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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

10 11 EVAN T. B.,1 Case No. 5:24-cv-01428-JC

12 Plaintiff,

MEMORANDUM OPINION

13 v. AND ORDER OF REMAND 14 FRANK BISIGNANO, Commissioner of Social Security Administration, 15 16 Defendant. 17 18 19 I. SUMMARY 20 On July 10, 2024, plaintiff Evan T. B. filed a Complaint seeking review of 21 the Commissioner of Social Security’s denial of plaintiff’s application for benefits. 22 The parties have consented to proceed before the undersigned United States 23 Magistrate Judge. 24 This matter is before the Court on the parties’ cross-briefs (respectively, 25 “Plaintiff’s Brief,” “Defendant’s Brief,” and “Plaintiff’s Reply”), which the Court 26 27 1Plaintiff’s name is partially redacted to protect plaintiff’s privacy in compliance with 28 Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case Management of the Judicial Conference of the United States. 1 1 has taken under submission without oral argument. See July 10, 2024 Case 2 Management Order ¶ 4. 3 Based on the record as a whole and the applicable law, the decision of the 4 Commissioner is REVERSED AND REMANDED for further proceedings 5 consistent with this Memorandum Opinion and Order of Remand. 6 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE 7 DECISION 8 On or about July 3, 2018, plaintiff filed an application for Supplemental 9 Security Income (SSI) alleging disability beginning on March 22, 2000 (plaintiff’s 10 date of birth), due to “ADD” (attention deficit disorder), “ADHD” (attention 11 deficit hyperactivity disorder), fetal alcohol syndrome, major depressive disorder, 12 anxiety, and panic attacks. (Administrative Record (“AR”) 44-45, 424-33, 464). 13 An Administrative Law Judge (ALJ) subsequently examined the medical record 14 and, on June 23, 2020, heard testimony from plaintiff, plaintiff’s grandfather, and 15 a vocational expert. (AR 97-129). On October 19, 2020, the ALJ determined 16 plaintiff was not disabled since the application date. (AR 158-67). 17 On April 20, 2022, the Appeals Council vacated the ALJ’s decision and 18 remanded the matter for further proceedings to obtain additional evidence and to: 19 (1) proffer to plaintiff certain post-hearing evidence the ALJ considered; 20 (2) further consider the severity of plaintiff’s fetal alcohol syndrome given a 21 2016 assessment documenting the syndrome submitted for the first time to the 22 Appeals Council; and (3) address plaintiff’s grandfather’s testimony and 23 statements. (AR 174-76). 24 On remand, a new ALJ heard testimony from plaintiff (who then was 25 represented by counsel), plaintiff’s grandfather, a medical expert, and a vocational 26 expert. (AR 39-96). On August 11, 2023, the new ALJ found plaintiff was not 27 disabled since the application date. (AR 19-31). Specifically, the ALJ found: 28 /// 2 1 (1) although plaintiff had worked since the application date it was not at 2 substantial gainful activity levels (AR 21); (2) plaintiff suffered from the 3 following severe impairments: generalized anxiety disorder, major depressive 4 disorder, and fetal alcohol syndrome (AR 21-22); (3) plaintiff’s impairments, 5 considered individually or in combination, did not meet or medically equal a listed 6 impairment (AR 22-23); (4) plaintiff retains the residual functional capacity 7 (“RFC”)2 to perform light work (20 C.F.R. § 416.967(b)) with additional 8 limitations3 (AR 23-29); (5) plaintiff could perform work existing in significant 9 numbers in the national economy, specifically router and collator operator (AR 30 10 (adopting vocational expert testimony at AR 63-65)); and (6) plaintiff’s statements 11 regarding the intensity, persistence, and limiting effects of subjective symptoms 12 were not entirely consistent with the evidence (AR 24-25). 13 On May 22, 2024, the Appeals Council denied plaintiff’s application for 14 review. (AR 3-5). 15 III. APPLICABLE LEGAL STANDARDS 16 A. Administrative Evaluation of Disability Claims 17 To qualify for disability benefits, a claimant must show that he is unable “to 18 engage in any substantial gainful activity by reason of any medically determinable 19 physical or mental impairment which can be expected to result in death or which 20 has lasted or can be expected to last for a continuous period of not less than 21 12 months.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012) (quoting 22 23 24 25 2A Residual Functional Capacity is what a claimant can still do despite existing exertional and nonexertional limitations. See 20 C.F.R. § 416.945(a)(1). 26 3Specifically, the ALJ limited plaintiff to work with: (1) no exposure to danger to life or 27 limb or high exposed places in the workplace; (2) simple, routine, and repetitive tasks with 28 occasional changes in the work setting; (3) no public interaction and brief, superficial interaction with supervisors and coworkers; and (4) no rapid assembly-line paced work. (AR 23). 3 1 || 42 U.S.C. § 423(d)(1)(A)) (internal quotation marks omitted), superseded by 2 || regulation on other grounds as stated in Sisk v. Saul, 820 Fed. App’x 604, 606 3 | (9th Cir. 2020); 20 C.F.R. §§ 404.1505(a), 416.905(a). To be considered disabled, 4 | a claimant must have an impairment of such severity that he is incapable of 5 || performing work the claimant previously performed (“past relevant work’’) as well 6 || as any other “work which exists in the national economy.” Tackett v. Apfel, 180 7 | F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)). 8 To assess whether a claimant is disabled, an ALJ is required to use the five- 9 || step sequential evaluation process set forth in Social Security regulations. See 10 || Stout v. Comm’r of Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006) 11 | (describing five-step sequential evaluation process) (citing 20 C.F.R. §§ 404.1520, 12 | 416.920). The claimant has the burden of proof at steps one through four — i.e., 13 || determination of whether the claimant was engaging in substantial gainful activity 14 | (step 1), has a sufficiently severe impairment (step 2), has an impairment or 15 | combination of impairments that meets or medically equals one of the conditions 16 || listed in 20 C.F.R. Part 404, Subpart P, Appendix | (“Listings’’) (step 3), and 17 | retains the residual functional capacity to perform past relevant work (step 4). 18 | Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citation omitted). The 19 | Commissioner has the burden of proof at step five —i.e., establishing that the 20 | claimant could perform other work in the national economy. Id. 21 B. Federal Court Review of Social Security Disability Decisions 22 A federal court may set aside a denial of benefits only when the 23 || Commissioner’s “final decision” was “based on legal error or not supported by 24 || substantial evidence in the record.” 42 U.S.C. § 405(g); Trevizo v. Berryhill, 871 23 | F.3d 664, 674 (9th Cir. 2017) (citation and quotation marks omitted). The 26 standard of review in disability cases is “highly deferential.” Rounds v. Comm’r 27 I of Soc. Sec. Admin., 807 F.3d 996, 1002 (9th Cir. 2015) (citation and quotation 28 | marks omitted). Thus, an ALJ’s decision must be upheld if the evidence could

