(SS) Torrez v. Commissioner of Social Security

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA DAVID TORREZ, Case No. 1:21-cv-00671-CDB (SS) 12 Plaintiff, ORDER GRANTING PLAINTIFF’S 13 v. MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S CROSS- COMMISSIONER OF SOCIAL SECURITY, MOTION FOR SUMMARY JUDGMENT 15 Defendant. (Docs. 24, 26) 18 Plaintiff David Torrez (“Plaintiff”) seeks judicial review of a final decision of the Commissioner of Social Security (“Commissioner” or “Defendant”) denying his application for disability benefits under the Social Security Act. (Doc. 1). The matter is currently before the Court on the Administrative Record (“AR”) and the parties’ briefs, which were submitted without oral argument. (Docs. 24, 26, 27).1 23 I. BACKGROUND 24 A. Administrative Proceedings and ALJ’s Decision 25 On June 24, 2015, Plaintiff filed an application for Title XVI Supplemental Security Income (“SSI”) and Title II Social Security Disability Insurance (“SSDI”) benefits, alleging a Both parties have consented to the jurisdiction of a magistrate judge for all proceedings in this period of disability beginning November 3, 2011. (AR 22; 372-375). On August 12, 2015, his claim was denied. (AR 241-244). It was again denied upon reconsideration on September 10, 2015. (AR 199, 246-250). On October 15, 2015, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). (AR 251-252). On September 5, 2017, Plaintiff appeared at the hearing before the assigned ALJ, John Trunick. The ALJ issued an unfavorable decision on February 22, 2018. (AR 203-221). Plaintiff timely appealed to the Appeals Council (“AC”) and the AC remanded the case for a new decision to be adjudicated from November 3, 2011, the date of onset of Plaintiff’s alleged disability. (AR 222-224).

9 After additional testimony from Plaintiff during a hearing on January 30, 2020, ALJ Shiva Bozarth issued an unfavorable decision on April 15, 2020. (AR 16-36). Afterwards, the AC denied review (AR 10-15) and Plaintiff filed the instant action.

12 After reviewing the evidence, the ALJ considered Plaintiff’s claims using the five-step sequential evaluation required by 20 CFR § 404.1520(a)(4). At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since the alleged date of disability. At step two, the ALJ found that Plaintiff had the following severe impairments: degenerative disc disease; obesity; diabetes mellitus; diabetic neuropathy; depression; and anxiety. He also determined that Plaintiff had further functional difficulties resulting from hypertension. He found no evidence in the file that hypertension caused more than minimal functional limitations and was, therefore, non-severe, stating that Plaintiff takes medication for the condition which is effective, providing the example that an examination of the cardiovascular system was generally unremarkable. The ALJ stated that he considered all of Plaintiff’s medically determinable impairments when assessing his residual functional capacity (“RFC”). (AR 22).

23 At step three, the ALJ determined that none of the impairments, nor a combination of any of them, is of a severity to meet or medically equal the criteria of an impairment listing in CFR Part 303, Subpart P, Appendix 1. Id. The ALJ then provides that he utilized the “paragraph B” criteria2 in determining that Plaintiff’s mental impairments did not, singly or in combination, meet The “paragraph B criteria” evaluates mental impairments in the context of four broad areas of functioning: (1) understanding, remembering, or applying information; (2) interacting with others; (3) or medically equal the criteria of listings 12.04 and 12.06. The ALJ found that Plaintiff has no limitation in his ability to understand, remember, or apply information, a “moderate” limitation in the ability to interact with others, no limitation in the ability to concentrate, persist, or maintain pace, and a “moderate” limitation in the ability to adapt or manage himself. He stated that these findings are consistent with medical and other evidence, providing the example that treatment reports showed Plaintiff was “alert and cooperative with a normal mood and affect and a normal attention span and concentration,” with citation to exhibits B1F and B16F. (AR 23).

8 He stated the findings were consistent with an additional report which “which showed that when complaint [sic] with medication, he is stable and feels good,” with citation to exhibit B19F.

10 He further provided that the findings are consistent with Plaintiff’s report that he does “not need help with bathing, dressing, and grooming and he has adequate motivation for them,” with citation to exhibit B13F. Finally, he noted that the “moderate” limitation in the ability to interact with others is consistent with Plaintiff’s anxiety, and the “moderate” limitation the ability to adapt or manage himself is consistent with Plaintiff’s “social anxiety, hypervigilance, and un-cued panic attacks,” with citation to exhibit B13F. He concludes that, as the mental impairments do not cause at least two “marked” limitations or one “extreme” limitation, the “paragraph B” criteria are not satisfied. (AR 23).

18 The ALJ then considered the “paragraph C” criteria. “Paragraph C,” subsection (1) requires a “highly structured setting that is ongoing that diminishes the signs and symptoms of [Plaintiff’s] mental disorder.” 20 C.F.R. Pt. 404, subpt. P, app. 1 § 12.04(C)(1). The ALJ found that “paragraph C” criteria were not satisfied, as there is no evidence Plaintiff relies upon ongoing “medical treatment, mental health therapy, psychosocial support, or a highly structured setting to Subpt. P, App. 1. The severity of the limitation a claimant has in each of the four areas of functioning is identified as either “no limitation,” “mild,” “moderate,” “marked,” or “extreme.” Id. To satisfy the paragraph B criteria, a claimant must have an “extreme” limitation in at least one of the areas of mental functioning, or a “marked” limitation in at least two of the areas of mental functioning. Id. An “extreme” limitation is the inability to function independently, appropriately, or effectively, and on a sustained basis. Id. A “marked” limitation is a seriously limited ability to function independently, appropriately, or effectively, and on a sustained basis. Id. A “moderate” degree of mental limitation means that functioning in this area independently, appropriately, effectively, and on a sustained basis is “fair.” Id. And a “mild” degree of mental limitation means that functioning in this area independently, appropriately, effectively, and on a sustained basis is “slightly limited.” Id. See Carlos v. Comm’r of Soc. Sec., 1:21-cv-00517-SAB, diminish the symptoms and signs of his mental disorder.” The ALJ cites to exhibit B12F to support his findings that Plaintiff “cooks, cleans, shops, and performs his own activities of daily living without assistance.” (AR 23).

