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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

10 11 12 MARGARITA V. LUNA, Case No. 1:20-cv-01213-EPG 13 Plaintiff, FINAL JUDGMENT AND ORDER

REGARDING PLAINTIFF’S SOCIAL

14 v. SECURITY COMPLAINT 15 COMMISSIONER OF SOCIAL (ECF Nos. 1, 20).

SECURITY,

16 Defendant. 17 18 This matter is before the Court on Plaintiff’s complaint for judicial review of an 19 unfavorable decision by the Commissioner of the Social Security Administration regarding her 20 application for disability insurance and supplemental security income benefits. (ECF No. 1, p. 1) 21 The parties have consented to entry of final judgment by the United States Magistrate Judge 22 under the provisions of 28 U.S.C. § 636(c) with any appeal to the Court of Appeals for the Ninth 23 Circuit. (ECF No. 11). 24 Plaintiff presents the following four errors: 25 (1) The ALJ committed harmful error by failing to give “specific and legitimate” reasons for rejecting the long-term, treating RFC [residual functional capacity] 26 opinions of record from Drs. Gomez and Truta; 27 (2) The ALJ harmfully erred by failing to provide clear and convincing reasons to reject symptomology evidence; 28 (4) The “New and Material” Evidence submitted to the Appeals Council (AC) 2 would change the outcome of the decision. 3 (ECF No. 20, p. 6). Having reviewed the record, administrative transcript, the briefs of the 4 parties, and the applicable law, the Court finds as follows: 5 I. ANALYSIS 6 A. Treating Physicians’ Opinions 7 Plaintiff argues that “[t]he ALJ committed harmful error by failing to give ‘specific and 8 legitimate’ reasons for rejecting the long-term, treating RFC opinions of record from Drs. Gomez 9 and Truta.” (ECF No. 20, p. 19). The Ninth Circuit has held the following regarding such opinion 10 testimony: 11 The medical opinion of a claimant’s treating physician is given “controlling 12 weight” so long as it “is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial 13 evidence in [the claimant’s] case record.” 20 C.F.R. § 404.1527(c)(2). When a treating physician’s opinion is not controlling, it is weighted according to factors 14 such as the length of the treatment relationship and the frequency of examination, the nature and extent of the treatment relationship, supportability, consistency with 15 the record, and specialization of the physician. Id. § 404.1527(c)(2)–(6). 16 “To reject [the] uncontradicted opinion of a treating or examining doctor, an ALJ must state clear and convincing reasons that are supported by substantial 17 evidence.” Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) 18 (alteration in original) (quoting Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005)). “If a treating or examining doctor’s opinion is contradicted by another 19 doctor’s opinion, an ALJ may only reject it by providing specific and legitimate reasons that are supported by substantial evidence.” Id. (quoting Bayliss, 427 F.3d 20 at 1216); see also Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (“[The] reasons for rejecting a treating doctor’s credible opinion on disability are 21 comparable to those required for rejecting a treating doctor’s medical opinion.”). “The ALJ can meet this burden by setting out a detailed and thorough summary of 22 the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings.” Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) 23 (quoting Cotton v. Bowen, 799 F.2d 1403, 1408 (9th Cir. 1986)). 24 Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017).1 25 Here, the opinions of Dr. Gomez and Dr. Truta were contradicted by other doctors (e.g., 26 1 Because Plaintiff filed her application before March 27, 2017, 20 C.F.R. § 404.1527 applies in 27 considering the weight given to her treating physicians’ opinions. For applications filed on or after March 27, 2017, 20 C.F.R. § 404.1520c applies in considering medical opinions; notably, no deference or specific 28 evidentiary weight is given to medical opinions. 2 ALJ’s decision to see if she provided specific and legitimate reasons that are supported by 3 substantial evidence for the weight given to the opinions of Dr. Gomez and Dr. Truta. 