(SS) Fillmore v. Commissioner of Social Security ( 2021 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 HALEY J. FILLMORE, No. 2:20-CV-1599-DMC 12 Plaintiff, 13 v. MEMORANDUM OPINION AND ORDER 14 COMMISSIONER OF SOCIAL SECURITY, 15 Defendant. 16 17 18 Plaintiff, who is proceeding with retained counsel, brings this action for judicial 19 review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g). 20 Pursuant to the written consent of all parties, ECF Nos. 6 and 8, this case is before the 21 undersigned as the presiding judge for all purposes, including entry of final judgment. See 28 22 U.S.C. § 636(c). Pending before the Court are the parties’ briefs on the merits, ECF Nos. 16 and 23 17. 24 The Court reviews the Commissioner’s final decision to determine whether it is: 25 (1) based on proper legal standards; and (2) supported by substantial evidence in the record as a 26 whole. See Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). “Substantial evidence” is 27 more than a mere scintilla, but less than a preponderance. See Saelee v. Chater, 94 F.3d 520, 521 28 (9th Cir. 1996). It is “. . . such evidence as a reasonable mind might accept as adequate to support 1 a conclusion.” Richardson v. Perales, 402 U.S. 389, 402 (1971). The record as a whole, 2 including both the evidence that supports and detracts from the Commissioner’s conclusion, must 3 be considered and weighed. See Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986); Jones 4 v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The Court may not affirm the Commissioner’s 5 decision simply by isolating a specific quantum of supporting evidence. See Hammock v. 6 Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative 7 findings, or if there is conflicting evidence supporting a particular finding, the finding of the 8 Commissioner is conclusive. See Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). 9 Therefore, where the evidence is susceptible to more than one rational interpretation, one of 10 which supports the Commissioner’s decision, the decision must be affirmed, see Thomas v. 11 Barnhart, 278 F.3d 947, 954 (9th Cir. 2002), and may be set aside only if an improper legal 12 standard was applied in weighing the evidence, see Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th 13 Cir. 1988). 14 For the reasons discussed below, the matter will be remanded for further 15 proceedings. 16 17 I. THE DISABILITY EVALUATION PROCESS 18 To achieve uniformity of decisions, the Commissioner employs a five-step 19 sequential evaluation process to determine whether a claimant is disabled. See 20 C.F.R. §§ 20 404.1520 (a)-(f) and 416.920(a)-(f). The sequential evaluation proceeds as follows: 21 Step 1 Determination whether the claimant is engaged in substantial gainful activity; if so, the claimant is presumed 22 not disabled and the claim is denied; 23 Step 2 If the claimant is not engaged in substantial gainful activity, determination whether the claimant has a severe 24 impairment; if not, the claimant is presumed not disabled and the claim is denied; 25 Step 3 If the claimant has one or more severe impairments, 26 determination whether any such severe impairment meets or medically equals an impairment listed in the regulations; 27 if the claimant has such an impairment, the claimant is presumed disabled and the claim is granted; 28 1 Step 4 If the claimant’s impairment is not listed in the regulations, determination whether the impairment prevents the 2 claimant from performing past work in light of the claimant’s residual functional capacity; if not, the claimant 3 is presumed not disabled and the claim is denied; 4 Step 5 If the impairment prevents the claimant from performing past work, determination whether, in light of the claimant’s 5 residual functional capacity, the claimant can engage in other types of substantial gainful work that exist in the 6 national economy; if so, the claimant is not disabled and the claim is denied. 7 See 20 C.F.R. §§ 404.1520 (a)-(f) and 416.920(a)-(f). 8 9 To qualify for benefits, the claimant must establish the inability to engage in 10 substantial gainful activity due to a medically determinable physical or mental impairment which 11 has lasted, or can be expected to last, a continuous period of not less than 12 months. See 42 12 U.S.C. § 1382c(a)(3)(A). The claimant must provide evidence of a physical or mental 13 impairment of such severity the claimant is unable to engage in previous work and cannot, 14 considering the claimant’s age, education, and work experience, engage in any other kind of 15 substantial gainful work which exists in the national economy. See Quang Van Han v. Bower, 16 882 F.2d 1453, 1456 (9th Cir. 1989). The claimant has the initial burden of proving the existence 17 of a disability. See Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990). 18 The claimant establishes a prima facie case by showing that a physical or mental 19 impairment prevents the claimant from engaging in previous work. See Gallant v. Heckler, 753 20 F.2d 1450, 1452 (9th Cir. 1984); 20 C.F.R. §§ 404.1520(f) and 416.920(f). If the claimant 21 establishes a prima facie case, the burden then shifts to the Commissioner to show the claimant 22 can perform other work existing in the national economy. See Burkhart v. Bowen, 856 F.2d 23 1335, 1340 (9th Cir. 1988); Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); Hammock 24 v. Bowen, 867 F.2d 1209, 1212-1213 (9th Cir. 1989). 25 / / / 26 / / / 27 / / / 28 / / / 1 II. THE COMMISSIONER’S FINDINGS 2 Plaintiff applied for social security benefits on April 30, 2014. See CAR 26.1 In 3 the application, Plaintiff claims disability began on August 1, 2013. See id. Plaintiff’s claim was 4 initially denied. Following denial of reconsideration, Plaintiff requested an administrative 5 hearing, which was held on March 31, 2016, before Administrative Law Judge (ALJ) Christopher 6 C. Knowdell. In an April 26, 2016, decision, the ALJ concluded Plaintiff is not disabled based on 7 the following relevant findings: 8 1. The claimant has the following severe impairment(s): personality disorder; depression; and bipolar disorder; 9 2. The claimant does not have an impairment or combination of 10 impairments that meets or medically equals an impairment listed in the regulations; 11 3. The claimant has the following residual functional capacity: a full 12 range of work at all exertional levels; she is capable of simple routine tasks not at a production rate pace, but still capable of 13 meeting end of day goals; capable of occasional superficial interactions with public and superficial interactions with 14 coworkers; 15 4. Considering the claimant’s age, education, work experience, residual functional capacity, and vocational expert testimony, there 16 are jobs that exist in significant numbers in the national economy that the claimant can perform. 17 See id. at 28-35. 18 19 After the Appeals Council declined review on October 16, 2017, Plaintiff filed a 20 prior action for judicial review in this Court, Fillmore v. Berryhill, 2:17-CV-2470-DB. Following 21 briefing on the merits, the matter was remanded for further administrative proceedings. See CAR 22 378-84. Pursuant to the District Court’s remand order, the agency issues an order on April 10, 23 2019, directing that the case be referred for further administrative proceedings before an ALJ. 24 See id. at 386-87. In that order, the agency noted that Plaintiff had filed a subsequent claim on 25 January 31, 2018, which was duplicative of the original claim in light of further proceedings on 26 27 1 Citations are to the Certified Administrative Record (CAR) lodged on March 23, 28 2021, ECF No. 11. 