McKenzie v. Kijakazi

Full title: Ashlynne D. McKenzie, Plaintiff, v. Kilolo Kijakazi, Acting Commissioner…

Court: United States District Court, District of Arizona

Date published: Mar 29, 2023

CV-21-00556-TUC-JAS (EJM) (D. Ariz. Mar. 29, 2023)

Opinion

CV-21-00556-TUC-JAS (EJM)

03-29-2023

Ashlynne D. McKenzie, Plaintiff, v. Kilolo Kijakazi, Acting Commissioner of Social Security, Defendant.

Eric J. Markovich, United States Magistrate Judge.

REPORT AND RECOMMENDATION

Eric J. Markovich, United States Magistrate Judge.

Currently pending before the Court is Plaintiff Ashlynne D. McKenzie's Opening Brief (Doc. 17). Defendant filed her Answering Brief (“Response”) (Doc. 18), and Plaintiff replied (Doc. 19). Plaintiff brings this cause of action for review of the final decision of the Commissioner for Social Security pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). Compl. (Doc. 1).

Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure,¹ this matter was referred to Magistrate Judge Markovich for Report and Recommendation. Based upon the pleadings of the parties and the administrative record submitted to the Court, the Magistrate Judge recommends that the District Judge grant Plaintiff's Opening Brief (Doc. 17).

1 Rules of Practice of the United States District Court for the District of Arizona.

I. BACKGROUND

A. Procedural History

On June 28, 2019, Plaintiff protectively filed a Title II application for Social Security Disability Insurance Benefits (“DIB”), as well as a Title XVI application for Supplemental Security Income (“SSI”) alleging disability as of November 15, 2018, due to bipolar with mixed features, post-traumatic stress disorder (“PTSD”), personality disorder, neck issues-limited mobility, memory issues, depression, and anxiety. See Administrative Record (“AR”) at 25, 27-28, 53, 56-59, 68, 70, 72-73, 87-88, 102, 104, 106, 123-24, 209-10, 214, 248, 287, 292, 297. The Social Security Administration (“SSA”) denied this application on October 10, 2019. Id. at 25, 68-101, 140-47. On October 23, 2019, Plaintiff filed a request for reconsideration. Id. at 151. On February 13, 2020, SSA denied Plaintiff's application upon reconsideration. Id. at 25, 102-39, 153-61. On March 15, 2020, Plaintiff filed her request for hearing. Id. at 25, 162-63. On November 3, 2020, a telephonic hearing was held before Administrative Law Judge (“ALJ”) Yasmin Elias. AR at 25, 44-67. On January 19, 2021, the ALJ issued an unfavorable decision. Id. at 22-39. On March 19, 2021, Plaintiff requested review of the ALJ's decision by the Appeals Council, and on November 4, 2021, review was denied. Id. at 1-6, 207-208. On December 30, 2021, Plaintiff filed this cause of action. Compl. (Doc. 1).

B. Factual History

Plaintiff was thirty (30) years old at the time of the alleged onset of her disability and thirty-two (32) years old at the time of the administrative hearing. AR at 25, 27, 37, 48, 68, 70, 72-73, 87-88, 102, 104, 106-107, 123-24, 201, 210, 214, 248, 287, 297. Plaintiff is a high school graduate with two (2) years of college. Id. at 37, 68, 70, 102, 104, 254. Prior to her alleged disability, Plaintiff worked as a certified surgical technologist, certified nursing assistant, and a customer service representative in various retail and restaurant settings. Id. at 36, 51-52, 54, 61-63, 236-47, 255, 311.

1. Plaintiff's Testimony

a. Administrative Hearing

At the administrative hearing, Plaintiff testified that it was her understanding she was no longer working at Paws. AR at 51. Plaintiff explained that she had received a one-year review, and it said that they would be letting her go. Id. Plaintiff indicated that the review noted that she was having a lot of personal issues outside of work, which were causing her to miss work or preventing her from performing her work duties. Id. at 52. Plaintiff was also informed that due to COVID and resulting slowdown in business, Paws was reevaluating, and she was no longer a good fit for the establishment. Id. Plaintiff further testified that the following week, she missed her shift due to a panic attack. Id. at 51. Plaintiff observed that she had not heard from them regarding the schedule, so she assumed that she was no longer employed. AR at 51. Plaintiff explained that while at Paws, they were asking her to work more than seven (7) hours per week, estimating they wanted her to work between ten (10) and twelve (12); however, she was unable to because she would end up either calling in or having a panic attack while at work and another employee would have to finish her shift. Id. at 51-52. Plaintiff testified that while at work, she generally kept to herself, because she did not do well with talking with other coworkers. Id. at 53.

Addressing what was affecting her work, Plaintiff described panic attacks which make her isolate. Id. Plaintiff explained that she would put the dogs in a safe location, run into the bathroom, sit on the floor, and cry. Id. Plaintiff also acknowledged that she would self-harm at times. AR at 53. Plaintiff testified that her employers would find her in the bathroom instead of caring for the dogs. Id. Plaintiff could not give an estimate of how many times this occurred, but indicated that there were multiple days where her one shift per week was cut short. Id. at 53-54.

Plaintiff testified that she had previously worked at a hospital as a surgical technologist. Id. at 54. Plaintiff estimated that she stopped working there in April of 2018, explaining that she had been out of work on a medical leave of absence and was never cleared by her doctor, which resulted in termination. Id. Plaintiff confirmed that she had a Cesarean section in September of 2018, but did not get clearance from her doctor to return to work. AR at 54-55. Plaintiff described that after she had the baby, she suffered postpartum depression, became homeless, and experienced domestic violence. Id. at 55.

Plaintiff confirmed that there was a DCS investigation, but that she retained custody; however, all three (3) children currently live with the father of her two (2) eldest. Id. Plaintiff also confirmed that she has a history of methamphetamine and cocaine use; however, she clarified that these occurred in the distant past-at least prior to her last pregnancy, during a period of instability where she wasn't on her medication. Id. at 5556. Plaintiff denied current marijuana use, but indicated that she is in the process of getting her medical marijuana card again. Id. at 56. Plaintiff testified that money was the primary obstacle to obtaining a new medical marijuana card. AR at 56. Plaintiff further testified that she had not used any marijuana in the last sixty (60) days. Id. Plaintiff described that during this time she had also been coming off her Invega injections, so her anxiety was severe. Id. Plaintiff explained that she has a lot of isolation issues, ineffective coping skills, is prone to self-harm, and is more co-dependent on care for the house. Id. Plaintiff further described that it will take her a whole day to do a single load of laundry or dishes, if she can finish them at all. Id. Additionally, she reported that she suffers increased PTSD symptoms, is more paranoid, and unable to leave the house. AR at 56-57. Plaintiff noted that she has more bad days than just her typical bad days. Id. Plaintiff testified that she believed her increased symptoms were a combination of stopping Invega, as well as not using marijuana. Id. at 57.

Plaintiff explained that she stopped taking Invega because it was causing her hair to fall out in handfuls. Id. Plaintiff described her difficulty in convincing her providers to listen; however, eventually they stopped the Invega, and her hair loss stopped. Id. at 5758. Plaintiff testified that she had stopped treatment altogether a couple of months prior, because when her anxiety is high, she can't go to the doctor. AR at 58. Plaintiff expressed a desire to be stable, to see improvement in her anxiety and panic attacks, and a reduction in harmful behavior. Id. Plaintiff further acknowledged that attending her appointments was a path toward that end. Id. Plaintiff confirmed that her treatment progress has been cyclical, explaining that she feels good taking her medication, followed by periods where she stops taking it and bottoming out. Id. at 58-59. Plaintiff compared herself to a rollercoaster. Id. at 59.

Plaintiff testified that she spends her days at her children's father's home, “trying to provide the best care that I can there.” AR at 59. From there, Plaintiff tries to figure out where to spend the night, which may be a shelter, on the street, or at a friend's house. Id. at 59-60.

Plaintiff also clarified her work history. Id. at 61-62. Plaintiff explained that she was a hostess at the restaurant for a couple of months after graduating high school. Id. From there, she worked at the mall, at Wal-Mart and back at the restaurant, but did not stay at any one for longer than six (6) months. Id.

b. Administrative Forms

i. Work History Report

Plaintiff completed an undated Work History Report. AR at 236-47. Plaintiff listed her work as a certified surgical technologist, certified nursing assistant, and customer service representative in restaurants, retail, and call centers. Id. at 236. Plaintiff described the position of certified surgical technologist as full-time-twelve (12) hours per day, three (3) days per week. Id. at 237. Plaintiff reported earning $21.44 per hour, without any further information regarding this position. Id. Plaintiff described the position of certified nursing assistant as full-time-eight (8) hours per day, five (5) days per week. Id. at 238. Plaintiff reported earning $12.00 per hour, without any further information regarding this position. AR at 238. The first customer service job, Plaintiff described as part-time-five (5) hours per day, five (5) days per week. Id. at 239. Plaintiff reported earning $7.10 per hour, without any further information regarding this position. Id. Plaintiff described her second customer service job as full-time-eight (8) hours per day, five (5) days per week. Id. at 240. Plaintiff reported earning $7.00 per hour in this position, but did not provide any further details. Id. The third customer service job, Plaintiff described as part-time- six (6) hours per day, five (5) days per week. AR at 241. Plaintiff reported earning $7.00 per hour, without any further details. Id. Plaintiff described the fourth customer service job as full-time-eight (8) hours per day, five (5) days per week. Id. at 242. Plaintiff reported earning $7.00 per hour, but did not provide any further information. Id. ii. Function Report-Adult

On August 19, 2019, Plaintiff completed a Function Report-Adult. AR at 270-78 Plaintiff reported that she lived at a shelter, alone. Id. at 270. Plaintiff outlined the limitations of her medical conditions as follows:

My diagnosis limits my ability to deal with co-workers or clients/patients. The mood stabilization medications also make it dangerous to preform [sic] daily work activities such as medication drugs and anticipating surgeons [sic] needs, lessening my efficiency[.]