4 1. Dr. Gomez’s Opinion 5 The ALJ assigned reduced weight to the opinion of Plaintiff’s treating physician, Dr. 6 Evelyn Gomez, giving the following reasons: 7 As for the opinion evidence with regard to the claimant’s physical impairments, 8 the claimant’s treating physician, Evelyn Gomez, M.D., submitted a Report dated July 25, 2016, on behalf of the claimant. Dr. Gomez opined that the claimant 9 cannot perform any job at this time due to “impairment on mental and motor abilities” from seizures and medication side effects [Exhibit B11F and Exhibit 10 B15F, B17F]. Dr. Gomez noted that she treated the claimant between 2-5 years. 11 Although Dr. Gomez is a treating physician with knowledge of the claimant, an opinion by a medical source that a claimant is disabled or unable to work is not 12 conclusive. The determination of disability is an issue reserved to the Commissioner and, as such, is an administrative finding that directs the 13 determination or decision of disability [20 CFR 404. 1527(d) and 416.927(d)]. Dr. 14 Gomez’s opinion corroborates the finding that the claimant has severe physical impairments which more than minimally limit the ability to perform work activity, 15 however her conclusions regarding the limitation associated with those impairments is discounted because it is inconsistent with the record as a whole, 16 specifically with respect to the Medical Source Statement dated March 10, 2018. 17 In this Statement, the provider opined that that the claimant can sit for less than two hours in an eight hour day; she can stand and or walk for less than two hours 18 in an eight hour day; she would need a job that permitted shifting positions at will; 19 she would need periods of walking around, every 10 minutes, for 10 minutes each time; she must elevate her legs while sitting and or for 50% of the time; she does 20 not need a hand-held assistive device for occasional standing and or walking; she can frequently lift and or carry up to 10 pounds; she can never lift and or carry 20 21 pounds or more; she can rarely twist; she can occasionally stoop (bend); she can 22 frequently crouch, squat, and climb stairs and ladders; she has no manipulative limitations; she would likely be off task for 25% or more of the day; she is 23 incapable of even “low stress” work; she would likely, on average, be absent from work more than four days per month; and she will need unscheduled breaks every 24 two hours for one-half hour each time during which she will need to sit quietly. 25 This provider further opined that the claimant has had these limitations since 2015 [Exhibit B17F]. This opinion is inconsistent with the record as a whole, as well 26 overly restrictive. Specifically, the evidence lacks laboratory studies showing continued or uncontrolled seizure activity despite use of anti seizure medications at 27 therapeutic levels. There is little medical evidence of record to support the 28 limitations for standing, walking, and or the need for the claimant to elevate her including the ability to travel internationally without medical restrictions. For these 2 reasons, this opinion is given reduced weight. 3 (A.R. 45-46). 4 The first reason identified to support the ALJ’s assignment of reduced weight to Dr. 5 Gomez’s opinion is that “the evidence lacks laboratory studies showing continued or uncontrolled 6 seizure activity despite use of anti seizure medications at therapeutic levels.” (A.R. 46; see also 7 A.R. 42 (“Although the claimant has alleged seizures, the medical evidence of record indicates 8 that these are controlled with medications. . . .”)). While “an ALJ may discredit treating 9 physicians’ opinions that are conclusory, brief, and unsupported by the record as a whole [] or by 10 objective medical findings,” here, the record shows that Plaintiff continued to experience seizure 11 activity despite taking her seizure medications as directed by medical professionals. Batson v. 12 Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004) (internal citations omitted). 13 For example, in a consultation with Dr. Rohini Joshi on December 17, 2015, Dr. Joshi 14 added another medication for Plaintiff to take after it was noted that Plaintiff still felt that she was 15 having seizures despite taking other medication. (A.R. 858). Despite the added medication, on 16 December 31, 2015, Plaintiff went to the emergency room with a “recurrent seizure.” (A.R. 771). 