Opinion
23cv1222-JES(LR)
07-30-2024
HUGO R.,[1] Plaintiff, v. MARTIN O'MALLEY, Commissioner of the Social Security Administration,[2] Defendant.
REPORT AND RECOMMENDATION REGARDING JOINT MOTION FOR JUDICIAL REVIEW
[ECF No. 16]
Honorable Lupe Rodriguez, Jr., United States Magistrate Judge
This Report and Recommendation is submitted to the Honorable James E. Simmons, Jr., 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 June 30, 2023, Plaintiff Hugo R. (“Plaintiff”) filed a Complaint pursuant to 42 U.S.C. § 405(g) seeking judicial review of a decision by the Commissioner of Social Security (“Defendant”) denying Plaintiff's application for a period of disability and disability insurance benefits. (Compl., ECF No. 1.)
Now pending before the Court is the parties' “Joint Motion for Judicial Review of Final Decision of the Commissioner of Social Security.” (See J. Mot. Judicial Review, ECF No. 16 (“J. Mot.”).) For the reasons set forth below, the Court RECOMMENDS that the Commissioner's decision be REVERSED, and that this matter be REMANDED for further administrative proceedings consistent with this Report and Recommendation.
I. PROCEDURAL BACKGROUND
On September 10, 2020, Plaintiff filed an application for supplemental security income benefits under Title XVI of the Social Security Act, alleging disability beginning on September 4, 2019. (ECF No. 13 (“AR”) at 181.) After his application was denied initially and on reconsideration, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). (Id. at 113-115.) On September 29, 2021, a hearing was held before ALJ William Mueller, during which Plaintiff was represented by counsel. (Id. at 36-57.) A vocational expert (“VE”) was also present at the hearing (See id.) On October 14, 2021, the ALJ found that Plaintiff was not disabled since the application filing date. (See id. at 25.) On December 20, 2021, Plaintiff requested that the Appeals Council review the ALJ's decision. (See id. at 178-180.)
“AR” refers to the Administrative Record filed on August 29, 2023. (ECF No. 10.) The Court's citations to the AR in this Report and Recommendation are to the pages 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.
On October 12, 2022, the Appeals Council denied Plaintiff's request to review the ALJ's decision. (See id. at 1-3.) After being granted an extension of time by which he could file a civil action seeking judicial review of the ALJ's decision (see id. at 7-8), Plaintiff filed the instant civil action June 30, 2023. (See Compl., ECF No. 1.)
II. SUMMARY OF THE ALJ'S FINDINGS
At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since his application date. (See AR at 20.) At step two, the ALJ determined that Plaintiff has the severe impairment of schizophrenia. (See id.) At step three, the ALJ found that Plaintiff does not have an impairment or combination of impairments that meets or medically equals the severity of one of the impairments listed in the Commissioner's Listing of Impairments. (See id.) Next, the ALJ determined that Plaintiff has the residual functional capacity (“RFC”) to do the following: “perform a full range of work at all exertional levels but with the following nonexertional limitations: he is limited non-public simple, routine tasks with only occasional contact with coworkers and supervisors.” (Id. at 22.)
At step four, the ALJ determined that Plaintiff has no relevant past work. (See id. at 24.) The ALJ then proceeded to step five of the sequential evaluation process. Based on the VE's testimony that a hypothetical person with Plaintiff's vocational profile and RFC could perform the requirements of occupations that existed in significant numbers in the national economy, such as night cleaner (DOT 381.687-018), floor waxer (DOT 381.687-034), and merchandise marker (DOT 209.587-034), the ALJ found that Plaintiff was not disabled. (Id. at 24-25.)
As will be explained in further detail in Section V.C, infra, the DOT code the ALJ cited in his decision actually corresponds to industrial cleaner, rather than night cleaner as the VE testified.
In determining that Plaintiff was not disabled, the ALJ found Plaintiff's “medically determinable impairment could reasonably be expected to cause the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effect of these symptoms are not entirely consistent with the medical evidence and other evidence in the record.” (Id. at 22.)
III. DISPUTED ISSUES
As reflected in the parties' Joint Motion for Judicial Review, Plaintiff raises four issues as grounds for remand of the ALJ's decision:
1. Whether the ALJ properly evaluated Plaintiff's subjective symptom testimony. (See J. Mot. at 7.)
2. Whether the ALJ properly incorporated limitations from step three of the sequential evaluation process into Plaintiff's RFC. (See Id. at 19-20 (“The ALJ found that [Plaintiff] had a moderate limitation with regard to concentrating, persisting or maintaining pace in a work environment . . . the RFC does not seem to have any limitation squarely aligned with a moderate ability to maintain concentration, persistence, or pace throughout a workday.”).)
3. Whether the ALJ erred at step five by relying on the testimony of the VE regarding an occupation characterized as night cleaner in the ALJ's written decision. (See id. at 25 (“the [VE] brought her own credibility into question by mis-stating [the night cleaner DOT title] to make it appear to be less demanding and dangerous than it was.”).)
4. Whether the ALJ erred further at step five by relying on the VE's testimony about what Plaintiff characterizes as an out-of-date DOT occupation title for the merchandise marker position. (See id. at 30 (“the [merchandise marker] occupation trotted out by the VE in this case is a perfect example of the DOT being so far out of date that computers were not in widespread use—let alone built into cell phones and watches—at the time it was published.”).)
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 Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012), superseded by regulation on other grounds.
The Court must affirm the Commissioner's decision if it is “supported by substantial evidence and based on the application of correct legal standards.” Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997) (per curiam). “Substantial evidence” is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). Substantial evidence means “more than a mere scintilla but less than a preponderance.” Id. In determining whether the Commissioner's decision is supported by substantial evidence, the Court must “weigh both the evidence that supports and the evidence that detracts from the ALJ's factual conclusions.” Gutierrez v. Comm'r Soc. Sec., 740 F.3d 519, 523 (9th Cir. 2014) (internal quotation omitted). When evidence is “susceptible to more than one rational interpretation, one of which supports the ALJ's decision,” the Court must uphold the ALJ's conclusion. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). 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 v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) (internal quotation omitted).
Error in a social security determination is subject to a harmless error analysis. Ludwig v. Astrue, 681 F.3d 1047, 1054 (9th Cir. 2012). “[A]n error is harmless so long as there remains substantial evidence supporting the ALJ's decision and the error does not negate the validity of the ALJ's ultimate conclusion.” Molina, 674 F.3d at 1115 (internal quotation omitted). The Court must “look at the record as a whole to determine whether the error alters the outcome of the case.” Id.
V. DISCUSSION
A. Plaintiff's Subjective Symptom Testimony
1. Relevant Factual Background
a. Atascadero State Hospital
Notes from the California Department of State Hospitals explain that Plaintiff was originally housed in the general population of a prison in San Diego County following an incident in which he stabbed a neighbor after a period of laughing and talking to himself, combined with increasingly violent outbursts in 2016. (See AR at 265-66.) In June of 2017, Plaintiff was transferred from general population to the prison's mental health case management department following reports from Plaintiff's cellmate that he was exhibiting delusional thinking, repeatedly required prompts to bathe and eat, and exhibiting other signs of psychosis such as tangential and rambling speech. (See id.) Plaintiff was eventually diagnosed with “Unspecified Schizophrenia Spectrum and Other Psychotic Disorder, Alcohol Use Disorder, and Cannabis Use Disorder,” and was transferred to Atascadero State Hospital (“Atascadero”) in February of 2018. (See id.) Treatment notes from Atascadero explain that Plaintiff was noted to be rambling in his speech, evasive, guarded, talking or laughing to himself, and refused to take prescribed medications. (See id. at 271.) After a period in which he was placed in a wrist and Posey belt for severe anxiety symptoms associated with side effects from forced doses of antipsychotic medications, Plaintiff was eventually prescribed quetiapine, which clinicians explained provided an improvement of his psychotic symptoms, including an approximately fifty-percent reduction in audiovisual hallucinations and improved insight into his condition. (See id. at 272.) Plaintiff was eventually discharged to a parole program in June of 2018 after “superior court decertification.” (See id. at 277-74.)
b. Subsequent medical records
i. February 2019
Records following Plaintiff's discharge from Atascadero explain that he was referred to City Heights Family Health Center (“City Heights”) by his former parole officer for “schizophrenia symptoms” and was first seen at City's Heights' Grossmont location in February of 2019. (Id. at 382.) These treatment notes are notably sparse in details about Plaintiff's symptoms. In his intake notes, Robert Nwanganga, a licensed clinical social worker, noted that Plaintiff admitted to auditory, visual, and tactile hallucinations, as well as delusions of people wanting to kill him. (See id.) Plaintiff was noted to be taking the same medication as the one prescribed to him at Atascadero, and explained that his “biggest stressor is employment and maintaining his [mental health].” (Id.) Another note from that month explained that Plaintiff was “dealing with issues of employment and return to school.” (Id. at 380.)