Id. Plaintiff described her usual day to include going to her children's home to help with getting them ready for school, going to her process and therapy groups, and running errands if needed. Id. at 271. Plaintiff reported that she cared for her children, but no pets or other animals. Id. Plaintiff indicated that the children's father helped her and provided all necessary care. AR at 271. Plaintiff noted that prior to the onset of her illness, she was able to live a productive life including working and managing a home. Id.

Plaintiff reported that she suffers nightmares and flashbacks which affect her sleep. Id. Plaintiff indicated that she has trouble with personal care, often because she has no interest. Id. at 272. Plaintiff explained that she only gets dressed to go out of the house and has no interest; does not remember to shower, sometimes only showering once per week; tends to ignore her hair because her medicine makes it fall out; she has no interest in shaving; and forgets to eat most days because she has no appetite. Id. Plaintiff reported that she writes notes, sets alarms, and asks for reminders regarding personal care, as well as for taking medication. AR at 272. Plaintiff indicated that she prepares premade meals for herself when she remembers. Id. Plaintiff noted that she has no interest in cooking or meals, and that she forgets to eat most days. Id.

Plaintiff explained that she does laundry, but because she lives in a shelter cleaning is difficult and there is no yardwork. Id. at 273. Plaintiff noted that she needs verbal or written reminders to take care of chores. Id. Plaintiff reported that she goes out daily, although her anxiety and depression make this extremely hard. AR at 273. Plaintiff indicated that she is able to go out alone, and walks or uses public transportation, but suffers severe anxiety. Id. Plaintiff further reported that she does not drive because of severe anxiety and issues with her license. Id. Plaintiff confirmed that she shops in store, but only for needed items, because it gives her severe anxiety. Id. Plaintiff estimated that shopping takes her an hour or more. Id. Plaintiff confirmed that she is able to pay bills, count change, and use a checkbook/money order, but is unable to handle a savings account. AR at 274. Plaintiff explained that she has a hard time handling finances, and since the onset of her illness it is hard to budget and make sound decisions. Id. Plaintiff listed her hobbies and interests to include watching television and listening to music. Id. Plaintiff noted that music is therapeutic for her, although some can be emotionally triggering and causes flashbacks. Id. Plaintiff reported that she does not spend time with others. Id. Plaintiff noted that she does attend therapy groups, but misses many sessions due to depression. AR at 274. Plaintiff indicated that she needs reminders, as well as someone to accompany her. Id. Plaintiff described her social life as having completely ended, because her anxiety and depression restrict her social efforts and she cannot get along with others. Id. at 275. Plaintiff explained that others do not understand or tolerate her illnesses. Id.

Plaintiff indicated that her illnesses affect her ability to remember, complete tasks, concentrate, understand, follow instructions, and get along with others. Id. Plaintiff explained that her unstable moods impact her ability to concentrate and get along with others. AR at 275. Plaintiff reported that she is right handed and can walk one half-mile before needing to rest for five (5) minutes. Id. Plaintiff noted that her ability to pay attention is dependent on her mood, and she does not finish what she starts. Id. Plaintiff indicated that she is able to follow written instructions if she is given multiple times to read it, and can follow spoken instructions if they are repeated. Id. Plaintiff acknowledged that she does not get along with authority figures. Plaintiff reported that she has been fired or laid off from work because of problems getting along with people, which she described as “multiple personality differences.” Id. at 276. Plaintiff gave Toys R Us as an example of such an employer. AR at 276. Plaintiff admitted that she does not handle stress or changes in routine well. Id. Plaintiff reiterated that “people never understand what [she is] going through[,]” noting that this leads to self-harm and suicidal thoughts. Id.

2. Plaintiff's Medical Records

a. Treatment records ²

2 Although the Court has reviewed the entirety of Plaintiff's medical records, its summary is generally limited to records regarding Plaintiff's mental health treatment.

On April 6, 2017, Plaintiff presented to the Tucson Medical Center Emergency Department reporting that she was “crazy.” AR at 326, 328. Plaintiff confirmed that she was suicidal and reported that “it is just too much I am tired of being[.]” Id. Plaintiff reported that she did not have a provider and was not taking any medication. Id. Plaintiff further reported that in 2010, she had gone to COPE, and they had given her Seroquel, but she felt like a zombie, so she stopped taking it. Id. Treatment records reflect that Plaintiff further explained that Seroquel “prohibited her from going to school, getting up in the morning, and taking care of herself[,]” which prompted her to stop taking it. Id. at 334. Treatment records also indicate that Plaintiff was tearful, but cooperative. AR at 326, 328, 337. Plaintiff was observed to have “minor lacerations to inner bilateral forearms[,] [n]o bleeding.” Id. at 328, 337. Plaintiff reported being “unable to work a few weeks now because of her depression and [suicidal ideation].” Id. Plaintiff indicated that her plan was “to hang herself or walk into traffic[,]” stating that she wanted “to just die and not be here any more.” Id. Treatment records indicate that Plaintiff had a history of cutting. Id. Plaintiff was assessed with a moderate overall suicide risk with a plan. AR at 330. Plaintiff indicated that she takes ibuprofen and Tylenol for her migraines, and self-medicates with cannabis to help with her depression, but it is no longer working. Id. at 334, 337.

On May 23, 2017, Plaintiff was seen at El Rio Community Health Center to establish care and for her anxiety and depression. Id. at 710-714. Plaintiff reported functioning was very difficult. Id. at 710. Treatment records indicated that Plaintiff “presented] with depressed mood, difficulty falling asleep and loss of appetite but denie[d] difficulty concentrating, diminished interest or pleasure, feelings of guilt, restlessness or thoughts of death or suicide.” Id. Records further indicated Plaintiff showed anhedonia and hopelessness. AR at 713. Plaintiff acknowledged that she recently started on medication through CODAC, which were helping somewhat; however, Plaintiff expressed frustration that she feels that no matter what she does, nothing helps her symptoms. Id. Valium was prescribed for Plaintiff's anxiety. Id. at 713-14.

On October 11, 2018, Plaintiff saw Anna Maldonado, BS BHT at CODAC, “seeking services with medication management and therapy[,]” as well as “help with attaining resources to help her keep her current apartment since she is having trouble paying rent.” Id. at 408, 413, 532. Plaintiff had her one (1) month old baby with her. Id. Ms. Maldonado scored each of Plaintiff's symptoms as seven (7) out of seven (7), including symptoms of mania: talkative or pressured speech, racing thoughts, flight of ideas, distractibility, psychotic symptoms, excessive pleasurable activities with painful consequences, psychomotor agitation, increase in goal directed activity; and symptoms of depression: depressed mood, insomnia, significant appetite or weight change, diminished interest or pleasure, irritability, crying spells, diminished ability to think/concentrate, feelings of hopelessness, feelings of helplessness, change in libido, lack of motivation, psychotic symptoms, fatigue or loss of energy, feelings of worthlessness, excessive guilt, indecisiveness, recurrent thoughts of death, decreased motivation, social isolation, hypersomnia, psychomotor agitation. AR at 408, 413, 532. Ms. Maldonado assessed Plaintiff to be a current danger to herself. Id. Treatment records indicate that Plaintiff has a history of trauma through abuse. Id. at 411, 416, 535. Ms. Maldonado noted that Plaintiff exhibited appropriate dress and generally unremarkable mental status, but reported “current dangerous thoughts or behavior toward self[,]” although she denied being currently suicidal. Id. Ms. Maldonado further noted Plaintiff's sleep as fair; her appetite as fluctuating; neutral affect; fair fund of knowledge; and good memory, insight, judgment, and concentration. Id. Plaintiff further reported that she was not currently a risk to herself or others. AR at 411-412, 417, 535-36. Plaintiff further reported her last illicit drug use was two (2) years prior. Id. at 412, 417, 536. Plaintiff denied having a support system. Id. at 412, 417, 536. Ms. Maldonado diagnosed major depressive disorder, recurrent episode, moderate; Bipolar I disorder current or most recent episode hypomanic, in partial remission, cannabis induced sleep disorder with moderate or severe use disorder; and borderline personality disorder. Id.

On January 18, 2019, Plaintiff was seen at El Rio Community Health Center regarding vaginal bleeding. Id. at 705-709. Treatment records indicate a history of domestic violence. AR at 705. Plaintiff reported that her current partner is emotionally abusive, which causes significant anxiety. Id. On January 29, 2019, Plaintiff was again seen at El Rio Community Health Center. Id. at 699-704. Plaintiff's health questionnaire indicated severe depression. Id. at 699. Plaintiff denied taking any medications at this time. Id. at 700.

On March 20, 2019, Plaintiff saw Murfy Morantus, NP for medication management. AR at 426-28. Plaintiff reported poor sleep, lots of anxiety, loss of appetite, and weight loss. Id. at 426. NP Morantus noted that Plaintiff was very tearful and very depressed. Id. Plaintiff denied auditory and visual hallucinations, as well as suicidal or homicidal ideation. Id. NP Morantus encouraged her to maintain therapy sessions. Id. NP Morantus observed that Plaintiff's appetite was decreased, affect sad, depressed mood, and fair sleep, insight, judgment and concentration. AR at 426. Plaintiff's medications included clonazepam, Lexapro, and trazodone HCl. Id. at 427.

