Dellarose v. Bisignano

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 10 C.D., Case No. 25-cv-09334-NC 11 Plaintiff, ORDER REMANDING CASE FOR 12 v. FURTHER PROCEEDINGS 13 SSA COMMISSIONER, Re: ECF 12, 14 14 Defendant. 15 16 Plaintiff C.D. appeals Defendant Commissioner of Social Security Administration’s 17 final administrative decision that found that she was not disabled from October 7, 2022, 18 through October 8, 2024, and denied her applications for disability, disability insurance 19 benefits, and supplement security income (SSI) under Titles II and XVI of the Social 20 Security Act. C.D. argues that the ALJ erred in: (1) rejecting medical opinions, (2) 21 rejecting C.D.’s subjective symptom testimony, (3) assessing C.D.’s residual functional 22 capacity (RFC), and (4) relying on vocational expert (VE) testimony. After reviewing the 23 briefing and administrative record, the Court finds that the ALJ improperly discounted 24 medical opinions and C.D.’s symptom testimony. The Court does not reach the parties’ 25 remaining arguments. The Court REMANDS this case for further proceedings. 26 I. BACKGROUND 27 On October 7, 2022, C.D. applied for a period of disability, disability insurance 1 she stopped working June 2, 2022, “due to hearing loss; anxiety; and depression.” AR 63. 2 C.D.’s claims were initially denied on February 27, 2023, and again denied upon 3 reconsideration on February 6, 2024. AR 55. On February 26, 2024, C.D. filed a written 4 request for a hearing appealing the decision. Id. On appeal, C.D. alleged increased mental 5 health symptoms in “Winter 2023–2024.” AR 63. Further, C.D. requested, and the ALJ 6 agreed to, amend the alleged disability onset date to October 7, 2022. AR 55. The hearing 7 was held on August 7, 2024. Id. C.D., as well as a vocational expert, testified at the 8 hearing. Id. 9 On October 8, 2024, the ALJ issued an unfavorable decision. AR 52–72. The ALJ 10 found that C.D. has engaged in substantial gainful activity since October 7, 2022. AR 58. 11 The ALJ further found that C.D. has the following severe impairments: posttraumatic 12 stress disorder (PTSD), major depressive disorder (MDD), gender dysphoria, generalized 13 anxiety disorder (GAD), and degenerative joint disease of the right knee. Id. The ALJ 14 also assessed C.D.’s hearing loss and irritable bowel syndrome (IBS) but found that they 15 were non-severe because they do not significantly limit C.D.’s ability to do basic work 16 activities. Id. The ALJ then concluded that C.D. “does not have an impairment or 17 combination of impairments that meets or medically equals the severity of one of the listed 18 impairments in 20 CFR Part 404, Subpart P, Appendix 1.” Id. 19 In “consideration of the entire record,” including C.D.’s symptom testimony and 20 medical opinions, the ALJ found that C.D. has the RFC to perform light work as defined in 21 20 CFR 404.1567(b) and 416.967(b) with some exceptions. AR 62. The exceptions were 22 that C.D. “can frequently climb, balance . . ., stoop, and crouch; can kneel and crawl 23 occasionally; and must avoid concentrated exposure to hazard.” Id. The ALJ also found 24 that C.D. “can understand, remember, and carry out simple instructions, can interact with 25 supervisors and co-workers occasionally, and can work with the general public 26 occasionally.” Id. The ALJ then found that C.D. is “unable to perform any past relevant 27 work,” but, considering her RFC, age, education, and work experience, there are “jobs that 1 Accordingly, the ALJ determined that C.D. “is not disabled” and “has not been under a 2 disability, as defined in the [Act] from October 7, 2022,” through October 8, 2024. AR 72. 3 C.D., having exhausted administrative remedies in this matter, now seeks judicial 4 review by the Court. ECF 1. The parties have filed their respective briefs. ECF 12; ECF 5 14; ECF 15. The matter was submitted without oral argument. Civil L.R. 16-5. All 6 parties have consented to magistrate judge jurisdiction. ECF 6; ECF 7. 7 II. LEGAL STANDARD 8 A district court has the “power to enter, upon the pleadings and transcript of the 9 record, a judgment affirming, modifying, or reversing the decision of the Commissioner of 10 Social Security, with or without remanding the case for a rehearing.” 42 U.S.C. § 405(g). 11 The decision of the Commissioner should only be disturbed if it is not supported by 12 substantial evidence or if it is based on legal error. Burch v. Barnhart, 400 F.3d 676, 679 13 (9th Cir. 2005). Substantial evidence is evidence that a reasonable mind would accept as 14 adequate to support the conclusion. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 15 2005) (“[It] is more than a mere scintilla but less than a preponderance”). Even when the 16 ALJ commits legal error, the decision must be upheld if the error is harmless. Treichler v. 17 Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014). However, “[a] 18 reviewing court may not make independent findings based on the evidence before the ALJ 19 to conclude that the ALJ’s error was harmless.” Brown-Hunter v. Colvin, 806 F.3d 487, 20 492 (9th Cir. 2015) (citation omitted). Where evidence is susceptible to more than one 21 rational interpretation, the ALJ’s decision should be upheld. Andrews v. Shalala, 53 F.3d 22 1035, 1039–40 (9th Cir. 1995). 