BACKGROUND

20

I. Administrative Proceedings

21 On September 21, 2019, plaintiff Alexander H. protectively filed an application for 22 Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act. AR 15. Plaintiff 23 alleged disability beginning May 1, 2006. His application was denied initially and upon 24 reconsideration. Id. Plaintiff then filed a written request for a hearing, which took place by 25 telephone on June 7, 2022. Plaintiff was represented by counsel at the hearing. Plaintiff testified, 26 27 1 as did medical expert Dr. Jay Toews and vocational expert Dr. Sabrina Singleton. Id. At the hearing, 2 plaintiff amended his alleged onset date to September 21, 2019. Id. at 43-44. On August 1, 2022, 3 Administrative Law Judge (“ALJ”) Brian M. Steger issued an unfavorable decision. Id. at 28. The 4 Appeals Council denied plaintiff’s request for review, making the ALJ’s decision the final decision 5 of the Commissioner of Social Security. Id. at 1. 6 Plaintiff then filed this action for judicial review under 42 U.S.C. § 405(g). Dkt. No. 1. 7 8 II. Medical and Personal History 9 Plaintiff was forty-one years old when he filed for Social Security benefits, alleging 10 disability for post-traumatic stress disorder (“PTSD”), depression, and a learning disability. Id. at 11 64-65. In sixth grade, plaintiff was diagnosed with a learning disability and placed in remedial 12 classes. Id. at 574 (Catlin Report). He continued to struggle academically and eventually dropped 13 out of high school. Id. Although plaintiff attempted to work at several fast-food restaurants, he 14 struggled to understand and perform his assigned tasks and would be let go after only a few days. 15 Id. He eventually stopped working and began engaging in criminal behavior, resulting in several 16 incarcerations. Id. In 2009, plaintiff was sentenced to nine years in prison on assault charges. Id. 17 After being released in 2018, plaintiff struggled to find long-term housing and was living in a shed 18 as of December 2021. Id. His most recent employment was at P.F. Chang’s, where he worked as a 19 dishwasher for several months in 2019-2020 before quitting after a co-worker made several racist 20 comments toward him. Id. at 284, 290, 293, 574. 21 22 A. Disability and Function Reports 23 In a November 2019 Function Report2 plaintiff described his daily activities: he had no 24 problems with his personal care; he prepared his own meals three times per week; he needed no help 25 or encouragement to do household chores; he went outside once per day and was able to use public 26 transportation alone; he shopped in stores twice a month; he was able to pay bills and manage his 27 1 money; he read, although “not often”; he spent time with others and did not need reminders nor 2 accompaniment to go places; and he had no problems getting along with others. Id. at 325-29. 3 In a February 2020 Disability Report plaintiff described changes to his medical conditions 4 beginning December 2019. Id. at 333. He reported feeling “more depressed and less motivated” 5 and was “not sleeping well and ha[d] lost appetite.” Id. He also stated that he no longer went out 6 and tended to isolate because he preferred to be alone. Id. at 335. 7 On April 29, 2020, plaintiff completed a second Function Report, stating he struggled to 8 process information and directions, and that he was forgetful and “always sleepy” due to his 9 medication.3 Id. at 340. At this point, plaintiff reported being homeless.4 Id. Regarding his daily 10 activities, plaintiff alleged that he spent his days watching television, sleeping, and occasionally 11 working out; he had difficulty sleeping and staying asleep; he needed reminders to tend to his 12 personal care and to take his medication; he no longer prepared his own meals because he would 13 get confused; he no longer used public transportation or shopped; he could no longer handle money 14 because he was forgetful and would get confused; he “would attend groups in the community” but 15 he preferred to be alone most of the time. Id. at 341-45. Plaintiff reported that his medical conditions 16 affected his ability to lift, stand, walk, talk, hear, remember, complete tasks, concentrate, understand, 17 follow instructions, use his hands, and get along with others. Id. at 345. He also reported needing 18 frequent clarification of instructions and not handling stress or changes in routine well due to 19 frustration and confusion. Id. 345-46. 20 21 B. Psychological Evaluations 22 1. Dr. Rita Sampaio, Ph.D. (Examining Consultant) 23 On November 26, 2019, plaintiff met with Dr. Rita Sampaio, who conducted a psychological 24

