1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 EUREKA DIVISION 7 8 LANH H.,1 Case No. 23-cv-03727-RMI

9 Plaintiff, ORDER RE: MOTIONS FOR 10 v. SUMMARY JUDGMENT

11 KILOLO KIJAKAZI, et al., Re: Dkt. Nos. 13, 15 12 Defendants.

13 14 Plaintiff seeks judicial review of an administrative law judge (“ALJ”) decision denying his 15 application for disability benefits under Title II of the Social Security Act. See Admin. Rec. at 1.2 16 The Appeals Council of the Social Security Administration declined to review the ALJ’s decision. 17 Id. As such, the ALJ’s decision is a “final decision” of the Commissioner of Social Security, 18 appropriately reviewable by this court. See

(g), 1383(c)(3). Both parties have 19 consented to the jurisdiction of a magistrate judge (Docs. 6, 8) and both parties have moved for 20 summary judgment (Docs. 13, 15). For the reasons stated below, Plaintiff’s Motion for Summary 21 Judgment is GRANTED and Defendant’s Cross-Motion for Summary Judgment is DENIED. 22 LEGAL STANDARDS 23 The Social Security Act limits judicial review of the Commissioner’s decisions to final 24 decisions made after a hearing.

(g). The Commissioner’s findings “as to any fact, 25

26 1 Pursuant to the recommendation of the Committee on Court Administration and Case Management of the Judicial Conference of the United States, Plaintiff’s name is partially redacted. 27 1 if supported by substantial evidence, shall be conclusive.”

A district court has limited scope 2 of review and can only set aside a denial of benefits if it is not supported by substantial evidence 3 or if it is based on legal error. Flaten v. Sec’y of Health & Human Servs.,

(9th 4 Cir. 1995). The phrase “substantial evidence” appears throughout administrative law and directs 5 courts in their review of factual findings at the agency level. See Biestek v. Berryhill,

1148, 1154 (2019). Substantial evidence is defined as “such relevant evidence as a reasonable 7 mind might accept as adequate to support a conclusion.”

at 1154 (quoting Consol. Edison Co. 8 v. NLRB,

(1938)); see also Sandgathe v. Chater,

(9th Cir. 9 1997). “In determining whether the Commissioner’s findings are supported by substantial 10 evidence,” a district court must review the administrative record as a whole, considering “both the 11 evidence that supports and the evidence that detracts from the Commissioner’s conclusion.” 12 Reddick v. Chater,

(9th Cir. 1998). The Commissioner’s conclusion is upheld 13 where evidence is susceptible to more than one rational interpretation. Burch v. Barnhart, 400

, 679 (9th Cir. 2005). 15 BACKGROUND 16 Plaintiff is a thirty-nine-year-old man with a bachelor’s degree in computer science and a 17 minor in mathematics. AR at 38–39. With this education, he built a respectable career in the tech 18 industry, serving as a helpdesk and logistics manager for Yelp before becoming a production 19 services manager at another company, SMARSH INC, in 2018.

at 42–43, 251. In this 20 position, Plaintiff earned an annual salary of $140,000 and was eligible for performance bonuses 21 up to an annual total of $14,000.

. 22 Plaintiff’s life began to unravel in 2019. Before then, he had been diagnosed with 23 insomnia and experienced some seizures, but neither condition interfered with his ability to work. 24 AR at 42, 547. In January of 2019, however, he began experiencing “significant anxiety, 25 difficulty sleeping, ongoing conflict with [his] fiancé, . . . depressed mood, anhedonia, low 26 energy/concentration[],” and feeling of hopelessness. AR at 361. Plaintiff would later indicate 27 that he was stressed “partly from [his] job” and that when stressed, he would be unable to sleep. 1 On April 24, 2019, Plaintiff was involved in a car accident. AR 335. Medical records 2 indicate that Plaintiff suffered no apparent injuries in the crash and did not think his head had been 3 injured or that he had lost consciousness.

at 337–38. However, Plaintiff reports that after the 4 crash, “I was not able to function as I normally did before. My performance dropped significantly. 5 My interaction with people was barely there.”

. He later attributed part of this to 6 difficulty remembering people and places.

. As a result of Plaintiff’s declining 7 performance, SMARSH terminated his employment in late June of 2019.

, 8 536. 9 In the days following his firing, Plaintiff displayed “significant depressive and anxiety 10 symptoms” and an “extremely tangential” thought process during evaluations. AR at 368. He told 11 one psychologist that he had been “up for 5 days tracking [his] fiance’s every move” and found 12 “comfort in tracking her. It’s an admitted obsession.”

. At the same visit, he noted that 13 he “put things together that may not come together” when digging into his fiancee’s activities.

14 His primary-care provider prescribed him Lexapro for his worsening anxiety and advised him to 15 see a mental health provider.

. While his anxiety was reported to have improved 16 shortly after he began medication, by July 11, his anxiety was noted as “deteriorated.”

at 552– 17 54. On July 21, it was noted as “improved but still high.”

. At some point, Plaintiff was 18 also prescribed the antidepressant trazodone.

. 19 While Plaintiff spoke to several mental health providers within weeks of being fired, he 20 never established a treating relationship with any of them. The first therapist he saw was unable to 21 complete an assessment interview because Plaintiff “was in distress about getting fired from [his] 22 job and was difficult to redirect.” AR at 366. Shortly afterwards, Plaintiff told another doctor that 23 he “did not connect well” with the first therapist and was “seeking out [a] new therapist he feels he 24 can trust.”

. Another therapist noted Plaintiff as “seeing various [behavioral health] 25 providers for one-shot counseling[,]” opining that he did “not appear to be psychiatrically or 26 behaviorally stable and has yet to have a second therapy app[ointmen]t with a psychologist.”

27 at 353. A few days later, a third therapist noted that Plaintiff “has been seeing various [behavioral 1 another provider, which Plaintiff attributed to his own “trust issues[.]”

. 2 Of all the psychologists Plaintiff spoke to, only Dr. Jennifer Kirkland had more than one 3 visit with Plaintiff. After the first visit, on July 9, 2019, she noted that Plaintiff “may be better 4 served in an IOP or partial hospitalization setting.” AR at 353. At a second visit with Dr. 5 Kirkland three weeks later, Plaintiff reported poor self-care, the inability to sleep for days on end, 6 “ongoing obsessive cyber tracking of fiancé and near global mistrust of others.”

