Henke v. O'Malley

— 1 — — 2 — — 3 — 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION — 7 — 8 M.H., Case No. 24-cv-03841-VKD 9 Plaintiff, ORDER RE SOCIAL SECURITY 10 v. APPEAL 11 FRANK BISIGNANO, Re: Dkt. Nos. 13, 15, 16 Defendant. — 12 — — 13 — 14 Plaintiff M.H.1 challenges a final decision of the Commissioner of Social Security 15 (“Commissioner”)2 denying his application for disability insurance benefits under Title II of the 16 Social Security Act (“Act”), 42 U.S.C. § 423 , et seq. M.H. contends that the ALJ failed to provide 17 clear and convincing reasons for discounting his allegations of mental dysfunction, erred in her 18 evaluation of certain medical opinions, and failed to provide germane reasons for discounting the 19 lay witness report of M.H.’s wife. The Commissioner maintains the ALJ’s decision is supported 20 by substantial evidence and free of legal error. 21 The parties have filed their respective briefs. Dkt. Nos. 13, 15, 16. The matter was 22 submitted without oral argument. Civil L.R. 16-5. Upon consideration of the papers and the 23 relevant evidence of record, for the reasons set forth below, the Court reverses the Commissioner’s — 24 — — 25 — 1 Because orders of the Court are more widely available than other filings, and this order contains potentially sensitive medical information, this order refers to the plaintiff only by his initials. This — 26 — order does not alter the degree of public access to other filings in this action provided by Rule 5.2(c) of the Federal Rules of Civil Procedure and Civil Local Rule 5-1(c)(5)(B)(i). — 27 — 1 decision and remands this case for further administrative proceedings consistent with this order.3 2 I. BACKGROUND 3 M.H. was 44 years old on September 17, 2019, the date he filed his application for 4 disability insurance benefits. AR4 59. The record indicates that M.H. completed high school and 5 three years of community college and that he previously worked as a software engineer from 1995 6 to 2018. See AR 281, 391, 491. M.H. stopped working initially on July 10, 2018 and 7 unsuccessfully attempted to return to work in October 2018, January 2019, and March 2019. AR 8 491. 9 On September 17, 2019, M.H. applied for disability insurance benefits, alleging disability 10 beginning July 10, 2018 due to traumatic brain injury (“TBI”) and TBI symptoms of nausea, 11 inability to interact with people, poor memory, inability to visualize 3D space for long, vertigo, 12 inability to fill out forms, being easily overstimulated from sensory stimuli, irregular sleep 13 patterns, and damaged executive function. See AR 59-60. M.H.’s application was denied initially 14 and on review. AR 59-72, 74-90. On April 13, 2021, an ALJ held a hearing (AR 31-58) and 15 subsequently issued an unfavorable decision on June 30, 2021 (AR 15-26). The Appeals Council 16 denied M.H.’s request for review of the ALJ’s decision on August 12, 2022. AR 1-4. On October 17 14, 2022, M.H. filed a complaint in the United States District Court for the Northern District of 18 California seeking judicial review of the Commissioner’s final decision. AR 546-548. On April 19 11, 2023, upon stipulation of the parties, the district court remanded M.H.’s case for further 20 administrative proceedings and a new decision. AR 557-558. 21 On remand, the ALJ held a new hearing on February 8, 2024, at which a vocational expert 22 testified. AR 512, 532-536. On May 8, 2024, the ALJ issued a new decision, again finding that 23 M.H. is not disabled. AR 489-505. The ALJ found that M.H. meets the insured status 24 requirements of the Act through December 31, 2024 and that he has not engaged in substantial 25 gainful activity since July 10, 2018, the alleged onset date. AR 491-492. The ALJ further found — 26 — 3 All parties have expressly consented that all proceedings in this matter may be heard and finally — 27 — adjudicated by a magistrate judge. 28 U.S.C. § 636 (c); Fed. R. Civ. P. 73; Dkt. Nos. 4, 6. 1 that M.H. has the following severe impairments: TBI, neurocognitive disorder, and alcohol abuse 2 disorder. AR 492. However, the ALJ concluded that M.H. does not have an impairment or 3 combination of impairments that meets or medically equals the severity of one of the impairments 4 listed in the Commissioner’s regulations. Id. The ALJ determined that M.H. has the residual 5 functional capacity (“RFC”) to perform a full range of work at all exertional levels, but with the 6 following non-exertional limitations: 7 no climbing ladders, ropes, or scaffolds; avoid concentrated exposure to hazards such as unprotected heights and moving machinery; the — 8 — individual is limited to simple tasks with only occasional interactions 9 with coworkers and supervisors; the individual should have no public interactions; the individual is limited to occasional changes; and the 10 individual would work best in an environment that is task oriented and does not require a specific production pace (i.e., clarified to mean 11 performed in a work environment where there is not an external force that sets the pace of work, for example work with a conveyor belt or — 12 — tandem, collaborative work). — 13 — AR 494. — 14 — In view of this RFC, the ALJ found that M.H. is unable to perform any past relevant work. — 15 — AR 504. However, the ALJ found that based on M.H.’s age, education, work experience, and — 16 — RFC, M.H. could perform other jobs that exist in significant numbers in the national economy, — 17 — such as assembler of small products, inspector and hand packager, and marker or pricer. AR 50418 505. Accordingly, the ALJ concluded that M.H. was not disabled, within the meaning of the Act, — 19 — from the alleged onset date of July 10, 2018 through the May 8, 2024 date of the ALJ’s decision. — 20 — AR 505. The ALJ’s decision is a final decision. See 20 C.F.R. § 404.984 . — 21 — M.H. filed the present action seeking judicial review of the decision denying his — 22 — application for benefits. — 23 — II. LEGAL STANDARD — 24 — Pursuant to 42 U.S.C. § 405 (g), this Court has the authority to review the Commissioner’s — 25 — decision to deny benefits. The Commissioner’s decision will be disturbed only if it is not — 26 — supported by substantial evidence or if it is based upon the application of improper legal — 27 — standards. Ahearn v. Saul, 988 F.3d 1111, 1115 (9th Cir. 2021) (citation omitted); Morgan v. 1 Comm’r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999) (citation omitted). In this context, 2 the term “substantial evidence” means “more than a mere scintilla” but “less than a 3 preponderance” and is “such relevant evidence as a reasonable mind might accept as adequate to 4 support a conclusion.” Ahearn, 988 F.3d at 1115 (quoting Biestek v. Berryhill, 587 U.S. 97 , 103 5 (2019) and Molina v. Astrue, 674 F.3d 1104, 1110-11 (9th Cir. 2012), superseded by regulation on 6 other grounds); see also Morgan, 169 F.3d at 599 (citation omitted). When determining whether 7 substantial evidence exists to support the Commissioner’s decision, the Court examines the 8 administrative record as a whole, considering adverse as well as supporting evidence. Ahearn, — 9 — 988 F.3d at 1115 (citation omitted); Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). 