Mirto v. Kijakazi

[3] 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA [6] 7 J.M., Case No. 23-cv-03198-SVK 8 Plaintiff, ORDER ON CROSS-MOTIONS FOR 9 v. SUMMARY JUDGMENT 10 KILOLO KIJAKAZI, et al., Re: Dkt. Nos. 12, 18 11 Defendants. 12 Plaintiff appeals from the final decision of the Commissioner of Social Security, which 13 denied his application for supplemental security income. The Parties have consented to the 14 jurisdiction of a magistrate judge. Dkt. 8, 10. For the reasons discussed below, the Court 15 GRANTS Plaintiff’s motion for summary judgment (Dkt. 12), DENIES Defendant 16 Commissioner’s cross-motion for summary judgment (Dkt. 18), and REMANDS this case for 17 further proceedings. 18 I. BACKGROUND 19 On or about March 30, 2021, Plaintiff filed an application for Title XVI Supplemental Security Income. See Dkt. 11 (Administrative Record (“AR”)) 186-193. The claim was denied [20] initially on August 3, 2021 (AR 93-97) and denied on reconsideration on October 15, 2021 [21] (AR 105-110). On April 11, 2022 an Administrative Law Judge (“ALJ”) held a telephonic [22] hearing. AR 32-58. On June 30, 2022, the ALJ denied Plaintiff’s claims. AR 10-31 (the “ALJ [23] Decision”). The ALJ concluded that Plaintiff has the following severe impairments: anxiety, [24] dysthymic disorder, attention-deficit hyperactivity disorder (ADHD), and posttraumatic stress [25] disorder (PTSD). AR 16. The ALJ found that Plaintiff does not have an impairment or [26] combination of impairments that meets or medically equals one of the listed impairments. Id. The [27] ALJ found that through the date last insured, Plaintiff had the residual functional capacity (“RFC”) 1 to perform a full range of work at all exertional levels but with certain nonexertional limitations. 2 AR 18-24. The ALJ determined that Plaintiff was unable to perform his past relevant work as a 3 coffee maker. AR 25. However, the ALJ found that there were other jobs that exist in significant 4 numbers in the national economy that Plaintiff can perform, such as sweeper, washer, and 5 furniture cleaner. AR 25-26. Accordingly, the ALJ found that Plaintiff was not under a disability, [6] as defined in the Social Security Act, since October 2, 2020. AR 26.1 The Appeals Council subsequently denied review of the ALJ Decision. AR 1-6. Plaintiff [7] timely filed an action in this District, seeking review of the ALJ Decision. Dkt. 1. [8] In accordance with Civil Local Rule 16-5, the parties filed cross-motions for summary [9] judgment. Dkt. 12 (Plaintiff’s motion for summary judgment); Dkt. 18 (Defendant’s cross-motion [10] for summary judgment). The cross-motions for summary judgment are now ready for decision [11] without oral argument. [12] II. ISSUES FOR REVIEW [13] 1. Did the ALJ properly evaluate Plaintiff’s credibility? [14] 2. Did the ALJ err in ignoring the third-party statement of Plaintiff’s father? [15] 3. Did the ALJ properly evaluate the medical evidence? [16] 4. Were the ALJ’s social interaction limitations supported by substantial evidence? [17] III. STANDARD OF REVIEW [18] This Court is authorized to review the Commissioner’s decision to deny disability benefits, [19] but “a federal court’s review of Social Security determinations is quite limited.” Brown-Hunter v. [20] Colvin, 806 F.3d 487, 492 (9th Cir. 2015); see also 42 U.S.C. § 405 (g). Federal courts “leave it to [21] the ALJ to determine credibility, resolve conflicts in the testimony, and resolve ambiguities in the [22] record.” Brown-Hunter, 806 F.3d at 492 (internal quotation marks and citation omitted). [23] The Commissioner’s decision will be disturbed only if it is not supported by substantial [25] 1 Supplemental security income is not payable prior to the month following the month in which the application was filed. 20 C.F.R. § 416.335 . The ALJ Decision states that Plaintiff protectively [26] filed an application for supplemental security income on October 2, 2020. AR 13. It therefore appears that the ALJ decided whether Plaintiff was disabled as of that date rather than the date he [27] alleged his disability began (August 31, 2019). See AR 26. The Court notes that the 1 evidence or if it is based on the application of improper legal standards. Id. at 492 . “Under the 2 substantial-evidence standard, a court looks to an existing administrative record and asks whether 3 it contains sufficient evidence to support the agency’s factual determinations,” and this threshold 4 is “not high.” Biestek v. Berryhill, 587 U.S. --, 139 S. Ct. 1148, 1154 (2019) (internal quotation 5 marks, citation, and alteration omitted); see also Rounds v. Comm’r of Soc. Sec. Admin., 807 F.3d 6 996, 1002 (9th Cir. 2015) (“Substantial evidence” means more than a mere scintilla but less than a 7 preponderance; it is “such relevant evidence as a reasonable mind might accept as adequate to 8 support a conclusion”) (internal quotation marks and citations omitted). The Court “must consider 9 the evidence as a whole, weighing both the evidence that supports and the evidence that detracts 10 from the Commissioner’s conclusion.” Rounds, 807 F.3d at 1002 (internal quotation marks and 11 citation omitted). Where the evidence is susceptible to more than one rational interpretation, the 12 Court must uphold the ALJ’s findings if supported by inferences reasonably drawn from the 13 record. Id. 14 Even if the ALJ commits legal error, the ALJ’s decision will be upheld if the error is 15 harmless. Brown-Hunter, 806 F.3d at 492 . But “[a] reviewing court may not make independent 16 findings based on the evidence before the ALJ to conclude that the ALJ’s error was harmless” and 17 is instead “constrained to review the reasons the ALJ asserts.” Id. (internal quotation marks and 18 citation omitted). 