(SS) Lippert v. Commissioner of Social Security ( 2023 )

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 RYAN LIPPERT, Case No. 1:21-cv-01815-SKO 9 Plaintiff, 10 v. ORDER ON PLAINTIFF’S SOCIAL 11 SECURITY COMPLAINT KILOLO KIJAKAZI, 12 Acting Commissioner of Social Security, 13 Defendant. (Doc. 1) _____________________________________/ 14 15 16 I. INTRODUCTION 17 18 Plaintiff Ryan Lippert (“Plaintiff”) seeks judicial review of a final decision of the 19 Commissioner of Social Security (the “Commissioner” or “Defendant”) denying her application for 20 Supplemental Security Income (SSI) under the Social Security Act (the “Act”). (Doc. 1.) The matter 21 is currently before the Court on the parties’ briefs, which were submitted, without oral argument, to 22 the Honorable Sheila K. Oberto, United States Magistrate Judge.1 23 II. BACKGROUND 24 Plaintiff was born on June 28, 1979, and has at least a high school education. 25 (Administrative Record (“AR”) 29, 108, 113, 154, 170, 190.) In a decision dated February 7, 2018, 26 an Administrative Law Judge (“ALJ”) rejected Plaintiff’s prior application for SSI payments, 27 28 1 assessing a residual functional capacity (“RFC”)2 of a full range of work at all exertional levels, 2 but with some nonexertional limitations. (AR 135–52.) 3 On April 17, 2018, Plaintiff again applied for SSI payments, alleging she became disabled 4 on June 28, 2002, due to post-AIDS complications, schizophrenia, post-traumatic stress disorder 5 (“PTSD”), brain damage due to AIDS, nerve damage, blind right eye, syphilis, and chronic fatigue. 6 (AR 20, 153–54, 170–72, 190, 194, 203.) Plaintiff was 38 years old on the date the present 7 application was filed. (AR 153, 171.) 8 A. Relevant Evidence of Record3 9 Plaintiff reported first testing positive for syphilis in November or December of 2017. (AR 10 514, 516.) In June 2018, Plaintiff saw Dr. Mary McLain, M.D., at Clinica Sierra Vista. (AR 514.) 11 Dr. McLain noted that Plaintiff had continued memory issues, her memory was poor, and it was 12 likely AIDS-related dementia which may have been precipitated by syphilis, among other 13 conditions. (AR 514.) Dr. McLain asked for help from a care manager, given that Plaintiff was not 14 able to remember things sufficiently in order to attend all her appointments or to get a ride, and 15 because Plaintiff became easily confused. (AR 514.) Dr. McLain noted diagnoses for memory 16 disorder due to organic brain damage, a history of syphilis, anxiety and depression, and unspecified 17 major depressive disorder. (AR 515, 517.) 18 In March 2019, Plaintiff reported that she recently got syphilis for the second time. (AR 19 549–52.) Plaintiff indicated she had a therapist before, but started having transportation issues, and 20 she had gaps in her treatment due to negative experiences with medical providers. (AR 552.) 21 Plaintiff’s treatment notes indicated diagnoses of unspecified major depressive disorder, anxiety, 22 and depression. (AR 552–53.) 23 24 2 RFC is an assessment of an individual’s ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis of 8 hours a day, for 5 days a week, or an equivalent work schedule. TITLES 25 II & XVI: ASSESSING RESIDUAL FUNCTIONAL CAPACITY IN INITIAL CLAIMS, Social Security Ruling 96-8p (S.S.A. July 2, 1996). The RFC assessment considers only functional limitations and restrictions that result from an individual’s 26 medically determinable impairment or combination of impairments. Id. “In determining a claimant’s RFC, an ALJ must consider all relevant evidence in the record including, inter alia, medical records, lay evidence, and ‘the effects 27 of symptoms, including pain, that are reasonably attributed to a medically determinable impairment.’” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006). 28 3 Because the parties are familiar with the medical evidence, it is summarized here only to the extent relevant to the 1 In October 2019, Plaintiff again visited Dr. McLain at Clinica Sierra Vista. (AR 590.) Dr. 2 McLain noted a diagnosis of neurosyphilis, and that Plaintiff complained of memory loss, 3 paresthesias, and nerve pain. (AR 590–91, 593, 596.) The treatment notes indicated that Plaintiff’s 4 neurosyphilis was associated with AIDS and dementia, for which Plaintiff had been diagnosed 5 before being transferred to the clinic. (AR 591.) 