were not limitations, but rather
13 “suggestion[s]” that the ALJ did not need to consider in formulating the RFC. Def. Br. at 8; see
14 Valentine v. Comm’r SSA, 574 F.3d 685, 691-692 (2009) (finding that ALJ did not err by
15 excluding a doctor’s “observation” from the RFC because it was a “recommended way for
16 [plaintiff] to cope with his PTSD symptoms,” as opposed to a “diagnosis” or “statement of
17 [plaintiff’s] functional capacity”). The Court disagrees. These statements appear at the end of the
18 report under the header “MEDICAL SOURCE STATEMENT,” and reflect Dr. Kim’s medical
19 opinions. 20 C.F.R. § 404.1513(a)(2) (“A medical opinion is a statement from a medical source
20 about what you can still do despite your impairment(s) and whether you have one or more
21 impairment-related limitations or restrictions in . . . [y]our ability to perform mental demands of
22 work activities[.]”); see also Soc. Sec. Admin., Consultative Examinations: A Guide for Health
23 Professionals, https://www.ssa.gov/disability/professionals/greenbook/ce-evidence.htm
24 [https://perma.cc/DMQ8-T9AA] (describing a statement by a consultative examiner “providing an
25 opinion about what the claimant can do despite his or her impairment(s) based on the medical
26 source’s findings”) (emphasis added).
27 Dr. Kim’s report sets forth her opinions as to Plaintiff’s limitations and related restrictions
1 the right column containing corresponding statements regarding Plaintiff’s limitations and
2 functional capacity. AR 1034. For both of Plaintiff’s moderate limitations, the only restriction
3 provided by Dr. Kim is the likely need for assistance and support. Because these statements
4 reflect Dr. Kim’s conclusions as to Plaintiff’s limitations, the ALJ erred in failing to consider them
5 in constructing the RFC.8
6 * * *
7 In sum, the ALJ did not err in analyzing Dr. Chandler’s opinion but erred by not
8 considering the limitations set forth by Dr. Kim – either by incorporating them in full or in part or
9 by explaining why they should not be included. This error was harmful because the inclusion of
10 these additional limitations in the RFC may have resulted in a finding of disability. Valentine, 574
11 F.3d at 690 (“[A]n RFC that fails to take into account a claimant’s limitations is defective.”); Betts
12 v. Colvin, 531 F. App’x 799, 800 (9th Cir. 2013) (“The ALJ provided no reasons for disregarding
13 aspects of [the doctor’s] opinion, so we must reverse.”).
14 B. Subjective Testimony
15 Plaintiff argues that the ALJ erred in rejecting her testimony regarding her “alleged
16 absenteeism and/or ability to maintain regular attendance” as “simply not supported by and . . .
17 inconsistent with the documented medical evidence of record.”9 Pl. Br. at 19 (citing AR 366). At
18
8 The Commissioner further contends that, when Dr. Kim found that Plaintiff “likely” requires
19
some assistance and support, she used “equivocal” language and, as a result, “the ALJ reasonably
declined to include limitations in the RFC for support or assistance.” Def. Br. at 8. At hearing, in
20
support of this argument, the Commissioner referenced cases not cited in the briefing, except one,
Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996 (9th Cir. 2015). But in Rounds and the other
21
cases cited by the Commissioner, the courts did not consider whether the doctor’s language was
equivocal, instead focusing on whether the ALJ reasonably declined to include non-imperative
22
recommendations, as opposed to diagnoses or statements of functionality, in the RFC. See, e.g.,
id. at 1005-1006; Putz v. Bisignano, No. 24-5403, 2025 WL 3012797, at *1 (9th Cir. Oct. 28,
23
2025). Because the Court concludes that Dr. Kim’s findings were statements of functionality that
the ALJ should have accounted for in – or provided reasons for excluding from – the RFC, these
24
cases do not mandate a different result. Cf. Kakos v. Astrue, 464 F. App’x 598, 599 (9th Cir.
