Debruzzi v. Kijakazi

8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA LISA D.,1 Case No.: 22cv695-DMS(MSB) 12 Plaintiff, REPORT AND RECOMMENDATION v. REGARDING JOINT MOTION FOR JUDICIAL REVIEW [ECF NO. 19] KILOLO KIJAKAZI, Acting Commissioner of Social Security,2 Defendant.

18 This Report and Recommendation is submitted to the Honorable Dana M. Sabraw, United States District Chief Judge, pursuant to 28 U.S.C. § 636(b)(1) and Civil Local Rule 72.1(c) of the United States District Court for the Southern District of California. On May 16, 2022, Plaintiff Lisa D. filed a Complaint pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial review of a decision by the Commissioner of Social Security (“Commissioner”) denying her application for disability insurance benefits and supplemental security income. (See Compl., ECF No. 1.)

1 Under Civil Local Rule 7.1(e)(6)(b), “[o]pinions by the Court in [Social Security cases under 42 U.S.C. § 27 405(g)] will refer to any non-government parties by using only their first name and last initial.”

2 the Final Decision of the Acting Commissioner of Social Security” (“Joint Motion”). (ECF No. 19 (“J. Mot.”).) The Court has carefully reviewed the parties’ Joint Motion and the Administrative Record (“AR”) [ECF No. 10], and for the reasons set forth below, RECOMMENDS that the Commissioner’s decision be REVERSED and this matter be REMANDED for further administrative proceedings consistent with this Report and Recommendation.

8 I. PROCEDURAL BACKGROUND 9 On September 6, 2019, Plaintiff filed applications for disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act, alleging disability beginning on March 23, 2018. (AR 274–89.)3 Her applications were denied initially on February 26, 2020, and upon reconsideration on July 13, 2020. (AR 155–56, 187–88). On August 27, 2020, Plaintiff requested a hearing before an administrative law judge (“ALJ”). (AR 208.) On June 4, 2021, ALJ Kevin Messer held a telephonic administrative hearing, during which Plaintiff was represented by counsel.

16 (AR 35–63.) Both Plaintiff and an impartial vocational expert, Shirley Ripp, testified.

17 (Id.) In a written decision dated June 25, 2021, the ALJ denied Plaintiff’s application, concluding that Plaintiff had not been under a disability from March 23, 2018, through the date of the decision. (AR 12–34.)

20 On August 31, 2021, the Appeals Council received a request for review of the ALJ’s decision. (AR 7–11.) The Appeals Council denied the request on March 14, 2022, resulting in the ALJ’s decision becoming the final decision of the Commissioner. (AR 1– 6.) On May 16, 2022, Plaintiff filed the instant civil action. (ECF No. 1.) Pursuant to the Plaintiff previously applied for disability insurance benefits and social security income, which an ALJ denied on March 22, 2018. (AR 15, 90–116.) The Appeals Council subsequently denied review on February 2, 2019. (AR 15, 117–122.) In the instant case, the ALJ found that the “presumption of nondisability is rebutted by the additional medical evidence submitted since the previous decision.”

2 on March 2, 2023. (ECF No. 19.)

3 II. SUMMARY OF THE ALJ’S FINDINGS 4 In rendering his decision, the ALJ followed the Commissioner’s five-step sequential evaluation process. See 20 C.F.R. § 404.1520. At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since March 23, 2018, the alleged onset date. (AR 18.) At step two, the ALJ found Plaintiff had the following severe impairments that significantly limit her ability to perform basic work activities: 9 lupus, ulcerative colitis, peripheral neuropathy, degenerative disc disease of the cervical spine, fibromyalgia, rheumatoid arthritis, chronic pain syndrome, adhesive capsulitis of left shoulder, depression, generalized 11 anxiety disorder, and attention deficit hyperactive disorder.

12 (Id.) The ALJ also noted Plaintiff’s alleged impairments of “obesity, TMJ disorder, fatty liver, chondromalacia patella of left knee, degenerative joint disease of right foot, and Bells’ [sic] palsy,” but found they were non-severe because they “have not resulted in any significant limitation in [her] ability to do basic work activities.” (AR 18–19.)

16 At step three, the ALJ found Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the impairments listed in the Commissioner’s Listing of Impairments. (AR 19.) Specifically, the ALJ considered the following listed impairments: 1.15 disorders of the skeletal spine resulting in compromise of a nerve root(s); 1.16 lumbar spinal stenosis resulting in compromise of the cauda equina; 1.18 abnormality of a major joint(s) in any extremity; and 5.05 chronic liver disease. (Id.; 20 C.F.R. pt. 404, app. 1.) The ALJ also determined that Plaintiff’s mental impairments, considered individually and together, did not meet the criteria of listings 12.04 depressive, bipolar and related disorders; and 12.06 anxiety and obsessive-compulsive disorders. (AR 20; 20 C.F.R. pt. 404, Part 404, Subpart P, Appendix 1.)

27 Based on his evaluation of the medical and opinion evidence in the record, the 2 [Plaintiff] has the residual functional capacity to perform sedentary work . . . except she is unable to climb ladders, ropes or scaffolds. She is unable to crawl. She is able to occasionally climb ramps and stairs. She is able to 4 occasionally balance, stoop, kneel and crouch. She is able to frequently reach overhead with bilateral upper extremities. She must avoid concentrated exposure to fumes, odors, gases and other pulmonary 6 irritants. She is able to understand, remember, and carry out simple, routine tasks. She is able to have occasional interaction with the general public and only occasional work-related, non-personal, non-social 8 interaction with co-workers and supervisors. She is limited to jobs requiring only simple work-related decisions. However, she is able to keep pace sufficient to complete tasks and meet quotas typically found in 10 unskilled work.

11 (AR 21–22.)

12 The ALJ found that Plaintiff’s medically determinable impairments could reasonably be expected to cause the alleged symptoms. (AR 22.) However, the ALJ determined that Plaintiff’s “statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record.” (Id.) The ALJ said “[t]he longitudinal record does not support a finding that claimant’s impairments are so severe as to be disabling,” emphasizing that her “symptoms are stable” and she “received only minimal, conservative treatment.” (Id.) Based on the foregoing, the ALJ concluded a sedentary exertional level was appropriate, emphasizing that “the objective medical evidence . . .

21 establishes that the claimant has a greater sustained capacity than the claimant alleges.” (AR 27.)

23 At step four, the ALJ found that Plaintiff is unable to perform her past relevant work as an automobile salesperson. (AR 27.) Finally, the ALJ proceeded to step five of the sequential evaluation process. The ALJ noted the vocational expert’s testimony that a hypothetical individual with Plaintiff’s vocational profile and RFC could perform the requirements of other occupations that exist in significant numbers in the national Thus, the ALJ concluded Plaintiff had not been under a disability as defined by the Social Security Act from March 23, 2018, through the date of the decision, and denied her applications for disability insurance benefits and supplemental security income. (AR 29.)

5 III. DISPUTED ISSUES 6 The parties have briefed five issues in their Joint Motion, which Plaintiff asserts are grounds for reversal: 8 1. Whether the ALJ provided specific, clear, and convincing reasons for discounting Plaintiff’s allegations of pain and physical dysfunction.

2. Whether the ALJ failed to develop the medical opinion evidence 10 regarding Plaintiff’s physical limitations and instead served as his own medical expert.

3. Whether the ALJ formulated a residual functional capacity that 12 reasonably accommodated Plaintiff’s ulcerative colitis.

4. Whether the ALJ erroneously departed from the opinion of the State agency psychiatrist without explanation.

14 5. Whether Plaintiff could perform a significant number of jobs in the national economy.

16 (J. Mot. at 2.)

17 IV. STANDARD OF REVIEW 18 Section 405(g) of the Social Security Act allows unsuccessful applicants to seek judicial review of the Commissioner’s final decision. See 42 U.S.C. § 405(g). The scope of judicial review is limited, and the denial of benefits will only be disturbed if it is not supported by substantial evidence or contains a legal error. Luther v. Berryhill, 891 F.3d 22 872, 875 (9th Cir. 2018). “Substantial evidence” is a “‘term of art’ used throughout administrative law to describe how courts are to review agency factfinding.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (quoting T-Mobile South, LLC v. Roswell, 135 S. Ct. 25 808, 815 (2015)). The Supreme Court has said substantial evidence means “more than a mere scintilla,” but only “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (quoting Consol. Edison Co. v. NLRB, 305 U.S. 2 Cir. 2017) (quoting Desrosiers v. Sec’y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988).