6 In October 2020, Plaintiff underwent a mental health assessment with Licensed Clinical 7 Social Worker (“LCSW”) Elizabeth Lopez. (AR 635.) LCSW Lopez noted diagnoses of a severe 8 episode of recurrent major depressive disorder with psychotic features, generalized anxiety disorder 9 with panic attacks, and PTSD. (AR 635, 637.) Pursuant to a mental status exam, LCSW Lopez 10 found Plaintiff’s mood to be sad, worried, and anxious, her thought content to indicate depressive 11 cognitions, and her thought process to be distractible. (AR 635.) Plaintiff’s depression symptoms 12 consisted of sadness, loss of interest, insomnia, fatigue, irritability, and lack of motivation. (AR 13 636.) She also exhibited trauma and panic symptoms including flashbacks, sleep disturbances, poor 14 focus, palpitations, trembling, shortness of breath, nausea and gastrointestinal distress, chills, and 15 abnormal sensations. (AR 636.) Plaintiff also had thoughts of suicidal ideations, but noted she does 16 not have an intent or plan to commit suicide. (AR 636.) Plaintiff reported regularly experiencing 17 paranoia and hypervigilance, and how when she acquired syphilis in 2017, it affected her brain. (AR 18 636.) Accordingly, LCSW Lopez referred Plaintiff to a specialty behavioral health program. (AR 19 637–38.) 20 B. Administrative Proceedings 21 The Commissioner denied Plaintiff’s application for benefits initially on June 12, 2018, and 22 again on reconsideration on September 13, 2018. (AR 20, 169–70, 188–90, 194–95, 203.) 23 Consequently, Plaintiff requested a hearing before an ALJ. (AR 209.) The ALJ conducted a hearing 24 on June 10, 2020. (AR 100-34.) Plaintiff appeared at the hearing with her attorney representative 25 and testified as to her alleged disabling conditions and work history. (AR 108–26.) A Vocational 26 Expert also testified at the hearing. (AR 126–32.) 27 C. The ALJ’s Decision 28 In a decision dated November 25, 2020, the ALJ found that Plaintiff was not disabled, as 1 defined by the Act. (AR 17–31.) The ALJ noted that Plaintiff was found to be not disabled in the 2 decision from 2018, and in light of that decision, that the ALJ would now need to assess Plaintiff’s 3 current application in light of the presumption of continuing nondisability under the Ninth Circuit’s 4 decision in Chavez v. Bowen, 844 F.2d 691 (9th Cir. 1988). (AR 21.) 5 The ALJ conducted the five-step disability analysis set forth in 20 C.F.R. § 404.1520. (AR 6 20–31.) The ALJ decided that Plaintiff had not engaged in substantial gainful activity since April 7 17, 2018, the application date (step one). (AR 23.) At step two, the ALJ found Plaintiff’s following 8 impairments to be severe: “[r]esidual from retinitis;” “[r]esiduals from syphilis;” chronic obstructive 9 pulmonary disease; anxiety disorder; depressive disorder; and PTSD. (AR 23.) Plaintiff did not 10 have an impairment or combination of impairments that met or medically equaled one of the listed 11 impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“the Listings”) (step three). (AR 24– 12 25.) 13 The ALJ then assessed Plaintiff’s RFC and applied the assessment at steps four and five. See 14 20 C.F.R. § 416.920(a)(4) (“Before we go from step three to step four, we assess your residual 15 functional capacity . . . . We use this residual functional capacity assessment at both step four and 16 step five when we evaluate your claim at these steps.”). The ALJ determined that Plaintiff had the 17 RFC: 18 to perform a full range of work at all exertional levels but with the following nonexertional limitations: [Plaintiff] would be limited to jobs that requires nothing 19 beyond monocular vision such as jobs that can be performed with single-eyed vision. [Plaintiff] should not work in environments that expose her to extreme 20 levels of cold temperatures, extreme levels of moisture/wetness, extreme levels of vibrations, or concentrated forms of respiratory irritants such as gases, smokes, and 21 fumes. [Plaintiff] should not work in environments that exposes her to unprotected 22 heights or machinery with moving mechanical parts. [Plaintiff] is capable of performing non-complex jobs that require no more than simple routine tasks and 23 should not work in environments where they could have contact with members of the general public. 