1 || reasonably support either affirming or reversing the decision. Trevizo, 871 F.3d at 2 || 674-75 (citations omitted). Even when an ALJ’s decision contains error, it must 3 | be affirmed if the error was harmless. See Treichler v. Comm’r of Soc. Sec. 4 | Admin., 775 F.3d 1090, 1099 (9th Cir. 2014) (ALJ error harmless if (1) 5 || inconsequential to the ultimate nondisability determination; or (2) ALJ’s path may 6 || reasonably be discerned despite the error) (citation and quotation marks omitted). 7 Substantial evidence is “such relevant evidence as a reasonable mind might 8 || accept as adequate to support a conclusion.” Trevizo, 871 F.3d at 674 (defining 9 || “substantial evidence” as “more than a mere scintilla, but less than a 10 || preponderance’’) (citation and quotation marks omitted). When determining 11 | whether substantial evidence supports an ALJ’s finding, a court “must consider the 12 || entire record as a whole, weighing both the evidence that supports and the 13 || evidence that detracts from the Commissioner’s conclusion[.]” Garrison v. 14 | Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) (citation and quotation marks omitted). 15 Federal courts review only the reasoning the ALJ provided, and may not 16 || affirm the ALJ’s decision “on a ground upon which [the ALJ] did not rely.” 17 | Trevizo, 871 F.3d at 675 (citations omitted). Hence, while an ALJ’s decision need 18 || not be drafted with “ideal clarity,” it must, at a minimum, set forth the ALJ’s 19 reasoning “in a way that allows for meaningful review.” Brown-Hunter v. Colvin, 20 | 806 F.3d 487, 492 (9th Cir. 2015) (citing Treichler, 775 F.3d at 1099). 21 A reviewing court may not conclude that an error was harmless based on 22 independent findings gleaned from the administrative record. Brown-Hunter, 806 23 || F.3d at 492 (citations omitted). When a reviewing court cannot confidently 24 | conclude that an error was harmless, a remand for additional investigation or 25 explanation is generally appropriate. See Marsh v. Colvin, 792 F.3d 1170, 1173 26 (9th Cir. 2015) (citations omitted).