On March 28, 2019, Plaintiff saw Arthi Senra, M.D. at El Rio Community Health Center for an office visit. Records indicate that Plaintiff “was 25 minutes late for [appointment] brings in large list of issues, have asked her to go over most pressing issues and return to clinic for follow up [appointment.]” Id. at 696. Plaintiff reported that she was hit in the head during a domestic violence incident a few months prior, and she can no longer hear out of her right ear. Id. Plaintiff further reported that she is trying to leave, and had reached out to Emerge and other groups, but “they won't do anything for me[,]” and she does not qualify further. Id. Plaintiff's medication list included metronidazole, prenatal vitamins, Colace, and Iron, as well as an IUD. AR at 696.

On April 3, 2019, Plaintiff met with Shelby Stewart, MA BHP LPC LISAC, at CODAC to establish longer term therapy care. Id. at 405-407, 529-31. Plaintiff's diagnoses included other specified bipolar and related disorder, cannabis use disorder moderate, posttraumatic stress disorder, homelessness, and borderline personality disorder. Id. at 405, 529. Plaintiff reported that “those b****es living in my head are trying to rule everything and I can't take it.” Id. at 406, 530 (alterations in original). Plaintiff acknowledged thoughts or self-harm. Id. Plaintiff acknowledged ongoing domestic violence issues, as well as “debilitating PTSD, self harm (cutting, punching, choking, biting sometimes daily, sometimes weekly), [being] suicidal for the past 6 months (depending on the situations that she is going through).” AR at 406, 530. Plaintiff indicated that she had used cocaine and meth in prior years, but denied current use. Id. Plaintiff further indicated that “she is basically homeless[.]” Id. Plaintiff “stated that she would like to stabilize on medication, and [begin] to build coping skills for positive self care.” Id. On April 17, 2019, Plaintiff saw Dr. Senra at El Rio Community Health Center for an office visit. Id. at 691-94. Plaintiff's medication list included Iron, Colace, escitalopram, clonazepam, and an IUD. AR at 692. On April 18, 2019, Plaintiff followed up with NP Morantus at CODAC. Id. at 423-25. NP Morantus described Plaintiff as tearful and distressed. Id. at 423. Plaintiff indicated that she was worried about her living situation, which was unstable and unsafe, and reported that she was “pretty much homeless.” Id. Plaintiff reported that she was involved in a “very abusive” relationship. Id. Plaintiff denied any auditory or visual hallucinations or suicidal or homicidal ideations. AR at 423. NP Morantus's mental status examination of Plaintiff noted decreased sleep and appetite, sad affect, depressed mood, slow speech, slowed thinking, and fair insight, judgment, and concentration. Id.

Plaintiff's medications included clonazepam, Lexapro, and trazodone HCl. Id. at 424.

On April 25, 2019, Plaintiff saw Marnie Arnett, MSW, BHP, LMSW at CODAC. Id. at 402-404, 526-28. Plaintiff's diagnoses included other specified bipolar and related disorder, cannabis use disorder moderate, posttraumatic stress disorder, homelessness, and borderline personality disorder. Id. at 402, 526. Plaintiff reported a family history of mental illness and substance abuse, as well as a “history of childhood physical/emotional/ and sexual abuse.” AR at 402-403, 526-27. Treatment records indicate that Plaintiff “presented to therapy due to ongoing [domestic violence] situation with both of the father's [sic] of her children.” Id. at 403, 527. Records further indicate that Plaintiff “struggles with [suicidal ideation] and self harming behaviors (cutting and punching herself). Id. Plaintiff noted that she does not have support outside of CODAC. Id. at 403-404, 528. Plaintiff's treatment plan included attending therapy, Dialectical Behavior Therapy (“DBT”) group, and working “with PSS and RC on resources and referrals to aide her in moving into her own place.” Id. at 404, 528.

On May 12, 2019, Plaintiff was brought to the Banner University Medical Center Emergency Department following an overdose with trazodone and clonazepam. AR at 446, 475. Treatment records indicate a “concern[] for domestic violence with her male partner with recent incident a few days ago.” Id. Records further indicated that Plaintiff reported “several blows to her head and face by her partner during a fight recently,” but she denied a loss of consciousness. Id. at 446, 448, 452, 455, 494. Plaintiff described her relationship with her boyfriend as “toxic.” Id. at 487. Plaintiff acknowledged the suicide attempt and presented with multiple superficial cuts on her trunk and thighs, but was unable to quantify how much trazodone and clonazepam she took. Id. at 446, 448, 452, 455-56, 470, 473, 481, 485, 487, 491, 494. Treatment records described Plaintiff to have “several uncontrolled anxiety symptoms and PTSD symptoms.” AR at 491.

On May 15, 2019, Plaintiff was discharged from Banner UMC to a level 1 care facility at Palo Verde Hospital. Id. at 448-51, 481-86, 487-93. Plaintiff expressed “frustration with her outpatient resources and that they have failed her because she cannot get the resources she needs, especially appointments at the times that she needs.” Id. at 481. Plaintiff indicated that “she ha[d] been voicing her instability to CODAC[;] however[,] they have continued to defer her concerns, telling her to come back in a few weeks.” Id. at 487. Plaintiff further expressed fear about returning to her housing situation. Id. at 481. Treatment records indicate Plaintiff suffered from poor sleep and appetite, decreased energy with decreased attention to hygiene, decreased concentration, feelings of guilt and worthlessness, frequent suicidal ideation, generalized worry, restlessness, irritability, muscle tension, daily panic attacks, PTSD due to trauma, daily flashbacks, nightmares, intrusive thoughts, and auditory hallucination of people talking about her. AR at 481, 487-88. Treatment records further indicate Plaintiff has routinely self-harms including head banging and cutting. Id. at 482, 488. Records also document multiple suicide attempts and history of physical, emotional, and sexual abuse from childhood to present. Id. Plaintiff endorsed marijuana use, but denied other substance use. Id.

Plaintiff was inpatient at Palo Verde Hospital Behavioral Health Services from May 15, 2019 through May 24, 2019. Id. at 500. Plaintiff's admitting diagnoses included bipolar with mixed features and posttraumatic stress disorder (“PTSD”). AR at 501. On discharge, these diagnoses remained unchanged. Id. at 503. While inpatient, Plaintiff's physical health appeared unremarkable. Id. at 505-506. On May 17, 2019, Plaintiff's anxiety and depression were noted as 10/10, with auditory hallucinations. Id. at 518. Treatment records indicate that Plaintiff was hyperverbal with pressured speech; slowed motor activity; depressed, dysphoric, anxious, and hypomanic mood; restricted affect; and passive suicidal thoughts. Id. On May 18, 2019, Plaintiff affirmed suicidal ideation, both active and passive, but which appeared mostly passive. AR at 517. Plaintiff also reported possible auditory hallucinations. Id. Treatment records indicated that Plaintiff's mood was depressed, with paranoid thoughts, and fair judgment. Id. Plaintiff showed improvement from the previous day in other areas of mental status. Id. On May 19, 2019, Plaintiff reported that she was “hanging in there” and her sleep was “decent.” Id. at 516. Treatment records showed Plaintiff's mental status exam demonstrated anxious mood, restricted affect, auditory and visual hallucinations with command, paranoid thought content, and fair judgment. AR at 516. Records further indicated Plaintiff had continued depression, with suicidal ideation and thoughts of self-harm the previous day. Id. On May 20, 2019, Plaintiff's depression was rated 7/10 and her anxiety 10/10. Id. at 515. Plaintiff had passive suicidal ideation and thoughts of self-harm, but decreased mania/hypomania and decreased paranoia. Id. Plaintiff reported her sleep and appetite to be “okay.” Id. Plaintiff's mental status showed hyperverbal, pressured speech; depressed, dysphoric, anxious, and hypomanic mood; restricted affect; and auditory and visual hallucinations. AR at 515. On May 21, 2019, treatment records indicate that Plaintiff's depression was 5/10 and her anxiety was 7/10. Id. at 514. Records also noted that she had auditory hallucinations with derogatory voices and visual hallucinations in her peripheral vision. Id. Plaintiff reported fair sleep with nightmares and poor appetite. Id. Treatment records further indicated that her current husband did not want her to come home, and that Plaintiff was unemployed without anywhere else to go. Id. Plaintiff's mental status noted depressed, dysphoric, and anxious mood; restricted affect; paranoid thought content/delusions; passive suicidal ideation; thoughts of self-harm including cutting and hitting; and adequate judgment. AR at 514. Plaintiff's medication was adjusted. Id. On May 22, 2019, Plaintiff had a depressed and anxious mood. Id. at 513. Treatment records indicated she had suicidal ideation, thoughts of self-harm, and auditory and visual hallucinations. Id. Plaintiff reported decreased nightmares and complained of dizziness. Id. Treatment records attributed the dizziness to orthostatic hypotension. AR at 513. Treatment records further indicated that Plaintiff had a depressed, dysphoric, anxious mood; restricted affect; paranoid thought content; and adequate judgment. Id. Plaintiff's medications were adjusted, and a discharge plan was outlined to include Level II outpatient at CODAC. Id. On May 23, 2019, Plaintiff denied significant depression, suicidal ideation, and thoughts of self-harm, as well as auditory or visual hallucinations. Id. at 512. Treatment records indicate that her anxiety was 6/10, but her sleep was “okay” and without nightmares. Id. Records also noted that Plaintiff's appetite was improving. AR at 512.

