Christopher R. v. O'Malley

Full title: CHRISTOPHER R.,[1] Plaintiff v. MARTIN O'MALLEY, Commissioner of Social…

Court: United States District Court, Southern District of California

Date published: Jul 30, 2024

23cv873-RBM(LR) (S.D. Cal. Jul. 30, 2024)

Opinion

23cv873-RBM(LR)

07-30-2024

CHRISTOPHER R.,[1] Plaintiff v. MARTIN O'MALLEY, Commissioner of Social Security,[2] Defendant

Honorable Lupe Rodriguez, Jr. United States Magistrate Judge.

REPORT AND RECOMMENDATION REGARDING JOINT MOTION FOR JUDICIAL REVIEW OF THE FINAL DECISION OF THE COMMISSIONER OF SOCIAL SECURITY [ECF NO. 12]

Honorable Lupe Rodriguez, Jr. United States Magistrate Judge.

This Report and Recommendation is submitted to the Honorable Ruth Bermudez Montenegro, United States District Judge, pursuant to 28 U.S.C. § 636(b)(1) and Civil Local Rule 72.1(c) of the United States District Court for the Southern District of California. On May 11, 2023, Plaintiff filed a Complaint pursuant to 42 U.S.C. § 405(g) seeking judicial review of a decision by the Commissioner of Social Security denying his application for supplemental security income benefits under Title XVI. (ECF No. 1.)

Now pending before the Court is the parties' “Joint Motion for Judicial Review” (“Joint Motion”). (ECF No. 12 (“J. Mot.”).) For the reasons set forth below, the Court RECOMMENDS that the Commissioner's decision be REVERSED, and that Judgment be entered reversing the decision of the Commissioner and remanding this matter for further administrative proceedings pursuant to sentence four of 42 U.S.C. § 405(g).

I. PROCEDURAL BACKGROUND

On January 22, 2020, Plaintiff filed an application for Social Security Disability insurance benefits under Title II and Supplemental Security Income benefits under Title XVI of the Social Security Act (the “Act”), alleging disability onset date of February 8, 2000. (ECF No. 8 (“AR”)³ at 187-96; see also ECF No. 1 at 1-2.) After his application was denied initially and upon reconsideration, (AR at 73-74, 105-06), Plaintiff requested an administrative hearing before an administrative law judge (“ALJ”), (id. at 130-31). An administrative hearing was held on June 30, 2021. (Id. at 30-48.) Plaintiff appeared at the hearing with counsel and testified during the hearing. (Id.)

3 “AR” refers to the Administrative Record filed on July 10, 2023. (ECF No. 8.) The Court's citations to the AR in this Report and Recommendation are to the page numbers listed on the original document, rather than the page numbers designated by the Court's Case Management/Electronic Case Filing System (“CM/ECF”). For all other documents, the Court's citations are to the page numbers affixed by CM/ECF.

As reflected in his March 24, 2022 hearing decision, the ALJ found that Plaintiff had not been under a disability, as defined in the Act, from January 22, 2020, the date Plaintiff filed his application,⁴ through the date of the ALJ's decision. (Id. at 16, 25.)

4 The Court notes that during Plaintiff's administrative hearing, his counsel moved to withdraw Plaintiff's Title II application and to proceed with Title XVI application, and the ALJ granted the motion. (AR at 35.) Plaintiff's counsel further requested to amend the onset date to February 22, 2020. (Id.) The ALJ then stated the following in his written decision regarding Plaintiff's application and the alleged disability onset Dated:

On January 22, 2020, the claimant filed a Title II application for a period of disability and disability insurance benefits. The claimant also filed a Title XVI application for supplemental security income on January 22, 2020. In both applications, the claimant alleged disability beginning February 8, 2000.

....

The claimant, through his attorney at the hearing, has amended the alleged onset date of disability to February 22, 2020, the protected filing date (Ex. 12E; Hearing Testimony). Pursuant to 20 CFR 404.957, an Administrative Law Judge may dismiss a request for hearing at the request of the claimant and/or his representative if submitted in writing or requested orally at the hearing. By amending the onset date of disability to a period past the date last insured, the claimant has constructively requested withdrawal of the request for hearing as it relates to her Title II claim. Therefore, in accordance with the request of the claimant and her attorney, the undersigned finds that the request for hearing filed March 3, 2021, insofar as it relates to the claimant's Title II application for benefits, shall be, and is, hereby dismissed. The Title II reconsideration determination notice dated August 6, 2020, remains the final and binding determination of the Commissioner. The remainder of this decision will address the claimant's supplemental security income application.

(Id. at 16.)

The ALJ's decision became the final decision of the Commissioner on March 16, 2023, when the Appeals Council denied Plaintiff's request for review. (Id. at 1-7.) This timely civil action followed. (See ECF No. 1.)

II. SUMMARY OF THE ALJ'S FINDINGS

The ALJ followed the Commissioner's five-step sequential evaluation process. See 20 C.F.R. § 404.1520. At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since January 22, 2020, the application date. (AR at 19.) At step two, the ALJ determined that Plaintiff had the following severe impairments: bipolar I disorder and substance abuse. (Id.) At step three, the ALJ determined that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the impairments listed in the Commissioner's Listing of Impairments. (Id.) Next, the ALJ found that Plaintiff had the residual functional capacity (“RFC”) to “perform a full range of work at all exertional levels but with the following nonexertional limitations: The claimant can perform simple routine tasks with no public contact.” (Id. at 20.)

At step four, the ALJ determined that Plaintiff did not have past relevant work. (Id. at 24.) The ALJ then proceeded to step five of the sequential evaluation process. The ALJ found that “[c]considering [Plaintiff's] age, education, work experience, and RFC, there were jobs that existed in significant numbers in the national economy that [Plaintiff] can perform.” (Id. at 25.) The ALJ ultimately determined that Plaintiff was not disabled. (Id.)

III. DISPUTED ISSUES

As reflected in the parties' Joint Motion, Plaintiff is raising the following issues as the grounds for reversal and remand:

1. Whether the ALJ properly evaluated Plaintiff's subjective statements, (J. Mot. at 3-12); and

2. Whether the ALJ properly evaluated Plaintiff's mental impairments, (id. at 3; see also id. at 12-34).

IV. STANDARD OF REVIEW

Section 405(g) of the Social Security Act allows unsuccessful applicants to seek judicial review of the Commissioner's final decision. 42 U.S.C. § 405(g). The scope of judicial review is limited, and the denial of benefits will not be disturbed if it is supported by substantial evidence in the record and contains no legal error. See id.; Buck v. Berryhill, 869 F.3d 1040, 1048 (9th Cir. 2017). “Substantial evidence means more than a mere scintilla, but less than a preponderance. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) (quoting Desrosiers v. Sec'y Health & Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988)). In determining whether the Commissioner's decision is supported by substantial evidence, a reviewing court “must assess the entire record, weighing the evidence both supporting and detracting from the agency's conclusion,” and “may not reweigh the evidence or substitute [its] judgment for that of the ALJ.” Ahearn v. Saul, 988 F.3d 1111, 1115 (9th Cir. 2021). Where the evidence can be interpreted in more than one way, the court must uphold the ALJ's decision. Id. at 111516; Attmore v. Colvin, 827 F.3d 872, 875 (9th Cir. 2016). The court may consider “only the reasons provided by the ALJ in the disability determination and may not affirm the ALJ on a ground upon which [he or she] did not rely.” Revels, 874 F.3d at 654 (internal quotation omitted).

V. DISCUSSION

A. Issue 1: Whether the ALJ Properly Evaluated Plaintiff's Subjective Symptom Testimony

Plaintiff argues that the ALJ erred in evaluating his statements regarding subjective symptoms. (See J. Mot. at 3-7, 11.) Specifically, Plaintiff contends that the ALJ did not identify any testimony regarding Plaintiff's symptoms in making the determination that the testimony was inconsistent with the record. (See id. at 5.) Plaintiff also states that although the ALJ cited Plaintiff's daily activities, the ALJ neither explained how these activities were inconsistent with Plaintiff's statements or other evidence, nor “translated these daily activities to a work setting.” (Id. at 6, 10.) Further, Plaintiff maintains that the record in this case does not clearly establish that his mental impairments responded well to medication, and alleges that the medication did not relieve all of his psychotic symptoms and did not restore him to a level where he can participate in a competitive work environment on a sustained basis. (See id. at 10-11.) Additionally, Plaintiff asserts that the ALJ failed to consider his mental impairments, such as disconnect with reality and delusions, and did not evaluate whether Plaintiff's thoughts were reality-based or whether Plaintiff could meet the mental demands in a competitive workplace. (See id. at 6-7.) Plaintiff therefore argues that the ALJ did not provide specific, clear, and convincing reasons for rejecting his subjective symptom testimony. (Id. at 11.)

Defendant responds that the ALJ's reasoning was sufficiently specific and supported by substantial evidence. (Id. at 7-9.) Defendant contends that Plaintiff's daily activities, including his use of public transportation and grocery shopping, suggested that Plaintiff was “less socially limited than he claimed.” (Id. at 8.) Defendant also argues that Plaintiff's mental impairments responded well to medication, and the evidence supported the ALJ's conclusion that Plaintiff's alleged disabling mental impairments were not as severe as Plaintiff claimed. (Id.) Further, Defendant states that objective examinations showed that Plaintiff was cooperative and alert, had normal speech, behavior, cognition, memory, and thought processes, and the ALJ rationally concluded that objective evidence contradicted Plaintiff's allegations of severe limitations. (See Id. at 8-9.)

1. Applicable law

The Ninth Circuit has established a two-part test for evaluating a claimant's allegations regarding subjective symptoms. See Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017); see also Social Security Ruling (“SSR”) 16-3p,⁵ 2016 WL 1119029 (Mar. 16, 2016). First, the ALJ determines whether there is “objective medical evidence of an underlying impairment that could reasonably be expected to produce the pain or other symptoms alleged.” Trevizo, 871 F.3d at 678 (quoting Garrison v. Colvin, 759 F.3d 995, 1014-15 (9th Cir. 2014)). Second, if a claimant presented such evidence, and there is no evidence of malingering, the ALJ may reject the claimant's statements about the severity of his or her symptoms “only by offering specific, clear and convincing reasons for doing so.” Id.

5 “[Assessments of an individual's testimony by an ALJ are designed to ‘evaluate the intensity and persistence of symptoms after [the ALJ] find[s] that the individual has a medically determinable impairment(s) that could reasonably be expected to produce those symptoms,' and not to delve into wide-ranging scrutiny of the claimant's character and apparent truthfulness.” Trevizo, 871 F.3d at 678 n.5 (quoting SSR 16-3p, 2016 WL 1119029).

When evaluating subjective symptom testimony, “[g]eneral findings are insufficient.” Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015). The ALJ must identify the testimony regarding the claimant's symptoms that the ALJ finds not credible and explain what evidence undermines the claimant's testimony. See Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020) (citing Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014)); see also Burrell v. Colvin, 775 F.3d 1133, 1139 (9th Cir. 2014) (finding error where the ALJ “never connected the medical record” to the claimant's testimony, and did not make “a specific finding linking a lack of medical records to [the claimant's] testimony about the intensity” of her symptoms); Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (providing that the ALJ's reasons for discounting a claimant's testimony must be “sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily discount the claimant's testimony”).

“Because symptoms sometimes suggest a greater severity of impairment than can be shown by objective medical evidence alone,” the ALJ considers “all of the evidence presented,” including information about the claimant's prior work record, statements about symptoms, evidence from medical sources, and observations by the Agency's employees and other individuals. See 20 C.F.R. § 416.929(c)(3); SSR 16-3p, 2016 WL 1119029. In addition, the ALJ may consider other factors, such as the claimant's daily activities; the location, duration, frequency, and intensity of pain or other symptoms; precipitating and aggravating factors; the type, dosage, effectiveness, and side effects of any medication taken to alleviate pain; treatment; and any other measures used to relieve pain. See 20 C.F.R. § 416.929(c)(3); SSR 16-3p, 2016 WL 1119029.

2. Plaintiff's testimony during the administrative hearing and medical records

a. Relevant testimony during Plaintiff's administrative hearing

At the time of Plaintiff's administrative hearing on June 30, 2021, he was thirty-nine years old. (See AR at 36.) Plaintiff testified that he was creating “an outreach program” on social media by “showing [people] [his] way of-[his] lifestyle.” (Id. at 3637.) Plaintiff stated that he lived out of a van parked by the ocean and supported himself by sharing “plant-based vegan” food with other homeless people, who in turn shared their food with him. (Id. at 38.) Plaintiff testified that he could drive, that he had recently re- obtained a valid driver's license with help from a homeless services outreach program, and that he bought gas with the $50 that his retired mother gave him every month. (See id. at 39, 41.) He also got gas money from friends or by playing “flute and a jam base” on the Oceanside pier. (Id. at 41.) Plaintiff described saving gas by driving his van “very, meticulously and slow,” under thirty miles an hour. (Id. at 42.)