ii. March 2019
A treatment note from Jonathan Deam, M.D., in March of 2019 gives a general overview of Plaintiff's reports of his medical history:
Reports little in the way of active SX currently. Prior to effective treatment, he reports [audiovisual] that he was going to be killed, believing he was being poisoned by meals, seeing “ghosts” that were frightening. Recounted a time when he slept in a park of fear and paranoia despite having a residence. Also reported believing that he was Japanese or from another country while symptomatic.(Id. at 376.) In addition to noting that Plaintiff needed some redirection back to the questions asked of him during his visit, Dr. Deam noted that Plaintiff's mood was mildly blunted and that his condition mostly consisted of negative symptoms of schizophrenia:
“In light of his violen[t] past, he appears to be at baseline symptoms, which are fairly mild at this point and consist of mostly negative [symptoms] . . . [no] active paranoia or delusionality appreciated . . . overall risk to self others is felt to be chronically elevated based on history, but low currently.”(Id. at 377.)
iii. April of 2019
A subsequent follow-up note written by Dr. Deam explains that Plaintiff reported feeling more connected with his daily activities after being consistent with his medication and that he was looking for work. (See id. at 372.)
iv. May of 2019
A follow-up note dated May 15, 2019 explains that Plaintiff presented early for a refill of his medication to avoid a return of his psychosis symptoms. (See id, at 368.) Additionally, Dr. Deam reported that Plaintiff was “impoverished and flattened in his affect,” with “mild disorganization and talks about future plans, but appropriate and has insight into his illness and does not wish for [symptoms] to return.” (Id. at 369.) Dr. Deam noted that Plaintiff “likely will need higher level of care in the long run and will discuss with therapist for referral.” (Id.)
v. July of 2019
A note dated July 2, 2019 recounts Plaintiff's reports of exercising more consistently and that he was having trouble finding work in the food service industry. (See Id. at 364.) Additionally, Dr. Deam noted that Plaintiff reported some visual hallucinations of demons while going to sleep, but that Plaintiff was able to perform reality testing to determine whether the visions were real. (See id.) Dr. Deam reported that Plaintiff “[d]enies aggression and appears baseline during the interview with no appreciable change in negative [symptoms] and no evidence of [positive symptoms] other than his self-report.” (Id.)
vi. August of 2019
Notes from Dr. Deam in August of 2019 describe Plaintiff as “blunted, concrete, and mildly impoverished,” and that Plaintiff had no active paranoia or delusionality appreciated,” but that he had “residual negative [symptoms] of schizophrenia.” (Id. at 360-61.) An additional note that month from Mr. Nwanganga explains that Plaintiff admitted to schizophrenia symptoms daily, and that Plaintiff reported wanting to “stop the voices.” (Id. at 358.)
vii. October of 2019
On October 14, 2020, Dr. Deam reported that Plaintiff had noticeably improved hygiene during his interview with Plaintiff, and that Plaintiff denied any psychosis symptoms. (See id. at 354.) Dr. Deam noted that “negative symptoms predominate at this point.” (Id.)
viii. December of 2019
Dr. Deam reported in a note dated December 26, 2019 that Plaintiff continued to report difficulties with seeking employment, and that he felt his relationship with his family was supportive. (See id. at 350.) Dr. Deam noted that Plaintff was stable on his current medication, and that he had “[c]hronic negative [symptoms] of [schizophrenia], but no active delusions.” Dr. Deam noted a decrease in Plaintiff's hygiene during this visit. (See Id. at 351.)
ix. February of 2020
In perhaps the most detailed note included in the administrative record, Albert Modad, PsyD, described Plaintiff as follows:
some thought blocking and difficulty explaining his symptoms, as well as trouble concentrating and paying attention. Pt denied current [audiovisual hallucinations] and didn't exhibit delusional thought content today. Pt didn't appear to be responding to internal stimuli. However, he stated he has [auditory hallucinations] where he will hear a voice of a word or incomplete sentence, 21 days/mo on average. Pt denied CAHs. Reminded pt to disobey CAHs if they tell pt to harm/kill himself or others, and if those symptoms worsen to call 911 or go straight to the hospital . . . VHs:6-9 weeks, daily in the last [six months], but not the last 2 mos - where he sees spirits. Pt complained of having some delusions 6-9 weeks daily, in the last 6 mos, but not the last 2 mos. An example he stated is thinking a tree is talking to him, but the delusions don't last all day. However, he stated he has good reality testing where is aware of thoughts, feelings, and surroundings.(Id. at 340.) Dr. Modad explained that Plaintiff was keeping active, had a strong support system at home, and denied any recent psychiatric hospitalizations. (See id.) Additionally, Plaintiff reported that he was keeping up with taking his medication. (See id.) An additional note that month by Dr. Deam described Plaintiff “at baseline for his [symptoms], which is mostly negative [symptoms] of schizophrenia. Can be disorganized and falls behind in hygiene, but is clean and kempt today. He notes he is exercising, feels he is not ready for work just yet. No new [symptoms].” (Id. at 336.)
x. May of 2020
Peter Burns, M.D., explained in another follow-up note that Plaintiff was compliant with his prescriptions, reported a reduction in frequency and intensity of auditory hallucinations, that he was concentrating better, and that he could manage auditory hallucinations when they did occur. (See id. at 333.)
xi. July of 2020
A check-in note authored by Andrea Cruz Araujo, M.D., describes Plaintiff's reported symptoms while treated with medication as “occasionally hearing some voices that don't bother him.” (Id. at 329.) Plaintiff reported to Dr. Araujo that he could perform reality checks to determine whether the voices in his head were real, and Dr. Araujo explained that she “encouraged [Plaintiff] to continue therapeutic connections at this clinic or elsewhere.” (Id. at 331.)
xii. August of 2020
A note by Dr. Modad repeats the same presenting symptoms that Plaintiff reported in February of 2020. (See id. at 327.) Dr. Modad explained in the “Long-term goal(s)” section of the form: “continued medication management w/psychiatry every 4-12 weeks or at least 1x every 3 months for the next 6 months (15-30 mins visits as per psychiatrist recommendation) to reduce symptoms of psychosis . . . Anticipated goal is to reduce stress associated with psychotic symptoms.”
xiii. January of 2021
In a treatment note that was largely duplicative of other entries, Dr. Modad wrote that Plaintiff reported improvement in his symptoms and that his father was helping him look for work. (See id. at 316, 324.) During this consultation, Plaintiff denied audiovisual hallucinations, noting that the last time they occurred was less than a month prior to Dr. Modad's note, and that he has audiovisual hallucinations that together with design patterns on average three times per month. (See id.) Dr. Modad also noted that Plaintiff tended to talk fast and needed redirection during the conversation, as well as that Plaintiff “zoned out” while on the phone with him. (See id.) Dr. Modad's entry in the “criteria/process for expected successful completion of services/case closure” section of the form were: “minimal psychotic symptoms for at least 1 yr; psychotic symptoms are stable on meds, per pt & psychiatrist's report; symptoms don't impair functioning; & psychiatrist recommending that pt continue med regimen with PCP.” (Id. at 325.)
Finally, in the last of Plaintiff's treatment notes included in the administrative record, Dr. Araujo recorded in an intake note that was largely duplicative of her other notes that Plaintiff reported a stable mood, denied significant sadness or anxiety, and that he denied symptoms of psychosis or mania. (See Id. at 312-15.)
c. Plaintiff's hearing testimony
During the hearing before the ALJ, Plaintiff testified that the last time he had worked was two or three years prior at a factory, and that his family supports him. (See id. at 39-40.) Plaintiff further testified that he could read and write, and drives a car every once in a while when he needs to go places. (See id. at 41.) Regarding his symptoms, Plaintiff testified that he experiences visual and auditory hallucinations at least once per week. (See id. at 45.)
d. Plaintiff's function report
In a function report dated October 11, 2020, Plaintiff explained that his symptoms caused difficulties focusing and issues with memory, adding that he tends to forget things quickly. (See id. at 222.) Plaintiff noted that he has no issues with personal care, and that he prepares frozen foods for himself at home. (See id. at 224.) Additionally, Plaintiff described his ability to complete household chores, explaining that he cleans his room frequently. (See id. at 225.) Plaintiff wrote that he goes outside every day, either by walking or driving a car, and that he can shop in stores for necessities every other day. (See Id. at 225.)
e. The ALJ's decision
The ALJ found that Plaintiff's symptoms were “not entirely consistent with the medical evidence and other evidence in the record,” reasoning as follows:
The medical record shows that the claimant was assessed with schizophrenia [AR at 279]. Mental status examinations show the claimant presented with flat mood and affect [AR at 279]. However, other mental status examinations show that the claimant had normal findings with his mood, affect, appearance, speech, memory, insight, judgment, thought content, and thought processes [AR at 292, 293, 312, 334, 373, 385]. Examination findings further show that the claimant was also consistently
cooperative and fully oriented upon exam and denied having suicidal ideation [AR at 279, 312, 317]. Further, mental health treatment notes from January 2021 show that the claimant reported that his symptoms have improved and further stated that he did not have any symptoms in a while [AR at 313, 316, 327].
