2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MICHAEL H.,1 Case No.: 22cv977-MSB

12 Plaintiff,

ORDER REVERSING DECISION OF

13 v. COMMISSIONER AND REMANDING FOR

FURTHER ADMINISTRATIVE

14 MARTIN O’MALLEY, Acting Commissioner

PROCEEDINGS

of Social Security,2 15 Defendant. 16 17 18 On July 1, 2022, Plaintiff Michael H. (“Plaintiff”) filed a civil Complaint against 19 Defendant Commissioner of Social Security (the “Commissioner”) seeking judicial review 20 of Defendant’s denial of disability benefits under the Social Security Act. (ECF No. 1.) 21 Based on all parties’ consent (see ECF Nos. 3 and 22), this case is before the undersigned 22

23 1 Pursuant to Civil Local Rule 7.1(e)(6)(b), “[o]pinions by the Court in [Social Security cases under 42 24 U.S.C. § 405(g)] will refer to any non-government parties by using only their first name and last initial.” 25 2 Martin O’Malley became the Commissioner of Social Security on December 20, 2023. See 26 Commissioner SSA, https://www.ssa.gov/agency/commissioner/ (last visited September 23, 2024). Accordingly, Martin O’Malley should be substituted for Kilolo Kijakazi as the defendant in this 27 lawsuit. See Fed. R. Civ. P. 25(d) (“An action does not abate when a public officer who is a party in an 2 636(c). Now pending before the Court is the parties’ Joint Motion for Judicial Review 3 (“Joint Motion”). (ECF No. 19 (“J. Mot.”).) The Court has carefully reviewed the Joint 4 Motion, the Administrative Record (“AR”) [ECF No. 12], and the Complaint [ECF No. 1]. 5 For the reasons set forth below, the Court ORDERS that judgment be entered 6 REVERSING the Commissioner’s decision and REMANDING this matter for further 7 administrative proceedings consistent with this Order. 8 I. PROCEDURAL HISTORY 9 On October 5, 2020, Plaintiff applied for Title II Social Security Disability Insurance 10 benefits. (AR 223-24.) The Commissioner denied the application initially on February 11 25, 2021, and again upon reconsideration on June 2, 2021. (AR 79-92, 94-115.) On 12 January 27, 2022, Administrative Law Judge (“ALJ”) James Delphey held an oral hearing 13 during which Plaintiff was represented by counsel. (AR 34-78.) In a written decision 14 dated March 30, 2022, ALJ Delphey found that Plaintiff had not been under a disability 15 since January 26, 2020, the alleged onset date of disability. (AR 15-29.) 16 On March 30, 2022, Plaintiff requested review of the ALJ’s decision by the Appeals 17 Council, but it was denied on May 5, 2022, making ALJ Delphey’s decision the final 18 decision of the Commissioner. (AR 1-6); see also, 42 U.S.C. § 405(h). Plaintiff timely 19 filed the instant civil action. (ECF No. 1.) 20 II. SUMMARY OF THE ALJ’S FINDINGS 21 The ALJ followed the Commissioner’s five-step sequential evaluation process. See 22 20 C.F.R. § 404.1520. At step one, the ALJ found Plaintiff had not engaged in substantial 23 gainful activity since the application date, January 26, 2020. (AR 17.) At step two, the 24 ALJ found that Plaintiff had the following severe impairments that significantly limit his 25 ability to perform basic work activities: adjustment disorder with anxiety and 26 depression, post-traumatic stress disorder (“PTSD”), gastro esophageal reflux disease

27 (“GERD”), irritable bowel syndrome (“IBS”), and cervical degenerative disc disease (20 2 severity of one of the listed impairments in the Commissioner’s Listing of Impairments. 3 (AR 18.) 4 Because the ALJ found Plaintiff’s impairments did not amount to a listed 5 impairment, the ALJ then assessed Plaintiff’s residual functional capacity (“RFC”) to 6 perform work. (AR 20.) The ALJ determined: 7 [C]laimant has the residual functional capacity to perform medium work as defined in 20 CFR 404.1567(c) except he can frequently climb ramps or stairs; can 8 occasionally climb ladders, ropes, or scaffolds; can frequently balance, stoop, 9 kneel, crouch, or crawl; can frequently reach overhead bilaterally without any other reaching limitations; he requires convenient restroom access; he is limited 10 to work involving simple, routine tasks with only occasional interactions with 11 supervisors and coworkers and no interaction with the public; and he requires a stable work environment and work routine. 12