Plaintiff's mental status exam reflected similar improvement. Id. On May 24, 2019, treatment records reflected overall improvement in Plaintiff's mental health. Id. at 511. Plaintiff was to be discharged to a shelter and/or a friend's home with outpatient followup. Id. at 503, 510. On May 28, 2019, Plaintiff saw Eris Norvilus, NP at CODAC for a follow-up after her discharge from Palo Verde Hospital for suicidal ideation. Id. at 421. NP Norvilus noted that there was no change in Plaintiff's diagnoses, although her medications had changed. AR at 421. NP Norvilus listed Plaintiff's current medications to include Prazosin HCl, Benztropine mesylate, Depakote ER, and Hydroxyzine HCl. Id. at 421-22.

On July 25, 2019, Plaintiff saw NP Morantus at CODAC for a follow-up regarding her cannabis substance use disorder, other specified bipolar and related disorder, PTSD, and bipolar disorder, as well as a medication review. Id. at 418. Plaintiff complained of medication side effects, including hair loss, daytime drowsiness, increased appetite with binge eating, and weight gain. Id. Plaintiff reported that she had been meeting with her residential counselor but did not feel like progress was being made. Id. Plaintiff further reported that she is unable to work due to her inability to focus and recurrent unstable mental status, including hearing voices and nightmares. AR at 418. Plaintiff acknowledged that she is currently homeless and having legal issues with the Department of Child Services (“DCS”). Id. at 419. NP Morantus's mental examination was generally unremarkable, but noted Plaintiff had increased appetite, labile mood, and fair insight, judgment, and concentration. Id. NP Morantus discussed the benefits of daily exercise with Plaintiff and increased her prazosin. Id. at 420. NP Morantus noted that he would consider the addition of topiramate during Plaintiff's next visit if her increased appetite and weight gain persisted. Id.

On September 11, 2019, Plaintiff was seen by NP Morantus for a follow-up regarding her cannabis use disorder, other specified bipolar and related disorder, PTS, bipolar disorder, as well as for a medication review. AR at 541, 577. Plaintiff reported problems with medication compliance, particularly Depakote, and acknowledged that “she often forgets to take doses several days at a time[.]” Id. NP Morantus provided a medication box to assist Plaintiff with medication management. Id. NP Morantus also encouraged adequate water intake. Id. Plaintiff denied auditory and visual hallucinations, as well as suicidal or homicidal ideation. Id. NP Morantus encouraged Plaintiff to get daily exercise. AR at 541, 577. Plaintiff's mental status was generally unremarkable, but showed forgetfulness, fair concentration, and speech that was a “normal rate for this mbr.” Id. at 542, 578. Buspirone HCl was added to Plaintiff's medication list. Id. NP Morantus noted to investigate a possible schizoaffective disorder diagnosis in subsequent visits. Id. at 543, 579. On the same date, Plaintiff met with Mary Cervantez, BHPP. Id. at 651-52. Treatment notes indicated that Plaintiff was doing well, and was enrolled in Wellness Groups, Seeking Safety, Bipolar Skills, and DBT groups. AR at 652. Plaintiff reported that she enjoyed and was getting a lot out of the groups. Id. Plaintiff also received an Invega injection. Id. at 653-54. On the same date, Plaintiff met with Laura Johnson, BHT and her DCS case worker, Kaitlin, for an Adult Recovery Team (“ART”) meeting. Id. at 655-56. The meeting was due to the closure of Plaintiff's DCS case. Id. at 656. Plaintiff reported having been clean for over a year. AR at 656. Records indicate that Plaintiff was homeless and had been staying with two (2) friends. Id. Additionally, Gary had all three (3) kids, and was getting guardianship over the baby, who is not his biological child. Id. Plaintiff reported that they were communicating, and their relationship improved. Id.

On October 28, 2019, Plaintiff received an Invega injection at CODAC. Id. at 64950. On November 18, 2019, Plaintiff saw NP Morantus for a follow-up regarding her cannabis substance use disorder, other specified bipolar and related disorder, PTS, bipolar disorder, as well as a medication review. AR at 537-38, 573-76. Plaintiff reported that “she ha[d] not been doing well on current meds despite taking them regularly.” Id. at 538, 574. Plaintiff further reported a lack of motivation, low energy, insomnia, and lack of focus. Id. Plaintiff denied auditory and visual hallucinations, as well as suicidal or homicidal ideation. Id. NP Morantus encouraged daily exercise and monitoring of her nighttime sleep, as well as the efficacy and side effects of her current medications. Id.

Plaintiff's current medications included bupropion HCl, trazodone HCl, buspirone HCl, Invega Sustenna, benztropine mesylate, Depakote extended release, and prazosin HCl. AR at 538, 574. Treatment records reflect that bupropion and trazodone were added, hydroxyzine was discontinued, and buspirone was increased. Id. Plaintiff's mental status exam was generally unremarkable, with decreased sleep, worried affect, depressed mood, and fair appetite, judgment, and concentration. Id. Plaintiff denied substance use. Id. at 539.

On January 22, 2020, Ms. Johnson of CODAC called Plaintiff to check on her recovery, health, and welfare. Id. at 647-48. Plaintiff reported that she was doing okay and spending a lot of time with her kids. AR at 648. On February 11, 2020, Plaintiff saw Johnnie R. Lewis, FNP at El Rio Health for an office visit. Id. at 686-90. Plaintiff's screening questionnaire indicated severe depression. Id. at 686-88. Plaintiff's medication list included clonazepam, Colace, potassium chloride ER, Iron, escitalopram, and an IUD, with compliance indicated. Id. at 688. NP Lewis noted that Plaintiff presented with anxiety and depression. Id. at 689. On February 12, 2020, Ms. Johnson of CODAC attempted an outreach call to Plaintiff. AR at 645-46. Ms. Johnson left a voicemail inquiring on her health and welfare. Id. at 646.

On February 19, 2020, Plaintiff saw Jessica Cota, BHT at CODAC. AR at 556-61, 637-42. Plaintiff reported chronic homelessness during the past year. Id. at 556. Plaintiff explained that she was “separated from her abusive boyfriend of 10 years, had another baby (9/2018) from another abusive boyfriend[.]” Id. Plaintiff described “her condition [as] unstable and [wa]s not having any luck with her meds.” Id. Plaintiff reported that “she goes between shelters, streets, friends, and Ex[.]” Id. at 556, 558, 560. Plaintiff further reported that all three (3) of her children reside with her ex, the father of the older two. AR at 556. Treatment records reflect Plaintiff's symptoms of mania to include talkative or pressured speech, racing thoughts, flight of ideas, distractibility, psychotic symptoms, excessive pleasurable activities with painful consequences, psychomotor agitation, and increase in goal directed activity. Id. Records further reflect Plaintiff's symptoms of depression to include depressed mood, insomnia, significant appetite or weight change, diminished interest or pleasure, irritability, crying spells, diminished ability to think/concentrate, feelings of hopelessness, feelings of helplessness, lack of motivation, psychotic symptoms, fatigue or loss of energy, feelings of worthlessness, indecisiveness, recurrent thoughts of death, decreased motivation, social isolation, hypersomnia, and psychomotor agitation. Id. Ms. Cota noted that Plaintiff was a danger to herself with frequent thoughts of self-harm or suicide. Id. Plaintiff's medication list included bupropion HCl, trazodone, buspirone, Invega Sustenna, benztropine, and Depakote ER. Id. at 557. Plaintiff reported that she did not feel stable on her medication, and that she was not on them. AR at 558, 638, 640. Plaintiff reported medication side-effects, including dizziness, confusion, memory loss, weakness, shakiness, stuttering, hair loss, forgetfulness, and stomach upset. Id. at 558. Plaintiff indicated that she was working “one day a week at a doggie daycare, [but it was] ‘not working out due to anxiety and depression.'” Id. at 559. Plaintiff's mental status was generally unremarkable, but noted her current and frequent dangerous thoughts or behavior toward self, depressed mood, and sad affect. Id. at 560. Records reflect that Plaintiff was tearful and very anxious with frequent thoughts of suicide. Id. Plaintiff was encouraged to continue going to her behavioral health medical professional appointments. AR at 561. Plaintiff's diagnoses include other specified bipolar and related disorder, cannabis use disorder moderate, severe PTSD, homelessness, and borderline personality disorder. Id. Ms. Cota encouraged Plaintiff to use mindful meditation before and after work to assist with anxiety. Id. at 642. Ms. Cota also worked with Plaintiff to create an integrated service plan. Id. at 663-66.

On the same date, Plaintiff saw NP Morantus for a medication check. Id. at 570. Plaintiff's diagnoses included other specified bipolar and related disorder, cannabis use disorder moderate, posttraumatic stress disorder, homelessness, and borderline personality disorder. AR at 570. Plaintiff reported that she stopped taking trazodone because it was ineffective. Id. at 571. NP Morantus noted that Plaintiff was “tearful at times during this encounter, stating that she has not observed any progress[,] . . . [but] also recognizes she has not been [taking] her meds as prescribed either.” Id. Plaintiff's mental status examination was generally unremarkable, with fair appetite, sleep, insight, judgment, and concentration, worried affect, and depressed mood. Id. Plaintiff's current medications were modified to include benztropine mesylate, bupropion HCl, buspirone HCl, Depakote ER, prazosin HCl, and Invega Sustenna. Id. NP Morantus discussed the benefits of daily exercises with Plaintiff. AR at 572. Plaintiff also received an Invega injection. Id. at 64344. On February 26, 2020, Plaintiff was seen at CODAC and received an Invega injection. Id. at 635-36.