In sum, the above residual capacity assessment is supported by the claimant's own subjective allegations, his reported activities of daily living, the objective medical findings, and the record as a whole. Given the medical record reflecting a history of treatment for schizophrenia [AR at 263-74, 275-310, 311-90]; the claimant's subjective allegations regarding his capabilities, including his symptoms of reduced concentrations and hallucinations [AR at 222-28, 56]; and the evidence of the record showing significantly normal objective findings and no longitudinal activity restrictions [AR at 292, 293, 312, 334, 373, 385], the undersigned finds the claimant can perform work at all exertional levels with non-exertional limitations due to these symptoms. The evidence supports a limitation to non-public simple, routine tasks with only occasional contact with coworkers and supervisors.AR at 23.
2. The parties' arguments
Plaintiff contends that the ALJ “illegally cherry pick[ed] evidence to support a final result rather than analyzing all the evidence fairly.” (See J. Mot. at 11.)
Specifically, Plaintiff argues that the ALJ ignored several pieces of probative medical evidence in the record that are representative of his symptoms, including that Plaintiff was detained at a correctional hospital after a “schizophrenia-fueled violent stabbing assault on a neighbor” (id. at 9), and that Plaintiff regularly reported symptoms of mental impairments such as hallucinations, delusions, and paranoia. (See id. at 10.) By ignoring this evidence in the record in favor of “check-the-box mental status exams from meagre free clinic notes,” Plaintiff contends that the ALJ improperly emphasized only the areas of the record that supported his disability determination. (See id.) Plaintiff further asserts that the ALJ “never identifies what statements it finds not credible, it just states it finds his testimony in total ‘not entirely consistent with the medical evidence,'” which Plaintiff describes as “generic boilerplate used in almost every SSA ALJ Opinion.” Id. (citing AR at 22). Citing Brown-Hunter v. Colvin, 806 F.3d 487 (9th Cir. 2015), and Lambert v. Saul, 980 F.3d 1266 (9th Cir. 2020) for the standards ALJs must use to evaluate claimants' subjective symptom testimony, Plaintiff contends that merely summarizing the medical evidence “completely untethered to any analysis . . . is miles and miles away from” the level of reasoning the ALJ in this case was required to use in evaluating Plaintiff's statements about his symptoms throughout the record. (J. Mot. at 17-18.)
In response, Defendant echoes the ALJ's findings that Plaintiff's complaints about his “problems with focus and memory,” were “not all . . . consistent with the record evidence,” especially his “normal mental status examination findings.” (Id. at 11-13.) Defendant cites provider notes about Plaintiff's “normal thought content” and “coherent thought process” that the ALJ used to discount his complaints about memory and focus. (Id.) Additionally, Defendant argues that “the ALJ reasonably discounted Plaintiff's symptom allegations given . . . reports of improvement,” noting that the regulations allow rejecting a claimant's testimony if their condition improves. (Id. at 13 (citing 20 C.F.R. § 416.929(c)(3)(iv).) Finally, Defendant points out that the ALJ cited to Plaintiff's activities of daily living in discounting his symptom testimony, including that Plaintiff “could drive a car, manage his personal care and hygiene, and perform household chores, including preparing meals daily and cleaning his room.” (Id. at 14.) Under Defendant's arguments, Plaintiff has “simply pointed to contradicting medical evidence in the record . . .[but] fails to explain how the evidence he relies on undermines the evidence supporting the ALJ's findings.” (Id. at 15.)
3. 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), superseded by regulation on other grounds; see also SSR 16-3p, 2017 WL 5180304 (Oct. 25, 2017). 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 their symptoms “only by offering specific, clear and convincing reasons for doing so.” Id.
“[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) (internal quotation omitted). “[A]n ALJ does not provide specific, clear, and convincing reasons for rejecting a claimant's testimony by simply reciting the medical evidence in support of [their] residual functional capacity determination.” Id. at 489. Instead, 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) (citations omitted); 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. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3); see SSR 16-3p, 2016 WL 1119029. In addition, the ALJ may consider other factors, such as Plaintiff's daily activities; the location, duration, frequency, and intensity of their 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 id.
4. Analysis
The ALJ found—and neither party contests—that Plaintiff has the severe impairment of schizophrenia. (AR at 20 (citing 20 C.F.R. § 426.920(c)). Thus, the ALJ concluded that Plaintiff's “medically determinable impairment could reasonably be expected to cause the alleged symptoms,” satisfying the first prong of the subjective symptom inquiry test. (Id. at 22.) Furthermore, neither party alleges that the ALJ found Plaintiff was malingering. (See generally J. Mot.) Accordingly, the Court must determine whether the ALJ provided specific, clear, and convincing reasons for discounting Plaintiff's claims regarding his symptoms. See Brown-Hunter, 806 F.3d at 489.
The ALJ identified three reasons for discounting Plaintiff's claims about the effects of his mental impairments: (1) that his symptom testimony was inconsistent with the medical evidence in the record (see AR at 23), (2) that his reports about his symptoms were inconsistent with evidence of the effectiveness of his treatment with a medication called Quetiapine or Seroquel (see id.), and (3) that his claims were inconsistent with his testimony about his daily activities. (See id.)
a. Plaintiff's daily activities
The ALJ rejected Plaintiff's subjective symptom claims, in part, through a reference to Plaintiff's lack of “longitudinal activity restrictions” and Plaintiff's “activities of daily living.” (Id. at 23 (citing AR at 292, 293, 312, 334, 373, 385).) Defendant contends that this discussion of Plaintiff's daily activities was a sufficient basis to reject his symptom testimony, arguing that “as the ALJ observed, Plaintiff's daily activities undermined such allegations, as Plaintiff conceded that he could drive a car, manage his personal hygiene, and perform household chores, including preparing meals daily and cleaning his room . . .” (J. Mot. at 14 (citing AR at 22, 223-25).)
The Court is unconvinced that this finding in the ALJ's decision was supported by clear and convincing reasons. As an initial matter, the ALJ's decision does not—as Defendant contends—explain which of Plaintiff's daily activities contradict his symptom testimony about his concentration and memory issues. (See AR at 22-23.) The ALJ only lists Plaintiff's daily activities explained in Plaintiff's function report, and then states in a conclusory fashion later on that they undermine his symptom claims. (See id. at 22 (“on a function report . . . Plaintiff reported that he is able to drive, handle his personal care and hygiene, and perform household chores.”); 23 (referencing “no longitudinal activity restrictions” and concluding that the RFC assessment earlier in the decision was supported by “the claimant's activities of daily living.”).) Nor do the citations included at the end of the sentence referencing Plaintiff's lack of “longitudinal activity restrictions,” (the only portion of the ALJ's reasoning that cites to Plaintiff's daily activities) shed any light on which activities undermine Plaintiff's testimony about his ability to concentrate and short memory span. (See id. at 23 (citing AR at 292, 293, 312, 334, 373, 385).) The only discussion in any of those citations to Plaintiff's daily activities is a note by one of Plaintiff's physicians that Plaintiff was “eating well and able to sleep. Has been working out.” (Id. at 312.) Without any meaningful analysis by the ALJ about which of these activities contradicted Plaintiff's subjective symptom testimony, any attempt to interpret such a discussion would involve reasoning that was not included in the ALJ's decision itself, which the Court declines to do in this instance. See Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1225 (9th Cir. 2009) (“[l]ong standing principles of administrative law require us to review the ALJ's decision based on the reasoning and factual findings offered by the ALJ—not post hoc rationalizations that attempt to intuit what the adjudicator may have been thinking.”).
Even if the ALJ had cited to these activities in discounting Plaintiff's subjective symptom testimony, without further discussion as to precisely how these activities contradict Plaintiff's testimony about his mental impairments involving concentration and memory, these are insufficient reasons to discount Plaintiff's testimony about his subjective symptoms. Courts within the Ninth Circuit have routinely concluded that the mere fact that a claimant can carry out certain activities at home is not sufficient for an ALJ to conclude that these activities can transfer to a work environment. See, e.g., Smith v. Saul, 820 Fed.Appx. 582, 585 (9th Cir. 2020) (“many home activities are not easily transferrable to what may be the more grueling environment of the workplace . . .”) (internal quotations omitted); Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) (citation omitted) (“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.”). It is not clear to the Court how Plaintiff's abilities to drive, handle his personal care and hygiene, perform household chores, or exercise, without any further inquiry into what type of skills these activities demonstrate, would require a level of concentration or memory span such that would contradict Plaintiff's testimony about his impairments in these areas. Accordingly, the Court is not convinced that the ALJ sufficiently discussed how Plaintiff's daily activities were inconsistent with his subjective symptom testimony. The ALJ accordingly did not provide clear and convincing reasons to reject Plaintiff's testimony on this basis.
b. Improvement with treatment
Another reason that the ALJ provided in rejecting Plaintiff's symptom testimony was that he reported improvement in his symptoms to his healthcare providers. (See AR at 23 (“mental health treatment notes from January 2021 show that [Plaintiff] reported that his symptoms have improved and further stated that he did not have symptoms in a while [AR at 313, 316, 327]”).) Noting that an ALJ may properly cite the effectiveness of treatment to reject a claimant's subjective symptom testimony, Defendant points out that the treatment records cited by the ALJ recorded improvements in some of Plaintiff's symptoms, including a good mood, a lack of any instantaneous psychotic symptoms, that his life was “‘more organized than before,'” and that his Seroquel prescription was providing “‘good control of his symptoms.'” (J. Mot. at 13-14 (citing AR at 313, 316).)