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1 IV. DISCUSSION 2 Plaintiff contends that the ALJ erred in evaluating consultative examiner Dr. 3 Gregory Nicholson’s opinion and subjective statements and testimony from 4 plaintiff and his grandfather suggesting greater limitations than the ALJ found to 5 exist. (Plaintiff’s Brief at 2-17; Plaintiff’s Reply at 1-6). For the reasons 6 explained below, the Court finds that the ALJ erred in evaluating Dr. Nicholson’s 7 opinion. Since the Court cannot find this error to be harmless, a remand is 8 warranted. 9 A. The ALJ Erred in Evaluating Dr. Nicholson’s Opinion 10 Dr. Nicholson provided a psychiatric consultative examination dated 11 June 19, 2019. (AR 669-74). Dr. Nicholson reviewed a prior consultative 12 examiner’s report, some non-psychiatric records listing a fetal alcohol syndrome 13 diagnosis, and January 2019 records for depression. (AR 669; see AR 641-46 14 (prior consultative examiner’s report); AR 695-98 (January 2019 depression 15 treatment note); AR 699-700 (August 2016 note diagnosing fetal alcohol 16 syndrome with dysmorphic features with neurodevelopmental disorder associated 17 with prenatal alcohol exposure, noting plaintiff had evidence of sadness, 18 depression, and anger)).4 Plaintiff complained of depression from having no 19 20 4Consultative examining psychologist Dr. Jessica Durr provided a mental evaluation for 21 plaintiff dated October 26, 2018. (AR 641-66). She reviewed no records and did no testing. (AR 641-42). Plaintiff complained of anxiety and depression making it difficult for him to be 22 around “a lot” of people, major panic attacks two to three times a week, and “slight” attacks daily 23 since about age 11. (AR 642). He reported he had fetal alcohol syndrome, ADHD, abandonment issues, and a history of physical and emotional abuse. (AR 642). He had seen a psychiatrist 24 since he was 14 years old and had seen a therapist for about a year and a half. (AR 642). 25 Plaintiff then was a senior in high school and had been in special education since about 26 fourth grade. (AR 643). He had worked a seasonal job in a pumpkin patch for three Saturdays in 2017, which he said was a lot of fun and it had been nice being able to talk to people but he “felt 27 weird doing it.” (AR 643). He was independent in his activities of daily living, could make 28 simple meals, but needed reminders to do household chores and a shopping list. (AR 643-44). (continued...) 6 1 friends, panic attacks with a history of bullying and violence, ADHD, trouble 2 concentrating, forgetfulness, misplacing things easily, insomnia, decreased 3 appetite, decreased energy, decreased interest in normal activities, and prior 4 suicidal ideations. (AR 670). His grandfather reported that plaintiff is scared of 5 people. (AR 670). 6 Plaintiff had worked as a lot associate for Home Depot but stopped working 7 due to anxiety. (AR 671). Plaintiff lived with his grandfather who did all the 8 cooking and laundry, and helped plaintiff with activities of daily living by 9 reminding plaintiff to shower, put on clean clothes, and take his medications. (AR 10 671). On mental status examination, plaintiff was cooperative, depressed with a 11 dysphoric mood, was able to recall three of three items immediately and one of 12 three after five minutes, appeared to have somewhat below average intelligence, 13 could spell “world” both forward and backward, was unable to perform serial 14 threes, and could follow conversation well. (AR 671-73). 15 Dr. Nicholson diagnosed unspecified anxiety disorder, ADHD, depressive 16 disorder, and an intellectual disability based on plaintiff’s special education 17 history and plaintiff’s mental status examination which showed deficits in 18 19 4(...continued) He spent his days watching television, reading, using the computer, going to school, napping, 20 fishing, playing video games, and playing with his dog. (AR 644). 21 On mental status examination, plaintiff was anxious but cooperative, was able to recall 22 three out of three objects immediately and after five minutes, was not able to perform serial 23 sevens but could perform serial threes, and was able to spell “music” forward and backward. (AR 644-45). Dr. Durr diagnosed anxiety disorder (not otherwise specified), depressive disorder 24 (not otherwise specified), and noted to rule out post traumatic stress disorder. (AR 645). She estimated plaintiff’s intelligence to be in the average to low average range. (AR 645). She 25 opined that plaintiff: (1) would be able to understand, remember, and carry out short, simplistic 26 instructions without difficulty, as well as detailed instructions, and make simplistic work-related decisions without special supervision; (2) would have mild limits in his ability to comply with 27 job rules such as safety and attendance, respond to changes in a routine work setting, and respond 28 to work pressure in a usual work setting; and (3) would have mild inability to interact appropriately with supervisors, coworkers, and peers. (AR 646). 7 1 memory, concentration, and calculations. (AR 673). Intelligence testing would be 2 needed to confirm the intellectual disability diagnosis. (AR 673-74). Dr. 3 Nicholson opined that plaintiff: (1) could understand, remember, and carry out 4 simple one- and two-step job instructions; (2) would not be able to do detailed and 5 complex instructions; (3) would have moderate limits in his relating and 6 interacting with coworkers and the public, maintaining concentration and 7 attention, persistence, and pace, and performing work activities without special or 8 additional supervision; and (4) would have mild limits in accepting instructions 9 from supervisors, maintaining regular attendance in the workplace, and 10 performing work activities on a consistent basis. (AR 674). 11 1. The ALJ’s Decision 12 The ALJ summarized Dr. Nicholson’s opinion and found the opinion 13 “persuasive in part,” as from an acceptable medical source with program 14 knowledge who personally examined plaintiff. (AR 28). The ALJ then stated: 15 However, at the examination, the claimant reported working at a 16 pumpkin patch where he enjoyed talking to people. He was described 17 as slightly anxious, but cooperative during the examination. His 18 speech was normal in tone, volume, and rate and clear and coherent. 19 Based on the examination findings, the claimant would not have more 20 than mild limitations in interact [sic] with others. 21 (AR 28). 22 2. Pertinent Law 23 For claims filed after March 27, 2017 (such as plaintiff’s claim), new 24 regulations govern the evaluation of medical opinion evidence. Under these 25 regulations, ALJs no longer “weigh” medical opinions; rather, ALJs determine 26 which opinions are the most “persuasive” by focusing on several factors: 27 (1) supportability; (2) consistency; (3) relationship with the claimant (including 28 the length of treatment, frequency of examinations, purpose of treatment, extent of 8 1 || treatment, and whether the medical source examined the claimant); (4) the medical 2 || source’s specialty; and (5) “other” factors. See 20 C.F.R. § 416.920c(c)(1)-(5). 3 The two most important factors in determining the persuasiveness of 4 | medical opinions are supportability and consistency with the evidence. See 5 || 20 C.F.R. § 416.920c(a). ALJs must explain how they considered the factors of 6 || supportability and consistency, but need not explain how they considered any 7 || other factor. See 20 C.F.R. § 416.920c(b). 8 Supportability means the extent to which a medical source supports 9 the medical opinion by explaining the “relevant. . . objective medical 10 evidence.” Consistency means the extent to which a medical opinion 11 is “consistent... with the evidence from other medical sources and 12 nonmedical sources in the claim.” 13 | Woods v. Kijakazi, 32 F.4th 785, 791-92 (9th Cir. 2022) (quoting 20 C.F.R. 14 | § 404.1520c(c)(1), (2)). “[U]nder the new regulations, an ALJ cannot reject an 15 | examining or treating doctor’s opinion as unsupported or inconsistent without 16 | providing an explanation supported by substantial evidence.” Id. at 792.° 17 3. Analysis 18 Plaintiff asserts there were “several problems” with the ALJ’s consideration 19 | of Dr. Nicholson’s opinion. (Plaintiffs Brief at 10). The Court agrees. It is not 20 | clear whether the ALJ’s brief discussion of Dr. Nicholson’s opinion addressed 21 supportability or consistency as required under the new regulations. Plaintiff 22 correctly points out that to the extent the ALJ was making supportability findings 23 24 95 °The new regulations also eliminated the term “treating source,” as well as the rule previously known as the treating source rule or treating physician rule, which formerly required 26 || special deference to the opinions of treating sources. See 20 C.F.R. § 416.920c; Woods, 32 F.4th at 792 (“The revised social security regulations are clearly irreconcilable with our caselaw 27 according special deference to the opinions of treating and examining physicians on account of 28g || their relationship with the claimant.”); see also Cross v. O’Malley, 89 F.4th 1211, 1213-14 (9th Cir. 2024) (discussing new regulations).

