Moore v. Kijakazi

FILED IN THE 2 EASTERU N. S D. I SD TI RS IT CR TI C OT F C WO AU SR HT I NGTON Mar 06, 2023 SEAN F. MCAVOY, CLERK 4 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 ADAM M.,1 No. 4:22-cv-5027-EFS 7 Plaintiff, ORDER GRANTING PLAINTIFF’S 8 v. SUMMARY-JUDGMENT MOTION, DENYING DEFENDANT’S 9 KILOLO KIJAKAZI, Acting SUMMARY-JUDGMENT MOTION, Commissioner of Social Security, AND REMANDING FOR FURTHER 10 PROCEEDINGS Defendant.

13 Plaintiff Adam M. appeals the denial of benefits by the Administrative Law 14 Judge (ALJ). Because the ALJ failed to provide adequate reasons supported by 15 substantial evidence for discounting Plaintiff’s symptom reports, the Court 16 reverses the ALJ’s decision and remands this matter for further proceedings.

17 /// 18 // 19 / For privacy reasons, Plaintiff is referred to by first name and last initial or as “Plaintiff.” See LCivR 5.2(c).

1 I. Five-Step Disability Determination 2 A five-step evaluation determines whether a claimant is disabled.2 Step one 3 assesses whether the claimant is engaged in substantial gainful activity.3 Step two 4 assesses whether the claimant has a medically severe impairment or combination 5 of impairments that significantly limit the claimant’s physical or mental ability to 6 do basic work activities.4 Step three compares the claimant’s impairment or 7 combination of impairments to several recognized by the Commissioner to be so 8 severe as to preclude substantial gainful activity.5 Step four assesses whether an 9 impairment prevents the claimant from performing work he performed in the past 10 by determining the claimant’s residual functional capacity (RFC).6 Step five 11 assesses whether the claimant can perform other substantial gainful work—work 12 that exists in significant numbers in the national economy—considering the 13 claimant’s RFC, age, education, and work experience.7

2 20 C.F.R. §§ 404.1520(a), 416.920(a).

3 Id. §§ 404.1520(a)(4)(i), (b), 416.920(a)(4)(i), (b).

4 Id. §§ 404.1520(a)(4)(ii), (c), 416.920(a)(4)(ii), (c).

5 Id. §§ 404.1520(a)(4)(iii), (d), 416.920(a)(4)(iii), (d).

6 Id. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv).

7 Id. §§ 404.1520(a)(4)(v), (g), 416.920(a)(4)(v), (g).

1 II. Background 2 In August 2017, Plaintiff filed an application for benefits under Title 16, 3 claiming disability based on hearing loss in both ears, scoliosis in the mid-to-lower 4 back, attention deficit hyperactivity disorder (ADHD), depression, and anxiety.8 5 Plaintiff alleged an onset date of March 14, 2014.9 After the agency denied his 6 applications initially and on reconsideration,10 Plaintiff requested a hearing before 7 an ALJ. 8 A. 2019 Hearing & Decision 9 In June 2019, ALJ Mark Kim held a hearing at which Plaintiff and a 10 vocational expert testified.11 In July 2019, the ALJ issued a written decision 11 denying disability.12 However, after finding that the ALJ had not adequately 12 addressed Plaintiff’s mental-health treatment records, the Appeals Council vacated 13 the ALJ’s decision and remanded the case for further proceedings.13 The Appeals 14 Council directed the ALJ to “[g]ive further consideration to the claimant’s 15 maximum residual functional capacity during the entire period at issue and

8 AR 352–61, 418.

9 AR 18, 434.

10 AR 168–83, 184–99.

11 AR 85–112.

12 AR 203–14.

13 AR 45–48.

1 provide rationale with specific references to evidence of record in support of 2 assessed limitations.”14 3 B. 2021 Hearing & Decision 4 In January 2021, on remand, the ALJ held another hearing at which 5 Plaintiff and a vocational expert testified.15 In February 2021, the ALJ issued a 6 written decision again denying Plaintiff’s disability application.16 As to the 7 sequential disability analysis, the ALJ found: 8 • Step one: Plaintiff had not engaged in substantial gainful activity since 9 August 16, 2017, the application date.

10 • Step two: Plaintiff had the following medically determinable severe 11 impairments: scoliosis of the lumbar and thoracic spine, hearing loss, 12 depressive disorder, anxiety disorder, ADHD, personality disorder, and 13 learning disorder.

14 • Step three: Plaintiff did not have an impairment or combination of 15 impairments that met or medically equaled the severity of one of the 16 listed impairments.

17 // 18 / AR 47–48.

15 AR 113–39.

16 AR 18–30.

1 • RFC: Plaintiff had the RFC to perform medium work, except, 2 he is limited to occupations that do not require fine hearing capabilities; must avoid excessive noise in excess of regular 3 traffic noise or moderate level; must avoid hazards such as dangerous moving machinery and unprotected heights; can 4 perform simple, routine, unskilled tasks with a reasoning level of 3 or less; is limited to work involving only occasional and 5 simple changes, and that do not require fast-paced type tasks; is limited to work involving no interaction with the public, 6 including no working with crowds; and is limited to work involving only occasional superficial interaction with 7 coworkers.17 8 • Step four: Plaintiff had no past relevant work.

