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7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 J.O., Case No. 8:23-cv-00125-SB-SHK 12 Plaintiff, 13 v. O ANR DD E RR E CA OCC ME MP ET NIN DG A TF II OND NI ON FG S 14 MARTIN J. O’MALLEY, U JUN DIT GE ED STATES MAGISTRATE 15 Commissioner of Social Security, 16 Defendant. 17 18 Pursuant to

, the Court has reviewed the parties’ briefing, the 19 relevant records on file, and the Report and Recommendation (“R&R”) of the 20 United States Magistrate Judge. The Court has engaged in a de novo review of 21 those portions of the R&R to which Defendant has objected. The Court accepts the 22 findings and recommendation of the Magistrate Judge. 23 In accepting the findings and recommendation, this Court agrees that “it is 24 not clear on the record before [it] whether Plaintiff is indeed disabled,” and further 25 agrees that the administrative law judge (ALJ) “is in the best position” to make that 26 determination. Dkt. No. 18 at 16. The problem, as noted in the R&R, is that it is 27 unclear whether the ALJ considered Dr. David Kendis’s assessment—as it relates 1 to the determination of Plaintiff’s residual functional capacity—that Plaintiff J.O. 2 suffers from “marked impairment” in his ability to maintain emotional regulation. 3 In addressing Dr. Kendis’s opinion, the ALJ identified the two areas of 4 marked limitation assessed by Dr. Kendis—i.e., the ability to adapt to change in 5 routine and the ability to maintain emotional regulation. He then states: 6 Dr. Kendis is an acceptable medical source who had the 7 opportunity to examine the claimant. Dr. Kendis’s opinion of marked limitations in adapting [is] not well supported by his 8 own observations of the claimant, and they are not entirely consistent with the test results of the examinations Dr. Kendis 9 administered at the consultative examination. Additionally, 10 marked limitations are not consistent with the evidence as a whole, including Ms. [Helen] Kim’s notes that reflect 11 improvement in the claimant’s condition with medication 12 compliance and sobriety. They are also not consistent with the claimant’s reported activities of daily living. This portion of 13 Dr. Kendis’s opinion is therefore not persuasive. However, the remainder of his opinion is otherwise generally persuasive, as it 14 is supported by the limited abnormalities observed by Dr. 15 Kendis on mental status examination, as well as the limited psychiatric abnormalities noted by Ms. Kim. 16 17 Dkt. No. 8-3 at 27 (emphasis added). 18 Notably, the ALJ focuses on Dr. Kendis’s opinion of “marked limitations in 19 adapting” and rejects this conclusion based on contrary evidence. Without directly 20 addressing Dr. Kendis’s opinion of Plaintiff’s marked limitation in his ability to 21 maintain emotional regulation, the ALJ then concludes that “the remainder of [Dr. 22 Kendis’s] opinion is otherwise generally persuasive.” It is therefore not clear that 23 the ALJ properly considered this opinion and its impact on Plaintiff’s residual 24 functional capacity, as required. 25 Accordingly, remand is appropriate under the circumstances. See Treichler 26 v. Comm’r of Soc. Sec. Admin.,

(9th Cir. 2014) (“Because a 27 judicial judgment cannot be made to do service for an administrative judgment, 1 when . . . the agency has not considered all relevant factors, or the reviewing court 2 simply cannot evaluate the challenged agency action on the basis of the record 3 before it, the proper course, except in rare circumstances, is to remand to the 4 agency for additional investigation or explanation.”) (cleaned up); see also Bentley 5 v. Saul,

, 426 (9th Cir. 2020) (relying on Treichler in remanding 6 a case where the ALJ’s opinion did not “explicitly mention” a diagnosed 7 impairment). 8 It is therefore ordered that the Social Security Commissioner’s decision is 9 REVERSED and this case is REMANDED to the Social Security Administration 10 for further proceedings. 11 12 Dated: April 29, 2024 13 HON. STANLEY BLUMENFELD, JR. 14 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27