17 In a follow-up visit with Dr. Joshi on January 21, 2016, recent seizure activity was documented, 18 and Plaintiff’s dosage of one of her medications was increased. (A.R. 851). On March 9, 2016, 19 Dr. Joshi noted that Plaintiff had not had any more recent seizures but that Plaintiff was “feeling 20 21 dizzy, almost every[] day.” (A.R. 841). Plaintiff saw Dr. Joshi on April 1, 2016, reporting 22 continued dizziness. (A.R. 837). Dr. Joshi directed her to stop taking one of her seizure 23 medications for three days. (A.R. 840). On April 12, 2016, Plaintiff reported her dizziness as 24 “slightly better,” and Dr. Joshi again reduced the same seizure medication. (A.R. 827). However, 25 on June 27, 2016, Plaintiff reported having seizures again and chest pain. (A.R. 1233). Dr. Joshi 26 increased the dosage of the seizure medication that had been previously reduced. (A.R. 1237). 27 28 2 under control,” with Plaintiff having “3 in the past month and one yesterday,” despite the medical 3 record noting that her dose of one seizure medication had recently been increased. (A.R. 1306). 4 On July 28, 2016, Plaintiff met with Dr. Joshi, who documented recent seizures and Plaintiff 5 visiting the ER.2 (A.R. 1222). Plaintiff saw Dr. Gomez on August 8, 2016, who reported that 6 Plaintiff’s “seizures [were] still not under control, has had 2 in the past month,” and noted that 7 another seizure medication had been prescribed and that Plaintiff was feeling drowsy and wanted 8 “to stay [in] bed all the time.” (A.R. 1301). Further visits with various medical providers in 2016, 9 2017, and 2018 reveal recurring instances of Plaintiff experiencing seizures or side effects from 10 her medication and changes to her seizure medication. (See A.R. 994, 1045, 1105, 1166, 1171, 11 1232, 1292). Notably, roughly two weeks before her disability hearing before the ALJ, Plaintiff 12 reported continued seizure activity and dizziness to Dr. Joshi. (A.R. 994). Moreover, medical 13 records for treatment after Plaintiff’s hearing show that Plaintiff continued to experience seizure 14 activity.3 (A.R. 68, 102, 124). 15 16 In light of this record, the ALJ’s focus on the lack of “laboratory studies showing 17 continued or uncontrolled seizure activity despite use of anti seizure medications at therapeutic 18 levels” is not a legitimate reason to discount Dr. Gomez’s opinions about Plaintiff’s work 19 limitations. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (“However, a 20 reviewing court must consider the entire record as a whole and may not affirm simply by isolating 21 a ‘specific quantum of supporting evidence.”’) (quoting Hammock v. Bowen, 879 F.2d 498, 501 22 (9th Cir.1989)). Notably, the presence or absence of laboratory studies is not ultimately 23

24 2 This record notes that Plaintiff’s level of one seizure medication was low but does not indicate that it was 25 due to Plaintiff not taking her medication as directed. 3 As discussed below, although this evidence was first presented to the Appeals Council, the Court may 26 consider it, in light of the record as a whole, to determine whether the ALJ’s decision was supported by substantial evidence. Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1163 (9th Cir. 2012). 27 (“Accordingly, we hold that when the Appeals Council considers new evidence in deciding whether to review a decision of the ALJ, that evidence becomes part of the administrative record, which the district 28 court must consider when reviewing the Commissioner's final decision for substantial evidence.”). 