24 25 (AR 25–26.) Although the ALJ recognized that Plaintiff’s impairments “could reasonably be 26 expected to cause the alleged symptoms[,]” the ALJ rejected Plaintiff’s subjective statements as “not 27 entirely consistent with the medical evidence and other evidence in the record for the reasons 28 explained in this decision.” (AR 27.) The ALJ also noted Plaintiff was found “not disabled” in the 1 prior decision, and explained that much of the evidence provided by Plaintiff covered the already 2 adjudicated period, and that the evidence from February 8, 2018, forward revealed minimal 3 abnormalities and generally stable objective findings. (AR 27.) The ALJ further noted all four state 4 agency reviewing sources found that the Chavez rule applied, there was a presumption of continuing 5 nondisability, and they fully adopted the findings of the prior ALJ. (AR 29.) The ALJ also found 6 that there were no medical opinions that supported finding functional limitations that differed from 7 those detailed in the prior ALJ’s decision. (AR 29.) 8 The ALJ determined that Plaintiff had no past relevant work (step four) and that, given her 9 RFC, she could perform a significant number of jobs in the national economy, specifically linen 10 room attendant, garment sorter, and document specialist (step five). (AR 29–30.) The ALJ 11 concluded Plaintiff was not disabled since April 17, 2018, the application date. (AR 30.) 12 Plaintiff sought review of this decision before the Appeals Council, which denied review on 13 October 21, 2021. (AR 5–10.) Therefore, the ALJ’s decision became the final decision of the 14 Commissioner. 20 C.F.R. § 416.1481. 15 III. LEGAL STANDARD 16 A. Applicable Law 17 An individual is considered “disabled” for purposes of disability benefits if he or she is 18 unable “to engage in any substantial gainful activity by reason of any medically determinable 19 physical or mental impairment which can be expected to result in death or which has lasted or can 20 be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). 21 However, “[a]n individual shall be determined to be under a disability only if [their] physical or 22 mental impairment or impairments are of such severity that he is not only unable to do [their] 23 previous work but cannot, considering [their] age, education, and work experience, engage in any 24 other kind of substantial gainful work which exists in the national economy.” Id. § 423(d)(2)(A). 25 “The Social Security Regulations set out a five-step sequential process for determining 26 whether a claimant is disabled within the meaning of the Social Security Act.” Tackett v. Apfel, 180 27 F.3d 1094, 1098 (9th Cir. 1999) (citing 20 C.F.R. § 404.1520). The Ninth Circuit has provided the 28 following description of the sequential evaluation analysis: 1 substantial gainful activity. If so, the claimant is not disabled. If not, the ALJ 2 proceeds to step two and evaluates whether the claimant has a medically severe impairment or combination of impairments. If not, the claimant is not disabled. If 3 so, the ALJ proceeds to step three and considers whether the impairment or combination of impairments meets or equals a listed impairment under 20 C.F.R. pt. 4 404, subpt. P, [a]pp. 1. If so, the claimant is automatically presumed disabled. If not, the ALJ proceeds to step four and assesses whether the claimant is capable of 5 performing [their] past relevant work. If so, the claimant is not disabled. If not, the 6 ALJ proceeds to step five and examines whether the claimant has the [RFC] . . . to perform any other substantial gainful activity in the national economy. If so, the 7 claimant is not disabled. If not, the claimant is disabled. 8 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). “If a claimant is found to be ‘disabled’ or 9 ‘not disabled’ at any step in the sequence, there is no need to consider subsequent steps.” Tackett, 10 180 F.3d at 1098 (citing 20 C.F.R. § 404.1520). 11 “The claimant carries the initial burden of proving a disability in steps one through four of 12 the analysis.” Burch, 400 F.3d at 679 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989)). 13 “However, if a claimant establishes an inability to continue [their] past work, the burden shifts to 14 the Commissioner in step five to show that the claimant can perform other substantial gainful work.” 15 Id. (citing Swenson, 876 F.2d at 687). 