Defendant is correct that an ALJ may discount a claimant's testimony about symptoms caused by mental health impairments on the grounds that the claimant improved with treatment. See, e.g., Cornellier v. Saul, 834 Fed.Appx. 321, 325 (9th Cir. 2020) (holding that the ALJ appropriately rejected the claimant's “claim that he is unable to perform past work or other employment due to his symptoms of anxiety and depression based on . . . evidence that [he] experienced a good therapeutic response to treatment when he is compliant”); Niemi v. Saul, 829 Fed.Appx. 831, 832-33 (9th Cir. 2020) (concluding that the ALJ did not err in discounting the claimant's symptom testimony after noting that the ALJ observed that the claimant's “mental health challenges appeared to improve with counseling and medication”). Courts within the Ninth Circuit, however, have also found harmful error in many cases when an ALJ discounts a claimant's testimony about mental health symptoms by relying on isolated instances of improvement, or fails to address whether a claimant's symptoms had improved to such a degree that he can sustain gainful employment. For example, in Garrison, the Ninth Circuit explained that:
it is error to reject a claimant's testimony merely because symptoms wax and wane in the course of treatment. Cycles of improvement and debilitating symptoms are a common occurrence, and in such circumstances it is error for an ALJ to pick out a few isolated instances of improvement over a period of months or years and to treat them as a basis for concluding a claimant is capable of working.759 F.3d at 1017; see also Esselstrom v. Chater, 67 F.3d 869, 872-73 (9th Cir. 1995) (“‘the prognosis of chronic schizophrenia may well include periods between acute bouts in which symptoms, while controlled enough to permit life outside an institution, still prevent the patient from pursuing normal employment.'”) (quoting Pagan v. Bowen, 862 F.2d 340, 343 (D.C. Cir. 1988)).
The Court is similarly unconvinced that the ALJ's reliance on some select instances of improvement in Plaintiff's schizophrenia symptoms was a clear and convincing reason for rejecting his testimony about his issues with concentration and memory such that he could not maintain employment. Although the ALJ cited to records in which Plaintiff reported improvements in symptoms like the frequency of his audiovisual hallucinations, his mood, and his ability to perform reality checks to determine whether the voices in his head are real, (see AR at 23 (citing AR at 313, 316, 327)), these reports relate only to what Plaintiff's healthcare providers termed active symptoms of psychosis after his release from Atascadero State Hospital—and are only one portion of the treatment records written by Plaintiff's healthcare providers throughout the administrative record. Plaintiff's Seroquel dosage was prescribed to him by a psychiatrist at Atascadero to control some of the most severe symptoms that he exhibited during his imprisonment, including isolative behavior, talking and laughing to himself, violent outbursts, and severe audiovisual hallucinations. (See Id. at 265-72.) These symptoms may very well have improved to the point of allowing Plaintiff to avoid further hospitalizations and discuss his illness with his healthcare providers, but are insufficient, in the Court's view, to demonstrate that Plaintiff could perform work-related tasks consistent with the ALJ's RFC determination.
For example, in a treatment note dated January 6, 2021 cited by the ALJ in support of his reasoning that Plaintiff had not experienced symptoms “in a while,” Plaintiff reported to Dr. Modad that the frequency of his audiovisual hallucinations had decreased, with the last time he experienced them being “less than a month” prior. (See id. at 23 (citing AR at 316).) In the same note, however, Dr. Modad recorded issues with Plaintiff's speech and attention span, including that Plaintiff was sometimes talking too fast during the phone conversation, and that he had “zoned out” while on the phone, which Dr. Modad noticed when he “called [Plaintiff's] name to clarify something and there was silence on the phone.” (Id. at 316.) This was not the first time that Plaintiff had reported an improvement in symptoms such as active hallucinations or hearing voices in his head, while his healthcare providers noted other symptoms of schizophrenia during their discussions with Plaintiff such as disorganized speech and affect, a blocking of Plaintiff's thought process, as well as a decrease in personal hygiene—termed “negative symptoms” in Plaintiff's treatment notes. (See, e.g., id. at 351 (reporting “[c]hronic negative [symptoms] of [schizophrenia], but no active delusions,” and noting a decrease in Plaintiff's hygiene); 336 (noting that Plaintiff was “at baseline for his [symptoms], which is mostly negative [symptoms] of schizophrenia. Can be disorganized and falls behind in hygiene.”). Indeed, the other two notes that the ALJ cited in referring to Plaintiff's improved symptoms were copied, either in whole or large part, from a note authored by Dr. Modad in February of 2020 that described Plaintiff's negative symptoms of schizophrenia, including “blocking and difficulty explaining his symptoms, as well as trouble concentrating and paying attention.” (AR at 27.) Although Plaintiff's Seroquel prescription may have improved some of the more severe symptoms of Plaintiff's psychosis, such as auditory and visual hallucinations, the ALJ appears to have selectively relied on these reports, while ignoring evidence in the record of other symptoms more directly related to Plaintiff's concentration and memory. See Jabbar M. v. Comm'r of Soc. Sec., Case No. 2:20-cv-01350-TLF, 2021 WL 4399110, at *4 (W.D. Wash. Sept. 27, 2021) (“the ALJ has selectively cited the record, which indicates that Plaintiff reported periods of stability and some improvement with medication, but also reveals that during the period at issue Plaintiff often exhibited hallucinations and other symptoms consistent with schizophrenia.”).
Although the ALJ was entitled to address improvements in Plaintiff's symptoms through medication or other treatment, it is unclear to the Court how the ALJ's citations to points in the record where Plaintiff experienced comparatively fewer auditory and visual hallucinations translate to Plaintiff's ability work consistent with the ALJ's RFC determination. See Charles H. v. Kijakazi, Case No. 3:21-cv-00167-SB, 2022 WL 2802219, at *9 (D. Or. July 8, 2022) (noting that an ALJ must provide reasoning that properly explains how an improvement of mental health symptoms demonstrates that a claimant can maintain gainful employment). Especially given that Plaintiff's healthcare providers noted issues with concentration, speech, and memory throughout the treatment records available within the administrative record, this was similarly not a clear and convincing reason to reject Plaintiff's subjective symptom testimony.
c. Inconsistencies with the objective medical evidence
The third reason provided for discounting Plaintiff's subjective symptom testimony was that the objective medical evidence within the record does not support Plaintiff's symptoms about his inability to focus on tasks and loss of memory function. (See AR at 23; J. Mot. at 13.) Out of the three reasons provided by the ALJ for rejecting Plaintiff's testimony, this reason was the most thoroughly developed. Because this is the only remaining reason for rejecting Plaintiff's subjective symptom testimony, however, this reason alone cannot sufficiently discredit Plaintiff's testimony. See, e.g., Matthew D. v. Kijakazi, Case No. 6:20-cv-1716-SI, 2022 WL 2802134, at *7 (D. Or. July 18, 2022) (citing 20 C.F.R. § 404.1529(c)(2)) (noting after discussing other errors that because the ALJ's only remaining reason for rejecting the plaintiff's subjective symptom testimony was that it was not fully corroborated by objective medical evidence in the record, the ALJ did not properly discredit the plaintiff's testimony); Daniel B. v. Comm'r, Soc. Sec. Admin., No. 3:19-cv-00033-HZ, 2020 WL 3605846, at *6 (D. Or. July 2020) (citing Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998)) (noting that inconsistencies with objective medical evidence cannot be the sole reason for discounting a claimant's testimony).
5. Conclusion
Although the ALJ presented three reasons for rejecting Plaintiff's subjective symptom testimony, neither the discussion of the improvements of Plaintiff's symptoms nor the discussion of Plaintiff's daily activities in comparison to his testimony about his problems with concentration and memory represent clear and convincing reasons to reject Plaintiff's subjective symptom testimony about his limitations. Because the comparison of symptom testimony and objective medical evidence in the record cannot form the sole basis for rejecting a claimant's testimony, the Court concludes that the ALJ erred in rejecting Plaintiff's testimony about his symptoms. Accordingly, as will be explained in further detail below, the Court RECOMMENDS that this case be remanded back to the Social Security Administration for further administrative proceedings on this basis.
B. The ALJ's RFC Determination
1. The parties' arguments
Plaintiff's next challenge to the ALJ's decision contends that the RFC determination does not adequately account for mental function limitations assessed by the ALJ at step three of the sequential evaluation process. (See J. Mot. at 20 (“the RFC does not seem to have a limitation squarely aligned with a moderate ability to maintain concentration, persistence or pace throughout a work day.”).) Acknowledging that the ALJ's RFC limited him to “simple, repetitive tasks with no public interaction and only occasional interaction with supervisors and co-workers,” Plaintiff argues that this restriction does not properly address the ALJ's step-three discussion about his moderate impairment in maintaining concentration, persistence, or pace. (See Id. at 19 (“The RFC limit to simple, repetitive tasks speaks more about mental ability, not . . . ability to focus.”).) Instead, Plaintiff posits that these impairments are more properly discussed through a limitation on Plaintiff's ability to focus during an eight-hour workday. (See Id. at 21 (“There can be no question that the amount of time someone is off-task is a more direct measurement of a person's ability to maintain concentration, persistence or pace [than] limiting them to simple repetitive tasks, which speaks more to their intellectual ability, not their focus.”).) Further noting that the VE testified through a hypothetical posited by Plaintiff's counsel during the administrative hearing that a person who is off- task ten percent or more of an eight-hour workday would not be able to maintain fulltime work during the hearing, Plaintiff contends that such a limitation is “very conservative” given the ALJ's findings at step three, and that ALJ's failure to account for these impairments in his ultimate RFC determination renders his decision unsupported by substantial evidence. (See Id. at 21 (citing AR at 55-56.).)