2 ALJ’s reason for rejecting Dr. Doerning’s opinion—that the record did not contain evidence of 3 ‘decreased range of motion’ or ‘neurological deficits’—is not ‘legitimate’ because it is not 4 responsive to Dr. Doerning’s opinion based on Orn’s respiratory problems.”). Importantly, part of 5 Dr. Gomez’s opinion on Plaintiff’s limitations, such as the conclusion that Plaintiff was incapable 6 of even low stress work, was based on the side effects Plaintiff experienced from taking anti- 7 seizure medication. (A.R. 975). Here, because medical providers often adjusted the levels of 8 Plaintiff’s seizures medication (or changed the medications) in response to Plaintiff’s continued 9 seizures or side effects from the medications, treating Plaintiff’s seizures and addressing the side 10 effects from her medications was an ongoing struggle. Accordingly, the ALJ’s conclusion that 11 therapeutic levels of anti-seizure medication controlled Plaintiff’s seizures, even if true, does not 12 account for the side effects that Plaintiff continued to suffer from her medications, which side 13 effects limited her ability to work according to Dr. Gomez. 14 The second reason the ALJ gave to assign reduced weight to Dr. Gomez’s opinion is that 15 16 “[t]here is little medical evidence of record to support the limitations for standing, walking, and or 17 the need for the claimant to elevate her legs.”4 (A.R. 46). This conclusion overlooks or ignores 18 the record. As noted above, side effects from Plaintiff’s medications, such as the dizziness that 19 Plaintiff often reported, informed Dr. Gomez’s medical source statement, which found limitations 20 on Plaintiff’s ability to stand and walk. Additionally, consultative examiner Dr. Dale Van Kirk, 21 noted in March 2016 that Plaintiff complained of neck pain and low back pain that radiated down 22 both her legs. (A.R. 732). While Dr. Van Kirk noted that Plaintiff was able to move about 23 normally in some ways, he also noted that in a “Romberg test . . . she wavers and almost falls 24 after five seconds.” (A.R. 734). And Plaintiff had difficulty “tandem walking with one foot in 25 front of the other . . . because her balance is not good” and noted that “[s]he appears to be a bit 26

27 4 The Court concludes that there was little medical evidence to support Dr. Gomez’s recommendation that Plaintiff would need to elevate her legs; however, this is not a sufficient basis alone to reject the entirety of 28 Dr. Gomez’s opinion. 2 with her when she is out and about for even and uneven terrain for times when she feels 3 unsteady.” (A.R. 735). Moreover, the record shows that Dr. Joshi prescribed handrails in 4 Plaintiff’s bathroom (A.R. 1067) and that Dr. Gomez noted that Plaintiff was “unable to walk 5 straight due to pain and worsening weakness (A.R. 1258). There was no legitimate basis for the 6 ALJ to ignore or overlook this evidence in concluding that “little medical evidence” supported 7 Dr. Gomez’s opinion. Garrison v. Colvin, 759 F.3d 995, 1012-13 (9th Cir. 2014) (“In other 8 words, an ALJ errs when he rejects a medical opinion or assigns it little weight while doing 9 nothing more than ignoring it, asserting without explanation that another medical opinion is more 10 persuasive, or criticizing it with boilerplate language that fails to offer a substantive basis for his 11 conclusion.”).5 12 Lastly, the ALJ concluded that Dr. Gomez’s opinion was “inconsistent with the claimant’s 13 activities of daily living, including the ability to travel internationally without medical 14 restrictions.” (A.R. 46). Specifically, the ALJ was referring to Plaintiff’s trips to Mexico, at least 15 16 one of which included air travel. (A.R. 42 (“For example since the alleged onset date, she traveled 17 internationally on more than one occasion, in the spring of 2016 and in approximately February 18 2017, as well as in February 2018, which included a three and one-half hour plane ride.”)); (see 19 A.R. 203 – Plaintiff’s testimony noting flight to Morelia, Mexico). 20 As the Ninth Circuit “has repeatedly asserted, “the mere fact that a plaintiff has carried on 21 certain daily activities . . . does not in any way detract from her credibility as to her overall 22 disability. One does not need to be ‘utterly incapacitated’ in order to be disabled.” Benecke v. 23 Barnhart, 379 F.3d 587, 594 (9th Cir. 2004) (quoting Vertigan v. Halter, 260 F.3d 1044, 1050 24