9 • Step five: considering Plaintiff’s RFC, age, education, and work history, 10 Plaintiff could perform work that existed in significant numbers in the 11 national economy, such as industrial cleaner, hospital cleaner, and hand 12 packager.18 13 In reaching his decision, the ALJ did not consider any of the medical 14 opinions to be particularly persuasive, finding “somewhat persuasive” only the 15 opinion of Dan Donahue, PhD, a state-agency psychological consultant who 16 reviewed Plaintiff’s file and opined as to his mental RFC in October 2017.19 The AR 24.

18 AR 30.

19 AR 26–27. See also AR 179–81 (Dr. Donahue’s opinion as to Plaintiff’s mental RFC) 1 ALJ found all other medical sources of record unpersuasive, including the 2 following: 3 • James Irwin, MD, a state-agency medical consultant who reviewed 4 Plaintiff’s file and opined as to his physical RFC in December of 2017;20 5 • John Robinson, PhD, a state-agency medical consultant who reviewed 6 Plaintiff’s file and opined as to his mental RFC in December of 2017;21 7 • Christina Moore, ARNP, a treating provider who filled out a physical 8 functional evaluation on behalf of Plaintiff in May 2019;22 9 • David Morgan, PhD, an examining psychologist who conducted a 10 psychological evaluation of Plaintiff in May of 2019;23 11 • Ken Owens, Plaintiff’s treating mental-health therapist, who filled out a 12 mental-source statement on behalf of Plaintiff in May of 2019;24 and 13 • N.K. Marks, PhD, an examining psychologist who performed psychological 14 evaluations of Plaintiff in September 2014, October 2016, and June 2017.25 AR 192–94.

21 AR 192–94.

22 AR 714–16 (duplicated at AR 740–42).

23 AR 707–11.

24 AR 733–36.

2525 AR 613–19, 627–34. The ALJ did not specifically address the persuasiveness of Dr. Marks. Instead, the ALJ erroneously implied that Dr. Marks’ opinions are 1 The ALJ also found Plaintiff’s medically determinable impairments could 2 reasonably be expected to cause some of the alleged symptoms, but his statements 3 concerning the intensity, persistence, and limiting effects of those symptoms were 4 “not entirely consistent with the medical evidence and other evidence in the 5 record.”26 6 Plaintiff requested review of the ALJ’s decision by the Appeals Council, 7 which denied review.27 Plaintiff timely appealed to the Court.28 8 III. Standard of Review 9 A district court’s review of the Commissioner’s final decision is limited.29 10 The Commissioner’s decision is set aside “only if it is not supported by substantial 11 evidence or is based on legal error.”30 Substantial evidence is “more than a mere 12 scintilla but less than a preponderance; it is such relevant evidence as a reasonable “inherently neither valuable nor persuasive” under 20 C.F.R. § 416.920b(c). AR 28.

See also 20 C.F.R. § 416.920b(c) (setting forth categories of evidence that are deemed “inherently neither valuable nor persuasive”).

26 AR 25.

27 AR 1–6.

28 See 20 C.F.R. §§ 404.981, 416.1481, 422.201.

29 42 U.S.C. § 405(g).

30 Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012).

1 mind might accept as adequate to support a conclusion.”31 Because it is the role of 2 the ALJ to weight conflicting evidence, the Court upholds the ALJ’s findings “if 3 they are supported by inferences reasonably drawn from the record.”32 Further, 4 the Court may not reverse an ALJ decision due to a harmless error—one that “is 5 inconsequential to the ultimate nondisability determination.”33 6 IV. Analysis 7 Plaintiff first argues that the ALJ improperly rejected Plaintiff’s symptom 8 testimony.

9 A. Symptom Reports: Plaintiff shows consequential error.

10 As there is no affirmative evidence of malingering, after considering the 11 relevant factors, the ALJ was required to provide specific, clear, and convincing 31 Hill, 698 F.3d at 1159 (quoting Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997)).

32 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). See also Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (The court “must consider the entire record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner’s conclusion,” not simply the evidence cited by the ALJ or the parties.) (cleaned up); Black v. Apfel, 143 F.3d 383, 386 (8th Cir. 1998) (“An ALJ’s failure to cite specific evidence does not indicate that such evidence was not considered[.]”).

33 Molina, 674 F.3d at 1115 (cleaned up).

1 reasons—supported by substantial evidence—for rejecting Plaintiff’s symptom 2 reports.34 As explained below, the ALJ failed to meet this standard.

3 1. Hearing Loss 4 As a preliminary matter, Plaintiff seemingly challenges the ALJ’s findings 5 regarding hearing loss.35 But the ALJ accurately noted in his decision that 6 Plaintiff “reported that he uses hearing aids and has trouble hearing some 7 conversation with background noise.”36 The ALJ’s decision reflects he accepted 8 Plaintiff’s hearing-loss claims, as he crafted an RFC limited to jobs that do not 9 require fine-hearing capabilities and which avoid excessive noise as well as 10 hazards such as dangerous machinery.37 Plaintiff does not articulate any 11 additional hearing-based limitations that the ALJ should have included in the 12 RFC. The Court therefore finds no error in this regard.