1 that claim ordered by the District Court. See id. The ALJ was directed to issue a single new 2 decision on the consolidated claims. See id. 3 A second administrative hearing was held on May 26, 2020, before the same ALJ. 4 See id. at 327. At the second hearing, Plaintiff alleged a closed period of disability from August 5 1, 2013, through April 1, 2019. See id. (citing Exhibit 28E). In a June 10, 2020, decision, the 6 ALJ concluded Plaintiff is not disabled based on the following relevant findings: 7 1. The claimant has the following severe impairment(s): borderline personality disorder; depression; bipolar disorder; post-traumatic 8 stress disorder (PTSD); oppositional defiance disorder; and attention-deficit hyperactivity disorder (ADHD); 9 2. The claimant does not have an impairment or combination of 10 impairments that meets or medically equals an impairment listed in the regulations; 11 3. The claimant has the following residual functional capacity: a full 12 range of work at all exertional levels; she could understand, remember, and apply simple instructions; she could maintain 13 concentration, persistence, or pace for simple repetitive tasks; she could occasionally engage in superficial interactions with the 14 public, co-workers, and supervisors; she should avoid proximity to co-workers and overly close supervision; the claimant could adapt 15 to routine workplace changes with simple decisions; 16 4. Considering the claimant’s age, education, work experience, residual functional capacity, and vocational expert testimony, there 17 were jobs that existed in significant numbers in the national economy that the claimant could have performed during the closed 18 period of alleged disability. 19 See id. at 329-44. 20 After the Appeals Council declined further review, the current appeal followed. 21 22 III. DISCUSSION 23 In her opening brief, Plaintiff raises one argument – the ALJ erred in rejecting her 24 statements and testimony concerning symptoms and limitations. The Commissioner determines 25 the weight to be given to a claimant’s testimony and statements, and the Court defers to the 26 Commissioner’s discretion if the Commissioner used the proper process and provided proper 27 reasons. See Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996). An explicit finding must be 28 supported by specific, cogent reasons. See Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1 1990). General findings are insufficient. See Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). 2 Rather, the Commissioner must identify what testimony is given weight and what evidence 3 undermines the testimony. See id. Moreover, unless there is affirmative evidence in the record of 4 malingering, the Commissioner’s reasons for rejecting testimony as not credible must be “clear 5 and convincing.” See id.; see also Carmickle v. Commissioner, 533 F.3d 1155, 1160 (9th Cir. 6 2008) (citing Lingenfelter v Astrue, 504 F.3d 1028, 1936 (9th Cir. 2007), and Gregor v. Barnhart, 7 464 F.3d 968, 972 (9th Cir. 2006)). 8 If there is objective medical evidence of an underlying impairment, the 9 Commissioner may not discredit a claimant’s testimony as to the severity of symptoms merely 10 because they are unsupported by objective medical evidence. See Bunnell v. Sullivan, 947 F.2d 11 341, 347-48 (9th Cir. 1991) (en banc). As the Ninth Circuit explained in Smolen v. Chater: 12 The claimant need not produce objective medical evidence of the [symptom] itself, or the severity thereof. Nor must the claimant produce 13 objective medical evidence of the causal relationship between the medically determinable impairment and the symptom. By requiring that 14 the medical impairment “could reasonably be expected to produce” pain or another symptom, the Cotton test requires only that the causal relationship 15 be a reasonable inference, not a medically proven phenomenon. 16 80 F.3d 1273, 1282 (9th Cir. 1996) (referring to the test established in Cotton v. Bowen, 799 F.2d 1403 (9th Cir. 1986)). 17 18 The Commissioner may, however, consider the nature of the symptoms alleged, 19 including aggravating factors, medication, treatment, and functional restrictions. See Bunnell, 20 947 F.2d at 345-47. In weighing a claimant’s statements and testimony, the Commissioner may 21 also consider: (1) the claimant’s reputation for truthfulness, prior inconsistent statements, or other 22 inconsistent testimony; (2) unexplained or inadequately explained failure to seek treatment or to 23 follow a prescribed course of treatment; (3) the claimant’s daily activities; (4) work records; and 24 (5) physician and third-party testimony about the nature, severity, and effect of symptoms. See 25 Smolen, 80 F.3d at 1284 (citations omitted). It is also appropriate to consider whether the 26 claimant cooperated during physical examinations or provided conflicting statements concerning 27 drug and/or alcohol use. See Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). If the 28 claimant testifies as to symptoms greater than would normally be produced by a given 1 impairment, the ALJ may disbelieve that testimony provided specific findings are made. See 2 Carmickle, 533 F.3d at 1161 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989)). 3 The ALJ provided the following summary of Plaintiff’s statements and testimony: 4 The claimant alleges on her Disability Report in March 2018 that she struggles with bipolar disorder, borderline personality disorder, and 5 anxiety (Exhibit 19E). 6 In April 2018, a Function Report completed by the claimant indicated that she could not handle social interaction and struggled with mood swings, 7 hopelessness, suicidal thoughts, and helplessness due to depression. The claimant indicated that she sometime[s] has problems with personal care, 8 cooking, and doing household chores due to depression. The claimant reported that she tries to go outside often but struggles with fear of 9 socializing with others. The claimant indicated that she is capable of driving and shopping depending on her mood but has highs and lows when 10 shopping. The claimant indicated that she spends time with her family and close friends; she goes to her doctor’s appointments when reminded. 11 The claimant reported that her condition affects her memory, concentration, and understanding and her ability to talk, complete tasks, 12 follow instructions, and get along with others (Exhibit 21E). 13 CAR 332-33. 14 The ALJ added the following regarding Plaintiff’s hearing testimony: 15 At the hearing in 2016, the claimant testified that she struggled with anger issues and was not capable of dealing with people. However, she was able 16 to attend college full-time and obtain a BS in Sociology in 2015 from Sacramento State University. The claimant indicated that her GPA was 17 3.7 but she had some difficulty concentrating at school and at home but she continued to take three to six additional hours to complete school 18 assignments (Exhibit 5F/17). The claimant testified to no formal accommodations other than going to her professors with a doctor’s note 19 that allowed her to sit at the front of her lectured class. The claimant testified that she does not like to go to the store and shop, but she can 20 interact with someone to buy items. The claimant indicated that she has two close friends, which suggest[s] some ability to handle social 21 interactions. 22 At a subsequent hearing in May 2020, the claimant testified that she has returned to work, working part-time as a behavioral therapist aid, working 23 with autistic children. The claimant indicated that she had been applying for jobs since she graduated from college. 24 However, the claimant testified that she was not able to work from 2013 25 through 2018 because she was not able to socially deal with others. The claimant indicated that she use[d] to have a lot of road rage, could not 26 focus, and lashed out on others. The claimant also reported that she could not handle change but she can now; she struggled with mood swings. The 27 claimant testified that she would sit in her classroom and could not remember anything due to her memory and concentration problems. The 28 1 claimant requested a closed period of disability from August 1, 2013, through April 1, 2019. 2 CAR 333. 3 4 The ALJ also summarized a third-party report submitted by Plaintiff’s mother, Ms. 5 Denise Binford: 6 A Third Party Function Report completed by the claimant’s mother Ms. Denise Binford indicated that the claimant was combative, aggressive, and 7 unable to follow directions. The claimant struggles with highs and lows, which affects her functionality due to depressive episodes. The claimant 8 sometimes [has] problems with personal care due to depression. The claimant is capable of cooking simple meals but need[s] help completing 9 household chores. The claimant rarely goes outside; she is capable of driving and shopping but she took the claimant’s credit card because of 10 her excessive spending. Th claimant socializes with people that come[] to her house to visit and she is capable of going to her doctor’s appointment 11 but with constant reminders. The claimant’s condition affects her ability to sit, hear, and see, and affects her memory, concentration, understanding, 12 completing tasks, following instructions, and getting along with others (Exhibit 22E). 