25 5 The Court recognizes that the Commissioner argues that Dr. Gomez’s own notes are inconsistent with her assessment of Plaintiff’s limitations. (See, e.g., ECF No. 24, p. 22 (“Dr. Gomez’s treatment notes from 26 November 2015 state that Plaintiff was neurologically alert with no focal defects, exhibited normal range of motion, had no musculoskeletal deformities, and exhibited a normal gait (AR 650).”). However, this is a 27 new argument not relied upon by the ALJ, and thus, even if it was ultimately persuasive, this Court may not affirm based on it. Orn, 495 F.3d at 630 (“We review only the reasons provided by the ALJ in the 28 disability determination and may not affirm the ALJ on a ground upon which he did not rely.”). 2 Plaintiff’s limited international travel was inconsistent with Dr. Gomez’s opinions. Perhaps, the 3 ALJ believed that Plaintiff’s three-and-a-half hour flight was inconsistent with Dr. Gomez’s 4 conclusion that Plaintiff was limited to sitting for less than two hours in an eight hour day. As an 5 initial matter, such reasoning presumes that Plaintiff was seated the entire time on the flight and 6 would not have been able to move around the plane.6 Regardless of whether such presumption is 7 true, Plaintiff’s ability to sit longer than recommended while travelling does not indicate that she 8 could undertake the daily demands of sitting required by a job. Vertigan v. Halter, 260 F.3d 1044, 9 1050 (9th Cir. 2001) (“In addition, activities such as walking in the mall and swimming are not 10 necessarily transferable to the work setting with regard to the impact of pain. A patient may do 11 these activities despite pain for therapeutic reasons, but that does not mean she could concentrate 12 on work despite the pain or could engage in similar activity for a longer period given the pain 13 involved.”). 14 For the above reasons, the Court concludes that the ALJ failed to give specific and 15 16 legitimate reasons, supported by substantial evidence, to assign Dr. Gomez’s opinion reduced 17 weight. 18 2. Dr. Truta’s Opinion 19 The ALJ ultimately assigned the opinion of Plaintiff’s treating psychiatrist, Dr. Mircea 20 Truta, discounted weight, giving the following reasons: 21 As for the opinion evidence with regard to the claimant’s mental health impairments, the claimant’s treating psychiatrist, Mircea Truta, M.D., wrote a 22 letter dated August 2, 2016, on behalf of the claimant. Dr. Truta indicated that the 23 claimant has been in treatment at Kings View Counseling since October 2013. Dr. Truta stated that despite this treatment, the claimant continues to experience 24 chronic depression and anxiety. Dr. Truta opined that the claimant is not able to complete simple tasks in a timely fashion, has episodes of decompensation, and 25 cannot perform any job at this moment due to “impairment on mental and motor 26 abilities” [ExhibitB12F and Exhibit B16F].

27 6 Dr. Gomez’s opinion noted that Plaintiff would require a job that permitted her to shift positions and switch between standing and sitting. The record does not reflect that the ALJ considered whether Plaintiff 28 could have shifted positions or stood up from time to time on her flight. (A.R. 45, 973-74). dated March 26, 2018. Dr. Truta opined that the claimant would be precluded from 2 performing almost all mental activities related to understanding and memory, sustained concentration and memory, social interaction, and adaptation for 15%, or 3 72 minutes, of an eight hour workday. Dr. Truta further opined that the claimant would likely, on average, be absent from work five days or more per month, and 4 would likely be unable to complete an eight hour day five or more days per month. 5 Dr. Truta also opined that the claimant has had these limitations since October 2013 [Exhibit B18F]. The undersigned gives great weight to Dr. Truta’s opinion 6 and statements in establishing the presence of severe impairments but discounted weight as to the degree of limitations opined with respect to simple, routine tasks, 7 concentration, social interaction and adaptation. Although Dr. Truta has 8 knowledge of the claimant, her opinions are inconsistent with the record as a whole, as discussed above, as well as with the claimant’s own testimony regarding 9 her activities of daily living. Specifically, the evidence lacks studies demonstrating 10 uncontrolled seizures despite compliant, therapeutic use of anti seizure medication. The medical evidence of record indicates that the claimant reported improvement 11 in her symptoms, further corroborated by the claimant’s ability to engage in international and interstate travel during the relevant period. In addition, many of 12 the claimant’s complaints of depression and anxiety appeared to be situational as 13 were reported to be relating to her finances and her disabled husband’s health. . . . For these reasons, Dr. Truta’s opinions are given discounted weight. 