16 B. Scope of Review 17 “This court may set aside the Commissioner’s denial of [social security] benefits [only] when 18 the ALJ’s findings are based on legal error or are not supported by substantial evidence in the record 19 as a whole.” Tackett, 180 F.3d at 1097 (citation omitted). “Substantial evidence . . . is ‘more than 20 a mere scintilla,’” and means only “such relevant evidence as a reasonable mind might accept as 21 adequate to support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (quoting 22 Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); see also Ford v. Saul, 950 F.3d 1141, 1154 23 (9th Cir. 2020). 24 “This is a highly deferential standard of review . . . .” Valentine v. Comm’r of Soc. Sec. 25 Admin., 574 F.3d 685, 690 (9th Cir. 2009). “The ALJ’s findings will be upheld if supported by 26 inferences reasonably drawn from the record.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 27 2008) (citation omitted). Additionally, “[t]he court will uphold the ALJ’s conclusion when the 28 evidence is susceptible to more than one rational interpretation.” Id.; see, e.g., Edlund v. Massanari, 1 253 F.3d 1152, 1156 (9th Cir. 2001) (“If the evidence is susceptible to more than one rational 2 interpretation, the court may not substitute its judgment for that of the Commissioner.” (citations 3 omitted)). 4 Nonetheless, “the Commissioner’s decision ‘cannot be affirmed simply by isolating a 5 specific quantum of supporting evidence.’” Tackett, 180 F.3d at 1098 (quoting Sousa v. Callahan, 6 143 F.3d 1240, 1243 (9th Cir. 1998)). “Rather, a court must ‘consider the record as a whole, 7 weighing both evidence that supports and evidence that detracts from the [Commissioner’s] 8 conclusion.’” Id. (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). 9 Finally, courts “may not reverse an ALJ’s decision on account of an error that is harmless.” 10 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citing Stout v. Comm’r, Soc. Sec. Admin., 11 454 F.3d 1050, 1055–56 (9th Cir. 2006)). Harmless error “exists when it is clear from the record 12 that ‘the ALJ’s error was inconsequential to the ultimate nondisability determination.’” Tommasetti, 13 533 F.3d at 1038 (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)). “[T]he 14 burden of showing that an error is harmful normally falls upon the party attacking the agency’s 15 determination.” Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (citations omitted). 16 IV. DISCUSSION 17 Plaintiff contends that the ALJ erred, inter alia, by misapplying the Chavez presumption of 18 continuing nondisability because substantial evidence does not support a finding of no changed 19 circumstances. (Doc. 17 at 2, 11–20.) The Court agrees. 20 A. A Prior Final Agency Decision of Nondisability Triggers a Presumption of Continued Nondisability Absent a Showing of Changed Circumstances 21 22 In cases involving a prior final agency decision of nondisability where the claimant 23 subsequently files a new application for benefits, the prior administrative decision triggers a 24 presumption of continuing nondisability. Chavez v, 844 F.2d at 692–94 (where ALJ made “no 25 reference” to prior ALJ’s decision and “failed to consider the first judge’s findings,” the principles 26 of res judicata made the first judge’s determination binding). To overcome this presumption of 27 continuing nondisability, the claimant “must prove ‘changed circumstances’ indicating a greater 28 disability.” Id. at 693; see also id. at 694 (because the defendant failed to identify “new” 1 information that “had not been presented to the first [ALJ]”, it was error for the second ALJ to 2 “reopen the prior determinations concerning the claimant’s ability to perform his past relevant 3 work”); cf. Stubbs–Danielson v. Astrue, 539 F.3d 1169, 1173 (9th Cir. 2008) (applying Chavez and 4 finding that, where the “entirety of the medical evaluations presented with respect to the 5 [claimant’s] present application were conducted after [claimant’s] initial disability determination[,] 6 [t]hese evaluations necessarily presented new and material information not presented to the first 7 ALJ”). 8 Social Security Acquiescence Ruling (“SS AR”) 97–4(9) provides guidance on Chavez: 9 In order to rebut the presumption of continuing nondisability, a claimant must prove “‘changed circumstances’ indicating a greater disability.” In addition, the court [in 10 Chavez] indicated that where the claimant rebuts the presumption by proving a 11 “changed circumstance,” principles of res judicata require that certain findings contained in the final decision by the ALJ on the prior claim must be given some res 12 judicata consideration in determining whether the claimant is disabled with respect to the unadjudicated period involved in the subsequent claim. The court concluded 13 that where the final decision on the prior claim, which found the claimant not disabled, contained findings of the claimant’s [RFC], education, and work 14 experience, [the agency] may not make different finding in adjudicating the 15 subsequent disability unless there is new and material evidence relating to the claimant’s [RFC], education or work experience. 