13 CAR 333. 14 15 In evaluating the weight to be given Plaintiff’s statements and testimony, the ALJ 16 first engaged in a detailed comparison of Plaintiff’s statements and testimony to the longitudinal 17 medical record. The ALJ stated: 18 . . . In May 2014, her mental status examination revealed fair eye contact, cooperative attitude, poor energy, dysphoric mood, normal affect, linear 19 thought process, adequate insight, fair judgment, fair memory but poor remote memory, and grandiose thought content. Diagnoses were type I 20 bipolar disorder and oppositional defiant disorder. The claimant was oriented to person, place, and situation (Exhibit 2F/3-4). 21 From May 2014 through December 2014, the records showed that the 22 claimant continued to receive treatment from Sacramento Mental Health (Exhibits 3F- 4F). Her mental status examinations revealed depressed 23 mood, pressured speech, normal eye contact but was intermittently tearful, impaired/fair insight and judgment, and intact cognition in June 2014; 24 otherwise, her mental status examination was within normal limits, except for slightly pressured speech in December 2014 (Exhibits 3F/2; 4F/1; 25 5F/17). Diagnoses were borderline personality disorder and bipolar disorder, and mood disorder (Exhibits 3F/2, 4F/12). 26 Progress notes also documented that she was not taking any psychotropic 27 medication and the treating source prescribed medication in June 2014 and changed it in July 2014 (Exhibits 3F/1, 4F/2). In July 2014, the claimant 28 reported that she struggled with mood swings, racing thoughts, and 1 hopelessness but she was one year away of finishing her BA at Sacramento State University; she is majoring in Sociology and minoring 2 in Psychology, and planning to go into family law (Exhibit 4F/1). In December 2014, the claimant reported that she was doing better in school; 3 she has life goals, and understands the steps she needs to take in order to complete her objective (Exhibit 5F/18). 4 January 2015, the claimant reported "doing well," feeling overall better 5 and more confident (Exhibit 5F/15). Her mental status examination revealed good eye contact, slightly pressured speech, anxious affect, and 6 slightly disorganized thought process. The treating source noted that the claimant was improving with psychotropic medication (Exhibit 5F/15- 7 16). In April 2015, the claimant stated that her medications were working well, helping her with her mood swings, anger outbursts, impulsivity, and 8 she was taking them consistently. She reported maintaining two close friendships. Her mental status examination was within normal limits 9 (Exhibit 5F/13-14). 10 In May 2015, the claimant reported that she continued to enjoy college and was doing well in her classes (Exhibit 5F/11). The treating source 11 noted that medication controlled her borderline personality disorder and mood disorder (Exhibit 5F/12). In June 2015, the claimant reported that 12 she was looking forward for graduation; she has a 3.7 GPA for five classes and she enjoys spending time with her two-year old son; she has maintain 13 good relationship with her mother and the father of her son. Her mental status examination was within normal limits (Exhibit 5F/9-10). 14 In September 2015, the claimant reported that she stopped taking Geodon 15 because she felt very sleepy with the medication, and her sleepiness interfered with her driving and her concentration in class. Her mental 16 status examination was within normal limits; she was alert and cooperative and started on a new medication (Exhibit 5F/7). 17 In November 2015, her mental status examination was within normal 18 limits, except for depressed/anxious mood and spontaneous speech. The treating source noted that the claimant’s symptoms were poorly controlled 19 on her current dose of Risperidone, and thus, increased her medication doses (Exhibit 5F/5-6). 20 However, in January 2016, the claimant reported that the increased 21 medication controlled her symptoms and she was functioning better. Her mental status examination was within normal limits. The treating source 22 noted that the claimant was doing well on Risperidone and she overall improved. Diagnoses were mood disorder NOS, borderline personality 23 disorder, and a GAF of 66 (Exhibits 5F/3-4; 6F/4-5). 24 In April 2016, progress notes from Sacramento Mental Health documented that the claimant has a history of mood disorder NOS and borderline 25 personality disorder. The claimant missed several appointments since January 2016; the claimant reported that she ran out of psychotropic 26 medications in March 2016 and had not taken medication for two weeks. The claimant also reported that she graduated from Sacramento State in 27 December 2015 and plans to pursue a degree in law (Exhibit 6F/1). Her mental status examinations were within normal limits and the claimant 28 indicated that her plans are to stabilize her symptoms prior to applying for 1 jobs. The claimant endorsed that Risperidone controls her symptoms; therefore, treating psychiatrist Dr. Puja Chadha indicated that the claimant 2 should continue with her medication (Exhibit 6F/2). 3 On July 13, 2016, her mental status examination was within normal limits, except for slightly rushed speech. Dr. Chadha restarted the claimant on 4 Risperidone (Exhibit 9F/5). 5 On August 16, 2016, the claimant reported that she started cutting herself and was getting into verbal altercations since being off psychotropic 6 medications for the past two months but she is trying to get back on her psychotropic medications. The claimant also indicated that she has 7 being going to counseling for a while and it helps her stay well. Her mental status examination was within normal limits, except for fair 8 memory and judgment. Diagnoses were borderline personality disorder, mood disorder NOS, and a GAF of 60 (Exhibits 7F/1, 3, 5; 16F/17). 9 On September 26, 2016, Dr. Chadha indicated that the claimant has been 10 off her medication for the past one and a half weeks to two weeks. The claimant reported that she ran out of medication and was unable to go to 11 the clinic. Dr. Chadha noted that the medication works well, when she takes it (Exhibit 9F/1). Her mental status examination revealed good eye 12 contact, appropriate affect, normal speech, and normal mood; the theme was restarting her medication for mood stability. Diagnoses were type II 13 bipolar disorder and borderline personality disorder (Exhibit 9F/2). 14 On October 12, 2016, the claimant reported that she was not compliant with medication and she enjoys her outpatient therapy with her counselor 15 (Exhibit 10F/3). Her mental status examination was within normal limits (Exhibit 10F/4). On November 14, 2016, the claimant did not attend her 16 appointment and the office gave her a reminder call (Exhibit 10F/5-6). On November 22, 2016, the claimant reported that she does not take her 17 medication, maybe “three times a month or so” and declined in making medication adjustment. Her mental status examination was normal, 18 except for fair judgment and somewhat down mood (Exhibit 10F/9-10). 19 On December 8, 2016, the claimant indicated that she missed her appointment because she overslept (Exhibit 10F/12). The claimant missed 20 her appointments in January 2017 (Exhibit 10F/14-20). On February 22, 2017, the claimant reported that she is on a low dose of Risperdal and was 21 happy. Her mental status examination was within normal limits (Exhibit 10F/22-23). 