(SS) Page v. Commissioner of Social Security ( 2024 )

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 ALEXANDRA MADELYN PAGE, Case No. 1:22-cv-00965-JLT-CDB (SS) 9 Plaintiff, FINDINGS AND RECOMMENDATION TO GRANT PLAINTIFF’S MOTION FOR 10 v. SUMMARY JUDGMENT AND REMAND THIS CASE FOR FURTHER PROCEEDINGS 11 COMMISSIONER OF SOCIAL PURSUANT TO SENTENCE FOUR OF 42 SECURITY, U.S.C. §405(g) 12 Defendant. (Doc. 21) 13 14 15 Plaintiff Alexandra Madelyn Page (“Plaintiff”) brought this action under 42 U.S.C. 16 §§405(g) and 1383(c)(3) to review a decision of the Commissioner of Social Security 17 (“Commissioner”) denying her claim for child disability benefits for lack of disability. (Doc. 1). 18 Plaintiff filed a motion for summary judgment on March 17, 2023. (Doc. 21). The 19 Commissioner filed a responsive brief on June 9, 2023, and on July 17, 2023, Plaintiff filed a 20 reply. (Doc. 27). For the reasons set forth below, the undersigned recommends that this action be 21 remanded to the Commissioner for further proceedings.1 22 I. BACKGROUND 23 Plaintiff was born on May 5, 1998, and protectively filed her application for child’s 24 insurance benefits on April 21, 2020, alleging disability beginning on October 10, 2001. (AR 15, 25 17). Her claim was denied initially on July 2, 2020, and again upon reconsideration on October 26 27, 2020. (AR 69). Plaintiff filed a written request for a hearing, which was received on 27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and 1 November 5, 2020. (AR 105). On March 25, 2021, the assigned administrative law judge 2 (“ALJ”) held a telephonic hearing due to the COVID-19 pandemic occurring at the time. (AR 31- 3 52). Plaintiff agreed to appear by telephone, and appeared with her attorney, Sima G. Aghai. An 4 impartial vocational expert (“VE”) also testified during that hearing. The ALJ issued an 5 unfavorable decision on June 30, 2021. (AR 26). Plaintiff sought review by the appeals council, 6 which affirmed the ALJ. (AR 1). 7 As part of her ruling, the ALJ reviewed Plaintiff’s claimed onset date of October 10, 2001, 8 and found that applicable benefits are not payable until Plaintiff reached age 18. (AR 15). Thus, 9 pursuant to section 202(d) of the Social Security Act, the ALJ adjudicated the period from the 10 potential onset date of April 30, 2016, until plaintiff reached age 22. (AR 15). 11 The ALJ then engaged in the five-step sequential evaluation process prescribed by 20 12 C.F.R. § 404.1520.2 At step one, the ALJ found that Plaintiff has not engaged in substantial 13 gainful activity since April 30, 2016, the potential onset date. (AR 17). At step two, the ALJ 14 determined that Plaintiff’s autism spectrum disorder, attention deficit hyperactivity disorder 15 (ADHD), Tourette’s, tic disorder, anxiety, depression, psychosis, and gender dysphoria were 16 severe impairments that significantly limited her ability to perform basic work activities. (AR 17). 17 At step three, the ALJ found that Plaintiff’s impairments, considered singly or in 18 combination, did not meet or medically equal the criteria of any listings, including 12.03, 12.06, 19 12.10 or 12.11. (AR 18). The ALJ next analyzed whether paragraph B criteria were satisfied.3 20 Plaintiff had no limitation in understanding, remembering, or applying information. (AR 18 21 citing AR 501-534, 535-66, 578-78). The ALJ found a moderate limitation in interacting with 22 2 The ALJ’s decision is summarized herein to the extent it is relevant to the issues brought 23 for review by Plaintiff. 24 3 The “paragraph B criteria” evaluates mental impairments in the context of four broad areas of functioning: (1) understanding, remembering, or applying information; (2) interacting 25 with others; (3) concentrating, persisting, or maintaining pace; and (4) adapting or managing oneself. 20 C.F.R. § Pt. 404, Subpt. P, App. 1. The severity of the limitation a claimant has in 26 each of the four areas of functioning is identified as either “no limitation,” “mild,” “moderate,” “marked,” or “extreme.” Id. To satisfy the paragraph B criteria, a claimant must have an 27 “extreme” limitation in at least one of the areas of mental functioning, or a “marked” limitation in at least two of the areas of mental functioning. Id. 1 others (Id. citing AR 189-90, 491, 552). She found significant that Plaintiff attended college 2 without any marked difficulties documented in social interaction. The ALJ further determined 3 that there was insufficient evidence to establish that Plaintiff had a serious impediment in her 4 ability to work with supervisors, co-workers or the public. 5 The ALJ found a moderate limitation with Plaintiff’s ability to concentrate, persisting or 6 maintaining pace. (AR 17). Plaintiff engaged in a wide range of daily activities which showed 7 that she could at least undertake simple, repetitive tasks. (Id. citing AR 183-193, 578-88). Lastly, 8 the ALJ analyzed Plaintiff’s ability to adapt or manage herself and found a moderate limitation. 9 The ALJ again determined there was insufficient evidence to find a serious limitation on 10 Plaintiffs ability to regulate emotions, control behavior, or maintain well-being in a work setting 11 on a sustained basis. (AR 19). 12 The ALJ also considered whether the paragraph C criteria were satisfied and found that 13 there was insufficient evidence of a medically documented history of Plaintiff’s disorders for over 14 a period of at least two years, and evidence of medical treatment, therapy, or some other highly 15 structured setting that demonstrated minimal capacity for Plaintiff to adapt to changes in her 16 environment. Id. 17 The ALJ further determined Plaintiff’s residual functional capacity (“RFC”) as follows: 18 . . . [T]he undersigned finds that, prior to attaining age 22, the claimant had the residual functional capacity to perform a full range 19 of work at all exertional levels but with the following nonexertional limitations: no fast paced production requirements such as an 20 assembly line; occasional interaction and occasional coordination with coworkers; incidental contact with the public; and work with 21 only occasional changes in work routine. 22 (AR 19). At step four, the ALJ considered Plaintiff’s symptoms and the extent to which those 23 symptoms could be accepted as consistent with the objective medical evidence and other evidence 24 on the record. (AR 19 citing 20 C.F.R § 404.1529 and SSR 16-3p). In particular, the ALJ 25 analyzed Plaintiff’s allegations that her disorders prevented her from working, including 26 Plaintiff’s function report that she is enrolled in college, listens to music, does videos, watches 27 televisions, and takes care of her dogs. Id. Plaintiff struggles with fasteners and has trouble 1 prepare simple meals, housework, goes outside, goes shopping, and socializes with others. 2 However, Plaintiff reported low muscle tone which makes it difficult for her to lift heavy objects. 3 Id. Plaintiff also reported poor coordination which makes squatting and writing legibly difficult. 4 However, Plaintiff also indicated that she drives and goes out alone, handles a savings account 5 and spends many hours a day doing photography, music, videos and creative editing. (AR 20 6 citing AR 164-73, 183-93). 