25 3 Plaintiff had assistance in completing the April 2020 Function Report. AR 347. The section of the report asking which medications he was taking is left blank, with the following remark 26 below: “Client was not sure which medications had what side effects. Client at times would not be sure how to answer questions and would get confused.” Id. 27 1 evaluation. Id. at 451. Dr. Sampaio noted plaintiff “was not forthcoming about past history or 2 present mood issues, reporting ‘I guess,’ ‘I don’t know,’ ‘I’m not sure,’ even when leading questions 3 about anxiety/depression.” Id. at 451-52. During the mental status examination, Dr. Sampaio found 4 it “[s]omewhat difficult to establish rapport” with plaintiff due to his “[d]etached” attitude. Id. at 5 453. According to Dr. Sampaio, plaintiff was easily frustrated, easy to give up, and required 6 “encouragement and redirection to be on tasks.” Id. 7 Plaintiff denied having physical limitations due to his medical conditions but claimed 8 inability to work because he was forgetful, could not concentrate, and disliked being around people. 9 Id. Dr. Sampaio reported that plaintiff was independent in his basic activities of daily living, 10 including preparing his own meals, driving, using public transportation or ride-share services, 11 shopping, showering, and dressing himself. Id. Plaintiff claimed to spend his days “thinking, doing 12 laundry, watching news on TV.” Id. 13 Dr. Sampaio administered a series of tests. The Mini Mental State Examination (“MMSE”) 14 found plaintiff to have mild to moderate difficulty following simple directions and moderate to 15 marked difficulty following complex directions. Id. at 455-56. Dr. Sampaio observed that plaintiff 16 presented with “fair to good effort,” although he needed “encouragement and guidance to continue 17 and complete tasks.” Id. The MMSE concluded that plaintiff’s overall cognitive functioning was 18 moderately impaired. Id. On the Weschler Adult Intelligence Scale – Fourth Edition plaintiff was 19 found to have borderline verbal comprehension and extremely low perceptual reasoning, working 20 memory, processing speed, and a full-scale IQ of 64. Id. at 457. On the Weschler Memory Scale – 21 Fourth Edition plaintiff showed borderline immediate memory, delayed memory, auditory memory, 22 and visual memory. Id. at 458. Dr. Sampaio diagnosed plaintiff with borderline intellectual 23 functioning, unspecified depression disorder, and unspecified anxiety disorder. Id. at 459. 24 Based on these findings and a review of accompanying documentation, Dr. Sampaio found 25 plaintiff had mild to moderate limitations in the ability to understand, remember, and perform 26 simple/repetitive written and oral instructions. She found moderate to marked limitations in the 27 ability: to understand, remember, and perform complex/detailed written and oral instructions; to 1 during a normal workday (i.e., plaintiff needs “encouragement and guidance to remain and complete 2 task”); to adapt to the usual stresses of a competitive work environment (i.e., plaintiff “[s]eems to 3 have difficulty adapting to change” and “[b]ecomes qui[te] overwhelmed”); to perform activities 4 within a schedule and maintain regular attendance (i.e., plaintiff is “a slow processor”); and to 5 complete a normal workday or workweek without interruptions from a psychiatric condition. Id. at 6 460-61. 7 8 2. Dr. Laura Catlin, Psy.D. (Examining Consultant) 9 In December 2021, Dr. Laura Catlin completed a psychological disability evaluation report 10 based on a telehealth evaluation. Dr. Catlin conducted a mental status exam and administered a 11 series of tests. Id. at 575-77. The Montreal Cognitive Assessment found plaintiff to have a mild 12 cognitive impairment in his attention, language, abstraction, and delayed recall. Id. at 575-76. The 13 Beck Depression Inventory showed symptoms of severe depression, including feeling “fatigued and 14 tired all day” and lacking “energy to do the things he kn[ew] he should do” despite “sleep[ing] most 15 of the day.” Id. at 576. The PTSD Checklist indicated symptoms of PTSD, including emotional 16 numbness, difficulty falling and staying asleep, and “angry outbursts he couldn’t control.” Id. at 17 577. 