22 The claimant missed her appointments in March 2017 (Exhibit 10F/25- 23 29). On April 5, 2017, her mental status examination was within normal limits, except for slightly disheveled hair (Exhibit 10F/31). The claimant 24 missed the remainder of her appointments from April 2017 through May 2017 (Exhibit 10F/33-39). However, during her psychotherapy session on 25 May 17, 2017, the claimant reported that she was depressed due to not being able to get pregnant. Her mental status examination was within 26 normal limits (Exhibit 16F/34). 27 / / / 28 / / / 1 On June 5, 2017, her mental status examination was normal, except for spontaneous speech. The claimant reported that she started smoking 2 cannabis to help her relax. Dr. Chadha increased her medication (Exhibit 10F/40-41). On July 1, 2017, the claimant reported that her mood was 3 more stable on her current medication. Her mental status examination was within normal limits, except for spontaneous speech (Exhibit 10F/45-46). 4 From July 3, 2017 through October 11, 2017, the claimant missed her doctor’s appointments (Exhibit 10F/48-56). 5 During psychotherapy on September 13, 2017, the claimant reported that 6 things are “good” and she was eight weeks pregnant; she was excited and happy. Her mental status examination was within normal limits (Exhibit 7 16F/44). On October 13, 2017, the claimant reported that she was not taking any psychotropic medication due to her pregnancy. The 8 claimant indicated that her estimated due date is in April 2018. Her mental status examination was normal, except for spontaneous speech (Exhibit 9 10F/57-58). 10 On December 1, 2017, the claimant reported that she was currently looking for jobs and received some interviews. However, she was 11 optimistic that she will achieve employment and she was still not taking any psychotropic medication due to her pregnancy. Her mental status 12 examination was normal. Dr. Russell Lim noted that the claimant continues to see her therapist regularly, checks in with APSS, and uses 13 methods to deal with anxiety and mood swings (Exhibit 10F/67- 68). 14 On January 26, 2018, the claimant reported that she was doing well but 15 had some anxiety. Her mental status examination was within normal limits, except she was slightly anxious. Dr. Lim noted that the claimant 16 could take low dose of psychotropic medications for her anxiety but the claimant does not want to take medications at this time due to pregnancy 17 (Exhibit 10F/71-72). On March 13, 2018, the claimant reported that she was happy due to her planned pregnancy and denied having panic attacks 18 but endorsed having some anxiety. Her mental status examination was within normal limits (Exhibit 10F/77-78). 19 On March 30, 2018, an interviewer from the Field Office observed and 20 noted that the claimant had no problems with understanding, coherency, concentrating, talking and answering questions. The claimant did not 21 exhibit any signs of delay or difficulty in her attention or focus (Exhibit 17E). 22 On June 18, 2018, the claimant reported that she is not taking psychotropic 23 medication because she is adjusting to being a single parent of two children. Her mental status examination was normal (Exhibit 12F/83-84). 24 On August 8, 2018, the claimant reported that she was breastfeeding and was not currently taking any psychotropic medications. The claimant 25 indicated that she was doing fairly well and her mood has been very stable with caring for her newborn. Her mental status examination was normal 26 (Exhibit 12F/88-89). 27 / / / 28 / / / 1 On November 27, 2018, the claimant reported that she was not taking any psychotropic medications while breastfeeding but was doing well. Her 2 mental status examination was normal (Exhibit 12F/95-96). 3 On January 10, 2019, the claimant reported that she is not taking medications and prefers to hold off on psychotropic medications and feels 4 that breastfeeding helps her mood. Her mental status examination was normal (Exhibit 12F/100-101). On March 27, 2019, her mental status 5 examination was within normal limits (Exhibit 12F/105). 6 On June 30, 2019, the claimant indicated that she was not taking psychotropic medication at this time. The claimant also reported that she is 7 weaning from breastfeeding due to resuming working. The claimant asked about clarifying her diagnoses including, “no longer meeting borderline 8 personality disorder because her prominent issue is struggling with interactions of trauma. The claimant that she has intermittent impulses but 9 her impulses are fleeting and she is able to “think things through.” The claimant stated that she would explore resuming Risperdal for her 10 symptoms but denied anger outburst and feel supported by her mother (Exhibit 12F/112). 11 Her mental status examination was within normal limits. Diagnoses were posttraumatic stress disorder, borderline personality disorder, panic 12 disorder, and type II bipolar disorder by history (Exhibit 12F/113). Psychiatrist Dr. Puja Chadha prescribed Risperdal for the claimant to 13 restart (Exhibit 12F/114). 14 On August 13, 2019, the claimant reports that she has not needed to take her psychotropic medication; she has been feeling well, although, she has 15 episodes of getting overwhelmed but was able to walk away for the situation. The claimant attributed her episodes of feeling overwhelmed to 16 having multiple different responsibilities in her life, including a part-time job as an ABA therapist, caring for two children, and caring for her 17 mother. She reported that she is doing well at her job despite occasional internal conflicts between the strict ABA guidelines. The claimant 18 reported that she has a good relationship with her new case manager and meet with her every two weeks (Exhibit 12F/116). Her mental status 19 examination was normal and has appropriate ways of coping with stress. Treating psychiatrist Dr. Chadha noted that the claimant has been using 20 her coping skills instead of medications (Exhibit 12F/117). 21 On December 30, 2019, treating psychiatrist Dr. Chadha indicated that the claimant’s examination was within normal limits; she was able to follow 22 the flow of conversation with good attention. The claimant is able to work, perform self-care and care for the needs of her children. The claimant has 23 excellent social functioning skills, excellent concentration, and excellent adaptation to work. Dr. Chadha noted that the claimant has significantly 24 progressed since 2014 and has benefitted from therapy and medications (Exhibit 17F/4-7). 25 CAR 334-38. 26 27 / / / 28 / / / 1 The ALJ next compared Plaintiff’s statements and testimony to the various 2 medical opinions in the record. The ALJ stated: 3 . . . Dr. Larry Kravitz in July 2014 from the State agency determined that the claimant could perform simple instructions and some detailed 4 instructions; the claimant is limited to superficial interaction with others and no overly close supervision or working in close proximity to others 5 (Exhibit 1A/6-8). Dr. Randall Garland in October 2014 from the State agency affirmed Dr. Kravitz’ medical opinions (Exhibit 3A/6-8). 6 On September 14, 2016, a mental medical source statement completed by 7 Dr. P. Chadha indicated that the claimant’s ability to maintain attendance during a workday or workweek, maintain consistent pace, interact with the 8 public and coworkers, and respond to changes in a routine setting were markedly limited (Exhibit 8F/1). However, the claimant needs to engage 9 in therapy more consistently and take her medications more regularly for full benefits and better stabilization to help improve limitations and her 10 ability to work (Exhibit 8F/5). 11 On May 23, 2018, Dr. Joshua Boyd from the State agency determined that the claimant could perform simple routine tasks with no public interaction 12 and could occasionally interact with coworkers and supervisors. The claimant is able to adapt and respond appropriately to changes in a 13 simple routine work setting (Exhibit 14A/7-9). 14 On March 14, 2019, psychiatrist Dr. Chadha indicated that the claimant could perform simple tasks and make simple judgments on simple work- 15 related decisions; the claimant’s ability to perform work on a consistent basis, interact with the public and co-workers, and respond appropriately 16 to changes in a routine setting were moderately limited. The claimant’s ability to interact appropriately with supervisors were markedly limited 17 (Exhibit 11F/2-3). Dr. Chadha indicated that the claimant was not taking any medications due to breastfeeding but recommend that the claimant 18 could return to work, working part-time in a low stress environment (Exhibit 11F/6-7). 