Plaintiff testified that he heard a voice that “guide [d] [his] decision-making,” telling him “where to go and where to be,” instructing him to prepare raw vegan food for homeless people, and “pick up all the trash all around the world,” on the parking lot, and beaches. (Id. at 42-43.) After Plaintiff's counsel asked Plaintiff whether “there [were] any current issues with demons or anything like that,” Plaintiff initially responded, “No. I burn sage and follow the incense to clear me out.” (Id. at 43.) Plaintiff then asked, “You said demons?” and elaborated “[t]hat's why I jump in the ocean every day and I burn a lot of incense and sage all the time.” (Id.)

Plaintiff described the following strategies he used to manage his mental health: “I'm always trying to maintain contact with great spirit. And, if I can stay in contact with great spirit, then I'm guiding in the right direction.” (See id. at 43-44). Plaintiff also relied on “yoga studies,” medications, “look[ing] at animals,” “feed[ing] people,” “pick[ing] flowers,” and “play[ing] with all [his] senses.” (Id. at 44.) He testified that practicing all these coping skills was “a hard job,” but he “ha[d] to keep doing that.” (Id.)

Plaintiff further testified that he had attended therapy at North Coastal Mental Health Center (“NCMHC”), with medication management from San Diego Psychotherapy and Wellness Center (“SDPWC”), pursuant to a domestic violence court order. (See id. at 40-41.) However, he stopped attending therapy after completing his year-long court-mandated treatment. (See id. at 41.) When the ALJ asked whether Plaintiff was willing to be interviewed and evaluated by another mental health provider, Plaintiff agreed. (Id. at 45.)

Plaintiff also testified that he had not been able to maintain stable employment throughout his life: “I could get a job, but I get fired. Look at my records, I've gotten fired from every job I got[,] even the Army, even college, even from school.” (Id. at 46.) Reflecting on why he had been fired so many times, Plaintiff testified, “I got to speak the truth and they don't like that.” (Id. at 45.) He added that “I speak out. They want me to look the other way and be quiet. And, I don't do that. I know what's right. I follow the code. Right is right. I read the King James Version. I know the rules.” (Id.) Plaintiff also testified that “I'm not able to hold a job because I get put in jail when I hold a job” and “[m]y feelings are worth more than me in jail.” (Id. at 46-47.) When the ALJ asked Plaintiff whether he was willing to leave the Oceanside area in search of employment, Plaintiff stated that moving inland for work would be “too far from the ocean.” (Id. at 46.) Nevertheless, Plaintiff also stated that “if you can manage someone to keep up with me or be able to stand by my side without firing me, then so be it. But, till then, I have to be right here and create my own destiny.” (Id.)

b. Plaintiff's function report

Plaintiff stated in his March 4, 2020 function report that his mental illnesses limited his ability to work because he was unable to “follow through with directions,” had “mental breakdowns while working,” his “behavior usually [got him] fired,” he “[did] not follow rules” and “therefore [was] terminated,” and his “appearance [was] a nuisance to the staff at work.” (Id. at 223; see also id. at 230.) Plaintiff further reported that his daily activities consisted of praying, reading the Bible, coloring, eating raw food, practicing yoga, writing, painting, showering, picking up after himself, picking flowers, walking, watching the ocean, and “work[ing] on [his] mental health.” (Id. at 224.) Plaintiff also noted that before his disability, he had been able to interact with people without “making them upset at [him].” (Id.)

Plaintiff further stated that his mental illnesses affected his sleep, because he woke up every two hours, felt “sad and hopeless,” and thought of suicide. (Id.) Plaintiff reported that he did not regularly change clothes, bathe, cut his hair, shave, or eat. (Id.) Additionally, Plaintiff stated that he needed reminders to trim his beard, eat, shower, change his clothes, clean himself, and take his medications. (Id. at 225.) Plaintiff also reported that he was able to prepare his meals and ate “everything raw.” (Id.) Plaintiff's specialized diet made preparing meals quick because he only needed “a few minutes to peel and unwrap” his nuts, seeds, fruits, and vegetables. (Id.) Plaintiff also reported taking the mood stabilizer Abilify, and stated that the medication caused “stomach problems.” (Id. at 230.)

Because Plaintiff lived in his van parked at the Oceanside harbor, he did not do household chores or yardwork. (See id. at 225-26.) He typically got around by walking, although he was able to drive. (Id. at 226.) He spent fifteen to twenty minutes per day shopping for food at the “990 store.” (Id.) Although he could count change, he did not pay bills, did not have a savings account, was “unable to hold onto money,” and “d[id] not understand the value of money.” (Id. at 226-27.) Instead of having a checking or savings account, he “use[d] cash or EBT.” (Id. at 226.)

Plaintiff described his social activities as primarily online activities, stating that he was “show[ing] others what [he] d[id] all day with the phone using Social Media.” (Id. at 227.) He also stated that he went to a public library, the beach, mental health appointments, events at a local arts center, and local homeless services organizations to receive meals. (Id.) Plaintiff also reported that his mood swings caused him to become isolated and stay away from people. (Id. at 228.)

Plaintiff indicated that his mental illnesses limited his memory, concentration, and understanding, ability to follow instructions, complete tasks, and get along with others. (See id.) Describing his limitations, Plaintiff wrote, “I fall into a meditation outside of the world, get in trouble for not responding, yelled at for not following direction, hit because I do not get along with others.” (Id.) He also reported having a short attention span, difficulty with following spoken or written instructions, and difficulties interacting with authority figures, and stated that he had been fired by the Army, San Diego State University, Babies “R” US, a military commissary, and numerous other employers due to “misunderstandings because of the way [he] lived or something [he] said.” (Id. at 22829; see also id. at 182-87 (containing Plaintiff's work history consisting of more than forty-two employers).) Additionally, Plaintiff stated that he did not handle stress well, panicked, had meltdowns, or became “non operative,” and that instead of addressing changes in his routine, he would “forget to follow through, lose interest and leave without permission.” (Id. at 229.) In response to a question about whether he had any “unusual behavior or fears,” Plaintiff responded as follows: “I walk to graveyards, I feel I hear what is my purpose, I hear voices, I talk to things that are not there.” (Id.)

c. Third-party function report

Plaintiff's mother completed a third-party function report on March 9, 2020. (See id. at 210, 217.) She stated that she lived sixty miles from where Plaintiff parked his van in Oceanside, and twice a week drove Plaintiff to his medical appointments. (Id. at 210.) She stated that Plaintiff “ha[d] severe mood swings” and was not able to “concentrate on anything for very long.” (Id.) Plaintiff's mother also reported that Plaintiff had “had mental health issues since he was born.” (Id. at 214.) She described Plaintiff's daily activities as attending “outreach programs [at] Brother Benno's [and] Bread of Life,” the dentist, therapy, and taking “beach walks.” (Id. at 211.)

Plaintiff's mother also stated that Plaintiff had not worked for more than fifteen years, and relied on her, and, previously, on his former girlfriend for support. (See id.) Plaintiff's illnesses caused sleep disturbances, and he constantly called his mother “at all hours of the night.” (Id.) Plaintiff's mother described how she had to “tell [Plaintiff] daily to take care of his hygiene,” from “tell[ing] him when to change clothes” to “mak[ing] sure he bathes,” “buy[ing] shampoo for him,” and “tell[ing] him to trim his beard.” (Id. at 211-12.) She also stated that she was doing Plaintiff's laundry, and “suggest[ed] he do yoga for his well-being and exercise.” (Id. at 212.) Plaintiff needed reminders to take medications and attend appointments, which his mother programmed into his cell phone calendar. (Id. at 212, 214.)

Plaintiff's mother further stated that Plaintiff ate mostly uncooked seeds, fruits, and vegetables, although he also ate oatmeal, and it took him thirty minutes per day to prepare his meals. (Id. at 212.) Plaintiff had few other domestic responsibilities because he was homeless. (See id.)

Plaintiff's mother also stated that Plaintiff had not had a valid driver's license for more than a year, but he had his license reinstated on March 9, 2020. (Id. at 213.) Plaintiff shopped for water, fruits, and vegetables at Walmart and the “99 cent” store, and spent his days walking around, going to various homeless centers and a library. (Id.) She further reported that Plaintiff was able to use public transportation. (See id.)

Plaintiff had not had a bank account for many years, but his mother had recently given him a debit card, so that she could “help with things the CalFresh won't buy.” (Id.) Plaintiff's mother described him as a “poet” who “loves to draw, reads many books, doesn't watch TV at all.” (Id. at 214.) She also reported that Plaintiff's mental disorders affected his activities: “at times with his mood swings he is just lost [and] is very emotional. He has depression and manic behavior.” (Id.)

Plaintiff's social activities consisted of meeting other homeless people, attending art events once or twice a month, and attending church, community centers, and “drum groups.” (Id.) Plaintiff's mother also stated that Plaintiff's mental illnesses exacerbated his isolation, because “when he ha[d] mood swings and crying spells,” he “d[id] not want anyone around him.” (Id. at 215.)

Plaintiff was not able to handle his mail because he had problems following directions, and when mail come in, he “d[id]n't know what to do with it and he start[ed] stressing out.” (Id.) He could read written instructions, “but g[ot] agitated when having to follow something that [wa]s not what he want[ed] to do.” (Id.) Plaintiff could also listen to spoken instructions, but asked his mother to “remind him of what he need[ed] to do” and “los[t] track of time.” (Id.)

Plaintiff did not get along with authority figures and was fired from “all his jobs when younger.” (Id. at 216.) He did not handle changes in routine well. (Id.) Further, Plaintiff's mother stated that “lately [Plaintiff] just doesn't want to be living and asks why he is homeless and how long will he be living like this.” (Id.)

d. Relevant medical records

i. N.P. Dailo

According to N.P. Dailo's notes dated February 5, 2020, Plaintiff presented to NCMHC for “medication management and supportive services,” and N.P. Dailo conducted his psychiatric examination and assessment. (Id. at 324.) She noted the following “working” diagnoses: unspecified psychosis, cannabis use, delusional thinking, depressed mood, anxiousness, crying spells, distortions, substance abuse, auditory and visual hallucinations, and self-injurious behavior. (Id.) Plaintiff's mental status examination revealed depressed mood, normal memory, and limited judgment and insight. (Id.) Plaintiff reported a history of mental illness going back to elementary school that was characterized by difficulties coping with others and managing himself, including being “hit by principal and by his parents with an ‘extension cord' because ‘they didn't know how to handle [him].'” (Id.) Plaintiff had a psychiatric hospitalization at age fifteen, after which he spent more than a year at an out-of-state treatment facility, and another psychiatric hospitalization while in the U.S. Army for “anger issues.” (Id.) He also reported arrests for domestic violence in 2006 and 2019, as well as for theft charges in 2000, for “giving away groceries working as a cashier.” (Id.) Plaintiff reported receiving an other-than-honorable discharge from the U.S. Army after he “set off [the] fire alarm because of hazing going on and [he] sprayed the fire extinguisher on everyone.” (Id.) Additionally, Plaintiff described an attempt to hang himself in the garage of the house he shared with his then-girlfriend in August 2019, but his girlfriend “slapped him in the face and [he] got down.” (Id.) Plaintiff also described injuring himself by “punching [him]self in the head.” (Id.)

Plaintiff reported auditory hallucinations of God and archangels that he “speak[s] to and they answer [him] back.” (See id.) He also described visual hallucinations “of lights and shadows that happen every day.” (Id.) Plaintiff's mother, who accompanied Plaintiff to his appointment, expressed concern about his “mood swings” that left him sometimes “singing and dancing in the streets,” and other times “depressed with anergia and psychomotor slowing.” (Id. at 325.)

Plaintiff's mental status examination revealed that he was “malodorous,” disheveled, and underweight, had circumstantial thought process, and restricted affect. (Id. at 330.) He displayed depressed and anxious mood, “psychomotor retardation,” and limited judgment and insight. (Id.) Plaintiff was “minimally participative” and a “difficult historian.” (Id. at 325.) He sometimes answered questions with unrelated answers or was vague and evasive, and described himself as “usually happy” until he felt “real[ly] sad” and depressed. (Id.) Plaintiff believed that his auditory hallucinations were his “inner voice talking to [him] and people's voices [he] can hear.” (Id.) N.P. Dailo indicated that Plaintiff experienced delusions and command auditory hallucinations in the form of voices “telling him where to go.” (Id. at 325, 330-31.)

N.P. Dailo cited Plaintiff's records indicating a history of schizophrenia, depression, autism, anxiety, paranoid delusions, and “thinking that demons were possessing his house and his body.” (Id. at 325.) N.P. Dailo also noted that Plaintiff reported that he had been using marijuana for twelve years, but stopped in December 2019. (Id. at 326.) Plaintiff also reported that he was not taking any psychiatric medications at the time of the appointment. (Id. at 324.)

On February 19, 2020, Plaintiff described some of his concurrent therapy, where he was “working on his childhood trauma,” including his mother's physical and emotional abuse. (Id. at 321.) He reported that “once his Mom asked him to commit suicide with his siblings by turning on the gas stove.” (Id.) Plaintiff was taking half of a 5-mg tablet of Abilify twice per day, and stated that Abilify caused stomach upset, but he felt “that medications are helpful in that he is not feeling as manic and mood swings have resolved. However he continues with intermittent [auditory hallucinations] and also feels depressed and tired.” (Id.) Plaintiff described symptoms of depression and anxiety, as well as “racing thoughts.” (Id. at 321-22.)