34 See Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014); see also 20 C.F.R. §§ 404.1529(c), 416.929(c); SSR 16-3p, 2016 WL 1119029, at *7.

35 See ECF No. 11 at 5 (“The ALJ’s only reason for rejecting Moore’s claim of bilateral hearing loss and scoliosis with back pain are some normal examination findings, including normal straight leg raise tests, normal ambulation, and no sensory deficits.”).

36 AR 25.

37 AR 24.

1 2. Scoliosis with Back Pain 2 Plaintiff testified that his mid-to-lower back hurts all the time (“no matter 3 what”) and nothing provides relief.38 He said that because of his scoliosis and back 4 pain, he can sit for only about an hour and stand for only about 15 minutes at a 5 time.39 Plaintiff also testified that he is limited to lifting a maximum of 25 6 pounds.40 7 The ALJ rejected Plaintiff’s scoliosis-related testimony. The ALJ pointed to 8 benign findings upon examination, namely normal results for straight leg raises, 9 ambulation, toe and heel walking, gait and station, and range of motion of the 10 thoracic spine, as well as findings of no sensory deficits and no acute distress.41 11 The ALJ also highlighted that when Plaintiff received treatment for back pain, he 12 was advised to take Tylenol as needed and to perform back exercises and stretches AR 96–97, 121.

39 AR 125.

40 AR 126.

41 AR 25. The ALJ also cited to a May 2019 examination that “revealed no abnormalities.” Id. But that treatment note is of little support to the ALJ, as the musculoskeletal portion of the examination merely states, “Visual overview of all four extremities is normal.” AR 723 (emphasis added).

1 at home.42 The ALJ’s proffered reasons are valid in theory but lack sufficient 2 support and explanation.

3 a. Benign Medical Findings 4 Medical findings may serve as a clear and convincing reason to discount a 5 claimant’s testimony, but only if such medical findings are truly inconsistent with 6 specifically identified testimony.43 The ALJ did not explain why the identified 7 findings are inconsistent with Plaintiff’s testimony that his back pain causes 8 limitations in sitting, standing, and lifting.44 After all, it is undisputed that 9 Plaintiff has scoliosis; the ALJ found it to be a medically determinable severe 10 impairment, and the diagnosis has been confirmed by medical imaging.45 But AR 25.

43 See 20 C.F.R. §§ 404.1529(c)(3)–(4) 416.929(c)(3)–(4).

44 In assessing Plaintiff’s physical impairments, ALJ also repeatedly cited a finding of “mild dysarthria,” and it is unclear whether the ALJ considered this to undermine Plaintiff’s testimony and/or any of the medical opinions. See AR 25, 26.

Dysarthria is described by the National Institute on Deafness and Other Communication Disorders as a “group of speech disorders caused by disturbances in the strength or coordination of the muscles of the speech mechanism as a result of damage to the brain or nerves.” NIH, Dysarthria, https://www.nidcd.nih.gov/glossary/dysarthria (accessed Feb. 17, 2023).

45 AR 21, 599–602.

1 neither the Court nor the ALJ qualify as medical experts, and the ALJ found all 2 the medical opinions regarding the limiting effects of Plaintiff’s scoliosis to be 3 unpersuasive.46 Without more, the ALJ’s implied finding that the cited findings 4 are inconsistent with Plaintiff’s testimony is not supported by substantial evidence 5 or sufficient explanation.

6 b. Conservative Treatment of Physical Impairments 7 “Evidence of ‘conservative treatment’ is sufficient to discount a claimant’s 8 testimony regarding severity of an impairment.”47 Substantial evidence supports 9 the ALJ’s implied finding that Plaintiff pursued and received only conservative 10 treatment for his back pain.48 Yet, the ALJ did not address whether Plaintiff’s See Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975). As an example of an issue likely needing medical expertise, Plaintiff argues on appeal that a straight leg raise test “looks for lumbar nerve root irritation, not pain due to scoliosis.” See ECF No. 11 at 6. But the record lacks any evidence which allows the Court to assess this assertion.

47 Parra v. Astrue, 481 F.3d 742, 750–51 (9th Cir. 2007) (upholding the rejection of the claimant’s pain-severity testimony where the ALJ “noted that [the claimant]’s physical ailments were treated with an over-the-counter pain medication”).

48 See, e.g., AR 625 (Jan. 2017: “noncompliant with referral last year to PT/ortho . . . noncompliance with recommendations supports that the patient does not feel that his pain is bad enough to get assistance”); AR 683 (April 2019: advising 1 conservative treatment could be explained by reasons other than his back pain 2 being less severe than he claimed. Notably, both medical records cited by the ALJ 3 relate to Plaintiff establishing care with a new physician.49 Based on logic and 4 common experience, one would reasonably expect a doctor who is just beginning to 5 treat a new patient to recommend conservative care—at least to start—before 6 progressing to more aggressive treatment options.