4 The ALJ then, prior to proceeding to step four, determined the residual functional capacity (“RFC”) for Plaintiff. He found Plaintiff had the capacity to perform work at the “medium exertional level.” He stated as follows: 7 Specifically, he is able to lift and carry 50 pounds occasionally and 25 pounds frequently, stand and walk about six hours, and sit for about six hours total in an eight-hour workday. He is able to frequently balance, stoop, kneel, crouch, crawl, 9 and climb ramps or stairs, but he should never climb ladders or scaffolds. The claimant should never work at unprotected heights or around fast moving 10 machinery and he is limited to frequently reaching overhead with the bilateral upper extremities. He is also limited to frequently operating foot controls. In addition, the 11 claimant is limited to only routine work related decision making with occasional contact with coworkers and the public.

13 AR (24). The ALJ noted that 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,” based on 20 CFR 404.1529 and 416.929, as well as SSR 16-3p. The ALJ explained that he followed the “two-step process” where first he must determine whether there is an underlying medically determinable physical or mental impairment or impairments that could reasonably be expected to produce Plaintiff’s pain or other symptoms and, if so determined, then he must evaluate the intensity, persistence, and limiting effect of Plaintiff’s symptoms. (AR 24).

20 The ALJ then discussed his findings regarding Plaintiff’s physical and mental impairments. (AR 24-28). He found that Plaintiff had a body mass index (“BMI”) over 30 and had been assessed as obese. He noted Plaintiff was also diagnosed with type 2 diabetes mellitus with diabetic peripheral neuropathy, as a report showed diminished sensation to light touch in both hands and feet and took gabapentin for pain. He stated that Plaintiff had no musculoskeletal symptoms and no focal deficits with normal sensation, reflexes, coordination, muscle strength, and tone, with “no evidence of compression neuropathy, polyneuropathy, or ongoing lumbar radiculopathy.” For these findings, the ALJ cited to exhibits B1F, B2F, B3F, B7F, B14E, B14F, 1 The ALJ noted that examinations of Plaintiff’s extremities did not reveal any “clubbing, cyanosis, edema, or deformity with a full range of motion of all joints” as well as “normal coordination, balance, and gait.” The ALJ discussed the medical evidence regarding Plaintiff’s gait, noting a normal gait, followed by an “unsteady gait” but with full strength in the “bilateral upper and lower extremities,” followed by a normal gait, and finally, a “non-antalgic gait with no assistive device” without “deformity or swelling in the extremities with a normal range of motion.” The ALJ cited to exhibits B1F, B2F, B7F, B14F, B15F, B16F, and B20F. (AR 25).

8 The ALJ then considered the medical opinion evidence, namely exhibits B12F (the consultative evaluation of physician Robert Wagner), B9F (the state-agency medical consult of physician I. Ocrant), and B6A (the state-agency medical consult of physician A. Nasrabadi). The ALJ gave Dr. Wagner’s proscribed limitations significant weight because the opinion was generally consistent and supported by medical and other evidence in the record. The ALJ stated Dr. Wagner’s limitations was consistent with Plaintiff’s report describing his pain as zero out of ten and with a normal balance, gait, and coordination. The ALJ found the limitations were consistent with Dr. Wagner’s examination findings, as well. (AR 25).

16 The ALJ gave little weight to Drs. Ocrant and Nasrabadi’s findings, both of whom stated there was insufficient evidence to make a determination as to Plaintiff’s RFC. The ALJ reasoned that evidence from the hearing, and the findings of Dr. Wagner, are sufficient to make such a determination. (AR 26).

20 Following his discussion regarding Plaintiff’s physical impairments, the ALJ turned to Plaintiff’s mental impairments. He noted that Plaintiff reported feelings of sadness and anxiousness and was diagnosed with depression and anxiety. He stated Plaintiff took medication for those conditions, namely Wellbutrin (bupropion) and propranolol which “are effective, as a report indicated [Plaintiff’s] condition is stable with medication.” He found that the records showed Plaintiff has been “alert and cooperative with a normal mood and affect and a normal attention span and concentration,” as well as with an “age appropriate” mental status. The ALJ stated that Plaintiff presented with “adequate concentration, persistence, and pace with with medication, he “reported feeling good.” The ALJ cited to exhibits B1F, B3F, B4F, B13F, B14E, B16F, B19F, and B20F. (AR 26).

3 The ALJ then considered the medical opinion evidence, namely exhibits B13F (the consultative mental evaluation of psychologist Lance A. Portnoff), B4A (the state-agency medical consult of psychologist Cory A. Brown), B10F (the state-agency medical consult of physician A.

6 Garcia), and B6A (the state-agency medical consult of physician G. Ikawa). (AR 26-27).

7 The ALJ gave significant weight to Dr. Portnoff’s proscribed limitations, namely that Plaintiff is able to “perform simple and repetitive tasks,” “has no limitation in his ability to perform detailed and complex ones,” “has mild to moderate limitations in his ability to interact with coworkers and the public,” “has no limitations in his ability to accept instructions from supervisors,” and has “no limitations in his ability to work on a consistent basis without special or additional instruction.” Dr. Portnoff also determined that Plaintiff has “moderate limitations in his ability to complete a normal workday or workweek without interruptions from psychiatric condition” but that he has “no limitations” in regards to regular attendance in the workplace.

15 Finally, Dr. Portnoff found Plaintiff “moderately impaired” as to being able to deal with stress encountered in a “competitive work environment.” (AR 26).

