Kutschera v. Kijakazi

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JACQUELINE K., Case No.: 3:21-cv-00405-AHG 12 Plaintiff, ORDER RESOLVING JOINT MOTION FOR JUDICIAL REVIEW 13 v. 14 KILOLO KIJAKAZI, Acting [ECF No. 16] Commissioner of Social Security, 15 Defendant. 16 17 18 Plaintiff Jacqueline K. (“Plaintiff”) filed this action on March 8, 2021, seeking 19 review of the Commissioner of Social Security’s (“Commissioner”) denial of her 20 application for Supplemental Social Security Income. ECF No. 1. The parties consented to 21 proceed before a Magistrate Judge on March 12, 2021. ECF No. 7; General Order 707 (S.D. 22 Cal. Apr. 12, 2019). Pursuant to the Court’s Order, the parties filed a Joint Motion for 23 Judicial Review on March 10, 2022, stating their positions on the disputed issue in the case. 24 ECF No. 16. The Court has taken the Joint Motion under submission without oral 25 argument. 26 For the reasons set forth below, the Court GRANTS the Joint Motion, REVERSES 27 the Commissioner’s denial of benefits to Plaintiff, and REMANDS for further 28 proceedings. 1 I. PROCEDURAL BACKGROUND 2 On June 23, 2016, Plaintiff1 filed an application for Supplemental Security Income, 3 alleging a disability onset date of January 1, 2000. AR 220. On March 28, 2019, following 4 a hearing, an administrative law judge (“ALJ”) issued a Decision denying Plaintiff’s 5 application. AR 80. Plaintiff appealed, and on April 9, 2020, the Appeals Council 6 remanded the claim back to the same ALJ to address Plaintiff’s abilities “to perform mental 7 work activities in a work setting.” AR 98. On November 3, 2020, following a hearing, the 8 ALJ issued a second decision denying Plaintiff’s application. AR 10. The Appeals Council 9 denied Plaintiff’s request for review on January 13, 2021. AR 1. When the Appeals 10 Council denied Plaintiff’s request for review, the ALJ’s second decision became the final 11 decision of the Commissioner. See Sam v. Astrue, 550 F.3d 808, 810 (9th Cir. 2008). 12 II. STANDARD OF REVIEW 13 Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the 14 Commissioner’s decision to deny benefits. The Commissioner’s decision will be disturbed 15 only if it is not supported by substantial evidence or if it is based upon the application of 16 improper legal standards. Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010). 17 Substantial evidence means “‘such relevant evidence as a reasonable mind might 18 accept as adequate to support a conclusion.’” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 19 (2019) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). “‘Where 20 evidence is susceptible to more than one rational interpretation,’ the ALJ’s decision should 21 be upheld.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (quoting Burch v. Barnhart, 22 400 F.3d 676. 679 (9th Cir. 2005)). However, the Court “must consider the entire record 23 as a whole, weighing both the evidence that supports and the evidence that detracts from 24 the Commissioner’s conclusion, and may not affirm simply by isolating a specific quantum 25 of supporting evidence.” Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) (internal 26 27 1 Plaintiff was born in 1968. ECF No. 9, Certified Administrative Record (“AR”) 220. She 28 1 quotation marks omitted)). The Court will “review only the reasons provided by the ALJ 2 in the disability determination and may not affirm the ALJ on a ground upon which he did 3 not rely.” Id.; see also SEC v. Chenery Corp., 318 U.S. 80, 87 (1943) (“The grounds upon 4 which an administrative order must be judged are those upon which the record discloses 5 that its action was based.”). 6 III. SUMMARY OF ALJ’S FINDINGS 7 An ALJ follows a five-step sequential evaluation process in assessing whether a 8 claimant is disabled. 20 C.F.R. § 416.920; Tackett v. Apfel, 180 F.3d 1094, 1098–99 (9th 9 Cir. 1999). In the first step, an ALJ must determine whether the claimant is currently 10 engaged in substantial gainful activity; if so, the claimant is not disabled and the claim is 11 denied. Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). Here, at step one, 12 the ALJ determined that Plaintiff has not engaged in substantial gainful activity since the 13 application date of June 9, 2016. AR 15. 