16 17 SS AR 97-4(9), 1997 WL 742758, at *2.4 Changed circumstances include a change in the 18 claimant’s age category, an increase in the severity of an impairment, and the alleged existence of 19 an impairment not previously considered. Id. at *3. Although the presence of additional 20 impairments rebuts the general presumption of nondisability, that alone is insufficient to rebut the 21 specific findings of the prior decision. Chavez, 844 F.2d at 694. Instead, there must be “new and 22 material” evidence relating to each specific finding. See SS AR 97–4(9), 1997 WL 742758, at *3. 23 After a final agency determination of nondisability, where the claimant experiences 24 improvement in the nature of his or her limitations and pain allegedly suffered, an ALJ may 25 26 4 Acquiescence Rulings are Social Security Administration policy statements issued in response to the Court of Appeals’ holdings, and they “describe the administrative case and the court decision, identify the issue(s) involved, 27 and explain how we will apply the holding, including, as necessary, how the holding relates to other decisions within the applicable circuit.” 20 C.F.R. § 404.985(b). They are binding on the Social Security Administration, 20 C.F.R. 28 § 402.35(b)(2); and are accorded deference by reviewing courts, McNabb v. Barnhart, 340 F.3d 943, 944–45 (9th Cir. 1 determine that a claimant’s condition has improved. See Taylor v. Heckler, 765 F.2d 872, 875 (9th 2 Cir. 1985) (where claimant’s first application for benefits was denied, the presumption of 3 continuing nondisability applied, and ALJ properly determined that claimant’s condition had 4 “improved rather than deteriorated” in the period leading to the second application for benefits). 5 “In general, the Commissioner bears the burden of establishing that a claimant has experienced 6 medical ‘improvement’ that would allow him [or her] to engage in substantial gainful activity.” 7 Chao v. Astrue, No. 2:10–cv–01972 KJN, 2012 WL 868839, at *5 (E.D. Cal. Mar. 13, 2012) (citing 8 Murray v. Heckler, 722 F.2d 499, 500 (9th Cir. 1983) (to terminate benefits after they were 9 previously awarded, it is the defendant’s burden to “come forward with evidence of improvement,” 10 and such evidence must be reviewed under the “substantial evidence standard”)). An ALJ’s 11 improper reliance on the Chavez presumption is legal error warranting remand. Perales v. Kijakazi, 12 No. 2:21-cv-00055-DAD-JDP (SS), 2022 WL 4226171, at *3 (E.D. Cal. Sept. 13, 2022) (citing 13 Vasquez v. Astrue, 572 F.3d 586, 598 (9th Cir. 2009)). 14 B. The ALJ Improperly Found that There Were No Changed Circumstances 15 In 2018, the ALJ assessed the following RFC: 16 to perform a full range of work at all exertional levels but with the following 17 nonexertional limitations: [Plaintiff] would be limited to jobs that requires nothing beyond monocular vision such as jobs that can be performed with single-eyed vision. 18 [Plaintiff] should not work in environments that expos[e] her to extreme levels of cold temperatures, extreme levels of moisture/wetness, extreme levels of vibrations, or 19 concentrated forms of respiratory irritants such as gases, smokes, and fumes. [Plaintiff] should not work in environments that exposes her to unprotected heights or machinery 20 with moving mechanical parts. [Plaintiff] is capable of performing non-complex jobs that requires no more than simple routine tasks and should not work in environments 21 where they would have contact with members of the general public. 22 23 (AR 143.) The ALJ formulated an identical RFC in the present decision. (AR 25–26.) 