18 Dr. Catlin offered the diagnostic impressions of: major depressive disorder, recurrent, 19 severe; PTSD; and mild cognitive impairment. Id. at 578. Dr. Catlin also identified other, relevant 20 medical conditions, including borderline intellectual functioning, adult antisocial behavior, and 21 problems related to plaintiff’s imprisonment, release from prison, homelessness, employment, social 22 environment, and insufficient social insurance or welfare support. Id. Dr. Catlin’s report states 23 plaintiff “is functionally illiterate and has a low IQ.” Id. at 573, 579. 24 Based on these findings and a review of accompanying documentation, Dr. Catlin stated that 25 plaintiff “will have great difficulty performing well and consistently in the work place” and 26 “understanding, remembering and/or applying information given to him,” “even basic information.” 27 Id. at 579. She further stated that plaintiff “will have difficulty getting along with coworkers, taking 1 Catlin found plaintiff’s “PTSD and depressive symptoms prime him to be . . . unable to navigate 2 most social interaction in an appropriate manner” and “will make concentrating and paying attention 3 to details of a job very difficult.” Id. She concluded that plaintiff’s “mental health symptoms will 4 cause difficulties with keeping up appropriate pace of the work place,” “impair” his concentration, 5 “significantly diminish” his ability to persist through frustrating or challenging work assignments, 6 “severe[ly] impair” his ability to “organize himself appropriately to be able to arrive on time and 7 consistently for employment,” and “limit” his ability to “function independently, appropriately, 8 effectively, and on a sustained basis.” Id. Dr. Catlin also described plaintiff as “vulnerable to 9 decompensation” and having “minimal capacity to adapt to changes in the environment or to 10 demands that are not already part of his life.” Id. 11 In the functional assessment, Dr. Catlin determined that plaintiff had marked limitation in 12 understanding, remembering, and applying information; moderate limitation in concentrating, 13 persisting, or maintaining pace; moderate limitation in adapting or managing himself; and mild 14 limitation in interacting with others. Id. at 580-81. Dr. Catlin anticipated plaintiff would be absent 15 from work for four or more days per month, and would be “off task” more than 30 percent of the 16 time. Id. at 582. Dr. Catlin found plaintiff’s impairments will cause him difficulty “[a]ttending 17 appointments regularly, taking medications, and consistently engaging with treatment.” Id. 18 19 3. Dr. Jay Toews, Ed.D. (Non-Examining Consultant) 20 Dr. Jay Toews, a non-examining psychologist, reviewed plaintiff’s records and testified as 21 an impartial medical expert at plaintiff’s hearing on June 7, 2022. Dr. Toews found evidence of a 22 mild intellectual deficiency (Listing 12.05) and an adjustment disorder with depressed mood 23 (Listing 12.04). Id. at 47. Dr. Toews reviewed plaintiff’s functional limitations with and without 24 the use of drugs and/or alcohol and opined that limitations on plaintiff’s ability to understand, 25 remember, or apply information was marked to extreme with drugs and/or alcohol but moderate 26 without drugs and/or alcohol; that limitations on his concentration, persistence, and pace were 27 marked with drugs and/or alcohol but moderate without drugs and/or alcohol; and that limitations 1 at 47-48. Dr. Toews noted that plaintiff “functionally, [p]robably would not do well interacting with 2 the general public, but would be able to interact with one or two co-workers and . . . do simple, 3 repetitive types of work activity.” Id. at 50. Further, “due to [plaintiff’s] cognitive deficiencies,” 4 Dr. Toews strongly recommended a payee be arranged should plaintiff be awarded benefits. Id. at 5 48. 6 7 LEGAL STANDARD 8 The Social Security Act authorizes an Article III court to review final decisions of the 9 Commissioner. 