Defendant contends in response that “an ALJ need not make assumptions about a claimant's residual functional capacity finding based on findings made in previous steps.” (See id. at 21 (citing Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d at 1228-29).) Reasoning that Plaintiff's “off-task” hypothetical proposed to the VE during the hearing is unfounded and that he “offers no citation to legal authority to support it,” Defendant cites Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008), for the proposition that a hypothetical posed to the VE by the ALJ during the administrative hearing that deals with a claimant's ability to perform simple, routine tasks adequately “captures restrictions related to concentration, persistence, or pace.” (Id. at 22 (internal quotations omitted).) Noting that the state agency medical consultants determined that Plaintiff could implement simple instructions and perform one-or-two step tasks despite moderate limitations in his concentration, persistence, or pace—similar to those contemplated by the Ninth Circuit in Stubbs-Danielson—Defendant argues that ALJ's ultimate RFC determination was consistent with Plaintiff's restrictions identified throughout the medical testimony, and was accordingly supported by substantial evidence. (See Id. at 22.)
2. Analysis
The ALJ's analysis at step three of the sequential evaluation process included a finding that Plaintiff had a moderate limitation in concentrating, persisting, or maintaining pace. (See AR at 21.) During the formulation of Plaintiff's RFC later on in the decision, the ALJ discussed the opinions of state agency medical consultants H. Amado, M.D., and E. Penner, Ph.D., who also found that Plaintiff had a moderate impairment in his ability to concentrate, persist, or maintain pace. (See id. at 23.) The ALJ ultimately determined that Plaintiff has the RFC to “perform a full range of work at all exertional levels, but with the following nonexertional limitations: he is limited to non-public simple, routine tasks with only occasional contact with coworkers and supervisors.” (Id. at 22.) Finally, after noting that Plaintiff does not have any relevant past work within the meaning of the applicable regulations, the ALJ determined that Plaintiff could adjust to other work that exists in the national economy. (AR at 24.) In reaching this conclusion, the ALJ relied on the VE's testimony, which was based on a hypothetical posed by the ALJ that Plaintiff “was limited to nonpublic, simple, routine tasks . . . [and] only occasional contact with coworkers and supervisors.” (Id. at 51.) Additionally, during the administrative hearing, Plaintiff's counsel posed a hypothetical to the VE about whether a person with same restrictions as the ALJ's hypothetical would be able to sustain full time work if they were off-task more than 10 percent of an eight hour workday. (See id. at 55.) The VE responded that such a person would not be able to sustain full-time work. (See id. at 56.)
Neither the RFC in the ALJ's decision nor the hypothetical to the VE explicitly accounted for Plaintiff's limitations in concentration, persistence, or maintaining pace. Rather, the question posed by the parties' arguments is whether the limitation to “nonpublic, simple, routine tasks” adequately accounted for the limitations in concentration, persistence, and maintaining pace contemplated by the ALJ's reasoning at step three of the sequential evaluation process. Two decisions by the Ninth Circuit lead the discussion on this issue. The first is Stubbs-Danielson, 539 F.3d at 1169. There, a doctor assessed that the claimant was “moderately limited” in her ability “to perform at a consistent pace without an unreasonable number and length of rest periods,” and a state medical examiner determined that she could perform simple work without public contact. Id. at 1171-73 (internal quotations omitted). The ALJ then made an RFC determination that limited the claimant to “simple, routine, repetitive, sedentary work, requiring no interaction with the public.” Id. at 1173 (internal quotations omitted). The Ninth Circuit rejected the claimant's challenge to this RFC determination on the basis that it failed to capture the deficiencies in pace identified by the doctors in the administrative record. See Id. at 1175. Noting that the ALJ “translated [the claimant's] condition, including the pace and mental limitations, into the only concrete restrictions available to him—[the state medical examiner's] restriction to ‘simple tasks,'” the court concluded that the ALJ's RFC determination properly incorporated the limitations about the claimant's pace, concentration, and persistence by limiting the claimant to simple tasks. See id.
The second is Brink v. Comm'r Soc. Sec. Admin, 343 Fed.Appx. 211 (9th Cir. 2009) (unpublished). In that case, the ALJ used medical evidence showing that the claimant had “moderate difficulty maintaining concentration, persistence, or pace,” and limited him to “simple, repetitive, work” in formulating his RFC. Id. at 212 (internal quotations omitted). The Ninth Circuit concluded that this RFC finding did not adequately account for the claimant's moderate limitations in concentration, persistence, or pace. Id. Distinguishing Stubbs-Danielson in reaching this conclusion, the Ninth Circuit noted that the ALJ asked the VE during the administrative hearing a hypothetical regarding the claimant's moderate limitations in these areas:
That the ALJ did not equate “simple, repetitive work” with work requiring concentration, persistence, or pace, is evinced by his subsequent hypothetical question incorporating “moderate to marked attention and concentration deficits.” When the ALJ asked whether a claimant with moderate to marked attention and concentration deficits would be able to perform the simple, repetitive work described earlier, the vocational expert responded in the negative.
In Stubbs-Danielson v. Astrue, 539 F.3d 1169 (9th Cir. 2008), we held that an “assessment of a claimant adequately captures restrictions related to concentration, persistence, or pace where the assessment is consistent with the restrictions identified in the medical testimony.” Id. at 1174. The medical testimony in Stubbs-Danielson, however, did not establish any limitations in concentration, persistence, or pace. Here, in contrast, the medical evidence establishes, as the ALJ accepted, that Brink does have difficulties with concentration, persistence, or pace. Stubbs-Danielson, therefore, is inapposite.Id. at 212.
The distinction between Stubbs-Danielson and Brink has been discussed at length by district courts within the Ninth Circuit in the wake of both decisions. See, e.g., Jamie Allen W. v. O'Malley, Case No. 4:23-CV-00202-REP, 2024 WL 1465924, at *5 (D. Idaho Apr. 4, 2024) (citing the different tracks that district courts have taken to distinguish both cases); Valerie C. v. Berryhill, Case No. 5:17-cv-02209-GJS, 2019 WL 450675, at *3 (C.D. Cal. Feb. 5, 2019) (same). Some courts conclude, in line with Stubbs-Danielson, that moderate limitations in concentration, persistence, and pace are adequately accounted for by a “simple task” RFC determination when such an RFC determination is consistent with restrictions identified in the medical testimony. See, e.g., Knealy P. v. Kijakazi, Case No.: 20-cv-0984-AJB-BGS, 2022 WL 563237, at *25 (S.D. Cal. Feb. 24, 2022) (citing Stubbs-Danielson, 539 F.3d at 1173-74) (“Stubbs-Danielson . . . provides an example of medical testimony that is adequate to support RFC restrictions — an opinion that identifies the concentration persistence, and pace limitations and also provides the restrictions that are ultimately included in the hypothetical or RFC.”), report and recommendation adopted, 2022 WL 827119 (S.D. Cal. Mar. 18, 2022). In other words, if medical testimony within the administrative record concludes that the claimant can perform simple, routine work despite moderate limitations in concentration, persistence, and pace, then an RFC limiting the claimant to simple, repetitive work adequately captures those restrictions. See, e.g., Israel v. Astrue, 494 Fed.Appx. 794, 795 (9th Cir. 2012) (unpublished) (“Dr. Harrison ‘opined that the claimant could understand, remember, and complete simple and some familiar complex tasks,' . . . The ALJ, like the one in Stubbs-Danielson, adopted this concrete restriction and adequately took into account his step-3 findings about moderate limitations.”).
Another contingent of cases follows Brink, concluding that when an ALJ finds moderate limitations in maintaining concentration, persistence or pace, it is error to not include this limitation in the RFC determination or ask the VE a hypothetical question about such limitations during the hearing. See, e.g., Lubin v. Comm'r of Soc. Sec. Admin., 507 Fed.Appx. 709, 712 (9th Cir. 2013) (unpublished) (“Although the ALJ found that Lubin suffered moderate difficulties in maintaining concentration, persistence, or pace, the ALJ erred by not including this limitation in the [RFC].”); Fickardt v. Comm'r of Soc. Sec., No. 2:21-cv-00250-EFB (SS), 2022 WL 4367167, at *10 (E.D. Cal. Sept. 21, 2022) (“While the RFC's limitation to simple, routine, repetitive work and simple judgments could encompass plaintiff's moderate limitation in concentration, understanding, memory, and ability to apply information, it is silent on plaintiff's moderate limitation in persisting and maintaining pace.”). A Brink error can occur when there is no medical testimony supporting the ALJ's RFC restrictions in the record, see, e.g., Angela Monique B. v. Saul, Case No. 19-cv-0945-RBB, 2020 WL 2786870, at *11 (S.D. Cal. May 29, 2020) (“Unlike Stubbs-Danielson, however, there are no medical source opinions relied on by the ALJ that despite her slow pace, Plaintiff could perform ‘simple, routine, specific tasks.'”), or it can be more narrowly construed, such as when a simple tasks RFC limitation might not account for limitations particular to the claimant's situation. See Allen v. Saul, Case No. 5:18-cv-02223 (VEB), 2020 WL 11273044, at *5 (C.D. Cal. May 27, 2020) (concluding that there was insufficient evidentiary support for the ALJ's determination that the claimant could make simple work-related decisions during an eight hour workday after the ALJ presented additional restrictions on the pace of his work and time that he would be off-task in a hypothetical to the VE).