During his March 18, 2020 appointment, Plaintiff reported that he doubled his Ability dose from the previous month, was taking half a 10-mg tablet at bedtime, and stated that it helped to “maintain [his] mood.” (Id. at 318.) However, Plaintiff continued to be “intermittently] depressed” and had “racing thoughts.” (Id.)

On April 16, 2020, Plaintiff reported that he was taking half a 10-mg tablet of Ability per day, but sometimes he took a whole tablet when he was “overwhelmed by voices and the anxiety,” and continued to experience “racing thoughts.” (Id. at 315-16.) N.P. Dailo noted that Plaintiff was so “overwhelmed by voices and anxiety” that he called the San Diego Access and Crisis Line for help. (Id. at 315.) Plaintiff further reported being offered street drugs, and stated that he declined because he understood that it would “take a long time . . . to recover from it.” (Id.)

On May 13, 2020, Plaintiff reported that he was taking half-to-a-whole 10-mg tablet of Abilify per day and felt that it was “helpful” in that he was working through his “issues.” (Id. at 312-13.) He “was struggling with suicidal thoughts in [the] context of ruminating about his ex-girlfriend,” but was not actively suicidal. (See id. at 312.) He was “no longer manic,” but appeared “depressed and tired with bags under his eyes.” (Id. at 313.) Plaintiff's mood was dysthymic, his thought process was “coherent, perseverative,” he continued to experience auditory and visual hallucinations with paranoid ideations, and his insight and judgment remained “poor.” (Id.)

Two days later, on May 15, 2020, N.P. Dailo completed a “Short-Form Evaluation for Mental Disorders” questionnaire. (See id. at 336.) She noted Plaintiff's diagnosis as “bipolar disorder, unspecified,” treated with 5-10 mg of Abilify per day. (Id.) N.P. Dailo wrote that Plaintiff's mental status examination revealed that he was disheveled, his motor activity was agitated and hyperactive, his speech was rapid and pressured, he was cooperative, but irritable, and his mood was depressed. (Id.) Plaintiff had auditory hallucinations, his thought process was circumstantial, he showed delusions of grandiosity, was preoccupied with suicide, and his judgment was moderately impaired. (Id. at 337.) Although N.P. Dailo described Plaintiff as “compliant with medications,” her prognosis for Plaintiff was “guarded.” (Id. at 338.) N.P. Dailo opined that Plaintiff had a “good” ability to understand, remember, and carry out simple instructions; a “fair” ability with complex instructions and maintained concentration, attention and persistence; and a “poor” ability to follow a schedule, complete a normal workday without interruptions from psychologically based symptoms, interact appropriately with others, or respond appropriately to changes in a work setting. (Id.)

On August 12, 2020, N.P. Dailo completed a second short-form evaluation for mental disorders. (See id. at 341.) She noted that Plaintiff reported compliance with medications, and was taking 10 mg of Abilify at bedtime, with “a half to 1 tablet per day [for] agitation,” but concluded that Plaintiff's prognosis was “guarded.” (Id. at 341-43.) Plaintiff's mental status examination revealed that he was disheveled, agitated and hyperactive, had rapid and pressured speech, irritable behavior, normal cognitive function, depressed mood, visual and auditory hallucinations, “circumstantial” associations with grandiosity, suicidal preoccupations, and moderately impaired judgment. (Id. at 341-42.) N.P. Dailo further opined that Plaintiff's ability to understand, remember, and carry out simple instructions was “good,” but he had a “fair” ability to understand, remember and follow complex instructions, and maintain concentration, attention, and persistence. (Id.) N.P. Dailo further determined that Plaintiff had a “poor” ability to work on schedule or report to work regularly, complete a normal workday or workweek without interruptions from his symptoms, or respond appropriately to workplace changes. (Id.) Additionally, N.P. Dailo concluded that Plaintiff was not “capable of managing funds.” (Id.)

ii. LMFT Surridge

On February 4, 2020, Plaintiff saw a Licensed Marriage and Family Therapist (“LMFT”) Surridge for court-ordered therapy pursuant to a domestic violence charge. (Id. at 297-98.) Plaintiff reported that his mother had invited him to live with her in Hemet, CA, but he did not like that she would “scream at him if he [did] not follow her ways,” and he therefore decided to live in his van in Oceanside. (Id. at 298.) LMFT Surridge listed “diagnostic impressions” that included bipolar I disorder, disruption of family by separation, and mental health services for perpetrator of partner violence and for victim of partner psychological abuse. (See Id. at 297.) Plaintiff described a history of mood swings and depression after separation from his partner of fifteen years. (Id.) He reported that his depression was also triggered by homelessness because he “witness[ed] stressful situations of other homeless people.” (Id.) Further, Plaintiff reported history of breaking and throwing “things at home when he would get angry.” (Id. at 298.) As a child, Plaintiff was emotionally and physically abused, and observed his parents being physically violent with each other, “even fight[ing] with knives.” (Id.) Additionally, Plaintiff stated that he smoked cannabis daily from 2015, but stopped in November 2019 “because he was just ‘numbing himself.'” (Id. at 299.) During the appointment, Plaintiff was alert and cooperative, and “report[ed] hearing a voice which guide[d] his decision making.” (Id. at 297.)

On February 13, 2020, Plaintiff's affect, thought process, content, perception, mood, insight and judgement were “within normal limits,” and homicidality and suicidality were not present. (Id. at 349.) On March 19, 2020, Plaintiff's mental status examination revealed “depressed, elevated” mood and suicidal ideation. (Id. at 356.) Plaintiff reported “mixed episodes of depression, and mania.” (Id.)

On March 25, 2020, Plaintiff's mood continued to be “depressed, elevated.” (Id. at 358.) He reported going to his “mom's house, with no emotional love, and he felt trapped,” and that he returned to the ocean, where he “fe[lt] best.” (Id.) On June 20, 2020, Plaintiff was depressed and had suicidal ideation. (Id. at 360.)

iii. Therapist Franco

On February 27, 2020, Plaintiff was seen by therapist Franco. (Id. at 352.) Plaintiff's mental status examination revealed that his thought process was “goal directed,” but his insight and judgment were impaired. (Id.) On March 5, 2020, Plaintiff's mental examination findings were within normal limits, but he reported “having some emotional days in which he just crie[d].” (Id. at 354.)

iv. LMFT Burgner

On June 25, 2020, Plaintiff attended a therapy session with LMFT Burgner. (See id. at 362; see also Id. at 297.) Plaintiff had circumstantial thought process, slightly pressured speech, depressed mood, and delusions. (Id. at 362.)

On July 2, 2020, Plaintiff's mental status examination findings were within normal limits. (See id. at 365.) He was receptive to “reviewing treatment goals and collaborating with therapist to identify current goals,” and to “psycho-education and suggestions provided by therapist regarding healthy versus unhealthy relationships.” (Id. at 366-67.) On July 9, 2020, Plaintiff's mental status examination findings were within normal limits. (See id. at 368.)

On July 16, 2020, Plaintiff had slightly pressured speech and elevated mood, and he reported that “everyone wants to be around [him]. They just keep coming to [him] so [he] can be their counselor.'” (Id. at 371-73.)

On July 23, 2020, Plaintiff had slightly pressured speech, elevated mood, and impaired judgment. (Id. at 374.) He “discussed history related to mental health issues and fear surrounding medication,” and “continue[d] to have limited insight into mental health issues.” (Id. at 376.)

On July 30, 2020, Plaintiff's speech was slightly pressured, and he had elevated mood and impaired judgment. (Id. at 377.) He discussed “continued resistance to medication” and stated: “I don't want to take any pills. All I need is surfing.” (Id. at 379.)

On August 13, 2020, Plaintiff had impaired judgment and slightly pressured speech. (Id. at 380.) His “mood continue[d] to stabilize and he continued to be experiencing less symptoms of mania [as evidenced by] less pressured speech, a decrease in delusional thought patterns and improved sleep.” (Id. at 381.) Plaintiff discussed daily activities and strategies he utilized to help balance his mood, including “spending up to 7 hours per day in the ocean.” (Id. at 382.) However, he also stated that “people [we]re starting to get worried about [him].” (Id.)

On August 20, 2020, Plaintiff's speech was slightly pressured, his judgment was impaired, and he had minimal insight into his mental health issues. (Id. at 383-85.) He reported that his “mental health issues continue[d] to impair his ability to obtain and maintain employment.” (Id. at 385.)

On August 27, 2020, Plaintiff's speech was slightly pressured and his judgement was impaired. (Id. at 386.) He reported a “more balanced” mood over the past week and appeared to “be experiencing less symptoms of mania.” (Id. at 387.) Plaintiff discussed “struggles to obtain employment” due to “continued mental health issues.” (Id. at 38788.)

On September 10, 2020, Plaintiff's speech was slow and his judgment was still impaired. (Id. at 389.) He had a slightly depressed mood, and continued to “increase his insight into bipolar disorder, yet . . . struggle[d] to utilize coping skills consistently to manage mood instability.” (Id. at 390-91.)

On September 24, 2020, Plaintiff's speech was slow, his judgement was impaired, and his mood was anxious. (Id. at 392-93.) He reported “relational conflict” and was curious about “ways to cope with conflict.” (Id. at 393-94.)

On October 1, 2020, Plaintiff's speech was “expansive” and his insight was impaired. (Id. at 395.) He “continue[d] to endorse mood instability,” discussed current stressors impacting his mood, but continued to have “minimal insight into mental health issues.” (Id. at 396.)

On October 8, 2020, Plaintiff's speech was within normal limits, but his judgment and insight were impaired. (Id. at 398.) He reported improvement in his mood, denied depressive symptoms, was utilizing healthy coping skills to regulate mood, but still had only minimal insight into mental health issues. (Id. at 399.) On October 22, 2020, Plaintiff's insight and judgement were impaired, and he reported an “increase in depressive symptoms.” (Id. at 401-02.)

On October 29, 2020, Plaintiff's insight and judgment were impaired, and although he denied depressive symptoms, he “appear[ed] to be experiencing depressive symptoms.” (Id. at 404-05.) His insight into mental health symptoms remained limited. (Id. at 405.)

On November 12, 2020, Plaintiff's examination revealed impaired insight and judgment, depressed mood, and “increase in depressive symptoms,” and he “appear[ed] to lack insight into his mood instability.” (Id. at 422-23.) Plaintiff also reported increased isolation related to his pattern of “poor boundaries in relationships and getting overwhelmed by others.” (Id. at 423.)

On November 19, 2020, Plaintiff's judgment and insight were impaired, and his mood was depressed. (Id. at 419.) He had symptoms of depression, and reported a decrease in his engagement of healthy coping skills. (Id. at 420.)

On December 3, 2020, Plaintiff had impaired judgment and insight, and depressed mood. (Id. at 416-17.) On December 10, 2020, Plaintiff's insight and judgement were impaired, and he reported “decrease in depressive symptoms and increased engagement in healthy coping skills.” (Id. at 413-14.)

On January 15, 2021, Plaintiff's insight and judgment were impaired, but his mood was “within normal limits.” (Id. at 410.) He continued to present with “mood instability[,] reporting episodes of depressed mood with low energy, isolation, limited engagement in healthy coping skills and increased need for sleep.” (Id. at 411.) Plaintiff also had “exaggerated sense of self-esteem,” and “discuss[ed] his roles as a ‘street counselor' providing food and support to other homeless peers.” (Id.)

On February 11, 2021, Plaintiff's speech, behavior, and mood were within normal limits. (See id. at 407.) He reported “mood stability over the past several weeks, with increased engagement in healthy coping skills,” which included physical exercise, art, music and interacting with others. (Id. at 408.) LMFT Burgner provided Plaintiff “with a letter o[f] participation from therapist,” indicating that Plaintiff had satisfied the court's therapy mandate, and noted he would “likely end therapy” as a result. (Id. at 408-09.)

v. N.P. Balingit

On December 22, 2021, Plaintiff was assessed by N.P. Balingit, who filled out a “General Relief Medical Statement” form. (See Id. at 274.) N.P. Balingit opined that Plaintiff was “[u]nable to work” due to “Schizoaffective disorder unspecified type,” and that Plaintiff had “active psychotic symptoms and cognitive [symptoms] that would prevent him from working.” (Id.)

vi. Cancelled Consultative Psychiatric Examination

On January 26, 2022, Plaintiff was scheduled for a consultative psychiatric examination at S&L Medical Group in San Diego, CA. (See id. at 273.) Plaintiff's mother drove Plaintiff to the appointment. (Id.) By the time of the appointment, Plaintiff “was getting agitated and was having psychotic [symptoms].” (Id.) “[H]e had a melt down and did not want to wear a mask[,] and was raising his voice telling the assistant that he was free and wasn't controlled.” (Id.) He was “out of control.” (Id.) Plaintiff and his mother “were told that [Plaintiff] could not be seen by the doctor because of his outbursts and behavior.” (Id.)