. Dr. 7 Kirkland opined that “[g]iven the severity of [symptoms] that have negative impact on [Plaintiff’s] 8 functioning with no improvement with start of medication, [Plaintiff] would be best served in the 9 community where more comprehensive services are available.”

The record does not reflect a 10 third visit with Dr. Kirkland. 11 In the meantime, Plaintiff also began to complain of cognitive symptoms. In the weeks 12 after his firing, he reported low energy, lack of motivation, and difficulty concentrating to multiple 13 providers. AR at 345, 361, 368. On July 11, 2019, Plaintiff complained of memory loss and was 14 referred to a neurologist for evaluation.

. The neurologist, Dr. Barry Mann, noted that 15 Plaintiff lost one point in the “memory” category on a mini mental status examination.

. 16 Plaintiff complained to Dr. Mann of “[c]hronic anxious depression + insomnia, with increasing 17 memory problems”.

. Dr. Mann described this as an “[i]diopathic cognitive 18 impairment” that “could be due to insomnia + depression” and noted the “need to r[ule] o[ut] 19 stroke/ms/hydrocephalus”.

. To that end, Dr. Mann ordered an MRI.

The MRI, 20 taken on August 9, 2019, did not reveal any abnormal findings.

. 21 Dr. Mann continued to treat Plaintiff’s cognitive conditions from that point forward. In 22 August of 2019, Dr. Mann gave a diagnosis of “Chronic anxious depression, cognitive decline” 23 despite Plaintiff scoring a perfect 30 points on a mini mental status exam.

. Plaintiff 24 also reported a new symptom: “nocturnal shaking spells witnessed by fiancé”.

These were not 25 accompanied by daytime loss of consciousness or the tonic-clonic movements that characterize 26 typical seizures; however, they did interfere with Plaintiff’s ability to sleep. Dr. Mann’s notes 27 show that he wondered whether Plaintiff’s cognitive deficits were psychogenic, epileptic, or from 1 normal.

. However, the results contained the following disclaimer: “Please note that a 2 normal EEG may not exclude the possibility of a seizure disorder. Clinical correlation is advised.” 3

. Additionally, while Plaintiff’s seizures were nocturnal and happened in bed, Plaintiff 4 was not asleep during the EEG.

5 In October of 2019, Plaintiff reported 1 to 2 limb tremors per week interrupting his sleep. 6 AR at 498. After speaking to Plaintiff’s fiancée, Dr. Mann determined the movements were tonic- 7 clonic after all, but was still unsure whether the shaking spells were epileptic.

Nevertheless, 8 he prescribed the anti-seizure drug Depakote. At this time, Plaintiff scored 29 out of 30 points on 9 a mini mental status exam, missing one point for attention. Plaintiff also reported forgetfulness 10 during the day: “loses keys, forgets where parked.”

11 In early 2020, Plaintiff reported fatigue and mild disorientation in the morning and a 12 daytime urge to nap most days; he often took an afternoon nap. AR at 497. The Depakote 13 initially proved helpful at preventing prolonged tonic-clonic shaking spells while Plaintiff slept, 14 but he still experienced nightly 10-second “tremor spells” when falling asleep.

By the latter 15 half of the year, the longer shaking spells had returned at their previous frequency of once or twice 16 per week, and Dr. Mann increased Plaintiff’s Depakote dosage.

Dr. Mann also noted that 17 Plaintiff’s “[c]oncentration still feels poor” and that while Plaintiff was attempting to re-apply to 18 college, he would forget to follow up on his applications. Plaintiff continued to score 29 out of 30 19 on the mini mental status exams, generally losing a point in the “memory” category.

20 At the same time, a sleep test revealed that Plaintiff had sleep apnea, so he was prescribed 21 a CPAP machine. AR at 496. However, Plaintiff experienced delays in receiving the machine. 22

Dr. Mann prescribed trazodone to increase the quality of Plaintiff’s sleep. When the machine 23 arrived, however, Plaintiff could not tolerate CPAP, and Dr. Mann referred him to a sleep 24 specialist.

Plaintiff reported the following symptoms to the sleep specialist: “wakes 25 unrefreshed”, “drowsiness when driving”, and “daytime sleepiness” necessitating “daily afternoon 26 naps[.]”

. The sleep specialist noted that the consequences of untreated sleep apnea 27 “include excessive daytime sleepiness/fatigue [and] cognitive dysfunction[.]”

. 1

. In the meantime, the humidification stopped working on Plaintiff’s CPAP machine and 2 he reported difficulty sleeping with it on.

. 3 In August 2020, Plaintiff filed the instant application for Social Security benefits. AR at 4 262. In it, he complained of poor concentration and focus; lost, incorrect, or unreliable memories; 5 seizures during sleep; stoppage of breath during sleep; and the inability to keep a normal sleep 6 schedule or stay awake during the day.

at 255–56. He noted that he was often too exhausted to 7 get out of bed, but at other times would suffer from restlessness.

. He said he prepared 8 meals weekly, specifically “cereal & milk or fruits or sandwich”, and that this took him 30 to 60 9 minutes; he said that “[a]ll attempts to cook or heat food burned[.]”

. He reported that 10 his chores consisted of dishes (daily), laundry (monthly), and watering plants (5 days per week). 11

He said that he needed encouragement to do the laundry and water the plants and that he did 12 not do more chores due to “Extreme Exhaustion or asleep due to medi[c]ation side effects[.]”

13 He said that he went outside only when necessary due to fatigue and did not drive due to a 14 previous seizure while driving.

. He said that he could shop for food and necessities, but 15 that he would “always go in forgetting why I went and 30–60 minutes later remember what it was, 16 at least once a week.”

He said that “reading and watching TV seems like it[‘]s all new or déjà 17 vu” and that “what I hear is not always what I heard or what is said does not always match what I 18 wrote in my notes[.]”

. However, he said that he could eat, shop for fruit, and walk with 19 other people and patronize food banks, churches, and pharmacies.