14 At step two, an ALJ must determine whether the claimant has a “severe” impairment 15 or combination of impairments significantly limiting her ability to do basic work activities; 16 if not, a finding of nondisability is made and the claim is denied. Id. Here, at step two, the 17 ALJ determined that Plaintiff has two severe impairments: depression and anxiety. AR 16. 18 At step three, an ALJ must determine whether the impairment or combination of 19 impairments meets or equals an impairment in the Listing of Impairments (“Listings”) set 20 forth at 20 C.F.R. § 404, subpart P, appendix 1; if so, disability is conclusively presumed 21 and benefits are awarded. Lounsberry, 468 F.3d at 1114. Here, the ALJ determined that 22 Plaintiff’s severe impairments, separately or in combination, do not meet or medically 23 equal an impairment in the Listings. AR 16. 24 Between step three and step four, an ALJ must determine the claimant’s residual 25 functional capacity (“RFC”). Id. An RFC is “an assessment of an individual’s ability to do 26 sustained work-related physical and mental activities in a work setting on a regular and 27 28 1 continuing basis.” Soc. Sec. Ruling (“SSR”) 96-9p, 1996 WL 374184, at *1 (S.S.A. July 2 2, 1996). It reflects the most a claimant can do despite her limitations. See Smolen v. 3 Chater, 80 F.3d 1273, 1291 (9th Cir. 1996). An RFC assessment must include an 4 individual’s functional limitations or restrictions as a result of all of her impairments – even 5 those that are not severe (see 20 C.F.R. § 416.945(a)(1)–(2), (e)) – and must assess her 6 “work-related abilities on a function-by-function basis.” SSR 96-9p, 1996 WL 374184, at 7 *1; see also Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009) 8 (“an RFC that fails to take into account a claimant’s limitations is defective”). The RFC 9 assessment is an administrative finding reserved to the ALJ. 20 C.F.R. § 416.927(d)(2). It 10 must be based on all of the relevant evidence, including the diagnoses, treatment, 11 observations, and opinions of medical sources, such as treating and examining physicians. 12 20 C.F.R. § 416.945. 13 Here, the ALJ assessed that Plaintiff’s RFC allows her “to perform a full range of 14 work at all exertional levels but with the following nonexertional limitations: the claimant 15 can understand, remember, and carry out unskilled job instructions and jobs [sic] duties on 16 a sustained basis; can interact appropriately with coworkers and supervisors in a non- 17 collaborative and non-team work setting; limited public contact that is brief and occasional; 18 can appropriately respond to work routines and changes at the workplace; appropriately 19 use judgements and make work related decisions; respond appropriately to supervision, 20 coworkers, and usual work situations; and appropriately respond to changes in a routine 21 work setting.” AR 17. 22 At step four of the disability analysis, if an ALJ determines a claimant has sufficient 23 RFC to perform past relevant work, the claimant is not disabled and the claim is denied. 24 25 26 2 “SSRs do not have the force of law. However, because they represent the Commissioner’s 27 interpretation of the agency’s regulations, we give them some deference. We will not defer to SSRs if they are inconsistent with the statute or regulations.” Holohan v. Massanari, 246 28 1 Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). The claimant has the burden of 2 proving that she is unable to perform past relevant work at step four. Id. If the claimant 3 meets this burden, a prima facie case of disability is established. Id. Here, at step four, 4 Plaintiff had no past relevant work, so the ALJ moved to step five. 5 At step five, the burden shifts to the ALJ to establish that the claimant is not disabled 6 because there is other work existing in “significant numbers” in the national or regional 7 economy the claimant can do, taking into account the claimant’s RFC, age, education, and 8 work experience. 20 C.F.R. § 416.960(c)(1), (c)(2); see also 20 C.F.R. § 416.920(g)(1). 9 An ALJ usually meets this burden either (1) by the testimony of a vocational expert who 10 assesses the employment potential of a hypothetical individual with all of the claimant’s 11 physical and mental limitations that are supported by the record, or (2) by reference to the 12 Medical-Vocational Guidelines at 20 C.F.R. part 404, subpart P, appendix 2. Lounsburry, 13 468 F.3d at 1114–15; Hill, 698 F.3d at 1162. Here, at step five, the ALJ found that Plaintiff 14 could perform the occupations of cleaner, housekeeper, and laundry worker, so the ALJ 15 determined that Plaintiff was not disabled. 