1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 S.M., Case No. 23-cv-03478-LJC

8 Plaintiff,

ORDER RESOLVING SOCIAL

9 v. SECURITY ACTION

10 MARTIN J. O’MALLEY, Defendant. 11

12 I. INTRODUCTION 13 Plaintiff S.M.1 challenges the final decision of Defendant Martin O’Malley, Commissioner 14 of Social Security (the Commissioner),2 finding S.M. not disabled and thus ineligible for 15 Supplemental Security Income benefits. S.M. filed a brief on the merits in accordance with Rule 6 16 of the Supplemental Rules for Social Security Actions Under 42 U.S.C. § 405(g). ECF No. 12. 17 The Commissioner filed a Cross-Motion for Summary Judgment under Civil Local Rule 16-5. 18 ECF No. 14. Although that local rule no longer applies to cases that are governed by the 19 Supplemental Rules, the Commissioner’s Cross-Motion presents the issues in a manner 20 substantively consistent with Supplemental Rule 7’s requirement for a responsive brief, and the 21 Court proceeds to resolve the case. 22 The parties have consented to the jurisdiction of a magistrate judge for all purposes under 23 28 U.S.C. § 636(c). For the reasons discussed below, the matter is REMANDED for further 24 1 Because opinions by the Court are more widely available than other filings, and this Order 25 contains potentially sensitive medical information, this Order refers to the plaintiff only by her initials. This Order does not alter the degree of public access to other filings in this action 26 provided by Rule 5.2(c) of the Federal Rules of Civil Procedure and Civil Local Rule 5-1(c)(5)(B)(i). 27 2 Martin O’Malley was sworn in as Commissioner of Social Security on December 20, 2023, and 1 administrative proceedings consistent with this Order, and the Clerk shall enter judgment in favor 2 of S.M. 3 II. BACKGROUND 4 A. Medical Records 5 For the convenience of the reader, this section provides a high-level summary of relevant 6 portions of the record. This is not intended as a complete recitation of S.M.’s medical history or 7 the administrative record. 8 S.M. suffers from multiple psychiatric impairments, including schizophrenia or 9 schizoaffective disorder, major depressive disorder, generalized anxiety disorder, and borderline 10 intellectual functioning. See, e.g., Administrative Record (AR) (ECF No. 9)3 at 744, 821, 866, 11 1161. She4 has been hospitalized many times—including several involuntary holds under section 12 5150 of the California Welfare and Institutions Code and section 1799.111 of the California 13 Health and Safety Code—for suicidal ideation, attempted suicide, and other psychiatric symptoms. 14 Not all of S.M.’s hospitalizations are addressed in the Commissioner’s decision or the parties’ 15 briefs, and although this Order discusses many of them, it is not a comprehensive list. 16 1. Pre-Application Hospitalizations 17 In May of 2017, S.M. spent three nights in a psychiatric hospital for suicidal ideation and a 18 reported suicide attempt. Id. at 1913. Later that month, she spent around a week at the psychiatric 19 hospital after police responded to a welfare check when she “felt like burning everything down,” 20 and she exhibited “marked negative symptoms of psychosis,” “neurovegetative symptoms,” and 21 sporadic muteness. Id. at 1917–18. In mid-June of 2017, S.M. was brought to the hospital for 22 suicidal ideation, discharged when she seemed to be feeling better, but then had her discharge 23 3 This Order cites the administrative record using page numbers as marked by the Commissioner. 24 Citations to other documents filed in the docket of this case refer to page numbers assigned by the Court’s ECF filing system. 25 4 Most of the administrative record indicates that S.M. uses “she” and “her” pronouns. Some medical records use masculine pronouns, possibly against S.M.’s wishes. Some medical records, 26 as well as documents pertaining to previous applications, use a different name that S.M. has since changed to her current name. At least two records from 2018 indicate that S.M. preferred the 27 gender-neutral pronoun “they,” AR at 920, 1733, but S.M. uses female pronouns in her brief and 1 canceled when she “appeared confused and [was] unable to formulate a plan on how to return to 2 [her] apartment using the bus,” while “mute and [exhibiting] a blank stare.” Id. at 1925–27. In 3 July of 2017, S.M. was hospitalized for another three nights after ingesting 150 Benadryl pills. 4 AR at 1658, 1875–76. 5 The next year, she was hospitalized for two days in early July of 2018 after reporting that 6 she “want[ed] to take a knife and stab [her]self in the chest,” and then refusing to speak with 7 hospital staff and communicating only through hand signals. AR at 1706. She then spent another 8 three nights in the hospital reporting plans to cut her wrist. Id. at 1881. She was again held as a 9 danger to herself from July 12 through 20, 2018, reporting auditory hallucinations and presenting 10 as nonsensical and delusional. Id. at 1055. Six days later, she was held at a hospital for a further 11 two weeks until August 10, 2018 after presenting with severe auditory hallucinations. Id. at 744, 12 748. The day after being discharged, she presented to an emergency room for leg pain but 13 exhibited a “clear psych disorder” and was not taking her medication. Id. at 1713. The day after 14 that, S.M. was transferred to a psychiatric facility by ambulance from an emergency room, held 15 for another two nights as a danger to herself, and discharged on August 14, 2018. Id. at 1886–93. 