4 Where the evidence is susceptible to more than one rational interpretation, the ALJ’s decision must be upheld. See Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). This includes deferring to the ALJ’s credibility determinations and resolutions of evidentiary conflicts. See Lewis v. Apfel, 236 F.3d 503, 509 (9th Cir. 2001). Even if the reviewing court finds that substantial evidence supports the ALJ’s conclusions, the court must set aside the decision if the ALJ failed to apply the proper legal standards in weighing the evidence and reaching his or her decision. See Batson v. Comm’r Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). The reviewing court may enter a “judgment affirming, modifying, or reversing” the Commissioner’s decision. 42 U.S.C. § 13 405(g). The reviewing court may also remand the case to the Social Security Administration for further proceedings. Id. However, the reviewing court “may not reverse an ALJ’s decision on account of an error that is harmless.” Molina v. Astrue, 674 16 F.3d 1104, 1111 (9th Cir. 2012).

17 V. DISCUSSION A. Whether the ALJ Provided Specific, Clear, and Convincing Reasons for 19 Discounting Plaintiff’s Allegations of Pain and Physical Dysfunction 20 1. Summary of the parties’ arguments 21 Plaintiff argues the ALJ “failed to provide specific, clear, and convincing reasons for discounting Plaintiff’s allegations of pain and physical dysfunction.” (J. Mot. at 4– 12.) First, she contends that the ALJ did not cite to any specific medical evidence supporting the conclusion that Plaintiff’s symptoms were “stable.” (Id. at 7–8.) By contrast, Plaintiff says the record evidence demonstrated that her pain was “progressively worsening.” (Id. at 8.) Additionally, even if Plaintiff’s medical conditions were “stable,” she argues they “stabilized at a disabling level of severity” and the ALJ did concluded that attempts to control her symptoms—including chiropractic adjustments, narcotic pain medication, trigger point injections, and epidural steroid injections—were “minimal or conservative.” (Id. at 8–10.) Plaintiff cites to Ninth Circuit case law holding that treatment with narcotics, pain medication, and injections is not “conservative.” (Id. at 9–10.) Further, Plaintiff contends medication was the “most aggressive modality” to treat certain impairments like lupus and fibromyalgia. (Id. at 10.) Although Plaintiff acknowledges that the ALJ summarized the medical evidence, she says the summary was “selective” and over-emphasized certain examination results. (Id. at 11.) She argues that the fact that she had a normal gait, balance, and motor strength was not a “clear or convincing” reason to discount her pain. (Id. at 11–12.)

12 In response, the Commissioner argues the ALJ’s findings are supported by substantial evidence and should be upheld. (Id. at 13–18.) The Commissioner says the ALJ properly summarized Plaintiff’s subjective complaints and concluded that “[t]he longitudinal record did not support a finding that her impairments were so severe as to be disabling.” (Id. at 13.) First, the record demonstrated Plaintiff’s symptoms were “stable” and inconsistent with her complaints of pain and debilitating mental symptoms.

18 (Id. at 13–14.) For example, physical examinations revealed Plaintiff’s gait and balance were normal, while mental examinations showed Plaintiff was “alert and oriented,” “calm and cooperative,” and had “good insight, judgment, and impulse control.” (Id. at 14.) Second, the Commissioner contends the ALJ appropriately pointed out Plaintiff’s “conservative treatment,” including physical therapy, self-exercise, and chiropractic manipulative therapy. (Id. at 15–16.) The ALJ acknowledged Plaintiff was prescribed narcotic pain medication and injections; however, “these were largely effective and were used in conjunction with the aforementioned conservative modalities.” (Id. at 16.)

26 Finally, the Commissioner maintains that Plaintiff’s admitted activities—including taking care of her two dogs, driving, riding a bicycle, preparing meals, and doing yoga— evidence were sufficient to undercut her subjective pain allegations. (Id. at 18.)

3 2. Applicable law 4 When evaluating the credibility of a claimant’s allegations regarding subjective symptoms such as pain, the ALJ must engage in a two-step analysis. See Johnson v. Kijakazi, No. 19-17359, 2022 WL 1553259, at *1 (9th Cir. May 17, 2022); Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009); Lingenfelter v. Astrue, 504 F.3d 1028, 1035–36 (9th Cir. 2007). First, the ALJ must determine whether there is objective medical evidence of an underlying impairment that “could reasonably be expected to produce the pain or other symptoms alleged.” Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017) (quoting Garrison v. Colvin, 759 F.3d 995, 1014–15 (9th Cir. 2014)). The claimant is not required to show that an underlying impairment could reasonably be expected to cause the severity of the pain alleged, but only that it could have reasonably caused some degree of pain. Vasquez, 572 F.3d at 591 (citing Lingenfelter, 504 F.3d at 1036).

15 Second, if the claimant meets the first step and there is no evidence of malingering, then the ALJ may reject the claimant’s statements about the severity of his symptoms “only by offering specific, clear and convincing reasons for doing so.”

18 Trevizo, 871 F.3d at 678 (quoting Garrison, 759 F.3d at 1014–15). “The clear and convincing standard is the most demanding required in Social Security cases.” Revels, 874 F.3d at 655 (quoting Garrison, 759 F.3d at 1014–15). General findings are insufficient, and the ALJ must identify which specific pain and symptom statements are being discounted and what evidence undermines those claims. See Lambert v. Saul, 980 23 F.3d 1266, 1277 (9th Cir. 2020) (citing Treichler v. Comm’r Soc. Sec. Admin., 775 F.3d 24 1090, 1102 (9th Cir. 2014); Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005). An ALJ’s failure to identify specific statements and explain why they are not credible constitutes reversible error because the reviewing court cannot determine if the ALJ’s decision was supported by substantial evidence. See Brown-Hunter v. Colvin, 806 F.3d 487, 489 (9th ALJ considers “all of the evidence presented,” including information about the claimant’s prior work record, statements about their symptoms, evidence submitted by their medical sources, and observations by the Agency’s employees and other persons.

5 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3); SSR 16-3p. Factors the ALJ may consider, in addition to objective medical evidence, include Plaintiff’s daily activities; the location, duration, frequency, and intensity of their pain or other symptoms; precipitating and aggravating factors; the type, dosage, effectiveness, and side effects of any medication taken to alleviate pain; treatment; and any other measures used to relieve pain. See 20 10 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3); SSR 16-3p. The ALJ may also consider inconsistencies between Plaintiff’s statements regarding pain and the medical evidence.

12 See 20 C.F.R. §§ 404.1529(c)(4), 416.929(c)(4); SSR 16-3p.

13 3. Plaintiff’s testimony 14 In a function report date October 8, 2019, Plaintiff wrote that her conditions affect the following activities: lifting, squatting, bending, standing, reaching, walking, sitting, kneeling, talking, stair-climbing, memory, completing tasks, concentration, understanding, and following instructions. (AR 337.) Plaintiff added, “I live with pain daily it affects all the above.” (Id.) She said she does not handle stress well, citing her “hypertension [sic] and IBD [irritable bowel disease].” (AR 338.) Further, Plaintiff said she experiences “uncontrollable crying and anxiety” and sleeps with braces on her arms at night. (Id.) Plaintiff reported taking Gabapentin and experiencing side effects of grogginess and forgetfulness. (AR 339.)

23 During the administrative hearing on June 4, 2021, Plaintiff testified that she was diagnosed with lupus and fibromyalgia in January 2019. (AR 44.) She explained that her “joints are incredibly stiff, achy, and sore,” and said she “feel[s] like the Tin Woman.”

26 (AR 45.) Additionally, Plaintiff said she experiences pain and discomfort in both shoulders when attempting to perform certain movements with her arms. (AR 45–46.)

2 her doctor. (AR 46–47.) She said the pain is worse in her ankles, knees, and hands. (AR 47.) Due to pain, Plaintiff alleged she was limited to sitting for twenty to twenty-five minutes at a time, standing for ten minutes at a time, and lifting ten pounds. (AR 51.)