16 IV. THE ALJ ERRED IN DISCREDITING PLAINTIFF’S TESTIMONY 17 Plaintiff contends that the ALJ erred when he rejected Plaintiff’s testimony 18 regarding the severity and extent of her symptoms without stating specific, clear and 19 convincing reasons for doing so. ECF No. 16 at 10. Plaintiff argues that this was harmful 20 error, and the Court should remand for an award of benefits to Plaintiff under the “credit 21 as true” rule. Id. at 15, 20–21. 22 Defendant denies that the ALJ erred in discrediting Plaintiff’s testimony and argues 23 that the medical evidence contradicts Plaintiff’s claimed symptoms and limitations. Id. at 24 17. Alternatively, if the Court finds error, Defendant contends that it would be improper to 25 remand for an award of benefits because the record does not show clearly that Plaintiff is 26 disabled. Id. at 21–23. 27 For the reasons set forth below, the Court finds that the ALJ committed reversible 28 error in evaluating Plaintiff’s testimony. 1 A. Legal Standard 2 An ALJ evaluating a claimant’s subjective complaints of pain must follow a two- 3 step inquiry. Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014). First, an ALJ must 4 assess whether there is objective medical evidence to support the complaints. Id. If that is 5 the case, and there is no evidence of malingering, “the ALJ can only reject the claimant’s 6 testimony about the severity of the symptoms if she gives ‘specific, clear and convincing 7 reasons’ for the rejection.” Id. (quoting Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 8 2009)). An ALJ must “specifically identify the testimony she or he finds not to be credible 9 ... and explain what evidence undermines that testimony.” Lambert v. Saul, 980 F.3d 1266, 10 1277 (9th Cir. 2020) (quoting Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 11 1102 (9th Cir. 2014)). An ALJ’s decision must be “sufficiently specific to allow a 12 reviewing court to conclude the adjudicator rejected the claimant’s testimony on 13 permissible grounds and did not ‘arbitrarily discredit a claimant’s testimony regarding 14 pain.’” Bunnell v. Sullivan, 947 F.2d 341, 345–46 (9th Cir. 1991).3 “[A]n ALJ may not 15 reject a claimant’s subjective complaints based solely on a lack of medical evidence to 16 fully corroborate the alleged severity of pain.” Burch v. Barnhart, 400 F.3d 676, 680 17 (9th Cir. 2005). 18 19 3 On March 28, 2016, the Social Security Administration issued new guidance regarding 20 how to evaluate a claimant’s subjective symptom testimony. See SSR 16-3p, 2016 WL 21 1119029 (Mar. 16, 2016); 2017 WL 5180304 (Oct. 25, 2017) (clarifying SSR 16-3p). Additionally, effective March 27, 2017, the Social Security Administration updated the 22 relevant agency regulations regarding how a claimant’s symptoms are evaluated. See 20 23 C.F.R. § 416.929. Although the ALJ’s opinion was issued after these changes, the jurisprudence governing the applicable two-step inquiry remains good law. See, e.g., 24 Campbell v. Saul, 848 F. App’x 718, 721 (9th Cir. 2021) (applying the two-step inquiry in 25 a recent case appealing an ALJ’s decision from 2018, in which the newer regulations were applied); Vooge v. Saul, 840 F. App’x 253, 254 (9th Cir. 2021) (same, in case involving an 26 ALJ’s opinion issued in January 2019). See also Trevizo v. Berryhill, 871 F.3d 664, 678 27 n.5 (9th Cir. 2017) (noting SSR 16-3p is consistent with existing Ninth Circuit precedent regarding the ALJ’s assessments of an individual’s testimony). 28 1 If the ALJ fails to meet these requirements for specificity, the Court is not free to fill 2 in the gaps. Lambert, 980 F.3d at 1278. It is solely within the ALJ’s province to assess the 3 credibility of the claimant’s testimony. Id. A court is therefore “constrained to review the 4 reasons the ALJ asserts.” Id. (quoting Brown-Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 5 2015)); Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014). 6 B. Plaintiff’s Testimony 7 At the hearing on October 28, 2020, Plaintiff testified that she cannot work because 8 of depression and anxiety. AR 33. She stated that she is “highly anxious,” does not “handle 9 stress well at all,” and finds that deadlines are “very stressful” and make her “shut down.” 10 AR 33. She testified that she has anxiety “just from being around people,” that she thinks 11 people look at her in a weird way, and that she does not “do well in social situations at all.” 12 AR 34. 