17 The ALJ found Dr. Portnoff’s limitations to be consistent and supported by the record, namely “in light of treatment reports showing [Plaintiff] was alert and cooperative with a normal mood and affect and a normal attention span and concentration,” as well as with a February 2020 report showing that, when Plaintiff is compliant with medication, he “is stable and feels good.”

21 The ALJ cites to exhibits B1F, B13F, B16F, and B19F. (AR 26).

22 The ALJ gave “limited weight” to the opinion of Dr. Brown, who found Plaintiff is “capable of performing simple instructions” and could “sustain a work schedule with simple tasks,” and could “deal with supervisors and minimal coworkers, and minimal public contact.”

25 The ALJ stated that Dr. Brown’s opinion is inconsistent with the treatment reports, as described supporting the findings of Dr. Portnoff, and is “over restrictive,” particularly in light of the February 2020 report. The ALJ cites to exhibits B1F, B4A, B16F, and B19F. (AR 27).

1 regarding Plaintiff’s mental RFC. The ALJ gave “little weight” to both findings, stating that the evidence received during the hearing as well as the report of Dr. Portnoff are sufficient to make a determination regarding Plaintiff’s mental RFC. The ALJ cites to exhibits B6A, B9F, B10F, and B13F. (AR 27).

5 The ALJ addressed the third-party function report of Angela Russell, Plaintiff’s girlfriend.

6 She stated that Plaintiff’s ability to bend is “affected,” as his ability to concentrate. The ALJ pointed to Dr. Wagner’s report for the proposition that Plaintiff is “easily able to bend at the waist” and to Dr. Portnoff’s report for the proposition that Plaintiff demonstrated “adequate concentration, persistence, and pace.” The ALJ gave Ms. Russell’s function report “little weight” because it is evidence from a non-medical source and contains inconsistent and unsupported statements. The ALJ cites to exhibits B4E, B12F, and B13F. (AR 27).

12 The ALJ determined that Plaintiff’s medically determinable impairments could reasonably be expected to cause the alleged symptoms but his statements concerning the intensity, persistence, and limiting effects of those symptoms are not entirely consistent with the medical and other evidence. The ALJ specifically noted the findings of Dr. Wagner as to Plaintiff’s ability to bend at the waist and Dr. Portnoff regarding concentration, as well as Plaintiff’s own claims regarding his ability to complete tasks. The ALJ cites to exhibits B2E, B3E, B7E, B12F, B13F, and B20E. (AR 27-28).

19 Moving to step four, the ALJ found that Plaintiff had no past relevant work. At step five, the ALJ found that, based on the testimony of the vocational expert, Plaintiff is capable of making a successful adjustment other work that exists in significant numbers in the national economy. He cited packer for agricultural produce, food service worker in a hospital environment, and kitchen helper as representative occupations. He concluded by determining that Plaintiff had not been under a disability from November 3, 2011, to the date of the decision. (AR 28-29).

25 B. Medical Record and Hearing Testimony 26 The relevant hearing testimony and medical record were reviewed by the Court and will be referenced below as necessary to this Court’s decision.

1 II. STANDARD OF REVIEW 2 A district court’s review of a final decision of the Commissioner of Social Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is limited; the Commissioner’s decision will be disturbed “only if it is not supported by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a reasonable mind might accept as adequate to support a conclusion.” (Id. at 1159) (quotation and citation omitted). Stated differently, substantial evidence equates to “more than a mere scintilla[,] but less than a preponderance.” (Id.) (quotation and citation omitted). “It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Healy v. Astrue, 379 Fed. Appx. 643, 645 (9th Cir. 2010). In determining whether the standard has been satisfied, a reviewing court must consider the entire record as a whole rather than searching for supporting evidence in isolation. (Id.).

13 The court will review only the reasons provided by the ALJ in the disability determination and may not affirm the ALJ on a ground upon which she did not rely. Social Security Act § 205, 42 U.S.C. § 405(g). In reviewing a denial of benefits, a district court may not substitute its judgment for that of the Commissioner. “The court will uphold the ALJ’s conclusion when the evidence is susceptible to more than one rational interpretation.” Tommasetti v. Astrue, 533 F.3d 18 1035, 1038 (9th Cir. 2008). Further, a district court will not reverse an ALJ’s decision on account of an error that is harmless. (Id.). An error is harmless where it is “inconsequential to the [ALJ’s] ultimate nondisability determination.” (Id). (quotation and citation omitted). The party appealing the ALJ’s decision generally bears the burden of establishing that it was harmed.

22 Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009).

23 A claimant must satisfy two conditions to be considered “disabled” and eligible for benefits within the meaning of the Social Security Act. First, the claimant must be “unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.” 42 U.S.C. § 1 unable to do his previous work[,] but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. § 1382c(a)(3)(B).

4 The Commissioner has established a five-step sequential analysis to determine whether a claimant satisfies the above criteria. See 20 C.F.R. § 416.920(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s work activity. 20 C.F.R. § 416.920(a)(4)(i). If the claimant is engaged in “substantial gainful activity,” the Commissioner must find that the claimant is not disabled. 20 C.F.R. § 416.920(b).

9 If the claimant is not engaged in substantial gainful activity, the analysis proceeds to step two. At this step, the Commissioner considers the severity of the claimant’s impairment. 20 11 C.F.R. § 416.920(a)(4)(ii). If the claimant suffers from “any impairment or combination of impairments which significantly limits [his or her] physical or mental ability to do basic work activities,” the analysis proceeds to step three. 20 C.F.R. § 416.920(c). If the claimant’s impairment does not satisfy this severity threshold, however, the Commissioner must find that the claimant is not disabled. (Id.).

16 At step three, the Commissioner compares the claimant’s impairment to impairments recognized by the Commissioner to be so severe as to preclude a person from engaging in substantial gainful activity. 20 C.F.R. § 416.920(a)(4)(iii). If the impairment is as severe or more severe than one of the enumerated impairments, the Commissioner must find the claimant disabled and award benefits. 20 C.F.R. § 416.920(d).

