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

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 DAJANAE KAMARI WILSON, Case No. 1:22-cv-00425-SKO 10 Plaintiff, ORDER ON PLAINTIFF’S SOCIAL 11 SECURITY COMPLAINT v. 12 (Doc. 1) 13 KILOLO KIJAKAZI, 14 Acting Commissioner of Social Security, 15 Defendant. _____________________________________/ 16 17 18 I. INTRODUCTION 19 Plaintiff Dajanae Kamari Wilson (“Plaintiff”) seeks judicial review of a final decision of the 20 Commissioner of Social Security (the “Commissioner” or “Defendant”) denying her application for 21 Supplemental Security Income (“SSI”) under the Social Security Act (the “Act”). (Doc. 1.) The 22 matter is currently before the Court on the parties’ briefs, which were submitted, without oral 23 argument, to the Honorable Sheila K. Oberto, United States Magistrate Judge.1 24 II. FACTUAL BACKGROUND 25 Plaintiff protectively filed an application for SSI payments on August 27, 2018, alleging she 26 became disabled on August 27, 2018, due a learning and intellectual disability. (Administrative 27 Record (“AR”) 27, 85–86, 98–100, 110–11, 119, 234.) Plaintiff was born on April 17, 2001, and 28 1 was an adolescent on the application date. (AR 32, 53, 85, 98–99, 110, 234.) She reached the age 2 of 18 on April 16, 2019, and has at least a high school education. (AR 32, 44, 55, 69.) 3 A. Relevant Medical Evidence2 4 Plaintiff struggled with a learning disability while in school. In August 2014, a Wide Range 5 Assessment of Memory and Learning, Second Edition (WRAML-2) test was administered to assess 6 Plaintiff’s memory and learning abilities. (AR 347.) Several of Plaintiff’s skills were assessed in 7 the low average range, including her overall short-term memory, her concentration to materials, and 8 her ability to recognize previously presented material. (AR 347.) In 2017, Plaintiff underwent an 9 academic skills assessment called the Wide Range Achievement Test 4 (WRAT-4). (AR 347.) Her 10 scores as to word reading, sentence comprehension, spelling, math computation, and reading all fell 11 within the lower extreme to below average ranges. (AR 347.) 12 An Individualized Education Plan (IEP) report prepared in March 2018 (“the 2018 IEP 13 report”) described how Plaintiff’s difficulty with auditory processing, attention, and sensory motor 14 skills impacted her progress in the areas of basic reading skills, reading comprehension, and math 15 calculation. (AR 373.) Accordingly, Plaintiff required specialized academic instruction, and the 16 2018 IEP report noted that she would benefit from specific accommodations to help her access the 17 curriculum and demonstrate knowledge at grade level standards, such as one-on-one instruction. 18 (AR 373, 393.) The 2018 IEP report also indicated Plaintiff had been provided with multiple 19 calendars and planners which were not being used. (AR 396–97.) 20 The 2018 IEP report further described how at the time, Plaintiff was only coming to school 21 on Tuesdays and Thursdays and averaging one credit per month. (AR 384.) A supervising teacher 22 gave Plaintiff homework each week, “but nothing comes back completed.” (AR 384.) Plaintiff was 23 able to engage in conversations appropriately with adults and peers, and she followed directions 24 from educational staff and displayed positive behaviors. (AR 384.) 25 Another IEP report was prepared in September 2020, when Plaintiff was 19 years old (“the 26 2020 IEP report”). (AR 342.) The 2020 IEP report noted that Plaintiff “has been identified as having 27 28 2 Because the parties are familiar with the medical evidence, it is summarized here only to the extent relevant to the 1 a primary educational disability of Specific Learning Disability (SLD) associated with attention, 2 auditory, and sensory motor skills processing deficits.” (AR 342.) The 2020 IEP report explained 3 that these challenges affected Plaintiff across the curriculum, with the most noted challenges being 4 in the areas of reading comprehension, basic reading skills, and math calculation. (AR 342.) 5 Accordingly, Plaintiff required specialized academic instruction, related services, and appropriate 6 accommodations so she could make effective educational progress. (AR 342.) 7 The 2020 IEP report described how Plaintiff’s overall cognitive ability was estimated to be 8 within the low average range. (AR 347.) Plaintiff struggled to calculate change, but she was able 9 to complete calculations up to 5 dollars. (AR 347, 354.) The 2020 IEP report indicated Plaintiff is 10 able to communicate her wants and needs verbally and she can follow directions. (AR 347.) She 11 does laundry and helps with dishes and chores around the house, but she only cooks on the stove 12 with assistance. (AR 348.) 13 B. Administrative Proceedings 14 The Commissioner denied Plaintiff’s application for benefits initially on December 12, 2018, 15 and again on reconsideration on March 4, 2019. (AR 27, 96–98, 109–111, 119.) Consequently, 16 Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). (AR 125–26, 141.) The 17 ALJ conducted a hearing on December 11, 2020. (AR 51–80.) Plaintiff appeared at the hearing 18 with her mother and counsel and provided testimony. (AR 65–70.) Plaintiff’s mother and a 19 vocational expert (“VE”) also testified at the hearing. (AR 75–79.) 