13 (AR 20-21.) At step four, the ALJ found that Plaintiff is unable to perform any past 14 relevant work. (AR 27.) Plaintiff’s past relevant work includes electromechanical 15 equipment repairer and biomechanical equipment technician. (Id.) The ALJ relied on 16 the vocational expert’s testimony that the mental limitations in the RFC would eliminate 17 all Plaintiff’s past relevant work. (Id.) At step five, the ALJ found that, after considering 18 Plaintiff’s age, education, work experience, and residual functional capacity, there are 19 jobs that exist in significant numbers in the national economy that she can perform. 20 (Id.) The vocational expert identified several representative occupations such as kitchen 21 helper, laundry worker, ampoule filler, produce sorter, marker II, and small parts 22 assembler. (Id. at 28.) As a result, the ALJ determined that Plaintiff could make an 23 adjustment to other work and, therefore, is not disabled. (Id.) 24 III. DISPUTED ISSUES 25 Plaintiff briefed three issues as grounds for reversal: 26 1. Whether the ALJ properly formulated the RFC; 27 2. Whether the ALJ properly evaluated Dr. Yoo’s opinion under 20 C.F.R. § 2 However, after reviewing the parties’ arguments and the AR, the Court 3 determined that the following three issues are more appropriate: (1) whether the ALJ 4 properly evaluated Dr. Yoo’s opinion; (2) whether the ALJ properly formulated the RFC; 5 and (3) whether the ALJ properly considered Plaintiff’s subjective symptom testimony. 6 IV. STANDARD OF REVIEW 7 Section 405(g) of the Social Security Act allows unsuccessful applicants to seek 8 judicial review of the Commissioner’s final decision. See 42 U.S.C § 405(g). The scope of 9 judicial review is limited, and the denial of benefits will only be disturbed if it is not 10 supported by substantial evidence or contains a legal error. Luther v. Berryhill, 891 F.3d 11 872, 875 (9th Cir. 2018). “Substantial evidence” is a “‘term of art’ used throughout 12 administrative law to describe how courts are to review agency factfinding.” Biestek v. 13 Berryhill, 587 U.S. 97, 102 (2019) (quoting T-Mobile South, LLC v. Roswell, 574 U.S. 293, 14 301 (2015)). The Supreme Court has said substantial evidence means “more than a 15 mere scintilla,” but only “such relevant evidence as a reasonable mind might accept as 16 adequate to support a conclusion.” Id. (quoting Consol. Edison Co. v. NLRB, 305 U.S. 17 197, 229 (1938)). 18 Where the evidence is susceptible to more than one rational interpretation, the 19 ALJ’s decision must be upheld. See Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 20 2008). This includes deferring to the ALJ’s credibility determinations and resolutions of 21 evidentiary conflicts. See Lewis v. Apfel, 236 F.3d 503, 509 (9th Cir. 2001). Even if the 22 reviewing court finds that substantial evidence supports the ALJ’s conclusions, the court 23 must set aside the decision if the ALJ failed to apply the proper legal standards in 24 analyzing evidence and reaching a decision. See Batson v. Comm’r Soc. Sec. Admin., 359 25 F.3d 1190, 1193 (9th Cir. 2004). The reviewing court may enter a “judgment affirming, 26 modifying, or reversing” the Commissioner’s decision. 42 U.S.C. § 405(g). The reviewing

27 court may also remand the case to the Social Security Administration for further 2 1002 (9th Cir. 2015) (quoting Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012)). 3 V. DISCUSSION 4 A. Whether the ALJ Properly Evaluated Dr. Yoo’s Opinion 5 1. Summary of the parties’ arguments 6 Plaintiff argues that both the ALJ’s supportability and consistency analyses were 7 deficient when assessing the persuasiveness of Dr. Yoo’s opinion. (J. Mot. at 12-13.) He 8 argues that the ALJ erroneously determined that his daily activities, Xanax prescription, 9 lack of inpatient or outpatient recommendations, and orientation were inconsistent 10 with Dr. Yoo’s opinion. (Id. at 13-15.) The ALJ did not explain the reason he found these 11 factors to be inconsistent with Dr. Yoo’s report. (Id.) On the contrary, Plaintiff contends 12 that the medical opinion is consistent with the record. (Id. at 15-16.) He explains that 13 Dr. Sfera’s and Dr. Salvatore’s opinions supported and were consistent with Dr. Yoo’s. 14 (Id.) 15 The Commissioner argues that the ALJ reasonably found Dr. Yoo’s opinion was 16 unpersuasive. (Id. at 16.) According to the Commissioner, the ALJ properly decided that 17 Dr. Yoo’s opinion was not supported by medical evidence because he only recited 18 Plaintiff’s subjective complaints. (Id. at 17.) The ALJ further properly determined that 19 Dr. Yoo’s opinion was inconsistent with the medical evidence of record and Plaintiff’s 20 “virtually normal activities of daily living.” (Id. at 17-18.) The Commissioner argues that 21 Plaintiff only offers his own alternative interpretation of the evidence and that if 22 evidence supports more than one rational interpretation, the Court must defer to the 23 Commissioner. (Id. at 18.) The Commissioner asserts that substantial evidence is a 24 “very low threshold” and that the ALJ’s reasoning need only be a rational interpretation 25 of the evidence. (Id.) 26 2. Applicable law