42 U.S.C. § 405(g). This Court may enter a judgment affirming, modifying or 10 reversing the decision of the Commissioner, with or without remanding the case for a rehearing. Id. 11 Factual findings of the Commissioner are conclusive if supported by substantial evidence. Batson 12 v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2001). The Court may set aside the 13 Commissioner’s final decision when that decision is based on legal error or where the findings of 14 fact are not supported by substantial evidence in the record taken as a whole. Tackett v. Apfel, 180 15 F.3d 1094, 1097-98 (9th Cir. 1999). Substantial evidence is “more than a mere scintilla but less 16 than a preponderance.” Id. at 1098. “Substantial evidence means such relevant evidence as a 17 reasonable mind might accept as adequate to support a conclusion.” Molina v. Astrue, 674 F.3d 18 1104, 1110 (9th Cir. 2012) (internal quotation marks omitted). To determine whether substantial 19 evidence exists, the Court must consider the record as a whole, weighing both evidence that supports 20 and evidence that detracts from the Commissioner’s conclusion. Tackett, 180 F.3d at 1098. “Where 21 evidence is susceptible to more than one rational interpretation,” the ALJ’s decision should be 22 upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 23 24 ALJ DECISION 25 On August 1, 2022, the ALJ issued a decision finding plaintiff not disabled under the Social 26 Security Act. AR 28. In determining plaintiff’s disability status, the ALJ applied the five-step 27 analysis in accordance with 20 C.F.R. § 416.920. At step one, the ALJ found plaintiff had not 1 Id. at 17-18. At step two, the ALJ found plaintiff suffered severe impairments from depression, 2 PTSD, and borderline intellectual functioning. Id. at 18. However, the ALJ declined to find 3 plaintiff’s alleged asthma and gastrointestinal impairments were severe. Id. At step three, the ALJ 4 found plaintiff’s mental impairments did not meet or medically equal the criteria of one of the 5 Listing of Impairments, specifically Listings 12.04 (depressive, bipolar and related disorders), 12.05 6 (intellectual disorder), and 12.15 (trauma- and stressor-related disorders). Id. at 19. 7 The ALJ then determined plaintiff’s RFC and found plaintiff able: 8 to perform a full range of work at all exertional levels but with the following non- exertional limitations: he is able to perform work that does not require driving as a 9 part of work duties or require any work-related exposure to hazards, such as unprotected heights and unguarded moving machinery; he is capable of traveling to 10 and from a single workplace but is otherwise incapable of traveling for work; he is able to understand, remember, and carry out simple instructions and tasks and work 11 at a consistent pace throughout the workday at simple tasks but not at a production rate pace where each task must be completed within a strict time deadline, such as 12 work on a conveyor belt or assembly line, or within high quota demands, such as work with an hourly quota requirement; he is able to make occasional simple work- 13 related decisions in a job involving only occasional changes in a routine work setting; he is able to sustain concentration and persist at simple tasks, as described, up to 2 14 hours at a time with normal breaks during an 8-hour workday; he is incapable of in- person face-to-face interaction with the general public and is incapable of performing 15 any tasks requiring customer service duties; and he is capable of no more than occasional interaction with co-workers and supervisors but is incapable of 16 performing tasks requiring conflict resolution, requiring him to direct the work of others or persuade others, or requiring him to work jointly or cooperatively with a 17 co-worker or co-workers on tandem tasks or in a team environment. 18 Id. at 21. 19 At step four, the ALJ found plaintiff had no past relevant work. Id. At step five, after 20 considering plaintiff’s age, education, and RFC, and taking into account the hearing testimony of 21 the vocational expert, the ALJ found that jobs exist in significant numbers in the national economy 22 that plaintiff can perform, including a dishwasher, hospital cleaner, and industrial cleaner. Id. at 27. 23 Accordingly, the ALJ concluded plaintiff was not disabled under the Social Security Act. Id. at 28. 24 25 DISCUSSION 26 Plaintiff moves for summary judgment, contending that the ALJ erred (1) in finding 27 plaintiff’s gastrointestinal impairments not severe at step two, (2) in evaluating plaintiff’s symptom 1 judgment, contending the ALJ properly determined plaintiff’s severe impairments and RFC. See 2 Dkt. No. 14. Defendant contends substantial evidence supports the ALJ’s decision. 