20 1. Plaintiff’s Testimony 21 Plaintiff testified that she is not currently employed, but she used to volunteer at the SPCA. 22 (AR 65–66.) While she was in school, she had learning difficulties as to math and reading, and a 23 teacher helped her on an individual basis. (AR 66.) Plaintiff stated she had no friends that she spent 24 time with outside of the house, and she did not get along with her siblings. (AR 67.) According to 25 Plaintiff, she can do household tasks like washing the dishes, taking a shower, and brushing her 26 teeth, but she needs reminders from her mother to do so. (AR 67.) She testified that she is unable 27 to go to the grocery store by herself, count money, pay bills, or drive, but she can make simple meals 28 like eggs and bacon. (AR 68–70.) 1 2 Plaintiff’s mother testified that Plaintiff needs assistance and reminders when it comes to 3 household chores like doing laundry. (AR 76.) She stated she provides Plaintiff with these 4 reminders every day, between three to five times a day. (AR 76–77.) Plaintiff’s mother described 5 how Plaintiff’s disability was an intellectual impairment because Plaintiff has trouble following 6 directions and with comprehension, and she is easily distracted and “constantly” needs reminders. 7 (AR 77.) Plaintiff’s mother testified that she did not believe Plaintiff could live on her own. (AR 8 78.) She explained that she did not think Plaintiff would know how to handle an emergency if one 9 were to arise, and she “needs help constantly.” (AR 78.) Plaintiff’s mother stated that Plaintiff can 10 use the stove to cook breakfast, but when it comes to using the oven, her mother has to remind her 11 how to use it and to turn it off. (AR 79.) 12 3. Vocational Expert’s Testimony 13 The VE testified at the hearing that Plaintiff had no past work. (AR 72.) The ALJ asked the 14 VE to consider a person of Plaintiff’s age, education, and no past work history. (AR 72.) The VE 15 was to assume that this individual could perform the full range of all exertional levels, but would be 16 limited to simple and routine tasks not at a production rate, so the person could not do work that 17 would have high production quotas which would need to be performed with strict deadlines, such as 18 what might be expected on an assembly line. (AR 72.) The hypothetical individual could 19 occasionally interact with coworkers, but not in a tandem team or group setting, and could 20 occasionally interact with supervisors. (AR 72.) The individual could not do any work that would 21 require interaction with the public. (AR 72.) The individual would also need to work in an 22 environment that is fairly stable, meaning there would be few changes, if any, to the day-to-day work 23 setting, tools, and work processes used to accomplish the work. (AR 72.) The VE testified that such 24 a person could perform jobs in the national economy, such as production helper, Dictionary of 25 Operational Titles (DOT) code 558.687-010, with a specific vocational preparation (SVP)3 of 1 and 26 3 Specific vocational preparation, as defined in DOT, App. C, is the amount of lapsed time required by a typical worker 27 to learn the techniques, acquire the information, and develop the facility needed for average performance in a specific job-worker situation. DOT, Appendix C – Components of the Definition Trailer, 1991 WL 688702 (1991). Jobs in the 28 DOT are assigned SVP levels ranging from 1 (the lowest level – “short demonstration only”) to 9 (the highest level – 1 medium exertional level; tender-helper, DOT code 511.687-018, with an SVP of 1 and medium 2 exertional level; and bottling line attendant, DOT code 920.697-042, with an SVP of 1 and light 3 exertional level. (AR 73.) The VE testified that these three jobs would not require math skills other 4 than basic counting, and they would not require any writing or reading. (AR 74.) 5 The ALJ asked the VE whether such jobs would be available if the hypothetical individual 6 needed reminders three times a day, on a regular basis, from a supervisor throughout the day to stay 7 on task. (AR 74.) The VE testified that such this limitation would not preclude employment and the 8 three previously identified jobs would still be available. (AR 74.) 9 Plaintiff’s attorney then asked the VE whether their opinion would change if the hypothetical 10 individual needed reminders by a supervisor three times an hour to stay on task. (AR 75.) The VE 11 stated that such a limitation would preclude the previously identified jobs. (AR 75.) The VE also 12 testified that being off task for 25% of the workday due to cognitive issues and needing to take breaks 13 is work preclusive. (AR 75.) 14 III. APPLICABLE LAW 15 Plaintiff’s mother initiated this case as a childhood disability claim, but because Plaintiff 16 reached the age of maturity during the pendency of the case, the ALJ considered Plaintiff’s 17 application for benefits under both the child and adult disability standards. (See AR 28–32, 55, 57, 18 111, 234.) The Court will set forth both standards below. 19 A. Childhood Disability Standard 20 A child (defined as an individual under the age of eighteen) is considered disabled for 21 purposes of disability benefits if they are unable to engage in substantial gainful activity due to a 22 medically determinable physical or mental impairment. Bowen v. Yuckert, 482 U.S. 137, 140 (1987) 23 (quoting 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A)); Lowe v. Berryhill, No. 1:17-cv-00349-SKO, 24 2018 WL 2096264, at *7 (E.D. Cal. May 7, 2018). The impairment or impairments must “result[] 25 in marked and severe functional limitations, and which can be expected to result in death or which 26 has lasted or can be expected to last for a continuous period of not less than 12 months.” Merrill ex 27 rel. Merrill v. Apfel, 224 F.3d 1083, 1085 (9th Cir. 2000) (quoting 42 U.S.C. § 1382c(a)(3)(C)(i)). 