16 She appears to have reported to the emergency room the same day she was discharged and then 17 spent another night in the hospital, having presented as off of her psychiatric medication, hearing 18 voices, and “trying to cut her hair out.” Id. at 1716. A friend had found her in a locked room with 19 scissors. Id. at 1719. 20 In October of 2018, S.M. was held in a locked acute hospitalization facility for around a 21 week after again overdosing on medication while depressed and suicidal. Id. at 1982, 1984. A 22 few days later, she was briefly held as a danger to herself at the emergency room when she 23 reported a plan to jump in front of a train. Id. at 1721. Later in October, S.M. spent a night in the 24 emergency room after she “was found in a parking lot . . . expressing suicidal ideation.” Id. at 25 1733. In November of 2018, she visited the emergency room again for “vague” reports of suicidal 26 ideation, id. at 1738, and later spent another four days on an involuntary hold in a psychiatric 27 hospital due to suicidal ideation, id. at 1742–60. After release from that hospitalization, S.M. was 1 was hospitalized under section 5150 for twelve days “after endorsing [suicidal ideation] with plan 2 to [overdose], slit wrists, or burn self in context of medication non-adherence,” and reports of a 3 recent suicide attempt. Id. at 920–21. Records from these hospitalizations frequently refer to 4 disordered thoughts and limited or confused speech, as well as reports of past or present drug use. 5 2. Application and Assessments 6 S.M. filed her present application for Supplemental Security Income benefits on December 7 4, 2018. See AR at 19. A previous application that S.M. filed in 2012 was denied by an 8 administrative law judge (ALJ) in 2014. AR at 61–71. She filed another application in 2014, 9 which another ALJ denied on August 24, 2017. Id. at 79–89. 10 In a January 2019 function report, S.M. asserted that she has “difficulty functioning” 11 because her “mental state is not on par with others,” and that she “deal[s] with daily trying to kill 12 [her]self” and has been repeatedly hospitalized as a result. AR at 607. Her assessment of personal 13 care reads in part: “My body stops me from moving when anxious. My mind gets in the way. 14 Dressing is an issue because in my mind I’m anxious.” Id. at 608. She reported that she 15 sometimes needed people to tell her to shower. Id. at 609. She also reported difficulty with 16 memory, completing tasks, concentration, understanding, following instructions, and getting along 17 with others (among other categories) because her “mind controls [her] body,” id. at 612, and that 18 she sometimes has difficulty participating in social activities “because of [her] mind talking to 19 [her],” as well as difficulty with her temper, id. at 611–12. She wrote that stress and changes to 20 routine lead her to feel suicidal. Id. at 613. 21 A March 2019 psychological assessment indicates that S.M. received special education in 22 high school and dropped out before graduating, and that she scored in the thirteenth percentile on 23 the WAIS-IV test of intellectual functioning with a full-scale IQ of 83. AR at 1158, 1160. The 24 psychologist concluded that S.M. was generally capable of normal functioning but would 25 “perform academically at a level that is somewhat lower than same-aged peers.” See id. at 1158– 26 62. 27 Based on a review of S.M.’s application and medical records, two state agency consulting 1 categories ranged from no restrictions to moderate limitations. AR at 111–12 (Dr. Anguas- 2 Keiter); id. at 125–27 (Dr. Brode). 3 On August 7, 2019, a Dr. Mortimer (who had treated S.M.) reported in an assessment form 4 that S.M. had minimal physical limitations5 but would be “[i]ncapable of even ‘low stress’ work” 5 due to schizophrenia and auditory hallucinations, and that she would be absent from work more 6 than four days per month. AR at 1241–43. Dr. Mortimer indicated that S.M. would spend more 7 than twenty-five percent of a workday off task. Id. at 1243. 8 3. Post-Application Hospitalizations 9 S.M.’s psychiatric hospitalizations and other medical encounters continued after she 10 submitted her present application. In October of 2019, she was brought voluntarily by ambulance 11 to a crisis stabilization center, where she was confused, delusional, paranoid, and selectively mute, 12 and exposed her breast to a staff member. AR at 1478–79. 13 In November of 2019, S.M. again reported to the emergency room “with thoughts of 14 wanting to hurt herself” and a flat affect. AR at 1771, 1774. Later that month, she spent a night in 15 the emergency room after overdosing on antidepressants. Id. at 1777. She was later held for four 16 nights under section 5150. Id. at 1894. In December of 2019, she spent another night in the 17 emergency room after overdosing on antipsychotic medication in a suicide attempt and then 18 calling an ambulance. Id. at 1783. A treating physician characterized that visit as a “[s]uicide 19 attempt by inadequate means.” Id. at 1785. Later in December, she was held under section 5150 20 for three nights after another overdose attempt with multiple medications, id. at 1790, and then 21 transferred to another psychiatric facility for more than two weeks, id. at 1903. She stared blankly 22 at a doctor in response to questions and appeared to have feces on her hospital gown. Id. Soon 23 after her admission to the psychiatric hospital, a nurse practitioner wrote:

24 25 5 In some physical categories where the form did not provide a checkbox option for “no 26 restrictions” or space for a narrative response, Dr. Mortimer checked the box for the least restrictive option. E.g., AR at 1242 (checked boxes indicating that S.M. could sit, stand, and walk 27 for “at least six hours”). It is not clear that Dr. Mortimer intended to assess any physical Patient has a long history of mental illness. She has multiple suicide 1 attempts by OD. Will hold off starting medications at this time. Will consider seroquel after patient metabolizes current OD. She exhibits 2 significant thought blocking. Is a risk to self due to history of poor impulse control, suicide attempts and psychosis. Requires inpatient 3 hospitalization for stabilization and safety. 4 Id. at 1911. 5 On January 17, 2020, the day after she was discharged from the psychiatric hospital, S.M. 6 was held at the hospital for three nights again under section 5150 after she reported taking “a 7 bunch of pills,” even though she denied intent to harm herself on that visit and reported that she 8 took the medication to help her sleep. Id. at 1823. In February of 2020, she reported to the 9 emergency room with knee pain and nausea, but refused to stay despite a doctor’s concern that she 10 “still may have an emergent process.” Id. at 1858. Later in February, she was hospitalized for 11 several days after a suicide attempt by drug overdose. Id. at 1252. 12 On September 6, 2020, S.M. called the police and reported feeling suicidal and 13 experiencing visual hallucinations, and was taken to the emergency room under section 5150, but 14 exhibit normal behavior and affect. AR at 2129–31. September 2020 intake forms for a crisis 15 recovery center reported that she was experiencing auditory hallucinations, paranoid thinking, 16 thoughts of self harm, and psychosis. Id. at 1992–95. An October 2020 intake form from the 17 crisis center indicated that she had been held at the hospital for suicidal ideation, but denied such 18 intentions at the crisis center and claimed that the hospital staff who reported that were lying. Id. 19 at 2108; see also id. at 2185 (hospital records). She claimed that she had not heard voices since 20 five months earlier, but appeared to be responding to auditory hallucinations during her 21 assessment. Id. at 2110. Emergency department records from around the same time indicated that 22 she came in with complaints of suicidal ideation but denied such intent by the time of her 23 interview. Id. at 2133–34. 24 In November of 2020, she spent a night at the emergency department and two nights at a 25 psychiatric hospital after reporting plans to jump from a bridge or walk in front of a train. Id. at 26 2139, 2150. A note from that November 2020 hospitalization indicated that she “appear[ed] to be 27 employing . . . verbiage to ensure admission and retention in the ED for the purposes of secondary 1 she had a history of doing so. AR at 2150. S.M. was hospitalized again for several days in 2 December of 2020, during which time she “attempt[ed] to elope, but was brought back to bed by 3 security” and “placed in restraints.” Id. at 2297, 2301. She expressed both suicidal and homicidal 4 ideation. Id. at 2302. 5 In January 2021, S.M. again presented to an emergency department with reports of suicidal 6 ideation and auditory hallucinations, and appeared to be “responding to internal stimuli” during an 7 examination. AR at 2170. The examining physician noted delusional and paranoid thoughts, and 8 suspected psychosis. Id. at 2171. S.M. was transferred to a psychiatric hospital, id., where she 9 claimed that she had no mental illness and had been sent there due to a misunderstanding of 10 reports about extreme pain in her legs, id. at 2191. She told the psychiatrist that she only needed 11 help for homelessness. Id. at 2191–92. In February of 2021, she was brought to the hospital by 12 ambulance after reporting that she swallowed forty Benadryl tablets. Id. at 2363. On April 11, 13 2021, she reported to the emergency department with thoughts of self-harm and asked for food, 14 and a doctor noted that she had been “[s]een frequently in the ED for similar presentations.” Id. at 15 2204. On April 16, 2021, she presented again with similar complaints, and said that she was no 16 longer suicidal after eating a meal. Id. at 2209. 17 Later that month, however, she was found in distress at a gas station and reported that she 18 had attempted to jump from a bridge, see id. at 2265, 2285, and she was held at the hospital for 19 around three weeks after expressing suicidal ideation, exhibiting “very bizarre behavior,” 20 “responding to internal stimuli,” and refusing medications to the point that the hospital obtained a 21 court order to administer injections. Id. at 2223. S.M. only “[e]ventually” began to voluntarily 22 comply with medications after injections were administered. Id. S.M. spent another night at an 23 emergency department after requesting an ambulance for suicidal ideation soon after she was 24 discharged in May. Id. at 2243, 2250, 2255. 25 In June of 2021, she told an emergency doctor that she had overdosed on 26 methamphetamines and intended to shoot herself. Id. at 2421. In August, she presented to the 27 emergency department with suicidal ideation and stated that she had ingested twenty-four 1 On September 18, 2021, S.M. was brought to the hospital by ambulance for suicidal 2 ideation. Id. at 2455. S.M. visited the emergency department on October 3, 2021, was discharged, 3 and then “[i]mmediately . . . sliced her left wrist multiple times” and reported that she planned to 4 jump of a bridge. Id. at 2447. In the very early morning of October 28, 2021, she was brought by 5 ambulance to the emergency department when she exhibits “erratic behavior” at a BART station 6 after using methamphetamine. Id. at 2438. Later the same morning (if timestamps on the medical 7 records are accurate), she reported another Benadryl overdose (and asked for food), but a doctor 8 was skeptical due to lack of symptoms. Id. at 2430, 2433. 9 Similar hospital visits continued later in 2021 and into 2022. E.g., AR at 2475, 2521, 10 2573, 2597, 2623, 2632, 2650, 2659 2665, 2670, 2682, 2690. In a July 2022 incident, she was 11 “brought in by ambulance secondary to being found screaming in the streets stating that she 12 wanted to die and kill me.” Id. at 2628. 13 Some of S.M’s hospital visits have been for relatively routine matters like knee pain, while 14 at others she presented with vague complaints. E.g., AR at 1971 (“States, ‘I don’t feel well’ but is 15 unable or unwilling to offer additional information regarding what this means.”). On a visit in 16 April of 2022, she stated that “she just want[ed] some graham crackers and milk,” id. at 2655, and 17 in May, the emergency department let her stay for a few hours when she reported that she only 18 needed a place to lie down, id. at 2639. One note from August 2022, when she visited the hospital 19 for chest pain, indicated that she “wakes up but selectively closes eyes and avoids conversation.” 20 Id. at 2620. 21 Many of S.M.’s medical records refer to methamphetamine abuse. E.g., AR at 1186–87, 22 1722. Some records indicate a history of using heroin, benzodiazepine, cannabis, MDMA, and 23 alcohol. E.g., id. at 744, 2151. Some hospital admission records nevertheless reflect a negative 24 toxicology screen for amphetamines and other recreational drugs. E.g., id. at 1258, 2180, 2309. 25 Some medical notes state that S.M. was malingering for the purpose of obtaining food and 26 shelter or had a history of doing so. Id. at 1397, 2489, 2491, 2497, 2657, 2661, 2682, 2693. On 27 one occasion, an emergency doctor who noted S.M.’s history of malingering offered her food, 1 2682–84. 2 B. Administrative Hearing 3 S.M.’s present application was denied initially and again on reconsideration, and she 4 submitted a request on August 22, 2019 for a hearing before an ALJ. See AR at 19. After five 5 continuances due at least in part to difficulty contacting S.M., the ALJ held a hearing more than 6 two years later on September 20, 2022. Id. at 48. S.M. did not appear. See id. Her attorney 7 stated that he had been unable to reach S.M. for some time using any of the phone numbers and 8 email addresses that he had on file for her, and that he had attempted public records searches for 9 additional contact information without success. Id. at 49. The attorney stated that he was in 10 contact with S.M.’s mother, who reported that S.M. was living on the street. Id. at 50. In light of 11 the many previous continuances, the ALJ proceeded with the hearing in S.M.’s absence, and 12 S.M.’s attorney confirmed that he did not object to the ALJ doing so. Id. at 51. 13 S.M.’s attorney argued that she should be found disabled based on meeting a listing for a 14 psychiatric impairment—an argument S.M. has not pursued here—and also because restrictions 15 including off-task behavior, difficulty working with others, and absenteeism would prevent her 16 from working. AR at 53. 17 The ALJ noted that S.M. had no past relevant work experience and had not graduated from 18 high school, but that she was not placed in special education6 and was able to read and write. AR 19 at 54. The ALJ asked a vocational expert (the VE) whether work would be available if such a 20 person had no exertional limitations but had the following non-exertional restrictions:

21 Would be limited to performing simple, routine tasks that did not involve com complex decision making or judgment. 22 Could tolerate occasional workplace changes, but no production rate 23 pace or quarter [sic] requirements such as required by assembly line work. The individual would be able to complete quotas by the end of 24 the day.

25 The individual could have only occasional contact with coworkers and supervisors and incidental contact with the general public. 26 27 1 AR at 54–55. The VE testified that a person with those restrictions could work as a scrap sorter, 2 laundry worker, or rack room worker, with a total of over 300,000 jobs nationwide across those 3 three categories. Id. at 55. 4 The ALJ asked if an added restriction of being off task due to concentration difficulties 5 would affect the availability of work, and the VE testified that maintaining employment would 6 require “not more than 10 percent off task during the eight-hour workday, and that has to be taken 7 over the workday, not all at one time.” AR at 55. When the ALJ asked about the effect of 8 absenteeism or inability to maintain regular working hours due to mental health impairments, the 9 VE testified that an employee could not be absent, arrive late, or leave early more than one day per 10 month and still retain work. Id. at 55–56. 11 S.M.’s attorney stated that he had no questions for the VE because the ALJ covered 12 everything that he had intended to ask. AR at 56. The ALJ ended the hearing. Id. at 56–57. 13 C. Legal Standard for Administrative Proceedings 14 The Social Security Administration uses a five-step process to determine whether 15 claimants are entitled to disability benefits:

16 Step 1. Is the claimant presently working in a substantially gainful activity? If so, then the claimant is “not disabled” within the meaning 17 of the Social Security Act and is not entitled to disability insurance benefits. If the claimant is not working in a substantially gainful 18 activity, then the claimant’s case cannot be resolved at step one and the evaluation proceeds to step two. See 20 C.F.R. § 404.1520(b). 19 Step 2. Is the claimant’s impairment severe? If not, then the claimant 20 is “not disabled” and is not entitled to disability insurance benefits. If the claimant's impairment is severe, then the claimant’s case cannot 21 be resolved at step two and the evaluation proceeds to step three. See 20 C.F.R. § 404.1520(c). 22 Step 3. Does the impairment “meet or equal” one of a list of specific 23 impairments described in the regulations? If so, the claimant is “disabled” and therefore entitled to disability insurance benefits. If 24 the claimant’s impairment neither meets nor equals one of the impairments listed in the regulations, then the claimant’s case cannot 25 be resolved at step three and the evaluation proceeds to step four. See 20 C.F.R. § 404.1520(d). 26 Step 4. Is the claimant able to do any work that he or she has done in 27 the past? If so, then the claimant is “not disabled” and is not entitled step four and the evaluation proceeds to the fifth and final step. See 1 20 C.F.R. § 404.1520(e).