27 Under current regulations, the ALJ must evaluate the persuasiveness of any 2 as the source’s knowledge of other evidence and whether there was subsequently 3 submitted evidence. 20 C.F.R. § 404.1520c(c)(1)–(5). The two most important factors 4 are supportability and consistency. Id. § 404.1520c(b)(2). “Supportability” measures 5 the degree to which objective medical evidence and supporting explanations buttress a 6 medical finding. Id. §§ 404.1520c(c)(1); 416.920c(c)(1). “Consistency” is the extent to 7 which an opinion or finding is consistent with evidence from other medical sources and 8 non-medical sources in the record. Id. §§ 404.1520c(c)(2); 416.920c(c)(2). The more 9 relevant the objective evidence and supporting explanations are to support the medical 10 source, and the more consistent the source is with other evidence in the record, the 11 more persuasive the medical opinion will be. See Zhu v. Comm'r of Soc. Sec., No. 20- 12 3180, 2021 WL 2794533, at *6 (10th Cir. July 6, 2021). 13 The regulations provide that “an ALJ's decision, including the decision to discredit 14 any medical opinion, must simply be supported by substantial evidence.” Woods v. 15 Kijakazi, 32 F. 4th 785, 787 (9th Cir. 2022). ALJs must address how they considered the 16 consistency and supportability factors in sufficient detail to allow a reviewing court to 17 determine whether that reasoning is supported by substantial evidence. Titus L.S. v. 18 Saul, No. 20cv04825-AFM, 2021 WL 275927, at *7 (C.D. Cal. Jan. 26, 2021) (citing Ford v. 19 Saul, 950 F.3d 1141, 1154 (9th Cir. 2020)). The Ninth Circuit has indicated that ALJs 20 should attempt to use these terms “with precision.” Woods, 32 F.4th at 793 n.4. 21 3. Analysis 22 When assessing the persuasiveness of Dr. Yoo’s opinion, the ALJ only discussed 23 the supportability and consistency factors. The ALJ summarizes Dr. Yoo’s opinion below: 24 Ji Hyung Yoo, M.D., a behavioral health services physician at Kaiser Permanente, indicated that the claimant had moderate limitation in the ability to remember 25 locations and work like procedures and moderate limitation in understanding and 26 remembering detailed instructions. He noted moderate limitation in the ability to carry out detailed instructions and maintain attention and concentration for 27 extended periods. Dr. Yoo noted moderate limitation in the claimant’s ability to 2 marked limitation in the claimant’s ability to complete a normal workday and workweek without interruptions from psychologically based symptoms. Dr. Yoo 3 assessed the claimant with moderate limitation in the ability to respond appropriately to changes in the work setting and moderate limitation in the ability 4 to set realistic goals or make plans independently of others. He assessed the 5 claimant with marked limitation in the ability to tolerate normal levels of stress. In addition, he indicated that the claimant’s impairments interfere with his ability 6 to work on a regular and sustained basis at least 20 percent of the time (3F). 7 (AR 25.) For the first factor, the Commissioner argues that the ALJ properly 8 concluded that Dr. Yoo’s opinion was not supported by objective evidence and 9 supporting explanations. (J. Mot. at 17.) The ALJ’s discussion on supportability is brief. 10 He states that Dr. Yoo’s opinions are “only . . . supported by the claimant’s subjective 11 complaints . . . .” (AR 25.) To the extent the ALJ finds that Dr. Yoo’s opinion is not 12 supported because it is only based on claimant’s subjective complaints, the Court agrees 13 with Plaintiff that his complaints may be sufficient to support Dr. Yoo’s opinions, 14 especially when assessing psychiatric conditions. See Berry v. Berryhill, 869 F.3d 1040, 15 1049 (9th Cir. 2017) (finding that a doctor’s reliance on the claimant’s self-reported 16 symptoms is not a legitimate reason to reject his opinion). Defendant does nothing to 17 rebut this argument other than speculate on how Dr. Yoo conducted his assessment. (J. 18 Mot. at 17.) However, the ALJ does not describe any deficiencies of Dr. Yoo’s method 19 and how it may have lacked support. Thus, the ALJ’s supportability determination 20 regarding Dr. Yoo’s opinion is not supported by substantial evidence. 21 On the second factor, the ALJ’s determination that Dr. Yoo’s opinion was 22 inconsistent with the rest of the record must also be supported by substantial evidence. 23 The ALJ explains that Dr. Yoo’s opinion was inconsistent with (1) Plaintiff’s “virtually 24 normal” daily activities; (2) the record showing that Plaintiff should only take Xanax “as 25 needed” for his anxiety; (3) the fact that no invasive inpatient or outpatient 26 recommendations were rendered; and (4) psychiatric examinations that showed 27 2 his medication is effective in treating his symptoms.” (AR 25-26.) 3 a. Inconsistencies with medical evidence 4 The ALJ discusses three types of medical evidence that were inconsistent with Dr. 5 Yoo’s opinion, namely, taking Xanax as needed, no invasive inpatient or outpatient 6 recommendations, and psychiatric examinations that showed Plaintiff had normal mood 7 and affect. (AR 25.) The Commissioner seems to summarize these other factors as 8 “psychiatric examinations [that] showed largely unremarkable findings.” (J. Mot. at 18.) 9 The ALJ does not explain how taking Xanax as needed conflicts with Dr. Yoo’s 10 opinion. The only psychological opinion that the ALJ found to be “somewhat 11 persuasive” was that of the State agency psychological consultants. (AR 23-24.) He 12 explained that their findings for mild limitations were consistent with portions of the 13 medical evidence but found that there were some greater mental limitations based on 14 Plaintiff’s subjective symptom allegations (though he did not specify which symptoms.) 15 (Id.) The ALJ explains that a “moderate limitation in [interacting with others; 16 concentrating, persisting, or maintaining pace; and adapting or managing oneself are] 17 consistent with treatment notes that indicated a prescription for Xanax ‘as needed’, 18 which suggests severe anxiety that would affect social functioning, concentration and 19 self-management.” (Id. at 24 (referring to AR 105).) Because the ALJ describes how 20 Plaintiff’s use of Xanax suggests “severe anxiety” that support moderate limitations 21 affecting his “social functioning, concentration and self-management[,]” it is unclear 22 how that cuts against Dr. Yoo’s findings, who noted moderate limitations in maintaining 23 concentration, ability to work in coordination with others, making simple work-related 24 decisions, and set realistic goals or make plans independently of others. (AR 24-25.) 25 The ALJ’s inconsistent reasoning here undermines his determination that Dr. Yoo’s 26 opinion was completely unpersuasive.