13 Plaintiff stated that she has difficulty with focus, concentration, and paying attention. 14 AR 34. She cannot multi-task at all. AR 37. She has to “fix on one thing” and when she 15 loses focus, it takes her “20 minutes or so to get back on track to whatever it was.” AR 37. 16 With respect to her daily activities, Plaintiff testified that does not do “a whole lot” 17 during the day. AR 36. She looks at the computer and gets some housework done. AR 36. 18 She generally has no interest in doing things, no real commitments, and not much of a 19 social life. AR 36. She cooks, cleans, does laundry, and shops “in moderation.” AR 36. 20 Although she stated that medication makes her symptoms better, she also stated that she 21 still goes “through cycles” with her depression. AR 35. 22 C. The ALJ’s Reasons for Rejecting Plaintiff’s Testimony 23 The ALJ found that Plaintiff’s medically determinable impairments could 24 reasonably be expected to cause some of her symptoms, satisfying the first step of the 25 inquiry. AR 18. The ALJ found no evidence of malingering. The ALJ was therefore 26 required to state “specific, clear and convincing reasons, supported by substantial evidence 27 from the administrative record” for rejecting Plaintiff’s testimony concerning the intensity, 28 persistence, and limiting effects of her symptoms. Austin v. Saul, 840 F. App’x 899, 901 1 (9th Cir. 2020) (quoting Marsh v. Colvin, 792 F.3d 1170, 1173 n.2 (9th Cir. 2015) 2 (punctuation omitted)). The Court finds that the ALJ erred in rejecting Plaintiff’s testimony 3 because the reasons given by the ALJ for doing so did not identify specific testimony that 4 was contradicted, and the reasons were not clear and convincing. See Trevizo, 871 F.3d at 5 679. 6 1. Failure to Identify Inconsistent Testimony 7 An ALJ is required to “specifically identify the testimony ... he finds not to be 8 credible and ... explain what evidence undermines the testimony.” Holohan, 246 F.3d at 9 1208. Here, the ALJ made a boilerplate statement regarding Plaintiff’s testimony that is 10 commonly found in ALJ decisions: 11 After careful consideration of the evidence, the undersigned finds that the claimant’s medically determinable impairments could reasonably be expected 12 to cause the alleged symptoms; however, the claimant’s statements 13 concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the 14 record for the reasons explained in this decision. 15 AR 18. Courts have found this same language to be too general and boilerplate to satisfy 16 the requirement that an ALJ identify the testimony of the claimant that should be 17 discredited. In Lambert, for example, the Ninth Circuit found that identical boilerplate 18 language was insufficient to meet the ALJ’s burden: 19 The ALJ’s decision does not meet the requirements set forth in our cases and 20 does not permit meaningful review. The ALJ noted generically that “the 21 claimant’s statements concerning the intensity, persistence and limiting effects of [her] symptoms are not entirely consistent with the objective 22 medical and other evidence in the record for the reasons explained in the 23 decision.” But this “boilerplate statement” by way of “introductory remark,” which is “routinely include[d]” in ALJ decisions denying benefits, did not 24 “identify what parts of the claimant’s testimony were not credible and why.” 25 Lambert, 980 F.3d at 1277; Burrell, 775 F.3d at 1138 (general statement that testimony is 26 “inconsistent in some unspecified way” is insufficient); Treichler, 775 F.3d at 1103 (noting 27 28 1 that identical boilerplate statement was insufficient because the “ALJ must identify the 2 testimony that was not credible”). 