7 During the hearing, Plaintiff testified that she was attending college and that her grades 8 are As or Bs. She further testified that she had been enrolled continuously as a full-time student 9 since fall 2016. (AR 20, 38). Plaintiff receives special accommodations at school such as a 10 handwriting alternative, she completes tests in a separate room with time-and-a-half and sits 11 towards the front of the classroom. During the hearing, Plaintiff reported that she was a semester 12 away from graduating from college and received one A and three Bs last semester. Plaintiff never 13 failed a class but did withdraw from a few. (AR 20, 39). 14 Plaintiff also testified that it is difficult for her to interact with others due to her autism. 15 She has a difficult time speaking appropriately and she misinterprets the intentions of others. (AR 16 20; see AR 41). She further testified that she has anxiety and difficulty with coordination, 17 distraction, and concentration. Plaintiff testified that she suffers from Tourette’s syndrome, 18 which triggers her anxiety, and that although she can drive, she cannot do so for long periods. 19 (AR 20). 20 The ALJ found that the record reflects Plaintiff’s history of autism, ADHD, Tourette’s 21 syndrome, anxiety, depression, psychosis, and gender dysphoria. Id. However, the ALJ also 22 found that the evidence does not support Plaintiff’s claims that her limitations disable her to the 23 degree that she alleges. Id. 24 The ALJ found Plaintiff’s grades to be significant — stating that she graduated from high 25 school with a 4.3 GPA. Plaintiff was removed from special education and placed in mainstream 26 classes with some special accommodations tailored towards her ADHD and fine motor skills. 27 (AR 21 citing AR 204-16). 1 diagnoses of mild autism spectrum disorder, moderate social difficulties, mild repetitive 2 behaviors without language or intellectual impairments, GAD, and Tourette’s disorder. (AR 21 3 citing 266-79, 592-93). The evaluation further found that Plaintiff’s full scale IQ score was 119. 4 Dr. Garcia found that Plaintiff’s educational accommodations were appropriate and noted she 5 needed space to organize materials. (Id. citing 266-79, 592-93). 6 Plaintiff’s medical records from Advanced Medical Psychiatric Services Inc. (“AMPS”) 7 dated September 1, 2016, indicate that her cognitive functioning was age appropriate, her 8 memory was intact, she was fully oriented, had normal insight, judgment, and displayed no signs 9 of anxiety. (AR 282). Another progress note dated December 22, 2016, reported Plaintiff 10 exhibited signs of improvement. The note stated that Plaintiff was doing better, her tics were 11 decreasing, and she received excellent grades at school. Plaintiff reported that her symptoms 12 improved and were less frequent/less intense. In addition, the mental health examination showed 13 that Plaintiff appeared anxious, but had an appropriate affect. (AR 286). 14 On May 16, 2017, Plaintiff reported that her Tourette’s symptoms had improved and she 15 was no longer hearing voices. (AR 292). She reported no anxiety and denied symptoms of 16 depression. (AR 296). Another progress note from February 8, 2018, reports that Plaintiff felt 17 much better. She denied hearing voices and paranoia and reported an overall improvement in her 18 symptoms. (AR 301-02). 19 Plaintiff reported for hormone therapy in November 2018 where she stated that she was 20 doing well and was happy with her changes. (AR 520). During a follow-up visit at AMPS in 21 December 2018, she stated that her anxiety has been controlled and that she was going to school. 22 Plaintiff’s mental health examination reported mostly normal findings other than mild depression 23 and signs of anxiety. (AR 314). In January 2019, Plaintiff demonstrated stable and uneventful 24 behavior and complied with her medication treatment. (AR 375). In a medical report from March 25 2019, Plaintiff reported that she noticed an overall improvement in her functioning. (AR 540). 26 During a visit to Dr. C. Donell Crow, Plaintiff reported having a full school schedule and 27 mentioned that she engaged in more social activities. (AR 491). Office notes from a visit to 1 boyfriend. (AR 552). She reported certain side effects from Abilify, but her mood and anxiety 2 improved at a later visit in February 2020. Plaintiff’s mental status examination was reported 3 within normal limits. (AR 557). 4 Plaintiff’s symptoms worsened after she experienced the loss of her father in March 2020. 5 (AR 565, 583). By August 2020, she reported feeling better since restarting Abilify. She 6 reported less anxiety, depression, restlessness, and sadness. Although she still experienced some 7 depression, a progress note from AMPS indicates that her improvement level increased overall 8 with an increase in her energy level and a decrease in her depression symptoms. (AR 586). 9 The ALJ also analyzed Plaintiff’s range of activities and found them inconsistent with the 10 extent of disability she alleges. (AR 22). Plaintiff reported doing college/schoolwork, caring for 11 her dogs, doing housework, driving, shopping, doing photography, video editing, and spending 12 time with friends, which the ALJ considered inconsistent with her alleged severity. (AR 183-93). 13 The ALJ found that Plaintiff’s range of activities is more consistent with her assigned RFC than 14 an inability to do all types of work. (AR 22). 15 The ALJ further found that although Plaintiff claims that she has difficulty with her 16 memory, completing tasks, concentration, understanding and following instructions, Plaintiff 17 entered mainstream education (with some accommodations) and was able to maintain an 18 impressive GPA without more intensive special education services. The ALJ further found that 19 Plaintiff was a fulltime college student since Fall 2016, withdrew from only a few classes and 20 gets A’s and B’s. (AR 183-93, 204-16, 280-316, 39). The ALJ acknowledged that Plaintiff 21 receives accommodations for her college classes but found that accommodations for college 22 courses do not persuasively establish that she would need the same accommodations for less 23 demanding unskilled work. 24 The ALJ also found that Plaintiff’s allegations were inconsistent with the treatment notes 25 of record, which showed improvement with therapy and medication, as described above. The 26 ALJ found that the treatment Plaintiff received was conservative in nature, and her treatment 27 notes showed a trend in overall improvement in symptoms and functioning. The ALJ cited 1 only needed therapy sporadically. (AR 500). 