5 Plaintiff also said she took hydrocodone for pain three times a day. (AR 52–53.)

6 4. The ALJ’s findings 7 The ALJ began his credibility analysis by summarizing Plaintiff’s testimony in a single paragraph: 9 The claimant is a 48-year-old [woman] who alleges disability due to lupus, ulcerative colitis, peripheral neuropathy, degenerative disc disease of the cervical spine, fibromyalgia, rheumatoid arthritis, chronic pain syndrome, 11 adhesive capsulitis of left shoulder, depression, generalized anxiety disorder, and ADHD. She alleges that she stopped working in June 2013 due to her alleged conditions. She alleges difficulty with lifting, squatting, 13 bending, standing, reaching, walking, sitting, kneeling, talking, stair- climbing, memory, completing tasks, concentration, understanding and following instructions.

15 (AR 22.) The ALJ found that Plaintiff’s “medically determinable impairments could reasonably be expected to cause the alleged symptoms.” (Id.) However, the ALJ challenged the severity of Plaintiff’s symptoms: 18 [T]he claimant’s statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons 20 explained in this decision.

The longitudinal record does not support a finding that the claimant’s 22 impairments are so severe as to be disabling. The record reveals that the claimant’s symptoms are stable. The record also reveals that the claimant received only minimal, conservative treatment for her allegedly disabling 24 impairments, and did not require emergency room or hospital treatment or extensive evaluation or testing during the period she claimed disability.

26 (Id.) 27 The ALJ then summarized various treatment notes (AR 22–26), noting 2 medication for these conditions in March 2019. (AR 647–48.) In April 2019, Plaintiff complained of multiple joint pain, stiffness, and more; however, 3 she also reported that “gabapentin is helping.” (AR 444, 599.) In August 2019, Plaintiff continued to have whole-body pain but reported “decreased rashes” and “[n]o oral ulcers.” (AR 489, 755.) Between February 2020 and 5 November 2020, Plaintiff had no swelling but persistent stiffness; she had no synovitis and full range of motion in most joints. (AR 758–775.)

Between January 2021 and May 2021, Plaintiff reported much of the same 7 and was “feel[ing] better with [Norco].” (AR 897, 905.)

• Degenerative disc disease and chronic pain: In July 2018, Plaintiff reported 9 a history of a motor vehicle accident in 1992 and was diagnosed with chronic pain syndrome; however, she had normal bulk, power, tone, sensation, coordination, and gait. (AR 433–34, 670). Between November 11 2018 and January 2019, Plaintiff’s lower back and neck pain ranged between two to five on a scale of ten. (AR 538, 554, 606, 686, 690.) In May 2020, Plaintiff complained about lower back pain, but it “started after 13 gardening” and was “worse after picking up boxes.” (AR 826.) Between June 2020 and October 2020, Plaintiff continued to demonstrate normal strength, reflexes, sensation, and gait. (AR 790–821.) From June 2020 to 15 April 2021, trigger point injections helped with Plaintiff’s pain. (AR 934– 950.) From July 2020 to April 2021, the ALJ said “objective findings on her physical examination remained unchanged and stable.” (AR 24.) • Left shoulder adhesive capsulitis: Plaintiff complained of left shoulder pain from November 2018 to January 2019. (AR 557, 613, 642.) In April 2019, 19 Plaintiff’s left shoulder pain was “much better” after a cortisone injection; additionally, her range of motion “significantly improved.” (AR 506.) In June 2019, Plaintiff reported that her shoulder pain had returned; however, 21 doctors noted that a fibromyalgia full body flare-up might be contributing to the shoulder pain. (AR 498.) In July 2019, Plaintiff declined a cortisone injection “because she wanted to wait and see if her fibromyalgia flare up 23 improves.” (AR 495.) In June 2020, Plaintiff reported doing well since a September 2019 cortisone injection; however, she also reported increasing pain and stiffness in the left shoulder. (AR 823.) Between December 2020 25 and April 2021, Plaintiff had no tenderness in the shoulder, normal stability, and normal motion. (AR 919–931.)4 2 In sum, the undersigned finds that the objective medical evidence discussed above establishes that the claimant has a greater sustained capacity than the claimant alleges. The undersigned thereby concludes 4 that the claimant retains the capacity to perform work activities with the limitations as set forth above.

6 (AR 27.)

7 5. Analysis 8 The Court now undertakes the two-step analysis to determine whether the ALJ properly challenged Plaintiff’s testimony. See Johnson, 2022 WL 1553259, at *1; Lingenfelter, 504 F.3d at 1035. As discussed above, the ALJ found that Plaintiff’s “medically determinable impairments could reasonably be expected to cause the alleged symptoms,” and did not find evidence of malingering. (AR 22.) This satisfies step one. Trevizo, 871 F.3d at 678. Accordingly, the ALJ may reject Plaintiff’s testimony about the severity of her pain only by providing “specific, clear, and convincing” reasons. See Brown-Hunter, 806 F.3d at 488–89; see also Leza v. Kijakazi, No. 21-16079, 2022 WL 819782, at *2 (9th. Cir. Mar. 17, 2022). In addition to giving clear and convincing reasons for rejecting Plaintiff’s testimony, the ALJ “must specifically identify the testimony she or he finds not to be credible and must explain what evidence undermines the testimony.” Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001).

20 General findings are insufficient; the ALJ “must state which pain testimony is not credible and what evidence suggests the complaints are not credible.” Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993) (citing Varney v. Sec’y of Health & Human Servs., 846 23 F.2d 581, 584 (9th Cir. 1988)). Here, the ALJ failed to meet the demanding “clear and convincing” standard for several reasons.

25 a. Discredited testimony 26 As an initial matter, the ALJ did not “specifically identify” which testimony he found not credible and why. Holohan, 246 F.3d at 1208. Instead, the ALJ generally and other evidence.” (AR 22.) The Ninth Circuit has held that this boilerplate language does not rise to the level of “specific, clear, and convincing” reasons for discounting a claimant’s subjective testimony. See, e.g., Treichler, 775 F.3d at 1103 (holding that a boilerplate introductory sentence falls short of “meeting the ALJ’s responsibility” to discuss the objective evidence); Vasquez, 572 F.3d at 592 (finding that the “vague allegation that [plaintiff’s claims] were ‘not consistent with the objective medical evidence’” was inadequate to reject plaintiff’s subjective testimony).

9 Additionally, the ALJ failed to identify specific testimony that was “not entirely consistent” with the medical evidence; instead, he provided a general summary and stated his non-credibility conclusion. (See AR 22–27.) “[S]imply reciting the medical evidence in support of [a] residual functional capacity determination” does not meet the “clear and convincing” standard for rejecting a claimant’s testimony. Brown-Hunter, 806 F.3d at 489; see also Lambert, 980 F.3d at 1278 (holding that a “relatively detailed overview of [the plaintiff’s] medical history” was not the same as providing clear and convincing reasons for discounting the plaintiff’s testimony). Thus, the Court cannot accurately assess whether the ALJ provided specific, clear, and convincing reasons for rejecting Plaintiff’s testimony where, as here, he “never identified which testimony [he] found credible, and never explained which evidence contradicted that testimony.”

20 Brown-Hunter, 806 F.3d at 494.

21 b. Stability of symptoms 22 Second, the ALJ did not provide “specific, clear and convincing reasons” for finding that Plaintiff’s symptoms are stable. Trevizo, 871 F.3d at 678. As Plaintiff points out, the ALJ’s summary of the medical evidence over-emphasized certain examination results that showed normal findings. (J. Mot. at 11–12.) For example, the ALJ noted that in July 2018 Plaintiff presented for evaluation of chronic pain; however, she had “normal bulk, power and tone,” “normal sensation,” and “normal coordination and strength, intact reflexes, and intact sensation . . . normal gait and was able to stand without difficulty.” (AR 24.)

4 Ninth Circuit courts have held that stability does not necessarily say anything as to the intensity, persistence, and limiting effects of an individual’s reported pain. See, e.g., Debra D.B. v. Comm’r Soc. Sec. Admin., No. 18cv1811-HZ, 2020 WL 118255, at *6 (D.