10 Where evidence exists to support more than one rational interpretation, the Court must defer to the 11 decision of the Commissioner. Ahearn, 988 F.3d at 1115-16 (citation omitted); Morgan, 169 F.3d 12 at 599 (citation omitted). 13 III. DISCUSSION 14 M.H. challenges several determinations made by the ALJ. First, he argues that the ALJ 15 failed to provide clear and convincing reasons for discounting M.H.’s allegations and testimony 16 about his symptoms of mental dysfunction. Second, he argues that the ALJ did not properly 17 evaluate opinions from four medical sources. Third, he argues that the ALJ did not provide 18 germane reasons for discounting the lay witness report of M.H.’s wife. Because the parties’ 19 arguments are at least partly informed by issues concerning the ALJ’s evaluations of the medical 20 opinions, the Court addresses those arguments first. 21 A. Medical Opinions 22 M.H. contends that the ALJ did not properly evaluate the medical opinions of: state 23 agency consultative psychologist Molly Malone, Psy.D.; treating physician Julia Shaver, M.D.; 24 treating chiropractor Colleen McCoy, D.C.; and treating mental health examiner Grayce Stratton, 25 Psy.D. The Commissioner maintains that the ALJ properly evaluated these medical opinions. 26 Under the regulations that apply to R.R.’s application,5 the Commissioner does not give — 27 — 1 specific evidentiary weight to medical opinions. Instead, the Commissioner evaluates the 2 “persuasiveness” of all medical opinions in the record based on: (1) supportability; (2) 3 consistency; (3) relationship with the claimant; (4) specialization; and (5) other factors, such as 4 “evidence showing a medical source has familiarity with the other evidence in the claim or an 5 understanding of our disability program’s policies and evidentiary requirements.” 20 C.F.R. 6 § 404.1520c; see also Woods v. Kijakazi, 32 F.4th 785, 787 (9th Cir. 2022) (“For claims subject to 7 the new regulations, the former hierarchy of medical opinions—in which we assign presumptive 8 weight based on the extent of the doctor’s relationship with the claimant—no longer applies.”). 9 An ALJ’s decision, “including the decision to discredit any medical opinion, must simply be 10 supported by substantial evidence.” Woods, 32 F.4th at 787 . 11 Supportability and consistency are considered the most important factors, and the ALJ is 12 required to explicitly address them in his or her decision. 20 C.F.R. § 404 .1520c(b)(2). 13 “Supportability means the extent to which a medical source supports the medical opinion by 14 explaining the ‘relevant . . . objective medical evidence.’” Woods, 32 F.4th at 791 -92 (quoting 20 15 C.F.R. § 404 .1520c(c)(1)). “Consistency means the extent to which a medical opinion is 16 ‘consistent . . . with the evidence from other medical sources and nonmedical sources in the 17 claim.’” Id. at 792 (quoting 20 C.F.R. § 404 .1520c(c)(2)). The ALJ “may, but [is] not required 18 to,” explain how he or she considered the remaining three factors listed in the regulations. 20 19 C.F.R. § 404 .1520c(b)(2). 20 1. State Agency Consultative Psychologist Dr. Malone 21 M.H. contends that the ALJ failed to properly evaluate the opinion of state agency 22 consultative psychologist Molly Malone, Psy.D. Dkt. No. 13 at 9. The Commissioner responds 23 that the ALJ properly assessed Dr. Malone’s opinion. Dkt. No. 15 at 9. The Court agrees with 24 M.H. 25 a. Summary of Opinion 26 Dr. Malone conducted a comprehensive psychological evaluation of M.H. on April 1, — 27 — 1 2020. AR 397-403. Her diagnoses included unspecified neurocognitive disorder with psychiatric 2 disturbance and mild alcohol use disorder. AR 402. Dr. Malone noted M.H. arrived on time for 3 his appointment, had driven himself, and had adequate grooming. AR 397-398. M.H. reported he 4 had suffered multiple head injuries and expressed difficulties with tracking, set-shifting, and 5 following multiple-step directions. AR 397. He reported being easily overstimulated by sounds, 6 is unable to be around groups of people for any extended period of time, and feels chronic 7 irritability and decreased frustration tolerance. Id. M.H. stated these difficulties began 8 approximately 25 years ago after he suffered a head injury in high school, but the symptoms 9 worsened following his most recent head injury in 2018. Id. 10 Dr. Malone observed that M.H. made fair eye contact, had a normal facial expression, 11 interacted appropriately with the examiner throughout the evaluation, and did not exhibit bizarre 12 behavior. AR 398. M.H. was alert and oriented, had normal speech, and exhibited fair attention 13 and concentration. AR 399. Dr. Malone also noted that M.H.’s mood was dysthymic and his 14 memory for recently learned information was poor. Id. She further noted that M.H.’s insight and 15 judgment appeared to be limited. Id. M.H. reported that he is independent for basic activities of 16 daily living, but he occasionally requires prompts to attend to tasks. AR 398. He reported that he 17 can prepare simple meals, do light household chores, make change at the store, and manage funds 18 independently. AR 398, 403. 19 M.H. scored “extremely low” and “borderline” on the Wechsler Memory Scale test which 20 assesses various memory and working memory abilities in individuals. AR 401. Dr. Malone 21 noted that M.H.’s Wechsler Memory Scale’s scores “suggest that in a work setting the claimant 22 will have significant deficits with remembering simple and/or complex work tasks.” AR 402. 23 M.H.’s IQ score and working memory index score were both in the average range. AR 400. The 24 working memory index requires “the claimant to repeat numbers, forward, backwards, and in 25 sequential order in addition to performing basic mental mathematic calculations.” Id. 26 Dr. Malone found that M.H. has global deficits in memory functioning and mild deficits in 27 sustained attention. AR 403. She stated that the deficits in work functioning are significant and 1 limited in performing simple and repetitive tasks and accepting instructions from supervisors, but 2 he has mild limitations in maintaining regular attendance in the workplace. Id. She further 3 concluded that M.H. has moderate limitations in his ability to complete a normal workday or 4 workweek without interruptions resulting from his psychiatric condition; ability to interact with 5 coworkers and with the public; and ability to deal with the usual stresses encountered in a 6 competitive work environment. Id. Dr. Malone also concluded that M.H. has significant 7 limitations in his ability to perform detailed and complex tasks; ability to perform work activities 8 on a consistent basis; and ability to perform work activities without special or additional 9 supervision. Id. 10 The ALJ found Dr. Malone’s opinion “not persuasive.” AR 500. She explained that the 11 opinion was unsupported by the objective evidence and relied instead on M.H.’s self-report. Id. 12 She further stated that Dr. Malone’s observation that M.H.’s memory problems are lifelong is 13 inconsistent with the fact that M.H. was able to work successfully for many years at a highly 14 skilled job before the July 10, 2018 onset date. Id. The ALJ found Dr. Malone’s opinion 15 inconsistent with M.H.’s memory index score of 95 which is within normal limits. Id. The ALJ 16 also found Dr. Malone’s opinion inconsistent with observations by Megan Stafford, Psy.D., a state 17 agency psychological consultative examiner, who evaluated M.H. on January 17, 2020. See id.; 18 AR 390. The ALJ noted that Dr. Stafford stated that M.H. “was able to remember 3/3 items 19 immediately and 2/3 in three minutes, and he was able to repeat seven digits forward and five 20 digits backward.” AR 500 (citing AR 393). The ALJ further noted that M.H. was able to 21 complete serial threes, calculate that seven quarters equaled $1.75, spell WORLD forward and 22 backward, and follow a three-step command. Id. The ALJ further found Dr. Malone’s opinion 23 inconsistent because more recent testing performed in January 2024 showed M.H. scored “high in 24 memory abilities” and scored high in comprehension and problem-solving skills. Id. (citing AR 25 671). 