3 4 I. Step Two 5 Plaintiff challenges the step-two finding as to his gastrointestinal impairments. Step two of 6 the five-step sequential process requires an ALJ to determine whether a claimant has a severe 7 impairment. 20 C.F.R. § 416.920(a)(4)(ii). To be found disabled, a claimant must have an 8 “impairment or combination of impairments which significantly limits your physical or mental 9 ability to do basic work activities . . . .” Id. § 416.920(c). 10 Plaintiff contends the ALJ’s failure to find his gastrointestinal impairments severe at step 11 two constitutes harmful error because the record makes clear that his “GERD [gastroesophageal 12 reflux disease] and constipation symptoms have more than a minimal effect on his ability to work, 13 and that these symptoms have impacted [him] over the course of many years.” Dkt. No. 10 at 7-9. 14 Defendant argues that even if the Court finds error at step two, such error is “inconsequential to the 15 ultimate nondisability determination” because the “limited range of simple, unskilled work would 16 accommodate any restrictions needed due to abdominal pain.” Dkt. No. 14 at 2. 17 At step two, as to plaintiff’s irritable bowel syndrome and asthma, the ALJ found “these 18 impairments resolved, are controlled with medication, and/or failed to meet the durational 19 requirement.” AR 18-19. The ALJ reasoned that “[a]fter reports of constipation, [plaintiff] was 20 diagnosed with [irritable bowel syndrome (“IBS”)] in July 2018” but “[i]n October 2018, he reported 21 his abdominal pain and constipation had improved with medication.” Id. at 18. The ALJ further 22 reasoned that plaintiff was treated for chronic constipation in December 2019, September 2020, 23 February 2021, and October 2021” but “[i]n October 2021, his physician noted recent 24 abdominal/pelvis [CT] scans did not show any acute findings and [plaintiff] refused a new CT scan.” 25 Id. 26 The Court agrees with plaintiff that the ALJ erred at step two, and that the error was not 27 harmless. Error may be harmless where an ALJ finds an impairment is non-severe at step two but 1 682-84 (ALJ’s failure to explicitly consider the claimant’s obesity at step two constituted harmless 2 error where the ALJ considered the claimant’s obesity at step five). As plaintiff notes, that did not 3 happen here. The ALJ both found that plaintiff did not have a severe gastrointestinal impairment at 4 step two and did not factor that impairment into the RFC or later steps of the disability 5 determination. When determining the RFC, the ALJ must consider both severe and not severe 6 impairments. Buck v. Berryhill, 869 F.3d 1040, 1048-49 (9th Cir. 2017). 7 There is substantial evidence in the record of plaintiff’s gastrointestinal impairments. 8 During his incarceration, plaintiff was clinically diagnosed with IBS in April 2018; constipation in 9 March 2017, December 2017, March 2018, April 2018, and December 2018; and abdominal pain in 10 January 2017, July 2017, March 2018, and October 2018. AR 874-82. Although plaintiff’s 11 gastrointestinal issues generally improved with treatment, see id. at 978, 980, 997, he continued to 12 seek medical attention following his release from prison. Plaintiff presented with gastrointestinal 13 complaints at Highland Hospital in June 2019, December 2019, January 2021, February 2021, and 14 October 2021; and at the Kaiser Emergency Department in March 2020, September 2020, May to 15 June 2021, and October 2021. Id. at 463, 471-72, 489, 493, 544-47, 607-08, 639-40, 713-14, 759- 16 60, 833-36. He was repeatedly seen for alleged abdominal pain, constipation, and nausea and 17 vomiting, and his hospital records note his history of constipation and GERD. See id. Plaintiff was 18 also repeatedly prescribed medications but experienced minimal to no relief, although he admits he 19 did not take his medications consistently. See, e.g., id. at 463, 489, 547, 596. 