23 III. DISCUSSION 24 C.D. argues the ALJ erred by: (1) rejecting medical opinions without providing 25 legally sufficient reasons supported by substantial evidence, (2) rejecting C.D.’s subjective 26 symptom testimony without providing specific, clear, and convincing reasons supported by 27 substantial evidence, (3) assessing C.D.’s RFC without accounting for all of C.D.’s 1 ECF 12 at 1. The Court finds that the ALJ erred in weighing medical opinions and 2 discounting C.D.’s testimony, and that it need not address C.D.’s remaining arguments. 3 The Court therefore remands this case for further proceedings. 4 A. The ALJ Erred in Weighing Medical Opinions 5 An ALJ must evaluate every medical opinion in evidence and consider various 6 factors in determining the weight to give each opinion. 20 C.F.R. § 404.1527(c). For 7 claims filed after March 27, 2017, as here, the ALJ must explain how he considered the 8 supportability and consistency of a medical opinion to determine the persuasiveness of the 9 opinion. 20 C.F.R § 404.1520c(b). “Supportability means the extent to which a medical 10 source supports the medical opinion by explaining the ‘relevant . . . objective medical 11 evidence.’” Woods v. Kijakazi, 32 F.4th 785, 791–92 (9th Cir. 2022) (quoting 20 C.F.R § 12 404.1520c(c)(1)). “Consistency means the extent to which a medical opinion is ‘consistent 13 . . . with the evidence from other medical sources and nonmedical sources in the claim.’” 14 Id. at 792 (quoting 20 C.F.R § 404.1520c(c)(2)). The ALJ may consider other factors such 15 as “the length and purpose of the treatment relationship, the frequency of examinations, the 16 kinds and extent of examinations that the medical source has performed or ordered from 17 specialists, and whether the medical source has examined the claimant or merely reviewed 18 the claimant’s records.” Id. (citing 20 C.F.R. § 404.1520c(c)(3)(i)–(v)). 19 Here, C.D. argues that the ALJ did not properly evaluate the medical opinions of: 20 (1) Dr. Katherine Wiebe, Ph.D., (2) Dr. Michelanne Baker, Psy. D., and Cadence 21 McCracken, APCC, and (3) Dr. Ryan Gorton, M.D. ECF 12 at 8. The Court finds that the 22 ALJ erred in discounting Dr. Wiebe’s, Dr. Baker’s and APCC McCracken’s, and Dr. 23 Gorton’s medical opinions because she failed to sufficiently address or provide substantial 24 evidence of the required supportability and consistency factors. 25 1. The ALJ Erred in Weighing Dr. Wiebe’s Opinion 26 The ALJ did not find Dr. Wiebe’s opinion persuasive because (1) C.D. was referred 27 to Dr. Wiebe by C.D.’s representative, (2) the opinion was based on a single examination, 1 record as a whole. AR 68. The Court finds that the ALJ erred in weighing Dr. Wiebe’s 2 opinion because she did not give proper weight to Dr. Wiebe’s relationship with C.D, did 3 not consider supportability, and did not provide substantial evidence of inconsistency. 4 a. The ALJ Cannot Rely Solely on Dr. Wiebe’s Referral to 5 and Length of Relationship with C.D. to Discount Dr. 6 Wiebe’s Opinion 7 Both the fact that C.D. was referred to Dr. Wiebe by her counsel and the fact that 8 Dr. Wiebe’s opinion was based on a single examination do not show a lack of 9 supportability, as Defendant contends. ECF 14 at 3. Rather, they go towards the purpose 10 and length of Dr. Wiebe’s “relationship with the claimant,” which cannot by itself be a 11 legitimate basis to discount an opinion. 20 C.F.R. § 404.1520c(b)(2), (c)(3). Indeed, 12 courts have explicitly found that “in the absence of other evidence to undermine the 13 credibility of a medical report, the purpose for which the report was obtained does not 14 provide a legitimate basis for rejecting it,” and “a one-time examination is not, in itself, a 15 legitimate basis to discount an opinion.” Reddick v. Chater, 157 F.3d 715, 726 (9th Cir. 16 1998); R.K. v. Kijakazi, No. 21-cv-01764-VKD, 2023 WL 2393783, at *7 (N.D. Cal. Mar. 17 6, 2023). As such, while the ALJ may consider that C.D. was referred to Dr. Wiebe by her 18 counsel and that Dr. Wiebe’s opinion was based on a single opinion to discount Dr. 19 Wiebe’s opinion, she must also couple that consideration with a discussion of 20 supportability and consistency factors. 21 b. The ALJ Did Not Address the Supportability of Dr. 22 Wiebe’s Opinion 23 Defendant did not argue that the ALJ considered the supportability of Dr. Wiebe’s 24 opinion beyond noting that Dr. Wiebe based her assessment on a single examination. ECF 25 14 at 3. As previously explained, the Court finds that the length of a relationship does not 26 address supportability. Supra Section III.A.1.a. And the Court was unable to find any 27 other instances of the ALJ addressing supportability. As such, the ALJ failed to explain 1 c. The ALJ Did Not Provide Substantial Evidence to 2 Articulate Inconsistency in Dr. Wiebe’s Opinion 3 In finding that Dr. Wiebe’s assessed limitations were overly restrictive and 4 inconsistent with the record as a whole, the ALJ pointed to (1) C.D.’s desire to co-parent 5 and induce lactation, (2) C.D.’s “generally unremarkable” MSEs, (3) Dr. Wiebe’s previous 6 assessment that C.D. could manage funds, and (4) C.D.’s lack of ongoing therapy and 7 psychiatric medication until 2024. AR 68. The Court finds that the ALJ erred by not 8 providing substantial evidence of these alleged inconsistencies. 