19 On December 23, 2019, a mental assessment completed by treating 20 psychiatrist Dr. Chadha indicated that the claimant is currently performing exceptionally and would not have any problems understanding simple or 21 complex instructions. The claimant is able to respond to supervision, coworkers, and work pressures in a work setting. The claimant would need 22 to coordinate and distance herself from situations, which she is handling well with good self-awareness (Exhibit 17F/1-3). 23 On May 11, 2020, a mental assessment completed by treating psychiatrist 24 Dr. Chadha indicated that the claimant is able to understand, remember, and carry out simple and detailed instructions; the claimant has slight 25 problems interacting with supervisors, co-workers, and the public and responding appropriately to changes in a routine work setting. The 26 claimant is consciously working on how to adapt better. Her mental status examination was normal; the claimant is a single successful caregiver for 27 two children, working, and independent of activities of daily living (Exhibit 20F). 28 1 As stated earlier, medical expert Dr. Layton opined that the claimant has moderate limitations in understanding, remembering or applying 2 information, interacting with others, maintaining concentration, persistence, or pace, and adapting or managing oneself because of her 3 inconsistency with medications. Dr. Layton indicated that the claimant is now working a high stress job, working with autistic children. Dr. Layton 4 recommended simple routine work with minimum changes and occasional superficial interaction with others; the claimant is able to complete 5 projects on her own but not with a team. During the timeframe of 2013- 2019, Dr. Layton indicated that the claimant did not struggle with regular 6 attendance at Sacramento State University. 7 CAR 338-39. 8 Finally, the ALJ considered Plaintiff’s subjective complaints pursuant to Social 9 Security Ruling (SSR) 16-3p: 10 The undersigned now considers the claimant’s subjective complaints as required by the Regulations and Social Security Ruling of SSR 16-3p, 11 noting that the claimant testified in 2016, the claimant testified that she struggled with anger issues and was not capable of dealing with people. 12 The claimant testified in May 2020 that she has returned to work, working part-time as a behavioral therapist aid, working with autistic children. The 13 claimant indicated that she has been applying for jobs since she graduated from college. 14 Regarding the claimant’s testimony in 2016 of not being capable of 15 dealing with people, the claimant reported in July 2014 that she struggled with mood swings, racing thoughts, and hopelessness but she was one year 16 away of finishing her BA degree at Sacramento State University. The claimant indicated that she was majoring in Sociology and minoring in 17 Psychology, and planning to go into family law (Exhibit 4F/1). 18 The records also showed that she was able to attend college full-time and obtain her BS in Sociology in 2015 from Sacramento State University. 19 The claimant indicated that her GPA was 3.7; although, she had some difficulty concentrating at school and at home but she continued to 20 study three to six additional hours to complete school assignments. In May 2015, the claimant reported that she continues to enjoy college and was 21 doing well in her classes (Exhibit 5F/9-11, 17). 22 In January 2016, the claimant reported that the increased medication controlled her symptoms and she was functioning better. Her mental status 23 examination was within normal limits (Exhibits 5F/3-4; 6F/4-5). 24 From April 2016 through December 2016, the medical evidence showed that she missed many of psychiatric doctor’s appointments and was not 25 consistent with her psychotropic medication (Exhibits 6F; 10F). In September 2016, treating psychiatrist Dr. Chadha indicated that the 26 claimant has been off her medication for the past one and a half weeks to two weeks. Dr. Chadha noted that the medication works well, when she 27 takes it (Exhibit 9F/1). During her examination, the theme was restarting her medication for mood stability (Exhibit 9F/2). In November 2016, 28 1 the claimant reported that she does not take her medication, maybe “three times a month or so” and declined in making medication adjustment 2 (Exhibit 10F/9-10). 3 From March 2017 through March 2018, the records continued to document that the claimant missed many doctor’s appointments; she was 4 inconsistent with psychotropic medication and eventually stopped taking psychotropic medication due to pregnancy (Exhibits 10F/25-29, 33-39, 5 40-41, 45-46, 48-56, & 71-72). In September 2017, the claimant reported that she was excited about being pregnant. Her mental status examination 6 was within normal limits (Exhibit 16F/44). 7 In October 2017, the claimant reported that she was not taking any psychotropic medication due to her pregnancy (Exhibit 10F/57-58). In 8 December 2017, the claimant reported that she was currently looking for jobs and received some interviews; she was optimistic that she would 9 achieve employment (Exhibit 10F/67-68). In March 2018, the claimant reported that she was happy due to her planned pregnancy and denied 10 having panic attacks (Exhibit 10F/77-78). 11 From June 2018 through November 2018, the claimant reported that she was not taking any psychotropic medication due to breastfeeding her baby. 12 The claimant indicated that she was doing fairly well and her mood has been very stable with caring for her newborn. Her mental status 13 examination was normal (Exhibit 12F/83-84, 88-89, 95-96). 14 From January 2019 through March 2019, the claimant reported that she is not taking medications; she prefers to hold off on psychotropic 15 medications because breastfeeding was helping her mood. Her mental status examination was normal (Exhibit 12F/100-101, 105). 16 In June 2019, the claimant indicated that she was not taking psychotropic 17 medication at this time. Her mental status examination was within normal limits and treating psychiatrist Dr. Chadha prescribed Risperdal for the 18 claimant to restart (Exhibit 12F/112-114). 19 However, the claimant reported in August 2019 that she has not needed to take her psychotropic medication because was feeling well, although, she 20 has had episodes of getting overwhelmed but she was able to walk away for the situation. The claimant reported that she is doing well at her 21 job despite occasional internal conflicts between the strict ABA guidelines and she has a good relationship with her new case manager. Treating 22 psychiatrist Dr. Chadha noted that the claimant has been using her coping skills instead of medications (Exhibit 12F/116-117). 23 Lastly, an interviewer from the Field Office in March 2018 observed and 24 noted that the claimant had no problems with understanding, coherency, concentrating, talking and answering questions. The claimant did not 25 exhibit any signs of delay or difficulty in her attention or focus (Exhibit 17E). 26 In December 2019, treating psychiatrist Dr. Chadha indicated that the 27 claimant’s examination was within normal limits; she was able to follow the flow of conversation with good attention. The claimant is able to work, 28 perform self-care and care for the needs of her children. The claimant has 1 excellent social functioning skills, excellent concentration, and excellent adaptation to work. Dr. Chadha noted that the claimant has significantly 2 progressed since 2014 and has benefitted from therapy and medications (Exhibit 17F/4-7). 3 At a subsequent hearing in May 2020, the claimant testified that she has 4 returned to work, working part-time as a behavioral therapist aid, working with autistic children. The claimant indicated that she had been applying 5 for jobs since she graduated from college. 6 Thus, the records showed from the application date of April 30, 2014 through September 2019 (the date the claimant earned less than substantial 7 gainful activity), the claimant condition was well controlled when she consistently took her medication and she was capable of completing 8 college with a GPA of 3.7 (Exhibits 4F/1; 5F/9-11, 17). 