27 Similarly, the ALJ fails to explain how Plaintiff’s lack of inpatient or outpatient 2 and medication is not conservative treatment. See Duarte v. Berryhill, No. 16CV2654 W 3 (BGS), 2018 WL 785819, at *9 (S.D. Cal. Feb. 8, 2018), report and recommendation 4 adopted, No. 16-CV-2654 W (BGS), 2018 WL 1108783 (S.D. Cal. Mar. 1, 2018) (listing 5 cases). While the ALJ concludes that Plaintiff’s normal mood and affect suggests his 6 medication is effective in treating his symptoms [AR 26], courts have often concluded 7 that an ALJ errs when improperly equating stability with functionality. See Kluthe v. 8 Berryhill, No. 1:16-CV-00742-JLT, 2018 WL 775298, at *9 (E.D. Cal. Feb. 8, 2018). Since 9 psychiatric examinations are relatively limited interactions that may not accurately 10 reflect a claimant’s ability to work an eight-hour day, such cherry-picked examples of 11 brief symptom-free periods are also insufficient to deny a claimant’s disability. See 12 Overton v. Berryhill, No. 17cv25-BEN, 2017 WL 5159550, at *1, *18 (S.D. Cal. Nov. 16, 13 2017) report and recommendation adopted, 2018 WL 1561315 (S.D. Cal. Mar. 27, 2018) 14 (finding the ALJ erred when relying on cherry-picked segments of recreational therapy 15 notes and ignoring other segments of the same notes). 16 Although the opposition emphasizes that the substantial evidence standard is a 17 “very low threshold” (J. Mot. at 18), it fails to provide even the slightest rational 18 interpretation of the evidence that would support the ALJ’s findings. The ALJ erred 19 when he failed to explain how each factor is inconsistent with Dr. Yoo’s opinion. See 20 Titus L.S., 2021 WL 275927, at *7. The ALJ seems to only provide conclusive statements, 21 making it difficult for the Court to find a reasonable interpretation of the evidence that 22 supports his findings, especially since the ALJ contradicts himself in finding that Plaintiff 23 has moderate limitations consistent with Dr. Yoo’s opinion. Accordingly, the Court finds 24 that the ALJ erred in inconsistently applying evidence and failing to provide adequate 25 reasons to disregard Dr. Yoo’s opinion. 26 b. Inconsistencies with daily activities

27 In a similar vein, the ALJ does not explain how Plaintiff’s daily activities are 2 caring for pets, caring for children, and driving a motor vehicle as well as watching 3 television the majority of the day and interacting on Facebook.” (AR 25.) The 4 Commissioner argues that the ALJ reasonably concluded that these “largely normal” 5 daily activities were inconsistent with marked limitations. (J. Mot. at 18.) However, the 6 ALJ and the Commissioner both omit any explanation for why these are inconsistent 7 with Dr. Yoo’s opinion. 8 The absence of any explanation is concerning, given that courts “have repeatedly 9 warned that ALJs must be especially cautious in concluding that daily activities are 10 inconsistent with testimony about pain, because impairments that would 11 unquestionably preclude work and all the pressures of a workplace environment will 12 often be consistent with doing more than merely resting in bed all day.” Garrison v. 13 Colvin, 759 F.3d 995, 1016 (9th Cir. 2014). While this caution is typically applied when 14 assessing a claimant’s subjective symptom testimony, the ALJ must still carefully 15 consider how daily activities are inconsistent with Plaintiff’s abilities to function in a 16 work setting, as opposed to how one functions in a more familiar and comfortable 17 environment such as his home or around his family. See Pate-Fires v. Astrue, 564 F.3d 18 935, 947 (8th Cir. 2009) (finding that minimal daily activities, such as watching TV, 19 cooking, cleaning, and shopping for groceries are often consistent with chronic mental 20 disability) (citing Hutsell v. Massanari, 259 F.3d 707, 713 (8th Cir. 2009)). 21 Although the ALJ is tasked with interpreting and weighing the facts, the Court is 22 unable to guess at the ALJ’s reasoning. See Robert D. v. Kijakazi, No. 20CV2132-AJB 23 (MSB), 2021 WL 5905734, at *4 (S.D. Cal. Dec. 14, 2021), report and recommendation 24 adopted, No. 20-CV-02132-AJB-MSB, 2022 WL 62908 (S.D. Cal. Jan. 6, 2022) (listing 25 cases). The ALJ’s lack of explanation here is error. Consequently, Plaintiff’s daily 26 activities do not constitute as substantial evidence that supports the ALJ’s finding that