1 || about Dr. Nicholson’s opinion, the ALJ referenced Dr. Durr’s examination 2 || findings (which Dr. Nicholson had reviewed), not Dr. Nicholson’s findings. 3 || See Plaintiff's Brief at 10; compare AR 28 (ALJ’s reasoning) with AR 646, 674 4 | (Dr. Durr’s and Dr. Nicholson’s findings). 5 Defendant suggests other ways Dr. Nicholson’s examination “did not fully 6 || support Dr. Nicholson’s assessment that plaintiff was more limited” than the 7 || ALJ’s RFC assessment for “simple, unskilled work with additional social 8 || limitations of no contact with the public and only brief, superficial contact with 9 || supervisors and coworkers.” See Defendant’s Brief at 10 (characterizing Dr. 10 || Nicholson’s mental status examination as finding plaintiff had (1) appropriate 11 | thought content and clear and logical thought processes; (2) grossly intact recent 12 | memory, judgment and insight; (3) was able to follow conversation well; and 13 || (4) performed calculations well and was able to spell “world” forward and 14 | backward); compare AR 671-73 (Dr. Nicholson’s mental status examination 15 || stating only some of these findings). Even if defendant’s characterization of Dr. 16 | Nicholson’s mental status examination was correct, the Court may not rely 17 | properly on reasons other than those specified by the ALJ in considering Dr. 18 | Nicholson’s opinion. See Brown-Hunter, 806 F.3d at 494 (court is constrained to 19 | review only the reasons the ALJ specifically identified); cf. Pinto _v. Massanari, 20 | 249 F.3d 840, 847 (9th Cir. 2001) (the court “cannot affirm the decision of an 21 agency on a ground that the agency did not invoke in making its decision’’); see 22 also Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) (reversing district 23 || court’s decision where the district court had affirmed on the basis of reasons 24 supported by the record but unstated by the ALJ). Accordingly, the Court cannot 25 properly credit defendant’s suggestion for why Dr. Nicholson’s opinion was 26 unsupported. 27 Plaintiff also contends that the ALJ erred by failing to provide any reasons 28 I for discounting Dr. Nicholson’s opinion that plaintiff was moderately limited in 10