3. Analysis

The parties do not dispute the ALJ's finding that Plaintiff has the following severe impairments: bipolar I disorder and substance abuse. (Id. at 20; see also J. Mot.) The parties also do not contest the ALJ's determination that Plaintiff's “medically determinable impairments could reasonably be expected to cause the alleged symptoms.” (AR at 21; see also J. Mot.) Accordingly, the first prong of the ALJ's inquiry regarding Plaintiff's subjective symptoms is satisfied.

Additionally, neither party alleges that the ALJ found that Plaintiff was malingering. (See J. Mot.) The Court therefore is required to determine whether the ALJ identified which of Plaintiff's subjective allegations of impairment he discounted, and whether the ALJ provided specific, clear, and convincing reasons for doing so. See Brown-Hunter, 806 F.3d at 489; Lambert, 980 F.3d at 1277.

In his written opinion, the ALJ described Plaintiff's testimony as follows:

The claimant alleges he has mental impairments that prevent him from performing basic work-related activities (Ex. 2E; Hearing Testimony). At the hearing, the claimant stated that he worked but he did not receive any money (Hearing Testimony). The claimant stated that he wanted to be by the ocean and live by the ocean (Hearing Testimony). He stated that he lived in a car given to him by his mom (Hearing Testimony). The claimant [sic] he was creating his own job (Hearing Testimony).

(AR at 21.) The ALJ then discounted Plaintiff's testimony regarding his mental impairments for the following reasons: (1) Plaintiff's daily activities were not consistent with his subjective symptom allegations; (2) Plaintiff's alleged disabling impairments were not supported by “history of medical treatment” and response to medication; and (3) Plaintiff's alleged disabling impairments were not supported by objective medical findings. (See id. at 21-22.)

The Court can only assess the reasoning the ALJ provided in his decision. See Revels, 874. F.3d at 654 (stating that a court may consider “only the reasons provided by the ALJ in the disability determination and may not affirm the ALJ on a ground upon which [he or she] did not rely”); Garrison, 759 F.3d at 1010 (same). The Court will therefore examine the validity of the ALJ's stated reasons for discounting Plaintiff's testimony.

a. Daily activities

The ALJ discounted Plaintiff's testimony regarding his mental impairments because Plaintiff's daily activities were “not limited to the extent one would expect, given the complaints of disabling symptoms and limitations.” (AR at 21.) The ALJ cited Plaintiff's mother's third-party function report, where she stated that Plaintiff prepared simple meals, performed some yardwork, drove, used public transportation, could go out alone, shopped in stores, read, wrote, and spent time with others. (Id. (citing id. at 21017).)

An ALJ may properly consider the claimant's daily activities in evaluating subjective symptom testimony. See 20 C.F.R. § 416.929(c)(3)(i). An ALJ may discount a claimant's subjective symptom testimony on the following grounds: (1) the claimant's daily activities contradict the claimant's other testimony, or (2) the claimant's daily activities meet the threshold for transferable work skills. Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). A claimant does not have to be completely incapacitated to receive disability benefits, and the claimant's ability to complete routine activities is insufficient to discount subjective symptom testimony. See Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) (citation omitted) (“[t]his court has repeatedly asserted that the mere fact that a plaintiff has carried on certain daily activities, such as grocery shopping, driving a car, or limited walking for exercise, does not in any way detract from her credibility as to her overall disability. One does not need to be ‘utterly incapacitated' in order to be disabled.”); see also Diedrich v. Berryhill, 874 F.3d 634, 643 (9th Cir. 2017) (finding that activities such as “[h]ouse chores, cooking simple meals, self-grooming, paying bills, writing checks, and caring for a cat in one's own home, as well as occasional shopping outside the home, are not similar to typical work responsibilities.”).

In this case, Plaintiff's daily activities, which included preparing simple meals consisting mostly of seeds and fruit, taking public transportation, walking, driving, shopping at local discount stores for food, and occasionally performing yardwork, are almost identical to the activities that the Ninth Circuit found insufficient to discount a claimant's subjective symptom testimony. See Diedrich, 874 F.3d at 643; Vertigan, 260 F.3d at 1050. Further, although the ALJ concluded that Plaintiff's ability to drive “show[ed] the ability to concentrate, remember, understand, and follow instructions,” (AR at 21), the record demonstrates that Plaintiff did not consistently follow driving regulations, neither adhering to posted speed limits nor keeping his license current, and that he, at times, completely disregarded instructions from medical care providers. (See id. at 42 (containing Plaintiff's testimony that “I have to move very meticulously and slow. I can't go very fast. Can't go past 30 miles an hour”); id. at 213, 324 (containing reports from Plaintiff's mother and N.P. Dailo, indicating that Plaintiff was driving even when his driver's license was not valid during the first four months that he lived out of his vehicle); Id. at 321-22 (containing N.P. Dailo's notes that Plaintiff did not follow instructions to complete lab work, which had been ordered earlier); id. at 273 (documenting Plaintiff's refusal to wear a mask during a medical appointment).)

To the extent the ALJ determined that Plaintiff's daily activities contradicted Plaintiff's testimony, the ALJ merely repeated Plaintiff's mother's statements in her third-party function report and did not explain how Plaintiff's daily activities contradicted his statements regarding his symptoms and limitations. See Orn, 495 F.3d at 639. Notably, Plaintiff's statements regarding his daily activities are consistent with his mother's testimony regarding his daily activities. (See AR at 36-44, 223-28; see also Id. at 210-14.)

Further, the ALJ did not explain how Plaintiff's daily activities translated to a competitive work environment. The record in this case demonstrates that Plaintiff's daily activities were sporadic, and he did not engage in those activities during a substantial portion of his day. “[M]any home activities are not easily transferrable to what may be the more grueling environment of the workplace.” See Smith v. Saul, 820 Fed.Appx. 582, 603 (9th Cir. 2020); see also Smolen v. Chater, 80 F.3d 1273, 1284 n.7 (9th Cir. 1996) (“[M]any home activities may not be easily transferable to a work environment where it might be impossible to rest periodically or take medication.”). Because Plaintiff was not performing his daily activities with the consistency and persistence required by a typical work environment, such activities do not meet the threshold for transferrable work skills. See Orn, 495 F.3d at 639; see also Ghanim v. Colvin, 763 F.3d 1154, 1165 (9th Cir. 2014) (internal quotation marks omitted) (concluding that the ALJ improperly discounted claimant's symptom testimony, where the claimant was able to engage in certain daily activities, but “there [wa]s no indication” that the limited activities the claimant engaged in “either comprised a ‘substantial' portion of [the claimant's] day, or were ‘transferrable' to a work environment.”).

Additionally, although the ALJ cited Plaintiff's mother's report that Plaintiff could go out alone and that he “spent time with others,” Plaintiff's mother reported that Plaintiff “walks around all day going to various homeless centers, and library,” and “meets other homeless people on the street.” (AR at 21, 214.) Visiting places of public accommodation like homeless centers and libraries does not demonstrate Plaintiff's ability to cope with and perform in a competitive, for-profit work setting. See Pender v. Comm'r of Soc. Sec., No. 2:21-CV-0938-DMC, 2022 WL 17968370, at *11 (E.D. Cal. Dec. 27, 2022) (finding that the ALJ improperly concluded that plaintiff's daily activities contradicted his allegations of mental dysfunction, where plaintiff “was homeless and lived in a drainage pipe, where he isolated from other people”); see also Tubolino v. Berryhill, Case No. 18-cv-02511-RMI, 2019 WL 4674433, at *8-9 (N.D. Cal. Sept. 25, 2019) (emphasis added) (concluding that “accepting meals from churches, buying something from a store, and going to a park, are not activities that can conceivably be understood to diminish any of [plaintiff's testimony” about the symptoms of his mental disorder; specifically noting that “[i]t is difficult to conceive of more concrete proof of an obvious inability to interact appropriately with co-workers, peers, and the general public, or proof of the inability to otherwise adhere to the norms and schedules of the workplace, than [plaintiff's [history] of homelessness. ”).

The record indicates that Plaintiff became homeless, in part, due to his inability to manage himself and function appropriately with others. (See AR at 297, 346 (noting the breakup with his long-term girlfriend that resulted in Plaintiff living out of his vehicle); id. at 313 (containing N.P. Dailo's notes documenting Plaintiff's refusal of a bed at the homeless shelter); id. at 298 (containing LMFT Burgner's notes that Plaintiff “d[id] not want to live with” his mother); id. at 358 (containing LMFT Surridge's notes that Plaintiff refused to visit his mother's house to bathe); id. at 423 (containing LMFT Burgner's notes that Plaintiff had a “pattern of isolation due to having poor boundaries in relationships and getting overwhelmed by others”).) Plaintiff's records also contain reports from his medical providers that Plaintiff's “[distortions, depressed mood, anxiousness, [feeling] overwhelmed, [and] crying spells . . . hinder[] [his] ability to gain employment and find stable housing.” (Id. at 324; see also Id. at 297, 316.) The Court therefore finds that the ALJ's stated reason that Plaintiff's daily activities were not consistent with his subjective symptom allegations, is not a clear and convincing reason to discount Plaintiff's subjective symptom testimony.

b. History of medical treatment and response to medication

The ALJ also rejected Plaintiff's testimony regarding his mental impairments because it was inconsistent with Plaintiff's “good response to medication” and “history of medical treatment.” (Id. at 21-22.) In assessing a claimant's subjective symptoms, an ALJ may consider the “type, dosage, effectiveness, and side effects of any medication,” as well as “treatment, other than medication” the claimant receives to relieve “pain or other symptoms.” See 20 C.F.R. § 416.929(c)(3)(iv)-(v). An ALJ cannot “reject a claimant's testimony merely because symptoms wax and wane in the course of treatment” because “[c]ycles of improvement and debilitating symptoms are a common occurrence.” Garrison, 759 F.3d at 1017; see also Morales v. Berryhill, 239 F.Supp.3d 1211, 1216 (E.D. Cal. 2017) (noting that some improvement “with treatment is to be expected”). Further, “[a]n ALJ cannot simply pick out a few isolated instances of improvement over a period of months or years but must interpret reports of improvement . . . with an understanding of the patient's overall well-being and the nature of her symptoms.” Attmore, 827 F.3d at 877 (internal citation and quotation marks omitted); see also Ghanim, 763 F.3d at 1162 (“observations [of improvement] must be ‘read in context of the overall diagnostic picture' the provider draws”). “[T]he examples an ALJ chooses must in fact constitute examples of a broader development.” Attmore, 827 F.3d at 877 (citation and internal quotation marks omitted).

The ALJ stated in his written decision that the Plaintiff “reported being compliant with his medications,” found his Ability prescription helpful, and showed a good response to medication. (AR at 22 (citing id. at 313-14, 318, 321, 336-39, 341-43).) However, the ALJ did not acknowledge or discuss numerous medical records demonstrating that although Plaintiff completed a year of medical treatment and mental health therapy that helped diminish some of the symptoms of his mental disorders, Plaintiff continued to experience symptoms of his bipolar disorder, visual and auditory hallucinations, depression, and was suicidal. (See id. at 321 (containing N.P. Dailo's February 19, 2020 note that Plaintiff found medications “helpful in that [plaintiff] is not feeling as manic and [his] mood swings have resolve[d]. However he continues with intermittent AH [auditory hallucinations] and also feels depressed and tired.”); id. at 314 (containing N.P. Dailo's May 13, 2020 progress note that Plaintiff “feels passively [suicidal]”); id. at 377 (containing LMFT Burgner's July 30, 2020 note that documenting Plaintiff's “continued resistance to medication”); id. at 399 (containing LMFT Burgner's October 8, 2020 progress note that Plaintiff “continue[d] to utilize healthy coping skills to regulate mood, yet remain[ed] to have minimal insight into mental health issues”).) Notably, Plaintiff's symptoms were so severe at the time of his scheduled consultative examination that the physician who was scheduled to conduct the examination had to cancel the appointment due to Plaintiff's condition. (See AR at 273 (containing Plaintiff's mother's January 26, 2022 report that Plaintiff was not permitted to undergo a consultative examination because at the time of the scheduled examination, he “was having psychotic symptoms,” “had a meltdown,” “was out of control,” and was advised that he “could not been seen by the doctor because of [Plaintiff's] outbursts and breakdowns”).)