2011) (“When the evidence in the record is vague or ambiguous, the ALJ has a duty to develop the
25
record to resolve the ambiguity.” (citing McLeod v. Astrue, 640 F.3d 881, 885 (9th Cir. 2011))).
26 9 Plaintiff also argues that the “ALJ also failed to account for the impact fatigue would have on
absenteeism, despite correctly noting that such fatigue was ‘significant’ in the record.” Pl. Br.
27 at 19-20 (quoting AR 349). The Court does not address this argument because it finds that the
ALJ erred for other reasons. However, the ALJ should still consider the impact of Plaintiff’s
1 the May 2021 ALJ hearing, Plaintiff testified that she was “fired from most of [her] recent jobs”
2 due to “depressive episodes.” AR 59. She also testified that she would “call[] out of work” when
3 she had an episode. AR 59. According to Plaintiff’s testimony, during an episode, she would
4 wake up feeling a sense of dread and have no energy to get out of bed, brush her teeth, or shower.
5 AR 59 (testifying that she “can barely get out of bed to use the restroom”). Plaintiff further
6 testified that these episodes “used to be short” but “they’re lasting longer.” AR 60. Subsequently,
7 at the February 2025 ALJ hearing, Plaintiff testified that she attended a cosmetology course in
8 2022, which she was unable to complete because she failed the final examination due to her
9 inability to retain information. AR 405. Plaintiff also testified that she missed three classes
10 during the three-month course and noted that she was placed in a performance improvement
11 program as a result. AR 405. In addition, when asked how often she leaves her house, Plaintiff
12 testified that she left “as needed” and if she did not “need anything, then [she] did not leave the
13 house.” AR 406-407 (noting she only left the house three times in the past week).
14 The ALJ may only reject the plaintiff’s testimony “if she gives specific, clear and
15 convincing reasons for the rejection.”10 Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009)
16 (citation modified); see also Burrell, 775 F.3d at 1136. “This is not an easy requirement to meet:
17 The clear and convincing standard is the most demanding required in Social Security cases.”
18 Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (citation modified). In making an adverse
19 credibility determination, the ALJ cannot rely on general findings, but must instead “specifically
20 identify what testimony is credible and what evidence undermines the [plaintiff’s] complaints.”
21 Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006) (citation modified); see also Brown-
22 Hunter, 806 F.3d at 494 (“[P]roviding a summary of medical evidence in support of a residual
23 functional capacity finding is not the same as providing clear and convincing reasons for finding
24 the [plaintiff’s] symptom testimony is not credible.”).
25
10 Absent a finding of malingering, the “specific, clear, and convincing reasons” standard applies
26
because the ALJ found that Plaintiff has presented “objective medical evidence of an underlying
impairment ‘[that] could reasonably be expected to produce the pain or other symptoms alleged.’”
27
Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (quoting Bunnell v. Sullivan, 947 F.2d
1 The Court finds that the ALJ erred in rejecting Plaintiff’s testimony related to absenteeism.
2 As an initial matter, other than the testimony concerning leaving her home, the ALJ did not
3 identify the specific portions of Plaintiff’s testimony regarding her absenteeism that should be
4 discredited before providing reasons for discrediting such testimony. See AR 359, 365-369.
5 Therefore, the ALJ erred. Brown-Hunter, 806 F.3d at 489. In addition, the ALJ erred by finding
6 that Plaintiff’s testimony regarding her absenteeism was inconsistent with, and not supported by,
7 the medical evidence, for the reasons discussed below.