On March 12, 2020, Ms. Johnson of CODAC attempted an outreach call to Plaintiff. Id. at 633-34. Ms. Johnson left a voicemail inquiring as to Plaintiff's health and welfare. Id. at 634. On March 25, 2020, Jessica Viberg, BHPP of CODAC called Plaintiff and left a message regarding temporary changes as a result of the COVID-19 pandemic. AR at 631-32. On April 3, 2020, Ms. Johnson of CODAC attempted an outreach call to Plaintiff. Id. at 629-30. Ms. Johnson left a voicemail. Id. at 630. On May 8, 2020, Ms. Johnson, again called Plaintiff for outreach and a welfare check. Id. at 627-28. Ms. Johnson left Plaintiff a voicemail. Id. at 628. On May 19, 2020, Jessica Viberg, BHPP of CODAC telephoned Plaintiff for a welfare check and to try to reengage her in services. AR at 62526. On July 13, 2020, Ms. Johnson of CODAC telephoned Plaintiff to check-in regarding her health and welfare because she missed her last behavioral health medical professional appointment. Id. at 623-24. Ms. Johnson left a voicemail. Id. at 624.

In August of 2020, NP Morantus told Plaintiff that she is still unstable on her medications, and they may look into a different mix of medications. Id. at 313. On August 13, 2020, Ms. Johnson of CODAC called Plaintiff to check-in and left a voicemail. Id. at 621-22. On August 14, 2020, Plaintiff called CODAC to request restarting her medications and injection. AR at 620. Plaintiff reported that she was having a hard time and was feeling suicidal. Id. Plaintiff indicated that she “felt that she did not need [behavioral health] treatment and stopped everything. Id. Plaintiff was tearful and reported that she felt her behavioral health medical professional did not listen to her. Id. On August 18, 2020, Plaintiff saw NP Morantus for a telehealth psychotherapy appointment. Id. at 566-69. Plaintiff's diagnoses included other specified bipolar and related disorder, cannabis use disorder moderate, severe PTSD, homelessness, and borderline personality disorder. AR at 566. NP Morantus noted that a diagnosis of schizoaffective disorder was to be investigated in subsequent visits. Id. Plaintiff indicated that she was “doing alright at times, but with lots of episodes of instability.” Id. at 567. Plaintiff reported “taking care of her 2 boys[,] [and] report[ed] past [suicidal ideation], selfcutting, low performance at work, crying spells, manic episodes, [and] explain[ed] she has barely been taking her meds for the past months.” Id. Plaintiff also complained of her hair falling out as a result of the injections she receives, as well as daytime drowsiness, increased appetite with binge eating, and weight gain. Id. Plaintiff's mental status examination was generally unremarkable with a worried affect and emotional speech. AR at 566. Plaintiff's medication list included prazosin HCl, Depakote ER, buspirone HCl, bupropion HCl, benztropine mesylate, and Invega Sustenna. Id. On the same date, Plaintiff received an Invega Sustenna injection. Id. at 613-14. On August 25, 2020, Sasha Yeganeh-Rad, BHT, called Plaintiff for an introductory wellness outreach. Id. at 607-610. On the same date, Mary Cervantez, BHT IHRSS, called Plaintiff who stated that she wants to get out of her boyfriend's home. Id. at 611-12. Ms. Cervantez discussed shelters and housing information with Plaintiff. Id. at 612. On August 31, 2020, Ms. Yeganeh-Rad called Plaintiff regarding what CODAC services she was interested in, as well as for case management. AR at 597-600. Ms. Yeganeh-Rad recommended Zoom groups, and Plaintiff expressed an interest in DBT and MRT therapy groups. Id. at 598. Plaintiff also expressed an interest in individual therapy, but had lost touch with her original therapist, who had since left CODAC. Id. Ms. Yeganeh-Rad assisted Plaintiff with an individual therapy appointment, as well as other resources, including a health promotion entitled “Heat-Related Illnesses.” Id. at 598, 600.

On September 1, 2020, Plaintiff saw Johnnie R. Lewis, FNP at El Rio Health for a preventative medicine visit. Id. at 678-85. Treatment records indicate a continuation of Plaintiff's symptoms of anxiety and depression. AR at 679, 682. Plaintiff reported functioning was extremely difficult. Id. NP Lewis observed that Plaintiff “presented] with anxious/fearful thoughts, depressed mood, difficulty falling asleep, difficulty staying asleep, diminished interest or pleasure, excessive worry, racing thoughts and thoughts of death or suicide but denies hallucinations.” Id. at 679, 682, 684. Plaintiff sought to transfer from CODAC to another agency. Id. Plaintiff was assessed with severe major depression and sleep disorder. Id. at 678, 681. NP Lewis indicated Plaintiff was a medium risk for suicide. AR at 682-83. NP Lewis noted that Plaintiff would be seen at El Rio Behavioral Health for therapy only, and continue to see CODAC for her medications. Id. at 678, 681.

On September 8, 2020, Lee A. Pinkerton, BHP left Plaintiff a voicemail to introduce herself and orient her for Moral Reconation Therapy (“MRT”) group. Id. at 595-96. On September 11, 2020, Ms. Yeganeh-Rad called Plaintiff for a telephonic case management conference. Id. at 593-94. Ms. Yeganeh-Rad conducted a health promotion entitled “Unhelpful Thinking Styles: Mental Filter.” Id. at 594. Plaintiff reported that “she has been home schooling her kids and indoors away from the hot weather most of the time.” AR at 594. Plaintiff agreed to try and utilize positive reframing to prevent prolonged emotional distress. Id.

On September 22, 2020, Plaintiff was seen by Ms. Pinkerton for an assessment update. Id. at 550-55, 587-90. Plaintiff reported “that she ha[d] been in her relationship for 14 years . . . [and] that she does not live there but she is expected to be there.” Id. at 550, 554. Plaintiff further reported “that she stays every so often and she never knows if she is going to get thrown out and if they are going to argue or fight.” Id. Plaintiff described a mutually emotionally and verbally abusive relationship. Id. Plaintiff further described her homelessness and physical violence while she was pregnant. Id. Plaintiff reported that “she goes to the home [of her two older children's father] during the day and helps the children and takes care of whatever needs to be done around the house and then she leaves.” AR at 550, 554. Ms. Pinkerton described Plaintiff's symptoms of mania to include talkative or pressured speech, racing thoughts, flight of ideas, distractibility, psychotic symptoms, excessive pleasurable activities with painful consequences, psychomotor agitation, and increase in goal directed activities. Id. Ms. Pinkerton further described Plaintiff's depressive symptoms to include: depressed mood, insomnia, significant appetite or weight change, diminished interest or pleasure, irritability, crying spells, diminished ability to think/concentrate, feelings of hopelessness, feelings of helplessness, lack of motivation, psychotic symptoms, fatigue or loss of energy, feelings or worthlessness, indecisiveness, recurrent thoughts of death, decreased motivation, social isolation, hypersomnia, and psychomotor agitation. Id. Plaintiff reported having “tried medications management, groups in inpatient settings, and pet therapy.” Id. Plaintiff indicated that she had learned a lot of coping skills which have decreased her panic attacks and tendency to self-harm. Id. at 550. Plaintiff's prescribed medications included prazosin, Depakote ER, buspirone, bupropion HCl, benztropine, and Invega Sustenna; however, she reported not being on her medication. AR at 552. Plaintiff reported homelessness, alternating between shelters, friends, and her ex's home. Id. Plaintiff denied having a support system. Id. Plaintiff noted that when she stays with her ex and their children, “she risks being kicked out in the middle of the night.” Id. at 554. Plaintiff described her current employment as “one day a week at a doggie daycare, [but] ‘not working out due to anxiety and depression[.]'” Id. at 553. Treatment records reflect Plaintiff's trauma history, including her abusive relationship with the father of her youngest child. AR at 553-54. Plaintiff reported having been “assigned to a[n] individual therapy session and then something came up every time and [she] was kicked out.” Id. at 554. Plaintiff also complained that the injections were causing her hair to fall out. Id. Ms. Pinkerton noted Plaintiff's diagnoses to include other specified bipolar and related disorder, cannabis use disorder moderate, severe PTSD, homelessness, and borderline personality disorder. Id. Ms. Pinkerton recommended Plaintiff continue with therapy services. Id. at 588. Plaintiff and Ms. Pinkerton also developed an integrated service plan. AR at 658-62.

On September 16, 2020, Plaintiff saw Jose Rapanan, D.O. at El Rio Health for an office visit regarding complications with her intrauterine device. Id. at 674-77. Dr. Rapanan noted that Plaintiff requested to go somewhere other than CODAC for behavioral health services because she felt “nobody cares for her.” Id. at 674. Dr. Rapanan opined that Plaintiff was a “[p]oor historian about her previous medication and patient was very frustrated when I aske about the details[.]” Id. Dr. Rapanan indicated that Plaintiff's medication list was not updated. Id. Dr. Rapanan reported that Plaintiff “present[ed] with anxious/fearful thoughts, compulsive thoughts, depressed mood, difficulty concentrating, difficulty falling asleep, difficulty staying asleep, excessive worry, fatigue, feelings of guilt, increased libido and loss of appetite but denies decreased need for sleep.” AR at 675. Dr. Rapanan further noted that Plaintiff was positive for anxiety, compulsive thoughts or behaviors, difficulty concentrating, excessive worry, feeling down, depressed, or hopeless, and feelings of guilt. Id. at 676. Dr. Rapanan also observed that Plaintiff was tearful, anxious, forgetful, and hopeless, with poor insight and judgment and very superficial linear scar lines on her abdomen. Id. at 676-77.