2 Step 5. Is the claimant able to do any other work? If not, then the claimant is “disabled” and therefore entitled to disability insurance 3 benefits. See 20 C.F.R. § 404.1520(f)(1). If the claimant is able to do other work, then the Commissioner must establish that there are a 4 significant number of jobs in the national economy that claimant can do. There are two ways for the Commissioner to meet the burden of 5 showing that there is other work in “significant numbers” in the national economy that claimant can do: (1) by the testimony of a 6 vocational expert, or (2) by reference to the Medical–Vocational Guidelines at 20 C.F.R. pt. 404, subpt. P, app. 2. If the Commissioner 7 meets this burden, the claimant is “not disabled” and therefore not entitled to disability insurance benefits. See 20 C.F.R. §§ 404.1520(f), 8 404.1562. If the Commissioner cannot meet this burden, then the claimant is “disabled” and therefore entitled to disability benefits. See 9 id. 10 Tackett v. Apfel, 180 F.3d 1094, 1098–99 (9th Cir. 1999) (footnote omitted); see also Maxwell v. 11 Saul, 971 F.3d 1128, 1130 n.2 (2020).7 “At steps one through four, the claimant retains the burden 12 of proof; at step five, the burden shifts to the Commissioner.” Maxwell, 971 F.3d at 1130 n.2. 13 For Step 3 of the analysis, all listed impairments related to mental health or functioning 14 incorporate a test of whether a claimant has either “extreme” limitations in one category, or 15 “marked” limitations in two categories, with respect to a claimant’s abilities to: (1) “Understand, 16 remember, or apply information”; (2) “Interact with others”; (3) “Concentrate, persist, or maintain 17 pace”; and (4) “Adapt or manage oneself.” These standards are often referenced as the “paragraph 18 B criteria.” See Listing 12.00(A)(2). For some listings, that standard can be substituted by a 19 claimant showing that they meet separate “paragraph C criteria” or other listing-specific standards. 20 Id.; see also Listing 12.05(A). 21 D. The ALJ’s Decision 22 The ALJ began her analysis by noting that S.M. had been found not to be disabled on a 23 previous application, but she concluded that a presumption of non-disability did not apply due to 24 “new and material evidence, such as a diagnosis of schizoaffective disorder.” AR at 19. 25

26 7 The regulatory citations in this passage apply to adjudication of Disability Insurance benefits and refer to an earlier version of 20 C.F.R. § 404.1520 that is substantially similar to the current 27 language of that regulation. 20 C.F.R. § 416.920 sets forth materially identical steps to assess 1 At Step 1, the ALJ determined that S.M. had not engaged in substantial gainful activity 2 since her December 4, 2018 application date. AR at 21. 3 At Step 2, the ALJ identified the following severe impairments: “schizoaffective disorder, 4 major depressive disorder, generalized anxiety disorder, borderline intellectual functioning, and 5 methamphetamine abuse.” AR at 22. The ALJ determined that S.M.’s obesity (which occurred 6 only sometimes; her weight fluctuated), her cannabis use disorder, and an unspecified sexual 7 dysfunction were not severe impairments, id., and S.M. does not challenge that conclusion here. 8 At Step 3, the ALJ considered Listings 12.03 (Schizophrenia spectrum and other psychotic 9 disorders), 12.04 (Depressive, bipolar and related disorders), 12.06 (Anxiety and obsessive- 10 compulsive disorders), and 12.11 (Neurodevelopmental disorders). AR at 22. The ALJ found that 11 S.M. did not satisfy the paragraph B criteria, which are shared by all of those listings, because she 12 had only moderate limitations in each of the four functional categories. Id. at 22–24. The ALJ 13 also found that S.M. did not satisfy the alternative paragraph C criteria. Id. at 24. 14 The ALJ assessed the following residual functional capacity (RFC) for the purpose of 15 evaluating Steps 4 and 5:

16 the claimant has the residual functional capacity to perform a full range of work at all exertional levels but with the following non- 17 exertional limitations: the claimant is limited to simple routine tasks not involving complex decision-making or judgment. The claimant 18 could tolerate occasional workplace changes but no production rate pace or quota requirements such as required with assembly line work. 19 The claimant is able to complete quotas by the end of the day. The individual could have occasional contact with coworkers and 20 supervisors and incidental contact with the general public. 21 AR at 24. That RFC reflected the first hypothetical that the ALJ posed to the VE at the hearing. 22 See id. at 54–55. It did not include the restrictions as to time on task, tardiness, or regular 23 attendance that the ALJ posed to the VE after that. See id. at 55–56. 24 In explaining that RFC, the ALJ summarized medical records including S.M.’s repeated 25 hospital admissions, prescriptions, occasional improvement on medication, noncompliance with 26 medication, drug use, and various tests and reported symptoms. AR at 25–27. 27 The ALJ found the medical record “inconsistent” or “somewhat inconsistent” with her 1 inconsistent mental status examinations and improvement with treatment. AR at 28. To support 2 that conclusion, the ALJ noted some records indicating that she “exhibited a history of 3 malingering” or “expressly stated that [she] demonstrated malingering behavior.” Id. at 28; see 4 also id. at 27. The ALJ stated that S.M. sometimes went to the emergency room seeking food or a 5 place to rest, that she “often presented as selectively non responsive,” and that her “suicidal 6 ideations at times were vague” and she sometimes denied them later. Id. at 28. In partially 7 rejecting S.M.’s asserted symptoms, the ALJ also noted that S.M. had “a substantial history of 8 methamphetamine abuse” and was not compliant with treatment. Id. The ALJ concluded that 9 such factors were “[c]ollectively . . . somewhat inconsistent” with her reported severity of 10 symptoms. Id. 11 The ALJ found that state agency consulting doctors who assessed no restrictions to 12 moderate limitations in various categories of functioning were partially persuasive, but she 13 determined that they erred in failing to recognize moderate limitations in adapting and managing 14 due to S.M.’s “difficulty following prescribed treatment.” Id. at 29. The ALJ found the 15 consultative examiner Dr. Swanson’s conclusions only somewhat persuasive because he did not 16 have access to S.M.’s medical records and did not sufficiently account for how her mental health 17 symptoms would affect her ability to interact with the general public. Id. at 30. 18 The ALJ found Dr. Mortimer’s opinion that S.M. was incapable of work unpersuasive. 19 AR at 30. According to the ALJ, that opinion was inconsistent with evidence indicating “non- 20 compliance with prescribed medical treatment” and that S.M.’s “mental health improved when 21 following prescribed treatment.” Id. The ALJ also noted that Dr. Mortimer “did not consider the 22 history of methamphetamine use . . . or tendency toward malingering,” and lacked access to the 23 complete medical record. Id.8 24 The ALJ also found a case manager’s opinions unpersuasive. AR at 30–31. 25 The ALJ determined that S.M. had no past relevant work, thus implicitly finding at Step 4 26 8 As noted in an earlier footnote, the ALJ apparently construed Dr. Mortimer’s report as assessing 27 physical limitations, and rejected those for lack of evidence. AR at 30. It is not clear that Dr. 1 that she could not perform any past work. AR at 31. At Step 5, the ALJ found that S.M. could 2 perform other work available in the national economy, based on the VE’s testimony that someone 3 with the RFC assessed by the ALJ could work as a sorter, laundry worker, or rack room worker. 4 AR at 32. The ALJ therefore found that S.M. was not disabled. 5 The Appeals Council found no basis to review the ALJ’s decision, thus making it the final 6 decision of the Commissioner. AR at 1–3. 7 E. The Parties’ Arguments 8 S.M. contends that the ALJ erred in failing to account for the VE’s testimony that regular 9 absenteeism would result in no jobs available. ECF No. 12 at 21–23. Although the ALJ’s RFC 10 did not include absence from work, S.M. argues that her frequent involuntary holds and hospital 11 admissions show that she would not have been able to attend work regularly. Id. at 23–25. S.M. 12 also argues that the ALJ was required to provide clear and convincing reasons to reject her 13 statements regarding the severity of her symptoms, and that the ALJ failed to do so. Id. at 25–29. 14 In S.M.’s view, the ALJ failed to consider whether her noncompliance with medication was 15 caused by her mental impairments, improperly relied on isolated instances of malingering (which 16 were motivated by S.M.’s homelessness and indigency) to discount psychiatric hospitalizations 17 where there was no indication of malingering, and placed undue weight on occasional drug use 18 without specifically finding substance use material to S.M.’s potential disability. Id. at 27–28. 19 S.M. requests remand for further proceedings including a new hearing. Id. at 29. She does not 20 seek a determination by this Court that she is disabled. See id. 21 The Commissioner argues that the “clear and convincing” standard for rejecting symptom 22 testimony does not apply where, as here, an ALJ finds that a claimant was malingering. ECF No. 23 14 at 3–4. The Commissioner further contends that the ALJ properly relied on evidence showing 24 improvement with treatment (including in structured settings), and that the “ALJ may reject a 25 claimant’s symptom allegations by pointing to an unexplained or inadequately explained failure to 26 follow a prescribed course of treatment, absent medical evidence that the failure to seek or follow 27 treatment was attributable to claimant’s mental impairment rather than her personal preference.” Id. at 1 that S.M.’s allegations of memory problems were inconsistent with Dr. Swanson’s findings. Id. at 6. 2 The Commissioner concludes by arguing that the Court should not accept S.M.’s characterization of 3 the medical evidence in place of the ALJ’s, and that the ALJ’s RFC (with no finding of absenteeism) 4 was supported by substantial evidence including S.M.’s record of malingering. Id. at 6–9. 5 S.M. did not file a reply as allowed by Supplemental Rule 8. 