9 CAR 339-41. 10 Plaintiff first argues, generally, that the ALJ “failed to identify specifically which 11 statements were unsupported [by the medical evidence] and failed to explain why.” ECF No. 16, 12 pg. 14. Next, Plaintiff contends the ALJ erred by relying on periods of time when Plaintiff’s 13 mental health symptoms were improved. See id. at 14-18. Next, Plaintiff takes issue with the 14 ALJ’s reliance on Plaintiff’s ability to attend college through 2015 and earn a bachelor’s degree. 15 See id. at 18-19. Finally, Plaintiff argues that the ALJ erred in relying on evidence that Plaintiff 16 at times failed to take her medications. See id. at 19-20. 17 A. Identification and Explanation of Evidence 18 According to Plaintiff: 19 The ALJ first states that Fillmore’s statements about intensity, persistence, and limiting effects of symptoms are “inconsistent with 20 treatment records and activities of daily living.” AR 334. The ALJ proceeds to summarize medical evidence. AR 334-341. In doing so, the 21 ALJ failed to identify specifically which statements were unsupported and failed to explain why. See Brown-Hunter v. Colvin, 806 F.3d 487, 949 22 (9th Cir. 2015) (finding error where the ALJ stated that the testimony was unsupported then summarized evidence without identifying specifically 23 which statements were unsupported and why). 24 ECF No. 16, pg. 14. 25 In Brown-Hunter, the Ninth Circuit stated that the court should not “fault the 26 agency for explaining its decision with ‘less than ideal clarity.’” 806 F.3d at 492 (quoting 27 Treichler v. Comm’r of Soc. Sec., 775 F.3d 1090, 1099 (9th Cir. 2014)). The court nonetheless 28 concluded that “we still demand that the agency set forth the reasoning behind its decisions in a 1 way that allows for meaningful review.” 806 F.3d at 492. The Ninth Circuit has also stated that a 2 finding regarding the weight given to a claimant’s testimony “must be sufficiently specific to 3 allow a reviewing court to conclude the adjudicator rejected the claimant’s testimony on 4 permissible grounds and did not arbitrarily discredit a claimant’s testimony regarding pain.” 5 Bunnell, 947 F.3d at 345-46. 6 In Treichler, the Ninth Circuit rejected an ALJ’s evaluation of the claimant’s 7 subjective statements and testimony based only on a “single general statement that ‘the claimant’s 8 statements concerning the intensity, persistence, and limiting effects of these symptoms are not 9 credible to the extent they are inconsistent with the above residual functional capacity 10 assessment.’” 775 F.3d at 1102-03. The court concluded the ALJ in Brown-Hunter “made the 11 same identical conclusory statement and likewise failed to identify specifically which of Brown- 12 Hunter’s statements she found not credible and why.” 806 F.3d at 493. The court added: “Our 13 review of the ALJ’s written decision reveals that she . . . simply stated her non-credibility 14 conclusion and then summarized the medical evidence supporting her RFC determination.” Id. at 15 494. The Ninth Circuit concluded in Brown-Hunter that, to avoid legal error, the ALJ must 16 identify the statements and testimony being assigned less weight and link that testimony to 17 particular parts of the record supporting the determination. See id. 18 Here, the ALJ summarized Plaintiff’s statements and testimony and then provided 19 a lengthy and detailed summary of the longitudinal medical record. See CAR 334-38. The Court 20 has thoroughly reviewed each of the ALJ’s references to specific portions of the medical record 21 over time and does not find any link between such references and Plaintiff’s statements or 22 testimony. Given this defect, it is impossible to determine why the ALJ might have thought a 23 particular portion of the medical record undermined any specific part of Plaintiff’s statements or 24 testimony. It is also thus impossible to engage in any meaningful review. For these reasons, the 25 Court agrees with Plaintiff that the ALJ’s analysis of her statements and testimony is flawed, at 26 least to the extent it relies on purported inconsistencies with the medical record, which the ALJ in 27 this case has not identified. The Court will nonetheless consider whether other reasons cited by 28 the ALJ support the ALJ’s evaluation of Plaintiff’s statements and testimony. 1 B. Reliance on Periods of Improved Symptoms 2 Plaintiff asserts: 3 The ALJ cites to various periods where Fillmore was either doing well or improved with treatment. AR 335-341. As the Ninth Circuit has 4 acknowledged, in cases involving mental health, “[c]ycles of improvement and debilitating symptoms are a common occurrence.” Garrison v. Colvin, 5 759 F.3d 995, 1017 (9th Cir. 2014) (citation omitted). This is particularly true where the underlying impairment is a bipolar disorder. See Buck v. 6 Colvin, 540 Fed. Appx. 772, 773 (9th Cir. 2013) quoting Agyeman v. I.N.S., 296 F.3d 871, 881 (9th Cir. 2002) (“Bipolar disorder is a severe 7 psychiatric illness marked by episodes of mania and depression, impairment of functioning—both cognitive and behavioral, and is 8 frequently complicated by psychotic symptoms (e.g. delusions, hallucinations, and disorganized thinking).”) (emphasis in original). 9 Although this record shows ups and downs early-on, it was not until much later that Fillmore figured out how to use the skills she 10 developed with her psychiatrist and counselor to have a level of sustained improvement. AR 301. . . . 11 ECF No. 16, pgs. 14-15. 12 13 Plaintiff then outlines the following timeline of cycles of improvement and decline 14 between May 2014 and August 2018: 15 May 2014 Plaintiff presented with cooperative attitude but poor energy and dysphoric mood. Plaintiff’s 16 memory was fair, but her remote memory was poor and she had grandiose thought content. ECF No. 17 16, pg. 15 (citing CAR 233-34). 18 June 2014 Plaintiff reported to her doctor that she gets angry easily, has mood swings, and experiences “road 19 rage.” Plaintiff also reported difficulty concentrating, especially in class when she would 20 “zone out” during lectures. Plaintiff presented with normal eye contact, but with a labile mood and 21 pressured and loud speech. Plaintiff was also intermittently tearful. Her thought content was 22 tangential, hard to follow, and difficult to redirect. ECF No. 16, pg. 15 (citing CAR 240-41). 23 July 2014 Plaintiff presented as disheveled with fast and 24 slightly pressured speech. Her thought content was logical and coherent, but she “rambled and needed 25 frequent redirection” at times. Plaintiff reported occasionally getting violent. While she was taking 26 Abilify, Plaintiff reported that it caused daily headaches. ECF No. 16, pg. 15 (citing CAR 251). 27 28 / / / 1 December 2014 Plaintiff reported getting good grades but that it took her three to six extra hours to complete 2 assignments compared to her peers. Plaintiff presented with a happy yet anxious affect within a 3 normal range. Her thought content was circumstantial with slightly disorganized exchange. 4 ECF No. 16, pg. 15 (citing CAR 280). 5 September 2015 Plaintiff reported that she had stopped taking her medication – Geodon – one week prior because it 6 made her very tired, and the sleepiness affected her ability to drive and concentrate and made her fall 7 asleep in class. Plaintiff’s medication was switched to Risperidone. ECF No. 16, pg. 16 (citing CAR 8 270-71). 9 November 2015 Plaintiff reported hearing intermittent voices telling her to harm herself. While Plaintiff reported that 10 her mood was fine, she exhibited an anxious, depressed, and frustrated mood. Plaintiff’s doctor 11 reported that Plaintiff’s borderline personality and mood disorders were poorly controlled and 12 increased Plaintiff’s dosage of Risperidone. Despite the increased dosage, Plaintiff presented at 13 her next appointment as irritable and agitated. Plaintiff endorsed impulsive thoughts, specifically 14 around spending large amounts of money. Plaintiff also reported difficulty finding a job due to poor 15 concentration and straying off-topic during interviews. ECF No. 16, pg. 16 (citing CAR 266- 16 68). 