14 (A.R. 47). 15 The ALJ first discounted Dr. Truta’s opinion because “the evidence lacks studies 16 demonstrating uncontrolled seizures despite compliant, therapeutic use of anti seizure 17 medication.” (A.R. 47). However, as discussed in connection with Dr. Gomez’s opinion, the ALJ 18 overlooked or ignored extensive record evidence indicating that Plaintiff continued to experience 19 seizures and sides effects from medications while medical providers adjusted her medications. 20 Accordingly, this is also not a legitimate reason to discount Dr. Truta’s opinion. 21 The second reason, that “[t]he medical evidence of record indicates that the claimant 22 23 reported improvement in her symptoms, further corroborated by the claimant’s ability to engage 24 in international and interstate travel during the relevant period” also fails. Notably, the ALJ cited 25 no specific records of Plaintiff’s mental health symptoms improving when discussing Dr. Truta’s 26 opinion. However, the ALJ did briefly summarize Plaintiff’s mental health treatment elsewhere in 27 the opinion: 28 received mental health treatment including counseling and psychiatric medication 2 management, since October 2013, and through April 2018, for her complaints of depression, low energy, low motivation, fatigue, and passive suicidal ideation, 3 with the diagnoses of major depressive disorder and generalized anxiety disorder. However, in a therapy visit on September 1, 2015, just prior to the claimant’s 4 amended alleged onset date, the claimant appeared cheerful and reported that she 5 is feeling more motivated. She further stated that although she still gets depressed, it is not like before and she will only stay in bed maybe once or twice a week and 6 sometimes less than that. She also reported that her parents were visiting for the next two weeks. In January and February 2017, the claimant reported feeling better 7 and less depressed, as well as less anxious but still experiencing some symptoms 8 such as forgetfulness, poor concentration, and isolating herself. However, in November 2017, despite the claimant’s history of ongoing mental health treatment, 9 she again alleged feelings of depression and anxiety due to her poor health, 10 financial situation, and her husband’s poor health [Exhibit B10F/1-12, 15-18, 25- 39; Exhibit Bl2F; Exhibit B21F/2-31, 31-32, 42-62, 71-73, 75, 78-80, 82, 86-93, 11 95-103, 105-112, 114-121]. 12 (A.R. 45).7 Even accepting this recitation of such records as signaling improvement in Plaintiff’s 13 mental health, the ALJ failed to explain how such improvement now meant that Plaintiff was no 14 longer bound by the work limitations opined by Dr. Truta. See Holohan v. Massanari, 246 F.3d 15 1195, 1205 (9th Cir. 2001) (“That a person who suffers from severe panic attacks, anxiety, and 16 depression makes some improvement does not mean that the person’s impairments no longer 17 seriously affect her ability to function in a workplace.”). As for the ALJ’s citation to Plaintiff’s 18 sparse travel history, is not a legitimate basis to discount Dr. Truta’s opinion as inconsistent for 19 the same reasons noted in connection with Dr. Gomez’s opinion. 20 Lastly, the ALJ reasoned that “many of the claimant’s complaints of depression and 21 anxiety appeared to be situational as were reported to be relating to her finances and her disabled 22 husband’s health.” (A.R. 47). Presumably, the ALJ’s point is that such “situational” 23 circumstances would only temporarily cause Plaintiff to experience mental health symptoms and 24 thus Dr. Truta’s opinion as to Plaintiff’s work limitations was not reliable. However, the ALJ 25 failed to cite any evidence indicating that such circumstances were indeed “situational,” and even 26