2 The ALJ found that the psychological evaluation performed by Dr. Alfred Collins in April 3 2006 to be less persuasive. (AR 22-23). Dr. Collins assessed Plaintiff for possible ADHD and/or 4 autistic spectrum disorder and diagnosed her with both. (AR 590). Dr. Collins also assigned 5 Plaintiff with a global assessment functioning (GAF) score of 40. The ALJ found Dr. Collins’ 6 opinion to be less persuasive because it was performed about 10 years prior to the adjudicatory 7 period and his recommendations related to childhood functioning. (AR 23) 8 The ALJ also evaluated the opinion of Dr. Nick Garcia. (AR 23). Dr. Garcia evaluated 9 Plaintiff over a three-day period in March 2016 to determine whether she met the diagnostic 10 criteria for autism spectrum disorder. Dr. Garcia interviewed Plaintiff, reviewed her medical 11 records, and administered several psychometric tests. Dr. Garcia scored Plaintiff’s verbal 12 comprehension as 127, perceptual reasoning as 127, working memory as 111, processing speed at 13 89, and full-scale IQ of 119. (AR 274, 600). Dr. Garcia diagnosed plaintiff with autism spectrum 14 disorder, GAD, and Tourette disorder. Dr. Garcia also recommended that Plaintiff receive 15 educational accommodations, medication, therapy, and a social skills group. (AR 279, 605). The 16 ALJ found Dr. Garcia’s opinion to be somewhat persuasive because it was based on a thorough 17 evaluation and consistent with the record. However, the ALJ found that Dr. Garcia’s 18 recommendations were directed towards Plaintiff’s needs to complete college level coursework 19 and did not address her limitations related to performing unskilled work. 20 The ALJ also considered Dr. C. Donel Crow’s medical records, who treated Plaintiff from 21 September 2016 through November 2019 for gender dysphoria and tic disorder. (AR 23). Dr. 22 Crow found that Plaintiff’s sensorimotor integration issues affected her ability to handle physical 23 tasks that depend on eye-hand coordination tasks and skills. Dr. Crow also opined that Plaintiff’s 24 anxiety, mood, and autism spectrum disorder would make it difficult to function in the areas of 25 social interaction and adaptation. Dr. Crow ultimately opined that Plaintiff was not able to hold 26 gainful employment due to her emotional functioning. (AR 23 citing AR 379-80, AR 606-08, 27 660-664). 1 had not significantly impaired her ability to complete college courses for four years and she was 2 on track to graduate within the year. (AR 23). The ALJ also found that Plaintiff’s RFC 3 adequately accounted for her difficulties with social interaction and adaptation, and Dr. Crow’s 4 opinion did not persuasively establish greater limitations. (AR 23). 5 The ALJ further found that Dr. Crow’s opinion was not consistent or supported by his 6 treatment notes. The ALJ noted that Dr. Crow’s visit notes in December 2019, indicated that 7 Plaintiff had all A’s for the semester, was involved in a romantic relationship, experienced 8 significant improvement over the last three years, and needed therapy only sporadically. (AR 23; 9 see AR 500). The note also indicated Plaintiff’s tic disorder symptoms were addressed well with 10 medication. The ALJ found Dr. Crow’s opinion unpersuasive. 11 The ALJ reviewed a third-party function report completed by Christine Page, Plaintiff’s 12 mother. The ALJ noted that the report constituted a lay opinion and observation of Plaintiff’s 13 functions, which she found to be adequately addressed by her RFC. (AR 24). 14 The ALJ found the opinions of the state agency medical consultants to be persuasive since 15 they were supported by medical evidence. (AR 24). The ALJ found that the subsequent evidence 16 received after the state agency opinions was either duplicative or did not show a change that 17 warrants greater limitations. 18 At step five of the sequential analysis, the ALJ adopted the VE’s medical testimony which 19 averred that Plaintiff could work as a hospital cleaner, kitchen helper, or cleaner. (AR 25). 20 Following the five-step sequential analysis, the ALJ found that Plaintiff could find work that 21 exists in significant numbers and thus was not “disabled” within the meaning of the Social 22 Security regulations. 23 II. LEGAL STANDARD 24 A. The Disability Standard 25 Disability Insurance Benefits and Supplemental Security Income are available for every 26 eligible individual who is “disabled.” 42 U.S.C. §§ 402(d)(1)(B)(ii) and 1381(a). An individual 27 is “disabled” if unable to “engage in any substantial gainful activity by reason of any medically 1 determinable physical or mental impairment …”4 Bowen v. Yuckert, 482 U.S. 137, 140 (1987) 2 (quoting identically worded provisions of 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A)). To 3 achieve uniformity in the decision-making process, the Social Security regulations set out a five- 4 step sequential evaluation process to be used in determining if an individual is disabled. See 20 5 C.F.R. § 404.1520; Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1194 (9th Cir. 2004). 6 Specifically, the ALJ is required to determine: 7 (1) whether a claimant engaged in substantial gainful activity during the period of 8 alleged disability, (2) whether the claimant had medically determinable “severe” impairments, (3) whether these impairments meet or are medically equivalent to one 9 of the listed impairments set forth in 20 C.F.R. § 404, Subpart P, Appendix 1, (4) whether the claimant retained the RFC to perform past relevant work and (5) 10 whether the claimant had the ability to perform other jobs existing in significant numbers at the national and regional level. 11 12 Stout v. Comm’r. Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006). The burden of proof is 13 on a claimant at steps one through four. Ford v. Saul, 950 F.3d 1141, 1148 (9th Cir. 2020) (citing 14 Valentine v. Comm’r of Soc. Sec. Admin, 574 F.3d 685, 689 (9th Cir. 2009)). 15 Before making the step four determinations, the ALJ first must determine the claimant’s 16 RFC. 20 C.F.R. § 416.920(e). The RFC is the most a claimant can still do despite their 17 limitations and represents an assessment based on all relevant evidence. 20 C.F.R. §§ 18 404.1545(a)(1); 416.945(a)(1)). The RFC must consider all of the claimant’s impairments, 19 including those that are not severe. 20 C.F.R. §§ 416.920(e), 416.945(a)(2). E.g., Wells v. 20 Colvin, 727 F.3d 1061, 1065 (10th Cir. 2013) (“These regulations inform us, first, that in 21 assessing the claimant’s RFC, the ALJ must consider the combined effect of all of the claimant’s 22 medically determinable impairments, whether severe or not severe.”). The RFC is not a medical 23 opinion. 20 C.F.R. § 404.1527(d)(2). Rather, it is a legal decision that is expressly reserved to 24 the Commissioner. 20 C.F.R. § 404.1546(c); see Vertigan v. Halter, 260 F.3d 1044, 1049 (9th 25 Cir. 2001) (“[I]t is the responsibility of the ALJ, not the claimant’s physician, to determine 26 4 A “physical or mental impairment” is one resulting from anatomical, physiological, or 27 psychological abnormalities that are demonstrated by medically acceptable clinical and laboratory diagnostic techniques. 42 U.S.C. § 423(d)(3). 1 residual functional capacity.”). 2 At step five, the burden shifts to the Commissioner to prove that Plaintiff can perform 3 other work in the national economy given the claimant’s RFC, age, education, and work 4 experience. Garrison v. Colvin, 759 F.3d 995, 1011 (9th Cir. 2014). To do this, the ALJ can use 5 either the Medical-Vocational Guidelines or rely upon the testimony of a VE. Lounsburry v. 6 Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006); Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th 7 Cir. 2001). “Throughout the five-step evaluation, the ALJ ‘is responsible for determining 8 credibility, resolving conflicts in medical testimony and for resolving ambiguities.’” Ford, 950 9 F.3d at 1149 (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). 