26 The ALJ also noted that M.H. was “not forthcoming about his alcohol use” because he told 27 Dr. Malone that he had no history of abusing drugs or alcohol, but prior records indicated M.H. 1 hearing that he continues to consume three beers a day. Id. (citing AR 392). Lastly, the ALJ 2 explained that M.H.’s ability to maintain appropriate conversation with the examiner and drive 3 independently further contradicted many of Dr. Malone’s findings. Id. 4 b. Analysis 5 M.H. argues that the ALJ erred in evaluating Dr. Malone’s opinion because the ALJ (1) 6 failed to consider evidence supporting Dr. Malone’s opinion, including memory testing results and 7 a mental status examination; (2) failed to consider Dr. Malone’s explanation for assessing 8 moderate to significant mental limitations; (3) did not explain how M.H.’s working memory index 9 score trumped or contradicted M.H.’s low scores on other memory testing; (4) inappropriately 10 substituted her opinion of raw test scores for those of Dr. Malone; (5) improperly discounted Dr. 11 Malone’s opinion on the basis that she relied on M.H.’s self-report; (6) improperly considered that 12 M.H. worked at a skilled job for years prior to his alleged onset of disability; (7) erred in finding 13 M.H.’s failure to report his alcohol use to Dr. Malone as a reason to discount Dr. Malone’s 14 opinion; and (8) failed to properly evaluate consistency with regard to Dr. Malone’s opinion. See 15 Dkt. No. 13 at 11-14. 16 The Court disagrees with M.H.’s fourth contention—that the ALJ inappropriately 17 interpreted raw test scores. The ALJ noted that M.H. received a working memory index score of 18 95. AR 500. There is no indication in the record that the score is a “raw test score” or that the 19 ALJ attempted to interpret raw test scores as M.H. suggests. In fact, Dr. Malone’s report says, 20 “The claimant’s index score of 95 is classified in the Average range.” AR 400. The ALJ stating 21 that M.H.’s score of 95 was “considered to be within normal limits” is not an attempt at expert 22 interpretation, but rather a reasonable description of what Dr. Malone’s report states regarding this 23 test result. See AR 500. 24 However, the Court agrees with M.H.’s other arguments, as the explanations that the ALJ 25 provided for discounting Dr. Malone’s opinion are not supported by substantial evidence. 26 Regarding supportability, the ALJ found that Dr. Malone’s opinion regarding significant 27 limitations is “not supported by the objective evidence.” AR 500. Yet in the very next sentence, 1 no further explanation. Id. The Wechsler Memory Scale Flexible Approach is “designed to assess 2 various memory and working memory abilities in individuals ages 16-90.” AR 401. M.H. scored 3 either “extremely low” or “borderline” throughout the categories of immediate memory, delayed 4 memory, auditory memory, and visual memory on the Wechsler Memory Scale Flexible Approach 5 test. Id. Dr. Malone concluded: “These scores suggest that in a work setting the claimant will 6 have significant deficits with remembering simple and/or complex work tasks.” AR 402. 7 Contrary to the ALJ’s evaluation, M.H.’s Wechsler Memory Scale Flexible Approach scores 8 support Dr. Malone’s opinion about his limitations. 9 Additionally, in evaluating supportability, the ALJ did not discuss Dr. Malone’s mental 10 status exam findings that M.H.’s “[m]emory for recently learned information was poor” and his 11 “insight and judgment appeared to be limited.” AR 399. The ALJ also did not consider Dr. 12 Malone’s explanations supporting her opinion as to M.H.’s limitations, such as “the claimant is 13 significantly limited due to cognitive deficits” and “claimant is moderately limited due [to] 14 tendency to become easily overwhelmed.” AR 403. 15 In sum, the ALJ’s supportability findings are not supported by substantial evidence. 16 Regarding consistency, the ALJ found that Dr. Malone’s opinion is inconsistent with other 17 evidence in the record, including M.H.’s statements to medical providers, work history, scores on 18 other memory tests, and certain activities of daily living. Specifically, the ALJ observed that M.H. 19 earned a score of 95 on the working memory index test. AR 500. As M.H. points out, the ALJ 20 did not explain how she decided to give more weight to the working memory index score than 21 M.H.’s low performance on the Wechsler Memory Scale Flexible Approach test. 22 The ALJ also found that Dr. Malone’s opinion is inconsistent with the record because Dr. 23 Malone relied on M.H.’s self-report. AR 500. Specifically, the ALJ suggested M.H.’s self-report 24 is unreliable because M.H. stated he had memory issues since high school yet worked in a highly 25 skilled job for many years despite these memory issues. Id. But there is no inconsistency here. 26 M.H. reported to Dr. Malone that while he has had cognitive and emotional functioning issues 27 since high school, the “symptoms have become exaggerated following his [] most recent head 1 high school and worked in a highly skilled job for many years before his alleged onset date does 2 not contradict Dr. Malone’s opinion that his work abilities are now moderately and significantly 3 impaired following his head injury in 2018. Moreover, the Ninth Circuit has recognized that 4 where a mental health provider relies in part on the claimant’s self-reported symptoms but also 5 relies on other objective evidence, it is error for the ALJ to reject the provider’s opinion based on 6 the premise that the claimant’s self-reporting is unreliable. See Buck v. Berryhill, 869 F.3d 1040 , 7 1049 (9th Cir. 2017) (noting that psychiatric “[d]iagnoses will always depend in part on the 8 patient’s self-report” because “such is the nature of psychiatry”). 9 The ALJ also noted that M.H. was “not forthcoming about his alcohol use,” AR 500, 10 suggesting that because M.H. denied a history of substance abuse and Dr. Malone relied on 11 M.H.’s self-report, Dr. Malone’s opinion is inconsistent with the record. This observation does 12 not speak to the consistency of Dr. Malone’s opinion. Dr. Malone reviewed M.H.’s prior records 13 and correctly noted that M.H. had reported in 2020 that he consumed alcohol daily since July 14 2018. AR 398. There is no basis to infer that Dr. Malone was unaware of M.H.’s alcohol use, or 15 that her opinion was impacted by M.H.’s failure to mention his alcohol use during the 16 examination. 