28 The ALJ must undertake a three-step sequential analysis in the process of evaluating a child’s 1 disability. In the first step, the ALJ must determine whether the child is engaged in substantial 2 gainful activity. 20 C.F.R. § 416.924. If not, in the second step, the ALJ must determine whether 3 the child has a severe impairment or a combination of impairments causing marked functional 4 limitations. Id. If so, in the third step, the ALJ must determine whether the child has a severe 5 impairment or combination of impairments that meets or equals the requirements of the Listing of 6 Impairments (“Listing”), 20 C.F.R. 404, Subpart P, App. 1. Id. If so, the child is found to be 7 disabled, assuming the twelve-month duration requirement is also met. Id. 8 Step three encompasses two analytical steps. First, it must be determined whether the 9 claimant’s impairment meets or medically equals a Listing. Second, the impairment must also 10 satisfy all the criteria of the Listing. 20 C.F.R. § 416.925(d). The mere diagnosis of an impairment 11 in the Listing is insufficient, without more, to sustain a finding of disability. Young v. Sullivan, 911 12 F.2d 180, 183 (9th Cir. 1990); Key v. Heckler, 754 F.2d 1545, 1549 (9th Cir. 1985). If the claimant 13 does not meet or medically equal a Listing, they may still be considered disabled if an impairment 14 results in limitations that “functionally equal the listings.” 20 C.F.R. § 416.926a(a). 15 In determining whether the severe impairment functionally equals a Listing, the ALJ must 16 assess the claimant’s functioning in six “domains.” The “domains” are broad areas of functioning 17 that are “intended to capture all of what a child can or cannot do.” 20 C.F.R. § 416.926a(b)(1). The 18 six domains are: (1) acquiring and using information; (2) attending and completing tasks; 19 (3) interacting and relating with others; (4) moving about and manipulating objects; (5) caring for 20 yourself; and (6) health and physical well-being. Id. To “functionally equal” the listings, the 21 impairment must result in “marked” limitations in two domains or an “extreme” limitation in one 22 domain. Id., § 416.926a(a), (d). In making this assessment, the ALJ looks at “how appropriately, 23 effectively, and independently” the claimant preforms their activities “compared to the performance 24 of other children [the claimant’s] age who do not have impairments.” Id., § 416.926a(b). In each 25 domain, the regulations provide “age group descriptors” summarizing the typical functioning of 26 children in each group. The age groups include preschool children (age 3 to attainment of age 6), 27 school-age children (age 6 to attainment of age 12), and adolescents (age 12 to attainment of age 28 18). See, e.g., id., § 416.926a(h). 1 A minor has a “marked” limitation in a domain if their impairment “interferes seriously” 2 with their “ability to independently initiate, sustain, or complete activities.” 20 C.F.R. 3 § 416.926a(e)(2)(i). The regulations also provide that “marked” limitations means a limitation that 4 is “more than moderate” but “less than extreme.” Id. However, “extreme” limitation does not mean 5 a “total lack or loss of ability to function.” 20 C.F.R. § 416.926a(e)(3)(i). 6 The claimant bears the burden of establishing a prima facie case of disability. Roberts v. 7 Shalala, 66 F.3d 179, 182 (9th Cir. 1995); see 20 C.F.R. § 416.912(a) (“In general, you have to 8 prove to us that you are blind or disabled”). This burden requires a showing that the minor has an 9 impairment listed in the regulations, and that they have met the duration requirement. See 20 C.F.R. 10 § 416.924(a), 416.924(d)(2). 11 B. Adult Disability Standard 12 An individual is considered “disabled” for purposes of disability benefits if he or she is unable 13 “to engage in any substantial gainful activity by reason of any medically determinable physical or 14 mental impairment which can be expected to result in death or which has lasted or can be expected 15 to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). However, 16 “[a]n individual shall be determined to be under a disability only if [their] physical or mental 17 impairment or impairments are of such severity that he is not only unable to do [their] previous work 18 but cannot, considering [their] age, education, and work experience, engage in any other kind of 19 substantial gainful work which exists in the national economy.” Id. § 423(d)(2)(A). 20 “The Social Security Regulations set out a five-step sequential process for determining 21 whether a claimant is disabled within the meaning of the Social Security Act.” Tackett v. Apfel, 180 22 F.3d 1094, 1098 (9th Cir. 1999) (citing 20 C.F.R. § 404.1520). The Ninth Circuit has provided the 23 following description of the sequential evaluation analysis: 24 In step one, the ALJ determines whether a claimant is currently engaged in substantial gainful activity. If so, the claimant is not disabled. If not, the ALJ proceeds to step 25 two and evaluates whether the claimant has a medically severe impairment or combination of impairments. If not, the claimant is not disabled. If so, the ALJ 26 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. 