19 IV. DISCUSSION 20 A. Issue One: Evaluation of Plaintiff’s credibility 21 “When a claimant presents objective medical evidence establishing an impairment that 22 could reasonably produce the symptoms of which she complains, an adverse credibility finding 23 must be based on clear and convincing reasons,” unless there is affirmative evidence of 24 malingering. Smartt v. Kijakazi, 53 F.4th 489 , 497 (9th Cir. 2022) (internal quotation marks and 25 citations omitted). The Parties agree that the Ninth Circuit requires that the ALJ’s reasons for 26 discounting Plaintiff’s allegations be “specific, clear, and convincing.” Dkt. 12 at 8; Dkt. 18 at 3. 27 Plaintiff argues that the ALJ failed to provide clear and convincing reasons to reject 1 ALJ: [2] [Plaintiff] reported trouble remembering, completing tasks, concentration, and 3 understanding (Ex. 5E/6). He stated he has a “hard time completing tasks, focusing, learning new material, [and] figuring out how to complete goals” (id.). In addition, he 4 reported, “Moments where I cannot remember something I just read … Often incapable of action … No sense of time” (id. at 1). Finally, the claimant reported his “flashbacks 5 and nightmares interfered with his daily activities and that trauma and associated aggressive behaviors impaired his social relationships (Ex. 7F/6). [6] 7 AR 19. 8 The ALJ then stated: [9] However, I find no persuasive corroborating evidence to support the duration, 10 frequency, and intensity of the symptoms and limitations alleged as disabling. No objective evidence of physiological abnormality is reasonably expected to result in the 11 degree of limitation alleged. Routine conservative treatment and recommendations suggest symptoms are not as limiting as alleged. In fact, he reported the ability to [12] cook, clean, drive, shop, manage money, and use a computer (e.g., Ex. 5E and 4F). He 13 was in college until at least the summer of 2020 and possibly later (see, e.g., Ex. 2F/7 and 5F/2 indicating he is working on a degree in September of 2021). His activities 14 have included running, gardening, and taking guitar lessons (e.g., Ex. 2F/12 and 9F/6; see also 5E). Moreover, he has reported playing guitar, teaching music, hiking with 15 friends, and helping his parents (Ex. 3F/6). 16 AR 19-20. 17 As a preliminary matter, Plaintiff argues that the ALJ erred in making this adverse 18 credibility finding because she did not explain what portions of Plaintiff’s testimony she found not 19 credible or how the summarized evidence supports her conclusions and conflicts with Plaintiff’s 20 testimony. Dkt. 12 at 8. An ALJ errs by making “general rather than specific findings in rejecting 21 Plaintiff’s testimony wholesale and without pointing to any evidence that could potentially 22 undermine even portions of Plaintiff’s testimony.” Tubolino v. Berryhill, No. 18-cv-02511-RMI, [23] 2019 WL 4674433 , at *9 (N.D. Cal. Sep. 25, 2019). Here, although the ALJ briefly summarized 24 Plaintiff’s testimony and cited some specific evidence in support of her credibility findings, the 25 ALJ failed to explain how Plaintiff’s activities of daily living (“ADLs”), as the ALJ characterized 26 them, are inconsistent with Plaintiff’s testimony. In fact, the ALJ actually incorporated additional 27 limitations into Plaintiff’s RFC to account for Plaintiff’s challenges in the areas about which he 1 includes social interaction limitations because ALJ found Plaintiff “does have some deficits in 2 managing stressors” and has “attentional difficulties.” AR 21-22. The ALJ’s discussion of these 3 issues is hard to square with her adverse credibility finding. 4 Plaintiff also argues that even if the ALJ adequately identified the portions of Plaintiff’s 5 testimony she found not credible and the allegedly conflicting evidence, the reasons cited by the 6 ALJ to discredit Plaintiff are not clear, convincing, or supported by substantial evidence, for 7 several reasons. First, Plaintiff argues that where there are severe conditions that could cause the 8 symptoms of which he claims, he was not required to provide objective medical findings to 9 corroborate the degree of symptoms. Dkt. 12 at 8-9. In support of this argument, Plaintiff cites 10 the ALJ’s statements that there was “no persuasive corroborating evidence” and “no objective 11 evidence” to support the degree of limitation alleged by Plaintiff. Dkt. 12 at 9 (citing AR 19). 12 However, the regulations state that the ALJ will evaluate a claimant’s statements about the 13 intensity, persistence, and limiting effects of his symptoms “in relation to the objective medical 14 evidence and other evidence.” 20 C.F.R. § 416.929 (c)(4). Plaintiff has not shown that the ALJ 15 imposed an unwarranted evidentiary burden; instead, it appears that the ALJ analyzed the 16 credibility of Plaintiff’s statements in light of the medical and other evidence, as contemplated by 17 the regulations. 18 Second, Plaintiff argues that the ALJ’s reference to “conservative treatment” is not a 19 sufficient basis upon which to discredit Plaintiff’s testimony. Dkt. 12 at 10. Plaintiff asserts that 20 “a regimen of prescription psychotropic medications, as has been prescribed for [Plaintiff], is not 21 fairly characterized as ‘conservative’ treatment.” Id. (citations omitted). Plaintiff further argues 22 that in any event, “conservative treatment” may be grounds to discount a claimant’s testimony 23 about the severity of symptoms only if the ALJ specifies what more aggressive treatment was 24 recommended by his providers or would be sufficient to substantiate Plaintiff’s claims. Id. The 25 Commissioner does not directly address this point, but instead asserts that the ALJ’s 26 characterization of Plaintiff’s treatment as “routine conservative” was “not the important 27 consideration” in the ALJ’s credibility determination. Dkt. 18 at 6. In any event, even if the 1 treatment in the abstract, the ALJ erred in relying on that treatment to discount Plaintiff’s 2 testimony because the ALJ failed to identify more aggressive treatment options that were 3 available. See B.