| || other areas beyond interacting with others. Plaintiff mentions Dr. Nicholson’s 2 || finding that plaintiff would be capable of performing simple one- and two-step 3 || instructions, but does not argue specifically the ALJ’s failure to explain why he 4 | did not adopt that finding. (Plaintiff's Brief at 7-12; Plaintiff’s Reply at 4-5). 5 || Defendant suggests that Dr. Nicholson’s findings were adequately encompassed in 6 || the ALJ’s RFC assessment. (Defendant’s Brief at 10-11). 7 The ALJ’s limitation to simple, routine, and repetitive tasks is not the same 8 || as the ability to perform simple one- and two-step tasks. See, e.g., Dumlao v. 9 || Kijakazi, 2023 WL 11843726, at *4 (C.D. Cal. Dec. 15, 2023) (distinguishing 10 || between one- to two-step tasks and a limitation to simple, routine, repetitive tasks) 11 | (collecting cases); Perez v. Berryhill, 2018 WL 1918539, at *2 (C.D. Cal. Apr. 23, 12 | 2018) (finding limitation to “simple 1-2 step tasks” and “simple, routine tasks” 13 | “not equivalent”); Garcia v. Colvin, 2016 WL 6304626, at *6 (C.D. Cal. Oct. 27, 14 | 2016) (noting a “material difference between ‘simple, repetitive tasks’ and ‘easy 1, 15 || 2 step directions”). The Ninth Circuit has found that a limitation to simple one- 16 | to two-step (unskilled) tasks is more restrictive — such a limitation is typically 17 | consistent with Level One reasoning jobs, and a limitation to “simple repetitive 18 || tasks” is typically consistent with Level Two reasoning jobs. See Rounds, 807 19 | F.3d at 1003 (holding that a limitation to “one-and two-step tasks” conflicts with 20 || the demands of Level Two reasoning”); Grigsby v. Astrue, 2010 WL 309013, at 21 | (C.D, Cal. Jan. 22, 2010) (“Level 2 reasoning jobs may be simple, but they are 22 | not limited to one-or two-step instructions. The restriction to jobs involving no more than two-step instructions is what distinguishes Level 1 reasoning from 24 ll Level 2 reasoning.”) (emphasis original); see also Perez, 2018 WL 1918539, at *2; 25 Garcia, 2016 WL 6304626, at *6. Thus, the ALJ’s RFC determination is 26 | inconsistent with Dr. Nicholson’s opinion that plaintiff would be capable of 27 performing simple one- to two-step tasks. 28 11