Regardless of which line of reasoning is ultimately the most persuasive, however,
In the Court's view, the Brink decision is of limited utility for multiple reasons. Most pertinently, it appears that the Brink court overlooked express language in Stubbs-Danielson that there was medical testimony discussing the claimant's limitations in concentration, persistence, and pace in the administrative record in that case. Compare Brink, 343 Fed.Appx. at 212 (“The medical testimony in Stubbs-Danielson, however, did not establish any limitations in concentration, persistence, or pace.”), with Stubbs-Danielson, 539 F.3d at 1171-73 (noting that a doctor assessed moderate limitations in the claimant's pace); see also Jamie Allen W., 2024 WL 1465924, at *5 n.2 (describing reasons for discounting the Ninth Circuit's decision in Brink).
The Court concludes that Stubbs-Danielson is directly applicable to the instant case, and that it is accordingly bound to follow that decision. As Defendant points out, the state agency medical consultants concluded that Plaintiff had moderate limitations in his ability to concentrate, persist, or maintain pace. (See J. Mot. at 22 (citing AR at 64, 80).) Despite these limitations, Dr. Amado determined that Plaintiff would be able to “implement simple instructions on a consistent basis,” (AR at 68), and Dr. Penner determined that Plaintiff would be able to perform “1-2 step tasks on a consistent, productive basis.” (Id. at 84.) Like in Stubbs-Danielson, these medical findings within the administrative record were consistent with the ALJ's RFC determination, which limited Plaintiff to “non-public, simple routine tasks.” (Id. at 22.); see also Knealy P., 2022 WL 563237, at *23-26 (concluding that an ALJ's RFC determination that the claimant could carry out simple instructions adequately captured doctors' limitations assessments in the record that the claimant could carry out simple instructions despite moderate limitations in the ability maintain concentration, persistence, and pace); Corwin v. Kijakazi, No. 1:20-cv-00394-GSA, 2021 WL 5771658, at *4 (E.D. Cal. Dec. 6, 2021) (“if Plaintiff can perform not only simple one to two step tasks but also simple and routine tasks, it is appropriate for the RFC to reflect only the latter.”). Accordingly, under Stubbs-Danielson, the ALJ's RFC determination adequately captured Plaintiff's moderate concentration, persistence, or pace limitations because the RFC determination here is “consistent with restrictions identified in the medical testimony.” Stubbs-Danielson, 539 F.3d at 1174.
Although Plaintiff does not cite any cases in contending that the RFC determination did not properly account for the ALJ's earlier finding of moderate limitations in concentration, persistence, and pace, Plaintiff's argument essentially amounts to a Brink-style assertion of error. (See J. Mot. at 19 (“The RFC limit to simple, repetitive tasks speaks more about mental ability, not pace or persistence, or ability to focus.”); 23-24 (“a hypothetical was presented to the VE containing a relatively low 10% off-task limitation, which is directly on-point to a limitation to ability to [c]onsistently maintain a work-pace.”).) By pointing to the VE's testimony in response to Plaintiff's counsel's hypothetical that a person with his RFC who is off-task more than 10% of the time would not be able to maintain work within the national economy (see AR at 55-56), Plaintiff urges the court to conclude that “if there is a moderate limitation to concentration, persistence, or pace and there is evidence in the record of an RFC limitation much more directly on point to the moderate limitation, then the ALJ opinion should state its reasoning for going against the obviously more on-point RFC limitation.” (J. Mot. at 25.) The problem with such reasoning, however, is that Plaintiff offers no evidence, in the record or elsewhere, that he would be off-task for more than ten percent of an eight-hour workday on account of a moderate limitation in his ability to concentrate, persist, or maintain pace. As another court has observed in the context of a non-social security administration form filled out by a medical examiner:
[The Social Security Administration's] definition of a “moderate” limitation in the context of a mental RFC is that the claimant's ability to function on a sustained basis in a particular area remains “fair” . . . By defining “moderate” as a percentage of the time a claimant is off-task in an eight-hour work day . . . the questionnaire form did not conform with the SSA standards and was at best ambiguous. As a clear indicator of the form's deficiencies, considering the VE's testimony that ‘if you're off task 11 to 15% for any reason, there would be no work” in the national economy . . . any finding on the questionnaire of a moderate limitation in any functional area would lead to a per se disability finding. Applying the proper standards under the Act, a moderate limitation is not necessarily equivalent to a finding of disability.Townsend v. Comm'r of Soc. Sec. Admin., No. CV-17-02386-PHX-JJT, 2019 WL 1306290, at *3 (D. Ariz. Mar. 22, 2019); see also Whyte v. Berryhill, Case No. CV 16-06158-RAO, 2018 WL 1472497, at *15 (C.D. Cal. Mar. 23, 2018) (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)) (“when a claimant's counsel poses a hypothetical that is more restrictive than the ALJ's hypothetical, the ALJ is free to accept or reject those restrictions based on the ALJ's evaluation of the evidence.”) (internal quotations omitted). Plaintiff's attempt to include limitations in the record that were not reflected by in the ALJ's RFC determination in a similar fashion to the ones the Ninth Circuit confronted in Brink, 343 Fed.Appx. at 212, is therefore unavailing. The Court accordingly concludes that the ALJ did not err in formulating Plaintiff's RFC by limiting him to simple, routine, tasks, and declines to disturb the ALJ's decision on this basis.
C. The Cleaner Occupation at Step Five
1. The parties' arguments
Plaintiff's third challenge to the ALJ's decision contends that the VE improperly mischaracterized one of the representative occupations that Plaintiff could perform in the national economy—night cleaner—during the administrative hearing in a way that made it “appear to be less demanding and dangerous than it [is].” (See J. Mot. at 25.) Noting that the correct title for the Dictionary of Occupations (“DOT”) code cited by the VE during the hearing is actually Industrial Cleaner, Plaintiff points out that the DOT description for that job “is considerably more [industrial]” in nature, requiring work around machinery and possible operation of industrial trucks. (Id. at 26 (citing DOT 381.687-108).) Plaintiff argues that this description varies significantly from the “image evoked by a ‘night cleaner' . . . someone who [empties] wastebins and does light vacuuming in an office building after the day time staff goes home,” and that the difference between the title used by the VE during the hearing and the actual requirements of that job is misleading. (Id.) The mischaracterization of the cleaner job— under Plaintiff's arguments—calls into question the remainder of the VE's testimony as to the number of representative occupations available to him in the national economy because it deprived the ALJ and Plaintiff's counsel of the opportunity to properly inquire about the use of that occupation in the ALJ's step five determination. (See id. at 26; 28.)
Defendant contends in response that Plaintiff's arguments fail to demonstrate how his lay interpretation of the cleaner occupation should be accepted over the VE's testimony during the hearing. (See id. at 27.) Citing Ford v. Saul, 950 F.3d 1141, 1160 (9th Cir. 2020), Defendant notes that ALJs may properly rely on a VE's opinions about the number of jobs available to a claimant during a hearing, and that a VE may incorporate knowledge from sources outside of the DOT when offering testimony about these occupations. (See Id. at 27-28.) As such, Defendant reasons that the ALJ properly relied on the VE's testimony during the hearing that Plaintiff could perform the Night Cleaner occupation. (See id.)
2. Applicable law
At step five of the sequential evaluation process, “the Commissioner has the burden ‘to identify specific jobs existing in substantial numbers in the national economy that [a] claimant can perform despite [his] identified limitations.'” Zavalin v. Colvin, 778 F.3d 842, 845 (9th Cir. 2015) (quoting Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995)). In determining if other suitable work exists that the claimant may be able to perform, the ALJ is to rely on the DOT, and may also rely on the testimony of VEs who testify about specific occupations that a claimant can perform in light of their RFC. See Id. at 845-46; Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009).
An ALJ is required to investigate any conflict between the VE's testimony and the DOT, whether or not the claimant raises the conflict. Shaibi v. Berryhill, 883 F.3d 1102, 1109 (9th Cir. 2017). The ALJ must ask whether there is any conflict between the VE's testimony and the DOT. Massachi v. Astrue, 486 F.3d 1149, 1153-1154 (9th Cir. 2007). SSR 004p requires the ALJ to first determine whether there is a conflict between the DOT and the vocational expert's testimony, and then “determine whether the VE's explanation for the conflict is reasonable and whether a basis exists for relying on the expert rather than the [DOT].” Id. at 1153. “[A]n ALJ may rely on expert testimony which contradicts the DOT, but only insofar as the record contains persuasive evidence to support the deviation.” Johnson, 60 F.3d at 1435. The ALJ's failure to ask about any potential conflict, however, does not automatically require remand, and is analyzed under the harmless error standard. See Massachi, 486 F.3d at 1154 n.19 (“This procedural error could have been harmless, were there no conflict, or if the vocational expert had provided sufficient support for her conclusion so as to justify any potential conflicts.”).