10 B. Standard of Review 11 Congress has provided that an individual may obtain judicial review of any final decision 12 of the Commissioner of Social Security regarding entitlement to benefits. 42 U.S.C. § 405(g). In 13 determining whether to reverse an ALJ’s decision, a court reviews only those issues raised by the 14 party challenging the decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). A 15 court may set aside the Commissioner’s denial of benefits when the ALJ’s findings are based on 16 legal error or are not supported by substantial evidence. Tackett v. Apfel, 180 F.3d 1094, 1097 17 (9th Cir. 1999). 18 “Substantial evidence is relevant evidence which, considering the record as a whole, a 19 reasonable person might accept as adequate to support a conclusion.” Thomas v. Barnhart, 278 20 F.3d 947, 954 (9th Cir. 2002) (quoting Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453, 21 1457 (9th Cir, 1995)). “[T]he threshold for such evidentiary sufficiency is not high.” Biestek v. 22 Berryhill, 139 S. Ct. 1148, 1154 (2019). Rather, “[s]ubstantial evidence means more than a 23 scintilla, but less than a preponderance; it is an extremely deferential standard.” Thomas v. 24 CalPortland Co., 993 F.3d 1204, 1208 (9th Cir. 2021) (internal quotations and citations omitted). 25 “[A] reviewing court must consider the entire record as a whole and may not affirm 26 simply by isolating a specific quantum of supporting evidence.” Hill v. Astrue, 698 F.3d 1153, 27 1159 (9th Cir. 2012) (internal quotations and citations omitted). “If the evidence ‘is susceptible 1 950 F.3d at 1154 (quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)). Even if the 2 ALJ has erred, the Court may not reverse the ALJ’s decision where the error is harmless. Stout, 3 454 F.3d at 1055-56. An error is harmless where it is “inconsequential to the [ALJ’s] ultimate 4 nondisability determinations.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) 5 (quotation and citation omitted). The burden of showing that an error is not harmless “normally 6 falls upon the party attacking the agency’s determination.” Shinseki v. Sanders, 556 U.S. 396, 7 409 (2009). 8 III. DISCUSSION 9 Plaintiff raises two claims of error in her appeal. First, she argues the ALJ erred in 10 discounting Plaintiff’s subjective complaints. Second, Plaintiff argues the ALJ erred in her RFC 11 assessment as she did not account for Plaintiff’s educational accommodations in the formulation 12 of the RFC. She claims that due to those errors, the ALJ’s finding of “not disabled’ is 13 unsupported by substantial evidence. 14 A. The ALJ Properly Addressed Plaintiff’s Subjective Complaints 15 “In evaluating the credibility of a claimant’s testimony regarding subjective pain, an ALJ 16 must engage in a two-step analysis.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) 17 (citation omitted). The ALJ must first determine whether the claimant has presented objective 18 medical evidence of an underlying impairment which could reasonably be expected to cause the 19 severity of the symptoms the claimant alleges. Id. The claimant does not need to show that her 20 impairment “could reasonably be expected to cause the severity of the symptom she has alleged; 21 she need only show that it could reasonably have caused some degree of the symptom.” Id. 22 (quotation and citation omitted). If the claimant meets this first step, and there is no evidence of 23 malingering, the ALJ can only reject the claimant’s testimony about the severity of the symptoms 24 if the ALJ gives “specific, clear and convincing reasons” for the rejection. Id. (quotation and 25 citation omitted). Accord Garrison, 759 F.3d at 1015 n.18 (“The government’s suggestion that 26 we should apply a lesser standard than “clear and convincing” lacks any support in precedent and 27 must be rejected.”). 1 “(1) ordinary techniques of credibility evaluation, such as the claimant’s reputation for lying, 2 prior inconsistent statements concerning the symptoms, and other testimony by the claimant that 3 appears less than candid; (2) unexplained or inadequately explained failure to seek treatment or to 4 follow a prescribed course of treatment; and (3) the claimant’s daily activities.” Smolen v. 5 Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). In evaluating the credibility of symptom testimony, 6 the ALJ must also consider the factors identified in Social Security Ruling (SSR) 16-3P.5 (Id. 7 citing Bunnell v. Sullivan, 947 F.2d 341, 346 (9th Cir. 1991)). Accord Bray v. Comm’r of Soc. 8 Sec. Admin., 554 F.3d 1219, 1226 (9th Cir. 2009). These factors include: 9 (1) Daily activities; (2) The location, duration, frequency, and intensity of pain or other symptoms; (3) Factors that precipitate and aggravate the 10 symptoms; (4) The type, dosage, effectiveness, and side effects of any medication an individual takes or has taken to alleviate pain or other 11 symptoms; (5) Treatment, other than medication, an individual receives or has received for relief of pain or other symptoms; (6) Any measures 12 other than treatment an individual uses or has used to relieve pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes 13 every hour, or sleeping on a board); and (7) Any other factors concerning an individual’s functional limitations and restrictions due to pain or other 14 symptoms. 15 SSR 16-3P at *7. See 20 C.F.R. § 404.1529(c)(3). If the ALJ’s finding is supported by 16 substantial evidence, the court may not engage in second-guessing. Tommasetti, 533 F.3d at 1039 17 (citations and internal quotation marks omitted). 18 The clear and convincing standard is “not an easy requirement to meet,” as it is “‘the most 19 demanding required in Social Security cases.’” Garrison, 759 F.3d at 1015 (quoting Moore v. 20 Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). “A finding that a claimant’s 21 testimony is not credible must be sufficiently specific to allow a reviewing court to conclude the 22 adjudicator rejected the claimant’s testimony on permissible grounds and did not arbitrarily 23 discredit a claimant’s testimony regarding pain.” Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th 24 Cir. 2015) (citation and internal quotation marks omitted). 25 “The fact that a claimant’s testimony is not fully corroborated by the objective medical 26 findings, in and of itself, is not a clear and convincing reason for rejecting it.” Vertigan v. Halter, 27 5 Smolen cites to SSR 88-13, which has since been superseded by SSR 16-3P (available at 2017 WL 5180304). See Amy E.S. v. Commissioner, 2022 WL 92939, at *9 n.4 (D. Or. Jan. 10, 1 260 F.3d 1044, 1049 (9th Cir. 2001). See 20 C.F.R. § 404.1529(c)(2) (“[W]e will not reject your 2 statements about the intensity and persistence of your pain or other symptoms or about the effect 3 your symptoms have on your ability solely because the objective medical evidence does not 4 substantiate your statements.”). Rather, where a claimant’s symptom testimony is not fully 5 substantiated by the objective medical record, the ALJ must provide additional reasons for 6 discounting the testimony. Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005). “The ALJ 7 must specify what testimony is not credible and identify the evidence that undermines the 8 claimant’s complaints – ‘[g]eneral findings are insufficient.’” Id. (quoting Reddick v. Chater, 157 9 F.3d 715, 722 (9th Cir. 1988)). 10 Plaintiff asserts that her GAD, ADHD, autism spectrum disorder, gender dysphoria, 11 bipolar disorder, Tourette’s syndrome, depression, and psychosis prevent her from working. (AR 12 20). The ALJ refuted this assertion based in part on the fact that Plaintiff has few problems with 13 her personal care, prepares simple meals, does housework, goes outside by herself, shops and 14 socializes with others. Id. The ALJ also found that Plaintiff can drive, handle a savings account, 15 and spends considerable time doing photography, music, videos, and creative editing. (Id. citing 16 AR 164-73; 183-93); see (AR 188). 17 During the hearing, Plaintiff testified she was currently attending college and received A’s 18 and B’s, having been enrolled continuously as a full-time student since Fall 2016. At the time of 19 the hearing, Plaintiff was on track to graduate the next semester. Id. The ALJ noted that Plaintiff 20 received special accommodations, such as handwriting alternatives, testing in a separate room, 21 and sitting towards the front of the classroom. 22 The ALJ’s acknowledged Plaintiff’s testimony that she has social deficiencies that make it 23 difficult for her to interact with others, such as, for instance, speaking appropriately and 24 interpreting others’ intentions. (AR 20). Plaintiff further testified that she suffers from anxiety 25 and difficulty with coordination, distraction, and concentration, that her anxiety is exacerbated by 26 her Tourette’s syndrome, and that she can drive for short periods. Id. 27 The ALJ ultimately found that the weight of the record does not support Plaintiff’s claims 1 had accommodations, she graduated from high school with a high GPA and was even placed in 2 mainstream classes. (Id. citing AR 204-216). The ALJ also relied on Plaintiff’s progress notes 3 from December 2016, which documents Plaintiff’s symptom improvement. Another note from 4 November 2019, showed that Plaintiff is happy, her anxiety is better, she is not sad, and she is in 5 a relationship. (AR 21 citing AR 552). Separately, the ALJ noted that Plaintiff suffers from side 6 effects from Abilify and she reports her mood and anxiety is better in February 2020. The ALJ 7 also cited a mental health examination that reported that Plaintiff was within normal limits. The 8 ALJ cited to an increase in Plaintiff’s symptoms after she had a family loss in March 2020 (AR 9 21 citing 565, 583), but by August 2020, she reported feeling better after restarting Abilify. She 10 reported less anxiety and depression, an overall improvement in energy, decreased scrying spells, 11 and decreased feelings of hopelessness. (AR 22, 586). 12 Plaintiff further argues that the ALJ erred by determining that her allegations were 13 inconsistent with her improvement in symptoms and functioning and that her treatment is 14 conservative in nature. (Doc. 21 p. 21). Plaintiff argues that the ALJ erred by picking out a few 15 isolated instances of improvement and treated them as a basis for her conclusion that she can 16 work. Id. (citing Garrison, 759 F.3d at 1017 and Holohan v. Massanari, 246 F.3d 1195, 1205 (9th 17 Cir. 2001) (finding that although a person may experience an improvement in her anxiety 18 symptoms, she may nevertheless be unable to function in a workplace)). 19 The ALJ supported her assessment of Plaintiff’s claims concerning the severity of her 20 symptoms with reference to progress notes from AMPS dated December 22, 2016, indicating that 21 her symptoms were improving, her tics were decreasing, and she was performing better 22 academically. (AR 21, 286). The progress notes also indicated that her symptoms were less 23 frequent and less intense. Id. The ALJ also pointed to May 16, 2017, progress notes from AMPS 24 which showed that Plaintiff’s Tourette’s symptoms improved and she no longer heard voices. 25 (AR 292). During a September 2017 visit, Plaintiff acknowledged that her symptoms were less 26 frequent and less intense. Plaintiff described no anxiety. (AR 296). Another note from February 27 8, 2018, reported that Plaintiff felt better and experienced an overall decrease in symptoms. (AR 1 Indeed, Plaintiff’s December 2019 therapy notes from Dr. Crow reported that she only 2 needed therapy sporadically after continuous improvements in her symptoms and functioning. 3 (AR 500). Although Plaintiff had an increase in symptoms after the loss of her father on March 4 12, 2020, she reported improvements in August 2020. See (AR 565, 583, 586). The Court finds 5 that the ALJ provided substantial evidence to support her conclusion that Plaintiff’s symptoms are 6 not as debilitating as claimed. Although there are instances where her symptoms have worsened, 7 such as when her father passed away, those symptoms appear to have improved significantly 8 overall and sometime after her following that event. More importantly, it is not the Court’s role to 9 second-guess the ALJ’s determination of Plaintiff’s credibility. Tommasetti, 533 F.3d at 1039. 10 Thus, since there is substantial evidence of improvement on the record, the ALJ provided clear 11 and convincing reasons to discredit Plaintiff’s symptom testimony. 12 In addition, Plaintiff argues that the ALJ erred by relying on her activities of daily living 13 as a basis to reject her testimony. (Doc. 21 p. 22-23). But in fact, the ALJ may consider the 14 claimant’s daily activities in making a credibility determination. Robles de Nunez v. 15 Commissioner of Social Security, No. 1:21-cv-00618-SAB, 2023 WL 2839741, at *18 (E.D. Cal. 16 Apr. 7, 2023); Diedrich v. Berryhill, 874 F.3d 634, 642-43 (9th Cir. 2007); Thomas v. Barnhart, 17 278 F.3d 947, 958 (9th Cir. 2002). “[M]any home activities are not easily transferable to what 18 may be the more grueling environment of the workplace[.]” Fair v. Bowen, 885 F.2d 597, 603 19 (9th Cir. 1989). An inconsistency exists between a claimant’s level of activities and her claimed 20 limitations if those activities have a bearing on the claimant’s credibility. Reddick, 157 F.3d at 21 722. 22 Thus, contrary to Plaintiff’s argument, an ALJ may use daily activities in rendering an 23 adverse credibility finding. See Orn v. Astrure, 495 F.3d 625, 639 (9th Cir. 2007). First, daily 24 activities can form the basis of an adverse credibility finding if the activity contradicts the 25 claimant’s testimony. Id. Second, “daily activities may be grounds for adverse credibility finding 26 ‘if a claimant is able to spend a substantial part of [her] day engaged in pursuits involving the 27 performance of physical functions that are transferrable to a work setting.’” Id. (quoting Fair, 885 1 transferability to conclude that the claimant’s daily activities warrant an adverse credibility 2 determination. Orn, 495 F.3d at 639. 