21 If the severity of the claimant’s impairment does not meet or exceed the severity of the enumerated impairments, the Commissioner must pause to assess the claimant’s “residual functional capacity.” Residual functional capacity (RFC), defined generally as the claimant’s ability to perform physical and mental work activities on a sustained basis despite his or her limitations (20 C.F.R. § 416.945(a)(1)), is relevant to both the fourth and fifth steps of the analysis.

27 At step four, the Commissioner considers whether, in view of the claimant’s RFC, the work). 20 C.F.R. § 416.920(a)(4)(iv). If the claimant is capable of performing past relevant work, the Commissioner must find that the claimant is not disabled. 20 C.F.R. § 416.920(f). If the claimant is incapable of performing such work, the analysis proceeds to step five.

4 At step five, the Commissioner considers whether, in view of the claimant’s RFC, the claimant is capable of performing other work in the national economy. 20 C.F.R. § 6 416.920(a)(4)(v). In making this determination, the Commissioner must also consider vocational factors such as the claimant’s age, education, and past work experience. (Id.). If the claimant is capable of adjusting to other work, the Commissioner must find that the claimant is not disabled.

9 20 C.F.R. § 416.920(g)(1). If the claimant is not capable of adjusting to other work, the analysis concludes with a finding that the claimant is disabled and is therefore entitled to benefits. (Id.).

11 The claimant bears the burden of proof at steps one through four above. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to step five, the burden shifts to the Commissioner to establish that (1) the claimant is capable of performing other work; and (2) such work “exists in significant numbers in the national economy.” 20 C.F.R. § 416.960(c)(2); Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012).

16 III. ISSUES AND ANALYSIS 17 Plaintiff raises two issues in his motion for summary judgment: (1) the ALJ harmfully erred by failing to provide clear and convincing reasons to reject the psychological and physical symptomology evidence of record; and (2) the mental RFC is not supported by substantial evidence. (Doc. 24 at 2).

21 A. Whether the ALJ Failed to Provide Clear and Convincing Reasons for 22 Discounting Plaintiff’s Allegations Regarding Psychological and Physical 23 Symptomology 24 Plaintiff asserts that the ALJ committed harmful error by failing to discuss his hearing testimony regarding his psychiatric symptoms, specifically as to his severe anxiety, panic disorder, and resulting shortness of breath and corresponding non-conservative treatment and medications. (Doc. 24 at 11-12). He states that the ALJ only made “one mention to concentrate and complete tasks, and the ALJ mischaracterized the report by failing to address its findings as a whole. Id. at 13. He argues that the issue is not whether he could complete tasks on a “good day,” but rather his ability to focus, concentrate, and “simply function” in a normal work environment on a sustained basis. Id. at 14. He further argues that the ALJ’s references to Dr. Wagner’s findings of an ability to bend are not clear and convincing reasons to reject Plaintiff’s physical symptom evidence. He notes the ALJ’s “failure to discuss” his “extensive testimony” regarding severe diabetic neuropathy and resulting limitations on his daily activities. Id. at 16-17.

8 Finally, he argues that the ALJ failed to address how an individual with his limitations, as testified to, could sustain “medium” work in a normal work environment, particularly as the record evidences only a one-time ability to “bend” and one-time ability to “concentrate.” Id. at 18.

12 Defendant asserts that the ALJ provided multiple reasons for discounting Plaintiff’s symptom testimony, such as “unremarkable clinical signs upon examination,” “inconsistent statements” as in his adult function report, daily activities that showed he could care for his own needs independently, positive response to medication when compliant, and opinions of record stating he could perform a wide array of mental and physical work. (Doc. 26 at 13-14).

17 Defendant states the ALJ did address Plaintiff’s psychiatric symptomology by incorporating it into the RFC. Id. at 14-15. Defendant provides that the “record contained ample support for the ALJ’s reasonable conclusions,” discussing first Plaintiff’s physical conditions. Id. at 15-18.

20 Defendant addressed the ALJ’s findings concerning Plaintiff’s mental conditions, stating that just as with Plaintiff’s physical allegations, he cites to “relatively few, isolated incidents” without distinguishing between his subjective complaints and the objective clinical signs. Defendant provides that Plaintiff’s examinations were unremarkable while he was compliant with his medication, and includes a footnote citing record evidence that discusses Plaintiff’s noncompliance. Id. at 18-19. Defendant argues that Plaintiff’s “citation to isolated incidents” cannot meet his burden in light of documentation of consistent “normal physical and mental clinical findings.” Id. at 19.

1 specific, clear, and convincing. General findings regarding a claimant’s credibility are insufficient; rather, the ALJ must identify what testimony is not credible and what evidence undermines the claimant’s complaints. The ALJ’s findings must be sufficiently specific to allow a reviewing court to conclude the adjudicator rejected the claimant's testimony on permissible grounds and did not arbitrarily discredit a claimant's testimony regarding pain. A reviewing court should not be forced to speculate as to the grounds for an adjudicator’s rejection of a claimant’s allegations of disabling pain. As such, an implicit finding that a plaintiff’s testimony is not credible is insufficient. Christine G. v. Saul, 402 F. Supp. 3d 913, 921-22 (C.D. Cal. 2019) (citations and quotations omitted). The standard is “not an easy requirement to meet: The clear and convincing standard is the most demanding required in Social Security cases.” Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017).

12 1. Psychological Symptomology 13 First, the Court will turn to the psychological symptomology at issue. During the hearing, Plaintiff testified regarding his psychological symptoms. Plaintiff stated he has panic attacks “quite frequently … at least once a month … if not more.” (AR 101). He stated that they can last for “up to six days,” and had previously made him “[feel] like he was going to die.” (AR 102).