9 First, the ALJ did not explain how C.D.’s preparation to co-parent a baby by 10 medically inducing lactation contradicts C.D.’s disability. Engagement in ordinary life 11 activities, including childcare, does not necessarily contradict disability without evidence 12 of inconsistency. See Trevizo v. Berryhill, 871 F.3d 664, 682 (9th Cir. 2017) (finding that 13 the ALJ erred in not making specific findings regarding how the activity of childcare was 14 inconsistent with a physician’s opinion). Here, the ALJ cited portions of the record that 15 simply state C.D.’s intent to pursue lactation induction to potentially co-parent a baby, and 16 the ALJ does not explain how C.D.’s preparation to do so is inconsistent with her assessed 17 limitations. AR 68 (conclusorily stating that C.D.’s preparation was “despite” the assessed 18 limitations); see e.g., AR 1214, 1223. Thus, C.D.’s desire to co-parent and induce 19 lactation is not substantial evidence of inconsistency. 20 Second, the ALJ mischaracterized and cherry-picked C.D.’s “generally 21 unremarkable” MSEs. AR 68. Seven of these “MSEs” were mental status observations 22 that were conducted as a part of physical examinations (PEs) to treat physical, not mental, 23 concerns, like testosterone and lactation consolation. AR 1041, 1108–09, 1219, 1230, 24 1238, 1242, 1247. The remaining four MSEs were part of mental health treatment. AR 25 1226–28, 1232. While the mental status observations in the PEs did note that C.D.’s 26 mood, affect, thought content, and judgment were “normal,” the ALJ ignored that the MSE 27 observations found that C.D. had a dysthymic mood, and had antisocial, hopelessness, and 1 other MSEs that contained psychological abnormalities such as anxiety, agitated behavior, 2 and depression. See, e.g., AR 84, 1247, 1427. The ALJ improperly focused on some test 3 results while ignoring the remainder. See Williams v. Colvin, No. 14-cv-2146-PLA, 2015 4 WL 4507174, at *6 (C.D. Cal. July 23, 2015) (“An ALJ may not cherry-pick evidence to 5 support the conclusion that a claimant is not disabled, but must consider the evidence as a 6 whole in making a reasoned disability determination.”) (citing Holohan v. Massanari, 246 7 F.3d 1195, 1207 (9th Cir. 2001)); see also Landis v. O’Malley, No. 23-cv-00881-SKO, 8 2024 WL 1138183, at *7 (E.D. Cal. Mar. 15, 2024) (finding that the ALJ cherry-picked 9 evidence by ignoring evidence of abnormal MSEs and focused only on nonsevere MSEs 10 conducted during clinic visits to treat physical ailments). Therefore, the MSEs do not 11 constitute substantial evidence of inconsistency. 12 Third, the ALJ failed to provide an explanation why Dr. Wiebe’s finding that C.D. 13 could manage her own funds contradicted Dr. Wiebe’s opinion of a mental limitation in 14 understanding, remembering, or applying information and concentration, persistence and 15 maintain pace. AR 68. “The ALJ must do more than offer [her] conclusions. [She] must 16 set forth [her] own interpretations and explain why they, rather than the doctors,’ are 17 correct.” Reddick, 157 F.3d at 725. Here, the ALJ’s statement that C.D.’s ability to 18 manage her own funds contradicted Dr. Wiebe’s mental limitation was conclusory, and 19 thus, is not substantial evidence of inconsistency. AR 68 (merely stating that Dr. Wiebe’s 20 opinion was “inconsistent” with the limitations). 21 Fourth, the ALJ improperly relied on C.D.’s alleged lack of therapy and psychiatric 22 medication until 2024 to show inconsistency with Dr. Wiebe’s assessed limitations. The 23 Ninth Circuit has “particularly criticized” basing a rejection of mental complaints on a lack 24 of treatment “both because mental illness is notoriously underreported and because it is a 25 questionable practice to chastise one with a mental impairment for the exercise of poor 26 judgment in seeking rehabilitation.” Regennitter v. Comm’r of Soc. Sec. Admin., 166 F.3d 27 1294, 1299–1300 (9th Cir. 1999) (cleaned up, citing Nguyen v. Chater, 100 F.3d 1462, 1 ALJ to base her assessment of Dr. Wiebe on the alleged lack of treatment, especially 2 considering the ALJ agreed that C.D. has severe mental illnesses such as PTSD, MDD, and 3 GAD. AR 58; ECF 14 at 3. As such, the alleged lack of therapy and psychiatric 4 medication until 2024 is not substantial evidence of inconsistency. 5 In sum, the Court finds that the ALJ erred in discounting Dr. Wiebe’s opinion 6 because she incorrectly weighed Dr. Wiebe’s purpose and length of relationship, failed to 7 address supportability, and did not present substantial evidence of inconsistency. 