8 First, the ALJ failed to differentiate between different time periods in discounting
9 Plaintiff’s testimony. The period of alleged disability at issue spans from the alleged onset date in
10 2019 to the date of the ALJ’s decision in 2025. When discounting Plaintiff’s testimony, the ALJ
11 underscored that Plaintiff’s symptoms were “controlled and stable with medications,” that she had
12 transitioned to a “lower level of care due to reduction in symptoms,” and that she requested to
13 discontinue or decrease her medications in December 2022 and January 2023. AR 367-368. The
14 ALJ similarly stressed that, “during the second half of 2024,” Plaintiff “continued to report doing
15 well, with a positive response to therapy,” and she was able to manage the one “small depressive
16 episode” she had.11 AR 369. The ALJ heavily relied on medical records from late-2022 to the end
17 of 2024, to discount Plaintiff’s prior testimony regarding her absenteeism.12 AR 367-369 (citing
18 AR 1279, 1291, 1299, 1314, 1320, 1329, 1348, 1365, 1377, 1484, 1491, 1502). By doing so, the
19 ALJ did not properly consider medical evidence from earlier, which tends to support Plaintiff’s
20 testimony. See, e.g., AR 7, 308-311, 319-321, 804-805, 889-892, 1229-1230, 1237-1240. This
21 was error. See Smith v. Kijakazi, 14 F.4th 1108, 1113-1114 (9th Cir. 2021) (explaining that the
22
23
11 The ALJ also explained that two letters Plaintiff submitted were irrelevant because they were
from before Plaintiff’s alleged onset date, December 1, 2019. AR 365. These letters were from
24
former employers and demonstrated unsuccessful work attempts, prior to the onset date. AR 782-
784 (including letter dated December 4, 2018, less than one year before the alleged onset date,
25
reflecting failed work attempt). Failed work attempts leading up to the alleged onset date tend to
support, rather than detract from, Plaintiff’s testimony regarding her absenteeism and the episodic
26
nature of her mental impairments.
27 12 The ALJ’s citations to earlier medical records were to either mental status examinations or
records supporting the ALJ’s finding that Plaintiff’s treatment was routine and conservative, both
1 ALJ “erred by disregarding all of [plaintiff’s] testimony, including the portion about his early-
2 period incapacity, on the basis of inconsistencies only” supported by medical evidence from a
3 later-period).13
4 Second, the ALJ and the Commissioner repeatedly point to Plaintiff’s mental status
5 examinations (“MSEs”), which were consistently “unremarkable,” in support of discounting the
6 absenteeism testimony. Def. Br. at 10-13; AR 366-367, 369. The Ninth Circuit, however, has
7 explained that “treatment records must be viewed in light of the overall diagnostic record.”
8 Ghanim v. Colvin, 763 F.3d 1154, 1164 (9th Cir. 2014) (collecting cases). In this case, although
9 Plaintiff generally had “unremarkable” MSEs in 2020 and 2021, corresponding treatment notes
10 indicate that Plaintiff reported feeling worse on multiple occasions and that her “depression and
11 anxiety continue[d] to keep her from maintaining employment.” See, e.g., AR 318-321, 889-890,
12 892. In February 2022, Plaintiff was hospitalized and placed on a 5150 hold, when she went to a
13 behavioral urgent care clinic with symptoms of hearing voices that were telling her to drive off a
14 ravine. AR 7. Soon after, Plaintiff had “symptoms of depressed mood, struggling to engage in a
15 variety of activities, fatigue, oversleeping, disrupted sleep, low self-esteem, poor concentration,
16 anxious worry, and history of suicidal ideation [that] seem to stem from various traumas and
17 stressors she experienced throughout her life[.]” AR 797, 804-805 (March 15, 2022
18 comprehensive assessment, noting that Plaintiff’s “depressive symptoms make it difficult for her
19 get out of bed and engage in her activities of daily living, including working or eating”).
20 Overall, the record indicates that – despite largely consistent “unremarkable” MSEs –
21 Plaintiff did not experience significant improvement in her mental health conditions until around
22 mid-2023. See, e.g., AR 1239-1242, 1245-1246, 1251-1256, 1269-1272, 1277-1278, 1282-1283,
23 1294-1297, 1305-1306, 1316-1319; 1356-1357. In light of the medical records, even if the MSEs
24 “fail to support her testimony, they are legally insufficient on their own to discount Plaintiff’s
25
26
13 While in Smith the Ninth Circuit found the inconsistencies in the medical record supported
27 rejecting the later-period testimony, 14 F.4th at 1114, that is not the case here where the Court is
unable to discern the specific date through which the medical evidence supports Plaintiff’s
1 testimony.”14 Kimberly M. v. Comm’r, Soc. Sec. Admin., No. 23-cv-00087-HZ, 2024 WL 139941,
2 at *8 (D. Or. Jan. 12, 2024).