27 Dr. Yoo’s opinion is unpersuasive. 2 Finally, Plaintiff argues that Dr. Yoo’s opinion is consistent with Dr. Salvatore and 3 Dr. Sfera. However, Plaintiff does not acknowledge that the ALJ found these opinions 4 unpersuasive, and Plaintiff does not challenge these findings. The Court does not give 5 weight to these opinions either, but as discussed supra, Dr. Yoo’s opinion seems at least 6 partially consistent with the ALJ’s analysis of Plaintiff’s Xanax prescription and subjective 7 symptom testimony when discussing the State agency psychological consultants’ 8 opinion. 9 d. Conclusion 10 Ultimately, the ALJ’s assessment of Dr. Yoo’s opinion lacks substantial evidence. 11 The ALJ’s failure to expound on the reasons why certain factors diminished Dr. Yoo’s 12 opinion hinders the Court’s ability to assess whether the ALJ’s decision was supported 13 by substantial evidence. Most notably, the ALJ’s surface level discussion highlighted 14 inconsistencies in his overall analysis of the record. This error is not harmless because a 15 different finding could have resulted in a more restrictive RFC that could have changed 16 the outcome of Plaintiff’s disability determination. See Carmickle v. Comm’r of Soc. Sec. 17 Admin., 553 F.3d 1155, 1162 (9th Cir. 2008). 18 B. Whether the ALJ Properly Formulated the RFC 19 1. Summary of the parties’ arguments 20 Both of Plaintiff’s first and third arguments claim the ALJ’s formulation of the RFC 21 was flawed. Plaintiff’s first argument focuses on limitations regarding his IBS diagnosis 22 and the third argument is a broader critique that the RFC is not reflective of all his 23 mental limitations, specifically his limitations dealing with stress and work attendance. 24 (J. Mot. at 4-9; 21-24.) The Court will address both in this section. 25 a. Plaintiff’s IBS limitations 26 Plaintiff argues that the ALJ failed to properly formulate his RFC with respect to

27 one of his limitations. (Id. at 4-6.) He argues that the ALJ’s determination that he 2 the vocational expert commented that restroom convenience “can be argued both 3 ways,” which suggests that he thought the term was open to interpretation. (Id. at 9 4 (citing AR 69).) Plaintiff further argues that “convenient restroom access” does not 5 account for the actual use of the restroom, which he believes is a distinct limitation. 6 (Id.) 7 The Commissioner argues that substantial evidence supports the ALJ’s RFC. (Id. at 8 6.) According to the Commissioner, the ALJ properly accounted for limitations that were 9 supported by the record. (Id. at 6-7.) The ALJ assessed and reasonably concluded 10 Plaintiff’s subjective testimony about his bathroom use was not consistent with the 11 objective medical evidence. (Id.) The Commissioner further refutes “convenient 12 restroom access” is ambiguous because the vocational expert was able to provide a 13 specific response to the ALJ’s hypothetical, and thus, Plaintiff’s speculation on the term 14 “convenient” cannot undermine the vocational expert’s testimony. (Id. at 8.) 15 b. Plaintiff’s mental limitations 16 Plaintiff believes the RFC is also improper because the section regarding his 17 mental limitations lacks support. (Id. at 23.) Although the ALJ found the examining 18 doctors’ opinions to not be persuasive, those doctors concluded Plaintiff had more 19 limitations than what was reflected in the RFC, which were not specifically rejected by 20 the ALJ. (Id. at 22.) 21 The Commissioner argues that the RFC properly accounts for the limitations that 22 were supported by the record because the ALJ reasonably rejected Plaintiff’s subjective 23 complaints and reasonably discounted the related medical opinions. (Id. 24.) 24 2. Applicable law 25 RFC is a claimant’s ability to do work-related activities on a sustained basis (i.e., 26 eight hours a day, five days per week). Titles II & XVI: Assessing Residual Functional