3 The problem with this language is that “statements concerning the intensity, 4 persistence and limiting effects” is too general a description for the Court to understand 5 precisely what portions of Plaintiff’s testimony are claimed to be inconsistent with other 6 evidence in the record. Isis A. v. Saul, No. 18cv01728-W-MSB, 2019 WL 3554969, at *4 7 (S.D. Cal. Aug. 5, 2019) (“When an ALJ fails to specify the rejected testimony and how 8 the evidence provides clear and convincing reasons to reject it, the reviewing court cannot 9 proceed without ‘substitut[ing its own] conclusions for the ALJs, or speculat[ing] as to the 10 grounds for the ALJ’s decision.”) (quoting Treichler, 775 F.3d at 1103). Plaintiff’s 11 testimony is that she is highly anxious around people, gets very stressed about deadlines, 12 cannot multi-task, loses focus and cannot get back on track without difficulty, and lacks 13 interest in the daily activities of life because of her depression. These symptoms and effects 14 of her depression and anxiety disorder are different and cannot be treated as a unitary 15 complaint. This leaves the Court to attempt to ascertain whether the evidence relied on by 16 the ALJ is inconsistent with any, or all, of these symptoms and effects. That alone is 17 reversible error. Lambert, 980 F.3d at 1278. Nonetheless, the Court will address the reasons 18 provided by the ALJ to discredit Plaintiff’s testimony. 19 2. Consultative Psychiatric Evaluation by Dr. Halley 20 First, the ALJ considered the consultative psychiatric evaluation conducted by 21 Jennifer Halley, D.O. AR 18. The ALJ pointed out that Plaintiff drove herself to the 22 evaluation; had euthymic mood and bright affect; reported to Dr. Halley that taking Celexa 23 had helped her moods and stress level; and described activities of daily living including 24 housekeeping, preparing meals, personal hygiene, and managing her finances. AR 18. 25 Plaintiff also performed well on cognitive tests. AR 19. 26 Although the ALJ accurately summarized Dr. Halley’s evaluation, he failed to 27 explain why Dr. Halley’s evaluation provides a clear and convincing reason for rejecting 28 Plaintiff’s testimony. For example, Plaintiff’s abilities to drive herself to the appointment 1 and perform basic activities of daily living are not inconsistent with her testimony that she 2 has difficulties with focus, concentration, or interacting with people. See Burrell, 775 F.3d 3 at 1128 (ALJ’s reasoning was insufficient because he failed to explain why claimant’s daily 4 activities were inconsistent with being depressed and unable to be around other people). 5 Similarly, Plaintiff’s adequate performance on cognitive tests is not inconsistent with her 6 testimony. Ghanim, 763 F.3d at 1164 (“[O]bservations of cognitive functioning during 7 therapy sessions do not contradict [claimant’s] reported symptoms of depression and social 8 anxiety.”). Dr. Halley’s evaluation does not provide clear and convincing reasons to reject 9 Plaintiff’s testimony. 10 3. Treatment Notes 11 Next, the ALJ stated that the treatment notes in Plaintiff’s medical records 12 “documented no significant objective findings.” AR 19. The Court has reviewed the 13 evidence cited by the ALJ to support this reasoning and finds it plainly deficient. Even if 14 the evidence supported the ALJ’s position, he fails to explain how the lack of objective 15 findings is inconsistent with Plaintiff’s testimony, particularly given that the ALJ already 16 found that Plaintiff’s “medically determinable impairments could reasonably be expected 17 to cause the alleged symptoms” at the outset of his analysis of her testimony. AR 18. “The 18 distinction between medical evidence failing to support a plaintiff’s testimony rather than 19 being inconsistent is critical because the latter may qualify as a specific, clear and 20 convincing reason to reject a plaintiff’s testimony, while the former does not.” Isis A., 2019 21 WL 3554969, at *7. 22 With respect to the evidence, the ALJ referred to a letter dated May 24, 2018, from 23 Plaintiff’s treating psychologist that indicated Plaintiff was first seen at the Family 24 Wellness Center for psychiatric assessment in May 2018 and that she was “in the process 25 of stabilizing on medications.” AR 19. This letter, however, does not in any way suggest 26 that Plaintiff’s issues are insignificant or near resolution. Instead, it states that Plaintiff is 27 “still experiencing debilitating symptoms related to her diagnosis of Unspecified Mood 28 1 Disorder,” and that she will “need frequent follow up visits until stabilization can occur.” 2 AR 429. 3 Although the ALJ acknowledged that a subsequent letter from Plaintiff’s treating 4 psychologist dated September 25, 2018, confirms Plaintiff’s diagnosis of major depressive 5 disorder and moderate, recurrent, and anxiety disorder with chronic symptoms, AR 460, 6 he claimed that later treatment notes showed that Plaintiff denied symptoms of depression. 