He gave the upper limit of 20 his attention span as 30 minutes, stating that he would “miss at least a step or two unintentionally”, 21 but said that he could follow spoken instructions “ok” if he heard them correctly.

. He 22 said that SMARSH fired him due to problems getting along with team leaders of other 23 departments and requested that the SSA inquire for more details.

He said that he handled 24 stress poorly due to his depression and anxiety and recounted fears ranging from the fairly rational 25 (loss of housing and insurance, inability to work or go back to school) to the possibly irrational 26 (people failing to accept him if they knew of his disability, dying alone and unmissed, dying 27 suddenly in his sleep) to the paranoid (his teenage children not being his).

. In closing, 1 page 4 times while putting the application together.

. 2 In January of 2021, Plaintiff was evaluated by Dr. Aparna Dixit to determine whether he 3 was eligible for state disability benefits. AR at 514. He reported that he had not had a seizure for 4 several months, that he was still awaiting a replacement for his CPAP machine, and that he had 5 problems with short-term retention and concentration.

He also reported “nervousness, 6 restlessness, poor frustration tolerance, and feeling of helplessness.”

However, he indicated 7 that he was not receiving therapy or counseling.

. He reported that he could do some 8 household chores, “but only when he has better energy.”

He said he could not go grocery 9 shopping by himself, had not driven since the April 2019 crash (which he blamed on “medication- 10 induced drowsiness”), and could only cook a few simple microwaved meals.

Dr. Dixit noted 11 that Plaintiff’s ability to give an account of his symptoms was hampered by “some limitations 12 from his cognitive deficits[.]”

. Indeed, Plaintiff was unable to complete the patient 13 history form.

. 14 Dr. Dixit noted that Plaintiff appeared tired, was “remarkably anxious”, gave one-word 15 answers where elaboration would have been helpful, had a “disorganized and rambling” thought 16 process which “require[d] frequent re-direction”, and showed signs of “moderate psychomotor 17 retardation[.]” AR at 515. However, Dr. Dixit noted no signs of a formal thought disorder, 18 hallucinations, or delusions. After conducting a battery of IQ and memory tests, Dr. Dixit 19 assessed Plaintiff’s working and short-term memory as “impaired” and noted that Plaintiff, who 20 had earned a math minor, was “unable to perform most simple mathematical problems[.]”

21 Overall, Dr. Dixit observed “[m]oderate cognitive deficits . . . commensurate with a cognitive 22 disability” and noted that this disability “adds to [Plaintiff’s] dearth of coping skills[.]”

. 23 While Dr. Dixit believed that Plaintiff would have no difficulty remembering and following 24 simple instructions, Dr. Dixit assessed plaintiff as being moderately impaired at retaining and 25 following complex or detailed instructions, working with the public or other employees, and tasks 26 requiring mental flexibility. Further, Dr. Dixit assessed that Plaintiff was markedly impaired in 27 his ability to maintain pace and persistence over 2-hour increments.

1 Clinic. AR at 612. Plaintiff reported that his depression and anxiety symptoms prevented him 2 from thinking and focusing and that he was “worried all [the] time,” but that Lexapro helped the 3 symptoms.

He also reported that he “hears things from tv, message in the background noise, 4 here and there [for] 3 years” and that he “[h]ears voices sometimes.” He expressed interest in a 5 neuropsychological evaluation to rule out ADHD.

However, over a month later, Dr. Mann’s 6 notes reflect“[i]nsurance problems preventing completing his cognitive evaluation.”

. 7 While Plaintiff still reported that his activities of daily living were independent, he also reported 8 that “he cannot do his usual job due to easy distractibility, fatigue and poor memory—cannot 9 multi-task.”

In addition, his CPAP machine remained uncomfortable and he believed he 10 needed a new device. Dr. Mann assessed Plaintiff as suffering from “idiopathic cognitive 11 problems – likely combination of psychogenic and sleep apnea side effects. Cannot rule out adult 12 Attention Deficit Disorder or other type of early onset brain degenerative disease superimposed. 13 As we have been unable to get outp[atien]t NeuroPsych Testing authorized, I recommend we 14 consult a university-level Memory Disorder Clinic[.]”

15 Roughly a month later, Plaintiff reported to his psychiatrist at Schuman-Liles that he had 16 been kept up for three days straight by his depression and anxiety symptoms. AR at 611. Because 17 his psychiatrist suspected Plaintiff was either bipolar or schizophrenic, Plaintiff was prescribed 18 Risperdal, an anti-psychotic used to treat both conditions, and Seroquel, used to treat these 19 disorders as well as major depression.

At the same time, Plaintiff’s doses of Lexapro and 20 Trazadone were being decreased.

21 On July 16, 2021, Plaintiff was driving when he either fell asleep at the wheel or 22 experienced a seizure, causing a crash. AR at 536, 557. He was taken to the emergency room and 23 underwent a CT scan, which showed no abnormal results.

. 24 In late July of 2021, Plaintiff obtained a neurological evaluation from Dr. Lisa Griffin. AR 25 at 535. Plaintiff was accompanied during the evaluation by his former fiancée, whom he had 26 married in the interim.

Dr. Griffin listed Plaintiff’s “[c]hief complaints” as epilepsy, memory 27 problems, hypertension, and sleep apnea.

Plaintiff reported that his shaking spells had 1 spells before falling asleep.

at 535–36. He also reported that he often felt that his imagination 2 was taking the place of real history and could not remember details well.

. Plaintiff and 3 his wife explained that Plaintiff’s wife did the cooking and the general housework.

Plaintiff 4 said that he slept during the day and was awake at night due to insomnia, and that he spent much 5 of his time sleeping or staring at the ceiling, not wanting to bother anyone at night by doing 6 significant activities.

7 Dr. Griffin conducted a mental status examination of Plaintiff, which was normal except 8 for one memory exercise he was unable to complete. AR at 539. Based on the same exam, Dr. 9 Griffin observed no inability to follow simple or complex instructions.

Dr. Griffin ultimately 10 diagnosed Plaintiff with “[m]emory dysfunction,” noting that he “had decent but not perfect 11 memory on limited direct testing.” She also endorsed a diagnosis of “Probable nocturnal 12 epilepsy”, but wondered whether Plaintiff’s seizures were really epileptic in nature based on a 13 reenactment by his wife which did not look tonic-clonic.