27 7 The Court recognizes that the Commissioner supplements the ALJ’s reasoning with citations to pertinent records that the ALJ did not discuss. (ECF No. 24, pp. 19-20). However, as noted above, this Court’s 28 review is limited to the ALJ’s reasoning. Orn, 495 F.3d at 630. 2 own health problems and fear of going out in public would no longer cause her to experience 3 mental health symptoms so as to discount Dr. Truta’s opinion.8 (See A.R. 900, 931). 4 For the above reasons, the Court concludes that the ALJ failed to give specific and 5 legitimate reasons, supported by substantial evidence, to assign Dr. Truta’s opinion discounted 6 weight. 7 B. Subjective Testimony 8 Plaintiff argues that “[t]he ALJ harmfully erred by failing to provide clear and convincing 9 reasons to reject symptomology evidence.” (ECF No. 20, p. 32). The Ninth Circuit has provided 10 the following guidance regarding a plaintiff’s subjective complaints: 11 Once the claimant produces medical evidence of an underlying impairment, the 12 Commissioner may not discredit the claimant’s testimony as to subjective symptoms merely because they are unsupported by objective evidence. Bunnell v. 13 Sullivan, 947 F.2d 341, 343 (9th Cir. 1991) (en banc); see also Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986) (“it is improper as a matter of law to 14 discredit excess pain testimony solely on the ground that it is not fully corroborated by objective medical findings”). Unless there is affirmative evidence 15 showing that the claimant is malingering, the Commissioner’s reasons for rejecting the claimant’s testimony must be “clear and convincing.” Swenson v. Sullivan, 876 16 F.2d 683, 687 (9th Cir. 1989). General findings are insufficient; rather, the ALJ must identify what testimony is not credible and what evidence undermines the 17 claimant’s complaints. 18 Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995), as amended (Apr. 9, 1996). 19 As an initial matter, the ALJ concluded that Plaintiff’s “medically determinable 20 impairments could reasonably be expected to cause the alleged symptoms.” (A.R. 41). 21 Accordingly, because there is no affirmative evidence showing that Plaintiff was malingering, the 22 Court looks to the ALJ’s decision for clear and convincing reasons, supported by substantial 23 evidence, for not giving full weight to Plaintiff’s symptom testimony. “This is not an easy 24 requirement to meet: ‘The clear and convincing standard is the most demanding required in 25 Social Security cases.”’ Garrison, 759 F.3d at 1014 (quoting Moore v. Comm’r of Soc. Sec. 26 Admin., 278 F.3d 920, 924 (9th Cir.2002)). 27

28 8 For example, the ALJ failed to cite any evidence that Plaintiff’s financial concerns were alleviated. 2 discounting them as follows: 3 Although the claimant has alleged seizures, the medical evidence of record indicates that these are controlled with medications and there is no medical 4 evidence of record that she has required any hospitalizations or emergency room 5 (ER) visits for this condition. The claimant has also alleged occasional headaches for which she has not required significant intervention. Further, although the 6 claimant has alleged neck and back pain, the medical evidence of record indicates a possible diagnosis of lumbago, as well as some neck pain; however, her physical 7 examinations are mostly normal. Treatment notes indicate that the claimant’s neck 8 is supple with good range of motion. It also appears from the medical evidence of record that the claimant has only required treatment for mild pains. The claimant 9 possibly has some balance problems; however, there is little evidence she has ever sought treatment for any balance problems. 10 In addition, the claimant has received minimal treatment for her impairments, 11 consisting mostly of medication refills. Further, in a treatment note from 12 November 2015, it was noted that the claimant had not been seen by a neurologist since January. At the consultative physical examination in March 2016, the 13 claimant reported that she has not had physical therapy, chiropractic care, acupuncture, or injections and does not use any braces or assistive devices and that 14 none have been prescribed. There are also minimal imaging studies of the 15 claimant’s lumbar spine or cervical spine prior to 2017 [Exhibit B7F/2; Exhibit

B9F/35, 37].