24 In coming to the RFC determination, the ALJ appears to have found that Plaintiff had not 25 rebutted the presumption of nondisability. The ALJ’s decision notes Plaintiff was found “not 26 disabled” in the prior decision, that much of the evidence provided by Plaintiff covered the already 27 adjudicated period, and the evidence from February 8, 2018, forward revealed minimal 28 abnormalities and generally stable objective findings. (AR 27.) The ALJ further noted all four 1 state agency reviewing sources found that the Chavez rule applied and fully adopted the findings 2 of the prior ALJ, and there were no medical opinions that supported finding functional limitations 3 that differed from those detailed in the prior ALJ’s decision. (AR 29.) Thus, by adopting the prior 4 decision’s RFC finding, it appears the ALJ found no changed circumstances and gave res judicata 5 effect to the RFC findings in the 2018 decision. 6 The ALJ’s finding of no changed circumstances, however, is not supported by substantial 7 evidence. Specifically, the ALJ failed to explain how the three new severe impairments of 8 “[r]esiduals from syphilis,” major depressive disorder, and PTSD—conditions either deemed 9 nonsevere or not assessed at all in 2018 when the same RFC was assessed—could demonstrate no 10 changed circumstances, and, therefore, that Plaintiff had the same nonexertional limitations as she 11 did in 2018. See Goodlow v. Comm’r of Soc. Sec., No. 1:17-cv-00667-JDP, 2018 WL 4698333, at 12 *4 (E.D. Cal. Sept. 29, 2018) (finding the ALJ’s reliance on the Chavez presumption was erroneous 13 because, inter alia, the ALJ identified a new impairment that the prior ALJ had not found, 14 amounting to changed circumstances). For example, though the prior ALJ’s 2018 decision contains 15 a discussion of Plaintiff’s history of HIV/AIDS, the opinion does not discuss syphilis. (See AR 16 138–48.) The prior decision also referenced minimal evidence as to Plaintiff’s symptoms of 17 depression and PTSD, but highlighted that Plaintiff did not receive psychiatric treatment and during 18 the mental status evaluation, she showed no evidence of cognitive impairment. (AR 144–45; see 19 also AR 144 (follow-up for HIV noted diagnosis of PTSD); id. (Plaintiff’s mood was “depressed” 20 at a psychiatric evaluation, and diagnoses included depression due to physiological effect of general 21 medical condition).) As to Plaintiff’s lack of mental health treatment, the ALJ stated as follows: 22 It is reasonable to assume that a person who claims to have severe medical problems or to be debilitated in any respect will seek out treatment in an attempt to lessen the 23 condition, its effects, or the discomfort brought about thereby. Because [Plaintiff] has not sought treatment for her alleged disabling mental impairment(s), it suggests that she 24 has not been suffering the level of limitations alleged. It certainly indicates that what activity restrictions may have been present have not been so severe as to preclude the 25 performance of all work activity. 26 (AR 145.) 27 The ALJ’s current opinion, however, documents evidence in the record demonstrating a 28 worsening of Plaintiff’s impairments since the date of the prior decision. For example, the ALJ 1 indicated that Plaintiff was diagnosed with syphilis in November or December 2017 and she had a 2 “significant memory issue” related to her AIDS and syphilis diagnoses. (AR 28 (citing AR 514– 3 19).) Indeed, in June 2018, Dr. McLain found that Plaintiff had continued memory issues and 4 likely AIDS-related dementia precipitated by syphilis and other conditions, and Plaintiff’s memory 5 issues impaired her ability to attend all her appointments to receive treatment. (AR 514.) Dr. 6 McLain noted diagnoses for memory disorder due to organic brain damage, a history of syphilis, 7 anxiety, depression, and unspecified major depressive disorder. (AR 515, 517.) Dr. McLain 8 indicated Plaintiff had a memory impairment, but later in the notes, indicated Plaintiff’s memory 9 was normal. (See AR 517–18.) 10 Dr. McLain’s treatment notes in October 2019 further indicated that Plaintiff had 11 neurosyphilis associated with AIDS and dementia. (AR 591.) The ALJ also noted that in October 12 2019, Plaintiff continued to report memory loss and issues with nerve pain. (AR 28 (citing AR 13 590–96).) The ALJ also acknowledged Plaintiff’s hearing testimony that she had severe memory 14 deficits with notable gaps in her memory and significant difficulties concentrating (AR 26; see also 15 AR 114–15, 119–20), and in October 2020, Plaintiff’s memory was not tested (AR 29, see also AR 16 636). In citing this evidence, the ALJ reasoned that “the objective findings showed [Plaintiff’s] 17 memory was normal” (AR 28), and the medical records generally suggested stability of her 18 symptoms (AR 29). This minimal evidence suggesting stability of Plaintiff’s memory impairments 19 related to her syphilis diagnosis, however, does not amount to substantial evidence. Biestek, 139 20 S. Ct. at 1154; Ford, 950 F.3d at 1154. 