On September 25, 2020, Plaintiff saw Gabrielle Ochoa, M.D. at El Rio Health for an office visit regarding vaginal bleeding. Id. at 669-73. Plaintiff's medication list included clonazepam, Colace, escitalopram, iron, and potassium chloride ER, but Dr. Ochoa noted that she was not taking any of them. Id. at 671. Dr. Ochoa's examination of Plaintiff was generally unremarkable. AR at 672-73.

b. Consultative Examiner-Robert Gordon, D.O.

On January 30, 2020, Plaintiff was seen by Robert Gordon, D.O. for a consultative examination upon referral from the Arizona Department of Economic Security (“AZDES”). AR at 544-47. The only records Dr. Gordon reported reviewing were “[a] history and physical from Palo Verde Behavioral health Services dated 05/16/2019.” Id. at 544. Plaintiff reported “a history of pain located in her cervical spine[,] . . . [and] state[d] that she was the victim of domestic violence in the past.” Id. Plaintiff “endorse[d] radiating pain into her left upper extremity[,] . . . a sensation of weakness in her upper extremities[,] . . . positional episodes of numbness and tingling in the upper extremities.” Id. Plaintiff indicated that “she was referred to physical therapy, but was unable to follow through as she was hospitalized for a reported attempted self-harm.” Id. Plaintiff's medications were noted to include Depakote, benztropine, prazosin, bupropion, and over-the-counter ibuprofen. AR at 544. Dr. Gordon noted that Plaintiff “denie[d] significant impacts on activities of daily living[;] . . . [s]he is able to complete self-care activities including meals, hygiene, and light housework[;] . . . [s]he is not confined to bed, and admits to frequent difficulties sleeping[;] . . . [s]he does not hold a valid driver's license nor does she drive a vehicle[;] . . . [and] [s]he reports no hobbies she participates in.” Id. at 545. Dr. Gordon's review of Plaintiff's system was generally unremarkable. Id. Dr. Gordon noted that Plaintiff was “cooperative, in no acute distress, c[ould] sit in the chair without discomfort for the duration of the exam.” Id. Dr. Gordon further noted that Plaintiff was “quite anxious and was crying uncontrollably throughout the entire evaluation.” Id. Dr. Gordon's physical examination of Plaintiff was generally unremarkable. AR at 546-47.

On the same date, Dr. Gordon completed a Medical Source Statement of Ability to Do Work-Related Activities (Physical). Id. at 548-49. Dr. Gordon's diagnosis included “[c]ervical spine pain with preserved strength, range of motion, sensation, and reflexes.” Id. at 548. Dr. Gordon reported that he would defer any psychiatric/cognitive disorder diagnosis “to any psychological evaluation portion of the disability determination examination process.” Id. Dr. Gordon opined that Plaintiff's cervical spine pain would not impose any limitations for twelve (12) continuous months. Id.

3. Vocational Expert Susan L. Creighton-Clavel's Testimony

Ms. Creighton-Clavel testified as a vocational expert at the administrative hearing. AR at 25, 60-66. Ms. Creighton-Clavel used dog groomer to describe Plaintiff's past relevant work as a dog handler. Id. at 62. Ms. Creighton-Clavel described dog groomer as Dictionary of Occupational Titles (“DOT”) number 418.674-010, as having a Specific Vocational Preparation (“SVP”) of 4, and exertional level of medium. Id. Next, Ms. Creighton-Clavel described Plaintiff's past work as a surgical technician, DOT number 079.374-022, with an SVP of 6, and light exertional level. Id. Ms. Creighton-Clavel described Plaintiff's past work as a nurse assistant, DOT number 355.674-013, with an SVP of 4, and medium exertional level. Id. Ms. Creighton-Clavel described Plaintiff's past work in retail sales as DOT number 209.477-014, with an SVP of 3, and light exertional level. AR at 62. Regarding Plaintiff's past work at a call center, Ms. Creighton-Clavel described a customer complaint clerk position, DOT number 241.367-014, and SVP of 5, and sedentary exertional level. Id. at 62-63. Finally, Ms. Creighton-Clavel described Plaintiff's past work as a hostess, DOT number 352.667-010, with an SVP of 3, and light exertional level. Id. at 63. Ms. Creighton-Clavel opined that based upon the information Plaintiff provided, there was nothing in Plaintiff's descriptions of her past work to indicate that there was any difference between the way she performed the jobs and how these jobs are performed in the national economy. Id. at 63.

The ALJ asked Ms. Creighton-Clavel to consider a hypothetical individual of Plaintiff's age, education, and work history; who could understand, carry out, and remember simple instructions, such as one to two-step instructions; apply simple instructions at a reasonable pace for approximately two (2) hour segments between arrival, breaks, and departure; make simple judgments and work-related decisions and adapt to changes in a routine work setting; respond appropriately to supervision, coworkers, and social in the workplace; and interactions with the public are limited to occasional and superficial. Id. at 63. Ms. Creighton-Clavel opined that all of Plaintiff's past work was at least semi-skilled or higher, so the hypothetical individual would not be able to perform any of those jobs. AR at 63. Ms. Creighton-Clavel further opined that such an individual would be employable at both the light and medium exertional levels. Id. at 64. Ms. Creighton-Clavel opined that at the medium exertional level, such an individual would be employable as a cleaner II, DOT number 919.687-014, with an SVP of 1, and of which there are at least 203,000 jobs in the national economy. Id. Again, at the medium exertional level, Ms. Creighton-Clavel opined that such an individual would be employable as a harvest worker, DOT number 402.687-014, with an SVP of 1, and of which there are approximately 11,000 jobs in the national economy. Id. Regarding light exertional level positions, Ms. Creighton-Clavel opined that such an individual would be employable as a line pruner, DOT number 403.687-022, with an SVP of 1, and of which there are approximately 67,000 jobs in the national economy. Id. Finally, Ms. Creighton-Clavel opined that such an individual would be able to perform the job of bakery racker, DOT number 524.687-018, with an SVP of 1, and of which there are approximately 86,000 jobs in the national economy. AR at 64.

Ms. Creighton-Clavel opined that an employer would tolerate fourteen (14) percent or less time off task due to an individual's medical condition. Id. Ms. Creighton-Clavel further opined that this would entail remaining at the individual's workstation and going off task for a minute or two every fifteen (15) minutes throughout the workday. Id. at 6465. Ms. Creighton-Clavel also opined that an employer would tolerate an individual being absent from work an average of one (1) day per month. Id. at 65. Ms. Creighton-Clavel opined that an employer would probably not tolerate an individual leaving the workstation without warning for fifteen (15) to twenty (20) minutes to compose themselves, depending upon the frequency. Id. Ms. Creighton-Clavel suggested that such behavior might be tolerated if it occurred once per month or perhaps bimonthly, but any more than that would not be tolerated. AR at 65. Ms. Creighton-Clavel opined that an individual who remains at the workstation, but is distracting to coworkers due to exhibited behaviors, may or may not be tolerated depending on the frequency of the episodes. Id. at 65-66. Ms. Creighton-Clavel confirmed that the fourteen (14) percent off task would generally be an indicator; however, that amount of time contemplated an individual who was off task for a minute or two (2) frequently throughout the day, not someone who is off-task for a fifteen (15) minute block. Id. at 66. Ms. Creighton-Clavel further opined that if someone were off task for blocks of time, such behavior would not be tolerated by an employer. Id. Ms. Creighton-Clavel testified that her answers were consistent with the DOT, except that because the DOT does not address absences, off-task behavior, and superficial public contact, her opinions regarding those matters were based upon her education, training, and experience. Id. at 65.

4. Lay Witness Testimony

On August 17, 2019, the father of Plaintiff's children, Gary Jones, completed a Function Report-Adult-Third Party. AR at 262-69. Mr. Jones indicated that he had known Plaintiff for thirteen (13) years, and spent approximately ten (10) to fifteen (15) hours per week with her, meeting to co-parent their children. Id. at 262. Mr. Jones reported that Plaintiff lived in a shelter. Id. Mr. Jones described Plaintiff's days to include coming to his house to spend time with their children, helping the kids get ready for school, and going to CODAC and group therapy. Id. Mr. Jones noted that Plaintiff cared for their three (3) children, getting them ready for school and helping with doctor appointments. Id. at 263. Mr. Jones indicated that Plaintiff does not care for any pets or other animals. AR at 263. Mr. Jones observed that prior to her condition, Plaintiff could care for their children properly, be proactive in society, and stay cognitively aware for long periods. Id.