-P. v. Saul, No. 20-CV-02088-JCS, 2021 WL 2207336 , at *13 (N.D. Cal. June 1, 4 2021); see also Lapeirre-Gutt v. Astrue, 382 F. Appx. 662, 664 (9th Cir. 2010). 5 Third, Plaintiff argues that the ALJ erred in relying on Plaintiff’s ADLs to discredit his 6 symptom testimony because those activities did not contradict his subjective complaints. Dkt. 12 7 at 10-11. As explained above, the ALJ cited the following ADLs as undercutting Plaintiff’s 8 credibility: (1) his college attendance; (2) his past work as a music teacher; (3) his ability to cook, 9 clean, drive, shop, manage money, and use a computer; and (4) his activities such as running, 10 gardening, playing guitar and taking guitar lessons, hiking with friends, and helping his parents. 11 AR 20. The ALJ cited these activities repeatedly throughout her decision. See, e.g., AR 17, 18, 12 20, 21, 22. 13 The ALJ’s conclusion that Plaintiff’s reported symptoms were inconsistent with his ADLs 14 was based on an incomplete and inaccurate characterization of the evidence and, therefore, was 15 not supported by substantial evidence. For example, the ALJ repeatedly stated that Plaintiff was 16 in college until at least the summer of 2020, but failed to note that in the same timeframe Plaintiff 17 complained to his medical providers that he was struggling with academic work and having 18 difficulty focusing on online lectures. AR 301-302, 306, 341. Plaintiff testified at the hearing that 19 he had attended community college on and off for ten years but has not been able to complete his 20 degree, and that he took a single biology class in June 2020, almost failed, and found it too 21 stressful to continue to go to school. AR 39-40. 22 Similarly, the ALJ repeatedly cited the fact that Plaintiff taught music, but failed to note 23 that Plaintiff’s part-time employment as a music teacher was before his alleged onset date or that 24 Plaintiff was fired from that job after failing to interact appropriately with both a client and a 25 supervisor. See AR 41-42, 49, 230, 343. 26 The ALJ also overstated Plaintiff’s “ability to cook, clean, drive, shop, manage money, and 27 use a computer.” ALJ 17 (citing Exs. 5E and 4F). A review of the cited exhibits shows that 1 cooking and prepared “easier meals.” AR 237. He reported spending 30-60 minutes a day on 2 cleaning or other chores. Id. Although Plaintiff stated that he could drive, he also stated that he 3 goes outside only once or twice a week. AR 238. Some of his shopping was done by computer, 4 and he spent about 15 minutes a week shopping. Id. Similarly, although the ALJ cited Plaintiff’s 5 interest in hobbies like gardening, music, chatting, and hiking (AR 20), Plaintiff had reported that 6 he did not do these activities often. AR 239. 7 In summary, the ALJ’s depiction of Plaintiff’s ADLs painted a different picture than the 8 evidence the ALJ cited, which shows that Plaintiff engaged in the relevant activities on a far more 9 limited basis. Such “cherry-picked” evidence does not provide specific, clear, and convincing 10 reasons for rejecting Plaintiff’s symptom testimony. See J.M. v. Kijakazi, No. 20-CV-07196-JCS, [11] 2022 WL 617120 , at *18 (N.D. Cal. Mar. 2, 2022). 12 Of even greater concern is that the ALJ ignored an important fact regardng some of the 13 ADLs upon which the ALJ relied: Plaintiff’s therapist developed a treatment plan in March 2020 14 that included a goal of using coping skills to be motivated to get out of bed to perform at least one 15 task daily. AR 312-313. Soon thereafter, Plaintiff reported trying to use gardening, researching, 16 and making music as coping skills for his anxiety. AR 306. The ALJ ignored this critical context, 17 using the fact that Plaintiff engaged in activities such as gardening and making music as a way to 18 cope with his anxiety as a reason to shed doubt on the seriousness of that anxiety and other 19 symptoms reported by Plaintiff. Such a credibility finding, faulting Plaintiff for following a 20 treatment plan, places a claimant such as Plaintiff in an impossible situation because, as the 21 Commissioner acknowledges, his symptom allegations could also be discredited if he failed to 22 follow a prescribed course of treatment. See Dkt. 18 at 5 (citing Tommasetti v. Astrue, 533 F.3d 23 1035, 1039 (9th Cir. 2008)). 24 In any event, to form the basis of an adverse credibility finding, a claimant’s activities 25 must either “(1) contradict her other testimony or (2) meet the threshold for transferable work 26 skills.” Sabin v. Astrue, 337 Fed. Appx. 617, 620 (9th Cir. 2009) (citing Orn v. Astrue, 495 F.3d 27 625, 639 (9th Cir. 2007)); see also Jones v. Berryhill, No. 18-CV-01857-WHO, 2019 WL 1 Plaintiff’s actual ADLs contradicted his testimony. Moreover, the ALJ must make “specific 2 findings relating to the daily activities and their transferability” to conclude that a claimant’s daily 3 activities warrant an adverse credibility determination. Orn, 495 F.3d at 639 . Most of the ADLs 4 upon which the ALJ relied did not “take up a substantial part of [Plaintiff’s] day,” and they 5 “overlap with, and are akin to, the activities [that have been] specifically recognized as non6 transferrable” by the Ninth Circuit. Griffin v. Saul, No. 19-CV-07045-RS, 2021 WL 4992626 , at 7 *10 (N.D. Cal. Feb. 8, 2021) (citing Vertigan v. Halter, 260 F.3d 1044, 1049-50 (9th Cir. 2001)). 8 For the reasons discussed, the ALJ's conclusion that Plaintiff’s ADLs were inconsistent 9 with the alleged severity of his impairments was not supported by specific, clear, or convincing 10 evidence. Instead, the ALJ mischaracterized the context, extent, and significance of Plaintiff’s 11 ADLs. The ALJ expressly premised her RFC determination at least in part on Plaintiff’s 12 purported ADLs. See, e.g., AR 21 (finding that Plaintiff is able to perform simple and detailed 13 tasks (rather than only simple 1-2 step instructions) “[g]iven his typically at least average intellect, 14 and the fact that he was recently in college … as well as some skilled activities of daily living 15 (ADLs) such as driving”); AR 22 (finding Plaintiff capable of frequent interactions with known 16 individuals given his work history, “such as his ability to be a music teacher in the relatively 17 recent past”). The ALJ’s error in evaluating Plaintiff’s credibility therefore was not harmless. 