3 Third, the ALJ purported to outline Plaintiff’s history of mental health treatment, noting
4 that her treatment has been routine, conservative, unremarkable, and effective. AR 366-367, 369.
5 The Court disagrees. Plaintiff was prescribed and was taking the following psychiatric
6 medications for her depression and anxiety: Wellbutrin; Lexapro; Lorazepam; and Hydroxyzine.
7 See, e.g., AR 1314-1315, 1410-1411, 1420-1421. “Courts within the Ninth Circuit have
8 repeatedly held that taking psychiatric medications, including antipsychotics and antidepressants
9 such as the medications taken by Plaintiff, is not considered conservative treatment.” Wyatt A. v.
10 O’Malley, No. 24-cv-00712-SK, 2024 WL 5162651, at *3 (N.D. Cal. Dec. 17, 2024) (collecting
11 cases); see also Drawn v. Berryhill, 728 Fed. App’x. 637, 642 (9th Cir. 2018) (“[T]he ALJ
12 improperly characterized [plaintiff’s] treatment as ‘limited and conservative’ given that she was
13 prescribed a number of psychiatric medications.”). Likewise, the ALJ did not identify any more
14 aggressive treatment options that Plaintiff declined and “the record does not reflect that more
15 aggressive treatment options [we]re appropriate or available.” Lapeirre-Gutt v. Astrue, 382 Fed.
16 App’x. 662, 664 (9th Cir. 2010). Thus, the ALJ’s conclusion is not supported by substantial
17 evidence.
18 Finally, the ALJ mischaracterized the only part of Plaintiff’s testimony regarding her
19 absenteeism that the ALJ explicitly identified. The ALJ stated that Plaintiff “testified that she
20 does not leave the house often but otherwise has no problems leaving the house as needed.”
21 AR 359. But Plaintiff testified that she left the house “as needed” and if she did not “need
22 anything, then [she] did not leave the house.” AR 406-407; see also AR 719-720 (2023 functional
23 report stating that Plaintiff does not “go anywhere on a regular basis” and, although she “may
24 walk for 15 minutes on a good day,” she otherwise does “not leave [her] house”). She did not
25 testify that she had “no problems” leaving the house, as the ALJ suggested.15
26
27 14 This is particularly true here, where the ALJ failed to distinguish between the medical evidence
from different time periods that supports or detracts from Plaintiff’s testimony.
1 * * *
2 As outlined above, the ALJ did not provide specific, clear, and convincing reasons for
3 discounting Plaintiff’s absenteeism and ability to maintain regular attendance testimony. This
4 error was harmful. If her testimony had been properly credited and her absenteeism incorporated
5 into the RFC, it would have required a finding of disability at least through 2021.16 AR 67, 409,
6 410-411 (vocational expert testimony at the May 2021 and February 2025 hearings that, if
7 Plaintiff were to miss more than one day of work per month, she would be unemployable).
8 C. Remand
9 Plaintiff argues that the case should be remanded for an immediate award of benefits based
10 on the improper rejection of her absenteeism testimony. Pl. Br. at 25; Pl. Reply Br. at 10, ECF
11 No. 18. “An automatic award of benefits in a disability benefits case is a rare and prophylactic
12 exception to the well-established ordinary remand rule.” Leon v. Berryhill, 880 F.3d 1041, 1044
13 (9th Cir. 2018). The Court may remand for an immediate award of benefits only where: (1) the
14 ALJ has failed to provide legally sufficient reasons for rejecting the claimant’s testimony; (2) there
15 are no outstanding issues that must be resolved before a determination of disability can be made;
16 and (3) it is clear from the record that the ALJ would be required to find the claimant disabled
17 were such evidence credited. Id. at 1045. The Court must also determine, based on the record as a
18 whole, that there is no “serious doubt that [the] claimant is, in fact, disabled.” Garrison, 759 F.3d
19 at 1021. When these elements are satisfied, the Court “retain[s] ‘flexibility’ in determining the
20 appropriate remedy.” Brown-Hunter, 806 F.3d at 495 (citation omitted).