Mr. Jones reported that Plaintiff's illness has caused her difficulty getting to sleep, difficulty breathing while sleeping, to wake up with migraine headaches that last for hours, and hair loss. Id. Mr. Jones indicated that Plaintiff has difficulty with personal hygiene, including not bathing regularly, not putting on fresh clothes often, her hair is falling out, not caring for her skin properly, requiring reminders to eat throughout the day, and lack of social ability to interact with others. Id. Mr. Jones explained that Plaintiff needed to be told to shower, or schedule times during the week and use a cellular telephone reminder. Id. at 264. Mr. Jones reported that Plaintiff requires notes, reminders on her phone, alarms, reminders on her tablet, or personally being advised to take her medicine, as well as where she keeps her medicine. AR at 264. Mr. Jones indicated that Plaintiff does not prepare her own meals, and he will sometimes remind her to purchase cold premade items, such as sandwiches or frozen dinners. Id. Mr. Jones described that Plaintiff will sometimes make sandwiches for a few days or ground hamburger to last. Id. Mr. Jones estimated that this task takes Plaintiff between five (5) and eight (8) hours to perform. Id. Mr. Jones confirmed that Plaintiff's cooking habits have changed since the onset of her illness, noting that she suffers dizziness near heat or if she stands for too long. Id. Mr. Jones also reported that when Plaintiff is unable to prepare meals, it is due to her severe migraines. AR at 264. Mr. Jones indicated that Plaintiff does her laundry at the shelter; however, he did not know if she did other chores there or how much time they might take. Id. Mr. Jones noted that because Plaintiff was homeless, she spent up to five (5) hours with the children. Id. Mr. Jones further noted that Plaintiff requires reminders to clean and keep other areas sanitary. Id.

Mr. Jones reported that Plaintiff goes outside daily, explaining that she is homeless with panic episodes. Id. at 265. Mr. Jones indicated that Plaintiff either walks or uses public transportation, but does not drive. AR at 265. Mr. Jones further indicated that Plaintiff shops in stores or by computer for food and clothes. Id. Mr. Jones observed that Plaintiff is unable to shop often due to her severe anxiety, and estimated that she does so twice per month, with one of those times online with assistance. Id. Mr. Jones noted that Plaintiff is unable to pay bills, handle a savings account, or use a checkbook/money orders, but is able to count change. Id. Mr. Jones explained that Plaintiff's difficulties stem from being homeless and without money. Id. Mr. Jones opined that Plaintiff was not mentally incapacitated to work or remember bills. AR at 265. In his next sentence, however, Mr. Jones described Plaintiff as being unable to remember where money is kept and irresponsible with money as a result of her illness. Id. at 266.

Mr. Jones reported that Plaintiff's hobbies included watching television, but has trouble staying focused, and she used to enjoy painting but has difficulty completing tasks. Id. Mr. Jones indicated that Plaintiff watched television at the shelter, but not often, and did not paint at all. Id. Mr. Jones described Plaintiff as having a loss of character, as well as a loss of drive for her previous hobbies. Id. Mr. Jones reported that Plaintiff spent time visiting with her children and playing games when she had time away from the shelter. AR at 266. Mr. Jones estimated that she did this one (1) to three (3) times per week for a few hours. Id. Mr. Jones further reported that Plaintiff went to CODAC, the library, food banks, Salvation Army, and Gospel Rescue Mission on a regular basis. Id. Mr. Jones noted that Plaintiff requires reminders to go out, and participated in a group for social development and behavior three (3) times per week. Id. Mr. Jones indicated that Plaintiff did not need someone to accompany her when she went out. Id. Mr. Jones reported that Plaintiff has problems getting along with people, and described her as extreme mentally. AR at 267. Mr. Jones explained that Plaintiff was unaware of her behavior, and she would go from being fine to deep depression with self-harm and thoughts of suicide. Id.

Mr. Jones described Plaintiff's illness as affecting her ability to sit, talk, remember, complete tasks, concentrate, understand, and get along with others. Id. Mr. Jones explained that Plaintiff's personality disorder and memory loss makes it difficult to deal with her, and she has trouble being productive in society. Id. Mr. Jones further explained that Plaintiff cannot sit well due to cuts as a result of her self-harm. Id. Mr. Jones opined that Plaintiff could walk for between twenty (20) and thirty (30) minutes, then would require a ten (10) to fifteen (15) minute break before continuing. AR at 267. Mr. Jones further opined that Plaintiff could pay attention from between fifteen (15) and twenty (20) minutes and is unable to finish what she starts. Id. Mr. Jones described Plaintiff's ability to follow written and spoken instructions as less than fair. Id. Mr. Jones indicated that Plaintiff did not get along well with authority feelings due to her mental illness. Id. at 268. Mr. Jones reported that Plaintiff had been fired from jobs at Banner, Devon Gables, and Tucson Medical Center (“TMC”) because she was unable to mentally handle employment. Id. Mr. Jones noted that Plaintiff does not handle stress or changes in routine well. AR at 268. Mr. Jones also observed that Plaintiff believes that everyone is against her and is afraid that her children will not love her due to her mental illness and self-harm Id.

II. STANDARD OF REVIEW

The factual findings of the Commissioner shall be conclusive so long as they are based upon substantial evidence and there is no legal error. 42 U.S.C. §§ 405(g), 1383(c)(3); Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). This Court may “set aside the Commissioner's denial of disability insurance benefits when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole.” Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999) (citations omitted); see also Treichler v. Comm r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014).

Substantial evidence is “‘more than a mere scintilla[,] but not necessarily a preponderance.'” Tommasetti, 533 F.3d at 1038 (quoting Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003)); see also Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). Further, substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Where “the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ.” Tackett, 180 F.3d at 1098 (citing Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992)); see also Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007). Moreover, the court may not focus on an isolated piece of supporting evidence, rather it must consider the entirety of the record weighing both evidence that supports as well as that which detracts from the Secretary's conclusion. Tackett, 180 F.3d at 1098 (citations omitted).

III. ANALYSIS

A. The Five-Step Evaluation

The Commissioner follows a five-step sequential evaluation process to assess whether a claimant is disabled. 20 C.F.R. § 404.1520(a)(4). This process is defined as follows: Step One asks is the claimant “doing substantial gainful activity[?]” 20 C.F.R. § 404.1520(a)(4)(i). If yes, the claimant is not disabled. Step Two considers if the claimant has a “severe medically determinable physical or mental impairment[.]” 20 C.F.R. § 404.1520(a)(4)(ii). If not, the claimant is not disabled. Step Three determines whether the claimant's impairments or combination thereof meet or equal an impairment listed in 20 C.F.R. Pt. 404, Subpt. P, App.1. 20 C.F.R. § 404.1520(a)(4)(iii). If not, the claimant is not disabled. Step Four considers the claimant's residual functional capacity and past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). If claimant can still do past relevant work, then he or she is not disabled. Step Five assesses the claimant's residual functional capacity, age, education, and work experience. 20 C.F.R. § 404.1520(a)(4)(v). If it is determined that the claimant can make an adjustment to other work, then he or she is not disabled. Id.

In the instant case, the ALJ found that Plaintiff had not engaged in substantial gainful activity since her alleged onset date of November 15, 2018. AR at 27. At step two of the sequential evaluation, the ALJ found that “[t]he claimant ha[d] the following severe impairments: personality disorder; major depressive disorder; and Post Traumatic Stress Disorder (PTSD) (20 CFR 404.1520(c) and 416.920(c)).” Id. at 28. At step three, the ALJ further found that “the claimant does 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 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).” Id. at 31. Prior to step four and “[a]fter careful consideration of the entire record,” the ALJ determined that “the claimant ha[d] the residual functional capacity to perform a full range of work at all exertional levels but with the following non-exertional limitations: she can understand and remember simple 1-2 step instructions; . . . apply simple instructions at a reasonable pace for approximately 2 hour segments between arrival, breaks, and departure; can make simple judgments and work-related decisions and adapt to changes in a routine work setting; and can respond appropriately to supervision, co-workers, and social interaction in the workplace, when interaction with the public are limited to occasional and superficial.” Id. at 33. At step four, the ALJ found that “the claimant [wa]s unable to perform any past relevant work (20 CFR 404.1565 and 416.965).” Id. at 36. At step five, the ALJ found that after “[considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569, 404.1569(a), 416.969, and 404.969(a)).” Id. at 37. Accordingly, the ALJ determined that Plaintiff was not disabled. AR at 38.

B. Plaintiff's Symptom Testimony

Plaintiff asserts that “the ALJ failed to articulate clear and convincing reasons supported by substantial evidence for discounting Ms. McKenzie's symptoms testimony.” Opening Br. (Doc. 17) at 2. Defendant argues that the ALJ properly “made specific findings supported by substantial evidence, satisfying the requirements of the Act, regulations, and case law.” Response (Doc. 18) at 7. Defendant further argues that even if the ALJ erred, such error was harmless. Id. at 12. The Court agrees with Plaintiff and finds the ALJ failed to provide clear and convincing reasons for discounting Plaintiff's testimony.

1. Legal Standard

An ALJ must engage in a two-step analysis to evaluate a claimant's subjective symptom testimony. Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). First, “a claimant who alleges disability based on subjective symptoms ‘must produce objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain or other symptoms alleged[.]'” Smolen v. Chater, 80 F.3d 1273, 128182 (9th Cir. 1996) (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc) (internal quotations omitted)); see also Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014). Further, “the claimant need not show that h[is] impairment could reasonably be expected to cause the severity of the symptom []he has alleged; []he need only show that it could reasonably have caused some degree of the symptom.” Smolen, 80 F.3d at 1282 (citations omitted); see also Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017). “Nor must a claimant produce ‘objective medical evidence of the pain or fatigue itself, or the severity thereof.'” Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014) (quoting Smolen, 80 F.3d at 1282). “[I]f the claimant meets this first test, and there is no evidence of malingering, ‘the ALJ can reject the claimant's testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so.'” Lingenfelter, 504 F.3d at 1036 (quoting Smolen, 80 F.3d at 1281); see also Burrell v. Colvin, 775 F.3d 1133, 1137 (9th Cir. 2014) (rejecting the contention that the “clear and convincing” requirement had been excised by prior Ninth Circuit case law). “This is not an easy requirement to meet: ‘The clear and convincing standard is the most demanding required in Social Security cases.'” Garrison, 759 F.3d at 1015 (quotingMoore v. Comm 'r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)).