7 More importantly, Plaintiff offered potential explanations for the lack of 8 increased treatment. Plaintiff testified that when he got clean and sober after 9 suffering from a drug addiction, he decided against “all kinds of medication,” which 10 presumably includes prescription-level pain killers.50 Plaintiff further said he is 11 “not a big fan of doctors” and does not trust them because of bad experiences when 12 undergoing surgery as a child.51 He also indicated he cannot afford “any kind of 13 stuff medically.”52 Plaintiff to take Tylenol as needed and to do home-based back stretches for back pain); AR 739 (Nov. 2020: advising Plaintiff to perform back stretches and to take Tylenol as needed, and referring Plaintiff to physical therapy).

49 AR 25, 26 (repeatedly citing AR 679, 682–83, 738–39).

50 See AR 123.

51 AR 99.

52 AR 99.

1 Under these circumstances, the Court cannot dismiss as harmless the ALJ’s 2 failure to address potential alternative explanations for Plaintiff’s conservative 3 level of care. The ALJ therefore failed to provide clear and convincing reasons 4 supported by substantial evidence for rejecting Plaintiff’s back-pain symptom 5 testimony.

6 3. Hernia 7 Plaintiff testified that he has an inguinal hernia that will “flare up” if he 8 spends “too much time walking.”53 Plaintiff’s hernia is documented in the medical 9 records.54 And the ALJ inquired about it at the January 2021 hearing.55 Yet, the 10 ALJ’s written decision did not address—or even mention—Plaintiff’s hernia.

11 The ALJ’s oversight is consequential. The ALJ assessed Plaintiff as capable 12 of performing medium work without any walking-related limitations.56 Medium 13 work includes jobs requiring “a good deal of walking.”57 Each of the three AR 97.

54 See, e.g., AR 582 (April 2016: “large inguinal hernia needs to be repaired before it worsens and causes an emergency”); AR 594, 596 (Jan. 2015: physical exam positive for left inguinal hernia, but “pt declined general surgery referral”); AR 738 (same).

55 AR 97–98.

56 See AR 24. Cf. AR 98 (“I don’t do a lot of walking, so it doesn’t bother me.”).

57 See 20 C.F.R. §§ 404.1567(b)–(c), 416.967(b)–(c).

1 representative occupations listed by the ALJ are defined as medium work, and the 2 Dictionary of Occupational Titles does not indicate that any of the three 3 occupations inherently involve less walking.58 4 4. Mental-Health Impairments 5 Regarding his depression, Plaintiff testified that his depression left him with 6 no drive or motivation. He said, “There are days where I don’t take care of myself.

7 I don’t get out of bed for hours.”59 He indicated this occurred “at least weekly” and 8 that, on average, he stayed mostly in bed for 3–4 days per week.60 Plaintiff also 9 testified that although he can be sociable in one-on-one settings, he has problems 10 with crowds, giving a full city bus as an example of a setting with too many 11 people.61 12 In discounting Plaintiff’s mental-health symptom testimony, the ALJ noted 13 that Plaintiff was not currently undergoing counseling and has not taken mental- 14 health medications for years.62 The ALJ also recited a treatment history and cited See AR 30; see also U.S. Dep’t of Labor, Dictionary of Occupational Titles at 381.687-018 (Cleaner, Industrial), 1991 WL 673258; id. at 323.687-010 (Cleaner, Hospital) 1991 WL 672782; id. at 920.587-018 (Packager, Hand), 1991 WL 687916.

59 AR 93.

60 AR 94, 122–23.

61 AR 93–94, 122.

62 AR 24–25.

1 to treatment notes including benign mental-status findings, Plaintiff’s self-reported 2 activities, and later reports by Plaintiff that he was doing well.63 Thus, fairly read, 3 the ALJ’s decision also includes implied findings that Plaintiff’s symptom 4 testimony was inconsistent with the cited treatment notes.

5 a. Conservative Treatment of Mental-Health Impairments 6 For the same reasons discussed above regarding Plaintiff’s physical- 7 impairment symptom testimony, on this record—absent additional explanation 8 and/or evidence—a lack of prescription mental-health medications is not a 9 convincing reason to discount Plaintiff’s mental-health symptom testimony.64 10 Additionally, Plaintiff implied that the reason he was no longer receiving 11 counseling was because of “the COVID shutdown.”65 Finally, “it is a questionable AR 25.

64 See Garrison v. Colvin, 759 F.3d 995, 1018 n.24 (9th Cir. 2014) (holding an ALJ may not reject a claimant’s symptom testimony based on a lack of treatment if “the record affords compelling reason to view such departures from prescribed treatment as part of claimants’ underlying mental afflictions”). Psychologists who evaluated Plaintiff indicated Plaintiff may have been self-medicating by drinking excessive amounts of Pepsi. See AR 613, 635, 662; see also AR 628 (April 2010: “He was noted to have seriously decayed teeth, bad breath. He had a history of past drug use, none recently, drank a lot of Pepsi.”).