7 Ore. Jan. 9, 2020) (although Plaintiff’s condition may have been stable, “the ALJ did not explain how this stability might contradict her subjective symptom testimony”); Kluthe v. Berryhill, No. 16cv742-JLT, 2018 WL 775298, at *9 (E.D. Cal. Feb. 8, 2018) (finding the ALJ improperly equated stability with functionality); Richardson v. Astrue, No. 10cv4186- MAN, 2011 WL 5593937, at *6 (C.D. Cal. Nov. 17, 2011) (“notwithstanding the stability of plaintiff’s lupus, plaintiff’s doctors opine that plaintiff will have functional limitations as a result of her lupus”). Moreover, the same records that show Plaintiff’s allegedly “stable” symptoms reveal ongoing pain. (See, e.g., AR 434 (“impression: chronic pain syndrome”), 445 (“pain in thoracic spine,” “low back pain,” “intercostal pain,” “pain in left shoulder”), 603 (“chronic pain”), 670 (“long history of chronic pain”), 790 (“most severe pain is located in the shoulder/shoulder blades”), 820 (“low back pain for many years”), 1233 (“chronic pain”).) Even if some of Plaintiff’s symptoms were “stable,” the ALJ did not adequately explain how this stability undermined her complaints of widespread pain.

21 c. Conservative treatment 22 Third, the ALJ failed to provide “specific, clear and convincing reasons” for finding that Plaintiff’s treatment was conservative. Trevizo, 871 F.3d at 678. The Ninth Circuit has held that conservative treatment can be a basis for discounting a Plaintiff’s “testimony regarding severity of an impairment.” Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007) (holding the use of solely over-the-counter medication to treat pain was “conservative treatment” the ALJ could reasonably rely on to discount Plaintiff’s Here, the ALJ broadly asserted that Plaintiff’s treatment was conservative because she “did not require emergency room or hospital treatment or extensive evaluation or testing” during the claimed disability period. (AR 22.) The ALJ did not explain what specific treatment he considered “conservative,” nor did he explain how any particular treatment undermined Plaintiff’s allegations of widespread pain. (AR 22–27.) By contrast, the record reflects that Plaintiff attempted a wide array of treatments since her alleged onset date of March 23, 2018. Plaintiff saw a variety of specialists—a rheumatologist, podiatrist, chiropractors, and pain management doctors—and tried many medications, including the following opioids: Tramadol, Norco, and Hydrocodone.

11 (AR 525, 576, 606, 650, 686, 739, 765, 830, 872, 1279, 1334.) Additionally, Plaintiff received three rounds of trigger point injections in her cervical spine and two cortisone injections in her left shoulder. (AR 493, 509, 949, 955, 974).

14 This course of treatment—namely a variety of injections and narcotic pain medication—cannot be characterized as “conservative.” See Garrison, 759 F.3d at 1015 n. 20 (“[W]e doubt that epidural steroid shots to the neck and lower back qualify as ‘conservative’ medical treatment.”); Gilliland v. Saul, 821 Fed. App’x 798, 799 (9th Cir. 2020) (finding treatment consisting of pain medications and injections was not conservative); Duarte v. Berryhill, No. 16cv2654-W(BGS), 2018 WL 785819, at *8 (S.D. Cal. Feb. 8, 2018) (same). While Plaintiff has not undergone surgery since her alleged onset date, the record does not reflect that more aggressive treatment options were appropriate. See Lapeirre-Gutt v. Astrue, 382 Fed. App’x 662, 664 (9th Cir. 2010) (“A claimant cannot be discredited for failing to pursue non-conservative treatment options where none exist”). Moreover, it would be unreasonable to expect more aggressive treatment given the nature of some of Plaintiff’s impairments such as lupus and fibromyalgia. See Revels, 874 F.3d at 667 (determining facet and epidural injections, steroid injections, and pain medications were non-conservative treatment for recommend she seek additional opinions. “Persistent attempts to obtain relief of symptoms, such as increasing dosages and changing medications, trying a variety of treatments, referrals to specialists, or changing treatment sources may be an indication that an individual's symptoms are a source of distress and may show that they are intense and persistent.” SSR 16-3p, available at 2017 WL 5180304, at *9. Accordingly, the ALJ has not provided clear and convincing evidence that Plaintiff’s treatment was conservative.

9 d. Daily activities 10 Lastly, the Commissioner argues that “Plaintiff’s admitted activities belied her complaints of disabling symptoms.” (J. Mot. at 17.) The Commissioner notes how Plaintiff lives alone, cares for her dogs, prepares her own meals, shops in stores, practices yoga, and more. (Id.) However, the ALJ did not cite Plaintiff’s daily activities as a reason for discounting her pain testimony. (J. Mot. at 19; AR 22.) Thus, the Court agrees with Plaintiff that this is a post-hoc justification by the Commissioner that should not be seriously considered. See Brown-Hunter, 806 F.3d at 492 (the district court is “constrained to review the reasons the ALJ asserts”) (quoting Connett v. Barnhart, 340 18 F.3d 871, 874 (9th Cir. 2003)); see also Garrison, 759 F.3d at 1010 (holding that the court can only assess the reasoning provided by the ALJ in his decision). Even if the ALJ had raised Plaintiff’s daily activities as a reason for rejecting her pain allegations, the Ninth Circuit has advised that “ALJs must be especially cautious in concluding that daily activities are inconsistent with testimony about pain, because impairments that would unquestionably preclude work and all the pressures of a workplace environment will often be consistent with doing more than merely resting in bed all day.” Garrison, 759 F.3d at 1016; Albertson v. Colvin, 659 Fed. App’x 372, 374 (9th Cir. 2016) (holding the claimant’s ability to perform basic household chores and occasionally run errands was not enough to discredit her pain testimony). Further, “disability claimants should not be perform daily activities is not dispositive of her ability to work eight hours a day, five days a week.

4 6. Conclusion 5 The ALJ failed to specifically identify which of Plaintiff’s statements he found not credible, or which medical evidence contradicted that testimony. Holohan, 246 F.3d at 7 1208. Nevertheless, the Court has assessed the ALJ’s purported reasons for discounting Plaintiff’s testimony— (1) that her symptoms are stable and (2) that the treatment she received was conservative—and finds that they are not supported by “specific, clear, and convincing reasons.” Brown-Hunter, 806 F.3d at 494. The Court further finds that the ALJ’s failure to provide clear and convincing reasons for discounting Plaintiff’s pain testimony was not harmless because it “precludes us from conducting a meaningful review.” Id. at 489; see also Michael Louis W. v. Kijakazi, No. 20cv2277-LL(MSB), 2022 14 WL 2701988, at *10 (S.D. Cal. July 12, 2022) (finding harmful error where the ALJ failed to specify which of Plaintiff’s statements regarding pain and physical dysfunction he discredited). On remand, the ALJ should reevaluate Plaintiff’s symptom testimony and specifically identify which portions of it, if any, the ALJ finds not credible and why.

18 B. Whether the ALJ Failed to Develop the Medical Opinion Evidence 19 1. Summary of the parties’ arguments 20 Plaintiff next argues that the ALJ “failed to develop the medical opinion evidence regarding Plaintiff’s physical limitations and instead served as his own medical expert.”

22 (J. Mot. at 21–22.) She contends the ALJ erred by not ordering a consultative examination or consulting a medical expert about Plaintiff’s physical limitations. (Id. at 21.) Instead, Plaintiff says the ALJ improperly “relied on his own lay review of the raw medical evidence,” and made three errors: (1) finding that Plaintiff could perform frequent overhead reaching despite evidence of bilateral shoulder adhesive capsulitis; (2) not including work restrictions to account for Plaintiff’s cervical dysfunction; and (3) restroom. (Id. at 21–22.) Accordingly, Plaintiff argues remand is necessary for further development of the medical opinion evidence and reevaluation of Plaintiff’s residual functional capacity (“RFC”). (Id. at 22.)

5 In response, the Commissioner argues the ALJ’s RFC finding was a reasonable interpretation of the medical and other evidence. (Id. at 22–24.) The Commissioner maintains the ALJ properly considered the medical records, Plaintiff’s subjective complaints, prior administrative medical findings (“PAMFs”), and medical opinions and assessed an RFC that included reasonable accommodations for Plaintiff’s impairments.

10 (Id. at 23–24.) Thus, the Commissioner contends that “Plaintiff’s lay speculation that bilateral shoulder adhesive capsulitis, cervical dysfunction, and ulcerative colitis warranted additional limitations does not refute the ALJ’s reasonable interpretation of the record evidence in crafting Plaintiff’s RFC.” (Id. at 24.)

14 2. Applicable law 15 In Social Security cases, the ALJ has a duty to develop the record fully and fairly and to assure that the claimant’s interests are considered. See Garcia v. Comm’r Soc.