17 The ALJ also found that Dr. Malone’s opinion is inconsistent with Dr. Stafford’s January 18 2020 assessment noting that M.H. was able to “remember 3/3 items immediately and 2/3 in three 19 minutes”; repeat seven digits forward and five digits backward; complete serial threes; calculate 20 that seven quarters equaled $1.75; spell WORLD forward and backward; and follow a three-step 21 command. AR 500 (citing AR 393). The ALJ also noted that Dr. Malone’s opinion is 22 inconsistent with more recent testing that Dr. Stratton performed in January 2024 that shows M.H. 23 scored “high in memory abilities” and scored high in comprehension and problem-solving. Id. 24 (citing AR 671). However, the ALJ failed to consider that in analyzing the same January 2024 25 testing results, Dr. Stratton noted that M.H. “demonstrated weak neurological organization at the 26 pons area of the brain” which “affects and undermines working memory development that in turn 27 significantly weakens cognition during periods of stress.” AR 689. Dr. Stratton also stated that 1 cognitive functioning and related speed and fluency” and had Below Average scores in vision2 based Semantic Content Learning that are expected to impair both productivity and accuracy in a 3 job setting. Id. It was error for the ALJ to “cherry-pick” records that showed positive or normal 4 results for M.H.’s condition without also considering records that reflected abnormal results. See 5 Garrison v. Colvin, 759 F.3d 995 , 1017 n.23, 1018 (9th Cir. 2014) (quoting Scott v. Astrue, 647 6 F.3d 734, 739-40 (7th Cir. 2011)); see also Ghanim v. Colvin, 763 F.3d 1154, 1164 (9th Cir. 7 2014), superseded by statute on other grounds (“[T]reatment records must be viewed in light of 8 the overall diagnostic record.”); Smith v. Kijakazi, 14 F.4th 1108, 1115 (9th Cir. 2021) (quoting 9 Garrison, 759 F.3d at 1017 ) (holding that it is error for an ALJ to pick out a few isolated instances 10 of improvement because “in many mental health conditions, cycles of improvement and 11 debilitating symptoms are a common occurrence”) (citation modified). The ALJ erred in her 12 evaluation of whether Dr. Malone’s opinion is inconsistent with other evidence. 13 In sum, the ALJ’s inconsistency findings are not supported by substantial evidence. 14 Accordingly, the Court concludes that the ALJ’s stated reasons for finding Dr. Malone’s 15 opinion not persuasive are not supported by substantial evidence. 16 2. Treating Physician Dr. Shaver and Treating Chiropractor Dr. McCoy 17 M.H. argues that the ALJ failed to properly evaluate the medical source opinions of Julia 18 Shaver, M.D., and Colleen McCoy, D.C. Dkt. No. 13 at 14-18. The Commissioner responds that 19 the ALJ properly assessed Dr. Shaver’s and Dr. McCoy’s opinions. Dkt. No. 15 at 9, 11-13. The 20 Court agrees with M.H. that the ALJ did not properly evaluate Dr. Shaver’s opinion, but the Court 21 disagrees with M.H. regarding Dr. McCoy’s opinion. 22 a. Summary of Opinions 23 i. Dr. Shaver 24 Dr. Shaver is a physician who treated M.H. in February and March 2019. AR 286-289. In 25 February 2019, approximately six months after his head injury, M.H. had a telephone visit with 26 Dr. Shaver. AR 288-289. M.H. reported persistent symptoms that were disrupting his ability to 27 work, including distraction, difficulty coping with communication, nausea, and brain fog. AR 1 math project or reading out loud to his four-year-old for more than 20 minutes. Id. Dr. Shaver 2 noted: “On the phone [M.H.’s] tone is somewhat flat and his communication fluency is slow but 3 clear and logical. Has to take frequent pauses during his sentences.” Id. She diagnosed M.H. 4 with post-concussion syndrome and recommended partial workdays of two and a half hours daily 5 for five days or five hours twice a week. Id. 6 On March 15, 2019, Dr. Shaver wrote a work status report recommending modified work 7 hours for M.H. and noting that he needs a “quiet environment and ability to set own work pace.” 8 AR 320. On March 27, 2019, during an in-person visit with Dr. Shaver, M.H. reported continued 9 difficulty completing tasks that require intense focus and working for a long time with other 10 people. AR 286. He stated that on most days, he sits by himself in a quiet place. Id. Dr. Shaver 11 noted that M.H. “still has some significant deficits (noise sensitivity, easy fatiguability, some 12 depression/anxiety) attributable to postconcussion syndrome.” AR 287. She recommended that 13 M.H. continue working limited hours for the remainder of April 2019. Id. 14 The ALJ found Dr. Shaver’s opinion “partially persuasive.” The ALJ discounted the 15 opinion because it did not include a “function-by-function assessment and [is] not supported by 16 explanation or objective findings.” AR 500. The ALJ reasoned that M.H.’s treatment with Dr. 17 Shaver was limited (one telephone visit and one in-person visit), and that Dr. Shaver’s 18 assessments are “early opinions provided within less than 12 months of the claimant’s TBI in July 19 2018.” Id. The ALJ found Dr. Shaver’s opinion persuasive only as to her assessment of M.H.’s 20 limitations regarding production pace and reduced interactions because these limitations were 21 consistent with other evidence in the record, including Dr. Stafford’s opinion and Dr. Malone’s 22 opinion. Id. (citing AR 394, 403). 23 ii. Dr. McCoy 24 Dr. McCoy, a chiropractor, began treating M.H. in July 2018. AR 354. In October 2019, 25 Dr. McCoy prepared a written evaluation stating that M.H. is “extremely impaired and unable to 26 perform many of his physical and mental activities related to his job,” including “programming, 27 advising mechanical engineers with solving IT problems, working with electronics, writing reports 1 and visualizing programs, having a hard time remembering things, concentrating at meetings.” 2 AR 352. Dr. McCoy further noted that M.H. “still shows signs of confusion” and that M.H. 3 requested that Dr. McCoy repeat questions during examinations. Id. She also reported that she 4 had to help M.H. complete his intake form because of his mental inabilities and that there were 5 numerous appointments where M.H. was unresponsive to questioning or needed extra time to 6 answer questions, “perhaps due to his mental processing being affected.” Id. Dr. McCoy 7 acknowledged that her “specialty is not mentally focused,” and said that she assessed M.H.’s 8 mental difficulties by comparing him to other patients. Id. 9 The ALJ found Dr. McCoy’s opinion “not persuasive” because it was not supported by 10 explanation or any clinical findings, and because the limitations noted were “primarily mental and 11 the assessment is vocational and outside of the chiropractor’s area of practice.” AR 500. The ALJ 12 also found Dr. McCoy’s opinion inconsistent with other objective findings in the record, including 13 Dr. Stafford’s assessment that M.H.’s eye and hand coordination were within normal limits (citing 14 AR 390) and Dr. Stratton’s January 2024 testing results noting that M.H. scored “high in memory 15 abilities” and scored high in comprehension and problem-solving (citing AR 671). AR 500-501. 