14 In August 2021, Plaintiff reported to his psychiatrist at Schuman-Liles that he no longer 15 heard voices, but that the medications were making him “very sleepy[.]” AR at 611. Accordingly, 16 his Seroquel dosage was decreased.

A mental status exam at Schuman-Liles noted Plaintiff’s 17 concentration as being “[w]ithin normal limits.”

. Later that month, Plaintiff reported to 18 Dr. Mann that he continued to suffer from concentration problems and was now experiencing 19 morning headaches, so Dr. Mann prescribed venlafaxine to improve his energy and reduce his 20 headaches.

. Plaintiff also underwent a second EEG, which was normal, although Dr. 21 Mann noted that Plaintiff was on Depakote.

22 Also in August 2021, the state disability adjudicators determined that Plaintiff was not 23 disabled. AR at 112. The state adjudicators found that the “marked limitation” endorsed by Dr. 24 Dixit was “not fully supported” because it was “without substantial evidence from [the] medical 25 source who made it” and “an overestimate of the severity of the individual’s 26 restrictions/limitations,” but did not elaborate further.

, 74–76, 83. They also noted that 27 Plaintiff’s reported “symptoms and intensity of symptoms are not fully supported by objective 1 “able to sustain a work schedule with simple tasks” based on his activities of daily living; the 2 location, duration, frequency, and intensity of Plaintiff’s pain and/or symptoms; precipitating and 3 aggravating factors; Plaintiff’s medications; and Plaintiff’s other treatment.

. The 4 examiners did not explain more precisely what about these factors persuaded them. See

5 In mid-September 2021, Plaintiff saw Dr. Mann again. AR at 557. This time, Plaintiff 6 only scored 26 points out of 30 on the mini mental status examination, losing points for orientation 7 and attention; his previous score had been 27 out of 30.

Plaintiff reported that his CPAP 8 machine was not working and that he was having trouble contacting a sleep specialist. He also 9 reported that the venlafaxine reduced his headache but did not help his fatigue or concentration 10 problems. By this time, Plaintiff was no longer taking Lexapro, but he continued on Risperidone 11 and Trazodone and had been prescribed another insomnia drug, quetiapine. Dr. Mann assessed 12 that Plaintiff’s cognitive problems were “likely due to polypharmacy + depression + untreated 13 sleep apnea” and noted that “[h]opefully they can reduce the sedating meds[.]”

14 In February 2022, Plaintiff was able to consult sleep specialist Dr. Shehla Huseni. AR at 15 579. He told Dr. Huseni that he was “no longer using [his] cpap machine due to [a] recall.”

16 Dr. Huseni planned to conduct a home sleep study on Plaintiff.

A month later, Plaintiff 17 complained to his primary care provider that he had gotten sleepier over the past 2 years, that he 18 was sleeping more but that the sleep was of poor quality, that his seizure condition persisted, and 19 that he continued to have memory issues.

. 20 In April 2022, Plaintiff attempted to undergo a psychological evaluation with Dr. Kristen 21 Wortman, but the testing was discontinued. AR at 558. Dr. Wortman’s notes reflect that Plaintiff 22 “was unable to participate in [the] testing process” and “could not participate adequately.”

at 23 558–59. Plaintiff testified that “I was not able to focus during the meeting. I kept falling asleep. I 24 kept waking myself up to conduct her evaluation but . . . she saw for herself that I was not able to 25 do it.”

. The evaluation was aborted one hour into the planned four-hour session.

at 26 52–53. 27 In support of Plaintiff’s Social Security benefits application, Dr. Mann completed a 1 probable sleep apnea not fully treated[, and] cognitive decline of uncertain cause” and noted that 2 “sleep apnea, depression and medications for depression all contribute[.]” AR at 560. Dr. Mann 3 stated that Plaintiff suffered an average of two seizures per week, which occurred during sleep and 4 were mainly triggered by stress.

at 560–61. He further stated that Plaintiff suffered confusion 5 and exhaustion for 1–2 hours post-seizure and was “more fatigued the next day[.]” He said that 6 Depakote provided “[p]ossibly better control of nocturnal spells, but now [Plaintiff] sleeps alone, 7 so unsure.”

. Dr. Mann estimated that Plaintiff would miss work for 4 days per month 8 due to seizures.

. He also noted that “[s]leep apnea makes [Plaintiff] tired all day + 9 impairs concentration. Depression also causes these symptoms. He is seeing a sleep specialist 10 and a psychiatrist to deal with these issues.”

However, Dr. Mann noted that “[n]eurologic 11 testing in office still shows good concentration in low stress environment[.]”

12 The most recent medical documents in the record date to May 19, 2022. On that day, 13 Plaintiff had an appointment with Dr. Huseni. Plaintiff reported that he was not currently using 14 his CPAP machine and could not tolerate it. AR at 574. Per Dr. Huseni: “He says he is very tired 15 and sleepy all the time. He says that one time . . . he fell asleep while laughing, fell to the floor 16 while on the couch and went to sleep. This was just last week.”

Plaintiff reported that he had 17 stopped taking his insomnia medication, quetiapine, because he had run out of it. He also reported 18 auditory hallucinations, “like the tv is on when it[‘]s not[.]” Dr. Huseni assessed Plaintiff as 19 suffering from mild sleep apnea with a “history of excessive daytime sleepiness and possible 20 symptoms of narcolepsy including possible cataplexy . . . , auditory hallucinations, and sleep 21 paralysis[.]” Dr. Huseni also diagnosed hypersomnia. Ultimately, Dr. Huseni determined that 22 Plaintiff should undergo a sleep study and should discontinue his medications in order to get an 23 accurate result.

Later that day, Dr. Mann agreed that Plaintiff could be safely tapered off 24 Depakote for the study.

. Further, Dr. Mann decided that in the absence of a witnessed 25 seizure, Plaintiff should stay off Depakote until a sleep disorder was ruled out as the cause of 26 Plaintiff’s symptoms.