3 The ALJ used Plaintiff’s activities of daily living to reach her adverse credibility finding 4 in two ways. First, the ALJ found that her daily activities were inconsistent with her alleged 5 degree of functional imitations. (AR 22). Plaintiff reported going to college, caring for her dogs, 6 doing housework, driving, shopping, doing photography, engaging in creative digital editing, and 7 spending time with friends, which is inconsistent with her alleged severity of disability. Id. 8 (citing AR 183-93). The ALJ found that Plaintiff’s range of activities were more consistent with 9 her RFC than an inability to do all types of work. 10 The ALJ also found that although Plaintiff stated that she has difficulty with her memory, 11 completing tasks, concentration, understanding and following instructions, she graduated high 12 school with a 4.3 GPA. Id. citing (AR 204-215). The ALJ found that Plaintiff maintained an 13 impressive GPA without more intensive special education services. She further found that 14 Plaintiff could work on less demanding unskilled work given her success with college level 15 courses (with accommodations). Id. (citing AR 183-93, 204-15 280-316, AR 39). 16 The ALJ adequately identified inconsistencies between Plaintiff’s allegations of anxiety, 17 issues with social interactions, coordination, distraction and concentration and her activities of 18 daily living. She properly pointed to Plaintiff’s spending time with friends, creative pursuits, high 19 academic achievement in both high school and college as evidence that her testimony was 20 inconsistent with a total inability to work. See Garibay v. Berryhill, 733 Fed. Appx. 908, 909 (9th 21 Cir. 2018) (“the ALJ did not err by citing Garibay’s ability to earn a college degree during his 22 period of alleged disability when evaluating his testimony. The ALJ acknowledged that Garibay 23 experienced difficulties completing this program; however, Garibay’s ability to earn his degree 24 despite these difficulties still serves as grounds for discounting his claims of totally debilitating 25 impairment.”) (quotations and citations omitted); Thomas v. Berryhill, 771 Fed. Appx. 750, 751 26 (9th Cir. 2019) (finding the ALJ properly concluded that disabling claims were inconsistent with 27 ability to obtain two-year community college degree). 1 supported by the record to reject Plaintiff’s symptom testimony. 2 B. The ALJ’s Assessment of RFC is Not Supported by Substantial Evidence 3 Plaintiff next asserts that the ALJ erred in assessing her RFC in two regards. First, she 4 argues that the ALJ improperly rejected her school records and educational accommodations, 5 which led the ALJ further to erroneously fail to include in her hypotheticals to the VE limitations 6 associated with those educational accommodations. (Doc. 21 pp. 24-25; Doc. 27 pp. 8-9). She 7 further argues that the ALJ failed to properly evaluate the treating evidence of record under 20 8 C.F.R § 404.1520c(c) as it pertains to Plaintiff’s special education records and the opinions of 9 Drs. Garcia and Collins. (Doc. 21 pp. 25-26; Doc. 27 pp. 9-11). 10 1. The ALJ Did Not Adequately Analyze Plaintiff’s Accommodations 11 Social Security Ruling (“SSR”) 11-2p, Titles II and XVI: Documenting and Evaluating 12 Disability in Young Adults instructs ALJs to consider evidence from nonmedical sources “who 13 know and have contact with the young adult [and] can help [the ALJ] evaluate the severity and 14 impact of a young adult’s impairment(s).” 2011 WL 4055665, at *5 (Sept. 12, 2011). SSR 11-2p 15 identifies four categories of evidence that an ALJ should consider in determining a young adult’s 16 functioning: (1) evidence concerning whether the young adult received special education and 17 related services; (2) evidence pertaining to any IEP formulated for the young adult, describing the 18 skills they needed to develop; (3) evidence pertaining to IEP transition goals, whether 19 transitioning to supervised and supported work and living settings, or independent ones; and (4) 20 considerations related to the fact that goals contained in an IEP may be set at an achievable level 21 to foster a sense of accomplishment, and “may be lower than what would be expected of a young 22 adult without impairments.” Id. at *10-13. Young adults are defined as “people between the ages 23 of 18 to approximately 25.” Id. at *2. Since Plaintiff was 22-years old at the time the 24 Commissioner determined her benefits, SSR 11-2p is applicable in this case. (AR 26). 25 SSR 11-2p is binding on ALJs. Heckler v. Edwards, 465 U.S. 870, 873 n.3 (1984); Bray 26 v. Comm’r Soc. Sec. Admin., 554 F.3d 1219, 1224 (9th Cir. 2009) (holding that Social Security 27 Rulings “do not carry the ‘force of law,’ but they are binding on ALJs nonetheless”). E.g., E.M. 1 proceedings where ALJ failed to discuss claimant’s special education records); Barrios v. Colvin, 2 No. CV 13-3319 AGR, 2016 WL 756457, at *7 (C.D. Cal. Feb. 24, 2016) (same). 3 Plaintiff argues “the hypotheticals presented to the Vocational Expert did not contain all 4 of Plaintiff’s functional limitations,” including specifically “the special accommodations that 5 Plaintiff received in her schooling.” (Doc. 27 p.8). Plaintiff points to accommodations she 6 received in secondary school through her Section 504 Plan, such as periodic checks for 7 understanding and additional time for testing. She further points to accommodations received in 8 college, including alternative testing locations, favorable seating location in classroom, and 9 receiving extra time for learning and for taking exams. Id. Plaintiff argues these 10 accommodations implicate work-related limitations the ALJ was required to include in hrt 11 hypotheticals to the VE. Id. at 9. 12 The ALJ acknowledged the specific accommodations Plaintiff received both in secondary 13 school and in college. (AR 20-21). In considering the paragraph B criteria associated with 14 Plaintiff’s ability to concentrate and maintain pace, the ALJ took into account that she “does 15 receive special accommodations in college classes.” (AR 18). Although the ALJ discounted the 16 significance of the accommodations because Plaintiff was “able to attend full time with only a 17 few withdrawals from classes and otherwise good grades,” she did rely on them in part to 18 conclude Plaintiff’s ability to concentrate and maintain pace was moderately impaired. (AR 18- 19 19). The ALJ further acknowledged the accommodations in considering Plaintiff’s ability to 20 adapt and manage herself. (AR 19). 