65 AR 119.

1 practice to chastise one with a mental impairment for the exercise of poor 2 judgment in seeking rehabilitation.”66 To reject Plaintiff’s mental-health testimony 3 based on a conservative level of care, the ALJ was required to provide a more 4 meaningful explanation, supported by substantial evidence, as to why the potential 5 alternative reasons found in the record do not sufficiently explain Plaintiff’s type 6 and degree of treatment.

7 b. Treatment Notes Containing Self-Reports 8 Throughout the ALJ’s analysis of Plaintiff’s mental impairments, the ALJ 9 relied on a certain set of treatment notes.67 Describing Plaintiff’s mental 10 impairments, the ALJ acknowledged that “the record demonstrates a history of 11 ADHD, depression, anxiety, and learning disorder.”68 The ALJ then recited 12 Plaintiff’s treatment history, starting in April 2019.

13 i. Mental-Status Results from April 2019 14 Citing to a single April 23, 2019 treatment note, the ALJ stated that 15 Plaintiff “complained of depressed mood, low energy, anxiety, and irritability,” but 16 “[a]n examination demonstrated average eye contact, a cooperative attitude, a Regennitter v. Comm’r of Soc. Sec. Admin., 166 F.3d 1294, 1209–1300 (9th Cir. 1999).

67 See AR 22–23, 25, 27–28 (repeatedly referring to the same set of treatment notes).

68 AR 25 (cleaned up).

1 euthymic mood with a full affect, logical thought processes, normal thought 2 content, normal cognition, estimated average intelligence, and normal insight and 3 judgment.”69 The ALJ’s repeated reliance on this one examination is problematic 4 for a few reasons.70 5 An ALJ may validly consider discrepancies between a claimant’s reported 6 symptoms and the observations of treatment providers.71 While one could 7 reasonably infer that someone experiencing severe depression and/or anxiety would 8 be more likely to exhibit an abnormal mood and affect, that is not necessarily true 9 for the other normal findings which the ALJ apparently found important. As 10 courts have repeatedly noted, “the treatment records must be viewed in light of the AR 25 (citing AR 674–76). See also AR 22–23 (citing the same in analyzing the Paragraph B criteria of understanding, remembering, and applying information; interacting with others; concentrating, persisting, or maintain pace; and adapting or managing oneself); AR 27–28 (citing the same in assessing the opinions of Dr. Donahue, Dr. Morgan, and Mr. Owens). Elsewhere, the ALJ also cited to a May 2019 mental-status exam performed by Dr. Morgan, but only once and in the context of assessing Dr. Morgan’s medical opinion. See AR 27 (citing AR 711).

70 Notably, the ALJ’s recitation is accurate but omits that the treating provider indicated he had not used any “evidence-based screening tool(s)” in assessing Plaintiff’s mental health. AR 674.

71 See Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996).

1 overall diagnostic record,” and a claimant’s reports of suffering from severe 2 depression and/or anxiety are not necessarily inconsistent with that claimant also 3 presenting with normal cognitive abilities, such as “good eye contact, organized and 4 logical thought content, and focused attention.”72 The ALJ gave no explanation for 5 why Plaintiff’s claimed mental-health symptoms and limitations are inconsistent 6 with him demonstrating average eye contact, a cooperative attitude, and/or 7 cognitive abilities within normal limits.

8 Further, though the record reflects Plaintiff frequently presented at other 9 appointments with a normal mood and affect, there are also records of him 10 presenting as depressed, anxious, and/or fatigued.73 Because the record contains 11 such mixed evidence, it was improper for the ALJ to rely on a single mental-status See, e.g., Ghanim, 763 F.3d at 1164 (finding the ALJ erred by rejecting the claimant’s symptoms resulting from anxiety and depressive disorder on the basis that the claimant performed cognitively well during examination and was described as “upbeat,” “smiling very brightly,” and “more talkative about positive things”).

73 Compare, e.g., AR 646, 675, 682, 711, 723, 738 (each indicating a normal mood and affect) with, e.g., AR 617, 633, 653 (each indicating an irregular mood and/or affect).

1 exam to imply a broad and consistent pattern.74 Moreover, the record contains at 2 least some evidence suggesting that Plaintiff does not always present with a mood 3 and affect consistent with the severity of his symptoms.

4 In August 2014, Plaintiff attempted suicide by jumping out a car traveling 5 60–65 mph, and he was brought by ambulance to the emergency department. Even 6 while treating his injuries and summoning the crisis response unit, the emergency- 7 department personnel noted Plaintiff’s presentation as “normal affect, no emotional 8 distress noted.”75 Then, when the crisis response unit assessed Plaintiff, the 9 examiner noted, “He was pleasant, had good eye contact, and was cooperative.”76 10 Such evidence raises the question of whether Plaintiff may present to many as 11 having a normal mood and/or affect even when he is suffering from severe 12 depression or anxiety.

13 Given the above, additional explanation—and likely additional medical- 14 expert evidence—is needed for the Court to ascertain whether the normal mental- 15 status findings cited by the ALJ provide a reasonable basis for discounting

74 See Garrison, 759 F.3d at 1018 (“While ALJs obviously must rely on examples to show why they do not 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.”).