16 b. Analysis 17 i. Dr. Shaver 18 M.H. argues that the ALJ erred in discounting Dr. Shaver’s opinion on the basis that the 19 assessment did not contain a function-by-function assessment; was not supported by explanation 20 or objective findings; was an early opinion; and was based on limited treatment interactions with 21 M.H. Dkt. No. 13 at 14-16. The Court agrees. 22 First, a treating physician’s opinion must be evaluated according to the current regulations. 23 Those regulations require consideration of supportability and consistency, and permit 24 consideration of other factors. 20 C.F.R. § 404 .1520c; see also Woods, 32 F.4th at 787 (“For 25 claims subject to the new regulations, the former hierarchy of medical opinions—in which we 26 assign presumptive weight based on the extent of the doctor’s relationship with the claimant—no 27 longer applies.”). To the extent older authority suggests that an ALJ may discredit an opinion for 1 current regulations. See, e.g., Morgan, 169 F.3d at 601 (finding substantial evidence supported 2 ALJ’s discounting of opinion where examining psychologist “identified characteristics that might 3 limit [claimant’s] ability to work on a sustained basis” but “did not explain how these 4 characteristics precluded work activity in [claimant’s] case”). In any event, while a medical 5 opinion that comments specifically on how a claimant’s symptoms impact specific work-related 6 functions may be particularly helpful, the ALJ discounted Dr. Shaver’s opinion because it did not 7 contain a function-by-function assessment. This was error. See Averill-Marcogliese v. Kijakazi, 8 No. 21-cv-00277-SKO, 2023 WL 4108429 , at *7 (E.D. Cal. June 21, 2023) (ALJ erred in citing 9 lack of function-by-function analysis as reason to discount treating physician’s opinion). 10 Second, the ALJ’s finding that Dr. Shaver’s opinion was not supported by explanation or 11 objective findings mischaracterizes the record. Dr. Shaver did include explanations for the work 12 limitations she recommended. In February 2019, Dr. Shaver noted M.H. had “significant 13 functional deficits” and was “[u]nable to tolerate his typical work or daily activity.” AR 289. In 14 March 2019, Dr. Shaver noted that M.H. “still has some significant deficits (noise sensitivity, easy 15 fatiguability, some depression/anxiety).” AR 287. Dr. Shaver’s findings and explanations support 16 her recommendations regarding M.H.’s work limitations. 17 Third, the ALJ does not explain why the timing of Dr. Shaver’s treatment sessions with 18 M.H. undermines the persuasiveness of her findings and opinion. Dr. Shaver treated M.H. on two 19 occasions approximately six to seven months after M.H.’s head injury. See AR 286-288. The fact 20 that Dr. Shaver’s opinion was provided “within less than 12 months of the claimant’s TBI in July 21 2018” has no bearing on whether the opinion itself is adequately supported or whether it is 22 consistent with other evidence in the record. 23 Finally, the Court agrees with M.H. that the fact that he had limited treatment with Dr. 24 Shaver is not, in itself, a basis to discount Dr. Shaver’s opinion. See Brown v. Berryhill, No. 1725 cv-02834-JCS, 2018 WL 4700348 , at *17 (N.D. Cal. Sept. 29, 2018) (discounting an opinion 26 based on a single visit “would render all examining opinions superfluous, and is contrary to the 27 requirement that the ALJ consider all relevant evidence, including medical opinions of examining 1 permitted to consider other factors in evaluating the persuasiveness of a medical opinion, 2 including the medical source’s “relationship with the claimant.” 20 C.F.R. § 404 .1520c. The ALJ 3 did not err in noting that Dr. Shaver examined M.H. on only two occasions, but that observation 4 does not provide a basis for discounting Dr. Shaver’s opinion in the absence of substantial 5 evidence of unsupportability and/or inconsistency. 6 Accordingly, the Court concludes that the ALJ’s stated reasons for finding Dr. Shaver’s 7 opinion only partially persuasive are not supported by substantial evidence. 8 ii. Dr. McCoy 9 M.H. argues the ALJ erred in discounting Dr. McCoy’s opinion on the basis that Dr. 10 McCoy’s opinion was not supported by explanation or any clinical findings; was outside of the 11 scope of Dr. McCoy’s expertise; and was inconsistent with other objective findings in the record. 12 Dkt. No. 13 at 16-18. The Court disagrees. 13 As M.H. points out, Dr. McCoy provided some explanations for her opinion: she 14 compared M.H. to other patients and observed M.H.’s difficulties in completing paperwork and 15 answering questions. AR 352. However, the ALJ correctly noted that these explanations do not 16 support Dr. McCoy’s opinion that M.H. is “extremely impaired.” See id. Moreover, as M.H. 17 concedes, Dr. McCoy’s opinion concerns matters outside of her area of practice as a chiropractor. 18 AR 500. M.H. argues that “the ALJ erred in focusing on Dr. McCoy’s specialization while 19 ignoring the factor of consistency.” Dkt. No. 13 at 17. The regulations expressly authorize the 20 ALJ to consider a medical source’s specialization as a factor when evaluating a medical opinion. — 21 — 20 C.F.R. § 404 .1520c(c)(4). The ALJ did not err in considering Dr. McCoy’s area of 22 specialization. The ALJ also did not “ignor[e] the factor of consistency,” as M.H. claims. See 23 Dkt. No. 13 at 17. She observed that Dr. McCoy’s opinion that M.H. has extreme impairments 24 that render him unable to perform both physical and mental activities related to his job is 25 inconsistent with other evidence in the record. AR 500-501 (citing AR 390, 671). The ALJ’s 26 evaluation of Dr. McCoy’s opinion as “not persuasive” is supported by substantial evidence, and 27 the Court finds no error here. 1 opinion as “partially persuasive” are not supported by substantial evidence, but her reasons for 2 discounting Dr. McCoy’s opinion as “not persuasive” are supported by substantial evidence. 3 3. Treating Mental Health Examiner Dr. Stratton 4 M.H. argues that the ALJ erred by finding that the opinion of treating mental health 5 examiner Grayce Stratton, Psy.D. is “partially persuasive.” Dkt. No. 13 at 18-21. The 6 Commissioner argues the ALJ properly evaluated Dr. Stratton’s opinion. Dkt. No. 15 at 14-15. 7 The Court agrees with M.H. 8 a. Summary of Opinion 9 Dr. Stratton examined M.H. in December 2023 and January 2024. AR 644. In a January 10 2024 mental health impairment report, Dr. Stratton noted that M.H.’s pace of speech was slower 11 than normal and decreased over time, and that his “[e]nergy was variable and decreased 12 precipitously to a point where mental work could no longer be produced and claimant showed 13 physical symptoms.” Id. She also stated that M.H.’s mood was dysthymic, his memory for 14 recently learned information was poor, and his impairment has lasted over eight years. AR 64415 645. 