21 The Court recognizes that the ALJ’s consideration of Plaintiff’s school accommodations 22 in connection with weighing the paragraph B criteria does not transfer to the ALJ’s assessment of 23 a claimant’s RFC. However, just as she did in connection with the paragraph B criteria, the ALJ 24 also acknowledged the accommodations in her assessment of RFC. She acknowledged Plaintiff’s 25 504 Plan and its accommodations of “preferred seating, comprehension checks, 1.5 time for tests, 26 reminders, a laptop, and copies of lecture notes.” (AR 21) (citing high school educational 27 records, AR 210-16). She also acknowledged the most recent accommodations Plaintiff received 1 seating toward the front of the classroom.” (AR 20). Without explanation, the ALJ assessed that 2 Plaintiff’s accommodations for college level courses “do not persuasively establish that she 3 would need the same accommodations for less demanding unskilled work.” (AR 22). Thus, it is 4 not the case as Plaintiff suggests that the ALJ ignored the accommodations – she merely came to 5 a different conclusion than Plaintiff as to the necessary applicability of those accommodations in 6 connection with her assessment of RFC. 7 In E.M. v. Kijakazi, the Court determined that the ALJ’s lack of treatment of the 8 claimant’s educational accommodation records constituted an “apparent rejection of this entire 9 category of evidence” in contravention of SSR 11-2p. 591 F. Supp.3d at 62. Cf. id. (“The Court 10 acknowledges that the ALJ was not required to discuss each opinion and/or finding in E.M.’s 11 special education records on an individualized statement-by-statement basis.”). Similarly, in 12 Ka’deef M. v. Commissioner of Soc. Sec., the Court characterized the ALJ’s treatment of the 13 plaintiff’s school records as a “cursory rejection” when he labelled them “as irrelevant.” No. 14 3:20-CV-787 (DJS), 2021 WL 295801, at *6 (N.D.N.Y. July 14, 2021). While these cases do 15 not stand for the proposition that an ALJ must in all cases present a VE with a claimant’s 16 educational accommodations and related limitations, they do stand for the proposition that an ALJ 17 must examine a plaintiff’s school accommodations in assessing the RFC. E.g., E.M., 591 F. 18 Supp.3d at 624 (“the ALJ was required by SSR 11-2p to discuss how E.M.’s participation in these 19 programs – which constituted highly structured or supportive settings – impacted the ALJ’s 20 determination regarding his RFC.”). Cf. id. at 635 (court remanded but “decline[d] to direct the 21 ALJ as to the specific limitations that must be included in the VE’s reworked hypothetical on 22 remand. The appropriate limitations will depend on the outcome of the remanded proceedings.”). 23 In reviewing Plaintiff’s specific accommodations here, it appears the ALJ concluded that 24 they were not of the type that would impact work capability such that a VE would need to 25 consider them in connection with her assessment of RFC. However, this Court is unable to 26 conclude that the ALJ’s determination in this regard is supported by substantial evidence because 27 the ALJ only acknowledged the accommodations and, without analysis or explanation, summarily 1 for less demanding unskilled work.” (AR 22). See, e.g., Francisco J.M.M. v. Kijakazi, No. CV 2 20-0137 AGR, 2022 WL 22234647, at *4-5 (C.D. Cal. Sept. 29, 2022) (“Although the ALJ 3 mentioned these accommodations, the ALJ’s decision did not assess this evidence in terms of 4 Plaintiff's ability or inability to perform sustained work eight hours per day, five days per 5 week.”). Thus, while an ALJ in a particular case might reasonably conclude that particular 6 educational accommodations such as preferred seating and copies of lecture notes do not 7 reasonably correlate to necessary workplace accommodations, such a conclusion would require 8 the ALJ to document her analysis. See id.; Coppola v. Berryhill, No. 18 Civ. 599 (HBP), 2019 9 WL 1292848, at *21-22 (S.D.N.Y. Mar. 21, 2019) (“Even in a low stress job with only simple, 10 routine tasks and few workplace changes, without the supports provided by his school 11 environment plaintiff’s limitations with respect to punctuality and persistence would likely be 12 more pronounced. Thus, the ALJ’s failure to analyze this evidence compromised his RFC 13 determination.”) (emphasis added). 14 Particularly given that a binding ruling – SSR 11-2p – provides that a claimant’s receipt of 15 “accommodations as part of his or her IEP or Section 504 plan[] may be an indication that he or 16 she has a work-related limitation” (SSR 11-2p, 2011 WL 4055665, at *8), it was incumbent on 17 the ALJ here to explain her rationale for concluding otherwise. 18 2. The ALJ Erroneously Discounted Medical Records 19 Plaintiff relatedly argues that the ALJ’s RFC is not sufficiently supported because she 20 failed to properly evaluate the treating evidence of record under 20 C.F.R § 404.1520c(c) as it 21 pertains to the opinions of Drs. Garcia and Collins. (Doc. 21 pp. 25-26; Doc. 27 pp. 9-11). 22 For claims filed on or after March 27, 2017, new regulations apply that change the 23 framework for how an ALJ must evaluate medical opinion evidence. Revisions to Rules 24 Regarding the Evaluation of Medical Evidence, 2017 WL 168819, 82 Fed. Reg. 5844-01 (Jan. 18, 25 2017); 20 C.F.R. § 404.1520c. Under these regulations, the ALJ must consider and evaluate the 26 persuasiveness of all medical opinions or prior administrative medical findings from medical 27 sources. 20 C.F.R. § 404.1520(a) and (b). The factors for evaluating the persuasiveness of 1 relationship with the claimant (including length of the treatment, frequency of examinations, 2 purpose of the treatment, extent of the treatment, and the existence of an examination), 3 specialization and “other factors that tend to support or contradict a medical opinion or prior 4 administrative medical finding” (including, but not limited to, “evidence showing a medical 5 source has familiarity with the other evidence in the claim or an understanding of our disability 6 program’s policies and evidentiary requirements”). 20 C.F.R. § 404.0520c(c)(1)-(5). 7 Supportability and consistency are the most important factors, and the ALJ is required to 8 explain how both factors were considered. 20 C.F.R. § 404.1520c(b)(2). Supportability and 9 consistency are defined as: 10 Supportability. The more relevant the objective medical evidence and supporting explanations presented by a medical source are to 11 support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive medical opinions or prior 12 administrative medical finding(s) will be. 13 Consistency. The more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other 14 medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or other prior administrative 15 medical filing(s) will be. 16 20 C.F.R. § 404.1520c(c)(1)-(2). 17 This regulatory framework has displaced the longstanding case law requiring an ALJ to 18 provide “specific and legitimate” or “clear and convincing” reasons for rejecting a treating or 19 examining doctor’s opinion. Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022). However, 20 under the new regulations, an ALJ cannot reject an examining or treating doctor’s opinion as 21 unsupported or inconsistent without providing an explanation supported by substantial evidence. 22 The ALJ’s explanation must explain how he or she considered the supportability and consistency 23 factors. Id. at 793. 