A conflict between the VE's testimony and the DOT exists when the VE's testimony is obviously or apparently contrary to the DOT's listing of job requirements that are “essential, integral, or expected.” Gutierrez v. Colvin, 844 F.3d 804, 808 (9th Cir. 2016). A conflict is “obvious or apparent” when the VE's testimony is at odds with “essential, integral, or expected” requirements of the occupation identified by the VE. Id.; see also Lamear v. Berryhill, 865 F.3d 1201, 1205 (9th Cir. 2017). The VE's testimony does not conflict with the DOT if the “frequency or necessity of a task is unlikely and foreseeable.” Gutierrez, 844 F.3d at 808. If a conflict exists, the ALJ does not automatically give the DOT or the VE's testimony higher preference. Massachi, 486 F.3d at 1153. Instead, the ALJ must ask follow-up questions to determine whether the VE's explanation for the conflict is reasonable and whether a basis exists for relying on the expert rather than the DOT. “The requirement for an ALJ to ask follow-up questions is fact-dependent.” Guttierez, 844 F.3d at 808. “To avoid unnecessary appeals, an ALJ should ordinarily ask the VE to explain in some detail why there is no conflict between the DOT and the applicant's RFC.” Lamear, 865 F.3d at 1205.
3. Analysis
The ALJ found that Plaintiff has an RFC that limits him to “non-public simple, routine tasks with only occasional contact with coworkers and supervisors. (AR at 22.) Additionally, the ALJ found that Plaintiff did not have any past relevant work. (See id. at 24.) During the administrative hearing, the ALJ asked the VE to consider a hypothetical individual of Plaintiff's age, education, and work experience, who is limited to “nonpublic, simple, routine tasks, but only occasional contact with coworkers and supervisors.” (Id. at 51.) The VE testified that such an individual could perform the work of a night cleaner (DOT 381.687-018) (the mislabeled job title at issue in this section), a floor waxer, (DOT 381.687-034), and a merchandise marker (DOT 209.587034). (Id. at 51-52.) Furthermore, the ALJ asked whether the VE's testimony was consistent with the DOT during the hearing, and the VE responded in the affirmative. (See id. at 52.) Relying on the VE's testimony regarding the availability of work in significant number that corresponded with Plaintiff's RFC, the ALJ determined that Plaintiff would be able to perform the duties of those three positions. (Id. at 24.) The ALJ stated in the written decision that he had “determined that the [VE's] testimony is consistent with the information contained in the [DOT].” (Id.)
The DOT provides that the duties of a night cleaner, the job title that Plaintiff contends the VE cited instead of an industrial cleaner to make it “appear to be less demanding and dangerous than it was,” are as follows:
Performs any combination of following duties to maintain hotel premises in clean and orderly manner: Moves and arranges furniture. Turns mattresses. Hangs draperies. Dusts venetian blinds. Polishes metalwork. Prepares sample rooms for sales meetings. Arranges decorations, apparatus, or furniture for banquets and social functions. Collects soiled linens for laundering, and receives and stores linen supplies in linen closet. Performs other duties as described under CLEANER (any industry) I Master Title. May deliver television sets, ironing boards, baby cribs, and rollaway beds to guests rooms. May clean swimming pool with vacuum. May clean and remove debris from driveway and garage areas. May be designated according to specialization as Curtain Cleaner (hotel & rest.); Housecleaner, Floor (hotel & rest.); Linen-Room Worker (hotel & rest.); Porter, Lobby (hotel & rest.); Vacuum Worker (hotel & rest.).DOT 323.687-018, 1991 WL 672784. Additionally, the duties of an industrial cleaner are as follows:
Keeps working areas in production departments of industrial establishment in clean and orderly condition, performing any combination of following duties: Transports raw materials and semifinished products or supplies between departments or buildings to supply machine tenders or operators with materials for processing, using handtruck. Arranges boxes, material, and handtrucks or other industrial equipment in neat and orderly manner. Cleans lint, dust, oil, and grease from machines, overhead pipes, and conveyors, using brushes, airhoses, or steam cleaner. Cleans screens and filters. Scrubs processing tanks and vats. Cleans floors, using water hose, and applies floor drier. Picks up reusable scrap for salvage and stores in containers.
Performs other duties as described under CLEANER (any industry) I Master Title. May burn waste and clean incinerator. May pick up refuse from plant grounds and maintain area by cutting grass or shoveling snow. May operate industrial truck to transport materials within plant. May start pumps to force cleaning solution through production machinery, piping, or vats. May start pumps to lubricate machines. May be designated according to area cleaned as Alley Cleaner (textile); Can-Filling-Room Sweeper (beverage); Casting-And-Locker-Room Servicer (plastic-synth.); Ceiling Cleaner (any industry); Engine-Room Cleaner (any industry); Floor Cleaner (any industry); Overhead Cleaner (any industry).DOT 381.687-018, 1991 WL 673258.
For the purposes of comparison, the duties of cleaner, commercial or institutional (any industry) are as follows:
Keeps premises of office building, apartment house, or other commercial or institutional building in clean and orderly condition: Cleans and polishes lighting fixtures, marble surfaces, and trim, and performs duties described in CLEANER (any industry) I Master Title. May cut and trim grass, and shovel snow, using power equipment or handtools. May deliver messages. May transport small equipment or tools between departments. May setup tables and chairs in auditorium or hall. May be designated according to duties performed as Hall Cleaner (hotel & rest.); Light-Fixture Cleaner (any industry); Marble Cleaner (any industry); Metal Polisher (any industry); Paint Cleaner (any industry); or according to equipment used as ScrubbingMachine Operator (any industry).DOT 381.687-014, 1991 WL 673257.
Plaintiff contends that the VE's citation to the night cleaner occupation while providing the code for the industrial cleaner occupation to the ALJ during the administrative hearing was misleading for a number of reasons. Specifically Plaintiff notes that the industrial cleaner position's duties: (1) contains no description of whether the job is done “during the day or night,” (J. Mot. at 26), and (2) are of a significantly more “industrial” nature which involves working around machinery, transporting raw materials, scrubbing vats and tanks, and “possibly operating industrial trucks.” (Id.) Without this information being presented to the ALJ during the industrial hearing, the ALJ contends that the VE “made it more difficult for the ALJ or Plaintiff's counsel to inquire whether a person with severe schizophrenia would be capable of working in a potentially hazardous industrial work-place setting, or perform jobs requiring driving specialized industrial trucks.” (Id.)
These arguments, however, fall short of identifying an obvious or apparent conflict between the VE's testimony and the DOT. Apart from his contention that the industrial cleaner occupation is significantly more “‘industrial' in nature” than that of the night cleaner occupation and may require the operation of an industrial truck—which he argues conflicts with his schizophrenia diagnosis—Plaintiff cites no differences between the VE's testimony and the requirements of the industrial cleaner occupation's description. (See generally J. Mot at 25-27, 28-29.) Both the night cleaner and industrial cleaner job descriptions require the same level of reasoning (level 2) in their DOT descriptions, and do not appear to have any meaningful difference in relation to the other limitations assessed by the ALJ's RFC determination. (See DOT 323.687-018, 1991 WL 672784; DOT 381.687-018, 1991 WL 673258.) Further, the Court cannot rely on common experience to find any potential differences between the night cleaner position and the industrial cleaner position that could conflict with the VE's testimony. While the duties of both a night cleaner and industrial cleaner are generally known to the public, the complexity of the tasks involved in each job, along with the amount of contact that each one might have with coworkers and supervisors—the limitations assessed by the ALJ's RFC determination and testified to by the VE—are not so commonly known as to demonstrate an obvious or apparent conflict between the VE's testimony and the DOT description for the industrial cleaner job. See Theodore M. v. Saul, Case No. CV 20-4382-JPR, 2021 WL 2646906, at *5 (C.D. Cal. June 28, 2021) (noting that although the average person may have received a call from a telemarketer, few people have seen a telemarketer working through the day to determine whether such a position constantly, rather than frequently, interacts with the public). When compared with the requirements of the night cleaner position, Plaintiff's arguments fall short of identifying an obvious or apparent conflict between the VE's testimony and the DOT description for the industrial cleaner position.
Apart from the Court's finding that an obvious or apparent conflict does not exist related to the industrial cleaner position, it is unclear to the Court how such a conflict could somehow “call into question the remainder of the expert's testimony as to jobs available and number of them in the relevant market.” (J. Mot. at 26:22-25.) Plaintiff cites no authority for such a proposition and the Court declines to address it.