6 III. ANALYSIS 7 A. Legal Standard 8 In cases challenging the denial of disability benefits, district courts have authority to 9 review and “affirm[], modify[], or revers[e] the decision of the Commissioner of Social Security, 10 with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). “An ALJ’s disability 11 determination should be upheld unless it contains legal error or is not supported by substantial 12 evidence,” which “‘means more than a mere scintilla, but less than a preponderance; it is such 13 relevant evidence as a reasonable person might accept as adequate to support a conclusion.’” 14 Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) (quoting Lingenfelter v. Astrue, 504 F.3d 15 1028, 1035 (9th Cir. 2007)). A court must consider evidence both supporting and detracting from 16 the Commissioner’s decision; if the evidence could reasonably support either outcome, the court 17 may not substitute its judgment for that of the ALJ. Id. at 1010. Courts “review only the reasons 18 provided by the ALJ in the disability determination and may not affirm the ALJ on a ground upon 19 which he did not rely.” Id. 20 B. The ALJ Erred in Addressing Noncompliance with Treatment 21 The Ninth Circuit has cautioned that “it is a questionable practice to chastise one with a 22 mental impairment for the exercise of poor judgment in seeking rehabilitation.” Garrison, 759 23 F.3d at 1018 n.24 (quoting Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996)). 24 If there is no evidence that a claimant’s “resistance was attributable to her mental 25 impairment rather than her own personal preference,” then an ALJ can consider lack of treatment 26 as a factor undermining a claimant’s reported severity of symptoms. Molina v. Astrue, 674 F.3d 27 1104, 1114 (9th Cir. 2012). But “federal courts have recognized a mentally ill person’s 1 impairment itself and, therefore, neither willful nor without a justifiable excuse.” Pate-Fires v. 2 Astrue, 564 F.3d 935, 945 (8th Cir. 2009) (cleaned up). In other words, “a failure to seek 3 treatment or take prescribed medication may often be indicative of a more severe mental 4 impairment.” A.S. v. Saul, No. 20-cv-00281-JCS, 2021 WL 1087473, at *18 (N.D. Cal. Mar. 22, 5 2021) (citing Nguyen, 100 F.3d at 1465). The Social Security Administration’s own rulings reflect 6 that “mental impairments that affect judgment, reality testing, or orientation” may limit 7 understanding of appropriate treatment. Social Security Ruling (SSR)9 16-3p, 2017 WL 5180304, 8 at *10 (Oct. 25, 2017). 9 In keeping with those principles, SSR 18-3p (which was not mentioned by the ALJ or 10 either party) requires the Commissioner to consider the reason a claimant failed to follow 11 prescribed treatment, and to excuse such failure if it was due to incapacity or other “reasonably 12 justified” reasons establishing good cause. SSR 18-3p, § C, 2018 WL 4945641, at *4–6 (Oct. 2, 13 2018). 14 If the ALJ had determined that S.M. failed to take her prescribed medication of her own 15 volition, for reasons unrelated to her impairments and without good cause, the Court’s task would 16 be to decide whether substantial evidence could support that determination on this administrative 17 record. But the ALJ made no such determination. 18 In at least some contexts, the ALJ treated S.M.’s failure to follow prescribed treatment as a 19 consequence of her impairments. Two state agency psychologists (Dr. Brode and Dr. Anguas- 20 Keiter) assessed mild limitations in S.M.’s ability to adapt or manage herself, but the ALJ 21 determined in her discussion of S.M.’s RFC that, “given the claimant’s difficulty following 22 prescribed treatment, [those doctors] should have imposed a moderate limitation regarding 23 adapting or managing oneself.” AR at 29. Similarly, the ALJ found at Step 3 that S.M.’s 24 moderate level of limitations in interacting with others was supported by her “difficulty following 25 9 SSRs are official interpretations of law and regulation issued by the Social Security 26 Administration. Although they do not have the force of law, they are binding on ALJs and entitled to some deference from courts, and an ALJ’s failure to comply with an SSR can constitute error 27 requiring remand under at least some circumstances. See Bray v. Comm’r of Soc. Sec. Admin., 554 1 the direction of treating medical professionals,” citing the same portions of the record. AR at 23. 2 The ALJ also characterized “impaired judgment” and “uncooperative attitude” as among S.M.’s 3 mental impairment symptoms, and acknowledged that a “treating physician noted [S.M.’s] poor 4 coping skills and medication non-compliance as limitations,” id. at 25.10 5 In other contexts, however, the ALJ used that same failure to follow treatment as a reason 6 to set aside evidence of severe psychiatric limitations. In the Step 3 analysis of S.M.’s ability to 7 adapt and manager herself, the ALJ treated S.M.’s “non-compliance with prescribed medical 8 treatment” and the fact that her “mental health improved when following prescribed treatment” as 9 grounds to discount the effects of her diagnosed conditions and her reports of “daily suicidal 10 ideation” and “difficulty getting dressed.” AR at 23–24. In the context of S.M.’s RFC, the ALJ 11 cited S.M.’s noncompliance as “somewhat inconsistent with [her] statements about . . . her 12 symptoms,” and found treating physician Dr. Mortimer’s opinion that S.M. could not perform any 13 work due to schizophrenia “inconsistent with and unsupported by the medical evidence” showing 14 S.M’s failure to take medication that improved her condition. Id. at 30. Those portions of the 15 ALJ’s decision cited the very same medical records as the portions discussed above that 16 characterized her difficulty following medical directives as a component of her impairments. 17 The ALJ did not specifically explain why she did not include some degree of absenteeism 18 in S.M.’s RFC to reflect S.M.’s frequent psychiatric hospitalizations, many of which included 19 involuntary holds under state law. Reading the ALJ’s decision as a whole, she appears to have 20 concluded that some hospitalizations resulted from malingering and were not medically necessary, 21 while others resulted from genuinely severe psychiatric symptoms due to noncompliance with 22 medication. At the very least, the ALJ acknowledged that S.M.’s symptoms worsened when she 23 did not take her medication, to a degree that would seem to interfere significantly with her ability 24