8 2. The ALJ Erred in Weighing Dr. Baker’s and APCC McCracken’s 9 Opinion 10 The ALJ did not find APCC McCracken and Dr. Baker’s MIQ persuasive because it 11 was “overly restrictive and not consistent with the overall record,” noting that (1) the MIQ 12 was provided two months after C.D. began therapy with APCC McCracken, (2) APCC 13 McCracken appears to rely heavily on C.D.’s subjective allegations, (3) records show 14 minimal therapy and no evidence of psychiatric medication prior to this assessment, and 15 (4) the MIQ “is not entirely consistent with or supported by” the overall record, which 16 shows generally unremarkable MSEs. AR 69. The Court finds that the ALJ erred by 17 giving improper weight to the length of Dr. Baker/APCC McCracken’s relationship with 18 C.D. and not providing substantial evidence of the supportability and consistency factors. 19 a. The ALJ Cannot Solely Rely on the Length of the Dr. 20 Baker/APCC McCracken’s Relationship With C.D. to 21 Discount Their Medical Opinion 22 That the MIQ was provided “only” two months after Plaintiff began therapy with 23 APCC McCracken is insufficient, by itself, to discount APCC McCracken/Dr. Baker’s 24 medical opinion. See supra Section III.A.1.b.i. This fact does not show a lack of 25 supportability, as Defendant contends. ECF 14 at 4. Rather, it goes towards the length of 26 Dr. Baker and APCC McCracken’s “relationship with the claimant,” which cannot by itself 27 be a legitimate basis to discount an opinion. 20 C.F.R. § 404.1520c(b)(2), (c)(3). 1 b. The ALJ Did Not Provide Substantial Evidence to 2 Articulate Supportability 3 As to supportability, the ALJ improperly relied on APCC McCracken’s allegedly 4 heavy reliance on C.D.’s subjective testimony in discounting the MIQ. In psychiatry, 5 “diagnoses will always depend in part on the patient’s self-report,” and thus, partial 6 reliance on C.D.’s self-reported symptoms is not a reason to reject Dr. Baker/APCC 7 McCracken’s opinion. Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017). This is 8 especially because, as explained below, the ALJ did not properly discount C.D.’s 9 symptoms. See Morgan v. Comm’r of the Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir. 10 1999) (“A physician’s opinion of disability premised to a large extent upon the claimant’s 11 own accounts of his symptoms and limitations may be disregarded where those complaints 12 have been properly discounted.”) (internal quotation marks and citation omitted). Further, 13 the ALJ did not address that the MIQ was also based on “Psychological Evaluations and 14 Reports/Opinions,” not just C.D.’s subjective testimony. AR 1402. As such, the ALJ did 15 not provide substantial evidence to show the supportability of Dr. Baker/APCC 16 McCracken’s opinion. 17 c. The ALJ Did Not Provide Substantial Evidence to 18 Articulate Inconsistency 19 The ALJ states that minimal therapy and no evidence of psychiatric medication 20 prior to this assessment and “generally unremarkable MSEs” show inconsistency with Dr. 21 Baker/APCC McCracken’s MIQ. Neither constitute substantial evidence of inconsistency. 22 The ALJ again erred by relying on using a lack of treatment to discount a medical 23 opinion. See Supra Section III.A.1.c. As previously discussed, the Ninth Circuit 24 discourages basing a rejection of mental complaints on a lack of treatment. See 25 Regennitter, 166 F.3d at 1299–1300. 26 Further, the ALJ erred in failing to adequately identify the MSEs findings such that 27 the Court can meaningfully analyze them. AR 69 (citing to 2F, 4F–7F, 10F, 14F, 16F, and 1 same “generally unremarkable” MSEs assessed in her assessment of Dr. Wiebe, the ALJ 2 again improperly mischaracterized and cherry-picked the MSEs. Supra Section III.A.1.c. 3 In sum, the Court finds that the ALJ erred in discounting the opinions of Dr. Baker 4 and APCC McCracken because she failed to present substantial evidence of a lack of 5 supportability and consistency, and evidence of a short relationship with C.D. is not 6 sufficient to discount a medical opinion by itself. 7 3. The ALJ Erred in Weighing Dr. Gorton’s Opinion 8 The ALJ found Dr. Gorton’s opinion unpersuasive and “overly restrictive” because 9 it was “not supported by the treatment notes and is not consistent with the claimant’s 10 treatment history or testimony.” AR 69. The Court finds that the ALJ erred because she 11 did not provide substantial evidence of the supportability and consistency factors. 12 a. The ALJ Did Not Provide Substantial Evidence 13 Articulating Supportability 14 As to supportability, the ALJ erred by conclusorily stating that Dr. Gorton’s opinion 15 is “not supported by treatment notes” and that his assessment “relie[s] heavily” on C.D.’s 16 allegations stated during the August 5, 2024, conversation about permanent disability. AR 17 69–70. 18 First, the ALJ erred by not explaining how Dr. Gorton’s opinion is not supported by 19 treatment notes. AR 69 (including no citations as to Dr. Gorton’s opinion being not 20 supported by treatment notes). The ALJ did not address that Dr. Gorton used medical 21 findings, including hearing loss that requires hearing aids, “MRI that showed an old ACL 22 tear as well as meniscal injury,” psycho-emotional elements, and IBS, to support C.D.’s 23 limitations. AR 1410–11. To the extent that the ALJ was discounting Dr. Gorton’s 24 opinion because it was based on Dr. Gorton “alleging the claimant needs hearing aids,” 25 despite C.D. testifying that “she does not use them” and demonstrating “no difficulty 26 hearing and understanding what was said or asked of her,” the Court finds that this would 27 not be substantial evidence of supportability, but rather consistency. AR 69. This applies 1 treatment history or testimony.” See ECF 14 at 5 (stating that in terms of supportability, 2 Dr. Gorton’s opinion was not consistent with C.D.’s treatment history or testimony). The 3 Court addresses any consistency arguments in the next section. 