404, subpt. P, 27 [a]pp. 1. If so, the claimant is automatically presumed disabled. If not, the ALJ 28 proceeds to step four and assesses whether the claimant is capable of performing 1 to step five and examines whether the claimant has the [RFC] . . . to perform any 2 other substantial gainful activity in the national economy. If so, the claimant is not disabled. If not, the claimant is disabled. 3 4 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). “If a claimant is found to be ‘disabled’ or ‘not 5 disabled’ at any step in the sequence, there is no need to consider subsequent steps.” Tackett, 180 6 F.3d at 1098 (citing 20 C.F.R. § 404.1520). 7 “The claimant carries the initial burden of proving a disability in steps one through four of the 8 analysis.” Burch, 400 F.3d at 679 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989)). 9 “However, if a claimant establishes an inability to continue [their] past work, the burden shifts to the 10 Commissioner in step five to show that the claimant can perform other substantial gainful work.” Id. 11 (citing Swenson, 876 F.2d at 687). 12 IV. THE ALJ’S DECISION 13 A. Childhood Disability Analysis 14 In a decision dated March 31, 2021, the ALJ found that Plaintiff was not disabled. (AR 27– 15 45.) The ALJ first conducted the three-step childhood disability analysis set forth in 20 C.F.R. 16 § 416.924. (AR 32–42.) The ALJ noted that Plaintiff was “an adolescent” on August 27, 2018, the 17 date the application was filed, she attained the age of 18 on April 16, 2019, and she had not engaged 18 in substantial gainful activity since the application date (step one). (AR 32.) At step two, the ALJ 19 found that prior to attaining the age of 18, Plaintiff had the severe impairment of learning/intellectual 20 disorder. (AR 32.) The ALJ further found that prior to attaining the age of 18, Plaintiff had no 21 impairment or combination of impairments that met, medically equaled, or functionally equaled the 22 severity of the Listings, in that they resulted in either marked limitations in two domains of 23 functioning or extreme limitation in one domain of functioning (step three). (AR 32–34.) 24 In reaching this finding, the ALJ considered the relevant medical evidence and opinions, the 25 hearing testimony, and school records. (See AR 32–42.) Although the ALJ recognized that 26 Plaintiff’s impairments “could reasonably be expected to produce the alleged symptoms[,]” they 27 rejected the subjective testimony in the record as “not entirely consistent with the medical evidence 28 and other evidence in the record.” (AR 35.) The ALJ also found the opinions of the state agency 1 examiners “partially persuasive.” (AR 36.) The ALJ analyzed Plaintiff’s functioning “[i]n terms of 2 six functional equivalence domains,” including (1) acquiring and using information, (2) attending 3 and completing tasks, (3) interacting and relating with others, (4) moving about and manipulating 4 objects, (5) caring for herself, and (6) health and physical well-being. (AR 37–42.) The ALJ 5 concluded that Plaintiff was not disabled. (AR 42.) 6 B. Adult Disability Analysis 7 The ALJ then conducted the five-step adult disability analysis set forth in 20 C.F.R. 8 § 404.1520. (AR 42–45.) The ALJ had previously found that Plaintiff had not engaged in substantial 9 gainful activity since August 27, 2018, the application date (step one). (AR 32.) At step two, the 10 ALJ found that since attaining age 18, Plaintiff continued to have a severe impairment of 11 learning/intellectual disorder, and she had not developed any new impairments. (AR 42.) Since 12 turning 18, Plaintiff did not have an impairment or combination of impairments that met or medically 13 equaled one of the listed impairments in the Listing (step three). (AR 42.) 14 The ALJ then assessed Plaintiff’s residual functional capacity (“RFC”) and applied the 15 assessment at steps four and five. See 20 C.F.R. § 416.920(a)(4) (“Before we go from step three to 16 step four, we assess your residual functional capacity . . . . We use this residual functional capacity 17 assessment at both step four and step five when we evaluate your claim at these steps.”). The ALJ 18 determined that since turning 18, Plaintiff had the RFC: to perform a full range of work at all exertional levels. Mentally, [Plaintiff] can 19 perform simple and routine tasks. She cannot perform work that requires high 20 production quotas that need to be performed within strict time deadlines, such as assembly line work. [Plaintiff] can occasionally interact with coworkers but not in 21 a team, group, or tandem setting. She can occasionally interact with supervisors. She cannot perform work that requires public interaction as part of the job duties. 22 In addition, [Plaintiff] requires a stable work environment, defined as having few changes in the day-to-day work setting or in the tools and work processes used to 23 accomplish the work. 24 25 (AR 42.) Although the ALJ recognized that Plaintiff’s impairment “could reasonably be expected to 26 cause the alleged symptoms[,]” the ALJ rejected Plaintiff’s and her mother’s 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 43.) 1 The ALJ determined that Plaintiff had no past relevant work (step four), but considering 2 Plaintiff’s age, education, work experience, and RFC, Plaintiff could perform a significant number 3 of jobs in the national economy, specifically production helper, tender helper, and bottling line 4 attendant (step five). (AR 44–45.) The ALJ concluded Plaintiff was not disabled since August 27, 5 2018, the application date. (AR 45.) 