16 Dr. Stratton opined that M.H. had a moderate limitation in understanding information and 17 that his comprehension difficulty can be marked at times. AR 645. She found that M.H. had an 18 extreme limitation in remembering and applying information; marked to extreme limitation in 19 interacting with others, although if an encounter were inherently low stress and dialogue were 20 brief (less than three minutes), he would have a mild limitation; mild to extreme limitations in 21 concentrating, persisting, or maintaining pace; and a marked impairment in adapting and 22 managing oneself. AR 645-646. Dr. Stratton concluded that deficits in M.H.’s work performance 23 capacity were “Highly Significant” and included deficits in short-term memory, working memory, 24 attention, consistency of neural processing, executive functioning, eye tracking regularity, balance, 25 and physiological functioning. AR 653, 655. 26 The ALJ found Dr. Stratton’s opinion “only partially persuasive, as it is overly restrictive.” 27 AR 501. While the ALJ found that Dr. Stratton’s opinion is supported by objective evidence 1 claimant’s good functional abilities, including ability to drive, grocery shop, do light household 2 chores, read, use social media, play games, trade stocks, and cook” and with January 2024 test 3 results showing above average performance, including high scores in memory, comprehension, 4 and problem-solving. Id. (citing AR 392, 398, 512-537, 661-694). 5 b. Analysis 6 M.H. argues that the ALJ’s evaluation of Dr. Stratton’s opinion is flawed for the following 7 reasons: (1) the ALJ’s evaluation of supportability discussed results from one test, while 8 overlooking other supporting evidence; and (2) the ALJ’s evaluation of consistency 9 mischaracterized M.H.’s daily activities and failed to identify any actual inconsistencies. Dkt. No. 10 13 at 20-21. 11 With regard to supportability, the ALJ concluded that Dr. Stratton’s opinion is “supported 12 by objective evidence showing a cognitive disorder and decline.” AR 501. However, the ALJ 13 also found that the opinion is “inconsistent with [Dr. Stratton’s] own test results . . . showing 14 above average performance, including high scores in memory, comprehension, and problem15 solving.” Id. Although that ALJ uses the term “inconsistent” here, the ALJ is commenting on 16 whether Dr. Stratton’s own test results support her opinion. See Woods, 32 F.4th at 793 n.4 (“[T]o 17 avoid confusion in future cases, ALJs should endeavor to use these two terms of art—‘consistent’ 18 and ‘supported’—with precision.”). 19 The Court agrees with M.H. that the ALJ erred in assessing whether the January 2024 test 20 results support or undermine Dr. Stratton’s opinion. See AR 501 (citing AR 661-694). While the 21 ALJ correctly noted that M.H. received high scores in the areas of memory, comprehension, and 22 problem-solving, the ALJ did not consider the rest of Dr. Stratton’s report. For example, 23 elsewhere in the same report, Dr. Stratton noted that M.H. “demonstrated weak neurological 24 organization at the pons area of the brain” which “affects and undermines working memory 25 development that in turn significantly weakens cognition during periods of stress.” AR 689. She 26 further noted that M.H. demonstrated a mental midline processing weakness which can “markedly 27 undermine task performance in a variety of settings,” and that he showed right hemispheric 1 ALJ improperly focused on one set of test results and ignored the remainder. See Ahearn, 988 2 F.3d at 1115 (“To determine whether substantial evidence supports the ALJ’s determination, we 3 must assess the entire record, weighing the evidence both supporting and detracting from the 4 agency’s conclusion.”) (citation omitted); see also Williams v. Colvin, No. ED CV 14-2146-PLA, — 5 — 2015 WL 4507174 , at *6 (C.D. Cal. July 23, 2015) (“An ALJ may not cherry-pick evidence to 6 support the conclusion that a claimant is not disabled, but must consider the evidence as a whole 7 in making a reasoned disability determination.”) (citing Holohan v. Massanari, 246 F.3d 1195 , 8 1207 (9th Cir. 2001)). This was error. 9 Dr. Stratton’s opinion reflects her interpretation of all test results, and the ALJ’s finding 10 that this opinion is not supported by, or is inconsistent with, Dr. Stratton’s own test results, is not 11 supported by substantial evidence. 12 The Court also agrees with M.H. that the ALJ erred to the extent she concluded that Dr. 13 Stratton’s opinion is inconsistent with evidence of M.H.’s daily activities. The Court discusses the 14 evidence of M.H.’s daily activities below. 15 B. M.H.’s Subjective Symptom Testimony 16 M.H. argues that the ALJ failed to provide clear and convincing reasons for discounting 17 M.H.’s allegations and testimony of mental dysfunction. Dkt. No. 13 at 2. The Commissioner 18 contends that substantial evidence supports the ALJ’s evaluation of M.H.’s testimony. Dkt. No. 19 15 at 3. The Court agrees with M.H. 20 An ALJ is not “required to believe every allegation of disabling pain” or other non21 exertional impairment. Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1106 (9th Cir. 22 2014) (citation modified). In assessing a claimant’s subjective testimony, an ALJ conducts a two23 step analysis. First, “the claimant ‘must produce objective medical evidence of an underlying 24 impairment’ or impairments that could reasonably be expected to produce some degree of 25 symptom.” Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (quoting Smolen v. Chater, — 26 — 80 F.3d 1273, 1281-82 (9th Cir. 1996)). If the claimant does so, and there is no affirmative 27 evidence of malingering, then the ALJ can reject the claimant’s testimony as to the severity of the 1 Smolen, 80 F.3d at 1281 ); see also Burrell v. Colvin, 775 F.3d 1133, 1137 (9th Cir. 2014) (“We 2 therefore review the ALJ’s discrediting of Claimant’s testimony for specific, clear, and convincing 3 reasons.”). “Factors that an ALJ may consider in weighing a claimant’s credibility include 4 reputation for truthfulness, inconsistencies in testimony or between testimony and conduct, daily 5 activities, and unexplained, or inadequately explained, failure to seek treatment or follow a 6 prescribed course of treatment.” Orn v. Astrue, 495 F.3d 625, 636 (9th Cir. 2007) (citation 7 modified). Although lack of medical evidence cannot form the sole basis for discounting a 8 claimant’s subjective testimony, it is a factor that the ALJ can consider in his credibility analysis. 9 See Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). 10 1. Summary of Testimony 11 At the administrative hearing on February 8, 2024, M.H. alleged that he became disabled 12 after sustaining a concussion on July 8, 2018. See AR 522. He testified that when he previously 13 attempted to return to work, he had to stop working for over a month to recover. AR 525. M.H. 14 testified that he has memory issues, gets easily stressed out, and experiences shaking and his brain 15 shutting down. Id. 16 M.H. testified that he can only watch over his children for a few minutes at a time before 17 needing to step away. AR 527. He stated that he owns stocks and his wife tells him when to sell 18 them. Id. M.H. stated that when his wife directs him to sell stocks, it will take him a week to sell 19 them because it is “hard for [him] to do it.” Id. He also said his wife “does almost everything” 20 around the house because he cannot handle being around people and it is hard for him to complete 21 tasks. AR 528. M.H. testified that if his wife gives him a list of small tasks, he can do some of 22 the tasks, but “[t]hat doesn’t happen often.” AR 529. He said he occasionally helps with diaper 23 changes, tucks his children into bed, straightens blankets, and cooks once a week. Id. M.H. said 24 that after he cooks, he cannot eat because he is too stressed out from cooking, so he hides in the 25 carport. AR 529-530. M.H. said he is generally polite with others, but when he gets stressed, he 26 goes into fight or flight mode and can get snappy with people. AR 531. 