17 April 2016 Plaintiff states she “returned to treatment” in April 2016 “after missing appointments due to scheduling 18 difficulties.” Plaintiff reported marked irritability, overthinking, unprovoked anger, and difficultly 19 concentrating since running out of Risperidone two weeks earlier. She continued to endorse impulsive 20 thoughts and reported spending $1,100.00 on a computer “because she felt like she needed to buy 21 something.” ECF No. 16, pg. 16 (citing CAR 713). 22 June 2016 Plaintiff reported that she recently stopped taking Risperidone because it made her extremely sleepy 23 and restless.” Plaintiff reported that, since discontinuing her medication, she experienced a 24 quick temper and had cut her wrist “to cope with emotional pain.” ECF No. 16, pgs. 16-17 (citing 25 CAR 767). 26 September 2016 Plaintiff reported that medications Geodon, Latuda, and Abilify “didn’t work.” She also reported that 27 she felt very tired on Risperidone. Plaintiff reported that she ran out of medication “because her case 28 was prematurely closed after her caseworker left.” 1 Plaintiff demonstrated impulsive spending, stating that she recently purchased a new Jeep “on a whim” 2 even though she could not drive it. Plaintiff’s doctor recommended re-starting Plaintiff on a low 3 dose of Risperidone. ECF No. 16, pg. 17 (citing CAR 763-65). 4 November 2016 Plaintiff reported cycling between depression and 5 hypomania. She also reported that her medication helped her “stay regulated.” Plaintiff reported that 6 Geodon, Latuda, and Abilify were ineffective and expressed that she was “scared to death” to try 7 Lithium due to potential side effects. Plaintiff’s doctor stated that “current compliance does not 8 seem to be an issue as she only reports missing x3 doses per month.” ECF No. 16, pg. 17 (citing CAR 9 780-81). 10 February 2017 Plaintiff reported that she had a physical altercation with her rather-in-law, which resulted in Plaintiff 11 having to “take him down to the ground.” Plaintiff reported that she was happy with the current dose of 12 Risperidone “because it does not make her drowsy,” but Plaintiff wanted “more control” over her 13 symptoms, which vary on different days. ECF No. 16, pgs. 17-18 (citing CAR 793). 14 March 2017 Plaintiff reported changes to her sleep pattern, 15 resulting in decreased concentration and forgetting simple tasks in caretaking for her son. She 16 attributed the change to an impending divorce. ECF No. 16, pg. 18 (citing CAR 802-03). 17 October 2017 Plaintiff reported that she was not taking any 18 medication because she was pregnant. She did, however, discuss increasing her therapy visits with 19 her therapist at CalWorks. ECF No. 16, pg. 18 (citing CAR 827). 20 May 2018 Plaintiff had her baby. ECF No. 16, pg. 18 (citing 21 CAR 949). 22 August 2018 Plaintiff reported improved anxiety and depression symptoms without medication. ECF No. 16, pg. 18 23 (citing CAR 955). 24 Plaintiff concludes: 25 Fillmore did what the taxpayers would hope her to do, which is work hard with her providers and eventually return to the workforce. 26 However, during the closed period of disability requested, and contrary to the ALJ’s decision that Fillmore’s statements are inconsistent with the 27 record, this record fails to show a sustained level of improvement until the 28 / / / 1 later part of 2018 and early 2019, consistent with Fillmore’s return to work. 2 ECF No. 16, pg. 18. 3 4 In Garrison, the Ninth Circuit held: 5 As we have emphasized while discussing mental health issues, it is error to reject a claimant's testimony merely because symptoms wax and wane 6 in the course of treatment. Cycles of improvement and debilitating symptoms are a common occurrence, and in such circumstances it is error 7 for an ALJ to pick out a few isolated instances of improvement over a period of months or years and to treat them as a basis for concluding a 8 claimant is capable of working. 9 759 F.3d at 1017 (citing Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001)). 10 11 The court stated that reports of improvement in the context of mental health impairments “must 12 be interpreted with an understanding of the patient’s overall well-being and the nature of her 13 symptoms.” Id. (citing Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1200-01 (9th Cir. 2008)). 14 The Ninth Circuit added that mental health impairments must also be evaluated “with an 15 awareness that improved functioning. . .does not always mean that a claimant can functional 16 effectively in a workplace.” Id. (citing Hutsell v. Massanari, 259 F.3d 707, 712 (9th Cir. 2001) 17 ("We also believe that the Commissioner erroneously relied too heavily on indications in the 18 medical record that Hutsell was ``doing well,' because doing well for the purposes of a treatment 19 program has no necessary relation to a claimant's ability to work or to her work-related functional 20 capacity”)); see also Scott v. Astrue, 747 F.3d 734, 739-40 (7th Cir. 2011). 21 Plaintiff’s argument is well-taken. A review of the hearing decision, Plaintiff’s 22 timeline, as well as the record as a whole reflects what one would expect in a case involving 23 bipolar disorder and depression – waxing and waning symptoms. A few examples suffice to 24 illustrate the point. In May 2014, Plaintiff reported poor energy. See CAR 233-34. In June 25 2014, Plaintiff reported that she gets angry and has mood swings. See id. at 240-41. In July 26 2014, Plaintiff presented as disheveled with fast speech, and rambled thought content. See id. at 27 251. By December 2014, as the ALJ noted, Plaintiff reported that she was doing better. See id. 28 at 334 (citing Exhibit 5F). But by November 2015, as the ALJ also noted, Plaintiff’s doctor 1 opined that Plaintiff’s symptoms were poorly controlled. See id. at 335 (citing Exhibit 5F). In 2 November 2015, Plaintiff also reported hearing voices telling her to harm herself. See id. at 266- 3 68. In April 2016, Plaintiff reported impulsive spending, unprovoked anger, and trouble 4 concentrating. See id. at 713. The record reflects that, for the remainder of 2016, Plaintiff’s 5 providers attempted medication adjustments to deal with side effects. See id. at 763-65, 767, 780- 6 81. Given the up-and-down nature of Plaintiff’s mental health symptoms over time, the ALJ’s 7 references to periods of time when Plaintiff has doing well are not particularly instructive and do 8 not support an adverse finding as to the weight to be afforded Plaintiff’s statements and 9 testimony. 10 C. Plaintiff’s Ability to Attend College and Earn a Degree 11 Plaintiff argues: 12 The ALJ refers to Fillmore’s ability to attend college through 2015 to reject Fillmore’s symptom testimony. AR 339-341. Elsewhere, the ALJ 13 refers to Fillmore’s ability to interact with children, her mother, her boyfriend, go to the gym, and attend a party. AR 342. Courts have 14 repeatedly warned that ALJ’s must be particularly cautious in concluding that daily activities are inconsistent with symptom testimony because 15 impairments that would unquestionably preclude work would often be consistent with doing more than merely resting in bed all day. Garrison, 16 759 F.3d at 1016. Fillmore’s description of her ability to attend college do not 17 demonstrate an ability to engage in full-time work. Fillmore testified that she had a doctor’s note which allowed her to sit in front during lectures. 18 AR 305. She notified her professors about her limitations and was able to receive extended office hours. AR 305. Fillmore occasionally “lashed out” 19 on other students and would take breaks from class. AR 300. Medical records from June 2014 indicate difficulty concentrating 20 while in class. AR 240. In December 2014, she reported getting good grades, but needed three to six additional hours to complete assignments 21 when compared to her peers. AR 280. In September 2015, it was noted that she would fall asleep in class due to her medication. AR 270. 22 Contrary to the ALJ’s conclusion, Fillmore’s ability to attend college does not demonstrate that she is capable of greater ability to function in a full- 23 time workplace. The ALJ’s reasoning is unsupported by substantial evidence. 24 ECF No. 16, pgs. 18-19. 