6 Plaintiff sought review of this decision before the Appeals Council, which denied review on 7 October 5, 2021. (AR 5–10.) Therefore, the ALJ’s decision became the final decision of the 8 Commissioner. 20 C.F.R. § 416.1481. 9 V. SCOPE OF REVIEW 10 The ALJ’s decision denying benefits “will be disturbed only if that decision is not supported 11 by substantial evidence or it is based upon legal error.” Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 12 1998). In reviewing the Commissioner’s decision, the Court may not substitute its judgment for that 13 of the Commissioner. Macri v. Chater, 93 F.3d 540, 543 (9th Cir. 1996). Instead, the Court must 14 determine whether the Commissioner applied the proper legal standards and whether substantial 15 evidence exists in the record to support the Commissioner’s findings. See Lewis v. Astrue, 498 F.3d 16 909, 911 (9th Cir. 2007). “Substantial evidence is more than a mere scintilla but less than a 17 preponderance.” Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). 18 “Substantial evidence” means “such relevant evidence as a reasonable mind might accept as 19 adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting 20 Consol. Edison Co. of N.Y. v. N.L.R.B., 305 U.S. 197, 229 (1938)). The Court “must consider the 21 entire record as a whole, weighing both the evidence that supports and the evidence that detracts 22 from the Commissioner’s conclusion, and may not affirm simply by isolating a specific quantum of 23 supporting evidence.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (citation and 24 internal quotation marks omitted). 25 VI. DISCUSSION 26 Plaintiff contends, inter alia, that the ALJ failed to articulate clear and convincing reasons for 27 discounting her statements regarding her subjective complaints. (Doc. 21 at 16–21; Doc. 24 at 3–4.) 28 The Acting Commissioner responds that the ALJ properly relied on evidence in the record that 1 undermined the credibility of Plaintiff’s allegations of disabling symptoms and limitations. (Doc. 23 2 at 12–15.) The Court agrees with Plaintiff that the ALJ erred in the evaluation of Plaintiff’s testimony 3 and will remand the case on that basis. 4 A. The ALJ Failed to Articulate “Specific, Clear and Convincing Reasons” to Discredit Plaintiff’s Subjective Complaints 5 1. Legal Standard 6 7 “In evaluating the credibility of a claimant’s testimony regarding subjective pain, an ALJ 8 must engage in a two-step analysis.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). “First, 9 the ALJ must determine whether the claimant has presented objective medical evidence of an 10 underlying impairment which could reasonably be expected to produce the pain or other symptoms 11 alleged.” Id. “The claimant is not required to show that her impairment ‘could reasonably be 12 expected to cause the severity of the symptom she has alleged; she need only show that it could 13 reasonably have caused some degree of the symptom.’” Id. If the claimant meets the first test and 14 there is no evidence of malingering, the ALJ can only reject the claimant’s testimony about the 15 severity of the symptoms if the ALJ gives “‘specific, clear and convincing reasons’” for the 16 rejection.4 Id. 17 As the Ninth Circuit has explained: 18 The ALJ may consider many factors in weighing a claimant’s credibility, including (1) ordinary techniques of credibility evaluation, such as the claimant’s reputation 19 for lying, prior inconsistent statements concerning the symptoms, and other testimony by the claimant that appears less than candid; (2) unexplained or 20 inadequately explained failure to seek treatment or to follow a prescribed course of treatment; and (3) the claimant’s daily activities. If the ALJ’s finding is supported 21 by substantial evidence, the court may not engage in second-guessing. 22 Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (citations and internal quotation marks 23 omitted); see also Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1226–27 (9th Cir. 2009) (“If 24 an ALJ finds a claimant’s characterization of his or her own symptoms unreliable, the ALJ must 25 make a credibility determination backed up by specific findings.”). Other factors the ALJ may 26 27 4 To preserve its position for any potential appeal, the Acting Commissioner contends that the “clear and convincing reasons” standard is inconsistent with the substantial evidence standard under 42 U.S.C. § 405(g). (See Doc. 23 at 12 28 n.4.) As the Acting Commissioner acknowledges, however, this Court is bound by Ninth Circuit precedent. (Id.) In 1 consider include a claimant’s work record and testimony from physicians and third parties 2 “concerning the nature, severity, and effect of the symptoms of which he complains.” Light v. Soc. 3 Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). 4 The clear and convincing standard is “not an easy requirement to meet,” as it is “the most 5 demanding required in Social Security cases.” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 6 2014) (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). “A 7 finding that a claimant’s testimony is not credible ‘must be sufficiently specific to allow a reviewing 8 court to conclude the adjudicator rejected the claimant’s testimony on permissible grounds and did 9 not arbitrarily discredit a claimant’s testimony regarding pain.’” Brown-Hunter v. Colvin, 806 F.3d 10 487, 493 (9th Cir. 2015). 