17 Sec., 768 F.3d 925, 930 (9th Cir. 2014) (citing Celaya v. Halter, 332 F.3d 1177, 1183 (9th Cir. 2003)); Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996) (quoting Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983)). The ALJ “must be especially diligent in ensuring that favorable as well as unfavorable facts and circumstances are elicited.”

21 Celaya, 332 F.3d at 1183 (quoting Higbee v. Sullivan, 975 F.2d 558, 561 (9th Cir. 1992)).

22 “[A]n ALJ's duty to develop the record further is triggered only when there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of the evidence.” Agatucci v. Berryhill, 721 F. App’x 614, 617 (9th Cir. 2017) (quoting McLeod v. Astrue, 640 F.3d 881, 885 (9th Cir. 2011)).

26 The revised regulations state that the claimant is generally “responsible for providing the evidence” used to make the residual functional capacity (“RFC”) including arranging for a consultative examination(s) if necessary, and making every reasonable effort to help you get medical reports from your own medical sources.” Id. Additionally, the agency must develop an individual’s “complete medical history for at least the 12 months preceding the month in which you file your application.” See 20 6 C.F.R. § 404.1512(b)(1). The ordering of a consultative examination is discretionary. See 20 C.F.R. § 404.1517.

8 3. Analysis 9 Plaintiff’s argument that the ALJ neglected his duty to develop the record by not ordering a consultative examination or consulting a medical expert falls short. (J. Mot.

11 at 21.) “[A]n ALJ’s duty to develop the record further is triggered only when there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of the evidence.” Agatucci, 721 F. App’x at 617 (internal citation omitted). Here, Plaintiff has not demonstrated that the record before the ALJ was ambiguous or inadequate to allow for proper evaluation. See Mayes v. Massanari, 276 F.3d 453, 460 (9th Cir. 2001) (holding the ALJ had no duty to develop the record because the record was “neither ambiguous nor inadequate”). In making his RFC determination, the ALJ reviewed treatment notes dealing with Plaintiff’s lupus, fibromyalgia, and rheumatoid arthritis (AR 22–23); degenerative disc disease and chronic pain (AR 23–24); left shoulder adhesive capsulitis (AR 24–25); ulcerative colitis (AR 25); and mental impairments (AR 25–26).

21 These records covered more than twelve months prior to Plaintiff’s September 6, 2019 application date. (AR 18–26, 274.) See also 20 C.F.R. § 404.1512(b)(1) (requiring the agency to develop the “complete medical history for at least the 12 months preceding the month in which you file your application”). The ALJ also considered Plaintiff’s testimony, prior administrative medical findings, and medical opinions, including state agency reports from the initial and reconsideration levels. (See generally AR 18–27.)

27 On December 6, 2019, at the initial level of review, Dr. S. Lee reviewed Plaintiff’s some limitations. (AR 132–134.) On July 9, 2020, at the reconsideration level of review, Dr. G. Spellman reviewed Plaintiff’s medical records from September 2019 through July 2020 and reached the same conclusion. (AR 166–168.) The ALJ found that “although the record reveal[ed] stable findings, the claimant’s chronic symptoms support[ed] a finding of limitations greater” than those assessed by the state agency doctors; thus, the ALJ determined Plaintiff had the RFC to perform “sedentary” rather than “light” work.

8 (AR 21, 27.) It was appropriate for the ALJ to make this RFC determination after considering Plaintiff’s testimony and all relevant evidence. See Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006). Ultimately, it is the plaintiff’s responsibility to prove disability and “provid[e] the evidence to be used in making the [residual functional capacity] finding.” Widmark v. Barnhart, 454 F.3d 1063, 1068 (9th Cir. 2006) (internal citations and quotation marks omitted); see also 20 C.F.R. §§ 404.1512(c); 404.1545(a)(3). Consultative examinations, which are discretionary, may be called for if there is evidence of an impairment but the evidence is insufficient to determine disability. See 20 C.F.R. § 404.1517; Rochin v. Barnhart, 204 Fed. App’x 601, 603 (9th Cir. 2006). Plaintiff has not demonstrated that the evidence before the ALJ—which included years of medical records, multiple medical opinions, and Plaintiff’s testimony— was insufficient to determine disability. Thus, the ALJ did not have a duty to develop the record further.

21 C. Whether the ALJ Formulated a Residual Functional Capacity that Reasonably 22 Accommodated Plaintiff’s Ulcerative Colitis 23 1. Summary of the parties’ arguments 24 Plaintiff argues the ALJ “failed to formulate a residual functional capacity that reasonably accommodated Plaintiff’s ulcerative colitis.” (J. Mot. at 25–26.) At the administrative hearing, Plaintiff testified she used the restroom eight to ten times a day, experienced fecal urgency, and suffered from accidents. (Id.; AR 48.) Plaintiff contends fourteen bowel movements a day and medication provided minimal relief. (Id.; AR 430.)

3 In April 2019, she had four to six painful bowel movements a day. (J. Mot. at 26; AR 420.) Finally, in June 2020, she sought emergency treatment for chronic diarrhea, reporting that she had diarrhea fourteen times a day. (J. Mot. at 26; AR 778.) Plaintiff argues the ALJ discounted her colitis and associated symptoms because she purportedly was not receiving treatment and had not seen a gastrointestinal (“GI”) doctor in years.

8 (J. Mot. at 26.) However, Plaintiff says the ALJ was mistaken because Plaintiff sought treatment for her colitis and frequent bowel movements during the alleged disability period. (Id.; AR 418–20, 430, 778.) Given the frequency and urgency of her bowel movements, Plaintiff argues that the ALJ should have calculated the RFC allowing for extra, longer bathroom breaks and closer proximity to a bathroom. (J. Mot. at 26.)

13 Plaintiff asserts remand is necessary for her colitis-related symptoms to be properly considered in the RFC determination. (Id.) 15 In response, the Commissioner argues the ALJ properly discounted Plaintiff’s testimony related to her ulcerative colitis, highlighting inconsistencies between the record and the medical reports cited by Plaintiff. (Id. at 27–28.) First, the November 2018 report was by a GI specialist; however, there is no record of Plaintiff seeing a GI specialist since then. (Id. at 27; AR 25, 430–33.) Second, Plaintiff’s April 2019 report of four to six bowel movements per day was to a nurse via telephone. (J. Mot. at 27; AR 25, 419–20.) Third, during the June 2020 emergency visit Plaintiff admitted she stopped taking her medication two weeks prior, and this could have caused her diarrhea episode. (J. Mot. at 27; AR 25, 778–83.) The Commissioner also notes how in 2020 and 2021, Plaintiff told Dr. Kotha about her ulcerative colitis and lymphocytic colitis, how she had taken various steroids on and off for four years, but then stopped following up with her GI specialist and treating her GI symptoms. (J. Mot. at 28; AR 25, 739–40, 742, 744, 758–59, 761, 763, 765, 767, 769, 771, 773, 775, 897, 899, 901, 903, 905, 907.) Dr. Kotha for her GI issues was inconsistent with her testimony that they were severe and/or debilitating.” (Id.) 4 2. Applicable law 5 It is the ALJ’s responsibility, not the claimant’s physicians, to determine an individual’s RFC. See 20 C.F.R. § 404.1545. RFC is a claimant’s ability to do work-related activities on a sustained basis (i.e., eight hours a day, five days per week) despite physical and mental limitations. Id. § 404.1545(a). Thus, it represents the maximum amount of work a claimant can perform based on all relevant evidence. Id. In formulating an RFC, the ALJ must consider all of the claimant’s impairments, including those that are non-severe. See 20 C.F.R. § 404.1520(e); see also Buck v. Berryhill, 869 12 F.3d 1040, 1048–49 (9th Cir. 2017) (quoting SSR 96-8P, 1996 WL 374184, at *5). “The RFC therefore should be exactly the same regardless of whether certain impairments are considered ‘severe’ or not.” Buck, 869 F.3d at 1048. Additionally, the agency must consider the claimant’s testimony regarding their capabilities and consider all relevant evidence, including medical records, lay evidence, and pain. See Robbins, 466 F.3d at 17 883; SSR 96-8P, 1996 WL 374184, at *5. The Ninth Circuit has generally held that “an RFC that fails to take into account a claimant's limitations is defective.” Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009); Samples v. Comm’r Soc. Sec. Admin, 466 Fed. App’x 584, 586 (9th Cir. 2012).