75 AR 494.

76 AR 503.

1 Plaintiff’s mental-health symptom reports.77 On this record, the ALJ’s proffered 2 reason is neither clear nor convincing; nor is it supported by substantial evidence.

3 ii. Reported Activities from 2019 4 The ALJ called attention to Plaintiff’s reported activities from May through 5 December 2019, citing five treatment notes from that period.

6 [In early May], the claimant reported that he was excited that he was able to get tickets for a wrestling event. In late May of 2019, the 7 claimant reported that he was able to get out four days last week, including attending a live wresting event.78 A week later, the 8 claimant reported that he was so exhausted “from running around” See Embrey v. Bowen, 849 F.2d 418, 421–22 (9th Cir. 1988) (requiring the ALJ to identify the evidence supporting the found conflict to permit the Court to meaningfully review the ALJ’s finding); see also Day, 522 F.2d at 1156 (recognizing that an ALJ is “not qualified as a medical expert” and should not go outside the record for purposes of “making his own exploration and assessment as to the claimant’s [mental] condition”).

78 Although the error is likely inconsequential, in the May 2019 treatment note to which the ALJ cites, it does not appear that Plaintiff reported attending “a live wresting event.” Rather, Plaintiff reported housesitting briefly for a woman, saying, “while she went to work . . . I got to watch SmackDown live[,] WWE[,] [and] History Channel[;] it was fun since I don’t have cable.” AR 696. This suggests Plaintiff was referring to watching the Smackdown event on television. See https://www.fox.com/wwe-friday-night-smackdown/ (listing television airtimes).

1 that he decided to stay home over the weekend . . . .79 In June of 2019, he reported that he had been getting out to pay bills. Therapy records 2 from October of 2019 noted that the claimant had recently gone out with his girlfriend and her mother. In December of 2019, the 3 claimant reported that he was mostly staying home and only going out for groceries.80 It is unclear how any of the activities identified by the ALJ are inconsistent with Plaintiff’s testimony that his mental impairments caused him to stay at home, mostly in bed, 1–4 days per week on average.81 Rather, the record reflects that— mirroring his testimony—Plaintiff consistently reported getting out of the house only a few times per week.82 More, the content and tenor of the treatment notes at The ALJ did not explain, and it is not clear from the record, what Plaintiff meant by “running around.” Absent more information, this report is too vague to reasonably be considered inconsistent with Plaintiff’s symptom testimony.

80 AR 25 (cleaned up).

81 See AR 93–94, 122–23.

82 See, e.g., AR 701 (May 7, 2019: Plaintiff reporting that he had not “not really” gotten out other than to pick up his tickets, and his therapist inquiring about “how will he manage when he as to go to this wresting event”); AR 696 (May 22, 2019: Plaintiff reporting he “was able to get out four days last week,” to which his therapist “praised him and asked how did he feel”); AR 753 (June 10, 2019: Plaintiff reporting getting out but indicating it was limited to paying bills); AR 750 (Oct. 2019: Plaintiff reporting going out with his girlfriend and her mother for his 1 that time suggest that each of the identified activities was viewed as an 2 accomplishment—a remarkable event rather than a common occurrence. Where a 3 claimant’s reported activities do not contradict his symptom testimony, the ALJ 4 may reject such symptom testimony only upon making “specific findings relating to 5 the daily activities and their transferability” to a work setting.83 6 The ALJ erred by rejecting Plaintiff’s mental-health symptom testimony 7 based on his reported activities without articulating any meaningful inconsistency.

8 On this record, the ALJ’s proffered reason is neither clear nor convincing; nor is it 9 supported by substantial evidence.

10 iii. Self-Reports of Doing Well from 2020 11 Last, the ALJ went on to cite two of the more-recent treatment notes from 12 Plaintiff’s therapy sessions indicating he was doing well. The ALJ wrote, 13 Treatment records from early 2020 noted that the claimant reported “doing awesome” and that he was staying at home and playing video birthday, indicating he was relieved that “it turned out to be okay”); AR 758 (Dec. 2019: Plaintiff reporting “nothing[’]s really changed” and that he leaves only when he needs groceries and then returns back home).

83 See Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007); See also Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) (The Ninth Circuit has “repeatedly asserted that the mere fact that a plaintiff has carried on certain daily activities, such as grocery shopping, driving a car, or limited walking for exercise, does not in any way detract from [his] credibility as to [his] overall disability.”).

1 games. Overall, he reported that everything had “been going good.”

More recently, in late May of 2020, the claimant stated that “other 2 than being bored” he was “doing okay”, that he was trying to keep himself busy playing video games, and that he was trying to spend 3 time with his friend. Additionally, he reported that he was only going out for groceries.84 “[E]vidence of medical treatment successfully relieving symptoms can undermine a claim of disability,” and an ALJ may discount a claimant’s reported symptoms if they sufficiently improved with treatment.85 However, when presented with evidence of mental-health improvement, it can sometimes be difficult to determine whether such improvement is attributable to the treatment being administered or the inherent tendency of mental-health symptoms to wax and wane.86 Further, simply because a claimant shows some improvement does not mean that his symptoms have improved to point where they no longer preclude competitive employment.87 As such, for evidence of successful treatment to provide AR 25–26 (cleaned up).