11 2. Analysis 12 Here, in both the childhood and adult disability analyses, the ALJ found that Plaintiff’s 13 “medically determinable impairment could reasonably be expected to cause the alleged symptoms.” 14 (AR 35, 43.) The ALJ further determined that Plaintiff’s “statements concerning the intensity, 15 persistence and limiting effects of these symptoms [were] not entirely consistent with the medical 16 evidence and other evidence in the record.” (Id.) Accordingly, the relevant inquiry before the Court 17 is whether the ALJ provided “specific, clear and convincing reasons” in making the non-credibility 18 determination. Vasquez, 572 F.3d at 591; see, e.g., Brown-Hunter, 806 F.3d at 492–93 (“Where . . 19 . the ALJ concludes that a claimant is not malingering, and that she has provided objective medical 20 evidence of an underlying impairment which might reasonably produce the pain or other symptoms 21 alleged, the ALJ may ‘reject the claimant’s testimony about the severity of her symptoms only by 22 offering specific, clear and convincing reasons for doing so.’”). 23 As the Ninth Circuit in Brown-Hunter stated: 24 We hold that an ALJ does not provide specific, clear, and convincing reasons for rejecting a claimant's testimony by simply reciting the medical evidence in support 25 of his or her [RFC] determination. To ensure that our review of the ALJ's credibility determination is meaningful, and that the claimant's testimony is not rejected 26 arbitrarily, we require the ALJ to specify which testimony she finds not credible, and then provide clear and convincing reasons, supported by evidence in the record, to 27 support that credibility determination. 28 Brown-Hunter, 806 F.3d at 489. Thus, “[g]eneral findings” are not enough to satisfy the clear and 1 convincing standard. Id. at 493. “[R]ather, the ALJ must identify what testimony is not credible 2 and what evidence undermines the claimant’s complaints.” Id. Failure to do so constitutes legal 3 error. Id. at 494. 4 As part of the childhood disability analysis, the ALJ evaluated Plaintiff’s statements as 5 follows: 6 [Plaintiff] alleged disability based on learning and intellectual disability (Exhibit B4E/2). She testified that she had problems with math and reading and required one- 7 on-one instruction from instructors. She testified that she is not currently employed. She performed volunteer work with the SPCA but was unable to specify when the 8 work took place or how long she performed the position. She testified that she did not have friends outside the house and did not get along with her siblings. She 9 required reminders to perform household chores and perform personal care. [Plaintiff] testified that she cannot go shopping by herself and cannot make change 10 at the store. She does not drive. 11 (AR 35.) The ALJ then discussed the medical evidence that formed the basis for the childhood 12 nondisability finding. (AR 35–42.) 13 As a part of the adult disability analysis, the ALJ noted their finding that Plaintiff’s and her 14 mother’s “assertions [were] partially persuasive.” (AR 43.) After briefly summarizing some of the 15 medical evidence, the ALJ stated as follows: 16 I find [Plaintiff’s] and her mother’s assertions persuasive but only to the extent consistent with the limitations identified above. [Plaintiff’s] record shows that [she] 17 has been successful with IEP services. She is able to perform most activities of daily living independently or with prompting. [Plaintiff’s] medical records reflect no 18 significant physical problems. 19 (AR 43.) 20 The foregoing is the entire subjective symptom discussion, and it is insufficient. The ALJ 21 does not specify which of Plaintiff’s statements they found to be less than credible and why the only 22 three identified pieces of medical evidence (that Plaintiff’s record shows success with IEP services, 23 her ability to perform most activities of daily living independently or with prompting, and no 24 significant physical problems) undermine that testimony. To the contrary, on multiple occasions, the 25 ALJ acknowledges that they found Plaintiff’s and her mother’s statements to be persuasive. (See AR 26 43.) Indeed, the ALJ’s analysis indicates that they found Plaintiff’s testimony regarding her 27 impairments to be at least partially credible. (Compare AR 35 (Plaintiff testified that she “required 28 reminders to perform household chores and perform personal care.”) with AR 43 (the ALJ found that 1 Plaintiff “is able to perform most activities of daily living independently or with prompting.”).) 2 It is unclear to the Court which of Plaintiff’s statements regarding her impairments that the 3 ALJ found to be less than credible. For example, it is not apparent why Plaintiff’s success with IEP 4 services bears any relation to her problems with math and reading. (AR 35, 43.) Such a nexus is 5 required because, without that specification, the Court is left to speculate as to which statements the 6 ALJ intended to discount and how they are undermined by the evidence—which the Court may not 7 do. See Brown-Hunter, 806 F.3d 494–95 (“We cannot review whether the ALJ provided specific, 8 clear and convincing reasons for rejecting [the claimant]’s pain testimony where, as here, the ALJ 9 never identified which testimony she found not credible, and never explained which evidence 10 contradicted that testimony . . . . In sum, ‘we cannot substitute our conclusions