21 3. Analysis 22 After reviewing the record and the parties’ arguments, the Court finds that the ALJ erred by not accounting for Plaintiff’s history of ulcerative colitis and associated limitations in his RFC determination. The ALJ found Plaintiff had the RFC to perform sedentary work, subject to the following limitations: 26 [S]he is unable to climb ladders, ropes or scaffolds. She is unable to crawl.

She is able to occasionally climb ramps and stairs. She is able to occasionally balance, stoop, kneel and crouch. She is able to frequently 2 irritants. She is able to understand, remember, and carry out simple, routine tasks. She is able to have occasional interaction with the general 3 public and only occasional work-related, non-personal, non-social interaction with co-workers and supervisors. She is limited to jobs requiring only simple work-related decisions. However, she is able to keep 5 pace sufficient to complete tasks and meet quotas typically found in unskilled work. (AR 20–21.)

7 In reaching this determination, the ALJ explained he considered “all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence,” as well as the medical opinions and prior administrative medical findings. (AR 22.) With respect to Plaintiff’s ulcerative colitis, the ALJ said the following: 12 As for claimant’s ulcerative colitis, treatment notes from Dr. Kotha between February 2020 and November 2020 reveal that the claimant had a history 13 of diagnosis of ulcerative colitis and lymphcetic [sic] colitis. She reported 14 intermittent abdominal bloating, diarrhea and constipation. However, her abdomen was nontender, with no rebound or guarding. She also reported 15 that she has not seen her GI doctor for many years, and she was not 16 receiving any treatment for her colitis. (AR 25.)

17 Aside from this paragraph, the ALJ did not engage in any substantive discussion of Plaintiff’s ulcerative colitis and associated fecal frequency and urgency. By contrast, during the administrative hearing Plaintiff testified that she used the restroom approximately eight to ten times per day and sometimes suffered from accidents due to fecal urgency. (AR 48.) Consistent with this testimony, the medical record revealed the following: 23 • In June 2013, doctors noted that Plaintiff “developed diarrhea” and various medications (Imodium, Lomotil, Cipro, Pepto) did not help. Dr. Gupta diagnosed Plaintiff with “lymphocytic colitis . . . with subacute exacerbation 25 of diarrhea.” Plaintiff said she experienced an “increase in diarrhea: 8–10 times / day.” (AR 418.) • On June 11, 2014, Plaintiff reported experiencing five to six bowel 27 movements daily with medication (Uceris), and ten to twelve bowel 2 and accidents. (AR 419.) • On July 26, 2018, Dr. Frishberg noted that Plaintiff has “chronic 3 gastrointestinal issues” and a diagnosis for lymphocytic colitis. (AR 433.) • On November 26, 2018, Dr. Dever noted that Plaintiff has four to fourteen loose bowel movements daily and assessed her with “[c]hronic diarrhea, 5 onset since circa 2013.” He also noted that Plaintiff was previously diagnosed with lymphocytic colitis but “never responded to therapy for this.” (AR 430, 432.)

7 • On November 27, 2018, Plaintiff was noted as having “abdominal bloating” and “chronic diarrhea.” (AR 418.) • On April 18, 2019, Plaintiff reported an “ongoing issue with diarrhea x 6 9 years,” “four to six bowel movements daily,” and “horrid pain when stools move through.” (AR 420.) • On June 3, 2020, Dr. Friedberg noted Plaintiff’s “history of colitis with 11 chronic diarrhea” and that her diarrhea had gotten “much worse, going at 12 least 14 times today and associated with 7/10 crampy abdominal pain.” (AR 778.)

13 • On June 9, 2020, Dr. Roozchehr recorded that Plaintiff “went to ER 2 days 14 ago for diarrhea.” (AR 847.)

15 The Commissioner highlights inconsistencies in Plaintiff’s testimony about the frequency of her bowel movements: (1) four to fourteen daily bowel movements in November 2018; (2) four to six daily bowel movements in April 2019; and (3) diarrhea fourteen times in one day in June 2020. (J. Mot. at 27.) Because the ALJ did not identify inconsistencies as a reason for discrediting Plaintiff’s colitis testimony (AR 21–27), this reason is not properly before the Court. See Brown-Hunter, 806 F.3d at 492 (9th Cir. 2015) (the district court is “constrained to review the reasons the ALJ asserts”). The ALJ’s only asserted reason for discounting Plaintiff’s colitis and associated symptoms appears to be that she had not “seen her GI doctor for many years, and she was not receiving any treatment for her colitis.” (AR 25.) However, the record demonstrates Plaintiff had a history of ulcerative colitis, fecal frequency, urgency, and accidents dating back to June 2013, and that Plaintiff sought treatment for these issues during the alleged disability period. (See, e.g., AR 418–20, 430–33, 778, 847.)

2 404.1520(e); see also Buck, 869 F.3d at 1048–49. Nothing in the record, including the hypotheticals the ALJ posed to the vocational expert (AR 56–60), demonstrates that the ALJ seriously considered Plaintiff’s ulcerative colitis and associated limitations in crafting the RFC. Plaintiff’s colitis could significantly impact her ability to perform sustained activities in a work setting, such as if she needs to take frequent bathroom breaks or be located near a bathroom. The ALJ’s ambiguous explanation that Plaintiff’s testimony is “not entirely consistent” with the record is insufficient. See Treichler, 775 F.3d at 1103 (finding the use of boilerplate language falls short of the ALJ's responsibility to provide “a discussion of the evidence”). Because an “RFC that fails to take into account a claimant’s limitations is defective,” the Court concludes that the ALJ erred by failing to substantively consider Plaintiff’s ulcerative colitis. Valentine, 574 F.3d at 690; see also McCawley v. Astrue, 423 Fed. App’x 687, 689 (holding that RFC “may be the most critical finding contributing to the final . . . decision about disability”) (internal citations omitted). On remand, the ALJ should consider the evidence regarding Plaintiff’s ulcerative colitis and associated limitations when making the RFC determination.

17 D. Whether the ALJ Erroneously Departed from the Opinion of the State Agency 18 Psychiatrist Without Explanation 19 1. Summary of the parties’ arguments 20 Plaintiff argues the ALJ erroneously departed from the opinion of state agency psychiatrist, H.N. Hurwitz, M.D., without explanation. (J. Mot. at 29–31.) Specifically, the ALJ’s RFC “omitted Dr. Hurwitz[’s] assessment that Plaintiff should be limited to non- public jobs.” (J. Mot. at 29; AR 21–22.) Plaintiff contends the ALJ violated agency policy and Ninth Circuit precedent by not providing a “valid explanation supported by substantial evidence” for this omission. (J. Mot. at 30.) Further, Plaintiff argues this error was not harmless because the job of escort vehicle driver—one of the jobs the ALJ found Plaintiff could perform—necessarily requires public interaction. (J. Mot. at 30– driver. (Id.) 3 In response, the Commissioner says the ALJ misstated Dr. Hurwitz’s findings as including a limitation to “unskilled job[s] with no public contact;” however, the doctor actually found Plaintiff could perform “unskilled non public jobs” and she was “moderately limited” from interacting appropriately with the general public. (J. Mot. at 32; compare AR 27, with AR 129, 135.) Nevertheless, the Commissioner argues the ALJ’s misstatement was harmless because “he reasonably translated Dr. Hurwitz’s conclusions into limitations to jobs that require no more than simple, work-related decisions; a pace . . . typically found in unskilled work; and ‘occasional interaction with the general public.’” (J. Mot. at 32; AR 21–22, 27.) Further, the Commissioner argues that the ALJ included these functional limitations in his hypothetical question, and the vocational expert testified that a hypothetical individual fitting this profile could still perform three unskilled jobs that exist in significant numbers in the national economy.

15 (J. Mot. at 32; AR 57–58.) Because the ALJ’s hypothetical included all the limitations he found credible and supported by substantial evidence, the Commissioner argues the ALJ’s reliance on the expert’s testimony was proper. (J. Mot. at 32; AR 57–58.)

18 2. Applicable law 19 Plaintiff applied for supplemental security income on September 6, 2019. (AR 274.) Because this is after March 27, 2017, the Social Security Administration’s revised regulations for considering medical opinions apply. See 20 C.F.R. § 404.1520c (2017).

22 Under the revised regulations, the ALJ does “not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s).” Id. § 404.1520c(a).