7 This is simply cherry-picking the record, because most of the records the ALJ relies on are 8 from Plaintiff’s gynecological appointments – not from providers who were treating her 9 for depression. E.g., AR 466, 474, 488, 490, 493, 499, 503, 555 (all references to 10 depression screenings at gynecological appointments). One of the treatment notes the ALJ 11 cited from Plaintiff’s gynecologist appointments in fact states that Plaintiff advised she did 12 feel “down – depressed – or hopeless,” and she “felt little interest or pleasure in doing 13 things.” AR 495. Another treatment note cited by the ALJ as evidence that Plaintiff denied 14 symptoms of depression is from an appointment where Plaintiff told her primary care 15 doctor “she is detached didn’t celebrate Christmas and didn’t care that she didn’t,” AR 707, 16 and where the notes indicate she has an active diagnosis of depression. AR 708. 17 Other treatment notes that the ALJ did not reference include reports by Plaintiff of 18 feeling down, depressed, and anxious. E.g., AR 435 (request for referral to psychiatrist); 19 AR 446–57 (progress notes from Dr. Paul Liederman indicating depression); AR 460 20 (letter from psychologist dated September 25, 2018 stating that “[d]espite [Plaintiff’s] 21 consistent attendance and support of psychotropic medication, minimal progress has been 22 made in the reduction of [her] chronic depression.”); AR 555 (depression has not 23 improved); AR 674 (depression medication not as effective); AR 721 (positive depression 24 screening). The ALJ cannot selectively cite to treatment notes that may suggest 25 improvement but ignore the overall context in which they are made. Ghanim, 763 F.3d at 26 1162 (treatment notes must be “read in context of the overall diagnostic picture the provider 27 draws”) (citations omitted). The treatment notes cited by the ALJ do not provide clear and 28 convincing reasons for rejecting Plaintiff’s testimony. 1 4. Consultative Psychiatric Evaluation by Dr. Irving 2 Next, the ALJ considered the consultative psychiatric evaluation conducted by 3 Karis Irving, M.D. AR 19. The ALJ noted that “[o]ther than depressed/anxious mood and 4 reduced memory,” her mental status examination was “within normal limits with 5 cooperative attitude normal speech, alert, fully oriented, ability to perform Serial 7s, and 6 adequate insight and judgment.” AR 19. Plaintiff reported to Dr. Irving that her medication 7 and therapy regime were helping with her depression. AR 19. 8 The ALJ’s summary of Dr. Irving’s evaluation ignores several aspects of the 9 evaluation that are entirely consistent with Plaintiff’s testimony. Dr. Irving described 10 Plaintiff as “anxious,” with “rambling” and “emotional” speech. AR 511. Plaintiff’s mood 11 during the evaluation was “depressed and anxious.” AR 511. Dr. Irving found Plaintiff’s 12 prognosis to be “guarded.” AR 512. Dr. Irving’s handwritten notes indicate that Plaintiff 13 is “easily flustered, gets anxious which leads [to] problems with concentration and 14 memory;” her anxiety “exacerbates” issues with memory and concentration, making her 15 mind go blank and very forgetful; and that Plaintiff had “poor recall” and was “very restless 16 and distracted during evaluation.” AR 505-06. The selective observations that the ALJ 17 noted from Dr. Irving’s evaluation do not provide clear and convincing reasons to reject 18 Plaintiff’s testimony. 19 5. Improvement with Medication 20 Next, the ALJ found that Plaintiff’s “mental symptoms generally improved on 21 medication.” AR 19. The medical record does not support this finding. Two letters from 22 Plaintiff’s treating psychologist – one from September 2018 and the other from 23 October 2020 – state that “[d]espite [Plaintiff’s] consistent attendance and support of 24 psychotropic medication, minimal progress has been made in the reduction of [Plaintiff’s] 25 chronic depression.” AR 480, 830. The consultative evaluations also show a degradation 26 of Plaintiff’s condition from the initial evaluation on October 18, 2016, which indicated 27 Plaintiff’s prognosis was “good,” AR 420, to the second evaluation on February 10, 2019, 28 which indicated Plaintiff’s prognosis was “guarded.” AR 512. 