21 The ALJ’s conclusions regarding the other new impairments found to be severe—major 22 depressive disorder and PTSD—fare no better. For example, the ALJ described how during the 23 hearing, Plaintiff reported paranoia, including concerns that the Zodiac killer was following her, 24 and intermittent crying that can begin at any point. (AR 26; see also AR 119, 121–23, 125.) The 25 ALJ also cited to Plaintiff’s October 2020 assessment, in which LCSW Lopez found Plaintiff’s 26 mood to be sad, worried, and anxious, her thought content to indicate depressive cognitions, and 27 her thought process to be distractible. (AR 28 (citing AR 635).) The ALJ also acknowledged that 28 Plaintiff exhibited symptoms of depression, trauma, and panic, including sadness, loss of interest, 1 insomnia, fatigue, irritability, flashbacks, sleep disturbances, poor focus, palpitations, trembling, 2 shortness of breath, nausea and gastrointestinal distress, chills, and abnormal sensations. (AR 28 3 (citing AR 636).) Though Plaintiff’s treatment notes repeatedly indicated diagnoses of PTSD and 4 depression (see AR 515, 517, 552–53, 635, 637) to the point where the ALJ determined that PTSD 5 and depression were severe impairments (AR 23), the ALJ found that Plaintiff’s symptoms were 6 stable based on minimal evidence that Plaintiff’s psychiatric findings were “generally normal.” 7 (See AR 28.) Again, this minimal evidence alluding to stability of Plaintiff’s mental impairments 8 does not amount to substantial evidence. Biestek, 139 S. Ct. at 1154; Ford, 950 F.3d at 1154. 9 At several points in the opinion, the ALJ acknowledges the presence of these new, severe 10 impairments, but appears to have dismissed them due to Plaintiff’s lack of treatment and indications 11 of stability. (See, e.g., AR 28 (“While the April and May 2018 records do support the presence of 12 severe mental impairments, the records do not suggest[] a significant change in symptoms from 13 late 2017 to early 2018.”); AR 29 (“While the October 2020 findings suggest some increase in 14 symptoms, [Plaintiff’s] overall lack of treatment and the relative stability seen in the prior records 15 generally suggests that [Plaintiff’s] symptoms have been stable since early 2018.”).) Similarly, in 16 Perales, the ALJ summarized the new evidence, but “essentially swept it aside because of a delay 17 in seeking mental health treatment and a failure to take medications as prescribed.” Perales, 2022 18 WL 4226171, at *5. As in Perales, however, such reasoning “do[es] not support the ALJ’s 19 rejection of evidence showing a significant change in [P]laintiff’s mental impairments.” Id. (citing 20 Regennitter v. Comm'r of Soc. Sec., 166 F.3d 1294, 1300 (9th Cir. 1999) (“[W]e have particularly 21 criticized the use of a lack of treatment to reject mental complaints both because mental illness is 22 notoriously underreported and because it is a questionable practice to chastise one with a mental 23 impairment for the exercise of poor judgment in seeking rehabilitation.”) (internal quotation marks 24 omitted)). In doing so, the ALJ failed to acknowledge evidence in the record suggesting Plaintiff’s 25 lack of treatment may have been caused by her mental impairments. (See AR 514 (Dr. McLain 26 suspected Plaintiff’s trouble in attending treatment appointments was due to her memory issues); 27 AR 552 (Plaintiff stated she had gaps treatment due to negative experiences with medical providers 28 and transportation issues).) 1 In sum, the ALJ’s failure to identify more than minimal evidence—much less substantial 2 evidence—of medical stability in support of the conclusion that there were no changed 3 circumstances constitutes legal error. See Perales, 2022 WL 4226171, at *4 (finding the ALJ’s 4 determination that there was no evidence of changed circumstances and decision to adopt the prior 5 decision’s RFC finding under Chavez improper where the evidence in the record demonstrated a 6 worsening in the plaintiff’s mental impairments since the date of the prior decision). Furthermore, 7 the ALJ’s mistaken reliance on the Chavez presumption is not harmless. As in Goodlow, the ALJ’s 8 RFC analysis was driven by the Chavez presumption--that there were no changed circumstances 9 since the 2018 decision, and the Acting Commissioner does not argue that the error was harmless. 