for the ALJ’s, or 11 speculate as to the grounds for the ALJ’s conclusions.’”) (emphasis in original). Similarly, the ALJ 12 describes finding “[Plaintiff’s] and her mother’s assertions persuasive but only to the extent consistent 13 with the limitations identified above.” (AR 43.) However, this general finding of an unspecified 14 conflict between Plaintiff’s statements and the ALJ’s determinations as to her limitations is 15 inadequate, and again leaves the Court in a position to speculate as to which limitations the ALJ is 16 referring. See also Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014) (explaining that the Court 17 may not “take a general finding—an unspecified conflict between [c]laimant’s testimony . . . and her 18 reports to doctors—and comb the administrative record to find specific conflicts.”). While the Ninth 19 Circuit does not “require ALJs to perform a line-by-line exegesis of the claimant’s testimony, nor do 20 they require ALJs to draft dissertations when denying benefits,” the ALJ must do more than what was 21 done here, which consisted of finding Plaintiff’s assertions to be persuasive, but rejecting unspecified 22 parts of her statements without explanation. Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020). 23 The Acting Commissioner points to statements made by the ALJ in the summation of the 24 medical evidence supporting the RFC determination, and contends the ALJ provided clear and 25 convincing reasons for discounting Plaintiff’s testimony. (See Doc. 23 at 13–15.) The Ninth Circuit 26 has explained, however, that “summariz[ing] the medical evidence supporting [the] RFC 27 determination . . . is not the sort of explanation or the kind of ‘specific reasons’ [the Court] must 28 have in order to . . . ensure that the claimant’s testimony was not arbitrarily discredited.” See, e.g., 1 Brown-Hunter, 806 F.3d at 494. Thus, “the observations an ALJ makes as part of the summary of 2 the medical record are not sufficient to establish clear and convincing reasons for rejecting a 3 Plaintiff’s credibility. Instead, the ALJ must link the medical evidence at issue to the Plaintiff’s 4 testimony.” Argueta v. Colvin, No. 1:15–cv–01110–SKO, 2016 WL 4138577, at *13 (E.D. Cal. 5 Aug. 3, 2016) (citations omitted, emphasis in the original). 6 As set forth above, the ALJ did not specifically identify which portions of Plaintiff’s 7 testimony conflicted with the parts of the record they noted and how. Because this Court’s review is 8 limited to the rationale provided by the ALJ, the post-hoc rationalizations and inferences advanced 9 by the Acting Commissioner cannot justify the ALJ’s rejection of Plaintiff’s subjective testimony. 10 See Bray, 554 F.3d at 1225 (“Long-standing principles of administrative law require [the Court] to 11 review the ALJ’s decision based on the reasoning and factual findings offered by the ALJ—not post 12 hoc rationalizations that attempt to intuit what the adjudicator may have been thinking.”); Ceguerra 13 v. Sec’y of Health & Human Servs., 933 F.2d 735, 738 (9th Cir. 1991) (“A reviewing court can 14 evaluate an agency’s decision only on the grounds articulated by the agency.”). 15 B. The ALJ’s Error Was Not Harmless 16 The Court now turns to the analysis of whether this error by the ALJ was harmless. The 17 Ninth Circuit “ha[s] long recognized that harmless error principles apply in the Social Security Act 18 context.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (citing Stout v. Comm’r, Soc. Sec. 19 Admin., 454 F.3d 1050, 1054 (9th Cir. 2006)); see also Garcia v. Comm’r of Soc. Sec., 768 F.3d 20 925, 932 n.10 (9th Cir. 2014) (stating that the harmless error analysis applies where the ALJ errs by 21 not discharging their duty to develop the record). As such, the Court “will not reverse an ALJ’s 22 decision for harmless error.” Tommasetti, 533 F.3d at 1038 (citing Robbins, 466 F.3d at 885). 23 An error is harmless “where it is inconsequential to the ultimate nondisability 24 determination.” Molina, 674 F.3d at 1115 (citations omitted); see also Treichler v. Comm’r of Soc. 25 Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014) (stating that an error is also harmless “‘if the 26 agency’s path may reasonably be discerned,’ even if the agency ‘explains its decision with less than 27 ideal clarity’”) (quoting Alaska Dep’t of Envtl. Conservation v. EPA, 540 U.S. 461, 497 (2004)). 28 “In other words, in each case [courts] look at the record as a whole to determine whether the error 1 alters the outcome of the case.” Molina, 674 F.3d at 1115. “The nature of [the] application” of the 2 “harmless error analysis to social security cases” is “fact-intensive―’no presumptions operate’ and 3 ‘[courts] must analyze harmlessness in light of the circumstances of the case.’” March v. Colvin, 4 792 F.3d 1170, 1172 (9th Cir. 2015) (quoting Molina, 674 F.3d at 1121). “[T]he burden of showing 5 that an error is harmful normally falls upon the party attacking the agency’s determination.” 6 Shinseki v. Sanders, 556 U.S. 396, 409 (2009). 