20 Given the above evidence of plaintiff’s gastrointestinal issues and his repeated seeking of 21 treatment from January 2017 through October 2021, substantial evidence in the record does not 22 support the ALJ’s finding at step two that the IBS “resolved, [was] controlled with medication, 23 and/or failed to meet the durational requirement.”5 See id. at 18. At minimum, even assuming the 24 25 5 Defendant contends that “some of the evidence [p]laintiff cites pre-dates the relevant period” and “there is no evidence that the few remarkable findings from the relevant period showed 26 limitations that lasted or could be expected to last for a continuous period of 12 months.” Dkt. No. 14 at 2. However, an ALJ has a duty to consider all medical evidence, including relevant evidence 27 that predates the claimant’s alleged onset date of disability. 20 C.F.R. § 416.920(a)(3); see also 1 ALJ was correct in finding IBS non-severe, the ALJ should have taken this impairment into account 2 when determining plaintiff’s RFC.6 On the record here, the failure to account for the gastrointestinal 3 issues was error, and because the gastrointestinal issues could have impacted the RFC finding, the 4 Court cannot find the error was harmless. 5 6 II. Plaintiff’s Subjective Statements 7 Plaintiff also argues the ALJ erred in discounting his statements regarding his 8 gastrointestinal and mental health issues. 9 10 A. Legal Standard 11 An ALJ’s analysis of a claimant’s subjective pain or symptoms is governed by a two-step 12 process. Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). “First, the ALJ must 13 determine whether the claimant has presented objective medical evidence of an underlying 14 impairment which could reasonably be expected to produce the pain or other symptoms alleged.” 15 Id. at 1036 (internal quotation marks and citation omitted). “Second, if the claimant meets this first 16 test, and there is no evidence of malingering, the ALJ can reject the claimant’s testimony about the 17 severity of [his] symptoms only by offering specific, clear and convincing reasons for doing so.” 18 Id. (internal quotation marks omitted). This clear and convincing standard “is not an easy 19 requirement to meet” and is “the most demanding required in Social Security cases.” Garrison v. 20 Colvin, 759 F.3d 995, 1015 (9th Cir. 2014). 21 22 B. Analysis 23 In determining the RFC, the ALJ found that plaintiff’s impairments could reasonably be 24 25 18-CV-05435-JSC, 2020 WL 836679, at *8 (N.D. Cal. Feb. 20, 2020) (medical evidence predating 26 a plaintiff’s alleged onset date may have more than “limited relevance” where an ALJ “does not identify any circumstance that would make [the evidence] wholly irrelevant”). 27 1 expected to produce the alleged symptoms but concluded that plaintiff’s statements concerning the 2 intensity, persistence, and limiting effects of his symptoms were not entirely consistent with the 3 evidence in the record. AR 22. The ALJ cited no evidence of malingering. 4 At the outset, the Court finds that the ALJ’s apparent rejection of plaintiff’s symptom 5 testimony was not sufficiently specific under the applicable legal standard. The ALJ’s “findings, 6 properly supported by the record, must be sufficiently specific to allow a reviewing court to 7 conclude the adjudicator rejected the claimant’s testimony on permissible grounds and did not 8 arbitrarily discredit a claimant’s testimony regarding pain.” Bunnell v. Sullivan, 947 F.2d 341, 345- 9 46 (9th Cir. 1991) (internal quotation marks and citation omitted). Here, it is unclear from the ALJ’s 10 decision precisely which testimony the ALJ was rejecting, and based on which facts in the record. 11 There is no section of the decision where the ALJ “link[ed]” plaintiff’s testimony “to the particular 12 parts of the record supporting [his] non-credibility determination.” Brown-Hunter v. Colvin, 806 13 F.3d 487, 494 (9th Cir. 2015) (citing Burrell v. Colvin, 775 F.3d 1133, 1139 (9th Cir. 2014)). This 14 alone constitutes reversible error. 15 Notwithstanding the above, the Court proceeds to analyze the rejection of plaintiff’s 16 testimony regarding gastrointestinal impairments and mental health issues, as plaintiff specifically 17 challenges these portions on appeal. 18 19 1. Gastrointestinal Issues 20 As noted in Section I, supra, the ALJ found plaintiff’s IBS was non-severe because it 21 “resolved, [was] controlled with medication, and/or failed to meet the durational requirement.” AR 22 18. The ALJ cited an October 2018 medical note that plaintiff’s abdominal pain and constipation 23 had improved with medication, and an October 2021 CT scan showing no acute findings. Id. (citing 24 Ex. 7F at 106-107, Ex. 6F at 160, 232).7 At the hearing, plaintiff testified that his “stomach 25 problems” cause him to “throw[] up and constantly us[e] the restroom,” and that these symptoms 26 occur “[v]ery frequently. It’s like back and forth. Once that happens, like constipation, and then I 27 1 have to take some kind of medicine. It kind of makes me more drowsier.” Id. at 53. 