4 Second, the ALJ errs in failing to adequately explain how reliance on the August 5, 5 2024, conversation would be unpersuasive or explain how she came to that conclusion. 6 The ALJ only conclusorily stated that Dr. Gorton’s assessment relied heavily on C.D.’s 7 August 5, 2024, allegations and cited to an exhibit spanning over 100 pages. AR 70 (citing 8 6F). Thus, the Court is unable to meaningfully review the ALJ’s argument. 9 b. The ALJ Did Not Provide Substantial Evidence 10 Articulating Consistency 11 The ALJ states that Dr. Gorton’s medical opinion was inconsistent with C.D.’s 12 treatment history and testimony because: (1) the records reveal a lack of significant 13 complaints or care for IBS, denials of abdominal pain, intermittent complaints and minimal 14 treatment for knee pain with generally unremarkable PE findings, and no evidence of any 15 significant or chronic gait changes or weakness; and (2) records show the claimant denied 16 tremor inconsistent with Dr. Gorton’s manipulative limitations. AR 69–70. The Court 17 also assesses the ALJ’s argument that (3) Dr. Gorton’s allegation that C.D. needed hearing 18 aids is inconsistent with C.D.’s testimony and ability to hear and understand. AR 69. The 19 Court finds that these do not constitute substantial evidence of inconsistency for Dr. 20 Gorton’s entire medical opinion. 21 First, the ALJ erred by mischaracterizing the record as showing a lack of significant 22 complaints or care for IBS, denials of abdominal pain, intermittent complaints and minimal 23 treatment for knee pain with generally unremarkable physical examination findings and no 24 evidence of any significant or chronic gait changes or weakness. Regarding C.D.’s IBS 25 and abdominal pain, the record shows consistent diagnoses, ongoing symptoms, use of 26 medication such as MiraLAX, and a letter from her primary care doctor requesting dietary 27 accommodation. AR 15–16, 24, 645–46, 655, 672–74, 996, 1088, 1245. The ALJ also 1 watching what she does with her knee, and referral for possible surgical intervention. AR 2 288, 1101, 1231, 1241, 1333, 1359, 1446, 1518, 1552. Further, there were PE findings 3 that showed tears of the anterior cruciate ligament, medial meniscus, and posterior horn of 4 lateral meniscus, displaced meniscal fragment, tenderness to palpation at both joint lines, a 5 positive McMurray’s test, and a grade 2b Lachman test. AR 1102, 1187, 1470. The ALJ 6 additionally failed to address the June 22, 2023, Review of Systems documenting “gait 7 problems and joint swelling,” and multiple treatment notes and hearing testimony where 8 C.D. describes difficulty walking and standing due to knee locking, popping out, and 9 swelling. AR 286–89, 1241, 1243, 1333, 1359–60, 1467, 1552. 10 Second, the ALJ erred by failing to adequately identify where C.D. denied tremor. 11 AR 65 (citing 6F, which spans over a hundred pages). The ALJ also erred by ignoring 12 other parts of the record that consistently noted complaints and diagnoses of tremors dating 13 back to 2022. AR 86, 267, 644–46, 650, 653, 655, 726, 770, 779, 780, 792, 815–16, 819, 14 821–22, 1037–38, 1214–15, 1233, 1361, 1394, 1520, 1595. The ALJ must consider all 15 relevant medical and other evidence in the case record. S.M. v. Comm’r of Soc. Sec., No. 16 24-cv-06297-NC, 2025 WL 1527761, at *6 (N.D. Cal. May 29, 2025) (citations omitted). 17 Third, the ALJ did not err by pointing out inconsistencies between C.D.’s alleged 18 need for hearing aids and C.D.’s testimony and ability to hear and understand without 19 difficulty. AR 69. A reasonable mind would find that having no difficulty hearing and 20 understanding what was said or asked of her would be inconsistent with needing a hearing 21 aid. C.D. points out that she testified she could not use her hearing aids because “they 22 have so much background noise,” which is consistent with Dr. Gorton’s statement that 23 “hearing aids . . . cause sensitivity to noise.” AR 1411. However, the ALJ’s consistency 24 argument is that that C.D. does not need hearing aids, not that hearing aids would not 25 cause sensitivity to noise. Further, it does not matter that the ALJ failed to assess other 26 parts of the record that supports C.D.’s alleged hearing loss because having hearing lsos 27 does not equate to needing hearing aids. However, a single discrepancy fails to justify 1 2019 WL 1055860, at *11 (W.D. Wash. Mar. 5, 2019) (citing Popa v. Berryhill, 872 F.3d 2 901, 906–07) (9th Cir. 2017). Here, the inconsistency only goes towards Dr. Gorton’s 3 opinion that C.D. has hearing loss that requires hearing aids. 4 In sum, the Court finds that the ALJ erred in discounting Dr. Gorton’s entire 5 opinion because she failed to present substantial evidence of a lack of supportability and 6 only presented substantial evidence of inconsistency for his opinion that C.D. needed 7 hearing aids. 8 B. The ALJ Erred in Weighing C.D.’s Testimony 9 “In evaluating the credibility of a claimant’s testimony regarding subjective pain, an 10 ALJ must engage in a two-step analysis.