27 At his January 2020 mental evaluation with Dr. Stafford, M.H. reported feeling nausea and 1 stated that his short-term memory is not good and that he has difficulty filling out forms. AR 391. 2 M.H. said he can adequately handle some responsibilities of daily living including showering and 3 brushing his teeth once every three days, doing limited household duties, and keeping 4 appointments. AR 392. He stated he could drive, periodically shop for groceries, and make basic 5 meals. Id. 6 2. Analysis 7 The ALJ concluded that M.H.’s medically determinable impairments could reasonably 8 cause the symptoms M.H. reported. AR 502. However, the ALJ also found that M.H.’s 9 statements concerning “the intensity, persistence and limiting effects of these symptoms are not 10 entirely consistent with the medical evidence and other evidence in the record . . . .” Id. As the 11 ALJ did not identify any affirmative evidence of malingering, the ALJ was required to provide 12 specific, clear, and convincing reasons for this determination. 13 The ALJ explained that M.H.’s allegations of mental dysfunction are inconsistent with the 14 medical evidence and other evidence in the record because: (1) M.H. could handle responsibilities 15 of daily living; (2) his treatment history for his mental impairments is limited; (3) M.H. had 16 average and above average scores on certain tests; and (4) M.H. continued to consume alcohol 17 despite being advised to stop. AR 503. M.H. argues that the ALJ’s stated reasons are unsupported 18 and are not clear and convincing reasons for discounting his allegations of mental dysfunction. 19 Dkt. No. 13 at 9. The Court agrees. 20 First, although the ALJ reviewed and summarized M.H.’s statements regarding his 21 subjective symptoms (see AR 495-497), she erred insofar as she did not specify which testimony 22 she found not credible and what evidence suggests that those allegations are not credible. Lambert 23 v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020). Addressing M.H.’s allegations of mental 24 dysfunction collectively, the ALJ explained that “[d]espite his TBI and neurocognitive deficits, the 25 claimant is able to perform simple tasks,” including: (1) maintaining hygiene and grooming by 26 showering and brushing his teeth once every three days; (2) doing limited household duties; (3) 27 keeping appointments; (4) driving; (5) periodically going to the grocery store; (6) preparing simple 1 stock portfolio. AR 503. M.H. argues that these activities are not inconsistent with his reported 2 symptoms of mental dysfunction due to his TBI. Dkt. No. 13 at 6-8. 3 “An ALJ may properly come to an adverse credibility determination as to subjective [] 4 testimony based upon activities of daily living where: (1) the activities of daily living contradict 5 the claimant’s other testimony; and/or (2) the activities of daily living meet the threshold for 6 transferable work skills.” A.P. v. Kijakazi, No. 23-cv-01184-EMC, 2024 WL 116307 , at *9 (N.D. 7 Cal. Jan. 10, 2024). However, ALJs must be “especially cautious” in concluding that daily 8 activities are inconsistent with subjective symptom testimony “because impairments that would 9 unquestionably preclude work and all the pressures of a workplace environment will often be 10 consistent with doing more than merely resting in bed all day.” Garrison, 759 F.3d at 1016 ; see 11 also Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) (“This court has repeatedly asserted 12 that the mere fact that a plaintiff has carried on certain daily activities, such as grocery shopping, 13 driving a car, or limited walking for exercise, does not in any way detract from her credibility as to 14 her overall disability.”); Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (“Several courts, 15 including this one, have recognized that disability claimants should not be penalized for 16 attempting to lead normal lives in the face of their limitations.”). 17 The ALJ did not explain how or why any of M.H.’s daily activities are inconsistent with 18 his symptom testimony. None of these activities are obviously comparable to the activities M.H. 19 might be expected to perform in the workplace. Moreover, to the extent the ALJ relied on 20 evidence that M.H. “managed a stock portfolio” as a reason to discount his symptom testimony, 21 see AR 492-493, 495, 501, 503, the record does not support the ALJ’s characterization of this 22 activity. To the contrary, M.H. testified that his wife instructs him when to sell stocks which he 23 then does with difficulty. AR 527. The record does not show that M.H. does anything else with 24 his stock portfolio, such as actively managing it or engaging in the kind of trading activity that 25 might require sustained concentration or judgment. In these circumstances, the Court finds that 26 the ALJ failed to provide clear and convincing reasons supported by substantial evidence for 27 discounting M.H.’s allegations based on his daily activities. 1 health treatment, including psychotherapy or psychotropic medication,” did not attend counseling, 2 and had a lapse in treatment from August 2020 to November 2022 with “very minimal treatment 3 thereafter.” AR 503. “[E]vidence of ‘conservative treatment’ is sufficient to discount a claimant’s 4 testimony regarding severity of an impairment.” Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 5 2007) (citing Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995)). Similarly, “[a]n 6 unexplained or inadequately explained failure to seek treatment” may be considered when 7 evaluating a claimant’s allegations of subjective symptoms. Tommasetti, 533 F.3d at 1039 . 8 However, “where the claimant has a good reason for not seeking more aggressive treatment,” a 9 conservative course of treatment “is not a proper basis for rejecting the claimant’s credibility.” 10 Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008). While M.H. did not 11 receive treatment such as psychotherapy, medication, or counseling, there is substantial evidence 12 showing M.H. actively sought other types of treatment for his symptoms which the ALJ 13 acknowledged. See AR 503 (citing AR 391) (stating M.H. sought osteopathy, chiropractic 14 treatment, craniosacral therapy, and NAET); see also AR 646 (Dr. Stratton noting that M.H. “was 15 intermittently seeking and availing himself of treatments that appeared to be promising”); Dkt. No. 16 16 at 1-2 (describing M.H.’s efforts to seek treatment, including undergoing cognitive testing). 