18 Accordingly, for the reasons discussed above, on the issue of the ALJ’s evaluation of 19 Plaintiff’s credibility, the Court GRANTS Plaintiff’s motion and DENIES the Commissioner’s 20 cross-motion. [21] 22 B. Issue Two: Lay Witness Testimony 23 Plaintiff’s father testified at the ALJ hearing that his son has nightmares, sleeps 24 sporadically, exhibits a poor memory and concentration, is reclusive, and does not achieve his 25 goals. AR 52-54. Plaintiff points out, correctly, that the ALJ Decision did not mention that 26 Plaintiff’s father testified at the hearing, much less offer any analysis of that testimony. Dkt. 12 at 27 13-14. The Commissioner admits that “the ALJ did not address the testimony of Plaintiff’s 1 Under long-standing Ninth Circuit law, “[i]n determining whether a claimant is disabled, 2 an ALJ must consider lay witness testimony concerning a claimant's ability to work.” Bruce v. 3 Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009) (citations and quotation marks omitted). “Lay 4 testimony as to a claimant's symptoms is competent evidence that an ALJ must take into account.” 5 Diedrich v. Berryhill, 874 F.3d 634, 640 (9th Cir. 2017). An ALJ must have reasons that are 6 “germane to each witness” to reject lay witness testimony. Id. 7 The ALJ’s failure to evaluate or even acknowledge the testimony of Plaintiff’s father 8 would constitute error under the “germane reasons” standard. However, the Commissioner argues 9 that the revised regulation at 20 C.F.R. § 416 .920b, 2 entitled “How we consider evidence,” 10 “contains no directive that ALJs must articulate reasons for how they valued nonmedical, i.e., lay 11 witness evidence.” Dkt. 18 at 7 n.4. According to the Commissioner, the Ninth Circuit has 12 explained that “it is clear that [ALJs] are no longer required to articulate” their consideration of 13 nonmedical evidence under the revised regulations and that court “even noted that it is an ‘open 14 question whether ALJs are still required to consider’ nonmedical source statements under the 15 revised regulations at all.” Id. at 8 (quoting Fryer v. Kijakazi, No. 21-36004, 2022 WL 17958630 , 16 at *3 n.1 (9th Cir. Dec. 27, 2022)). 17 In considering the ALJ’s obligations under the revised regulations with regard to lay 18 witness testimony, the Court notes that other courts in this Circuit have continued to apply the 19 germane reasons standard in determining whether an ALJ erred in evaluating lay witness 20 testimony, even in cases decided under the revised regulations. See, e.g., Nicole N.-M. v. Comm'r, 21 Soc. Sec. Admin., 649 F. Supp. 3d 1025 , 1040 (D. Or. 2022) (“Under the 2017 regulations, the 22 ALJ is not ‘required to articulate how [they] considered evidence from nonmedical sources’ using 23 the same criteria required for the evaluation of medical sources. 20 C.F.R. §§ 404 .1520c(d), 24 416.920c(d). However, the ALJ must still articulate their assessment of lay witness statements.”); [25] 2 Revised regulations went into effect on March 27, 2017, which include a change in how medical [26] evidence must be evaluated and other changes. See V.W. v. Comm'r of Soc. Sec., No. 18-cv07297-JCS, 2020 WL 1505716 , at *13 (N.D. Cal. Mar. 30, 2020) (quoting 20 C.F.R. [27] § 416.920c(a)); see also 20 C.F.R. § 404 .1520c(a). This case is subject to those revised 1 Tanya L.L. v. Comm'r Soc. Sec., 526 F. Supp. 3d 858 , 869 (D. Or. 2021) (same); see also Weitman 2 v. Kijakazi, No. 21-35748, 2022 WL 17175060 , at *2 n.4 (9th Cir. Nov. 23, 2022) (declining to 3 reach the issue of whether 2017 changes to regulations eliminated germaneness standard for 4 rejecting lay witness testimony “because the germaneness standard is satisfied here”); K.F. v. 5 Kijakazi, No. 20-CV-08629-LB, 2022 WL 207661 , at *8 (N.D. Cal. Jan. 24, 2022) (analyzing lay 6 witness testimony under germane reasons case law where “[t]he Commissioner has briefed this 7 case under the assumption that the Ninth Circuit's germane reasons case law continues to apply”). 8 The Court joins others in this Circuit in concluding that the ALJ must continue to consider 9 lay witness testimony. As the Commissioner concedes, under the revised regulations, an ALJ 10 must evaluate evidence “according to the rules pertaining to the relevant category,” and lay 11 witness evidence falls within the category of evidence from nonmedical sources. Dkt. 18 at 7 n.4; 12 see also 20 C.F.R. § 416.913 (a); 20 C.F.R. § 416.913 (a)(4). The revised regulations specify that 13 the ALJ is “not required to articulate how [she] considered evidence from nonmedical sources” 14 under the same requirements applicable to medical opinions and prior administrative medical 15 findings.” 20 C.F.R. § 416 .920c(d). However, the revised regulations do not state that the ALJ is 16 not required to consider evidence from nonmedical sources. In fact, several of the revised 17 regulations indicate that nonmedical evidence among the evidence that the ALJ will “evaluate” 18 ( 20 C.F.R. § 416.913 (a)) and “consider” ( 20 C.F.R. § 416 .920c(d)). 19 Thus, lay testimony about a claimant’s symptoms is “competent evidence that an ALJ must 20 take into account.” Juan J. v. Kijakazi, No. 20-cv-05797-DMR, 2022 WL 4310046 , at *6 (N.D. 21 Cal. Sep. 19, 2022) *6 (quoting Diedrich v. Berryhill, 874 F.3d 634, 640 (9th Cir. 2017)). “[L]ay 22 witness testimony as to a claimant’s symptoms or how an impairment affects ability to work is 23 competent evidence and therefore cannot be disregarded without comment.” Tobeler v. Colvin, [24] 749 F.3d 830, 833-834 (9th Cir. 2014) (internal quotation marks, citations, and emphasis omitted). 