17 He stated he takes bupropion daily. He mentions he was prescribed lorazepam but does not take it daily, as it is a narcotic and he does not “want to get hooked up on that.” (AR 102). He stated he gets “confused, forgetful, and once I start panicking, I lose control. I’m no longer in control of myself.” He provided that this has been occurring for years. (AR 103). He stated anxiety attacks occur at random and he will “wake up in a panic, like [he] was being buried alive” and that he cannot breathe and gets “so tense that [he] just [wants] to scream.” He stated it can occur in public due to crowds and noise. (AR 104). He provided that, always during the beginning of an attack, he will “start throwing things, hitting walls” and that he cannot control himself. (AR 105).

25 Regarding concentration issues, Plaintiff stated that he can concentrate for “30 minutes at most” before his mind starts wandering and, on worse days, he cannot sit still. He testified that he sometimes has to lie down and rest during daytime hours, as he has trouble sleeping. He provided mental health issues,” the total would be “[p]robably at least four hours, five hours.” AR 108- 109).

3 An ALJ’s failure to properly consider Plaintiff's subjective symptom testimony may independently be reversible error. See Brown-Hunter v. Colvin, 806 F.3d 487, 489 (9th Cir. 2015) (finding that an ALJ’s failure to identify and explain why a claimant’s subjective testimony is not credible constitutes reversible error because the reviewing court cannot determine if the ALJ’s decision was supported by substantial evidence). Before the ALJ discredits a claimant’s subjective symptom testimony, they must first determine if objective medical evidence of an underlying impairment “could reasonably be expected to produce the pain or other symptoms alleged.” Trevizo, 871 F.3d at 678. The ALJ found this was the case. (AR 27). The second step is for the ALJ to describe specific, clear, and convincing reasons to reject the claimant’s testimony on the severity of his symptoms. Trevizo, 871 F.3d at 678.

13 Indeed, accounts of Plaintiff’s psychological conditions, and corresponding prescribed medications, exist throughout the record. (AR 562, 567, 569, 638, 640-644, 652-653, 656-658, 683-684, 690-691, 725, 737-738, 740, 751, 776, 779, 816, 850, 885, 901, 926, 930, 970, 972, 998, 1003, 1074). That, along with his testimony during the hearing regarding his symptoms (AR 101- 109), establishes for the ALJ a duty to discuss Plaintiff’s impairments and resulting subjective symptom testimony and, if the ALJ finds such testimony should be rejected, the ALJ must describe his reasons with specificity under the relevant clear and convincing standard. See Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006) (“[U]nless an ALJ makes a finding of malingering based on affirmative evidence thereof, he or she may only find an applicant not credible by making specific findings as to credibility and stating clear and convincing reasons for each.”)

24 While the Court may be able to draw inferences about what testimony may be inconsistent, the ALJ must identify those inconsistencies with specificity. Lambert v. Saul, 980 26 F.3d 1266, 1278 (9th Cir. 2020) (citing Brown-Hunter, 806 F.3d at 494) (“Although the inconsistencies identified by the district court could be reasonable inferences drawn from the and the reviewing court is “constrained to review the reasons the ALJ asserts.”).

2 Plaintiff argues that “there is no discussion or even a basic summary of [Plaintiff’s] hearing testimony regarding his psychiatric symptomology testimony at issue” except for citations to a function report and a general citation to the hearing testimony regarding his “ability to concentrate” and “ability to complete tasks” being “affected.” (Doc. 24 at 11, citing AR 27- 28).

7 As to this, Plaintiff is correct. The ALJ did not make any specific findings as to the credibility of Plaintiff’s symptom testimony and its severity. Defendant argues that the ALJ did in fact consider Plaintiff’s symptom testimony by incorporating it into the “paragraph B” mental limitations analysis. (Doc. 26 at 14-15). Defendant cites to case law for the proposition that the ALJ need only discuss and evaluate evidence to support his conclusion, not do so under a specific heading, and that the ALJ need not discuss every piece of evidence. These arguments are unpersuasive. As noted above, the ALJ was required to reject Plaintiff’s symptom testimony with clear and convincing reasons. The ALJ did not make any mention of Plaintiff’s testimony regarding potentially random, multi-day panic attacks and resulting panic and loss of control, his trouble sleeping, his inability to sit still at times, and his need to lie down at other times. It follows that, having not even mentioned this testimony, the ALJ did not meet the applicable standard when rejecting this testimony. See Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996) (“The ALJ must state specifically which symptom testimony is not credible and what facts in the record lead to that conclusion.”).

21 Further, the reasons proffered by the ALJ are themselves insufficient. It appears the primary reasons the ALJ offers to rebut Plaintiff’s credibility and reject his testimony are that (1) one medical record from February 19, 2020, indicated his condition was stable with medication (AR 26, citing AR 1019), (2) a March 2015 medical record showed Plaintiff was alert and cooperative, with normal mood and affect (AR 26, citing AR 561), (3) an October 17, 2019, medical record showed Plaintiff was awake, alert and cooperative, with normal mood and affect and age appropriate mental status (AR 26, citing AR 859), (4) a November 15, 2019, medical memory (AR 26, citing AR 739), and (5) a function report completed by Plaintiff evidenced activities of daily living (AR 429-437).

3 The ALJ cites only a few examples of instances of improvement or stability, over a period of years of treatment, to reject claimant’s symptomology. Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014) (“As we have emphasized while discussing mental health issues, it is error to reject a claimant’s testimony merely because symptoms wax and wane in the course of treatment.

7 Cycles of improvement and debilitating symptoms are a common occurrence, and in such circumstances it is error for an ALJ to pick out a few isolated instances of improvement over a period of months or years and to treat them as a basis for concluding a claimant is capable of working.”).