Even if the Court assumes that the ALJ erred by failing to conduct a further inquiry to resolve any apparent conflict between the VE's testimony and the industrial cleaner position, however, any such error would be harmless. The ALJ only needed to identify one occupation that exists in significant numbers in the national economy to satisfy the Social Security Administration's burden at step five. See Wolfe v. Astrue, No. 09-CV-922-BR, 2010 WL 3222109, at *7 (D. Or. Aug. 13, 2010) (citing 20 C.F.R. § 416.920(a)(4)(v)). While there is no bright line number to reference in determining whether the representative jobs exist in “significant numbers,” other courts have found substantial evidence at step five based on job numbers well below 100,000. See Gutierrez, 740 F.3d at 529 (finding 25,000 jobs nationally to be a significant number); see also Garner v. Saul, 805 Fed.Appx. 455, 459 (9th Cir. 2020) (finding 30,000 jobs of one occupation nationally to meet the statutory standard). Accordingly, the Court finds that the existence of 118,000 floor waxer positions and 129,000 merchandise marker positions (see AR at 24) illustrates that representative jobs exists in significant numbers, even without taking the industrial cleaner position into account. The ALJ therefore did not err in relying on the VE's testimony about the industrial cleaner occupation during the hearing.
D. The Merchandise Marker Occupation at Step Five
1. The parties' arguments
Plaintiff's final challenge to the ALJ's decision argues that the VE's testimony related to the Merchandise Marker position was based on a DOT description that is “badly out of date,” and does not properly account for the use of computers to tag and inventory merchandise in a modern retail or wholesale environment. (See Id. at 30.) Noting that the DOT description for the Merchandise Marker position (DOT 209.587034) requires manually generating and affixing price tags to retail items, Plaintiff contends that “few if any consumer stores use price stickers on goods anymore because the computer revolution moved all price scanning to barcodes,” and that common sense demonstrates that there are not 129,000 merchandise marker jobs in the national economy as the VE testified to during the hearing. (Id. at 31.) Although Plaintiff concedes that VE testimony is entitled to some deference, he cites recent circuit court opinions that acknowledge problems with the outdated nature of the DOT in arguing that a VE's reference to representative occupations may nevertheless be properly questioned when it is obviously unsupported by substantial evidence. (See id. at 30 (citing White v. Kijakazi, 44 F.4th 828, 835 (9th Cir. 2022).)
Acknowledging that Plaintiff may disagree with the VE's testimony, Defendant argues in response that his lay interpretation of the marker position is insufficient to undermine her expert opinion. (See id.) Again citing Ford, Defendant argues that an ALJ may, in most cases, properly rely on the VE's testimony during the hearing, and need not inquire sua sponte into the foundation or reasoning behind the VE's opinion. (See id. (citing 950 F.3d at 1160).) Without additional reasoning to support Plaintiff's contentions, Plaintiff's lay opinion of the number of jobs available for the merchandise marker position—as Defendant puts it—is insufficient to overturn the ALJ's ultimate step five determination. (See id. at 32.)
2. Analysis
The duties of a merchandise marker are as follows under the DOT:
Marks and attaches price tickets to articles of merchandise to record price and identifying information: Marks selling price by hand on boxes containing merchandise, or on price tickets. Ties, glues, sews, or staples price ticket to each article. Presses lever or plunger of mechanism that pins, pastes, ties, or staples ticket
to article. May record number and types of articles marked and pack them in boxes. May compare printed price tickets with entries on purchase order to verify accuracy and notify supervisor of discrepancies. May print information on tickets, using ticket-printing machine [TICKETER (any industry); TICKET PRINTER AND TAGGER (garment)]DOT 209.587-034, 1991 WL 671802. As Plaintiff points out, “few consumer stores use price stickers on goods anymore because the computer revolution moved all price scanning to bar codes which come already printed on all the boxes, bags, or other product wrapping in almost every store in the country.” (J. Mot. at 31.) Such arguments are understandable, and the Court has its doubts that such an out-of-date job description constitutes substantial evidence to support the ALJ's step five finding with respect to that job. See, e.g., Venkaiya v. Comm'r of Soc. Sec., No. 2:22-cv-2189-MCE-KJN, 2023 WL 6929575, at *8 n.3 (E.D. Cal. Oct. 18, 2023) (citing Browning v. Colvin, 766 F.3d 702 (7th Cir. 2014)) (“as plaintiff notes, the ‘document preparer' job description appears woefully out of date and so should not constitute substantial evidence.”).
As noted in Section V.C, supra, however, any error in the ALJ's decision with regard to the merchandise marker position is harmless. The ALJ only needed to identify one occupation that exists in significant numbers within the national economy to satisfy the Social Security Administration's burden at step five. Even without taking into account the night cleaner and merchandise marker occupations, with 17,000 and 129,000 jobs in national economy respectively, the existence of 118,000 floor waxer jobs in the national economy, which Plaintiff does not challenge in any meaningful fashion, illustrates that the representative job exists in significant numbers. Cf. Garner, 805 Fed.Appx. at 49 (30,000 jobs of one occupation nationally sufficient to meet the statutory standard). Accordingly, even though the ALJ could have erred by relying on the VE's testimony that Plaintiff could perform the merchandise marker position, any such error was harmless. The Court accordingly declines to disturb the ALJ's decision on this basis.
VI. REMAND
A reviewing court has discretion to remand an action for further proceedings or for a finding of disability and an award of benefits. See, e.g., Stone v. Heckler, 761 F.2d 530, 533 (9th Cir. 1985) (decision of whether to remand for further proceedings or for immediate payment of benefits is within the discretion of the reviewing court). Whether an action is remanded for further proceedings or for an award of benefits depends on the likely utility of additional proceedings. Harman v. Apfel, 211 F.3d 1172, 1179 (9th Cir. 2000). In determining whether an award of benefits is warranted, the Court conducts the “three-part credit-as-true” analysis. Garrison, 759 F.3d at 1020. Under this analysis the Court considers whether: (1) the ALJ has failed to provide legally sufficient reasons for rejecting evidence; (2) the record has been fully developed and further proceedings would serve no useful purpose; and (3) if the improperly discredited evidence is credited as true, the ALJ would be required to find the claimant is disabled on remand. See Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015).
Even if all the requisites are met, however, a court may still remand for further proceedings “when the record as a whole creates serious doubt as to whether the claimant is, in fact, disabled[.]” Garrison, 759 F.3d at 1021. “Serious doubt” can arise when there are “inconsistencies between [the claimant's] testimony and the medical evidence,” or if the Commissioner “has pointed to evidence in the record the ALJ overlooked and explained how that evidence casts into serious doubt” whether the claimant is disabled under the Act. Dominguez, 808 F.3d at 407 (quoting Burrell v. Colvin, 775 F.3d 1133, 1141 (9th Cir. 2014) (internal quotations omitted)). The first requirement is met here based on the ALJ's harmful legal errors. As discussed above, the ALJ failed to provide legally sufficient reasons for rejecting Plaintiff's subjective symptom testimony.
As for the second requirement, the Ninth Circuit has held that remanding for further proceedings rather than an immediate payment of benefits serves a useful purpose where “the record has [not] been fully developed [and] there is a need to resolve conflicts and ambiguities.” Treichler v. Comm'r Soc. Sec. Admin., 775 F.3d 1090, 1101 (9th Cir. 2014) (internal quotations and citations omitted). “When the ALJ denies benefits and the court finds error, the court ordinarily must remand to the agency for further proceedings before directing an award of benefits.” Leon v. Berryhill, 880 F.3d 1041, 1045 (9th Cir. 2018) (citing Id. at 1099). “The decision whether to remand a case for additional evidence, or simply to award benefits[,] is within the discretion of the court.” Trevizo v. Berryhill, 871 F.3d 664, 682 (9th Cir. 2017) (quoting Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987)). The court concludes that the record is sufficiently ambiguous, making remand for an immediate payment of benefits inappropriate here. The ALJ's failure to properly discount Plaintiff's subjective symptom testimony deprived the Court of the ability to determine whether his decision was supported by clear and convincing reasons as required by the Ninth Circuit. See Section V.A., supra. Accordingly, this case should be remanded for further administrative proceedings to allow for proper consideration of the evidence of record and to conduct any further necessary proceedings.
The Court concludes that the “rare circumstances that result in a direct award of benefits are not present in this case.” Leon, 880 F.3d at 1047. Where—as happened here—the ALJ fails to properly discount a claimant's subjective symptom testimony, further administrative proceedings could remedy the ALJ's error, and remand is appropriate. See, e.g., Oudree E-S. v. O'Malley, Case No.: 23-cv-1655-W-KSC, 2024 WL 3458411, at *3-4 (S.D. Cal. July 18, 2024) (concluding that further administrative proceedings were appropriate when the ALJ failed to properly discount the claimant's subjective symptom testimony).
VII. CONCLUSION & RECOMMENDATION
For the reasons set forth above, the Court RECOMMENDS that the Commissioner's decision be REVERSED and this matter be REMANDED for further administrative proceedings consistent with this Report and Recommendation.
Additionally, IT IS ORDERED that no later than August 9, 2024, any party to this action may file written objections with the Court and serve a copy on all parties. The document shall 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 16, 2024 . The parties are advised that failure to file objections within the specified time may waive the right to raise these 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.