24 Instead, the ALJ must the evaluate the persuasiveness of those opinions using the following factors: supportability, consistency, the relationship between the source and the claimant, the source’s specialization, and other factors such as the source’s knowledge of other evidence and whether there was subsequently submitted evidence.

2 404.1520c(b)(2). “Supportability” measures the degree to which objective medical evidence and supporting explanations buttress a medical finding. Id. §§ 404.1520c(c)(1); 416.920c(c)(1). “Consistency” is the extent to which an opinion or finding is consistent with evidence from other medical sources and non-medical sources in the record. Id. §§ 404.1520c(c)(2); 416.920c(c)(2). The more relevant the objective evidence and supporting explanations are to support the medical source, and the more consistent the source is with other evidence in the record, the more persuasive the medical opinion will be. See Zhu v. Comm'r of Soc. Sec., No. 20-3180, 2021 WL 2794533, at *6 (10th Cir. July 6, 2021). Under the revised regulations, “an ALJ's decision, including the decision to discredit any medical opinion, must simply be supported by substantial evidence.”

12 Woods v. Kijakazi, 32 F. 4th 785, 787 (9th Cir. 2022); see also Sloane S. v. Kijakazi, No. 21cv1043-MMA-MSB, 2023 WL 2017284, at *4 (S.D. Cal. Feb. 15, 2023).

14 3. Dr. Hurwitz’s opinion 15 Dr. Hurwitz evaluated Plaintiff’s medical file on February 26, 2020, opining that she “should be able to sustain with unskilled non public jobs.” (AR 129.) He noted that a psychological consultative examination revealed an “unremarkable” mental status examination and the medical source statement “considered no more than mild impairments.” (Id.) Dr. Hurwitz prepared a “Mental Residual Functional Capacity Assessment,” which assessed the following limitations: 21 • Understanding and memory limitations: Yes o Ability to understand and remember very detailed instructions: Moderately limited • Sustained concentration and persistence limitations: Yes o Ability to carry out detailed instructions: Moderately limited • Social interaction limitations: Yes o Ability to interact appropriately with the general public: Moderately 27 limited 2 The ALJ summarized Dr. Hurwitz’s opinion as limiting Plaintiff to an “unskilled job with no public contact” and found it “persuasive because it is consistent with and supported by the record as a whole.” (AR 27.) He abided by the revised regulations by addressing the consistency and supportability factors, albeit briefly. See 20 C.F.R. § 6 416.920c(b)(2). Given the ALJ’s endorsement of Dr. Hurwitz’s opinion, the only matter before the Court is whether the ALJ’s RFC reasonably accounted for the limitations identified by Dr. Hurwitz. The RFC needs to be consistent with the relevant assessed limitations, but not identical to them. See Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 1223 (9th Cir. 2010) (holding the ALJ did not err by rejecting a doctor’s evaluation that the plaintiff “could not perform simple, repetitive tasks in an environment without public contact or background activity” because he sufficiently incorporated the doctor’s observations into his RFC determination).

14 Here, Dr. Hurwitz found that Plaintiff had three moderate limitations: (1) ability to understand and remember very detailed instructions; (2) ability to carry out detailed instructions; and (3) ability to interact appropriately with the general public. (AR 134– 35.) The Agency considers a moderate limitation to mean the individual has a “fair” ability to function “independently, appropriately, effectively, and on a sustained basis.”

19 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.00F(2)(c). The ALJ appropriately incorporated Dr. Hurwitz’s limitations into his RFC determination by limiting Plaintiff to: (1) occasional interaction with the general public; (2) occasional work-related, non-personal, non- social interaction with co-workers and supervisors; and (3) jobs requiring only simple, work-related decisions. (AR 21.) Plaintiff argues that because Dr. Hurwitz also opined that Plaintiff “should be able to sustain with unskilled non public jobs” (AR 129), the ALJ erred by not including a specific limitation to “non-public jobs.” (J. Mot. at 29.)

26 However, the ALJ’s RFC sufficiently reduced the stress of social interactions by limiting Plaintiff to unskilled work and only occasional interaction with the public and co- 539 F.3d 1169 (9th Cir. 2008) (finding an ALJ’s limitation to “simple, routine, repetitive” work sufficiently accounted for medical-opinion evidence that claimant had moderate mental limitations); McIntosh v. Colvin, No. 16cv963-JAH-BGS, 2018 WL 1101102, at *8 (S.D. Cal. Feb. 26, 2018) (holding an ALJ did not err by failing to “explicitly include Plaintiff’s moderate limitations verbatim” because the RFC properly incorporated the limitations and was supported by substantial evidence); Menges v. Berryhill, No. 16cv1766-BAM, 2018 WL 1567786, at *8 (E.D. Cal. Mar. 30, 2018) (“A restriction to simple, repetitive tasks amply accounts for any moderate/mild limitations in mental or social functioning”). These limitations are also consistent with Dr. Glassman’s opinion that Plaintiff had only “mild impairment in her capacity to behave in a socially appropriate manner and to get along adequately with others.” (AR 20.)

13 Finally, even if the ALJ erred, Plaintiff has not demonstrated that such error was harmful. Tommasetti, 533 F.3d at 1038 (“The court will not reverse an ALJ's decision for harmless error, which exists when it is clear from the record that the ALJ's error was inconsequential to the ultimate non-disability determination”). Plaintiff argues that the job of “escort vehicle driver” involves public interaction, and therefore Plaintiff would be unable to perform this job. According to the Dictionary of Occupational Titles, an escort vehicle driver: 20 [d]rives vehicle equipped with warning lights and signs to escort trucks hauling mobile homes on public thoroughfares: Precedes escort and maintains specified distance between pilot vehicle and escort to provide 22 warning to other motorists and to clear traffic at locations. Communicates by two-way radio with truck and other pilot vehicle drivers to coordinate changes in speed and route, emergencies, or traffic congestion.

24 DICOT 919.663-022, 1991 WL 687886.

25 Based on this description, an escort vehicle driver must occasionally interact with other motorists to provide warnings. This level of social interaction appears consistent with a moderate limitation. Moreover, “[w]here evidence is susceptible to more than one commit legal error by failing to explicitly include a limitation to “non-public jobs” because his RFC otherwise incorporated Dr. Hurwitz’s limitations and is supported by substantial evidence. Woods, 32 F. 4th at 787.

5 E. Whether Plaintiff Could Perform a Significant Number of Jobs in the National 6 Economy 7 1. Summary of the parties’ arguments 8 Finally, Plaintiff argues the ALJ erred at step five because “Plaintiff was not able to perform a significant number of jobs in the national economy.” (J. Mot. at 33–36.) The vocational expert (“VE”) testified that a hypothetical individual with Plaintiff’s RFC could perform the jobs of document preparer, addresser, and escort vehicle driver. (AR 58.)

12 Plaintiff argues that contrary to the VE’s testimony, the jobs of document preparer (allegedly constituting 19,078 jobs in the national economy) and addresser (allegedly constituting 2,711 jobs in the national economy) are now obsolete. (J. Mot. at 34.)

15 Additionally, Plaintiff argues she is unable to perform the work of an escort vehicle driver because it involves public interaction and no readily available bathroom. (Id. at 36.) In response, the Commissioner argues that the ALJ was entitled to rely on the VE’s testimony as to the number of jobs existing in the national economy. (Id. at 36.)

19 Further, “even if there were not 19,078 document preparer and 2,711 addresser jobs in the national economy . . . there would remain 31,139 escort vehicle driver jobs available for Plaintiff.” (Id. at 37.) The Commissioner asserts that 31,139 jobs is a significant, nationwide number and supports the ALJ’s step-five finding of non-disability. (Id.) 23 2. Applicable law 24 At step five of the sequential evaluation process, “the Commissioner has the burden ‘to identify specific jobs existing in substantial numbers in the national economy that [a] claimant can perform despite [his] identified limitations.’” Zavalin v. Colvin, 778 27 F.3d 842, 845 (9th Cir. 2015) (quoting Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. Titles (“DOT”) and may also rely on the testimony of VEs who testify about specific occupations that a claimant can perform considering his or her RFC. See Zavalin, 778 F.3d at 845–46; Valentine, 574 F.3d at 689. “Given its inherent reliability, a qualified vocational expert’s testimony as to the number of jobs existing in the national economy that a claimant can perform is ordinarily sufficient by itself to support an ALJ's step-five finding.” Ford v. Saul, 950 F.3d 1141, 1160 (9th Cir. 2020) (citing Tackett v. Apfel, 180 8 F.3d 1094, 1100 (9th Cir. 1999)); see also Kilpatrick v. Kijakazi, 35 F.4th 1187, 1192–93 (9th Cir. 2022).