11 Defendant argues that Plaintiff cites to only “relatively, few isolated incidents of positive mental clinical signs documented over the eight-and-a-half-year period” in support of his mental symptom allegations, without distinguishing between his subjective complaints and the documented objective clinical signs. However, on this point, the ALJ’s analysis is insufficiently specific to satisfy the relevant clear and convincing standard. See Wheeler v. Berryhill, No. 3:16- CV-01623-AA, 2017 WL 3478483, at *4 (D. Or. Aug. 11, 2017) (“it is not possible to evaluate whether [merely conservative] treatments conflict with plaintiff's allegations about the severity of his symptoms because the ALJ never specified which symptom statements conflict with plaintiff’s course of treatment.”). The ALJ never discussed whether the Plaintiff’s course of treatment was “conservative” or otherwise evidenced any patterns of clinical signs. As such, the record is undeveloped as to these arguments. A court can “review only the reasons provided by the ALJ in the disability determination and may not affirm the ALJ on a ground upon which he did not rely.” Garrison, 759 F.3d at 1010.3 24 Defendant argues that Plaintiff’s examinations were unremarkable while he was compliant 26 3 Following Garrison, the Court declines to consider Defendant’s post hoc rationalization of the ALJ’s rejection of Plaintiff’s symptomology testimony (Doc. 26 at 20-21) because the argument is based on purported inconsistencies that the ALJ did not rely upon. Accord Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1225-26 (9th Cir. 2009) (courts must “review the ALJ’s decision based on the reasoning and factual findings offered by the ALJ – not post hoc rationalizations that attempt to intuit what the with his medication, and, in a footnote, cites record evidence that discusses Plaintiff’s noncompliance. (Doc. 26 at 18-19). As noted above, here again the ALJ did not elaborate as such in her decision and thus the record is undeveloped as to these arguments. Garrison, supra, 759 F.3d at 1010. However, even assuming arguendo the ALJ had made such findings, the record seems to evidence possible relevant mitigating factors. For example, the February 19, 2020, medical record evidences a follow-up clinical visit by Plaintiff to Sequoia Health and Wellness Centers in Visalia, California. The physicians note that Plaintiff had gone to the emergency room multiple times over the preceding months for increased anxiety, after his Wellbutrin prescription dosage increased on November 15, 2019, from 300 to 450 milligrams.

10 Plaintiff reported that he then had difficulties “with insurance getting approval of the dosage” and so he was not taking the medication consistently or at all for a “couple of weeks towards the end of January.” (AR 1019). Similarly, during the hearing, Plaintiff mentions not taking lorazepam as it is a narcotic and he worried about possible addiction. (AR 102).

14 Although an “unexplained or inadequately explained failure” to seek treatment or follow prescribed treatment can be a valid reason to discount a claimant’s testimony, the ALJ is required to consider plaintiff’s reasons for not taking medications. Trevizo, 871 F.3d at 679-80; see Stuter v. Astrue, No. CIV S-08-0129 DAD, 2009 WL 2824740, at *5 (E.D. Cal. Sept. 1, 2009) (“Where a claimant provides evidence of a good reason for not taking medication for her symptoms, her symptom testimony cannot be rejected for not doing so.”). The ALJ did not consider the Plaintiff’s asserted reasons for not taking medications.

21 In sum, the ALJ did not meet the relevant clear and convincing standard in rejecting Plaintiff’s psychological symptomology where the record shows consistent diagnosis of depression and anxiety, with multiple medications prescribed, over the course of many years and the ALJ failed to appropriately discuss Plaintiff’s testimony. See Garrison, 759 F.3d at 1018 (“Rather than describe Garrison’s symptoms, course of treatment, and bouts of remission, and thereby chart a course of improvement, the ALJ improperly singled out a few periods of temporary well-being from a sustained period of impairment and relied on those instances to believe that a claimant is credible, the data points they choose must in fact constitute examples of a broader development to satisfy the applicable ‘clear and convincing’ standard.”).

3 2. Physical Symptomology 4 Turning to the physical symptomology at issue, Plaintiff testified that he can stand for “[a]pproximately 15, 20 minutes” at a time before he starts feeling lower back pain which then continues down his legs to his feet. (AR 105-106). He testified that he can walk approximately four blocks before he needs to stop and take a break. (AR 106). He can tolerate sitting down for 20 minutes before he has to stand. (AR 106-107). He testified his back pain is there “all the time” from 2017 onwards, at a severity of “about a six” on a scale of one to ten. He stated lifting his legs and walking on uneven road, such as “stepping up and down on sidewalks,” aggravated the pain. (AR 108).

12 After discussing Plaintiff’s physical impairments as evidenced in the record, the ALJ found that Plaintiff’s “medically determinable impairments could reasonably be expected to cause the alleged symptoms.” (AR 27). As noted in section one above, that, along with his testimony during the hearing regarding his symptoms (AR 101-109), establishes for the ALJ a duty to discuss Plaintiff’s impairments and resulting subjective symptom testimony and, if the ALJ finds such testimony should be rejected, the ALJ must describe his reasons with specificity under the relevant clear and convincing standard. See Robbins, supra, 466 F.3d at 883.

19 Plaintiff argues that the ALJ failed to discuss physical symptomology testimony offered during the hearing and, further, failed to discuss the documented evidence of record supporting his testimony regarding his “less than sedentary physical limitations caused by his neuropathy.”

22 (Doc. 24 at 16-17). Plaintiff argues that “the ALJ’s one reference to [his] ability to bend down and take off his shoes during a one-time consultative examination” fails to meet the clear and convincing standard. Id. at 17.

25 The Court agrees with Plaintiff. In his decision, the ALJ did not make any specific findings as to the credibility of Plaintiff’s symptom testimony and its severity. Defendant argues that “the record contained ample support for the ALJ’s reasonable conclusions.” (Doc. 26 at 17).

1 evidence and free of legal error, the Court should affirm.” Id. at 19.

2 These arguments are unpersuasive. As noted above, the ALJ was required to reject Plaintiff’s symptom testimony with clear and convincing reasons. The ALJ did not make any mention of Plaintiff’s physical symptomology, except for his ability to bend. It follows that, having not even mentioned the hearing testimony or other sources of symptomology, the ALJ did not meet the applicable standard when rejecting this testimony. See Smolen, supra, 80 F.3d at 7 1284.