21 These requirements are satisfied for at least a portion of the Plaintiff’s claimed disability
22 period – from the alleged onset date through 2021. First, the ALJ failed to provide legally
23 sufficient reasons for discounting Plaintiff’s subjective testimony from May 2021. See supra
24
25 date were caused by the required exertion and skill level of those jobs rather than her mental
impairments appears to be based on conjecture and speculation. AR 366 (“Her unsuccessful
26 attempts to perform these jobs does not cause the undersigned to believe that the claimant would
not be able to perform other work[.]”).
27
16 Plaintiff also asserts that the ALJ erred by failing to consider her symptom statements in the
1 Section III.B. Second, there are no outstanding issues that must be resolved in terms of
2 developing the medical record. The Commissioner developed the record at multiple
3 administrative hearings. Third, the record shows that Plaintiff would be found disabled through
4 2021, if her absenteeism testimony from the 2021 hearing was credited as true. See AR 59-60
5 (testimony concerning missing work due to depression, which resulted in job termination), 890-
6 892 (treatment notes from August, November, and December 2021 indicating Plaintiff’s
7 “depression and anxiety continue to keep her from maintaining employment”); see also AR 67,
8 409 (vocational experts at both hearings testifying that if a claimant missed two or more days of
9 work per month, she would be unemployable). Accepting Plaintiff’s testimony from the 2021
10 hearing, including regarding the severity of her symptoms and that she was fired due to her
11 absences, there can be no serious doubt Plaintiff was disabled through at least 2021.17
12 When these elements are satisfied, the Court may consider how long the claimant has
13 waited to receive benefits. See Trevizo v. Berryhill, 871 F.3d 664, 683 (9th Cir. 2017). Plaintiff
14 first sought benefits nearly seven years ago. AR 167. This delay further counsels in favor of
15 remanding for an award of benefits. See Trevizo, 871 F.3d at 683 (finding that a delay of more
16 than seven years since claimant first sought benefits counseled strongly in favor of remand for
17 immediate payment of benefits).
18 Even though all the requirements for crediting as true and awarding benefits are met from
19 the onset date through at least 2021, the Court is unable to discern whether Plaintiff remains
20 disabled or, if not, whether a closed period of disability is more appropriate. The record contains
21 significant evidence that supports Plaintiff’s argument that her mental impairments are cyclical
22 and episodic in nature, and that her disability continued through 2022 and beyond. See, e.g.,
23
24
17 The Commissioner argues that “there are numerous conflicts that raise serious doubts about
Plaintiff’s alleged disability,” which prevent the Court from applying the credit-as-true doctrine.
25
But the Commissioner only provides one purported example: “the functional assessments of eight
doctors, all of whom [allegedly] found that Plaintiff was not as limited as she claimed.” Def. Br.
26
at 16. “[A]t no point does the ALJ explain that [s]he is finding Plaintiff’s testimony not credible
because the medical opinion evidence is inconsistent with Plaintiff’s subjective testimony.” Rosel
27
A. v. Saul, No. 20CV1098-MSB, 2021 WL 2588156, at *7 (S.D. Cal. June 23, 2021) (rejecting
1 AR 1239-1242, 1245-1246, 1251-1256, 1269-1272, 1277-1278, 1282-1283, 1294-1297, 1305-
2 1306, 1316-1319; 1356-1357. But because the Court is unable to determine if or when her
3 disability ended, the Court must remand for this determination. Bunnell v. Barnhart, 336 F.3d
4 1112, 1116 (9th Cir. 2003) (finding remand for further proceedings appropriate where “the timing
5 and duration of [plaintiff’s] disability” needed to be determined if Plaintiff was found disabled);
6 see also Phillips v. Colvin, No. 15-cv-01603-KI, 2016 WL 6666799, at *10 (D. Or. Nov. 9, 2016)
7 (remanding because, “while it is clear [plaintiff’s] mental impairments caused her to become
8 disabled at some point prior to her date last insured, it is not clear . . . that she is entitled to
9 ongoing disability benefits; rather, benefits for a ‘closed’ period of disability may be more
10 appropriate”).