10 See Goodlow, 2018 WL 4698333, at *4; see also Perales, 2022 WL 4226171, at *3 (an ALJ’s 11 improper reliance on the Chavez presumption is legal error warranting remand). 12 C. Remand for Further Proceedings is Appropriate 13 Where the ALJ commits an error and that error is not harmless, the “ordinary . . . rule” is 14 “to remand to the agency for ‘additional investigation or explanation.’” Treichler v. Comm’r of 15 Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014). The Ninth Circuit recognized a limited 16 exception to this typical course, “sometimes referred to as the ‘credit-as-true’ rule,” where courts 17 “remand[] for an award of benefits instead of further proceedings.” Id. at 1100. In determining 18 whether to apply this exception to the “ordinary remand rule,” the court must determine, in part, 19 whether (1) “the record has been fully developed;” (2) “there are outstanding issues that must be 20 resolved before a determination of disability can be made;” and (3) “further administrative 21 proceedings would be useful.” Id. at 1101 (citations omitted). As for the last inquiry, additional 22 “[a]dministrative proceedings are generally useful where the record ‘has [not] been fully 23 developed,’” where “there is a need to resolve conflicts and ambiguities,” or where “the 24 ‘presentation of further evidence . . . may well prove enlightening’ in light of the passage of time.” 25 Id. Ultimately, “[t]he decision whether to remand a case for additional evidence or simply to award 26 benefits is in [the court’s] discretion.” Swenson, 876 F.2d at 689. 27 Here, the Court finds that the “credit-as-true” exception to the “ordinary remand rule” is 28 inapplicable because additional administrative proceedings would be useful. As discussed above, 1 the ALJ improperly found that there were no changed circumstances since the 2018 decision by the 2 prior ALJ. The matter should be remanded for the ALJ to reevaluate the medical evidence, 3 reconsider all of the opinions, and reconsider Plaintiff’s RFC in light of the Chavez presumption 4 of nondisability. On remand, if the ALJ again finds that there were no changed circumstances, the 5 ALJ can then provide an adequate discussion and explanation of the specific reasons under Chavez. 6 See Perales, 2022 WL 4226171, at *5; Goodlow, 2018 WL 4698333, at *4–5. Upon 7 reconsideration, the ALJ will also need to reevaluate their conclusions at steps four and five of the 8 disability determination in light of any changes to Plaintiff’s RFC. 9 D. The Court Declines to Determine Plaintiff’s Remaining Assertion of Error 10 Having found that remand is warranted, the Court declines to address Plaintiff’s remaining 11 argument that the ALJ erred in failing to identify a “significant number” of jobs in the national 12 economy. See Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012) (“Because we remand the case 13 to the ALJ for the reasons stated, we decline to reach [plaintiff’s] alternative ground for remand.”); 14 see also Newton v. Colvin, No. 2:13–cv–2458–GEB–EFB, 2015 WL 1136477, at *6 n.4 (E.D. Cal. 15 Mar. 12, 2015) (“As the matter must be remanded for further consideration of the medical evidence, 16 the court declines to address plaintiff’s remaining arguments.”); Augustine ex rel. Ramirez v. 17 Astrue, 536 F. Supp. 2d 1147, 1153 n.7 (C.D. Cal. 2008) (“[The] Court need not address the other 18 claims plaintiff raises, none of which would provide plaintiff with any further relief than granted, 19 and all of which can be addressed on remand.”). 20 V. CONCLUSION AND ORDER 21 Based on the foregoing, the Court finds that the ALJ’s decision is not supported by 22 substantial evidence and is, therefore, VACATED and the case REMANDED to the ALJ for further 23 proceedings consistent with this Order. On remand, the ALJ should reevaluate RFC, the medical 24 record, testimony, and any step of the five-step sequential analysis from step two onward; afford a 25 new hearing; and permit, if needed, any supplemental evaluations of Plaintiff’s mental or physical 26 RFC. 27 28 1 The Clerk of this Court is DIRECTED to enter judgment in favor of Plaintiff and against 2 Defendant Kilolo Kijakazi, Acting Commissioner of Social Security. 3 IT IS SO ORDERED. 4 5 Dated: July 25, 2023 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28