8 3. Daily Activities 9 The ALJ was permitted to consider daily living activities in his credibility analysis. The Ninth Circuit has explained that “if a claimant engages in numerous daily activities involving skills that could be transferred to the workplace, the ALJ may discredit the claimant’s allegations upon making specific findings relating to those activities.” Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005); see Morgan v. Apfel, 169 F.3d 595, 600 (9th Cir. 1999) (finding that claimant’s ability to fix meals, do laundry, work in the yard, and occasionally care for his friend’s child was evidence of claimant’s ability to work). Daily activities may be grounds for an adverse credibility finding if a claimant is able to spend a substantial part of his day engaged in pursuits involving capacities that are transferable to a work setting. Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012), superseded on other grounds by 20 C.F.R. § 404.1502(a). When discounting a claimant’s daily activities, an ALJ must explain “which daily activities conflicted with which part of [c]laimant’s testimony.” Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014) (emphasis in original).

22 Though inconsistent daily activities may provide a justification for rejecting symptom testimony, “the mere fact that a plaintiff has carried on certain daily activities ... does not in any way detract from her credibility as to her overall disability.” Benecke v. Barnhart, 379 F.3d 587, 594 (9th Cir. 2004) (alteration in original) (quoting Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001)). A claimant “does not need to be ‘utterly incapacitated’ in order to be disabled.” Id. (quoting Vertigan, 260 F.3d at 1050).

1 any of the activities identified for a substantial part of each day. Thus, the activities identified by the ALJ do not support the adverse credibility decision [referring to a ‘one time ability to bend’ and ‘one time ability to adequately concentrate’].” Plaintiff cites case law for the proposition that home activities are not easily transferable to the workplace environment. (Doc. 24 at 18).

5 Defendant argues that the ALJ noted Plaintiff does not need assistance bathing, dressing, and grooming, and has adequate motivation to complete these tasks. Defendant cites case law for the proposition that everyday activities, even if they suggest some difficulty functioning, may be grounds for discrediting Plaintiff’s testimony to the extent they contradict claims of a totally debilitating impairment. Defendant also cites to the record for additional activities Plaintiff had completed at times, noting the ALJ did not mention them and citing case law for the proposition that, even if the Court may not affirm the ALJ’s decision on grounds not set forth within it, the Court may consider such evidence if it was available to the ALJ and supports the ALJ’s stated grounds for the decision. (Doc. 26 at 21-22).

14 The ALJ discusses Plaintiff’s activities of daily living in two instances: when discussing the “paragraph B” and “paragraph C” criteria relating to Plaintiff’s mental impairments (AR 23) and when referencing a function report regarding his ability to bend and to complete tasks (AR 27). He cites to a consultative exam by physician Roger Wagner and a mental evaluation by psychologist Lance A. Portnoff for the conclusion that Plaintiff can engage in activities of daily living, namely “bathing, dressing, and grooming” with “adequate motivation” and shopping, cooking, cleaning, and performing “activities of daily living without assistance.” (AR 23, citing AR 725, 739). However, on the same page and in the same section as that cited by the ALJ, the mental evaluation of Dr. Portnoff also includes the statement “He cannot travel alone and cannot manage money … He describes a typical day as mainly staying at home. He naps much of the time due to Seroquel-related fatigue and drowsiness.” (AR 739). The ALJ did not mention or discuss this in his decision.

26 As to Plaintiff’s function report, the ALJ notes that Plaintiff states his ability to complete tasks is affected (citing AR 434) but “that is internally inconsistent with his subsequent report that of the record. Plaintiff does check the box for “Yes” next to the question “Do you finish what you start? (For example: a conversation, chores, reading, watching a movie).” Importantly, however, immediately beside the question he writes “Sometimes.” (AR 434). The ALJ did not mention or discuss this clarification in his decision. Additionally, Plaintiff also outlined other symptom testimony in the function report that the ALJ did not clearly address, for example dizziness, hand cramps, “blurred vision,” forgetfulness, blood pressure spikes due to stress, changes in routine causing confusion and panic attacks, among others. See (AR 429-437).

8 Plaintiff mentions being able to “walk for 15-20 minutes” before needing to rest (AR 434), which appears to corroborate testimony he provided during the hearing (AR 106).

10 The ALJ appears to have selectively cited information helpful to his decision while ignoring information that appears to have gone against his conclusions, even when such information lived right beside the facts cited. It follows that the ALJ failed to adequately, and accurately, address Plaintiff’s activities of daily living and how they related to relevant symptom testimony. See Revels v. Berryhill, 874 F.3d 648, 668 (9th Cir. 2017) (finding that the ALJ failed to meet the “high bar for rejecting a claimant’s symptom testimony,” holding that “[the ALJ] failed to acknowledge that, over and over in the same [function] report, Revels explained that she could complete only some of the tasks in a single day and regularly needed to take breaks—which was consistent with her symptom testimony.”).

19 B. Whether the ALJ Failed to Support the Mental RFC with Substantial Evidence 20 Separately, Plaintiff asserts that the mental RFC is not supported by substantial evidence.

21 He argues that the ALJ did not specifically reject any of Dr. Portnoff’s concrete limitations, most notably the “moderate” limitations found regarding Plaintiff’s ability to complete a normal workday or week without interruption from a psychiatric condition and the “moderate” limitations in his ability to deal with the stress encountered in a competitive work environment.

25 Plaintiff states that this indicates the ALJ believes Dr. Portnoff’s examination findings are “consistent with the MRFC opinion, absent any discussion to the contrary indicating the ALJ was rejecting any of Dr. Portnoff’s MRFC limitations.” Plaintiff argues that the mental RFC and the public” does not reflect these limitations, thus constituting harmful error. (Doc. 24 at 19, citing AR 26).

3 Defendant argues the ALJ was not required to include any mental functional limitations in the RFC and that the ALJ’s RFC limitation was “reasonably attributed” to Dr. Portnoff’s assessed moderate limitations. (Doc. 26 at 28). Defendant cites case law for the proposition that the Court must uphold the ALJ’s reasoning if the “path may be reasonably discerned,” even if explained “with less than ideal clarity.” Id. at 29.