24 Here, the ALJ assessed Dr. Garcia’s opinion as follows: 25 Nick Garcia, PhD evaluated the claimant over a three-day period in March 2016 to determine if the claimant meets the 26 diagnostic criteria for [a]utism [s]pectrum [d]isorder. Dr. Garcia interviewed and examined the claimant, reviewed medical records, 27 and administered a battery of psychometric tests that resulted in the following scores: Verbal Comprehension 127, Perceptual Reasoning 1 119. Dr. Garcia diagnosed the claimant with autism spectrum disorder, generalized anxiety disorder, and Tourette disorder per 2 history. Dr. Garcia recommended educational accommodations, medication, therapy, and a social skills group. [AR 268-79, 594- 3 605]. Dr. Garcia’s opinion is somewhat persuasive because it is based on a thorough evaluation and consistent with the record as a 4 whole. However, the recommendations were directed towards the claimant’s needs with regard to completing college level coursework 5 and do not address, or persuasively correlate with, limitations related to performing unskilled work. 6 7 (AR 23). As it pertains to Dr. Garcia’s opinion, the ALJ adequately addressed the supportability 8 and consistency factors set forth in 20 C.F.R. § 404.1520c(c)(1)-(2). The ALJ found that Dr. 9 Garcia’s opinion is based on a thorough evaluation, which addresses the supportability prong and 10 that it was consistent with the record. (AR 23). 11 However, as it pertains to the requirements set forth by SSR 11-2p (supra), the ALJ found 12 that “[a]lthough [claimant] has accommodations, accommodations for college level courses do 13 not persuasively establish that she would need the same accommodations for less demanding 14 unskilled work.” (AR 23). Although the ALJ found that Dr. Garcia’s assessment did not 15 “persuasively correlate with” limitations related to performing unskilled work, it is unclear 16 whether she reached that determination by analyzing SSR 11-2p, or by improperly dismissing Dr. 17 Garcia’s opinion because it addressed Plaintiff’s college accommodations instead of work-related 18 impairments. In short, the ALJ’s conclusion might be supported by substantial evidence – but the 19 Court is unable to so deduce because the ALJ’s conclusion is not explained and her analysis is not 20 articulated. 21 Turning to Dr. Collins’ opinion, the ALJ found it less persuasive “because it was 22 performed about 10 years prior to the adjudicatory period and the recommendations relate to 23 childhood functioning.” (AR 23). The ALJ erred by not articulating the supportability and 24 consistency factors as required by the regulations. In addition, the regulations define “special 25 education” as “instructional services provided to students through age 21 in primary and 26 secondary education under the Individuals with Disabilities Educational Improvement Act of 27 2004 . . .” SSR 11-2p, 2011 WL 4055665, at *5 n.19. Thus, Dr. Collins’ medical evaluation, which Dr. Garcia incorporated in his favorable assessment of Plaintiff’s college accommodations, 1 retained some relevant value despite being performed well before the adjudicatory period. 2 Accordingly, the ALJ erred by discounting Dr. Collins’ evaluation as too remote. Julian E.F. v. 3 Commissioner of Social Security, No. 22-5980 SKV, 2023 WL 8110600, at *4 (W.D. Wash. Nov. 4 21, 2023) (finding harmful error where ALJ declined to consider a medical opinion as “too 5 remote” in time and failed to discuss Plaintiff’s limitations related to his ability to work). To the 6 contrary, evidence of a young adult’s functioning from school programs may “indicate how well a 7 young adult can use his or her mental abilities to perform work activities.” SSR 11-2p, 2011 WL 8 4055665, at *7; Francisco J.M.M., 2022 WL 22234647, at *5 (finding ALJ erred by not assessing 9 accommodation requiring a reduced courseload in terms of how it would affect Plaintiff’s ability 10 to perform sustained work). 11 The Court acknowledges that the ALJ was not required to discuss each opinion and/or 12 finding in Plaintiff’s special education records on an individualized statement-by-statement basis. 13 E.M., 591 F. Supp.3d at 622. Nor was the ALJ required to accept Drs. Garcia or Collins’ medical 14 opinions to be persuasive. Nor, for that matter, was the ALJ necessarily required to incorporate in 15 her hypotheticals to the ALJ each and every educational accommodation Plaintiff received. 16 However, given the ALJ’s failure to acknowledge SSR 11-2p, her conclusion without analysis or 17 comment that Plaintiff’s college accommodations do not reasonably correlate to workplace 18 limitations, and her discounting of Drs. Garcia and Collins, it appears to the Court that the ALJ 19 errored by categorically rejecting Plaintiff’s educational records and medical opinions based in 20 part on educational accommodations without examining the factors outlined in SSR 11-2p. 21 Such error was harmful because it is not inconsequential to the ALJ’s ultimate 22 nondisability determinations. See Tommasetti, 533 F.3d at 1038. Having reviewed the entire 23 record, the Court finds that the ALJ’s rejection of Plaintiff’s special education records and 24 medical opinions based in part on her educational accommodations materially impacted the ALJ’s 25 decision. 26 The Court has considered the “credit-as-true” rule, which is applicable where (1) the 27 record has been fully developed and further administrative proceedings are not useful; (2) the 1 | testimony or medical opinion; and (3) if the improperly discredited evidence were credited as 2 | true, the ALJ would be required to find the claimant disabled on remand. Garrison, 759 F.3d at 3 1020. Here, as set forth above, the Court concludes the ALJ failed to sufficiently examine and 4 | analyze school records and medical opinions, and, thus, credit-as-true is inappropriate given the 5 | need for the ALJ to further develop the record and/or provide legally sufficient reasons for 6 | rejecting evidence. Accordingly, the undersigned will recommend that this action be remanded 7 | for further proceedings. 8 IV. FINDINGS AND RECOMMENDATION 9 Based on the foregoing, the Court finds that the ALJ’s decision 1s not supported by 10 || substantial evidence. Accordingly, IT IS HEREBY RECOMMENDED: 11 1. Plaintiff's motion for summary judgment (Doc. 21) be GRANTED; 12 2. The ALJ’s decision be VACATED, and this matter be REMANDED for further 13 proceedings consistent with this order; and 14 3. The Clerk of Court be DIRECTED to enter judgment in favor of Plaintiff 15 Alexandra Madelyn Page and against Defendant Kilolo Kijakazi, Acting 16 Commissioner of Social Security. 17 These Findings and Recommendations will be submitted to the United States District 18 | Judge assigned to this case pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen 19 | (14) days from the date of service of these Findings and Recommendations, any party may file 20 || written objections with the Court. The document should be captioned, “Objections to Magistrate 21 | Judge’s Findings and Recommendations.” A failure to file objections within the specified time 22 | may result in waiver of that party’s rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 23 | (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 24 | IT IS SOORDERED. | Dated: _ January 30, 2024 | Wr bo 26 UNITED STATES MAGISTRATE JUDGE 27 28 IA