25 Even where an ALJ went beyond what the ALJ did in this case and summarized the third party’s 26 testimony, it was nevertheless error if the ALJ “did not state whether he took it into account or 27 disregarded it” and did not offer “any specific reasons germane to [the witness] to reject her 1 The Commissioner argues that any error in the ALJ’s failure to properly evaluate the 2 testimony of Plaintiff’s father was harmless “because the nonmedical testimony of Plaintiff’s 3 father was substantially similar to Plaintiff’s Function Report and testimony” and could be 4 properly discounted for the same reasons the ALJ discounted Plaintiff’s similar testimony. 5 Dkt. 18 at 8. However, as discussed in section IV.A. above, the Court concludes that the ALJ 6 erred in discounting Plaintiff’s testimony. Moreover, to the extent the Commissioner offers this as 7 a reason why the ALJ might have been justified in rejecting the testimony of Plaintiffs’ father, this 8 Court is unable to review reasons for the rejection of testimony that the ALJ herself did not 9 provide. Norman v. Berryhill, No. 17-CV-04108-SI, 2018 WL 4519952 , at *8 (N.D. Cal. Sept. 10 19, 2018) (citing Brown-Hunter, 806 F.3d at 492 (internal quotation marks, alterations, and 11 citation omitted)). 12 Accordingly, the ALJ’s error in failing to properly evaluate the testimony of Plaintiff’s 13 father was not harmless, and the Court GRANTS Plaintiff’s motion for summary judgment and 14 DENIES the Commissioner’s cross-motion for summary judgment on this issue. [15] 16 C. Issue Three: Evaluation of the medical evidence 17 Plaintiff argues that the ALJ failed to properly analyze the supportability and consistency 18 of the medical opinions and that her findings were not supported by substantial evidence. Dkt. 12 19 at 14-22. Under the revised Social Security Administration regulations that apply in this case, the 20 ALJ was required to consider all medical opinions and “evaluate their persuasiveness” based on 21 the following factors: (1) supportability; (2) consistency; (3) relationship with the claimant; (4) 22 specialization; and (5) “other factors.” 20 C.F.R. §416 .920c(a)-(c). The two “most important 23 factors” for determining the persuasiveness of medical opinions are consistency and supportability 24 and the ALJ is required to explicitly address supportability and consistency in her decision. 20 25 C.F.R. § 416 .920c(a), (b)(2); see also Woods v. Kijakazi, 32 F.4th 785, 791-793 (9th Cir. 2022). 26 The ALJ may, but is not required to, explain how she considered the remaining three factors. [27] 20 C.F.R. § 416 .920c(b)(2). The new regulations “displace [the Ninth Circuit's] longstanding case 1 physician's opinion where the opinion is contradicted by other medical opinions. Woods, 32 F.4th 2 at 787. 3 “Supportability means the extent to which a medical source supports the medical opinion 4 by explaining the ‘relevant ... objective medical evidence.’ ” Woods, 32 F.4th at 791-92 ; see 5 also 20 C.F.R. § 416 .920c(c)(1) (“The more relevant the objective medical evidence and 6 supporting explanations presented by a medical source are to support his or her medical opinion(s) 7 or prior administrative medical finding(s), the more persuasive the medical opinions or prior 8 administrative medical finding(s) will be”). “Consistency means the extent to which a medical 9 opinion is ‘consistent ... with the evidence from other medical sources and nonmedical sources in 10 the claim.’” Woods, 32 F.4th at 792 ; see also 20 C.F.R. §416 .920c(c)(2) (“The more consistent a 11 medical opinion(s) or prior administrative medical finding(s) is with the evidence from other 12 medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) 13 or prior administrative medical finding(s) will be”). 14 As with all other determinations made by the ALJ, the ALJ’s persuasiveness explanation 15 must be supported by substantial evidence. See Woods, 32 F.4th at 792 ; see also Azia B. v. 16 Kijakazi, No. 22-cv-01731-TSH, 2023 WL 1442841 , at *7 (N.D. Cal. Feb. 1, 2023). 17 Plaintiff faults the ALJ for “discredit[ing] the favorable opinions of a state agency 18 consultant, a consultative examiner, a treating therapist, and two treating doctors in favor of the 19 opinion of the one agency consultant who reviewed the case at the initial application level” and 20 argues that “the ALJ’s findings discrediting these five separate medical opinions were not 21 supported by substantial evidence.” Dkt. 12 at 14. 22 1. Agency Consultants: Drs. Ibarra and Khan 23 In connection with agency review of Plaintiff’s initial application, State agency 24 psychological consultant G.R. Ibarra, M.D., opined that Plaintiff “retains the ability to understand, 25 remember, carry out and sustain activities that are simple and detailed, under ordinary 26 supervision.” AR 68. Later, upon reconsideration, State agency psychological consultant 27 S. Khan, M.D. opined that Plaintiff can perform “non-public simple unskilled/one-two step work.” 1 review and written statements they provided and were mostly consistent with the medical evidence 2 of record. AR 21. The ALJ concluded that both opinions were “partially persuasive,” although 3 she found Dr. Ibarra’s determination to be “best supported.” Id. 4 Plaintiff attacks Dr. Ibarra’s opinion because Dr. Ibarra based his finding that Plaintiff 5 could perform simple and detailed tasks on his finding that Plaintiff was able to make purchases 6 on a computer, drive, and “manage finances.” Dkt. 12 at 15 (citing AR 65-69). Plaintiff also 7 takes issue with the fact that the ALJ adopted Dr. Ibarra’s opinion that Plaintiff could perform 8 simple and detailed tasks rather than Dr. Khan’s opinion that Plaintiff was limited to performing 9 simple 1-2 step instructions in a non-public setting. Dkt. 12 at 15. As Plaintiff points out, 10 “Dr. Khan had the benefit of reviewing at least two additional mental health records from treating 11 providers than Dr. Ibarra.” Id. (citing AR 80). 