8 “Where an ALJ accords substantial or great weight to a physician’s opinion, he must either incorporate their findings into the RFC or offer an explanation for why he chose not to accept them.” Sahyoun v. Saul, No. 2:18-CV-576-EFB, 2020 WL 1492661, at *3 (E.D. Cal. Mar.

11 27, 2020), citing Martin v. Comm’r of Social Sec. Admin., 472 Fed. Appx. 580 (9th Cir. 2012) (“The administrative law judge (ALJ) erred when formulating Martin’s residual functional capacity (RFC) because the RFC neither incorporated Dr. Steiner’s opinion of Martin’s work limitations nor gave specific and legitimate reasons for rejecting it.”), and Neufeld v. Berryhill, No. 2:16-cv-03644 (VEB), 2018 WL 4739699, at *6, (C.D. Cal. Sept. 30, 2018) (“Having afforded ‘great weight’ to the opinions of Dr. Bartell and Dr. Loomis, the ALJ was bound to either incorporate their findings as to Plaintiff's limitations or explain why she decided not to accept them.”)); see Flores v. Saul, No. 1:18-cv-01523-SKO, 2020 WL 509098, at *5 (E.D. Cal. Jan. 31, 2020) (finding ALJ erred in giving “great weight” to consultative psychologist’s opinion but failing to outline “specific and legitimate reasons” for “implicitly rejecting significant portions” of the opinion).

22 Here, the ALJ gave Dr. Portnoff’s opinion “significant weight.” (AR 26). Dr. Portnoff found the following limitations: “mild to moderate limitations in [Plaintiff’s] ability to accept instructions from supervisors,” “mild to moderate limitations in his ability to interact with coworkers and the public due to MDD/PTSD/OCD,” “moderate limitations in his ability to complete a normal workday or workweek without interruptions from a psychiatric condition,” and moderate limitation in “ability to deal with stress encountered in a competitive work only routine work related [sic] decision making with occasional contact with coworkers and the public.” (AR 24).

3 Recent decisions in courts within the Ninth Circuit have held that “routine work” and “occasional contact” restrictions are insufficient to account for moderate limitations in completing a normal workday or workweek. See Flores, supra, 2020 WL 509098, at *5 (finding limitation to “simple repetitive tasks with occasional public contact” failed to accommodate moderate difficulties in completing a normal workweek without interruption from psychiatric symptoms as identified by consultative psychologist); Christopher G. v. Saul, No. 2:19-CV-06150-AFM, 2020 9 WL 2079972, at *6 (C.D. Cal. Apr. 30, 2020) (finding RFC to perform work involving simple, routine tasks with limited public and coworker interaction failed to address moderate limitations in performing activities within a schedule, maintaining regular attendance, being punctual within customary tolerances, completing a normal workday or workweek, or performing at a consistent pace without an unreasonable number and length of rest periods).

14 The ALJ failed to account for the limitations outlined in Dr. Portnoff’s opinion, despite giving it “significant weight,” and did not provide any explanation for doing so. As such, the ALJ’s mental RFC determination is not supported by substantial evidence. See Wiles v. Berryhill, No. 2:16-CV-09558-GJS, 2017 WL 5186333, at *3 (C.D. Cal. Nov. 8, 2017) (holding that although moderate limitations in different areas of functioning, such as in the ability to maintain regular attendance or to complete a normal workday or workweek, are not on their face disabling, the ALJ’s RFC assessment was not supported by substantial evidence without including the limitations or, otherwise, offering specific reasons for rejecting the findings).

22 * * * * * 23 In sum, the ALJ has failed to meet the requirement to articulate clear and convincing reasons to reject the Plaintiff’s testimony regarding his psychological and physical symptoms and failed to provide substantial evidence for not including Dr. Portnoff’s limitations in the RFC.

26 The decision whether to remand for further proceedings or simply to award benefits is within the discretion of the Court. See Salvador v. Sullivan, 917 F.2d 13, 15 (9th Cir. 1990).

1 | remedy defects in the decision. See Kail v. Heckler, 722 F.2d 1496, 1497 (9th Cir. 1984).

2 | Remand for the payment of benefits is appropriate where no useful purpose would be served by | further administrative proceedings (Kornock v. Harris, 648 F.2d 525, 527 (9th Cir. 1980)); where | the record has been fully developed (Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986)); || or where remand would unnecessarily delay the receipt of benefits to which the disabled Plaintiff | is entitled (Bilby v. Schweiker, 762 F.2d 716, 719 (9th Cir. 1985)).

7 Here, Plaintiff seeks an order from the Court remanding this case for further | administrative proceedings (Doc. 24 at 20), and the Commissioner argues that the Court should | affirm the ALJ’s decision finding Plaintiff not disabled (Doc. 26 at 29). The Court concludes that | remand for further proceedings is warranted because additional administrative proceedings may | remedy the deficiencies in the ALJ’s decision noted herein.

12 C. CONCLUSION 13 For the reasons set for above, the Court finds the ALJ erred in evaluating opinions in the | record and failed to apply the proper legal standards. Accordingly, IT IS HEREBY ORDERED | that: 16 1. Plaintiff's motion for summary judgment (Doc. 24) is GRANTED.

17 2. Defendant’s cross-motion for summary judgment (Doc. 26) is DENIED.

18 3. This matter is REMANDED pursuant to sentence four of 42 U.S.C. §405(g) for further 19 proceedings consistent with this decision.

20 4. The Clerk of the Court is DIRECTED to enter judgment in favor of Plaintiff David 21 Torrez and against Defendant Commissioner of Social Security.

22 | IT IS SO ORDERED.

1 Dated: _ January 23, 2025 | Wr Pr 24 UNITED STATES MAGISTRATE JUDGE