11 On remand, the ALJ must credit Plaintiff’s testimony as true and find Plaintiff is disabled
12 from her alleged onset date through at least 2021. The ALJ must then determine whether the
13 medical evidence supports finding Plaintiff has an ongoing disability or if a closed period is
14 appropriate (and if so, the end date for that closed period). In doing so, the ALJ shall credit
15 Plaintiff’s testimony from both the 2021 and 2025 hearings. This includes Plaintiff’s testimony
16 regarding her inability to maintain class attendance in 2022. The ALJ shall incorporate Dr. Kim’s
17 finding that Plaintiff likely needs assistance and support in persistence and adaptability.18 The
18 ALJ shall revisit her step three analysis as to Listings 12.04 and 12.06,19 and reformulate the RFC
19 to include any additional limitations that are required. In doing so, the ALJ should be mindful of
20 the Court’s previous admonishments, particularly regarding the cyclical and episodic nature of
21 Plaintiff’s symptoms. Stephanie E., 2024 WL 1244474, at *4; see also Garrison, 759 F.3d at
22
18 The ALJ must “translat[e] and incorporate[e] [all] clinical findings into a succinct RFC,”
23
Rounds, 807 F.3d at 1006, or “explain why the ALJ chose not to accept them,” Megrditchian v.
O’Malley, No. 23-cv-01734-H-DEB, 2024 WL 4122458, at *5 (S.D. Cal. Sep. 9, 2024) (collecting
24
cases); see also Martin v. Comm’r of Soc. Sec. Admin., 472 F. App’x 580, 580 (9th Cir. 2012)
(“The [ALJ] erred when formulating [plaintiff’s] [RFC] because the RFC neither incorporated Dr.
25
Steiner’s opinion of [plaintiff’s] work limitations nor gave specific and legitimate reasons for
rejecting it.”).
26
19 See 20 C.F.R. pt. 404, subpt. P, app. 1 §§ 12.00B(3), 12.00B(5). When revisiting the step three
27 analysis, the ALJ should consider section 12.00G of the listing of impairments. Id. § 12.00G
(explaining how the Commissioner uses paragraph C criteria to evaluate a claimant’s mental
] 1017 (“Reports of ‘improvement’ in the context of mental health issues must be . . . interpreted
2 || with an awareness that improved functioning while being treated and while limiting environmental
3 stressors does not always mean that a claimant can function effectively in a workplace.”); Holohan
4 || v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001) (“That a person . . . makes some improvement
5 does not mean that the person’s impairments no longer seriously affect her ability to function in a
6 || workplace.”).
7 || IV. DISPOSITION
8 For the foregoing reasons, the Court finds that the ALJ erred by not incorporating Dr.
9 || Kim’s finding regarding the likely need for assistance and support to account for moderate
10 || limitations in concentration, persistence, and pace, and adaptability. Likewise, the ALJ erred in
11 rejecting Plaintiff's subjective testimony regarding her absenteeism. These errors were harmful
12 || and require reversal of the ALJ’s decision. On remand, the ALJ shall credit Plaintiffs
13 absenteeism testimony as true and determine whether Plaintiff is entitled to ongoing disability
14 || benefits. Ifthe ALJ finds a closed period is appropriate, the ALJ shall determine the appropriate
15 end date based on the medical record. In making these determinations, the ALJ shall follow the
a 16 || instructions set forth in this Order. Judgment will be entered.
17 IT IS SO ORDERED.
Zz 18 || Dated: September 15, 2026
19
Eumi K. Lee
20 United States District Judge
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