1 The vocational expert testified that a person with plaintiff’s RFC for simple, 2 routine, and repetitive tasks would be capable of working as a router, collator, and 3 launderer. (AR 63-64). Each of the jobs the vocational expert identified involve 4 Level Two or Level Three Reasoning. See Router (DOT 222.587-038), 1991 WL 5 672123 (Level Two); Collator Operator (DOT 208.685-010), 1991 WL 671753 6 (Level Two); Spotter I (DOT 361.684-018, a laundering occupation), 1991 WL 7 672984 (Level Three). On this record, the Court cannot find harmless the ALJ’s 8 failure to account for Dr. Nicholson’s opinion about plaintiff’s ability to perform 9 one- and two-step instructions. 10 For all the foregoing reasons, the ALJ’s findings in this case do not permit 11 this Court to conclude that the ALJ properly considered Dr. Nicholson’s opinion. 12 B. Other Considerations on Remand 13 The Court need not, and has not adjudicated plaintiff’s other challenges to 14 the ALJ’s decision, except insofar as to determine that a reversal and remand for 15 immediate payment of benefits would not be appropriate. However, the Court 16 observes that the ALJ’s reasoning for rejecting plaintiff’s testimony and 17 statements could have been clearer. 18 Plaintiff had testified that he could not work because he gets extreme 19 anxiety and panic attacks around “a lot of people.” (AR 106). He did not know if 20 he would be able to do a job where there is no customer interaction. (AR 115). 21 He also did not know if he could work in a simple job that did not require him to 22 work a lot with coworkers, was not fast-paced, and had no public contact – he 23 would have to experience the job before he could answer. (AR 56). Plaintiff said 24 he did not think he could work full time because of his anxiety which causes him 25 to shake, go to the bathroom, sit down to calm down, and feel nervous and scared. 26 (AR 57-58). 27 Before detailing the medical record, the ALJ generally concluded, 28 “[plaintiff’s] statements about the intensity, persistence, and limiting effects of her 12 1 || [sic] symptoms. . . are inconsistent because they are not substantially supported by 2 || the medical evidence of record.” (AR 24). The ALJ discussed the record but did 3 || not relate any of the details in the record to plaintiff's subjective complaints, or 4 || explain how the record undermined plaintiff's complaints. (AR 24-29). 5 An ALJ may not reject a claimant’s subjective complaints based solely on a 6 || lack of medical evidence to fully corroborate those complaints. See Burch, 400 7 || F.3d at 681 (“Although lack of medical evidence cannot form the sole basis for 8 || discounting pain testimony, it is a factor the ALJ can consider in his [or her] 9 || credibility analysis.”); Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) 10 || (same); see also Smartt v. Kijakazi, 53 F.4th 489, 498 (9th Cir. 2022) (“When 11 | objective medical evidence in the record is inconsistent with the claimant’s 12 | subjective testimony, the ALJ may indeed weigh it as undercutting such 13 || testimony.”) (emphasis original); Carmickle v. Commissioner, 533 F.3d 1155, 14 1 1161 (9th Cir. 2008) (“Contradiction with the medical record is a sufficient basis 15 | for rejecting the claimant’s subjective testimony”). 16 In this case, the only clear reason the ALJ gave for discounting plaintiffs 17 || testimony and statements about his debilitating anxiety was a lack of supporting 18 || medical evidence. From the ALJ’s discussion of the medical record, it is not 19 apparent that the ALJ provided specific reasons for discounting plaintiff's 20 testimony and statements. An ALJ’s reasoning should be sufficiently specific to 21 permit a reviewing court to conclude that the ALJ rejected plaintiffs testimony 22 || and statements on permissible grounds and did not arbitrarily discredit the 23 testimony and statements. See Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 24 || 2004). 25 26

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1 V. CONCLUSION 2 For the foregoing reasons, the decision of the Commissioner of Social 3 Security is REVERSED and this matter is REMANDED for further administrative 4 action consistent with this Opinion.6 5 LET JUDGMENT BE ENTERED ACCORDINGLY. 6 DATED: August 28, 2025 7 8 _____________/s/____________________ Honorable Jacqueline Chooljian 9

UNITED STATES MAGISTRATE JUDGE

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 6When a court reverses an administrative determination, “the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.” 27 Immigration & Naturalization Service v. Ventura, 537 U.S. 12, 16 (2002) (citations and 28 quotations omitted); Treichler, 775 F.3d at 1099 (noting such “ordinary remand rule” applies in Social Security cases) (citations omitted). 14