27 At the ALJ hearing, Plaintiff testified largely consistent with his Social Security 1 calls and scheduling appointments, but only did that work for one day. AR at 40. The next day, 2 he fell asleep and was unable to answer the calls.

He indicated that his seizures got worse 3 beginning on April 24, 2019, the day of his first car accident, and that his work performance had 4 deteriorated after that point.

. He reported being “unable to control my sleep. I’m still 5 getting seizures. And I’m mostly overwhelmed with headaches, and I’m unable to focus and 6 remember the things that I’m supposed to do, and I require reminders and . . . I keep falling asleep 7 at random times throughout the day. I cannot control it.”

. He reported getting two or 8 more seizures per week while he was asleep, but that because his sleep happened randomly 9 throughout the day, so did the seizures.

He said that after seizures, it could take him up to an 10 hour to get out of bed.

. He also testified that he believed the seizures impacted his 11 memory, stating that “most days I don’t remember what’s going on the whole day or the whole 12 week. I’m losing days in my life. I don’t know where they’ve gone.”

He reported that he was 13 still trying to get a CPAP machine that worked for him, but was unable to keep a CPAP mask on 14 his face due to rolling over and sleepwalking.

. Additionally, because he fell asleep at 15 random, he would not always be able to put a CPAP mask on before falling asleep.

For this 16 reason, he was concerned about Dr. Mann’s theory that sleep apnea caused the seizures.

. 17 He said that he did not go anywhere on a regular basis, would at most take a four-block walk, and 18 could not shop for groceries unless his wife accompanied him.

. He testified that “I still 19 have the same problems with . . . or without medications” but noted that he had “started having 20 serious seizures again” while his seizure medication was reduced for the sleep study, which would 21 take place after the ALJ hearing.

. 22 A vocational expert opined that Plaintiff was incapable of performing his past work. AR at 23 57. The ALJ posed the hypothetical of a person unable to drive commercially, climb ladders or 24 scaffolds, or work at a strict production rate and who could only have limited exposure to hazards, 25 follow simple instructions, have limited interactions with others, make simple work-related 26 decisions, and tolerate occasional change in work location.

. The vocational expert said 27 that a person in this situation could work as a dishwasher, food service worker, or stock checker. 1 work if they were off-task for 20 to 25 percent of the work day.

2 THE ALJ’S DECISION 3 The ALJ engaged in the required five-step sequential evaluation process. AR at 17–26. At 4 step one, the ALJ determined Plaintiff had not performed substantial gainful activity during the 5 relevant period.

. At step two, the ALJ determined Plaintiff had the following severe 6 impairments: depression, anxiety, sleep apnea, and seizure disorder.

The ALJ noted that 7 Plaintiff had hypertension but found this impairment to be nonsevere.

. 8 At step three, the ALJ found that none of Plaintiff’s conditions met or equaled any listed 9 impairment. AR at 18. Specifically, the ALJ found that the record evidence did not reflect the 10 type or frequency of Plaintiff’s seizures in sufficient detail to qualify Plaintiff for Listing 11.02, 11 and that the seizures in the record were largely based off Plaintiff’s own reports.

Further, the 12 ALJ found that Plaintiff had no “marked” limitations and that two “marked” limitations were 13 needed to qualify for Listings 12.04 and 12.06.

at 18–19. Based on Plaintiff’s reported 14 activities, including “that he lived at home with family and he was able to walk, eat meals, and 15 shop with others,” the ALJ characterized Plaintiff’s limitations as “moderate.”

The ALJ said 16 that these conclusions were supported by Plaintiff’s “conservative course of treatment” and the 17 findings of the state disability examiners.

. 18 In formulating Plaintiff’s residual functional capacity (“RFC”), the ALJ determined that 19 Plaintiff could perform medium work as defined in

(c). AR at 19. The ALJ 20 determined that Plaintiff could only occasionally be exposed to hazards, was unable to drive a 21 vehicle commercially, should only be tasked with following simple instructions, could only 22 occasionally interact with others, could only make simple decisions, could only tolerate occasional 23 changes in work location, could not work at a strict production rate pace, and was unable to climb. 24

25 In reaching this determination, while the ALJ determined that Plaintiff’s “medically 26 determinable impairments could reasonably be expected to cause the alleged symptoms”, the ALJ 27 dismissed Plaintiff’s testimony about the intensity, persistence, and limiting effects of his 1 Specifically, the ALJ cited the extent of Plaintiff’s observed medical deficits, Plaintiff’s 2 “conservative” course of treatment, the extent of Plaintiff’s daily activities (namely, “his ability to 3 shop, walk with others, and do household chores with encouragement”), the fact that he collected 4 unemployment after his alleged onset date, and a normal EEG result.

at 20–21. While 5 Plaintiff’s treating neurologist, Dr. Mann, opined that Plaintiff’s poor concentration would impact 6 his ability to work and that Plaintiff would need to miss four days of work per month, the ALJ 7 dismissed this opinion because Plaintiff’s symptoms were caused in part by conditions which were 8 managed with medication (specifically, seizures and depression) and the record showed that 9 Plaintiff could remember and follow simple instructions.

at 22–23. And while Dr. Dixit, an 10 examining psychologist, opined that Plaintiff had a marked limitation on maintaining pace and 11 persistence for two hours, the ALJ dismissed this opinion as inconsistent with the state 12 consultants’ findings and Plaintiff’s “conservative” course of treatment.

at 23–24. 13 At step four, the ALJ found that Plaintiff could not complete his past relevant work as an 14 IT manager or data technician.

. At step five, the ALJ found that Plaintiff could perform 15 the representative occupations of dishwasher, food service worker, and stock checker.

. 16 The ALJ thus concluded that Plaintiff was not disabled.