10 An ALJ may not “rely on a vocational expert’s testimony regarding the requirements of a particular job without first inquiring whether the testimony conflicts with the [DOT].” Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007); see also SSR 00-4p, 2000 WL 1898704 (Dec. 4, 2000). Pursuant to SSR 00-4p, the ALJ has an affirmative duty to inquire into the existence of potential conflicts between the VE’s testimony and the DOT, and obtain an explanation from the VE regarding any conflicts that do exist. See SSR 00-4p, 2000 WL 1898704; Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996, 1003 (9th Cir. 2015); Massachi, 486 F.3d at 1152–53. If there is conflict between the VE’s testimony and the DOT, “the ALJ must then determine whether the vocational expert’s explanation for the conflict is reasonable and whether a basis exists for relying on the expert rather than the DOT.” Massachi, 486 F.3d at 1153. Failure to conduct such inquiry is analyzed under the harmless error standard. See Zavalin, 778 F.3d at 848; see also Massachi, 486 F.3d at 1154 n.19 (stating that the error is harmless where “there [is] no conflict, or if the vocational expert ha[s] provided sufficient support for her conclusion so as to justify any potential conflicts.”).

25 3. The vocational expert’s testimony and ALJ’s treatment thereof 26 At the administrative hearing on June 4, 2021, the ALJ asked the VE to consider the following: 2 experience as the Claimant in this case with the following [RFC]. Please assume a hypothetical individual that can do work at a sedentary exertional 3 level. The individual can occasionally climb ramps and stairs; never climb ladders, ropes, scaffolds; occasional balance, stoop, kneel, crouch, never crawl. The individual would be further limited to frequent, overhead 5 reaching with the bilateral upper extremities. And the individual must avoid concentrated exposure to fumes, odors, gases, and other pulmonary irritants. The individual can understand, remember, and carry out simple, 7 routine tasks; have only occasional interaction with the general public; only occasional, work-related, non-personal, non-social interaction with coworkers and supervisors; and is limited to jobs requiring only simple, 9 work-related decisions. However, can keep pace sufficient to complete tasks and meet quotas typically found in unskilled work.

11 (AR 57–58.) The VE testified that a hypothetical individual with this profile could not complete Plaintiff’s past work. (AR 58.) However, the VE identified three sedentary, unskilled jobs that Plaintiff could perform in the national economy: (1) document preparer, 249.587-018; (2) addressing clerk, 209.587-010; and (3) escort vehicle driver, 919.633-022. (AR 58.) The ALJ determined that the VE’s testimony was “consistent with the information contained in the [DOT]” and a finding of “not disabled” was appropriate. (AR 28–29.)

18 4. Analysis 19 Plaintiff argues that the first two jobs—document preparer and addresser—have become obsolete since the DOT’s publication in 1991 and no longer exist in significant numbers in the national economy. (J. Mot. at 34.) The DOT states that a document preparer “prepares documents . . . for microfilming, using paper cutter, photocopying machine, rubber stamps, and other work devices.” DICOT 294.587-018, 1991 WL 24 672349. Additionally, the DOT defines an addresser as someone who “addresses by hand or typewriter, envelopes, cards, advertising literature, packages, and similar items for mailing.” DICOT 209.587-010, 1991 WL 671797. Plaintiff correctly points out that some Ninth Circuit courts have found these jobs to be obsolete. See, e.g., Skinner v. highlight its “archaic” DOT description); Rhoades v. Comm’r of Soc. Sec., Case No. 18- 1264, 2019 WL 3035517, *1 (E.D. Cal. July 11, 2019) (the agency seemingly agreed that the occupations of document preparer and addresser are obsolete on their face); Wood v. Berryhill, No. 17cv5430-RJB-BAT, 2017 WL 6419313, at *2 (W.D. Wash. Nov. 17, 2017) (“[T]he positions of document preparer and nut sorter do not exist in significant numbers in the national economy.”). Ultimately, the question of whether they are obsolete need not be addressed because the estimated number of document preparer jobs (19,078) and addresser jobs (2,711) are both below the 25,000 job threshold identified by the Ninth Circuit as “significant.” Gutierrez v. Comm’r of Soc. Sec., 740 11 F.3d 519, 529 (9th Cir. 2014); see also Beltran v. Astrue, 700 F.3d 386, 390 (9th Cir. 2012) (determining 1,680 jobs nationally was not significant).

13 The Commissioner argues that the 31,139 jobs estimated for escort vehicle driver alone constitutes a significant number of jobs. (J. Mot. at 37.) The Court agrees. In Gutierrez, the Ninth Circuit found that 25,000 nationwide jobs was a “close call” but constituted a significant number. 740 F.3d at 529. In this case, the more than 31,000 escort vehicle driver jobs easily exceeds the 25,000 job threshold. (AR 28.) Plaintiff does not argue that the job-number estimate is erroneous, nor does she identify any conflicts between the DOT and VE’s testimony. Although the document preparer and addresser positions do not exist in significant nationwide numbers, the ALJ has nonetheless met his step-five burden by finding that an individual with Plaintiff’s RFC could perform the job of escort vehicle driver with more than 31,000 jobs nationwide.

23 Zavalin, 778 F.3d at 845 (9th Cir. 2015); see also 20 C.F.R. § 416.920(g). Further, the ALJ reasonably relied on the VE’s testimony in reaching this conclusion. Ford, 950 F.3d at 25 1160. Once again, the Court notes that “[w]here evidence is susceptible to more than one rational interpretation, it is the ALJ’s conclusion that must be upheld.” Burch, 400 27 F.3d at 679. The Court does not address whether any of the jobs are obsolete.

2 The reviewing court may enter a “judgment affirming, modifying, or reversing” the Commissioner’s decision. 42 U.S.C. § 405(g). The reviewing court may also remand the case to the Social Security Administration for further proceedings. Id. The reviewing court has discretion in determining whether to remand for further proceedings or award benefits. See Salvador v. Sullivan, 917 F.2d 13, 15 (9th Cir. 1990); McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). Remand for further proceedings is warranted where additional administrative proceedings could remedy defects in the decision. See Kail v. Heckler, 722 F.2d 1496, 1497 (9th Cir. 1984). Remand for the payment of benefits is appropriate where no useful purpose would be served by further administrative proceedings, where the record has been fully developed, or where remand would unnecessarily delay the receipt of benefits to which the disabled plaintiff is entitled. See Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); Bilby v. Schweiker, 762 F.2d 14 716, 719 (9th Cir. 1985); Kornock v. Harris, 648 F.2d 525, 527 (9th Cir. 1980).

15 Here, Plaintiff argues the ALJ’s decision was not supported by substantial evidence and thus the Court should “remand this case for further administrative proceedings.” (J. Mot. at 38.) Defendant asks the Court to affirm the Commissioner’s final decision. (Id.) The Court finds that remand is warranted because additional administrative proceedings could remedy the defects in the ALJ’s decision. Specifically, the Court RECOMMENDS that, upon remand, the ALJ: (1) reevaluate Plaintiff’s allegations of pain and physical dysfunction and specifically identify which portions of it, if any, the ALJ finds not credible and why; (2) consider Plaintiff’s ulcerative colitis and associated limitations when making the RFC determination; and (3) conduct a new sequential analysis considering the above and all of the evidence in the record.

25 For the foregoing reasons, the Court RECOMMENDS that Judgment be entered REVERSING the decision of the Commissioner and REMANDING this matter for further administrative proceedings pursuant to 42 U.S.C. § 405(g).

1 IT IS ORDERED that no later than September 6, 2023, any party to this action may || file written objections with the Court and serve a copy on all parties. The document ||should be captioned “Objections to Report and Recommendation.”

4 IT IS FURTHER ORDERED that any reply to the objections shall be filed with the Court and served on all parties no later than September 13, 2023. The parties are || advised that failure to file objections within the specified time may waive the right to 7 those objections on appeal of the Court’s order. See Turner v. Duncan, 158 F.3d 8 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153, 1157 (9th Cir. 1991).

9 IT IS SO ORDERED.

10 ||Dated: August 25, 2023 = _ 2 FF D Honorable Michael S. Berg United States Magistrate Judge