85 See Wellington v. Berryhill, 878 F.3d 867, 876 (9th Cir. 2017). See also 20 C.F.R. §§ 404.1529(c)(3), 416.913(c)(3); Morgan v. Comm’r of Social Sec. Admin., 169 F.3d 18 595, 599–600 (9th Cir. 1999) (considering evidence of improvement).

86 See, e.g., Wellington, 878 F.3d at 876; Garrison, 759 F.3d at 1017 (“Cycles of improvement and debilitating symptoms are a common occurrence. . . .”).

87 See Garrison, 759 F.3d at 1017 (citing Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001)).

1 a valid basis for an ALJ to reject the claimant’s mental-health symptom reports, 2 the evidence must demonstrate that (1) the relief is lasting, and (2) the type and 3 degree of relief are such that it is truly at odds with the symptom reports being 4 rejected.88 5 Here, the earliest record cited by the ALJ is a treatment note from January 6 2020,89 though the record reflects that Plaintiff similarly reported “doing good 7 overall” as early as October 2019.90 Given the recency of these treatment notes and 8 the fact that Plaintiff filed his application in August 2017, the ALJ’s reasoning does 9 not speak to the entirety of the relevant period.91 Even if Plaintiff’s self-reports 10 were sufficient to show he was not disabled from late 2019 to early 2020, the See Garrison, 759 F.3d at 1017–18; see also Reddick v. Chater, 157 F.3d 715, 723 (9th Cir. 1998) (recognizing that an ALJ must account for the context of the claimant’s prior report as well as the nature of his impairment and its symptoms).

89 AR 25 (citing AR 772).

90 AR 755.

91 See Smith v. Kijakazi, 14 F.4th 1108, 1113 (9th Cir. 2021) (holding that the claimant’s testimony “could not be discredited as a whole because of changes over time or inconsistencies relevant only to portions of testimony describing a certain period”).

1 treatment notes relied upon by the ALJ would not foreclose the possibility of 2 Plaintiff nonetheless qualifying for a closed period of disability.92 3 The latest treatment note regarding Plaintiff’s self-reports of doing well is 4 from May 2020.93 But the record lacks any medical opinions or other medical 5 evidence informing the issue of whether—given Plaintiff’s specific mental 6 impairments—this is a sufficiently long period to attribute Plaintiff’s reported 7 relief to successful treatment rather than a natural, and temporary, waning of his 8 mental-health symptoms. Still, even assuming the duration to be sufficient, the 9 same therapy notes from that period also reflect that Plaintiff continued to report 10 mostly staying within the confines of his house.94 Moreover, reports of “doing well” 11 in the context of mental-health treatment do not necessarily speak to any objective 12 level of functioning.95 Accordingly, the treatment notes on which the ALJ relied, See 42 U.S.C. § 1382c (providing that claimants may generally receive benefits for any period of disability lasting, or expected to last, at least 12 months).

93 AR 779–80; see also AR 25–26 (citing the same).

94 See AR 758 (Dec. 2019: Plaintiff reporting going out only to buy groceries); AR 772 (Jan. 2020: Plaintiff reporting “doing okay” overall, but in the context of staying at home playing video games); AR 774 (May 2020: Plaintiff reporting “doing okay,” but in the context of going out only for groceries).

95 See Orn, 495 F.3d at 634; see also Garrison, 759 F.3d at 1017 (quoting with approval Hutsell v. Massanari, 259 F.3d 707, 712 (8th Cir. 2001) (“We also believe 1 despite showing improvement/relief, are also nonetheless consistent with Plaintiff’s 2 testimony that his mental impairments kept him at home 1–4 days in an average 3 week.96 4 On this record, Plaintiff’s relatively recent self-reports of doing well did not 5 serve as a clear or convincing reason for the ALJ to reject Plaintiff’s mental-health 6 symptom testimony.

7 c. Consequential Error 8 The ALJ relied upon evidence of normal mental-status results, Plaintiff’s 9 limited activities, and Plaintiff’s recent self-reports of doing well in a therapy 10 context, yet the ALJ failed to adequately explain how such evidence could 11 undermine any of Plaintiff’s symptom testimony. The ALJ therefore failed to 12 provide any specific, clear, and convincing reason, supported by substantial 13 evidence, for rejecting Plaintiff’s symptom testimony. Vocational-expert testimony 14 establishes that if Plaintiff’s testimony had been fully credited—particularly his

that the Commissioner erroneously relied too heavily on indications in the medical record that [the claimant] was ‘doing well,’ because doing well for the purposes of a treatment program has no necessary relation to a claimant’s ability to work or to [his] work-related functional capacity.”)).

96 See AR 93–94, 122–23.

1 testimony regarding his mental impairments being sufficiently severe to keep him 2 from leaving his house on a weekly basis—he would have been found disabled.97 3 B. Medical Opinions: Plaintiff shows error.