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 11 2009) (citing Lingenfelter v. Astrue, 504 F.3d 1028, 1035–36 (9th Cir. 2007)). “First, the 12 ALJ must determine whether the claimant has presented objective medical evidence of an 13 underlying impairment which could reasonably be expected to produce the pain or other 14 symptoms alleged.” Id. Second, if the claimant meets this first test, and there is no 15 evidence of malingering, the ALJ can reject the claimant’s testimony about the severity of 16 her symptoms only by offering “specific, clear and convincing reasons for doing so.” Id. 17 “General findings are insufficient; rather, the ALJ must identify what testimony is not 18 credible and what evidence undermines the claimant’s complaints.” Berry v. Astrue, 622 19 F.3d 1228, 1234 (9th Cir. 2010) (citation omitted). In weighing a claimant’s credibility, 20 the ALJ may consider their reputation for truthfulness; inconsistencies either in their 21 testimony or between their testimony and their conduct; their daily activities; work record; 22 and testimony from physicians and third parties concerning the nature, severity, and effect 23 of the symptoms of which they complain. See Smolen v. Chater, 80 F.3d 1273, 1284 (9th 24 Cir. 1996) (citations omitted). 25 Here, the Court addresses only whether the ALJ erred in the second step because 26 there is no dispute that the ALJ determined that C.D. has presented objective medical 27 evidence of her underlying impairments and did not allege evidence of malingering. AR 1 effects” of her symptoms because they are “inconsistent with the overall record, which 2 shows the claimant’s condition was not as debilitating as alleged.” AR 64. The ALJ’s 3 evaluation was based on four alleged grounds: (1) C.D.’s testimony was inconsistent with 4 the medical evidence, (2) C.D. pursued routine and conservative treatment purportedly 5 inconsistent with the severity of her allegations, (3) C.D. engaged in daily activities, 6 including brief work activity involving kneeling and crouching, inconsistent with 7 disability, and (4) the ALJ permissibly relied on her own observations that C.D. appeared 8 “well put together” at the hearing together with treatment notes reflecting appropriate 9 grooming and presentation. ECF 15 at 4–5. The Court finds that the ALJ erred in 10 evaluating C.D.’s symptom testimony because she did not provide substantial evidence of 11 “specific, clear and convincing reasons” to discredit C.D. 12 1. The ALJ Fails to Sufficiently Show that the Record is Inconsistent 13 with C.D.’s Symptom Testimony 14 The ALJ states that the record is inconsistent with C.D.’s testimony about “the 15 intensity, persistence, and limiting effects of her symptoms.” AR 64. In particular, the 16 ALJ stated that: (1) contrary to C.D.’s allegations that she had an inability to work due to 17 anxiety, depression, and PTSD, the “record shows that C.D.’s expressed priority was 18 gender affirming care, which she has diligently and consistently followed through with” 19 and which C.D. “[did] well” in; (2) contrary to allegations of “debilitating symptoms of 20 depression, anxiety, and PTSD, records show little mental health treatment and on 21 psychiatric medications until 2024;” (3) C.D.’s mental status examinations (MSEs) were 22 generally unremarkable and consistently showed impulse control, insight, and judgment 23 were intact; (4) contrary to C.D.’s reports of “passive suicidal thoughts, records show she 24 has expressed hope and was future oriented, evidenced by her actions;” and (5) C.D.’s 25 allegations of limited ability to stand, walk, sit, and lift, are inconsistent with records 26 lacking evidence of significant or chronic gait changes or weakness. AR 64–66. The 27 Court finds that these alleged inconsistencies do not constitute specific, clear, and 1 First, the ALJ erred by not providing clear, convincing reasons to explain how C.D. 2 prioritizing gender affirming care, consistently followed through with such care, and 3 “doing well” after such care, is inconsistent with C.D.’s allegations that she was unable to 4 work due to anxiety, depression, and PTSD. It is not clear on its face, and the ALJ did not 5 explain, how prioritizing gender affirming care or following through with such care is 6 inconsistent with being unable to work due to anxiety, depression, and PTSD. Pointing out 7 that C.D. was “doing well” after breast augmentation surgery and “happy with the 8 glandular development she has achieved” is also not a clear and convincing reason—both 9 are in relation to her gender-affirming care, and not her ability to work or to her work- 10 related functional capacity. AR 65; see Hutsell v. Massanari, 259 F.3d 707, 712 (8th Cir. 11 2001) (finding that the Commissioner erroneously relied too heavily on indications in the 12 medical record that the plaintiff was “doing well,” because doing well for the purposes of a 13 treatment program has no necessary relation to a claimant’s ability to work or to her work- 14 related functional capacity”). Further, the ALJ cherry-picked one piece of evidence that 15 noted a “reported reduction in suicidality and depression” and failed to take into 16 consideration evidence of ongoing psychological impairment during this time, including 17 her “dysphoric mood.” See, e.g., AR 1124, 1226–28, 1232; Garrison v. Colvin, 759 F.3d 18 995, 1017 (9th Cir. 2014) (stating that an ALJ errs by selectively relying on isolated 19 instances of improvement while ignoring evidence of ongoing impairment). Defendant did 20 not address this argument in its brief. ECF 12. 