Accordingly, the ALJ's finding of improvement with treatment was not supported by substantial evidence in the record. See Matlock v. Barnhart, 90 Fed.Appx. 208, 210-12 (9th Cir. 2004) (emphasis added) (finding that substantial evidence did not support the ALJ's decision to discount plaintiff's subjective symptom testimony due to improvement with medication, where the claimant's “auditory and visual hallucinations diminished, but still persisted, when he took his medication”; reasoning that “when assessed in context, [the claimant's medical records] indicate[d] only that the medication helped [the claimant], not that it enabled him to function well.”); Parker v. Saul, Case No.: 20cv2530-BLM, 2022 WL 4798162, at *7-8 (S.D. Cal. Sept. 30, 2022) (concluding that substantial evidence did not support the ALJ's decision to discount plaintiff's subjective symptom testimony due to improvement with medication and treatment, where plaintiff's symptoms temporarily improved with medication, but the symptoms subsequently returned). The Court therefore finds that Plaintiff's response to medication and history of medical treatment is not a clear and convincing reason to discount Plaintiff's subjective symptom testimony.

c. Objective medical findings

The last reason the ALJ provided to discount Plaintiff's testimony regarding his mental impairments was that Plaintiff's alleged disabling impairments were not supported by objective medical findings. (AR at 21.) The ALJ must specially identify the testimony regarding the claimant's symptoms that the ALJ finds not credible, and explain what evidence undermines the claimant's testimony. See Lambert, 980 F.3d at 1277 (citing Treichler, 775 F.3d at 1102); Smolen, 80 F.3d at 1284; Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007). “An ALJ's vague allegation that a claimant's testimony is not consistent with the objective medical evidence, without any specific findings in support of that conclusion is insufficient for [the court's] review.” Treichler, 775 F.3d at 1103 (citation and internal quotation marks omitted). “Although the ALJ's analysis need not be extensive, the ALJ must provide some reasoning in order for [the reviewing court] to meaningfully determine whether the ALJ's conclusions were supported by substantial evidence.” Id.

In this case, the ALJ generally referenced Plaintiff's testimony at the administrative hearing and summarized Plaintiff's medical records related to his bipolar I disorder diagnosis. (See AR at 21-22.) However, the ALJ did not specifically identify Plaintiff's testimony regarding his mental impairments that the ALJ found not credible, did not “connect[] the medical record” to Plaintiff's testimony about his symptoms, and did not explain what evidence undermined Plaintiff's symptom testimony. See BrownHunter, 806 F.3d at 494 (holding that an ALJ's failure “to identify the testimony she found not credible” and “link that testimony to particular parts of the record supporting her non-credibility determination” was legal error); Burrell, 775 F.3d at 1139 (finding error where the ALJ “never connected the medical record” to the claimant's testimony, and did not make “a specific finding linking a lack of medical records to [the claimant's] testimony about the intensity” of her symptoms); Morsea v. Berryhill, 725 Fed.Appx. 463, 465 (9th Cir. 2018) (finding that the ALJ “failed to identify the testimony from the claimant [the ALJ] found not credible and explain what evidence undermined his testimony”; noting that “[a]lthough the ALJ summarized claimant's testimony and also summarized the medical evidence in the record, the findings were general in nature, which is insufficient for an adverse credibility determination.”). Accordingly, the ALJ's stated reason that Plaintiff's testimony regarding his mental impairments was not supported by objective medical findings, was not a clear and convincing reason to discount Plaintiff's subjective symptom testimony.

d. Conclusion

Although the ALJ provided three reasons for discounting Plaintiff's subjective symptom testimony, all of those reasons were not supported by substantial evidence. The Court therefore RECOMMENDS that the District Judge find that the ALJ did not provide clear and convincing reasons, supported by substantial evidence in the record, for rejecting Plaintiff's subjective symptom testimony.

B. Issue 2: Whether the ALJ Properly Evaluated Plaintiff's Mental Impairments

Plaintiff argues that the ALJ erred in his evaluation of Plaintiff's mental impairments. (J. Mot. at 12-26.) Specifically, Plaintiff alleges that the ALJ erred at step two of his sequential evaluation process by failing to consider Plaintiff's psychosis. (Id. at 12-13, 32.) Plaintiff further contends that the ALJ erred at step three by failing to consider Listing 12.03. (Id. at 13-15, 32.) Additionally, Plaintiff asserts that the ALJ erred by failing to incorporate Plaintiff's limitations in the RFC the ALJ assessed for Plaintiff. (Id. at 16-18, 32-33.) Plaintiff also maintains that the ALJ erred in his evaluation of N.P. Dailo's opinion. (Id. at 18-22, 33-34.) Finally, Plaintiff contends that the ALJ erred by using Medical-Vocational Rules at step five, despite the fact that Plaintiff had significant nonexertional limitations. (Id. at 22-26, 34.)

Defendant responds that the ALJ rationally decided at step two that Plaintiff had some severe impairments and proceeded with the sequential evaluation process. (Id. at 26-27.) Defendant further contends that at step three, the ALJ reasonably determined that Plaintiff's mental impairments caused no more than moderate limitations in the paragraph B criteria. (Id. at 27-29.) Defendant also asserts that in assessing Plaintiff's RFC, the ALJ accounted for all of Plaintiff's credible limitations. (Id. at 29.) Additionally, Defendant maintains that the ALJ rationally determined that N.P. Dailo's opinion was not persuasive. (Id. at 29-31.) Finally, Defendant asserts that the ALJ reasonably concluded at step five that Plaintiff's non-exertional limitations did not significantly erode the occupational base of unskilled work. (Id. at 31-33.)

1. Whether the ALJ property evaluated N.P. Dailo's opinion

a. Parties' arguments

Plaintiff asserts that the ALJ erred in his evaluation of N.P. Dailo's opinion. (Id. at 18-22.) Plaintiff argues that the ALJ improperly discounted N.P Dailo's opinion because it was in a check-box form, despite the fact that the form was provided by the State Agency acting on behalf of Social Security Administration. (Id. at 20, 33.) Plaintiff further alleges that although the ALJ discounted N.P. Dailo's opinion, reasoning that N.P. Dailo did not provide a “citation to objective evidence” and there was “no support in treatment notes,” N.P. Dailo's finding listed in “current mental status examination” section of the form was an objective finding, as was her clinical interview. (Id. at 22, 3334.) Plaintiff also maintains that contrary to the ALJ's conclusion, the record does not establish that Plaintiff responded well to medication. (Id. at 21.) Plaintiff thus asserts that the ALJ improperly discounted N.P. Dailo's opinion. (See id. at 22, 33-34.)

Defendant responds that the ALJ rationally determined that N.P. Dailo's opinion was not persuasive. (Id. at 29-31.) Defendant initially asserts that the check-box form at issue was provided to N.P. Dailo by the State of California, not the Social Security Administration. (Id. at 30.) Defendant also states that N.P. Dailo opined that Plaintiff's abilities were either “fair” or “poor” in almost every category of mental functioning, but did not offer any explanation for any of the identified limitations. (Id.) Additionally, Defendant contends that the ALJ properly determined that N.P. Dailo's opinion was not consistent with the medical record because Plaintiff's mental status examinations showed that he was cooperative, alert, had normal speech, behavior, cognition, memory, and intact thought processes. (Id.)

b. Applicable law

In evaluating the intensity and persistence of a claimant's symptoms, an ALJ must consider all available evidence from medical and nonmedical sources about how the claimant's symptoms affect the claimant. 20 C.F.R. § 416.929(c)(1). Revised regulations apply to an ALJ's analysis of medical opinion evidence for claims filed on or after March 17, 2017. See Revisions to Rules Regarding the Evaluation of Medical Evidence, 2017 WL 168819, 82 Fed.Reg. 5844-01, at 5867-68 (Jan. 18, 2017). Under the revised regulations, an ALJ is no longer required to “defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s).” 20 C.F.R. § 416.920c(a). Instead, an ALJ is required to consider all medical opinions in the record and evaluate each medical opinion's persuasiveness using factors, which include supportability, consistency, relationship with the claimant, and specialization. Id. § 416.920c(c).

Supportability and consistency are the two most important factors in determining a medical opinion's persuasiveness. Id. An ALJ is required to articulate how the ALJ considered the supportability and consistency factors for a medical source's medical opinions in the ALJ's decision. Id. § 416.920c(b)(2). Supportability means the extent to which a medical source supports the medical opinion by explaining the relevant objective medical evidence. See id. § 416.920c(c)(1); see also Woods v. Kijakazi, 32 F.4th 785, 791-92 (9th Cir. 2022). Consistency means the extent to which a medical opinion is consistent with evidence from other medical and nonmedical sources. See 20 C.F.R. § 416.920c(b)(3); Woods, 32 F.4th at 792. Under the new regulations, an ALJ's decision, “including the decision to discredit any medical opinion, must simply be supported by substantial evidence.” Woods, 32 F.4th at 787. An ALJ must provide an explanation, which is supported by substantial evidence, articulating how the ALJ considered both supportability and consistency factors. Kitchen v. Kijakazi, 82 F.4th 732, 739 (9th Cir. 2023).

Although the revised regulations provide new terms that an ALJ must use in evaluating medical opinion evidence, an ALJ still may not cherry-pick evidence in discounting a medical opinion. See Colter v. Berryhill, 685 Fed.Appx. 616, 617 (9th Cir. 2017) (citing Ghanim, 763 F.3d at 1164) (“The ALJ failed to analyze the periods of improvement in the context of [the claimant's] treatment history to ensure that the improvement was not temporary.”). Nor may an ALJ dismiss medical opinions without providing detailed explanations. See Regenmitter v. Comm'r of Soc. Sec. Admin., 166 F.3d 1294, 1299 (9th Cir. 1999) (“The ALJ must do more than offer his own conclusions. He must set forth his own interpretation and explain why they, rather than [the claimant's medical providers'], are correct.”).

c. Analysis

N.P. Dailo determined that Plaintiff had a “poor”⁶ ability to perform activities within a schedule, maintain regular attendance, complete a normal workday and workweek without interruptions from psychologically based symptoms, interact appropriately with the public, supervisors, and coworkers, and respond appropriately to changes in a work setting. (AR at 338, 343.) N.P. Dailo also opined that Plaintiff had a “fair”⁷ ability to understand, remember, carry out complex instructions, and maintain concentration, attention, and persistence. (Id.) N.P. Dailo further concluded that Plaintiff had a “good”⁸ ability to understand, remember, and carry out simple instructions. (Id.)

6 “Poor” is defined as “[t]he evidence supports the conclusion that the individual cannot usefully perform or sustain the activity.” (AR at 338, 343.)

7 “Fair” is defined as “[t]he evince supports the conclusion that the individual's capacity to perform the activity is impaired, but the degree/extent of the impairment needs to be further described.” (Id.)

8 “Good” is defined as follows: “[t]he effects of the mental disorder do not significantly limit the individual from consistently and usefully performing the activity.” (Id.)

The ALJ found that N.P. Dailo's opinion was “not persuasive,” reasoning that “[t]he opinion was essentially a checkbox form and it endorsed significant limits in many areas without citation to objective evidence and without support in treatment notes.” (Id. at 23 (citing id. at 336-43).) The ALJ also stated that N.P. Dailo's opinion was not consistent with the medical record, which showed that Plaintiff “often had normal mental findings with the exception of some abnormal findings that were infrequent” and “responded well to medication.” (Id. at 23-24.) Accordingly, the ALJ discounted N.P. Dailo's opinion because (1) the opinion was listed in a check-box form, (2) Plaintiff responded well to medication, (3) the opinion was not consistent with the medical record that showed normal mental findings with some exceptions, and (4) the opinion did not cite objective evidence and was not supported by N.P. Dailo's treatment notes. (See id.)

The ALJ's first stated reason to discount N.P. Dailo's opinion was that it was listed in a check-box form. (Id. at 23.) “While an opinion cannot be rejected merely for being expressed as answers to a check-the-box questionnaire, the ALJ may permissibly reject check-off reports that do not contain any explanation of the bases of their conclusions.” Ford v. Saul, 950 F.3d 1141, 1155 (9th Cir. 2020) (internal citation and quotation marks omitted). Conversely, if a medical opinion is supported by treatment notes or other medical evidence, the fact that the opinion is in the check-box questionnaire form is not a proper basis for rejecting such opinion. See Burrell, 775 F.3d at 1140 (finding that although the medical provider's opinions were listed in the “check-box” form and contained almost no detail or explanation, the medical provider's extensive treatment notes supported the opinions); Esparza v. Colvin, 631 Fed.Appx. 460, 462 (9th Cir. 2015) (finding that although the medical provider's “opinions were in the form of check-box questionnaires, that [wa]s not a proper basis for rejecting an opinion supported by treatment notes,” where the medical provider's “extensive notes [we]re consistent with the check-box forms and provide[d] the basis for his opinions”).

In this case, N.P. Dailo's opinion, documented in two check-box forms dated May 15, and August 12, 2020, was based on her extensive treatment notes from at least five appointments with Plaintiff, the results of her mental status examinations of Plaintiff, and detailed findings during those examinations. (See AR at 312-34.) Although N.P. Dailo did not attach medical records to the check-box forms at issue, she specifically stated on both forms that she had examined Plaintiff every four weeks and listed the dates of Plaintiff's first and the most recent visits. (Id. at 336, 341.) Notably, N.P. Dailo conducted mental examination of Plaintiff two days before completing the May 15, 2020 check-box form, and again examined Plaintiff several weeks before completing the August 12, 2020 check-box form. (See id. at 312-13, 341.) Additionally, as discussed below, N.P. Dailo's opinion reflected her detailed findings documented in her numerous treatment notes. Accordingly, the fact that N.P. Dailo's opinion was reflected in two check-box forms was not a proper basis for the ALJ to discount such opinion. See Burrell, 775 F.3d at 1140; Esparza, 631 Fed.Appx. at 462.