4 Reversal is already required based on the ALJ’s errors in assessing 5 Plaintiff’s symptom reports. Further, the ALJ’s view on Plaintiff’s symptom 6 reports likely impacted the ALJ’s analysis throughout his decision, including his 7 assessment of the medical opinions and other evidence of record. As such, the 8 Court need not address Plaintiff’s other allegations of error.

9 Even so, the Court notes that throughout the ALJ’s mental-impairment 10 analysis—including his assessment of the medical-opinion evidence and the 11 Listings’ Paragraph B criteria—the ALJ cited to the same treatment notes and 12 applied the same erroneous reasoning that he used to discount Plaintiff’s symptom 13 reports.98 In evaluating the persuasiveness of the medical opinions, the ALJ failed 14 to adequately articulate how the opinions being rejected were rendered less 15 persuasive by the evidence being relied upon.99

97 See AR 136 (opining that employers would generally tolerate no more than one absence per month on average).

98 See AR 22–23, 25, 27–28.

99 See 20 C.F.R. §§ 404.1520c, 416.920c (setting forth relevant factors and articulation requirements for the ALJ to follow when analyzing medical opinions); Embrey, 849 F.2d at 421–22 (requiring the ALJ to identify and explain 1 C. Remand: Further proceedings are required.

2 Plaintiff seeks a remand for payment of benefits. However, further 3 proceedings are necessary because significant questions of fact remain, and 4 disability is not clearly established.100 On remand, the ALJ shall conduct the 5 disability evaluation anew, beginning at step two, subject to the following 6 instructions.

7 • The ALJ shall expressly address Plaintiff’s hernia and what effect, if any, 8 it has on Plaintiff’s RFC.

9 • If the ALJ again discounts Plaintiff’s symptom reports, the ALJ must 10 articulate specific, clear, and convincing reasons for doing so.101 General 11 findings are insufficient because the Court cannot affirm discounting 12 Plaintiff’s symptoms for a reason not articulated by the ALJ.102 The ALJ 13 must identify what symptoms are being discounted and what evidence

inconsistencies before discounting a medical opinion based on the consistency factor).

100 See Leon v. Berryhill, 800 F.3d 1041, 1045 (9th Cir. 2017); Garrison, 759 F.3d at 20 1020.

101 Ghanim, 763 F.3d at 1163.

102 See Garrison, 759 F.3d at 1010.

1 undermines these symptoms.103 In doing so, the ALJ should be mindful 2 not to conflate inconsistency with the mere absence of support—a 3 claimant’s symptom reports cannot be discounted solely on the grounds 4 that they are not fully corroborated by objective medical evidence.104 5 • Further, if the ALJ again relies upon conservative treatment as a reason 6 to discount Plaintiff’s symptom testimony (or any other evidence), the 7 ALJ must expressly consider what treatment options are available and 8 whether the evidence supports any alternative explanations—reasons 9 other than Plaintiff’s symptoms being less severe than he claims—for 10 why Plaintiff has not pursued treatment of a different type or degree of 11 available treatment.

12 • As to the medical-opinion evidence, the ALJ must meaningfully articulate 13 the supportability and consistency of each medical source, specifically 14 including Dr. Marks.

15 • As to Plaintiff’s scoliosis/back pain and hernia—especially if the ALJ 16 again rejects all the current medical opinions regarding Plaintiff’s 17 physical impairments and resulting limitations—the ALJ is encouraged 18 to call a medical expert who is qualified to assess the significance of the Ghanim, 763 F.3d at 1163 (requiring the ALJ to sufficiently explain why he discounted claimant’s symptom claims).

104 See Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001).

1 medical evidence, specifically including the physical-exam results and the 2 medical imaging in the record, in the context of scoliosis/back pain and/or 3 a hernia.

4 • As to Plaintiff’s mental impairments, the ALJ is also encouraged to call a 5 mental-health expert qualified to assess the significance of the medical 6 evidence, specifically including the normal mental-status findings, as 7 well as the extent to which Plaintiff’s mental-impairment symptoms may 8 reasonably be expected to wax and wane, even with treatment.

9 • Generally, unless made clear by context, the ALJ should explain whether 10 a finding applies to the entire relevant period or just a portion thereof.105 11 V. Conclusion 12 Plaintiff establishes the ALJ erred. The ALJ is to develop the record and 13 reevaluate—with meaningful articulation and evidentiary support—the sequential 14 process as set forth above.

15 Accordingly, IT IS HEREBY ORDERED: 16 1. Plaintiff’s Motion for Summary Judgment, ECF No. 11, is 17 GRANTED.

18 2. The Commissioner’s Motion for Summary Judgment, ECF No. 12, is 19 DENIED.

20 3. The Clerk’s Office shall enter JUDGMENT in favor of Plaintiff.

105 See Smith, 14 F.4th at 1113.

4, The decision of the ALJ is REVERSED and this matter is REMANDED to the Commissioner of Social Security for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g).

5. The case shall be CLOSED.

IT IS SO ORDERED. The Clerk’s Office is directed to file this order and provide copies to all counsel.

DATED this 6 day of March 2023.

Buwd I Shen EDWARD F. SHEA Senior United States District Judge ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 32