12 The reasons offered by the ALJ for adopting Dr. Ibarra’s opinion, rather than Dr. Khan’s 13 opinion, as to complexity of tasks were not sufficient. In support of her preference, the ALJ 14 pointed to Plaintiff’s “at least average intellect, and the fact that he was recently in college, and 15 did not have any IEP when in high school, as well as some skilled activities of daily living (ADLs) 16 such as driving.” AR 21. The ALJ’s conclusions in this regard were reflected in the RFC, which 17 found Plaintiff capable of performing “simple and detailed but not complex tasks.” AR 18. 18 However, Plaintiff does not claim that he has an intellectual disability; instead, as the ALJ 19 found, Plaintiff has anxiety, ADHD, PTSD, and other mental impairments. AR 16. Moreover, 20 Plaintiff’s alleged onset date is August 31, 2019, when he was 28 years old (see AR 186), so the 21 lack of an IEP during high school is not pertinent. Similarly, the ALJ did not explain why 22 Plaintiff’s ability to drive bears on the question of whether he can perform simple and detailed 23 tasks or is instead limited to performing simple 1-2 step instructions in a non-public setting. 24 For these reasons, the ALJ’s conclusion that Dr. Ibarra’s opinion was more persuasive than 25 Dr. Kahn’s opinion concerning the complexity of tasks Plaintiff can handle was not supported by 26 substantial evidence. 27 This error was not harmless because at the hearing, the ALJ posed a hypothetical to the 1 inquiring whether there are other jobs that could be performed by an individual who can perform 2 simple and detailed, but not complex, tasks. E.S. v. Kijakazi, No. 20-cv-06550-JCS, 2022 WL 3 4292333, at *16 (N.D. Cal. Sep. 16, 2022); see also AR 55-56. The VE responded affirmatively, 4 and the ALJ subsequently found Plaintiff not disabled. AR 25-26, 55-56. [5] 6 2. Treating Providers: Dr. Nguyen, Dr. Kecskes, and Yao-Szu Tsou, LMFT [7] Three of Plaintiff’s treating medical providers completed forms regarding Plaintiff’s [8] limitations: Tac Nguyen, M.D. (Plaintiff’s therapist and treating psychiatrist); Diane Kecskes, [9] M.D. (a treating psychiatrist); and Yao-Szu Tsou, LMFT (a therapist). AR 340; AR 371; AR 293. [10] The ALJ found the opinions of these treating providers “collectively unpersuasive” for five [11] reasons: (1) they contain opinions on matters reserved to the Commissioner; (2) Tsou completed [12] the form four months prior to the alleged onset date and did not reference any specific treatment [13] notes; (3) there was evidence of improvement over time based on Plaintiff’s “often normal” moods [14] on mental status examinations and discontinuing some medications; (4) the opinions from Drs. [15] Nguyen and Kecskes were not well-supported and were inconsistent with Plaintiff’s reports and [16] objective findings; and (5) Dr. Kecskes opined that the stated limitations had been present since [17] August 2019 but Plaintiff was not treated by her agency until February 2020. AR 23. [18] On a form prepared for a general assistance program, Dr. Nguyen opined that Plaintiff had [19] significant restrictions/limitations of activities of daily living or employment because he was [20] “unable to concentrate/to focus.” AR 340. Dr. Nguyen also checked boxes stating that Plaintiff [21] had “significant deficiencies of concentration, persistence or pace” and was “incapable of low [22] stress jobs.” Id. Dr. Nguyen identified a mental status exam as the objective evidence of these [23] limitations. Id. The ALJ explained why she found Dr. Nguyen’s opinion unpersuasive. She [24] identified the mental status exam on September 14, 2021 as the one closest in time to the date [25] Dr. Nguyen completed the form (September 12, 2021). AR 23. Neither Dr. Nguyen’s notes of [26] that September 14, 2021 exam nor the notes of his previous July 21, 2021 exam mention that [27] Plaintiff had problems with concentration. See AR 365-367. Plaintiff argues that Dr. Nguyen’s 1 findings regarding Plaintiff’s flat affect, slow speech, concrete (rather than coherent) thought, 2 confabulation of memory impairment, limited insight, and poor judgment “more than support his 3 opinions regarding [Plaintiff’s] difficulties staying focused and handling even low stress in a full4 time work environment.” Dkt. 12 at 17 (citing AR 23). However, the Court does not find these 5 findings sufficiently tied to Plaintiff’s ability to concentrate to undermine the ALJ’s decision to 6 give Dr. Nguyen’s opinion little weight. 7 Dr. Kecskes completed a questionnaire on March 24, 2022 in which she stated Plaintiff 8 could not sustain any kind of full-time work because various conditions “interfere with 9 [Plaintiff’s] ability to sustain focus, concentration and attention” and that “[h]e is easily 10 overwhelmed which causes poor organization planning or sequencing activities.” AR 371. 11 Dr. Kecskes further opined that Plaintiff’s impairments were likely to produce “good days” and 12 “bad days” and that he likely would miss more than four days of work per month due to his 13 impairments. Id. Dr. Kecskes stated that the earliest date that these limitations would apply was 14 August 2019. Id. The ALJ discussed the records of Plaintiff’s treatment by Dr. Kecskes and her 15 agency, and concluded that Plaintiff’s “subjective reports and objective findings do not support 16 [Dr. Kecskes’] opinions as to inability to concentrate/focus, being overwhelmed, needing extra 17 breaks, or missing days of work” and that, overall, her opinions “are not well supported by or 18 consistent with the progress notes in the record.” AR 23-24. Plaintiff argues with how the ALJ 19 weighed the evidence concerning Dr. Kecskes’ opinion but has not demonstrated that the ALJ 20 erred. 