17 The ALJ also considered various positive test scores as a reason to discount M.H.’s 18 allegations about mental dysfunction. AR 503. She noted that M.H.’s IQ fell in the average range 19 (citing AR 396-403); M.H. scored a 27/30 on the Montreal Cognitive Assessment in March 2019, 20 which is normal (citing AR 287); M.H. showed good abilities with comprehension skills and high 21 scores in memory abilities and problem-solving abilities (citing AR 671); and M.H. withstood the 22 stress of neuropsychological testing and performed well. Id. As noted above, there is substantial 23 evidence demonstrating that M.H. also had low scores on other tests, and this performance on such 24 tests tended to drop off the longer he was engaged in performing the test. See, e.g., AR 401 25 (“extremely low” and “borderline” scores on the Wechsler Memory Scale test); AR 644 (noting 26 M.H.’s memory for recently learned information was poor after he missed two out of five single 27 word items with a 30-minute delay); AR 648 (noting M.H.’s “performance was excellent until 1 Lastly, the ALJ discussed the fact that M.H. continued to consume alcohol despite being 2 advised by his medical providers to stop as a reason for discounting M.H.’s allegations. AR 503. 3 The connection between M.H.’s continued alcohol use and his credibility is unclear, and the ALJ 4 does not explain her reasoning for discussing M.H.’s alcohol use. 5 In sum, the Court concludes that the ALJ failed to provide clear and convincing reasons 6 supported by substantial evidence for discounting M.H.’s allegations and testimony of mental 7 dysfunction. 8 C. Third Party Lay Witness Statements 9 M.H. argues that the ALJ failed to provide germane reasons for discounting the lay witness 10 report of his wife, J. Carman. Dkt. No. 13 at 22. The Commissioner responds that the ALJ 11 offered sufficient reasons for discounting Ms. Carman’s statements. Dkt. No. 15 at 15-16. The 12 Court agrees with M.H. 13 An ALJ is not required to articulate how she considered evidence from nonmedical 14 sources. 20 C.F.R. § 1520c(d). However, the ALJ must “articulate [her] consideration of lay15 witness statements and [her] reasons for discounting those statements.” Joseph M. R. v. Comm'r 16 of Soc. Sec., No. 3:18-CV-01779-BR, 2019 WL 4279027 , at *12 (D. Or. Sept. 10, 2019). But see 17 Thomas v. Comm'r of Soc. Sec. Admin., No. CV-20-01787-PHX-MTL, 2022 WL 292547 , at *3 18 (D. Ariz. Feb. 1, 2022) (“The Ninth Circuit has not yet addressed the meaning of this provision or 19 whether the germane reasons rule survives its enactment, and district courts in this Circuit have 20 split on the issue.”). 21 1. Summary of Statements 22 On October 22, 2019, Ms. Carman completed a “function report” for M.H.’s benefits 23 application, in which she reported that M.H. cannot “handle multiple stimuli at once – two people 24 talking, two separate thoughts, etc.,” and that when exposed to multiple stimuli, M.H. “gets 25 nauseous and goes into fight or flight.” AR 230. She also stated that because “the part of 26 [M.H.’s] brain that makes him start projects is not functioning,” M.H. spends most of his time 27 doing nothing. Id. Ms. Carman said M.H.’s daily activities include going outside and sitting by 1 alone “very occasionally,” and that most of the time, she is also present. Id. Ms. Carman said that 2 when she occasionally takes their children on vacation, M.H. is responsible for caring for their dog 3 and two cats. Id. Ms. Carman reported that M.H. is unable to shop for new clothes, so his clothes 4 are torn and ragged, and cooking is difficult for him because he feels overstimulated in the house. — 5 — Id. She has to remind M.H. to eat and to take vitamins or supplements. AR 232. Ms. Carman 6 stated that M.H. can prepare simple meals for himself, such as frozen meals, sandwiches, and cut 7 cheese, once every other day. Id. She said M.H. can perform household repairs, but he would 8 start chores and often not finish them, working on them for maybe fifteen minutes at a time and 9 needing constant reminders. Id. Ms. Carman stated that M.H. can drive a car and go outside 10 alone; handle a savings account; count change; and use a checkbook or money orders. AR 233. 11 She stated that he is unable to pay bills. Id. Ms. Carman stated that M.H.’s hobbies include 12 woodworking, watching TV, and playing computer games, but he lacked motivation to woodwork. 13 AR 234. 14 The ALJ stated that she considered Ms. Carman’s function report but discounted her 15 statements as follows: — 16 — While third party statements can generally be helpful in making 17 findings regarding the claimant’s ability to complete activities of daily living; maintain concentration, attention, and pace; engage in 18 social activities; adapt and manage oneself, and function in general, they are, pursuant to 20 CFR 404.1520c and 416.920c, considered 19 evidence from a nonmedical source. As such, the undersigned need not articulate how this evidence was considered in terms of — 20 — persuasiveness. The observations at Ex. 4E are, as one would 21 expect, generally consistent with the claimant’s testimony. However, as with the claimant’s allegations, they are not consistent 22 with the medical evidence of record. 23 AR 502. 24 2. Analysis 25 M.H. argues that the ALJ failed to provide germane reasons for discounting Ms. Carman’s 26 statements. Dkt. No. 13 at 22-23. The Commissioner contends that the ALJ properly discounted 27 Ms. Carman’s statements because, like M.H.’s own subjective testimony, Ms. Carman’s 1 As discussed above, the ALJ cited medical evidence and other evidence in the record in 2 || assessing M.H.’s own testimony. The ALJ’s evaluation of Ms. Carman’s statements—which she 3 found were “generally consistent with the claimant’s allegations”—is based on the same evidence 4 and reasoning. The Court has already concluded that the ALJ failed to provide clear and 5 convincing reasons supported by substantial evidence for rejecting M.H.’s own testimony 6 || regarding his mental dysfunction, and while the ALJ’s assessment of Ms. Carman’s statements 7 need not meet this same standard, the ALJ has not provided any other reasons, specific to Ms. 8 || Carman’s statements, beyond those the Court has already considered. Thus, to the extent that the 9 || ALJ has provided reasons for discounting Ms. Carman’s statements, those reasons are not 10 supported by substantial evidence in the record. 11 Accordingly, the Court concludes that the ALJ’s decision to discount Ms. Carman’s lay 12 || witness testimony is not supported by substantial evidence. 13 || IV. DISPOSITION 14 For the reasons discussed above, the Court finds that remand is appropriate for further 3 15 || proceedings. See Luther v. Berryhill, 891 F.3d 872, 877-78 (9th Cir. 2018); 42 U.S.C. § 405 (g). a 16 || On remand, the ALJ shall reassess: (1) Dr. Malone’s opinion; (2) Dr. Shaver’s opinion; (3) Dr. 3 17 Stratton’s opinion; (4) M.H.’s allegations and testimony regarding his symptoms of mental 18 || dysfunction; (5) Ms. Carman’s lay witness statements; and (6) M.H.’s RFC, as appropriate. It is 19 || not the Court’s intent to limit the scope of the remand. 20 || V. CONCLUSION 21 Based on the foregoing, the Court reverses the Commissioner’s decision and remands this 22 || case for further administrative proceedings consistent with this order. The Clerk shall enter 23 || judgment accordingly and close this file. 24 IT IS SO ORDERED. 25 Dated: September 30, 2025 26 . Virginia K. DeMarchi 28 United States Magistrate Judge