27 Capacity in Initial Claims, SSR 96-8P, 1996 WL 374184, at *1 (S.S.A. July 2, 1996). Thus, it 2 20 C.F.R. § 404.1545(a)(1). In making this finding, the ALJ must consider all the 3 claimant’s medically determinable impairments, including those that are non-severe. 4 See 20 C.F.R. § 404.1545(a)(2); see also Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 5 2017) (quoting SSR 96-8P, 1996 WL 374184, at *5). Additionally, the Ninth Circuit has 6 held that the agency must consider the claimant’s testimony regarding their capabilities, 7 as well as all relevant evidence, including medical records and lay evidence. Chaudhry v. 8 Astrue, 688 F.3d 661, 670 (9th Cir. 2012); Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 9 (9th Cir. 2006); SSR 96-8P, 1996 WL 374184, at *5. Generally, “an RFC that fails to take 10 into account a claimant’s limitations is defective.” Valentine v. Comm’r Soc. Sec. 11 Admin., 574 F.3d 685, 690 (9th Cir. 2009); see also Samples v. Comm’r Soc. Sec. Admin., 12 466 Fed. App’x 584, 586 (9th Cir. 2012). However, the RFC need not quote every 13 finding, so long as it generally captures the limitations in the medical opinion. See 14 Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008). 15 3. Analysis 16 a. Plaintiff’s IBS limitations 17 Although Plaintiff frames his argument as a formulation issue with the RFC, the 18 true crux of the issue stems from whether the ALJ properly rejected Plaintiff’s subjective 19 symptom testimony. Plaintiff’s argument boils down to two points, both of which rely 20 on his symptom testimony: (1) the ALJ’s use of “convenient restroom access” is 21 ambiguous; and (2) the RFC does not account for Plaintiff’s true limitations regarding his 22 IBS. 23 In making the second point, Plaintiff states that the “ALJ did not specifically reject 24 [his] testimony regarding the need to use the restroom with some frequency.” (J. Mot. 25 at 6.) However, the Commissioner primarily argues that the ALJ reasonably rejected this 26 testimony. (J. Mot. at 7.) The Court cannot assess whether the ALJ appropriately

27 accounted for Plaintiff’s IBS limitations without first assessing whether Plaintiff’s 2 testimony may independently be reversible error. See Brown-Hunter v. Colvin, 806 F.3d 3 487, 489 (9th Cir. 2015) (finding that an ALJ’s failure to identify and explain why a 4 claimant’s subjective testimony is not credible constitutes reversible error because the 5 reviewing court cannot determine if the ALJ’s decision was supported by substantial 6 evidence). 7 Plaintiff’s first point, though subtler, also relies on whether the ALJ properly 8 rejected his symptom testimony. An ALJ’s use of an ambiguous or vague term when 9 formulating the RFC is not necessarily reversible error by itself. If the ALJ has properly 10 evaluated Plaintiff’s symptom testimony and other evidence in the record such that the 11 meaning of an ambiguous or vague term can be gleaned, then substantial evidence will 12 have supported the ALJ’s finding. 13 “Convenient restroom access” is facially vague and ambiguous. At the hearing, 14 when the vocational expert was asked whether Plaintiff’s former work as a 15 biomechanical tech would allow for convenient restroom access, the vocational expert 16 acknowledged that his answer depends on how convenient restroom access is 17 interpreted. (See AR 68.) In support of this argument, Plaintiff cites Clark v. Kijakazi, 18 Case No. 2:22-cv-01336 AC, 2023 WL 6049890 (E.D. Cal. Sept. 15, 2023) and McMichael 19 v. Astrue, Civil No. 09–840–HA, 2010 WL 3522377, at *4 (D. Or. Sept. 8, 2010). Neither 20 of these cases support a broad rule that an ambiguous or vague term in an RFC may 21 independently constitute reversible error. In Clark, the court found that the portion of 22 the RFC that refers to “occasional twisting” was not supported by substantial evidence 23 because there was no medical opinion regarding the range of motion in plaintiff’s neck 24 and the ALJ could not make his own medical determination based on limited notes and 25 plaintiff’s daily activities. Clark, 2023 WL 6049890, at *5. While the court concluded 26 that the term “twisting” was vague and ambiguous, the lack of medical record was the

27 definitive reason the court found the RFC was not supported by substantial evidence. 2 that the vocational expert’s testimony could not constitute substantial evidence 3 because of multiple layers of ambiguity and confusion. McMichael, 2010 WL 3522377, 4 at *4. The vocational expert was posed a question that included several ambiguities and 5 then was essentially tasked to determine an RFC on her own. Id. 6 Here, the question posed to the vocational expert was similar to the first line of 7 questioning in McMichael because the term “convenient restroom access” did not 8 specify what such access would entail and thus, it was unclear whether the jobs 9 identified would actually accommodate Plaintiff’s IBS diagnosis. However, unlike 10 McMichael, this ambiguity was not “fatal.” Id. Much like Clark, if the record was 11 adequately developed, then the definition of “convenient restroom access” could be 12 determined. And, if the definition could be ascertained, then the Court would be able 13 to evaluate if the jobs identified by the vocational expert could accommodate Plaintiff’s 14 limitations. 15 The Commissioner argues that substantial evidence supports the convenient 16 restroom access RFC because the ALJ reasonably rejected Plaintiff’s subjective 17 testimony about the severity of his IBS symptoms. However, Plaintiff’s subjective 18 symptom testimony is an underlying dispute that the Court will address infra. If the ALJ 19 properly rejected Plaintiff’s subjective symptom testimony, then “convenient restroom 20 access” would only represent a minimal limitation where the simple presence of a 21 nearby restroom would be sufficient, and the vocational expert’s testimony would not 22 need to be reevaluated. On the other hand, if the ALJ failed to properly assess Plaintiff’s 23 testimony, then the RFC pertaining to his IBS symptoms would not be supported by 24 substantial evidence. See Clark, 2023 WL 6049890, at *5; see also Chaudhry, 688 F.3d at 25 670. 26 b. Plaintiff’s mental limitations