The ALJ also discounted N.P. Dailo's opinion, reasoning that Plaintiff “responded well to medication.” (AR at 24.) However, as discussed in detail in Section V.A.3.b, this conclusion is not supported by substantial evidence in the record, which shows that despite taking his prescribed medications, Plaintiff continued to experience symptoms of bipolar disorder, visual and auditory hallucinations, depression, and was suicidal. (See, e.g., id. at 273, 314, 321, 377, 399); see also Attmore, 827 F.3d at 877; Matlock, 90 Fed.Appx. at 210-12; Parker, 2022 WL 4798162, at *7-8.

The ALJ also discounted N.P. Dailo's opinion, reasoning that the opinion did not cite objective evidence and was not supported by N.P. Dailo's treatment notes. (AR at 23.) With respect to supportability, the “more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s), the more persuasive the medical opinions . . . will be.” 20 C.F.R. § 416.920c(c)(1). The Court initially notes that the record demonstrates that N.P. Dailo conducted numerous mental examinations of Plaintiff, including her evaluation of Plaintiff two days before she completed the May 15, 2020 check-box form, and several weeks before she completed the August 12, 2020 check-box form. (See AR at 312-13, 341.) N.P. Dailo specifically cited her May 13, 2020 mental status examination findings on the May 15, 2020 check-box form, which included findings of depressed mood, auditory hallucinations, circumstantial thought process, delusions of grandiosity, preoccupation with suicide, and impaired judgement. (Id. at 337.) Further, N.P. Dailo's mental status examination listed on the August 12, 2020 check-box form included findings of depressed mood, visual and auditory hallucinations, “circumstantial” associations with grandiosity, suicidal preoccupations, and impaired judgment. (Id. at 341-42.)

Additionally, contrary to the ALJ's conclusion, the record contains N.P. Dailo's detailed treatment notes from her appointments with Plaintiff, as well as clinical findings, that support her opinion. (See, e.g., id. at 324 (containing N.P. Dailo's February 5, 2020 notes documenting Plaintiff's auditory hallucinations of God and archangels that he “speak[s] to and they answer [him] back” and of voices “telling him where to go,” visual hallucinations “of lights and shadows that happen every day,” and “mood swings” that left Plaintiff sometimes “singing and dancing in the streets,” and other times “depressed with anergia and psychomotor slowing”; noting that Plaintiff's mental status examination revealed depressed mood, psychomotor retardation, limited judgment and insight, circumstantial thought process, and restricted affect); id. at 321 (containing N.P. Dailo's February 19, 2020 notes documenting depression, auditory hallucinations, anxiety, and racing thoughts); id. at 318 (containing N.P. Dailo's March 18, 2020 notes documenting depression and racing thoughts); id. at 315-16 (containing N.P. Dailo's April 16, 2020 notes documenting depression, anxiety, racing thoughts, and also stating that Plaintiff was so “overwhelmed by voices and anxiety” that he called the San Diego Access and Crisis Line for help); Id. at 312-13 (containing N.P. Dailo's May 13, 2020 notes stating that Plaintiff was depressed, had auditory and visual hallucinations with paranoid ideations, and “poor” insight and judgment). N.P. Dailo's notes also indicate significant limitations in various areas of mental functioning, including notes that Plaintiff did not follow directions to complete lab work ordered four months earlier, could not remember his medication history, did not understand the value of money, and had difficulties with consistently adapting or managing himself, even with significant support from others. (See, e.g., id. at 312, 322 (noting that Plaintiff “did not get labs done”); id. at 325 (noting that Plaintiff was “unable to recall”); id. at 324 (citing “theft charges . . . for giving away groceries [while] working as a cashier”); id. at 313 (noting that Plaintiff would rather “sleep in the bush.”).) Accordingly, the ALJ conclusion that N.P. Dailo's opinion was not supported by her treatment notes, is not supported by substantial evidence in the record.

The last reason the ALJ articulated for discounting N.P. Dailo's opinion, was that “the opinion was not consistent with the medical record, which showed that the claimant often had normal mental findings with the exception of some abnormal mental findings that were infrequent.” (See id. at 23-24.) With respect to consistency, the “more consistent a medical opinion(s) is with the evidence from other medical sources in the claim, the more persuasive the medical opinion(s) . . . will be.” 20 C.F.R. § 416.920c(c)(2). In support of his conclusion, the ALJ cited LMFT Burgner's February 4, 2020 notes stating that Plaintiff was alert and cooperative, but also noting that Plaintiff was “hearing a voice which guide[d] his decision making,” and had a history of mood swings. (AR at 23 (citing id. at 297).) The cited records also contain LMFT Burgner's June 25, 2020 assessment noting Plaintiff's delusions, and refencing Plaintiff's bipolar disorder and ADHD. (Id. at 297.) Additionally, the ALJ cited N.P. Dailo's May 13, 2020 notes that Plaintiff's mood was dysthymic, he had “appropriate” affect, and coherent and preservative thought process. (Id. at 24 (citing id. at 313).) However, N.P. Dailo's notes from the same appointment also documented that Plaintiff was “struggling with suicidal thoughts,” noted his history of “paranoid delusions, thinking demons were possessing his house and his body,” as well as significant mood swings that caused him to either “sing[] and dance[] in the streets, [and] other times, [be] depressed with anergia and psychomotor showing.” (Id. at 312-13).) Notably, N.P. Dailo's notes from the same appointment also listed findings of “Bipolar I Disorder with pscyh fx” and stated that Plaintiff was “passively” suicidal. (Id. at 314.)

Further, the ALJ cited N.P. Dailo's February 5, 2020 notes from her psychiatric assessment of Plaintiff, where she noted that Plaintiff had “normal speech, at times circumstantial thought process, cooperative behavior, restricted affect,” and normal orientation and memory. (Id. at 24 (citing id. at 324, 330).) However, the notes from the same assessment also stated that Plaintiff had depressed mood, limited judgment and insight, delusional thinking, was anxious, had crying spells, distortions, circumstantial thought process, restrictive affect, and self-injurious behavior. (Id. at 324, 330-31.) The notes from the same appointment also documented Plaintiff's auditory hallucinations of God and archangels that he “speak[s] to and they answer [him] back,” and visual hallucinations of “lights and shadows that happen every day.” (Id. at 324.)

Additionally, the ALJ cited N.P. Dailo's “Short-Form Evaluation for Mental Disorders” form dated May 15, 2020, (id. at 24 (citing Id. at 336-39)), where N.P. Dailo noted that Plaintiff was cooperative, oriented, had normal memory and appropriate affect, (id. at 336-38). The same opinion, however, also contained findings of depressed mood, circumstantial associations of grandiosity, suicidal ideations, impaired judgment, and auditory and visual hallucinations. (Id. at 336-38.) The ALJ also cited N.P. Dailo's “Short-Form Evaluation for Mental Disorders” form dated August 12, 2020, where N.P. Dailo noted cooperative behavior, intact concertation, normal memory, and appropriate affect. (Id. at 24 (citing id. at 341-43).) Nevertheless, the same evaluation form also contained findings of rapid and pressured speech, irritable behavior, agitated and hyperactive motor activity, depressed mood, auditory and visual hallucinations, circumstantial associations, delusions of grandiosity, suicidal ideation, and impaired judgment. (Id. at 341-43.)

Next, the ALJ cited LMFT Franco's February 27, 2020 progress note documenting findings of normal affect, thought process, content, perception, and mood, and stating that Plaintiff was not suicidal. (Id. at 24 (citing id. at 352).) Nevertheless, the notes from the same appointment also stated that Plaintiff had impaired judgement and insight. (Id. at 352.) Additionally, the ALJ cited LMFT Franco's March 5 and March 25, 2020 progress notes, which contained identical findings, with the exception of normal insight and judgement, (id. at 24 (citing id. at 354, 358)), however, LMFT Franco's progress notes dated March 19, 2020, which the ALJ also cited, (id. at 24 (citing id. at 356)), documented depressed mood and suicidal ideation, (id. at 356). Further, LMFT Franco's progress notes dated June 20, 2020, cited by the ALJ, (id. at 24 (citing id. at 360)), also documented that Plaintiff had depressed and elevated mood, (id. at 360). Finally, although the ALJ cited LMFT Burgner's October 1, October 8, and October 22, 2020 progress notes listing normal behavior and mood, (id. at 24 (citing id. at 395, 398, 401)), the findings from the same appointments also listed impaired judgment and insight, and mood instability, (id. at 395-96, 398-99).

The records cited by the ALJ demonstrate that the ALJ selectively cited certain findings within the norm, but ignored findings from the same medical providers made during the very same appointments documenting significant impairments in numerous areas of Plaintiff's mental functioning. An ALJ is not allowed to cherry-pick evidence in discounting a medical opinion and selectively rely “on some entries in [the claimants records while ignoring] the many others that indicated continued, serious impairment.” See Holohan, 246 F.3d at 1207; Ghanim, 763 F.3d at 1164.

Further, contrary to the ALJ's conclusion that Plaintiff's “abnormal” mental findings were “infrequent,” the records the ALJ cited demonstrate that abnormal findings in the area of Plaintiff's mental functioning were consistently reported not only by N.P. Dailo, but also by Plaintiff's other medical providers, including LMFT Surridge, LMFT Burgner, and therapist Franco. For example, Plaintiff's medical providers consistently documented Plaintiff's depressed mood and mood instability. (See AR at 356, 358, 360, 371, 374, 377, 392-93, 396, 404-05, 416-17, 419, 422-23.) Further, Plaintiff's mental status examination findings consistently indicated that he suffered from delusions, and his judgment and insight were impaired. (See Id. at 297, 352, 362, 374, 377, 380, 383-86, 389, 392-93, 395, 398, 404-05, 410, 413-14, 416-17, 419, 422-23.) Additionally, Plaintiff's medical providers consistently reported that Plaintiff had very little insight into his bipolar disorder and how to manage it. (See id. at 376, 383-85, 399, 405, 411.) Most notably, the record indicates that Plaintiff's symptoms, at times, were so severe that on one occasion, he had to call San Diego Access and Crisis Line for help, and, on another occasion, was refused to be seen by the consultative examiner because of Plaintiff's mental condition. (See id. at 15, 273.) Accordingly, the ALJ's conclusion that N.P. Dailo's opinion was not consistent with the medical record is not supported by substantial evidence. See Boeche v. Kijakazi, Case No.: 23CV918-RBM(BLM), 2024 WL 3430576, at *8-10, *12 (S.D. Cal. July 15, 2024) (finding that the ALJ improperly discounted the opinions of plaintiff's medical providers, where the ALJ erroneously concluded that the opinions at issue were inconsistent with the providers' treatment notes); Isaiah J. B. v. Kijakazi, Case No. ED CV 22-01483-AS, 2023 WL 5208812, at *10 (C.D. Cal. Aug. 11, 2023) (finding that the ALJ improperly discounted a medical provider's opinion, where the ALJ based the decision on normal mental status examination findings by the medical provider, despite the fact that the provider repeatedly documented that plaintiff was not progressing with treatment, and records consistently showed that plaintiff was irritable, had euthymic/dysthymic mood, poor attention span, and trouble getting along with others).

For all the forgoing reasons, the Court concludes that the ALJ improperly evaluated the persuasiveness of N.P. Dailo's opinion, including the most important factors of consistency and supportability. Further, none of the other reasons cited by the ALJ in discounting N.P. Dailo's opinion were supported by substantial evidence in the record. Accordingly, the Court finds that the ALJ erred by improperly discounting N.P. Dailo's opinion.

2. Whether the ALJ erred at step two of the sequential evaluation process by not considering Plaintiff's psychosis

a. Parties' arguments

Plaintiff argues that the ALJ erred by failing to consider Plaintiff's psychosis at step two of the sequential evaluation process. (J. Mot. at 12-13.) Plaintiff states that the ALJ found that Plaintiff had severe impairments of bipolar disorder and substance abuse, but did not mention Plaintiff's psychosis. (Id. at 12 (citing AR at 19).) Plaintiff further asserts that his psychosis “manifested through auditory and visual hallucinations and delusions,” and his hallucinations and delusions limited his ability to perform basic work activities, including using judgment, responding appropriately, and dealing with changes. (J. Mot. at 12-13.)

Defendant responds that the ALJ rationally concluded that Plaintiff had some severe impairments and proceeded with the sequential evaluation process. (Id. at 26-27.) Defendant states that although the ALJ did not identify each diagnosis under which Plaintiff's symptoms were classified throughout the record, the ALJ did consider all of Plaintiff's mental complaints in assessing his RFC. (Id. at 26 (citing AR at 21-24).)

b. Applicable law

At step two of the sequential evaluation process, the Social Security Administration considers the medical severity of the claimant's impairment. 20 C.F.R. § 416.920(a)(4)(ii). To establish that a medically determinable impairment is “severe,” the claimant must show that it “significantly limits [the claimant's] physical or mental ability to do basic work activities.” Id. § 416.920(c). “Basic work activities” mean “the abilities and aptitudes necessary to do most jobs,” and include the following: understanding, carrying out, and remembering simple instructions; use of judgment; responding appropriately to supervision, co-workers, and usual work situations; and dealing with changes in a routine work setting. Id. § 416.922(b)(3)-(6).