. 17 DISCUSSION 18 Plaintiff claims that the ALJ improperly failed to credit Plaintiff’s subjective testimony 19 regarding his fatigue and mental dysfunction. Plaintiff further argues that the ALJ failed to 20 properly evaluate the opinions of Drs. Dixit and Mann. The Court will address these alleged 21 errors in turn. 22 Plaintiff’s Testimony 23 The ALJ gave four reasons for disbelieving Plaintiff’s testimony about his fatigue and 24 mental limitations: inconsistency with the objective medical evidence in the record, conservative 25 treatment, Plaintiff’s activities of daily living, and Plaintiff’s collection of unemployment benefits 26 after his onset date. The Court finds that none of these reasons is supported by substantial 27 evidence. 1 First, the ALJ claimed that “the extent of the medical deficits . . . did not entirely support 2 the extent of [Plaintiff’s] allegations[.]” AR at 20. The ALJ noted that Plaintiff’s “mental status 3 examinations are mostly normal,”

, but failed to assess whether the extent of the abnormal 4 findings was consistent with Plaintiff’s reported symptoms. Dr. Griffin diagnosed Plaintiff with 5 memory dysfunction based on his “decent but not perfect” showing on “limited direct testing,” 6 indicating that even modest tested deficiencies can signal an underlying problem. It also bears 7 noting that most of Plaintiff’s mental status exams were so-called “mini mental status exams,” that 8 Plaintiff’s scores on these exams declined over time, and that Plaintiff’s results on the longer-form 9 memory exams administered by Dr. Dixit were notably poor. It was error for the ALJ to discount 10 Plaintiff’s cognitive symptom testimony on the grounds that his mental status results were “mostly 11 normal” without accounting for the significance of any abnormal findings. 12 Similarly, the ALJ noted that Plaintiff “did not require intensive or emergent care.” AR at 13 21. This is true, at least as regards Plaintiff’s psychological problems3, but it is of minimal 14 relevance. First, Plaintiff’s cognitive problems—memory and attention impairments—are not of 15 the kind typically treated in an intensive or emergent setting. Second, even when Plaintiff’s 16 anxiety and depression reached a crisis point and providers feared that he would suffer a psychotic 17 break, they recommended treatment in the community because Plaintiff’s conditions were resisting 18 medication and a wider variety of services were available in the less-restrictive setting. In other 19 words, treatment in the community appears to have been recommended not because Plaintiff’s 20 anxiety and depression were mild, but because they were sufficiently severe and difficult to treat 21 that intensive or emergent treatment would have been ineffective. 22 The ALJ also pointed out Plaintiff’s normal EEG test results. However, those results 23 themselves noted that a normal EEG did not rule out the possibility of a seizure disorder, and Dr. 24 Mann opined that Plaintiff’s “seizure” symptoms may well be caused by a condition other than 25 epilepsy. Standing on their own, the normal EEG test results do not contradict Plaintiff’s 26 testimony about his condition. 27 1 Finally, when evaluating Plaintiff’s testimony about his fatigue, it appears the ALJ applied 2 the wrong standard. The ALJ’s opinion stated that “whenever statements about the intensity, 3 persistence, or functionally limiting effects of pain or other symptoms are not substantiated by 4 objective medical evidence, I must consider other evidence in the record to determine if the 5 claimant’s symptoms limit the ability to do work-related activities.” AR at 20. However, the 6 proper standard for evaluating subjective symptoms like pain and fatigue is a much more 7 deferential one: once the claimant presents objective medical evidence of an impairment which 8 could be expected to produce “some degree of the symptom”, and absent evidence of malingering, 9 “the ALJ can reject the claimant’s testimony about the severity of [the] symptoms only by offering 10 specific, clear and convincing reasons for doing so.” Ferguson v. O’Malley,

, 1199 11 (9th Cir. 2024). The reasons set forth in the ALJ’s decision, however, are not convincing (and 12 often not specific or clear) for the reasons described in this Order. 13 Accordingly, substantial evidence does not support the ALJ’s determination that Plaintiff’s 14 symptom testimony was inconsistent with the medical record. 15 2. Conservative Treatment 16 The ALJ also cited what she characterized as Plaintiff’s “conservative” course of treatment 17 to discredit Plaintiff’s testimony. However, the record does not contain substantial evidence that 18 Plaintiff’s treatment was “conservative.” 19 For instance, the ALJ asserted that “as of the consultative examination [by Dr. Dixit, 20 Plaintiff] was not being treated with medication[.]” AR at 19. While Dr. Dixit reported Plaintiff 21 as stating in early 2021 that Plaintiff was not taking any medication, the medical records before 22 the Court indicate that Plaintiff was taking several medications for his various conditions from 23 2019 to 2022. The ALJ acknowledged as much later in the decision, stating that Plaintiff’s 24 “seizure and depression conditions were managed with medication.” Id. at 23. Indeed, shortly 25 after the Dixit evaluation, Plaintiff told his psychiatrist that he was taking Lexapro and found it 26 helpful. The isolated hearsay statement of a man alleging cognitive and memory problems does 27 not constitute “substantial evidence” that Plaintiff was not being treated with medication in light 1 Dr. Dixit was more persuasive and reliable than all of the other record evidence, the ALJ failed to 2 explain how.4 3 The ALJ noted that Plaintiff had been encouraged to address his depression and anxiety 4 through “psychotherapy and counseling” as opposed to other (presumably less “conservative”) 5 treatments. AR at 19. However, psychotherapy and counseling are customary and generally 6 accepted treatments for anxiety and depression regardless of severity, not “conservative” 7 treatments reserved only for mild cases. The Mayo Clinic says that psychotherapy or counseling 8 is one of the “two main treatments for anxiety disorders,” the other being medications, which the 9 record indicates Plaintiff was also taking. Anxiety disorders – Diagnosis & treatment, MAYO 10 CLINIC, https://www.mayoclinic.org/diseases-conditions/anxiety/diagnosis-treatment/drc- 11 20350967 (last visited September 4, 2024). While the Mayo Clinic notes more treatment options 12 for depression, including hospitalization and electroconvulsive therapy, the first two treatments it 13 suggests are medications and psychotherapy. Depression (major depressive disorder) – Diagnosis 14 & treatment, MAYO CLINIC, https://www.mayoclinic.org/diseases- 15 conditions/depression/diagnosis-treatment/drc-20356013 (last visited September 4, 2024). Even 16 some of the more aggressive treatments, like partial hospitalization, rely in part on psychotherapy 17 to produce results. Id. Finally, as noted supra, Plaintiff’s treatment providers felt that 18 hospitalization would be less effective than treatment within the community. Therefore, it was 19 error for the ALJ to classify Plaintiff’s course of treatment as “conservative” on these grounds. 20 The ALJ stated that the record reflects only “rare occasions when the claimant seeks 21 mental health treatment[.]” AR at 21. The Court presumes that the ALJ is referring to 22 psychotherapy or counseling, as Plaintiff appears to have seen a neurologist and psychiatrist on a 23 consistent basis, sought additional mental evaluations as insurance coverage allowed, and 24 generally kept up with his mental health medications. Even focusing on psychotherapy or 25