1 Even if the record might reflect intermittent signs of improvement, they would not 2 be sufficient to contradict Plaintiff’s testimony. “The fact that a person suffering from 3 depression makes some improvement ‘does not mean that the person’s impairment [] no 4 longer seriously affect[s] [his] ability to function in a workplace.’” Ghanim, 763 F.3d at 5 1162 (quoting Holohan, 246 F.3d at 1205); Garrison, 759 F.3d. at 1017 (“Reports of 6 ‘improvement’ in the context of mental health issues must be interpreted with an 7 understanding of the patient’s overall well-being and the nature of her symptoms, ... [and] 8 an awareness that improved functioning while being treated and while limiting 9 environmental stressors does not always mean that a claimant can function effectively in a 10 workplace.”). The ALJ’s finding that Plaintiff’s symptoms improved with medication does 11 not provide a clear and convincing reason to reject her testimony. 12 6. Failure to Seek Treatment 13 Finally, the ALJ stated that even though Plaintiff claimed to be disabled due to her 14 depression since January 1, 2000, “the earliest mental treating notes are dated 2018.” 15 AR 19. This is simply not correct. The record includes treatment notes from Dr. Liederman 16 from 2014 and 2015 at Exhibit 10F. AR 446–57. Dr. Irving expressly referred to those 17 notes in her evaluation. AR 509. According to Dr. Irving, although the notes are difficult 18 to read, they include “diagnoses of Attention Deficit Hyperactivity Disorder and 19 Depression.” AR 509. The ALJ’s finding that Plaintiff’s testimony is not credible because 20 she failed to seek treatment before 2018 does not provide a clear and convincing reason to 21 reject her testimony. See Burrell, 775 F.3d at 1139 (ALJ committed plain error when he 22 “overlooked significant medical records when assessing whether the medical record 23 conflicted with claimant’s testimony”); Holohan, 246 F.3d at 1208 (finding error where 24 the ALJ’s claim “is belied by the record.”). 25 V. THE APPROPRIATE REMEDY 26 Having found that the ALJ erred, the next steps for the Court are to determine whether 27 the error is harmless, and if not, the appropriate remedy. If an ALJ’s error is harmless, his 28 decision will not be reversed. Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012). An 1 ALJ’s error is harmless where it is “inconsequential to the ultimate nondisability 2 determination.” Id. at 1115 (quoting Carmickle v. Comm’r, 533 F.3d 1155, 1162 (9th Cir. 3 2008)). Here, the ALJ’s error was not harmless. 4 The ALJ’s error impacted his consideration of the medical opinion of Plaintiff’s 5 treating psychologist, Dr. Karilyn Richards, and third-party testimony from Plaintiff’s son. 6 The ALJ rejected Dr. Richards’s opinion outright because he contended it was primarily 7 based on Plaintiff’s statements regarding her symptoms, which the ALJ found to be not 8 credible. AR 20. The ALJ’s erroneous assessment of Plaintiff’s credibility therefore 9 necessarily impacted his decision to give no weight to Dr. Richards’s opinion. See Burrell, 10 775 F.3d at 1140–41. The ALJ also disregarded a submission from Plaintiff’s son in part 11 because of the ALJ’s erroneous interpretation of the treatment notes discussed above. 12 AR 20. The error was not harmless. 13 The Court applies the “credit-as-true” rule when determining whether a case should 14 be remanded for payment of benefits or for further proceedings. Trevizo, 871 F.3d at 682. 15 That test requires the court to assess three factors: (1) whether “the record has been fully 16 developed and further administrative proceedings would serve no useful purpose;” 17 (2) whether “the ALJ has failed to provide legally sufficient reasons for rejecting evidence, 18 whether claimant testimony or medical opinion;” and (3) whether “the ALJ would be 19 required to find the claimant disabled on remand” if the discredited evidence were treated 20 as true. Id. at 683 (quoting Garrison, 759 F.3d at 1020). If all three factors are present, a 21 court can remand the case for payment of benefits. Burrell, 775 F.3d at 1141. 