21 Therapist Tsou wrote a letter on June 16, 2020 stating that Plaintiff had been a client of her 22 organization since February 25, 2020. AR 293. Tsou stated that Plaintiff had posttraumatic stress 23 disorder and generalized anxiety disorder. Id. Tsou opined that Plaintiff “has difficulties with 24 working and with memory” that would “distract[] [Plaintiff] from being able to recall memory 25 unrelated to the [prior traumatic] incidents” and would cause Plaintiff to “feel overwhelmed by the 26 anxiety at times and would render him incapable of action.” Id. The Court finds no error in the 27 ALJ’s conclusion that this form was “not supported by any specific reference to treatment notes.” 1 Accordingly, the Court does not find error with the ALJ’s evaluation of the opinions of Dr. 2 Nguyen, Dr. Kecskes, and therapist Tsou. [3] 4 3. Agency Consultative Examiner: Dr. Spivey 5 The agency consultative psychological examiner, Patricia Spivey, Psy.D., did not offer 6 functional opinions but rated various activities and skills as being impaired from the level of 7 “none” to “marked.” AR 335. Dr. Spivey found that Plaintiff had no limitations on following 8 instructions of any complexity, maintaining pace/persistence for tasks of any complexity, and 9 communicating effectively verbally and in writing. Id. Dr. Spivey found mild limitations in 10 Plaintiff’s ability to maintain adequate attention/concentration and adapt to changes. Id. 11 Dr. Spivey found moderate to marked limitations in Plaintiff’s ability to interact appropriately 12 with others on a daily basis. Id. Dr. Spivey found Plaintiff to have marked limitations in 13 withstanding the stress of a normal workday and maintaining emotional stability/predictability. [14] Id. 15 The ALJ found Dr. Spivey’s opinion that Plaintiff had marked limitations in certain areas 16 “not persuasive,” for two reasons: (1) the ALJ found some of the findings to be internally 17 inconsistent, and (2) the ALJ found that the objective findings and the examination did not support 18 marked limitations. AR 24. The ALJ explained each of these reasons and then concluded that 19 “Dr. Spivey’s marked findings are not persuasive because they are not well supported by this 20 exam and are not consistent with the collateral record.” Id. 21 Plaintiff argues that the ALJ erred in dismissing Dr. Spivey’s “marked” limitations because 22 the ALJ’s analysis was conclusory and was not supported by substantial evidence. Dkt. 12 at 20. 23 The ALJ discussed, with citations to the record, the consistency and supportability of Dr. Spivey’s 24 opinions that Plaintiff had marked limitations in two areas. AR 24. However, the Court finds the 25 ALJ’s explanation of why she found Dr. Spivey’s opinions not persuasive to be inadequate. The 26 ALJ explained her conclusion that “some of the findings on this form are internally inconsistent” 27 by giving the following examples: (1) “a person who was markedly impaired in managing stress 1 and maintaining pace, as such marked symptomology would interfere with staying on task”; and 2 (2) “his ability to communicate effectively would be expected to be impaired by emotional lability 3 and the inability to respond appropriately to stress.” AR 24 (emphasis added). The ALJ’s 4 “analysis” as to “expected” symptoms is not supported by any citations to medical evidence or 5 other authority and is therefore speculative and inappropriate. “An ALJ cannot arbitrarily 6 substitute [her] own judgment for competent medical opinion, and [she] must not succumb to the 7 temptation to play doctor and make [her] own independent medical findings.” E.S. v. Kijakazi, [8] 2022 WL 4292333 , at *15 (quoting Banks v. Barnhard, 434 F. Supp. 2d 800, 805 (C.D. Cal. 9 2006)). 10 The ALJ’s conclusion that Dr. Spivey’s “marked” findings were not well supported by 11 Dr. Spivey’s exam of Plaintiff was also flawed. In reaching this conclusion, the ALJ cited factors 12 such as Plaintiff’s normal IQ and memory test results and linear thought process (AR 24), but did 13 not explain how these factors were relevant to Plaintiff’s ability to withstand the stress of a normal 14 workday and or maintain emotional stability/predictability. 15 The ALJ’s error in evaluating Dr. Spivey’s opinion that Plaintiff had marked limitations in 16 withstanding the stress of a normal workday and maintaining emotional stability/predictability was 17 prejudicial because the ALJ’s RFC determination included frequent interaction with supervisors, 18 coworkers, and known members of the public, the ability to perform work with goal-oriented 19 productivity expectations, and the ability to adapt to occasional changes in the workplace. AR 19. 20 The hypothetical the ALJ posed to the VE at the hearing included these elements from the RFC. 21 AR 55-56. The VE testified that if a person were off task 15% of the workday or was consistently 22 absent as little as two days a month due to their impairments, it would “eliminate all competitive 23 work.” AR 56-57. Because the hypothetical posed by the ALJ included no off-task time or 24 absences due to an inability to withstand stress or maintain emotional stability and assumed the 25 ability to be get along with others and be productive and adaptable, the ALJ’s error in evaluating 26 Dr. Spivey’s opinion was not harmless. See E.S. v. Kijakazi, 2022 WL 4292333 , at *16. 