26 4 The ALJ also asserts without elaboration that the medication treatment Plaintiff received was “conservative in nature.” AR at 20. As there is nothing obviously conservative about 27 Plaintiff’s course of pharmaceutical treatment (as there might be for, say, a person claiming 1 counseling, an examination of the record indicates that Plaintiff might have avoided such 2 treatment as a result of his anxiety or another paranoia-causing condition. He stated repeatedly in 3 2019 that he was having a hard time finding a therapist he could trust, also mentioning that he 4 experienced a “near-global” mistrust of others. His later application for Social Security benefits 5 revealed paranoid thoughts and fears. The Ninth Circuit allows an ALJ to consider “unexplained 6 or inadequately explained failure to seek treatment or to follow a prescribed course of treatment” 7 when evaluating a claimant’s credibility, but only when “there are no good reasons for this 8 failure.” Molina v. Astrue,

(9th Cir. 2012), superseded on other grounds by 9

(a). Further, the Ninth Circuit has suggested that “resistance . . . attributable 10 to [a claimant’s] medical impairment” may constitute a good reason for failing to pursue 11 treatment.

. The ALJ therefore erred in failing to account for the ways in which 12 Plaintiff’s anxiety might have affected his pursuit of psychotherapy or counseling. 13 Finally, the ALJ asserted that Plaintiff’s “seizure and depression conditions were managed 14 with medication[.]” AR at 23. However, there is no indication in the record that the medication 15 constituted “conservative treatment” or that more aggressive treatment options were available for 16 these conditions. Additionally, the record evidence indicates that Plaintiff’s medications may 17 contribute to his fatigue and cognitive problems, meaning that even if they effectively “manage” 18 these two specific conditions, they may not be improving Plaintiff’s condition as a whole. Finally, 19 the accurate study of Plaintiff’s other conditions required that he stop taking his seizure 20 medication indefinitely, meaning that Plaintiff’s seizures could not be “managed with medication” 21 as of the date of the ALJ’s decision. 22 For the foregoing reasons, substantial evidence does not support the ALJ’s characterization 23 of Plaintiff’s treatment as “conservative.” 24 3. Activities of Daily Living 25 The ALJ also discounted Plaintiff’s credibility based on his activities of daily living. The 26 ALJ stated that Plaintiff’s “ability to shop, walk with others, and do household chores with 27 encouragement does not support the extent of his limitations.” AR at 20. However, the Ninth 1 activities . . . does not in any way detract from her credibility as to her overall disability.” Orn v. 2 Astrue,

(9th Cir. 2007) (internal citation omitted). It has noted that “many 3 home activities are not easily transferable to what may be the more grueling environment of the 4 workplace, where it may be impossible to periodically rest or take medication.”

The Ninth 5 Circuit only allows the use of daily activities to discount claimant testimony in two circumstances: 6 where the daily activities contradict the claimant’s testimony, and where the claimant spends a 7 substantial part of their day performing physical functions which are transferable to a work setting. 8

9 Here, it is unclear which of the two grounds the ALJ is invoking, but neither ground would 10 be supported by substantial evidence. None of the activities the ALJ names are inconsistent with 11 Plaintiff’s alleged symptoms, especially considering Plaintiff’s description of his struggles while 12 performing them: he says that he frequently walks into stores and forgets why he came there, that 13 he cannot go grocery shopping on his own, that he only does a few simple household chores on an 14 infrequent basis (dishes once per day, laundry once per month, and watering plants five days per 15 week), and that he requires encouragement to do those chores. Further, whether or not the 16 physical functions involved are transferable to a work setting, the record does not reflect that these 17 activities took up a substantial portion of Plaintiff’s day. Therefore, the ALJ erred in using 18 Plaintiff’s activities of daily living to discount his testimony. 19 4. Collecting Unemployment Benefits 20 Finally, the ALJ discounted Plaintiff’s testimony regarding his symptoms because Plaintiff 21 collected unemployment benefits for a time after his alleged onset date, “which means he is 22 alleging disability while certifying to another government agency that he is looking for work[.]” 23 AR at 20. The only evidence the ALJ cites is Exhibit 8D, id. at 232, which reflects that Plaintiff 24 received unemployment insurance payouts but does not mention what, if anything, Plaintiff 25 certified to the state government. This is a critical omission: 26 while receipt of unemployment benefits can undermine a claimant’s alleged inability 27 to work full[-]time . . . the record here does not establish whether [Plaintiff] held 1 with his disability allegations. Thus, such basis for the ALJ’s credibility finding is not 2 supported by substantial evidence. 3 Carmickle v. Commissioner,

, 1161–62 (9th Cir. 2008). 4 For the foregoing reasons, the ALJ’s finding as to Plaintiff’s credibility was not supported 5 by substantial evidence. 6 Dr. Dixit’s Evaluation 7 While the ALJ generally found Dr. Dixit’s evaluation persuasive, she did not credit Dr. 8 Dixit’s finding that Plaintiff had a “marked limitation” in maintaining pace and persistence for two 9 hours. The ALJ dismissed this conclusion as “inconsistent with the record as a whole” because it 10 was “not consistent with the State agency psychological consultants’ findings” or “with the extent 11 of the claimant’s psychological treatment as detailed above.” AR at 20–21. The Court finds that 12 this purported “inconsistency” is not supported by substantial evidence. 13 First, the ALJ pointed to the state agency’s findings, which she described as “supported by 14 a narrative explanation with citations to the medical evidence in support of the findings[.]” AR at 15 23. However, as this Court has noted, the state agency’s “explanations” as relevant to the denial 16 of benefits were phrased in broad, conclusory language. And while the state agency did cite and 17 recount the medical evidence, it is generally unclear how the conclusion it reached on Plaintiff’s 18 pace and persistence limitation followed from the evidence cited. Therefore, this Court would not 19 characterize the state agency’s findings as adequately “supported.” The ALJ also stated that the 20 state agency’s findings “were consistent with the record as a whole, which showed generally 21 conservative management of the claimant’s conditions.”