27 For his final argument, Plaintiff relies on the opinions of doctors that the ALJ 2 Sfera and Dr. Salvatore’s opinions is odd, the Court agrees with the Commissioner that 3 Plaintiff has forfeited the ability to seek review as to their opinions. See Schwarz v. 4 Kijakazi, No. 22-35792, 2023 WL 8271968, at *1 (9th Cir. Nov. 30, 2023) (citing Freedom 5 from Religion Found., Inc. v. Chino Valley Unified Sch. Dist. Bd. of Educ., 896 F.3d 1132, 6 1152 (9th Cir. 2018)). Instead, Plaintiff argues that the ALJ did not specifically reject Dr. 7 Sfera and Dr. Salvatore’s opinions with respect to his handling stress and maintaining 8 attendance—yet he does not provide legal authority that requires the ALJ to make such 9 a specific finding. (See J. Mot. at 25.) Indeed, the ALJ found their opinions to be 10 unpersuasive in their entirety, not just the portions he discussed. (AR 24-25.) 11 Accordingly, the Court does not find that the RFC inadequately reflects limitations 12 supported only by Dr. Sfera and Dr. Salvatore’s opinions. The Court has already tasked 13 the ALJ with reassessing Dr. Yoo’s opinion. If the ALJ’s revised assessment results in a 14 different outcome, the ALJ may or may not need to amend the RFC accordingly. See 15 Chaudhry, 688 F.3d at 670. 16 4. Conclusion 17 The Court does not find that the ALJ’s formulation of the RFC was flawed for the 18 reasons Plaintiff claims it to be. Although the Court finds that the RFC’s inclusion of the 19 term “convenient restroom access” is vague and ambiguous, it still may be supported by 20 substantial evidence if the ALJ properly assessed Plaintiff’s subjective symptom 21 testimony. Similarly, the portion of the RFC that refers to Plaintiff’s mental health 22 limitations may also be supported by substantial evidence once the ALJ properly 23 assesses Dr. Yoo’s opinion. 24 C. Whether the ALJ Properly Considered Plaintiff’s Subjective Symptom Testimony 25 As discussed above, although the parties do not explicitly argue whether the ALJ 26 properly assessed Plaintiff’s subjective testimony regarding his IBS symptoms, there is a

27 clear disagreement on this matter. (See J. Mot. at 6-7 (Plaintiff states that the ALJ did 2 reasonably rejected his testimony).) 3 1. Applicable Law 4 The ALJ must follow a two-step analysis to determine whether a claimant’s 5 allegations regarding subjective pain or symptoms are credible. See Johnson v. Kijakazi, 6 No. 19-17359, 2022 WL 1553259, at *1 (9th Cir. May 17, 2022); Vasquez v. Astrue, 572 7 F.3d 586, 591 (9th Cir. 2009); Lingenfelter v. Astrue, 504 F.3d 1028, 1035–36 (9th Cir. 8 2007). 9 First, the ALJ must determine whether there is objective medical evidence of an 10 underlying impairment that “could reasonably be expected to produce the pain or other 11 symptoms alleged.” Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017) (quoting 12 Garrison, 759 F.3d at 1014–15). The claimant is not required to show that an underlying 13 impairment could reasonably be expected to cause the severity of the pain alleged, but 14 only that it could have reasonably caused some degree of pain. Vasquez, 572 F.3d at 15 591 (citing Lingenfelter, 504 F.3d at 1036). 16 Second, if the claimant meets the first step and there is no evidence of 17 malingering, then the ALJ may reject the claimant’s statements about the severity of his 18 symptoms “only by offering specific, clear and convincing reasons for doing so.” 19 Trevizo, 871 F.3d at 678 (quoting Garrison, 759 F.3d at 1014–15). “The clear and 20 convincing standard is the most demanding required in Social Security cases.” Revels v. 21 Berryhill, 874 F.3d 648, 655 (quoting Garrison, 759 F.3d at 1014–15). General findings 22 are insufficient, and the ALJ must identify which specific pain and symptom statements 23 are being discounted and what evidence undermines those claims. See Lambert v. Saul, 24 980 F.3d 1266, 1277 (9th Cir. 2020) (citing Treichler v. Comm’r Soc. Sec. Admin., 775 25 F.3d 1090, 1102 (9th Cir. 2014)); Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005). 26 “[B]ecause [certain] symptoms . . . are subjective and difficult to quantify,” the ALJ