22 The Court need not look beyond the first factor to determine that the proper remedy 23 is to remand for further proceedings. The record has not been fully developed as to what 24 would be the proper RFC for Plaintiff if her testimony is considered credible, because the 25 weight given to Dr. Richards’s opinion and the statements of Plaintiff’s son should be 26 different if Plaintiff’s testimony is not discredited. On remand, the ALJ must reconsider 27 his assessment of Dr. Richards’s opinion and the submission by Plaintiff’s son in light of 28 this order. Because Plaintiff applied for benefits prior to March 27, 2017, the treating 1 physician rule applies, and the ALJ must assess Dr. Richards’s opinion in light of that more 2 deferential standard. Woods v. Kijakazi, 32 F.4th 785, 789 (9th Cir. 2022). See also 20 3 C.F.R. § 416.927(c)(2) (setting forth the treating physician rule for claims filed before 4 March 27, 2017). 5 The ALJ’s rejection of Dr. Richards’s opinion is problematic for an additional 6 reason that should be addressed on remand. The ALJ did not treat Dr. Richards’s medical 7 source statement as an opinion at all, even though it is clearly “a statement from a medical 8 source about what [Plaintiff] can still do despite [her] impairment(s) and whether [she has] 9 one or more impairment-related limitations or restrictions in the following abilities[,]” 10 which include but are not limited to the ability “to perform mental demands of work 11 activities, such as understanding; remembering; maintain concentration, persistence, or 12 pace; carrying out instructions; or responding appropriately to supervision, co-workers, or 13 work pressures in a work setting[.]” 20 C.F.R. § 416.913(a)(2). The reason the ALJ gave 14 for this outright rejection is that Dr. Richards’s opinion does not represent her own 15 analysis, but merely repeats “what the claimant said to her.” AR 20. There is no support 16 for the ALJ’s finding in this regard. At the time of her opinion, Dr. Richards had been 17 treating Plaintiff for eighteen months. AR 547–48 (weekly treatment since February 18 16, 2018; opinion dated October 11, 2019). Dr. Richards’s opinion is replete with her own 19 analysis and observations: “Client’s symptoms of depression and anxiety affect her ability 20 to focus [and] retain information,” (AR 542); “[Client] has low frustration tolerance and is 21 easily irritable due to depression,” (AR 543); “[Client] generally presents tired, low in 22 energy, with flat affect,” (AR 544); “[W]hen more depressed [client] will lack eye contact 23 and ability to focus, but otherwise will engage in sessions,” (AR 544); “Many interventions 24 to try to help [client’s] focus and follow through including lists, notes in her phone, mood 25 checks, etc. have made no difference,” (AR 544); “[Client’s] engagement in session 26 depends on mood, ranging from avoidant and irritable to cooperative but lacking insight 27 and motivation.” (AR 547). To avoid further error, the ALJ should consider Dr. Richards’s 28 1 opinion on remand as a medical source statement and evaluate it in accordance with the 2 || treating physician rule under 20 C.F.R. § 416.927(c)(2). 3 In remanding for further proceedings, the Court is following the Ninth Circuit’s 4 ||guidance that the proper course, save for exceptional circumstances, is to remand. 5 || Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015); see also Treichler, 775 F.3d at 6 1100 (“we generally remand for an award of benefits only in ‘rare circumstances”’”) 7 || (quoting Moisa v. Barnhart, 367 F.3d 882, 886 (9th Cir. 2004)). To be clear, the Court is 8 ||not denying Plaintiff's request to remand for benefits because it has serious doubts about 9 || Plaintiff's disability. Cf Burrell, 775 F.3d at 1141. Plaintiff's RFC and the ultimate 10 disability determination depend on a proper assessment of Dr. Richards’s opinion and 11 || third-party statements, which did not occur in this case because of the error regarding 12 || Plaintiff's testimony. See Dominguez, 808 F.3d at 409 (appropriate to remand case for 13 || further proceedings because “‘it is up to the ALJ, not the court” to formulate a proper RFC). 14 CONCLUSION 15 For the foregoing reasons, the Court finds that the ALJ committed reversible error 16 || by rejecting Plaintiff's testimony without providing specific, clear, and convincing reasons 17 || for doing so. 18 The Court therefore REVERSES the Commissioner’s decision pursuant to sentence 19 || four of 42 U.S.C. § 405(g), and REMANDS this action for further proceedings consistent 20 || with this order. 21 IT IS SO ORDERED. 22 ||Dated: September 30, 2022 03 _ArwiorwH. Xyolard Honorable Allison H. Goddard 24 United States Magistrate Judge 25 26 27 28