27 Accordingly, the ALJ’s finding that Dr. Spivey’s opinions that Plaintiff had marked [1] 2 4. Conclusion on evaluation of medical evidence 3 For the reasons discussed above, the Court concludes that the ALJ erred in evaluating 4 certain of the medical evidence. Moreover, the errors discussed in sections IV.A. and IV.B. above 5 in the ALJ’s analysis of the testimony of Plaintiff and his father could have impacted the ALJ's 6 assessment and the weight she gave to Plaintiff's medical examinations. See Juan J. v. Kijakazi, [7] 2022 WL 4310046 , at *6. Therefore, on the issue of the ALJ’s evaluation of the medical 8 evidence, the Court GRANTS Plaintiff’s motion and DENIES the Commissioner’s cross-motion. [9] 10 D. Issue Four: Incorporation of Social Interaction Limitations in RFC 11 Plaintiff argues that the ALJ’s determination that Plaintiff is able to frequently interact 12 with coworkers, supervisors, and “familiar members of the public (such as known clients)” but 13 only occasionally interact with unknown members of the public was not supported by substantial 14 evidence. Dkt. 12 at 22 (citing AR 19). 15 The ALJ is responsible for “translating and incorporating” the evidence of record “into a 16 succinct RFC.” Rounds, 807 F.3d at 1006 ; 20 C.F.R. § 416.945 (a)(i) (requiring that RFC 17 assessment be “based on all the relevant evidence”); 20 C.F.R. § 416.946 (c) (stating that ALJ is 18 “responsible for assessing [the] residual functional capacity.”). “In determining a claimant’s RFC, 19 an ALJ must consider all relevant evidence in the record, including … medical records, lay 20 evidence, and the effects of symptoms that are reasonably attributed to a medically determinable 21 impairment.” Leonard v. Colvin, 633 Fed. Appx. 362, 364 (9th Cir. 2015) (internal quotation 22 marks and citations omitted). “[A]n RFC that fails to take into account a claimant’s limitations is 23 defective.” Id. (citing Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009)). 24 The ALJ noted that “Dr. Ibarra adopted no social limitations and Dr. Khan precluded 25 public interaction.” AR 22. The ALJ “found [Plaintiff] both more and less limited in providing 26 for frequent interactions except for only occasionally with strangers.” Id. The ALJ offered the 27 following explanation: This is based on his work history, such as his ability to be a music teacher in the relatively [1] recent past, which suggests he can interact appropriately with clients who are known to 2 him but may have difficulty interacting with the general public (such as in the coffee shop settings in which he previously worked) due to mood changes, anxiety, and reported 3 irritability at times. [] In addition, I observe, however, that he was described as “nice” and cooperative by the field office interviewer. [] [4] AR 22 (record citations omitted). Elsewhere in her decision, the ALJ concluded that Plaintiff had [5] “moderate limitation” in interacting with others. AR 17. The ALJ again noted the following [6] considerations in support of this conclusion: Plaintiff reported the ability to drive and go shopping [7] in stores; he was in college until at least the summer of 2020 and possibly later; his activities have [8] included running, gardening, and taking guitar lessons; he has reported teaching music, hiking [9] with friends, and helping his parents; and he can follow spoken and written instructions and he [10] gets along with authority figures. Id. [11] The ALJ’s explanation did not identify adequate support for her RFC finding as to [12] Plaintiff’s ability to engage in social interactions. The ALJ failed to explain how some of the facts [13] she mentioned—such as Plaintiff’s ability to drive and engagement in activities such as [14] gardening—involved interaction with others or were sustained enough to be relevant to Plaintiff’s [15] ability to engage in social interactions in a work environment. The ALJ’s recitation of other facts [16] that more directly relate to Plaintiff’s social interactions was incomplete. For example, the ALJ [17] stated that the fact that Plaintiff was a music teacher in the relatively recent past suggested he [18] could interact appropriately with clients that are known to him. AR 22; see also AR 17. [19] However, as discussed in section IV.A. above, the ALJ failed to address the facts that Plaintiff was [20] employed as a part time music teacher was before his alleged onset date or that Plaintiff was fired [21] from that job after failing to interact appropriately with both a client and a supervisor. See AR 4122 42, 49, 230, 343. Similarly, the ALJ cited the fact that Plaintiff attended some college classes but [23] did not address the facts that Plaintiff’s classes were online or that he struggled with them and [24] ultimately gave up pursuing his education. AR 40, 301-03, 306, 341. The Plaintiff’s occasional [25] engagement in other social interactions cited by the ALJ, such as hiking with friends (which [26] Plaintiff reported that he did not do often (AR 239)) and being “nice” and “cooperative” in a [27] single interview, are insufficient to support the ALJ’s social interaction findings. 1 In addition, in determining a claimant’s RFC, the ALJ must consider “all relevant evidence 2 in the record.” Leonard, 633 Fed. Appx. at 364 . As discussed in sections IV.A., IV.B., and IV.C. 3 above, the ALJ erred in evaluating Plaintiff's credibility, the testimony of Plaintiffs father, and 4 the medical opinion evidence. On remand, the ALJ must correctly evaluate the relevant evidence 5 in the record in developing Plaintiff's RFC. 6 Accordingly, the Court GRANTS Plaintiff's motion for summary judgment and DENIES 7 || the Commissioner’s cross-motion for summary judgment on the issue of the social interaction 8 limitations in the RFC. 9 V. CONCLUSION 10 For the foregoing reasons, the Court GRANTS Plaintiff's motion for summary judgment 11 and DENIES Defendant Commissioner’s cross-motion for summary judgment. It is not clear 12 || from the record that the ALJ would be required to find Plaintiff disabled if all the evidence were 13 properly evaluated, and therefore remand is appropriate. Luther v. Berryhill, 891 F.3d 872 , 87714 || 78 (9th Cir. 2018). Accordingly, the Court REMANDS this case for further proceedings. 3 15 SO ORDERED. a 16 Dated: March 6, 2024 18 Secon verKl SUSAN VAN KEULEN 19 United States Magistrate Judge