25 10 The record also includes other instances not addressed by the ALJ where S.M.’s impairments contributed to her failure to take medication, as evidenced by increased willingness to continue 26 taking medication after acute symptoms subsided. For example, during S.M.’s extended psychiatric hospitalization in the spring of 2021, she initially refused to comply with prescribed 27 medication, and the hospital obtained a court order and administered antipsychotic injections 1 to work. AR at 26–27 (“September 2020 treatment records illustrated ongoing non-compliance 2 concerning taking prescribed medication. Consequently, her mental impairment symptoms, such 3 as impaired judgment, uncooperative attitude, auditory hallucination, and grandiose thought 4 content, worsened.”). There is likely at least substantial evidence to support a conclusion that 5 some of S.M.’s hospital visits were based on malingering, given the conclusions of treating 6 doctors to that effect, e.g., id. at 2657, even if such malingering might be understandable in light 7 of S.M.’s homelessness and indigency. But there is not substantial evidence that all of S.M.’s 8 hospitalizations arose from malingering, and the ALJ did not reach that conclusion. 9 Many of S.M.’s hospitalizations resulted from serious psychological symptoms where the 10 medical records do not include any indication of malingering. E.g., AR at 1719 (noting that a 11 friend at S.M.’s bedside found S.M. in a locked room with scissors “trying [to] cut her hair out,” 12 and that S.M. was hearing voices and exhibiting bizarre behavior); 1903 (noting feces on S.M.’s 13 hospital gown during a multiple-week hospitalization); id. at 2223, 2265, 2285 (indicating that 14 S.M. was hospitalized for around three weeks after she was found in distress at a gas station, and 15 required involuntary medication before she showed improvement); id. at 2301 (noting that S.M. 16 was held in restraints after she attempted to leave the hospital); id. at 2628 (“Per 5150 brought in 17 by ambulance secondary to being found screaming in the streets stating that she wanted to die and 18 to kill me.”); see also id. at 1713 (noting a “clear psych disorder” even when S.M. only 19 complained of leg discomfort).11 The ALJ appears to have discounted those hospitalizations as the 20 effects of noncompliance with medication. Before doing so, however, the ALJ needed to consider 21 why S.M. had failed to take her medication, see SSR 18-3p, § C, particularly because the ALJ 22 separately recognized that S.M.’s impairments at least contributed to her noncompliance. 23 Moreover, as acknowledged in both the ALJ’s decision and the Commissioner’s brief, 24 much of S.M.’s documented improvement occurred when she “was in a structured environment.” 25 ECF No. 14 at 4 (quoting AR at 28). When S.M. was hospitalized for an extended period in April 26 and May of 2021, for example, she did not show improvement and agree to take medication until 27 1 after the hospital injected her with medication against her will pursuant to a court order. AR at 2 2223. Although not addressed by either party, the Social Security Administration’s listings and 3 other regulations require the Commissioner to consider “the kind and extent of supports or 4 supervision” that “enable [a claimant] to function,” and to assess greater limitations where a 5 claimant needs “more extensive . . . support” or a “more structured setting . . . in order to 6 function.” Listing 12.00(F)(3)(e); see also 20 C.F.R. § 404.1520a (requiring consideration of 7 “how [a claimant’s] functioning may be affected by factors including . . . structured settings”). 8 “Intermittent improvement . . . limited to structured settings is particularly suspect as evidence that 9 a claimant can work outside of such settings.” Clark v. Berryhill, No. 17-cv-00371-JCS, 2018 WL 10 3659052, at *29 (N.D. Cal. Aug. 2, 2018). 11 The ALJ therefore erred in citing medication noncompliance to set aside both opinion 12 evidence (including that of Dr. Mortimer) and the practical impact of S.M.’s frequent 13 hospitalizations without first considering whether such noncompliance was an excusable effect of 14 S.M.’s impairments and whether S.M. requires a structured setting to adhere to medication and 15 otherwise function sufficiently. 16 C. Substance Use 17 The ALJ referred to S.M.’s use of methamphetamine as potentially “inconsistent” with her 18 reported symptoms, AR at 28, and as a factor purportedly not considered by Dr. Mortimer in 19 assessing an inability to work, id. at 30. In doing so, the ALJ may have treated the effects of 20 S.M.’s drug use as distinct from her other mental health impairments, and as irrelevant to the 21 question of whether she is disabled. 22 The Social Security Administration has acknowledged in SSR 13-2p that mental 23 impairments are often intertwined with drug and alcohol use, and that “[w]e do not know of any 24 research data that we can use to predict reliably that any given claimant’s co-occurring mental 25 disorder would improve, or the extent to which it would improve, if the claimant were to stop 26 using drugs or alcohol.” SSR 13-2p, 2013 WL 621536, at *9 (Feb. 20, 2013). For cases involving 27 mental impairments as well as substance use, SSR 13-2p therefore requires the Commissioner to 1 use are taken into account, and only then decide whether those effects can be isolated (typically by 2 || comparing a period of abstinence) and whether the claimant would still be disabled without them. 3 || See id.; B.D. v. Kijakazi, No. 21-cv-04493-JCS, 2022 WL 4793385, at *8-10 (N.D. Cal. Sept. 30, 4 2022); see also SSR 13-2p, 2013 WL 621536, at *12—13 (addressing consideration of substance 5 || use and co-occurring mental disorders when the record only demonstrates improved functioning in 6 || a “highly structured treatment setting”). The ALJ did not follow that process here. 7 The ALJ appears to have placed at least some weight on S.M.’s drug use in finding that she 8 was not disabled, but it is not entirely clear how the ALJ treated that issue. Because remand is 9 || necessary to resolve the error discussed above regarding S.M.’s noncompliance with medication, 10 || the Court does not reach the question of whether the ALJ’s failure to follow or discuss SSR 13-2p 11 alone would be grounds for reversal. On remand, however, the ALJ should more clearly address 12 || the effects of S.M.’s methamphetamine use if the ALJ considers that issue relevant to the 13 determination of disability. 14 || Iv. CONCLUSION 15 The ALJ erred at least in disregarding hospitalizations and other symptoms caused by a 16 S.M.’s noncompliance with medication without considering the reasons for her noncompliance, 3 17 || particularly given that the ALJ seems to have acknowledged that S.M.’s impairments contributed 18 || to her noncompliance. The ALJ also may have erred in her consideration of S.M.’s drug use. The 19 case is therefore REMANDED for further proceedings consistent with this Order, and the Clerk 20 shall enter judgment in favor of S.M. 21 The Court does not reach the parties’ remaining arguments, which the Commissioner is 22 || encouraged to consider on remand. 23 IT IS SO ORDERED. 24 || Dated: September 25, 2024 25 26 Lay Arty —

A J. CISNEROS

27 ited States Magistrate Judge 28