25 26 / / / 27 / / / 28 / / / 1 Regarding reliance on a claimant’s daily activities to discount testimony of 2 disabling pain, the Social Security Act does not require that disability claimants be utterly 3 incapacitated. See Fair v. Bowen, 885 F.2d 597, 602 (9th Cir. 1989). The Ninth Circuit has 4 repeatedly held that the “. . . mere fact that a plaintiff has carried out certain daily activities . . . 5 does not . . .[necessarily] detract from her credibility as to her overall disability.” See Orn v. 6 Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (quoting Vertigan v. Heller, 260 F.3d 1044, 1050 (9th 7 Cir. 2001)); see also Howard v. Heckler, 782 F.2d 1484, 1488 (9th Cir. 1986) (observing that a 8 claim of pain-induced disability is not necessarily gainsaid by a capacity to engage in periodic 9 restricted travel); Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (concluding that the 10 claimant was entitled to benefits based on constant leg and back pain despite the claimant’s 11 ability to cook meals and wash dishes); Fair, 885 F.2d at 603 (observing that “many home 12 activities are not easily transferable to what may be the more grueling environment of the 13 workplace, where it might be impossible to periodically rest or take medication”). Daily 14 activities must be such that they show that the claimant is “. . .able to spend a substantial part of 15 his day engaged in pursuits involving the performance of physical functions that are transferable 16 to a work setting.” Fair, 885 F.2d at 603. The ALJ must make specific findings in this regard 17 before relying on daily activities to find a claimant’s pain testimony not credible. See Burch v. 18 Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). 19 The Court agrees with Plaintiff that the ALJ’s references to Plaintiff’s ability to 20 attend college and earn a degree during the closed period of alleged disability provides little to no 21 justification to discount Plaintiff’s statements and testimony. As Plaintiff notes, she testified at 22 the 2020 hearing following remand that she had to sit in the front of the class near the door “in 23 case there was anything.” CAR 305 (hearing testimony). She also let her professors know that 24 she had difficulty concentrating and “they all were very accommodating for me and basically told 25 me whatever I need is fine.” Id. Some professors offered Plaintiff extended office hours “to help 26 me because I was falling behind.” Plaintiff further testified that, at times, she would recall the 27 professor saying “good morning” at the start of class and the next thing she remembers is the 28 professor saying “okay, class is over.” Id. Plaintiff stated that she would, at times, lash out at 1 other students because she felt they were disturbing her focus. See id. at 300-01. In December 2 2014, Plaintiff reported to her medical provider that she required three to six additional hours to 3 complete projects due to difficulty concentrating. See id. at 280. 4 These limitations on Plaintiff’s ability to attend college classes do not necessarily 5 describe someone capable of maintaining full-time competitive employment during the period 6 Plaintiff was in school. To the contrary, they indicate significant limitations if translated to a 7 work setting. While the ALJ has identified some work-related abilities associated with Plaintiff 8 attending college and earning her degree during the closed period (such as ability to concentrate, 9 albeit limited), the ALJ has not explained how those abilities translate to full-time work given the 10 limitations reflected in the record. 11 D. Noncompliance with Medication 12 According to Plaintiff: 13 The ALJ next refers to evidence of Fillmore not taking her medication. AR 339-340. A claimant’s failure to comply with prescribed 14 treatment may be a good reason for rejecting their testimony unless there are good reasons for the failure. Molina v. Astrue, 674 F.3d 1104, 1113 15 (9th Cir. 2012) (citation omitted). The ALJ’s reliance on noncompliance fails to consider the nature of Fillmore’s underlying impairments. In 16 Brewes v. Comm’r of Soc. Sec. Admin., the Ninth Circuit stated that a claimant’s difficulty following through with treatment was “entirely 17 consistent” [with] their underlying mental impairments which include bipolar disorder, depression, anxiety, and agoraphobia. 682 F.3d 1157, 18 1164 (9th Cir. 2012) (stating that). Dr. Layton testified at the hearing that nearly half of his patients 19 with bipolar disorder have issues with compliance. AR 313. According to Dr. Layton, when patients with bipolar disorder are younger, they tend to 20 quit medication, but when they are older, they realize the medication helps, so their insight and judgment improves. AR 313. Fillmore was 21 21 years old on the application date here. As time passed, she figured out how to manage her symptoms and eventually returned to work. Her failure to 22 take medication is not inconsistent with the expectation given her underlying bipolar disorder. 23 Moreover, as demonstrated above, Fillmore tried several different types of medication, including Geodon, Latuda, and Abilify, which were 24 ineffective. AR 780. She was not interested in taking Lithium because she was “scared to death” of the side effects. AR 780. She stuck with 25 Risperidone even though the medication made her tired. AR 763. In November 2016, Fillmore discussed concerns of missing doses, but her 26 provider noted that “current compliance does not seem to be an issue as she only reports missing 3 doses per month.” AR 781. Given Fillmore’s 27 underlying impairments, the types of medication she cycled through, Dr. Layton’s testimony, and Fillmore’s eventual ability to figure out how to 28 manage her symptoms, the ALJ’s consideration of non-compliance to 1 reject Fillmore’s symptom testimony lacks the support of substantial evidence. 2 ECF No. 16, pgs. 19-20. 3 4 Again, the Court finds Plaintiff’s argument persuasive. In Brewes, the Ninth 5 Circuit observed that difficulty following through with recommended treatment is “entirely 6 consistent” with the claimant’s impairments, which included bipolar disorder, anxiety disorder, 7 and panic disorder with agoraphobia. 682 F.3d at 1160, 1164. Here, as Plaintiff observes, Dr. 8 Layton, a medical expert who testified at the hearing, stated that half of patients with bipolar 9 disorder have difficulty with compliance. Moreover, as Plaintiff’s doctor noted in November 10 2016, Plaintiff’s compliance “does not seem to be an issue. . . .” CAR 780-81. Given the 11 foregoing, the Court finds that the ALJ’s reliance on Plaintiff’s occasional non-compliance with 12 medication is not a sufficient reason to discount Plaintiff’s statements and testimony. While the 13 record certainly indicates times when Plaintiff was not taking her medication and that her 14 condition worsened during these times, the record also reflects the reasons Plaintiff stopped 15 prescribed medication, specifically unwanted side-effects of certain dosages of Risperidone as 16 well as her pregnancy. The record shows that Plaintiff was active in her treatment and, with 17 respect to medications, worked with her doctors to adjust dosages and switch medications when 18 appropriate. Eventually, Plaintiff was able to find the right combination of type and dosage of 19 medication and therapy to control her symptoms to the point where she was able to return to the 20 workforce. 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 IV. CONCLUSION 2 For the foregoing reasons, this matter will be remanded under sentence four of 42 3 | U.S.C. § 405(g) for further development of the record and/or further findings addressing the 4 | deficiencies noted above. 5 Accordingly, IT IS HEREBY ORDERED that: 6 1. Plaintiff's motion for summary judgment, ECF No. 16, is granted; 7 2. Defendant’s motion for summary judgment, ECF No. 17, is denied; 8 3. The Commissioner’s final decision is reversed and this matter is remanded 9 | for further proceedings consistent with this order; and 10 4. The Clerk of the Court is directed to enter judgment and close this file. 11 12 | Dated: September 16, 2021 Ssvcqo_ 13 DENNIS M. COTA 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 26