The ALJ is required to “follow a special technique” at step two in evaluating the severity of the claimant's mental impairment. Id. § 404.920a(a). First, the ALJ assesses the claimant's “pertinent symptoms, signs, and laboratory findings” to determine whether the claimant has a medically determinable mental impairment. Id. § 404.920a(b)(1). Second, if the claimant has a medically determinable mental impairment, the ALJ must “rate the degree of functional limitation resulting from the impairment(s)” for four broad functional areas: (1) understanding, remembering, or applying information; (2) interacting with others; (3) concentrating, persisting, or maintaining pace; and (4) adapting or managing oneself. Id. § 404.920a(b)(2), (c)(3). These four functional areas are known as the “paragraph B criteria” due to how they are categorized in the listings. See id. Part 404, Subpart P, Appendix 1.

The degree of limitation for each of these categories are rated on the following scale: none, mild, moderate, marked, and extreme. Id. § 404.920a(c)(4). If the degrees of limitation are rated as “none” or “mild,” the ALJ typically concludes that the impairment is not severe, unless the evidence otherwise indicates that there is more than a minimal limitation in the claimant's ability to do basic work activities. Id. § 404.920a(d)(1). The ALJ's written decision must incorporate the pertinent findings and conclusions, and “must show the significant history, including examination and laboratory findings, and the functional limitations that were considered in reaching a conclusion about the severity of the mental impairment(s).” Id. § 404.920a(e)(4).

The inquiry at step two of the sequential evaluation process is a “de minimis screening device” to screen for groundless claims. Edlund v. Massanari, 253 F.3d 1152, 1158 (9th Cir. 2001) (“We have defined the step-two inquiry as ‘a de minimis screening device to dispose of groundless claims.'”). The ALJ must consider the “combined effect of all of the claimant's impairments” on the claimant's ability to function “without regard to whether each [impairment] alone was sufficiently severe.” Id. at 1159. At step two, “[a]n impairment or combination of impairments may be found ‘not severe only if the evidence establishes a slight abnormality that has no more than a minimal effect on an individual's ability to work.'” Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (internal citation omitted).

c. Analysis

At step two of his sequential evaluation process the ALJ found that Plaintiff had the following severe impairments: bipolar I disorder and substance abuse. (AR at 19.) The ALJ did not find that Plaintiff had any non-severe impairments. (See id.) The ALJ did not discuss psychosis, either as a severe or non-severe impairment, and did not even mention “psychosis” in his written decision. (See id. at 16-25.) However, Plaintiff's medical records are replete with records from his medical providers documenting Plaintiff's auditory and visual hallucinations, delusions, and listing psychosis diagnosis. (See, e.g., id. at 324 (containing January 13, 2020 notes from N.P. Dailo, listing diagnoses of “unspecified psychosis,” “delusional thinking,” “auditory hallucinations,” and “visual hallucinations”; also documenting Plaintiff's reports of visual hallucinations “of lights and shadows that happen every day,” and auditory hallucinations of God and archangels that he “speak[s] to and they answer [him] back”); id. at 297 (containing LMFT's Surridge's February 4, 2020 notes that Plaintiff “presented] with delusional thoughts in session”; also documenting Plaintiff “reports hearing a voice which guides his decision making”); id. at 331 (containing N.P. Dailo's February 5, 2020 notes that Plaintiff reported that his “inner voice [was] talking to [him] and people's voices [he] can hear,” and that Plaintiff experienced delusions and auditory hallucinations in the form of voices “telling [him] where to go”; also noting a “history of paranoid delusions, thinking that demons were possessing [Plaintiff's] house and his body”); id. at 321 (containing February 19, 2020 notes from N.P. Dailo that Plaintiff “continues with intermittent auditory hallucinations”); id. at 312-13 (containing N.P. Dailo's May 13, 2020 notes documenting Plaintiff's “paranoid delusions, thinking demons were possessing his house and his body”; also stating that Plaintiff “continued to experience auditory and visual hallucinations with paranoid ideation”); id. at 337 (containing an opinion from N.P. Dailo, dated May 15, 2020, that Plaintiff had “visual and auditory hallucinations,” “circumstantial” associations, and delusions); Id. at 362 (containing June 25, 2020 notes from LMFT Burgner that Plaintiff's “thought content exhibited ‘delusions'”); id. at 342 (containing an opinions from N.P. Dailo dated August 12, 2020, that Plaintiff had “visual and auditory hallucinations,” “circumstantial” associations, and delusions); id. at 274 (containing December 22, 2021 notes from N.P. Balingit that Plaintiff had “active psychotic symptoms and cognitive symptoms”).) The record also contains Plaintiff's testimony, as well as notes from his medical care providers, indicating that his mental limitations may be, in part, attributed to or exacerbated by psychosis. (See e.g., id. at 43 (containing Plaintiff's administrative hearing testimony that he heard a voice that “guide[d] [his] decision-making,” telling him “where to go and where to be at the right time, at the right place,” instructing him to prepare raw vegan food for fellow homeless people, and “pick up all the trash all around the world”); id. at 229 (containing Plaintiff's statements in his function report that “I walk the graveyards, I feel I hear what is my purpose, I hear voices, I talk to things that are not there.”); see also id. at 297, 352, 362, 374, 377, 380, 383-86, 389, 392-93, 395, 398, 404-05, 410, 413-14, 416-17, 419, 42223 (containing findings from Plaintiff's mental status examination indicating that he suffered from delusions, and his judgment and insight were impaired).)

The ALJ's written decision does not have any indication that the ALJ considered Plaintiff's psychosis, whether deemed a severe or non-severe impairment, and whether considered alone or in combination with other impairments. Accordingly, the ALJ erred at step two by failing to consider Plaintiff's psychosis.

3. Whether the ALJ erred at step three of the sequential evaluation process by not considering Listing 12.03

a. Parties' arguments

Plaintiff argues that although the ALJ considered Listing 12.04, Plaintiff suffers from psychosis, which is addressed by Listing 12.03, and the ALJ did not consider Listing 12.03. (J. Mot. at 13-14.) Plaintiff asserts that he has marked limitations in his ability to interact with others, concentrate, persist, or maintain pace, and adapt or manage himself. (Id. at 14-15.) Plaintiff contends that his “significant disconnect with reality indicates more than moderate paragraph B limitations,” and argues that he satisfies paragraph B criteria of Listing 12.03. (Id. at 33.)

Defendant responds that the ALJ reasonably determined at step three that Plaintiff's mental impairments caused no more than “moderate” limitations in the paragraph B criteria. (Id. at 27-29.) Defendant asserts that although Plaintiff believes his limitations in these functional areas are “marked” and not “moderate,” the Court should not reweigh the evidence in Plaintiff's favor because substantial evidence supports the ALJ's finding at step three. (Id. at 29.)

b. Applicable law

At step three, the ALJ considers whether one or more of the claimant's impairments meets or equals a listed impairment identified in 20 C.F.R. Pt. 404, Subpart P, Appendix 1. See 20 C.F.R. § 416.920(a)(4)(iii). If a claimant has an impairment or combination of impairments that meets or equals a listed impairment, the claimant is presumed disabled. See id. § 416.920(d). The claimant bears the burden of establishing a prima facie case of disability under the Listings. See Thomas v. Barnhart, 278 F.3d 947, 955 (9th Cir. 2002). The impairments included in the Listings are considered “severe enough to prevent an individual from doing any gainful activity, regardless of his or her age, education, or work experience.” 20 C.F.R. § 416.925(a). “For a claimant to show that his impairment matches a listing, it must meet all of the specified medical criteria.” Sullivan v. Zebley, 493 U.S. 521, 530 (1990). Likewise, to show that an unlisted impairment is “equivalent” to a listed impairment, the claimant “must present medical findings equal in severity to all the criteria for the one most similar listed impairment.” Id. at 531. Although the ALJ is not required to “state why a claimant failed to satisfy every different section of the listing of impairments,” the ALJ must “discuss and evaluate the evidence that supports . . . [the ALJ's] conclusion.” Laborin v. Berryhill, 692 Fed.Appx. 959, 961-62 (9th Cir. 2017) (citations omitted).

Listing 12.03 (Schizophrenia spectrum and other psychotic disorders) and Listing 12.04 (Depressive, bipolar and related disorders) have three paragraphs, designated A, B, and C. See 20 C.F.R. Pt. 404, Subpt. P, App. 1 §§ 12.00(A)(2), 12.03, 12.04. Both Listings 12.03 and 12.04 require that the claimant's mental disorder satisfy paragraphs A and B, or A and C. See id.

c. Analysis

At step three of his sequential evaluation process, the ALJ found that Plaintiff did “not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926).” (AR at 19.) The ALJ also found that the severity of Plaintiff's mental impairments, considered singly and in combination, did not meet or medically equal the criteria of Listing 12.04. (Id.)

Listing 12.03 (Schizophrenia spectrum and other psychotic disorders) can be met by satisfying paragraphs A and B, or by satisfying paragraphs A and C. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.03. Paragraph A of Listing 12.03 requires medical documentation of one or more of the following: (1) “[d]elusions or hallucinations”; (2) “[disorganized thinking (speech)”; or (3) “[g]rossly disorganized behavior or catatonia.” Id. As discussed in detail in Section B.1.c, the record in this case contains numerous medical records documenting Plaintiff's persistent visual and auditory hallucinations, delusions, and diagnosis of psychosis. Plaintiff has therefore satisfied the paragraph A criteria of Listing 12.03. Accordingly, if Plaintiff satisfies the criteria for either paragraph B or C, the ALJ should have considered whether Plaintiff's impairments meet or equal Listing 12.03 (Schizophrenia Spectrum and Other Psychotic Disorders). If, however, the ALJ's conclusion that Plaintiff does not satisfy the criteria for either paragraph B or C is free of legal error and supported by substantial evidence, then any error with the ALJ's failure to consider Listing 12.03 is harmless.

Paragraph C, which applies where a claimant has had ongoing medical treatment that diminishes his or her symptoms, is not at issue in this case, according to the parties' briefing. (See J. Mot. at 13-15, 32; see also Id. at 27-29.) The Court therefore turns to paragraph B criteria. The paragraph B criteria can be met when a claimant has “extreme” limitation of one, or “marked” limitation of two, of the following four areas of mental functioning: (1) “[understand, remember, or apply information”; (2) “[i]nteract with others”; (3) “[c]oncentrate, persist, or maintain pace”; (4) “[a]dapt or manage oneself.” See 20 C.F.R. Pt. 404, Subpt. P, App. 1, §§ 12.03. Notably, paragraph B criteria of Listings 12.03 and 12.04 are identical. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, §§ 12.03, 12.04.

The ALJ in this case analyzed paragraph B criteria of Listing 12.04 and concluded that Plaintiff had a “mild” limitation in his ability to understand, remember, or apply information; and a “moderate” limitation in his ability to interact with others, concentrate, persist, or maintain pace, and manage himself. (See AR at 19-20.) Based on these findings, the ALJ concluded that “[b]ecause the claimant's mental impairments do not cause at least two ‘marked' limitations or one ‘extreme' limitation, the ‘paragraph B' criteria are not satisfied.” (Id. at 20.) As discussed in Section B.2.c, the ALJ improperly discounted the opinion of N.P. Dailo. N.P. Dailo opined that Plaintiff had a “poor” ability to perform activities within a schedule, maintain regular attendance, complete a normal workday and workweek without interruptions from psychologically based symptoms, interact appropriately with the public, supervisors, and coworkers, and respond appropriately to changes in a work setting. (Id. at 338, 343.) As noted above, “poor” is defined as “the evidence supports the conclusion that the individual cannot usefully perform or sustain the activity.” (Id.) Further, N.P. Dailo opined that Plaintiff had a “fair” ability to understand, remember, and carry out complex instructions, as well as maintain concentration, attention and persistence, where “fair” is defined as “[t]he evince supports the conclusion that the individual's capacity to perform the activity is impaired, but the degree/extent of the impairment needs to be further described.” (Id.)

The Court also notes that Plaintiff's consultative examination was cancelled due to Plaintiff's mental condition on the day of the examination, and the record does not contain any explanation as to why the examination was not rescheduled. (See AR.) The ALJ also did not obtain any testimony from a medical expert. (See AR.) The opinion from a consultative examiner and/or testimony from a medical expert would have greatly assisted the ALJ in evaluating paragraph B criteria. See Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001) (“In Social Security cases, the ALJ has a special duty to develop the record fully and fairly and ensure that the claimant's interests are considered, even when the claimant is represented by counsel.”); Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) (providing that the ALJ's duty to develop the record is triggered when the evidence is ambiguous or when the record is inadequate for a proper evaluation of the claimant's limitations); Fernando R. v. O'Malley, Case No.: 23cv181-BEN(LR), 2024 WL 493446, at *6 (S.D. Cal. Feb. 8, 2024) (citing Sims v. Apfel, 530 U.S. 103, 110-11 (2000)) (providing that the “responsibility to develop the record rests with the ALJ in part because disability hearings are inquisitorial rather than adversarial in nature.”); Michelle N. v. Saul, No. EDCV 18-720-KS, 2019 WL 13039650, at *9 (C.D. Cal. Aug. 5, 2019) (“[T]he ALJ is reminded of her independent duty to fully and fairly develop the record in [p]laintiff's case, which may include obtaining a consultative examination and/or obtaining the opinion of a medical expert.”).