21 Second, the ALJ erred by not providing clear, convincing reasons that C.D.’s 22 allegations that she could not work due to mental issues are inconsistent with records 23 showing little mental health treatment and psychiatric medications until 2024. AR 65. 24 While the ALJ may consider LCSW’s notes stating the frequency of treatment, she may 25 not do so “without considering possible reasons he or she may not comply with treatment 26 or seek treatment consistent with the degree of his or her complaints” in compliance of 27 SSR 16-3p (section 2.d.). The ALJ failed to do so despite documented mental health 1 whether the gap in mental healthcare was unexplained and the medical records suggest an 2 explanation related to the severity of C.D.’s complaints, the ALJ’s reliance on this gap is 3 not a specific, clear and convincing reason for his credibility determination. See J.M. v. 4 Saul, No. 19-cv-04908-JCS, 2021 WL 858369, at *13 (N.D. Cal. Mar. 7, 2021). 5 Third, the ALJ erred by not specifically “identify[ing] the testimony that was not 6 credible” with the “generally unremarkable” MSEs. Treichler, 775 F.3d at 1103 (quoting 7 Reddick, 157 F.3d at 722). The ALJ did not identify which part of C.D.’s testimony was 8 inconsistent with the MSEs, conclusorily stating that the MSEs were inconsistent with 9 “claimant’s allegations.” AR 65. The Court cannot correct the error by retroactively 10 piecing together medical evidence identified by the ALJ with conflicting claimant 11 testimony independently identified by the Court. Jessica B. v. Comm’r of Soc. Sec., No. 12 18-cv-3074-TOR, 2019 WL 850954, at *9 (E.D. Wash. Jan. 30, 2019) (citing Brown- 13 Hunter v. Colvin, 806 F.3d 487, 493-94 (9th Cir. 2015)). The ALJ further erred by failing 14 to adequately identify the MSEs findings. AR 65 (generally citing 2F, 4F–9F, 10F, 16F, 15 and 17F, which spans over hundreds of pages). Regardless, the Court notes that the ALJ 16 appears to continue to mischaracterize and cherry-pick the MSEs findings. See supra 17 Section III.A.1.c. 18 Fourth, the ALJ erred by not providing clear, convincing reasons that C.D.’s 19 allegations of “passive suicidal thoughts” were inconsistent with records showing that she 20 had expressed hope and was future oriented. AR 65. “Mental-health evidence must be 21 evaluated in the overall diagnostic context, and isolated notations such as being future 22 oriented do not contradict ongoing severe symptoms.” Ghanim v. Colvin, 763 F.3d 1154, 23 1164 (9th Cir. 2014) (quotations omitted). And here, even if there may be portions of the 24 record that describe C.D. as more hopeful, when read as a whole, the record shows many 25 instances of passive suicidal ideation over many years. AR 630, 1168–70, 1226, 1228, 26 1234, 1329, 1331, 1334, 1341, 1402, 1416, 1496, 1512, 1514. 27 Fifth, the ALJ cannot solely relying on objective medical evidence to show that 1 lack of evidence of significant or chronic gait changes or weakness. AR 66. An ALJ may 2 not make an adverse finding “solely because” the claimant’s symptom testimony “is not 3 substantiated affirmatively by objective medical evidence.” Robbins v. Soc. Sec. Admin., 4 466 F.3d 880, 883 (9th Cir. 2006). While the ALJ did offer other rationales to discount 5 C.D.’s allegations of the severity of her knee pain, as further explained below, those were 6 insufficient to discount C.D.’s testimony. Infra Section III.B.2, 3. 7 2. The ALJ Failed to Consider Why C.D. Did Not Seek Treatment 8 Consistent with Her Symptoms 9 The ALJ then argues that C.D.’s testimony should be discounted because C.D. 10 engaged in routine and conservative treatment incommensurate with her alleged level of 11 impairment. ECF 14 (citing AR 63–66). Specifically, the ALJ points out an inconsistency 12 because: (1) the records lack evidence of reports or treatment of her knee pain between 13 June 2023 and July 2024, (2) C.D. testified that she had not had any treatment for her knee 14 in the last five years, and (3) C.D. did not mentioning possibly needing surgery until she 15 had a “conversation about permanent disability” two days before the August 2024 hearing. 16 AR 66 (citing 7F/32, 15F/2, 17F/36). 17 As we stated before, while the ALJ may consider frequency of treatment, if she 18 does so, she must also consider “possible reasons he or she may not comply with treatment 19 or seek treatment consistent with the degree of his or her complaints” in compliance of 20 SSR 16-3p (section 2.d.). Further, “although a conservative course of treatment can 21 undermine allegations of debilitating pain, such fact is not a proper basis for rejecting the 22 claimant’s credibility where the claimant has a good reason for not seeking more 23 aggressive treatment.” Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th 24 Cir. 2008) (citing Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007)). Here, the ALJ did not 25 consider any reasons why C.D. did not seek treatment consistent with the degree of her 26 complaints. For example, she did not consider that her physical therapist did not “want to 27 repair it because [C.D.] is not a sports person” and that she declined surgery because her it 1 3. The ALJ Failed to Show That Her Previous Job Required 2 Crouching and Kneeling 3 The ALJ then stated that C.D.’s work doing bike repairs for several months would 4 require her to crouch and kneel, inconsistent with her disabling knee pain. AR 66. The 5 ALJ erred in speculating without evidentiary support that the job required kneeling or 6 crouching. AR 66 (only generally citing “Hearing testimony” generally). The ALJ also 7 failed to address C.D.’s testimony that she worked for “only a couple of months” and the 8 job “didn’t work out.” AR 283. A brief, unsuccessful work attempt does not undermine 9 symptom testimony, and claimants may not be penalized for attempting to work despite 10 their impairments. Lingenfelter, 504 F.3d at 1038 (“[A] nine week unsuccessful work 11 attempt is surely not a clear and convincing reason for finding that a claimant is not 12 credible regarding the severity of his impairment.”). 13 4. The ALJ Failed to Explain How Her Observations Contradicted 14 C.D.’s Testimony About Grooming 15 The ALJ relied on her own observations show that C.D. appeared well put together 16 at the hearing together with treatment notes reflecting appropriate grooming and 17 presentation to discount C.D.’s allegations of difficulties with personal hygiene. ECF 14 at 18 11. The ALJ is allowed to consider “observations by our employees and other persons.” 19 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3). However, the ALJ erred by not explaining 20 how C.D.’s testimony is contradicted by occasional observations of good grooming. C.D. 21 testifies that she must “mentally force” herself to shower and may go weeks without doing 22 so and “there is times that [C.D.] can’t [put makeup on and do [her]nails.” AR 291. She 23 will shower to, for example, “go[] out on a date” because she does not “want to smell bad,” 24 but otherwise “basically” stays in her apartment. Id. On this record, it is not clear and 25 convincing that occasional observation of good grooming while C.D. is out of the house 26 contradicts C.D.’s description of her hygiene. 27 In sum, the ALJ did not provide specific, clear, and convincing evidence necessary 1 C. The Court Does Not Reach the ALJ’s RFC Determination 2 or Use of VE Testimony 3 The Court does not reach the parties’ remaining arguments on the ALJ’s RFC 4 determination and VE testimony. The ALJ will need to reassess her RFC determination, 5 which was in part based on the ALJ’s assessment of both medical opinions and C.D.’s 6 allegations. See DeVries v. Comm’r of Soc. Sec., No. 18-cv-02824-VKD, 2019 WL 7 4839991, at *18 (N.D. Cal. Sept. 30, 2019) (listing cases where the court vacated the 8 ALJ’s RFC determination where ALJ failed to give legally sufficient reasons for rejecting 9 aspects of medical opinions and claimant testimony). The ALJ will also therefore need to 10 call a new VE, as the VE’s testimony is premised on a hypothetical that stems from the 11 RFC determination. Ryan L. v. Kijakazi, No. 20-cv-05163-JAG, 2023 WL 2705842, at *8 12 (E.D. Wash. Mar. 29, 2023). 13 D. The Court Remands for Further Proceedings 14 The Court remands for further proceedings. C.D. argues that the Court should 15 remand for an award of benefits. A remand for an award of benefits is appropriate where: 16 (1) the record is fully developed and further proceedings would serve no useful purpose; 17 (2) the ALJ failed to provide legally sufficient reasons for rejecting medical opinion 18 evidence or symptom testimony; and (3) crediting the improperly rejected evidence as true 19 would require a finding of disability. Garrison, 759 F.3d at 1020–21. Here, the Court 20 finds that the ALJ did not properly assess the medical opinions or C.D’s symptom 21 allegations, in part because the ALJ did not consider all relevant factors. This results in the 22 necessary reassessment of the ALJ’s RFC determination and new VE hypothetical and 23 testimony. Additional proceedings would allow the ALJ to consider all relevant factors 24 and conduct additional investigation or explanation. Treichler, 775 F.3d at 1099. Thus, the 25 “proper course” is to remand for further proceedings. Id. 26 On remand, the ALJ shall reassess (1) Dr. Wiebe’s opinion, (2) Dr. Baker/APCC 27 McCracken’s opinion, (3) Dr. Gorton’s opinion, (4) C.D.’s symptom testimony, and (5) 1 || IV. CONCLUSION 2 Based on the foregoing, the Court REMANDS this case for further administrative 3 || proceedings consistent with this order. The Clerk shall enter judgment accordingly and 4 || close this file. 5 6 IT IS SO ORDERED. 7 8 || Dated: August 21, 2026 h_<————~_ NATHANAEL M. COUSINS 9 Chief United States Magistrate Judge 10 11 12 13 14 15 16 19 20 21 22 23 24 25 26 27 28