However, as explained above, the 22 characterization of Plaintiff’s treatment as “conservative” is not supported by substantial evidence. 23 Social Security regulations provide that “supportability… and consistency . . . are the most 24 important factors we consider” when assessing “prior administrative medical findings[.]” 20

.1520c(b)(2). Because neither of these “most important factors” supports the weight 26 the ALJ gave to the portions of the state agency decision that contradict Dr. Dixit’s report, it was 27 error to discount Dr. Dixit’s opinion on the basis of the state agency’s opinion. 1 such a limitation would be inconsistent with the extent of the claimant’s psychological treatment. 2 Putting aside that the ALJ has not articulated sufficient grounds for characterizing Plaintiff’s 3 psychological treatment as conservative, it is unclear exactly what further psychological treatment 4 would be expected to increase Plaintiff’s pace and persistence, especially since these deficits may 5 well be fueled in part by Plaintiff’s fatigue. Accordingly, substantial evidence does not support an 6 inconsistency between Plaintiff’s course of treatment and Dr. Dixit’s assessment. 7 For the foregoing reasons, the ALJ erred in discounting Dr. Dixit’s assessment of a marked 8 limitation. 9 Dr. Mann’s Opinion 10 The ALJ did not find any of Dr. Mann’s opinions to be persuasive. AR at 22. The ALJ 11 noted that Dr. Mann’s “statements about the claimant’s ability to work and return to work are 12 neither inherently valuable nor persuasive” under 20 C.F.R. 404.1520b(c). The Court believes this 13 to be an appropriate treatment of such conclusory statements under the cited regulation. However, 14 the ALJ also claimed that Dr. Mann’s “statements about [Plaintiff’s] concentration affecting his 15 ability to work and his need to miss more than four days of work per month were not supported by 16 [Dr. Mann’s] own records[.]” AR at 22. The Court finds that this assertion by the ALJ is not 17 supported by substantial evidence. 18 The only part of Dr. Mann’s records the ALJ pointed out as inconsistent with Dr. Mann’s 19 conclusions was an entry from September 2021, where “Dr. Mann noted that [Plaintiff’s] 20 cognitive problems were likely related to a combination of medication, depression, and untreated 21 sleep apnea, and his seizure and depression conditions were managed with medication[.]” AR at 22 22–23. It is unclear how this information is meant to contradict Dr. Mann’s assertion about 23 Plaintiff’s concentration and need to miss work. Further, the page of notes the ALJ cites for this 24 proposition (Exhibit 8F, AR at 557) contains no indication that Plaintiff’s conditions were 25 “managed” with medication in the sense of their no longer being disabling. They do show that 26 Plaintiff was taking quite a bit of medication and that this was causing problems of its own. While 27 it appears from Dr. Mann’s records that several of Plaintiff’s medications were somewhat helpful, 1 Accordingly, substantial evidence does not support the existence of an inconsistency between Dr. 2 Mann’s statements. 3 The ALJ also concluded that Dr. Mann’s “findings are not consistent with the record as a 4 whole, which showed the claimant would not have difficulty remembering and focusing on simple 5 instructions (Exhibit 12F).” AR at 23 (emphasis added). But Exhibit 12F, the Dixit report, 6 concluded that “the claimant will have no difficulty remembering and following simple 7 instructions.”

. This is substantially different: while the ability to “focus on” 8 instructions implies that Plaintiff could concentrate on a task for an extended period of time, the 9 ability to “follow” those instructions carries no such implication. Therefore, substantial evidence 10 does not support an inconsistency between the concentration findings of Drs. Mann and Dixit. 11 DISPOSITION AND INSTRUCTIONS FOR REMAND 12 IT IS THEREFORE ORDERED that Plaintiff’s motion for summary judgment is 13 GRANTED and Defendant’s cross-motion for summary judgment is DENIED. The case is hereby 14 REMANDED for further proceedings consistent with this opinion. 15 On remand, the ALJ is directed to credit as true Plaintiff’s subjective complaints of fatigue 16 and Dr. Dixit’s assessment of a marked limitation on maintaining pace and persistence for 2 hours. 17 See, e.g., Aparicio B. v. Commissioner of Social Security,

, at *6 (N.D. Cal. 18 March 16, 2022). The ALJ is further directed to reevaluate Plaintiff’s testimony about his other 19 symptoms and Dr. Mann’s findings consistent with the guidance in this opinion. 20 On remand, the ALJ should also develop the record as to Plaintiff’s symptoms of paranoia, 21 fictitious memory, and auditory hallucinations. The record indicates that Plaintiff’s psychiatrist 22 believes that Plaintiff suffers from bipolar disorder or schizophrenia, even going so far as to 23 prescribe Plaintiff medications for these conditions, but neither condition was listed as a medically 24 determinable impairment at Step 2. Development of the record concerning these symptoms and 25 potential diagnoses is particularly important because they may be aggravating his cognitive 26 problems or impeding him from seeking help for his anxiety and depression. 27 The ALJ should reconsider her Step 3 assessment of Plaintiff, which rests on an 1 opinion, in light of what the Court has said here about the nature of Plaintiff's treatment and the 2 || persuasiveness of the state agency’s opinion. 3 The ALJ may also wish to consider developing the record as to Plaintiffs seizures by 4 || obtaining testimony from Plaintiff's wife, who has witnessed these spells. While the ALJ 5 accurately notes that a witness statement from a medical professional is “preferred” by the Social 6 || Security Administration, a statement from Plaintiff's wife combined with Plaintiff's and Dr. 7 || Mann’s testimony as to seizure frequency may nonetheless fulfill the criteria for Listing 11.02. 8 IT IS SO ORDERED. 9 Dated: September 9, 2024 M-— 11 ROBERT M. ILLMAN 12 United States Magistrate Judge

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