7 The record establishes that the ALJ’s error was not harmless. If the ALJ had credited 8 Plaintiff’s statements regarding her mental functional abilities and included appropriate limitations 9 in the RFC, the disability determination may have changed, especially given that Plaintiff alleged 10 fairly significant limitations, including an inability to do household tasks without reminders, go to 11 the grocery store by herself, count money, pay bills, or drive. (AR 67–70; see also AR 75 (VE’s 12 testimony that needing reminders by a supervisor three times an hour to stay on task would preclude 13 the three previously identified jobs, and being off task for 25% of the workday due to cognitive 14 issues and needing to take breaks is work preclusive).) Thus, the error was not “inconsequential to 15 the ultimate nondisability determination,” Molina, 674 F.3d at 1115, and was not harmless. 16 C. The ALJ’s Error Warrants Remand for Further Proceedings 17 Where the ALJ commits an error and that error is not harmless, the “ordinary . . . rule” is “to 18 remand to the agency for additional investigation or explanation.” Treichler, 775 F.3d at 1099 19 (citations omitted). The Ninth Circuit recognized a limited exception to this typical course where 20 courts “remand[] for an award of benefits instead of further proceedings.” Id. at 1100 (citations 21 omitted); see also id. (noting that this exception is “sometimes referred to as the ‘credit-as-true’ 22 rule”). In determining whether to apply this exception to the “ordinary remand rule,” the Court must 23 determine, in part, whether (1) the record has been fully developed; (2) there are outstanding issues 24 that must be resolved before a determination of disability can be made; and (3) further administrative 25 proceedings would be useful. Id. at 1101 (citations omitted). As to the last inquiry, additional 26 “[a]dministrative proceedings are generally useful where the record has not been fully developed, 27 there is a need to resolve conflicts and ambiguities, or the presentation of further evidence . . . may 28 well prove enlightening in light of the passage of time.” Id. (citations omitted). Ultimately, “[t]he 1 decision whether to remand a case for additional evidence or simply to award benefits is in [the 2 Court’s] discretion.” Swenson, 876 F.2d at 689 (citation omitted). 3 The Court finds that the “credit-as-true” exception to the “ordinary remand rule” is 4 inapplicable in this case because additional administrative proceedings would be useful. If the ALJ 5 changes their evaluation of Plaintiff’s subjective complaints, any warranted additional limitations 6 should be incorporated in the RFC. Conversely, there may be clear and convincing reasons the ALJ 7 can offer for discounting Plaintiff’s statements. See Voisard v. Berryhill, No. 2:17–cv–1023-EFB, 8 2018 WL 4488474, at *5 (E.D. Cal. Sept. 19, 2018) (“That the ALJ failed to provide sufficient 9 reasons for discounting plaintiff’s subjective testimony in this instance does not compel a finding 10 that he is unable to do so.”) (emphasis in original). 11 Even if the ALJ decides to credit as true some or all of Plaintiff’s symptom statements and 12 adjust their RFC determination for Plaintiff, the ALJ may still conclude that Plaintiff is not disabled 13 because she has the RFC to perform the requirements of other work that exists in significant numbers 14 in the national economy. The ALJ may also elect to further develop the record, if deemed necessary. 15 Further proceedings would therefore be useful to allow the ALJ to resolve this “outstanding issue[ ]” 16 before a proper disability determination can be made. See Varney v. Sec’y of Health & Human 17 Servs., 859 F.2d 1396, 1401 (9th Cir. 1988). 18 On remand, the ALJ should reevaluate Plaintiff’s symptom testimony and address any 19 necessary changes to the RFC determination. If the ALJ again discounts Plaintiff’s subjective 20 symptoms, they can then provide an adequate discussion of the specific testimony they are 21 discounting and the specific evidence that contradicts that testimony. See Payan v. Colvin, 672 F. 22 App’x 732, 733 (9th Cir. 2016). The ALJ must also reevaluate their conclusions at steps four and 23 five of the disability determination in light of any changes to Plaintiff’s RFC. 24 D. The Court Declines to Determine Plaintiff’s Remaining Assertion of Error 25 Having found that remand is warranted, the Court declines to address Plaintiff’s remaining 26 argument that the ALJ erred in failing to provide adequate reasons for invalidating the IQ testing 27 administered during Plaintiff’s psychological evaluation. See Hiler v. Astrue, 687 F.3d 1208, 1212 28 (9th Cir. 2012) (“Because we remand the case to the ALJ for the reasons stated, we decline to reach 1 [plaintiff’s] alternative ground for remand.”); see also Newton v. Colvin, No. 2:13–cv–2458–GEB– 2 EFB, 2015 WL 1136477, at *6 n.4 (E.D. Cal. Mar. 12, 2015) (“As the matter must be remanded for 3 further consideration of the medical evidence, the court declines to address plaintiff’s remaining 4 arguments.”); Augustine ex rel. Ramirez v. Astrue, 536 F. Supp. 2d 1147, 1153 n.7 (C.D. Cal. 2008) 5 (“[The] Court need not address the other claims plaintiff raises, none of which would provide 6 plaintiff with any further relief than granted, and all of which can be addressed on remand.”). 7 I. CONCLUSION AND ORDER 8 Based on the foregoing, the Court finds that the ALJ’s decision is not supported by 9 substantial evidence and is, therefore, VACATED and the case REMANDED to the ALJ for further 10 proceedings consistent with this Order. The Clerk of this Court is DIRECTED to enter judgment in 11 favor of Plaintiff Dajanae Kamari Wilson and against Defendant Kilolo Kijakazi, Acting 12 Commissioner of Social Security. 13 IT IS SO ORDERED. 14 15 Dated: September 19, 2023 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28