The ALJ erred by improperly discounting Plaintiff's subjective symptom testimony and the opinion of N.P. Dailo, and failing to consider Plaintiff's psychosis at step two. Further, the ALJ did not develop the record by ordering a rescheduled consultative examination of Plaintiff and/or obtaining testimony from a medical expert. Based on the record before it, the Court cannot meaningfully analyze whether the ALJ property evaluated whether Plaintiff's psychosis meets the requirements of paragraph B criteria. Nevertheless, because Plaintiff suffers from psychosis, which is addressed by Listing 12.03, the ALJ erred at step three of his sequential evaluation process by not considering Listing 12.03.

4. Whether the ALJ properly evaluated Plaintiff's RFC

a. Parties' arguments

Plaintiff argues that the ALJ erred in assessing his RFC. (J. Mot. at 16-18, 33.) Plaintiff contends that his RFC does not address his ability to interact with supervisors and coworkers, even though the record supports such limitations. (Id. at 17.) Plaintiff further asserts that his testimony demonstrates that his “thoughts are not reality based,” he “is seriously mentally ill[,] and the RFC does not capture his disconnect with reality.” (Id. at 18; see also id. at 33.)

Defendant responds that the ALJ accounted for all of Plaintiff's credible limitations in his assessed RFC and properly concluded that Plaintiff could perform “simple routine tasks with no public contact.” (Id. at 29 (citing AR at 20).) Defendant states that Plaintiff primarily relies on his self-reports about his symptoms to argue that the ALJ should have found additional RFC limitations, and contends that the ALJ properly discounted Plaintiff's self-reports. (J. Mot. at 29.)

b. Applicable law

RFC refers to what the claimant can do in a work setting, despite the claimant's mental or physical limitations caused by impairments or related symptoms. 20 C.F.R. § 416.945(a)(1); see also Social Security Ruling (“SSR”) 96-8p, 1996 WL 374184, at *1 (July 2, 1996) (providing that an RFC “is an assessment of an individual's ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis.”). In assessing the claimant's RFC, the ALJ must consider all of the claimant's medically determinable impairments, including nonsevere medically determinable impairments. 20 C.F.R. § 416.945(e). “[A]n ALJ must consider all relevant evidence in the record, including, inter alia, medical records, lay evidence, and ‘the effects of symptoms . . . that are reasonably attributed to a medically determinable impairment.'” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006) (quoting SSR 96-8p, 1996 WL 374184, at *5). Careful consideration must be given to “any evidence about symptoms, ‘because subjective descriptions may indicate more severe limitations or restrictions than can be shown by medical evidence alone.'” Id.

c. Reasoning

The ALJ found that Plaintiff had the RFC to perform the “full range work at all exertional levels but with the following nonexertional limitations: The claimant can perform simple routine tasks with no public contact.” (AR at 20.) As discussed above, the ALJ erred by discounting Plaintiff's subjective symptom testimony and opinion evidence from N.P. Dailo, did not consider Plaintiff's psychosis, and did not order a rescheduled consultative examination. As a result, based on the record before it, the Court cannot meaningfully analyze whether the ALJ property considered Plaintiff's mental impairments in assessing Plaintiff's RFC and whether the ALJ's RFC determination was proper. See Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009) (“an RFC that fails to take into account a claimant's limitations is defective”); see also Cynthia R. v. Kijakazi, Case No.: 21cv1612-BAS(LR), 2023 WL 375357, at *16 (S.D. Cal. Jan 23, 2023) (concluding that “[b]ecause the RFC determination involves the evaluation of medical opinion evidence, the Court cannot meaningfully assess whether the ALJ's RFC determination was proper,” where the ALJ improperly discounted opinion evidence from plaintiff's medical providers, and plaintiff's subjective symptom testimony); Margie R. v. Saul, Case No. 3:19-cv-00514-JR, 2022 WL 2208384, at *2-4 (D.Or. June 21, 2022) (concluding that “[b]ecause the ALJ's rejection of [plaintiff's examining psychologist's] opinion [wa]s not based on substantial evidence and constitute[d] grounds for reversal, the Court need[ed] not consider [plaintiff's other assignments of error,” where plaintiff also argued that the ALJ erred by improperly rejecting plaintiff's subjective symptom testimony, failing to include all of plaintiff's limitations in the RFC, and relying upon VE testimony that diverged from the DOT).

5. Whether the ALJ erred at step five of his sequential evaluation process a. Parties' arguments

Plaintiff argues that the ALJ erred at step five of his sequential evaluation process. (J. Mot. at 22-26.) Specifically, Plaintiff contends that his non-exertional limitations eroded the occupational base of unskilled work to such an extent that the ALJ should not have relied on the Grid Rules and should have called a VE. (See Id. at 22-26, 34.) Plaintiff maintains that all jobs require a worker to interact with supervisors and coworkers, and argues that a “moderate” limitation in Plaintiff's ability to interact with others assessed by the ALJ is a “significant barrier to employment, precluding use of the Medical-Vocational Rules.” (Id. at 26.)

Defendant contends that the ALJ reasonably concluded at step five of his sequential evaluation process that Plaintiff's non-exertional limitations did not significantly erode the occupational base of unskilled work, and the ALJ was therefore justified in applying the Grid Rules to find Plaintiff not disabled. (Id. at 31-32.) Defendant argues that Plaintiff's “moderate mental impairments” are not “sufficiently severe such as to invalidate the ALJ's exclusive use of the grids without the assistance of a vocational expert.” (Id. at 31.) Defendant further contends that Plaintiff's limitation to work with “no public contact,” would not erode the unskilled occupational base because “the primary work functions in most unskilled occupations involve working with things (rather than with data or people).” (Id. at 31-32.)

b. Applicable law

At step five of the sequential evaluation process, the burden of proving that the claimant can perform other jobs that exist in significant numbers in the economy shifts to the Commissioner. See 20 C.F.R. § 416.920(f); Valentine, 574 F.3d at 689. The Commissioner can satisfy this burden by relying on the testimony of a VE or by applying the Medical-Vocational Guidelines (“the grids”). Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999). An ALJ may properly rely on the grids instead of taking testimony from a VE only if the grids “accurately and completely describe a claimant's impairments.” Holohan, 246 F.3d at 1208; see also Reddick v. Chater, 157 F.3d 715, 729 (9th Cir. 1998) (“The ALJ may apply the grids in lieu of taking testimony of a vocational expert only when the grids accurately and completely describe the claimant's abilities and limitations.”).

c. Reasoning

At step five of his sequential evaluation process the ALJ used Medical Vocational Rule 204.00 to find that Plaintiff was not disabled. Specifically, the ALJ reasoned as follows:

[t]he claimant's ability to perform work at all exertional levels has been compromised by nonexertional limitations. However, these limitations have little or no effect on the occupational base of unskilled work at all exertional levels. A finding of “not disabled” is therefore appropriate under the framework of section 204.00 in the Medical-Vocational Guidelines. The limitation to simple repetitive tasks with no public contact has no [sic] little to no effect on the occupational base of unskilled work because the claimant is still capable of the basic mental work-related activities, namely understanding, carrying out, and remembering simple instructions; making judgments that are commensurate with the functions of unskilled work-i.e., simple work-related decisions; responding appropriately to supervision, coworkers, and usual work situations; and dealing with changes in a routine work setting (SSR 96-9p). A finding of “not disabled” is therefore appropriate under the framework of this rule.

(AR at 25).

As discussed in detail above, the ALJ erred by discounting Plaintiff's subjective symptom testimony and the opinion of N.P. Dailo, and by not considering Plaintiff's psychosis at step two. Further, the ALJ did not develop the record by ordering a rescheduled consultative examination of Plaintiff and/or by obtaining medical expert testimony regarding Plaintiff's mental impartments. As a result, the Court cannot evaluate whether the ALJ erred at step five of his sequential evaluation process. See Brian O. v. O'Malley, Case No.: 22cv1652-LR, 2024 WL 1333891, at *12 (S.D. Cal. Mar. 28, 2024) (declining to address the issue whether the ALJ erred at step five of the sequential evaluation process by improperly analyzing whether plaintiff could perform other work in significant numbers in the national economy, where the court found that the ALJ erred in evaluating a medical provider's opinion and plaintiff's subjective symptom testimony; noting that “the assessment of (plaintiff's symptom claims, and [the ALJ's] findings at step five would be at least partially dependent on the reevaluation of [medical provider's] opinion”); see also Morales v. Kijakazi, Case No. 1:20-cv-00572-BAK, 2022 WL 970774, at *7 (E.D. Cal. Mar. 31, 2022) (declining to address the issue whether the ALJ erred at step five “(b]ecause the ALJ's assessment of [plaintiff's symptom claims, and the finding at steps four and five are at least partially dependent on the ALJ's reevaluation of medical evidence, including the examining opinions of [plaintiff's medical care providers whose opinions the ALJ discounted]”).)

6. Conclusion

The ALJ erred by discounting Plaintiff's subjective symptom testimony and the opinion of N.P. Dailo, and by not considering Plaintiff's psychosis at step two. Further, the ALJ erred at step three by not considering Listing 12.03. Additionally, the ALJ did not develop the record by ordering a rescheduled consultative examination of Plaintiff and/or by obtaining medical expert testimony regarding Plaintiff's mental impartments. The Court therefore RECOMMENDS that the District Judge find that the ALJ did not property evaluate Plaintiff's mental impairments.

VI. REMEDY

Plaintiff moves the Court to reverse the Commissioner's decision and remand the case for the award of benefits or, in the alternative, to remand for further proceedings. (See J. Mot. at 34-36.) Defendant asks the Court to affirm the Commissioner's decision, or, in the alternative, to remand for further proceedings. (Id. at 36.)

The reviewing court may enter a judgment “affirming, modifying, or reversing” the Commissioner's decision. 42 U.S.C. § 405(g). The reviewing court may also remand the case to the Social Security Administration for further proceedings. Id. The decision whether to remand for further proceedings or for immediate payment of benefits is within the discretion of the court. Id.; Treichler, 775 F.3d at 1099. A remand for an immediate award of benefits is appropriate only in rare circumstances. See Brown-Hunter, 806 F.3d at 495. “[T]he district court should credit evidence that was rejected during the administrative process and remand for an immediate award of benefits if (1) the ALJ failed to provide legally sufficient reasons for rejecting the evidence; (2) there are no outstanding issues that must be resolved before a determination of disability can be made; and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited.” Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004) (citing Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000)). However, “[i]f additional proceedings can remedy defects in the original administrative proceedings, a social security case should be remanded.” Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981).

The Court finds that the rare circumstances that may result in a direct award of benefits are not present in this case. See Leon v. Berryhill, 880 F.3d 1041, 1044 (9th Cir. 2017) (“[a]n automatic award of benefits in a disability benefits case is a rare and prophylactic exception to the well-established ordinary remand rule”); see also Howland v. Saul, 804 Fed.Appx. 467, 471 (9th Cir. 2020) (same). The Court finds that further administrative proceedings will serve a meaningful purpose by allowing the ALJ to further develop the record to properly evaluate Plaintiff's subjective symptom testimony and the opinion of N.P. Dailo, consider Plaintiff's psychosis and whether it meets the requirements of Listing 12.03, and, if warranted, reassess Plaintiff's RFC and determine whether there are any available jobs that Plaintiff can perform. See Matlock, 90 Fed.Appx. at 211-12 (reversing and remanding so that the ALJ can consider the claimant's testimony, his wife's testimony, the opinion of his treating physician, and reevaluate whether the claimant's schizophrenia met the requirements for Listing 12.03, where the ALJ erred in discounting the claimant's subjective symptom testimony, the testimony of his wife, and the opinion of the claimant's treating physician); McMath v. Berryhill, CASE NO. C17-344-RBL, 2018 WL 1045326, at *4 (W.D. Wash. Feb. 26, 2018) (reversing and remanding, with instructions to address whether plaintiff's schizophrenia was a severe impairment at step two, whether plaintiff's schizophrenia met the criteria of Listing 12.03 at step three, and, if warranted, to reassess plaintiff's RFC and obtain VE testimony regarding the impact of plaintiff's limitations on her ability to work). The Court therefore RECOMMENDS that the District Judge find that remand for further proceedings is appropriate.

VII. CONCLUSION AND RECOMMENDATION

For the foregoing reasons, the Court RECOMMENDS that the Commissioner's decision be REVERSED, and that Judgment be entered reversing the decision of the Commissioner and remanding this matter for further administrative proceedings pursuant to sentence four of 42 U.S.C. § 405(g).

IT IS ORDERED that no later than August 7, 2024 , any party to this action may file written objections with the Court and serve a copy on all parties. The document should be captioned “Objections to Report and Recommendation.”

IT IS FURTHER ORDERED that any reply to the objections shall be filed with the Court and served on all parties no later than August 14, 2024 . The parties are advised that failure to file objections within the specified time may waive the right to raise those objections on appeal of the Court's order. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).

IT IS SO ORDERED.