2 By finding IBS non-severe at step two and by failing to address the gastrointestinal issues at 3 the RFC stage, the ALJ implicitly rejected plaintiff’s testimony. The Court agrees with plaintiff that 4 substantial evidence does not support the ALJ’s conclusion that plaintiff’s IBS had resolved, and 5 that one 2018 treatment note and one unremarkable CT scan in 2021 do not provide clear and 6 convincing reasons to reject plaintiff’s testimony in light of the record as a whole. Plaintiff testified 7 in June 2022 that his stomach problems are ongoing and very frequent, and the record shows at least 8 twice-yearly visits to the emergency department for gastrointestinal issues from 2019 through 2021. 9 See Section I, supra. 10 11 2. Mental Health Issues 12 The ALJ also implicitly rejected plaintiff’s statements regarding the impact of his mental 13 health symptoms. In his April 2020 function report, plaintiff stated that he has difficulties 14 processing information, has a hard time understanding a process or direction, is forgetful, and is 15 always sleepy due to his medications. AR 340. In discounting plaintiff’s statements regarding his 16 mental impairments, the ALJ reasoned in part that plaintiff “has not sought ongoing treatment for 17 his symptoms of depression and [PTSD].” Id. at 23. However, the Ninth Circuit has repeatedly 18 instructed that, in the context of mental health issues, “it is a questionable practice to chastise one 19 with a mental impairment for the exercise of poor judgment in seeking rehabilitation.” Regennitter 20 v. Comm’r of Soc. Sec. Admin., 166 F.3d 1294, 1299-1300 (9th Cir. 1999) (quoting Nguyen v. 21 Chater, 100 F.3d 1462, 1465 (9th Cir. 1996)). The ALJ must “consider[] possible reasons [the 22 claimant] may not comply with treatment or seek treatment consistent with the degree of his or her 23 complaints. We may need to contact the individual regarding the lack of treatment or, at an 24 administrative proceeding, ask why he or she has not complied with or sought treatment in a manner 25 consistent with his or her complaints.” SSR 16-3p, available at 2017 WL 5180304, at *9 (S.S.A. 26 Oct. 25, 2017).8 Relevant considerations include whether the claimant is “able to afford treatment 27 1 [or] access . . . free or low-cost medical services,” and whether the claimant “structured his or her 2 activities to minimize symptoms to a tolerable level by avoiding physical activities or mental 3 stressors that aggravate his or her symptoms.” Id. at *9-10. Plaintiff argues that “evidence of severe 4 mental illness and poverty are acceptable reasons for failure to seek or comply with treatment,” Dkt. 5 No. 10 at 14, and indeed the ALJ did not consider plaintiff’s distress in social settings or his 6 homelessness as relevant factors in his treatment history. The ALJ has a “duty to fully and fairly 7 develop the record and to assure that the claimant’s interests are considered.” Tonapetyan v. Halter, 8 242 F.3d 1144, 1150 (9th Cir. 2001) (citations omitted). Here, the record does not indicate, and the 9 ALJ did not explore, why plaintiff did not seek ongoing mental health treatment, though Dr. Catlin 10 opined that “[h]is depressive symptoms cause him . . . to feel unmotivated to do much” and that his 11 symptoms and limitations cause him to have difficulty “attending appointments regularly, taking 12 medications, and consistently engaging with treatment.” See AR 578, 582. At minimum, the ALJ 13 should have inquired into the lack of treatment before using this to reject plaintiff’s testimony. 14 Again, the lack of specificity in the ALJ’s decision makes it difficult to discern the precise 15 reasons the ALJ rejected plaintiff’s subjective statements about mental impairments. To the extent 16 the ALJ relied on a lack of mental health treatment, that was not a clear and convincing reason 17 supported by substantial evidence in the record to reject plaintiff’s statements. 18 In sum, the Court finds that the ALJ’s rejection of plaintiff’s symptom testimony did not 19 comport with the “demanding” standard required in the Ninth Circuit. See Trevizo v. Berryhill, 871 20 F.3d 664, 678 (9th Cir. 2017). 21 22 III. Other Issues 23 Plaintiff contends the ALJ erred in evaluating the persuasiveness of the medical opinions of 24 Dr. Sampaio, Dr. Catlin, and Dr. Toews. He also takes issue with the ALJ’s RFC determination. 25 The Court finds the errors in addressing the gastrointestinal impairments and in failing to address or 26