27 will consider “all of the evidence presented,” including information about the claimant’s 2 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3); SSR 16-3p. In addition to objective medical 3 evidence, other factors that the ALJ will consider include Plaintiff’s daily activities; the 4 location, duration, frequency, and intensity of their pain or other symptoms; 5 precipitating and aggravating factors; the type, dosage, effectiveness, and side effects of 6 any medication taken; treatment; and any other measures used to relieve symptoms. 7 See id. The ALJ may also consider inconsistencies between Plaintiff’s statements 8 regarding pain and the medical evidence. See 20 C.F.R. §§ 404.1529(c)(4), 416.929(c)(4); 9 SSR 16-3p. 10 2. The ALJ’s findings 11 The ALJ acknowledged that Plaintiff alleged “his IBS can keep him in the bathroom 12 for 45 minutes to an hour at a time.” (AR 20.) He then summarized Plaintiff’s IBS 13 medical record as follows: 14 [T]reatment notes from Veterans Affairs indicated that the claimant’s abdominal discomfort was associated with PTSD and anxiety. . . . [I]t was noted that “the 15 patient is also having significant somatic symptoms that are likely anxiety related, 16 such as symptoms consistent with irritable bowel syndrome.” He was not on continuous medication for any intestinal conditions and has not received any 17 surgical treatment for an intestinal condition. Moreover, despite the claimant’s 18 reports of GERD and IBS, there was no evidence of weight loss, malnutrition, or serious complications noted (7F/5, 10F/7, 14F/8). The claimant’s medications 19 appeared effective in treating his symptoms (8F/10-11, 12F). 20 (AR 22.) Although the ALJ found that “the medical evidence of record does not 21 corroborate the severity of the symptoms alleged by the claimant[,]” the RFC addresses 22 Plaintiff’s IBS by listing “convenient restroom access” as a requirement. (AR 26.) 23 3. Analysis 24 The ALJ makes a general statement that “claimant’s statements concerning the 25 intensity, persistence and limiting effects of these symptoms are not entirely consistent 26 with the medical evidence and other evidence in the record for the reasons explained in 27 this decision.” (AR 21-22.) This statement refers to the preceding paragraph, which 2 finds that the ALJ intended to discredit this allegation. However, whether the ALJ 3 properly discredited Plaintiff’s allegations is the next inquiry. 4 Before the ALJ discredits a claimant’s subjective symptom testimony, they must 5 first determine if objective medical evidence of an underlying impairment “could 6 reasonably be expected to produce the pain or other symptoms alleged.” Trevizo, 871 7 F.3d at 678. The ALJ found this was the case. (AR 21.) The second step is for the ALJ to 8 describe specific, clear, and convincing reasons to reject the claimant’s testimony on the 9 severity of his symptoms. Trevizo, 871 F.3d at 678. The Court finds that the ALJ failed to 10 do so here. 11 First, the ALJ does not explain how the medical evidence contradicts Plaintiff’s 12 alleged need to use the restroom for forty-five to sixty minutes. While the Court may be 13 able to draw inferences about what testimony is inconsistent, the ALJ must identify 14 those inconsistencies with specificity. Lambert, 980 F.3d at 1278 (citing Brown-Hunter, 15 806 F.3d at 494) (“Although the inconsistencies identified by the district court could be 16 reasonable inferences drawn from the ALJ’s summary of the evidence, the credibility 17 determination is exclusively the ALJ’s to make,” and the reviewing court is “constrained 18 to review the reasons the ALJ asserts.”). 19 In any case, even if the Court made inferences of the ALJ’s reasoning, the 20 summary of Plaintiff’s IBS medical history does not appear to necessarily negate or 21 support Plaintiff’s testimony. The ALJ seems to imply that, because Plaintiff’s IBS is 22 more related to his anxiety and does not appear to have much of a physiological impact, 23 Plaintiff’s testimony is less credible. However, the fact that Plaintiff’s IBS may be 24 anxiety-induced, does not make his claim that he needs to use the restroom for forty- 25 five to sixty minutes at a time more or less likely. The absence of medical evidence, 26 alone, is not enough to discredit Plaintiff’s testimony. See e.g., Bunnell v. Sullivan, 947

27 F.2d 341, 346–347 (9th Cir. 1991) (holding that “the adjudicator may not discredit a 1 || pain alleged by the claimant is not supported by objective medical evidence”). 2 Accordingly, the ALJ’s assessment of Plaintiff's testimony regarding his bathroom usage 3 not clear and convincing. The Court finds that the ALJ improperly rejected Plaintiff's 4 subjective testimony. 5 This error was not harmless. As illustrated in the previous section, the ALJ’s 6 || failure to provide clear and convincing reasons for discounting Plaintiff's pain testimony 7 || “precludes us from conducting a meaningful review.” See Brown-Hunter, 806 F.3d at 8 ||489. On remand, the ALJ should reevaluate Plaintiff’s symptom testimony and 9 || specifically identify which portions of it, if any, the ALJ finds not credible and why. 10 VI. CONCLUSION 11 The reviewing court may enter a “judgment affirming, modifying, or reversing” 12 ||the Commissioner’s decision. 42 U.S.C. § 405(g). The reviewing court may also remand 13 || the case to the Social Security Administration for further proceedings. Id. 14 The Court finds that remand for further proceedings is warranted because 15 || additional administrative proceedings could remedy the defects in the ALJ’s decision. 16 || See Kail v. Heckler, 722 F.2d 1496, 1497 (9th Cir. 1984). Therefore, the Court ORDERS 17 || that judgment be entered REVERSING the decision of the Commissioner and 18 || REMANDING this matter for further administrative proceedings pursuant to sentence 19 || four of 42 U.S.C. § 405(g). 20 IT IS SO ORDERED. 21 ||Dated: September 23, 2024 = _ 2 FF 33 Honorable Michael S. Berg United States Magistrate Judge 24 25 26 27 28