The Ninth Circuit Court of Appeals has “repeatedly warned that ALJs must be especially cautious in concluding that daily activities are inconsistent with testimony about pain, because impairments that would unquestionably preclude work and all the pressures of a workplace environment will often be consistent with doing more than merely resting in bed all day.” Garrison, 759 F.3d at 1016 (citations omitted). Furthermore, “[t]he Social Security Act does not require that claimants be utterly incapacitated to be eligible for benefits, and many home activities may not be easily transferable to a work environment where it might be impossible to rest periodically or take medication.” Smolen, 80 F.3d at 1287 n. 7 (citations omitted). The Ninth Circuit Court of Appeals has further noted:

The critical differences between activities of daily living and activities in a full-time job are that a person has more flexibility in scheduling the former than the latter, can get help from other persons . . ., and is not held to a minimum standard of performance, as she would be by an employer. The failure to recognize these differences is a recurrent, and deplorable, feature of opinions by administrative law judges in social security disability cases.

Garrison, 759 F.3d at 1016 (quoting Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir. 2012)) (alterations in original). “While ALJs obviously must rely on examples to show why they do not believe that a claimant is credible, the data points they choose must in fact constitute examples of a broader development to satisfy the applicable ‘clear and convincing' standard.” Id. at 1018 (emphasis in original) (discussing mental health records specifically).

2. Analysis

The ALJ acknowledged the two-step process for assessing Plaintiff's symptom testimony. AR at 33. Next, the ALJ described Plaintiff's responses on the administrative forms and recounted her hearing testimony. Id. at 33-34. The ALJ then concluded “[a]fter careful consideration of the evidence, the undersigned finds that the claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision.” Id. at 34. The ALJ went on to review Plaintiff's medical records and other evidence in the file. See id. at 35-36.

SSR 16-3p³ states, in relevant part:

3 Social Security Rulings are “binding on all components of the Social Security Administration.” 20 C.F.R. §§ 402.35(b)(1) and (2); Heckler v. Edwards, 465 U.S. 873 n.3, 104 S.Ct. 1532, 79 L.Ed.2d 878 (1984).

We will not evaluate an individual's symptoms based solely on objective medical evidence unless that objective medical evidence supports a finding that the individual is disabled. We will evaluate an individual's symptoms based on the evidence in an individual's record as described below; however, not all of the types of evidence described below will be available or relevant in every case.

* * *

In evaluating an individual's symptoms, it is not sufficient for our adjudicators to make a single, conclusory statement that “the individual's statements about his or her symptoms have been considered” or that “the statements about the individual's symptoms are (or are not) supported or consistent.” It is also not enough for our adjudicators simply to recite the factors described in the regulations for evaluating symptoms. The determination or decision must contain specific reasons for the weight given to the individual's symptoms, be consistent with and supported by the evidence, and be clearly articulated so the individual and any subsequent reviewer can assess how the adjudicator evaluated the individual's symptoms.

SSR 16-3p, available at 2017 WL 5180304, at *5, 10 (October 25, 2017).

First, the ALJ observed that Plaintiff “denied socializing with others, even as she admitted attending group therapy sessions[,] [and indicated that] [h]er social life ‘completely ended' and ‘nobody' understood or tolerated her illness.” AR at 34 (emphasis added). The suggestion that group therapy is a social activity is unreasonable on its face. The fact that Plaintiff was able to attend therapy with others in no way diminishes her contention that she has no social life and lacks support. The record consistently reflects Plaintiff's lack of a support system. See, e.g., AR at 412, 417, 536, 552, 558, 560.

Second, the ALJ points to Plaintiff's statement to the state consultative examiner, Robert Gordon, D.O., denying a significant impact on her daily activities and admission that she is able to manage self-care. Id. at 35. As an initial matter, Dr. Gordon deferred any psychiatric/cognitive disorder diagnosis “to any psychological evaluation portion of the disability determination examination process.” Id. at 548. Dr. Gordon's report is unclear whether Plaintiff's denial regarding a significant impact on her daily activities was regarding the cervical pain he was examining her for, or her mental health issues. Furthermore, the ALJ is reminded that “[t]he Social Security Act does not require that claimants be utterly incapacitated to be eligible for benefits, and many home activities may not be easily transferable to a work environment where it might be impossible to rest periodically or take medication.” Smolen, 80 F.3d at 1287 n.7 (citations omitted). “[T]he mere fact that [Plaintiff] cares for small children does not constitute an adequately specific conflict with her reported limitations.” Trevizo v. Berryhill, 871 F.3d 664, 682 (9th Cir. 2017). “Moreover, many home activities are not easily transferable to what may be the more grueling environment of the workplace, where it might be impossible to periodically rest or take medication.” Id. (quotations and citations omitted). Plaintiff spends up to five (5) hours per day with her children at her ex-husband's home, because she is homeless and where he is available to help her. AR at 271, 264. She also attends therapy appointments. Id. at 271. Taking care of her children with help and attending therapy are not consistent with full time work activities.

Third, the ALJ observed that during her hearing testimony, “the claimant complained that her anxiety was so bad, she would not even be able to go to medical appointments.” Id. at 35. The ALJ asserted that the treatment records “do not document multiple missed appointments . . . [and] fail to document such a high level of anxiety or depression on clinical exam, or to corroborate the claimant's testimony of increased isolation.” Id. The ALJ further asserted that she “found only a single reference to panic attacks in the record[,]” and goes on to fault Plaintiff that there is no information regarding “of what these alleged panic attacks consist[.]” Id. The ALJ concluded that “there has been an insufficient offer of proof to clarify these inconsistencies in the claimant's own reports, or to clarify the disparities between her reports and the documentation in her own treatment records[,] [and] [f]or all of these reasons, the claimant's self reports are not wholly persuasive.” AR at 35.

A review of Plaintiff's medical records demonstrates that Plaintiff had periods of disengagement from treatment. See, e.g., id. at 326-27, 408-12, 426, 620, 622, 624, 626, 628, 630, 632, 634. “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.” Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014). Furthermore, contrary to the ALJ's assertion, there are several references to panic attacks in the record. See, e.g., AR at 550, 556, 587-90, 659. “While ALJs obviously must rely on examples to show why they do not believe that a claimant is credible, the data points they choose must in fact constitute examples of a broader development to satisfy the applicable ‘clear and convincing' standard. Garrison, 759 F.3d at 1018 (emphasis in original).

Finally, the ALJ claims an inconsistency between Plaintiff's statement that her hobbies include watching television and listening to music, and her report to Dr. Gordon that she did not have any hobbies or interests. AR at 35. The Court dismisses the idea that Plaintiff must claim identical hobbies at two different periods of time or risk being penalized for being inconsistent. Furthermore, Dr. Gordon observed that Plaintiff was “quite anxious and was crying uncontrollably throughout the entire evaluation.” Id. at 545. Thus, Plaintiff's mental state during his examination calls her response into question.

Based upon the foregoing, the Court finds that the ALJ failed to provide specific, clear and convincing reasons for discounting Plaintiff's testimony which is supported by substantial evidence in the record. See Lingenfelter, 504 F.3d at 1036; Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008). The Court further finds that this error was not harmless. ...

D. Remand

“‘[T]he decision whether to remand the case for additional evidence or simply to award benefits is within the discretion of the court.'” Rodriguez v. Bowen, 876 F.2d 759, 763 (9^th Cir. 1989) (quoting Stone v. Heckler, 761 F.2d 530, 533 (9^th Cir. 1985)). “Remand for further administrative proceedings is appropriate if enhancement of the record would be useful.” Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004) (citing Harman v. Apfel, 211 F.3d 1172, 1178 (9^th Cir. 2000)). Conversely, remand for an award of benefits is appropriate where:

(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, 379 F.3d at 593 (citations omitted). Where the test is met, “we will not remand solely to allow the ALJ to make specific findings. . . . Rather, we take the relevant testimony to be established as true and remand for an award of benefits.” Id. (citations omitted); see also Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). “Even if those requirements are met, though, we retain ‘flexibility' in determining the appropriate remedy.” Burrell v. Colvin, 775 F.3d 1133, 1141 (9th Cir. 2014).

Here, the ALJ committed legal error in assessing Plaintiff's symptom testimony. This analysis requires reconsideration of all evidence in this case. As such, the Court recommends remand on an open record.

IV. CONCLUSION

Based on the foregoing, the Court finds the ALJ committed legal error in assessing Plaintiff's symptom testimony. Such error requires reversal and remand, and the Court will direct reanalysis on an open record. ... ...

V. RECOMMENDATION

For the reasons delineated above, the Magistrate Judge recommends that the District Judge enter an order GRANTING Plaintiff's Opening Brief (Doc. 17) and REVERSING and REMANDING the Commissioner's decision for further consideration.

Pursuant to 28 U.S.C. § 636(b) and Rule 72(b)(2), Federal Rules of Civil Procedure, any party may serve and file written objections within fourteen (14) days after being served with a copy of this Report and Recommendation. A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). No replies shall be filed unless leave is granted from the District Judge. If objections are filed, the parties should use the following case number: CV-21-0556-TUC-JAS.

Failure to file timely objections to any factual or legal determination of the Magistrate Judge may result in waiver of the right of review.