27 the official interpretation of the [SSA] and are entitled to some deference as long as they are 1 explain the rejection of plaintiff’s symptom testimony could have impacted the ALJ’s assessment 2 and weight given to the medical opinions, which in turn impacted step three and the RFC. For 3 instance, in weighing Dr. Toews’s opinion, the ALJ twice cited to plaintiff’s lack of treatment for 4 depression and PTSD. See AR 25. The ALJ also cited lack of mental health treatment as a reason 5 to discount Dr. Sampaio’s opinion that plaintiff has marked limitations in certain areas of mental 6 functioning. Id. at 24. For the reasons explained above, see Section II, the ALJ improperly failed 7 to consider whether plaintiff had acceptable reasons for not seeking mental health treatment. This 8 error appears to have impacted the analysis of the medical opinions at the RFC stage. Accordingly, 9 the Court need not reach this question but instead will remand the matter for further administrative 10 proceedings.9 11 Plaintiff asks that the Court remand this case for an immediate award of benefits. However, 12 remand for award of benefits is appropriate only where “there are no outstanding issues on which 13 further proceedings in the administrative court would be useful.” Leon v. Berryhill, 880 F.3d 1041, 14 1044 (9th Cir. 2017). Here, further proceedings would be useful regarding plaintiff’s 15 gastrointestinal impairment, which plaintiff concedes has not been corroborated by objective 16 medical evidence, and on the question of why plaintiff has not sought ongoing mental health 17 treatment. See Trevizo, 871 F.3d at 682 (“The decision whether to remand a case for additional 18 evidence, or simply award benefits[,] is within the discretion of the court.”) (quoting Sprague v. 19 Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987)). 20 As stated above, the Court finds the ALJ committed harmful error in failing to account for 21 the gastrointestinal impairments and in evaluating plaintiff’s symptom testimony. Those errors 22

23 9 Nevertheless, the Court expresses concern about the opinion of Dr. Toews, which the ALJ found “somewhat persuasive.” See AR 25. Dr. Toews opined that plaintiff would be disabled when 24 he is abusing drugs or alcohol but that he wouldn’t be disabled without the substance use. However, as the ALJ noted, there is no indication of drug or alcohol use during the claimed disability period. 25 See id. Thus, it is unclear why Dr. Toews was opining about the materiality of drugs and alcohol at all, unless he was confused about the relevant time period. Moreover, Dr. Toews testified that “most 26 individuals with this level of intellectual functioning acquire a lot of functional street smarts and function fairly well, so [plaintiff’s] ability to understand, remember, and apply information would 27 be no more than moderate.” See id. at 48. The Court questions whether Dr. Toews’s “street smarts” 1 could have impacted the weighing of the medical opinions of Drs. Sampaio, Toews, and Catlin. 2 Accordingly, the Court remands this case for any further development of the record that 3 would be useful and for a new decision. The ALJ shall re-evaluate plaintiff's symptom testimony, 4 applying the correct standard for rejecting plaintiff's testimony; shall consider the impact of 5 plaintiff's gastrointestinal impairments at step two and/or at the RFC stage; and shall reweigh the 6 || medical opinions as appropriate. 7 8 CONCLUSION 9 For the foregoing reasons, the Court GRANTS plaintiff’s motion for summary judgment and 10 || DENIES defendant’s cross-motion for summary judgment. The Court REMANDS this case 11 pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this order. 12 5 B IT IS SO ORDERED. S 14 Dated: September 24, 2024 3 15 See Mite 2 SUSAN ILLSTON 16 United States District Judge

18 19 20 21 22 23 24 25 26 27 28