16 As for the claimant’s statements about the intensity, persistence, and limiting 17 effects of his or her symptoms, they are inconsistent because the claimant has alleged that her seizure medications are no longer controlling her seizures and she 18 is no longer able to perform household chores. However, these statements are inconsistent with the medical evidence of record, as discussed further below, 19 which indicates that the claimant has reported, at times, having no seizures or 20 seizure like activity for months at a time, and or only one seizure per month [Exhibit B13E; Exhibit BISE]. 21 . . . . 22 In addition, the claimant’s statement that she does not like to go out in public due 23 to her fear of having a seizure and hurting herself is inconsistent with the overall record that claimant has both the mental and physical stamina inconsistent with the 24 degree of limitation alleged. For example since the alleged onset date, she traveled internationally on more than one occasion, in the spring of 2016 and in 25 approximately February 2017, as well as in February 2018, which included a three 26 and one-half hour plane ride. In July 2017, the claimant also reported a recent trip out of state for a few weeks for a family event [Exhibit B10F/29; Exhibit B14F/6; 27 Exhibit B20F/23, 34; Exhibit B21F/45-46, 51, 72; and testimony]. Medical evidence of record also corroborates a higher level of function than alleged: during 28 reported that she has not had a seizure for one year, which is inconsistent with her 2 allegation of continuing seizures that are not under control. The claimant was therefore given medication refills and scheduled for follow up. Additionally, 3 although the claimant told her primary care physician in January 2016 that she had a seizure in December 2015, the claimant was only diagnosed with obesity and 4 fatty liver at this time. She was advised as to exercise and diet, and otherwise 5 continued on her medications. In addition, at the time of the alleged seizure in December 2015, the medical evidence of record indicates that the claimant’s 6 seizure was due to a sub-therapeutic dose of anti-seizure medication. The claimant also had a normal CT of the brain at this time. The claimant was therefore given 7 appropriate treatment, after which she was discharged the same day in improved 8 and stable condition. The claimant’s primary care physician also diagnosed the claimant with complex partial epilepsy during office visits in January and March 9 2016, but merely continued the claimant on her medications with no changes 10 [Exhibit B8E/15, 26; Exhibit B5F/l-3, 4-11, 15-17; Exhibit B8F/33-36, 41]. . . . . 11 There is also a significant gap in the claimant’s treatment history for her seizure 12 disorder from August 2017 until January 2018, except for an emergency room (ER) visit in November 2017 for a break through seizure; however, in a treatment 13 note with her primary care physician in December 2017, the claimant also reported 14 that she had run out of her seizure medications two days prior to the possible seizure in November. The medical evidence of record indicates that although the 15 claimant was seen in the ER in November 2017, she was given minimal treatment consisting of advice to use heat and ice on her back, as well as to rest at home. 16 . . . . 17 In terms of the claimant’s alleged mental health impairments, the claimant has 18 received mental health treatment including counseling and psychiatric medication management, since October 2013, and through April 2018, for her complaints of 19 depression, low energy, low motivation, fatigue, and passive suicidal ideation, 20 with the diagnoses of major depressive disorder and generalized anxiety disorder. However, in a therapy visit on September 1, 2015, just prior to the claimant’s 21 amended alleged onset date, the claimant appeared cheerful and reported that she is feeling more motivated. She further stated that although she still gets depressed, 22 it is not like before and she will only stay in bed maybe once or twice a week and 23 sometimes less than that She also reported that her parents were visiting for the next two weeks. In January and February 2017, the claimant reported feeling better 24 and less depressed, as well as less anxious but still experiencing some symptoms 25 such as forgetfulness, poor concentration, and isolating herself. However, in November 2017, despite the claimant’s history of ongoing mental health treatment, 26 she again alleged feelings of depression and anxiety due to her poor health, financial situation, and her husband’s poor health [Exhibit Bl0F/1-12, 15-18, 25- 27 39; Exhibit Bl2F; Exhibit B21F/2- 31, 31-32, 42-62, 71-73, 75, 78-80, 82, 86-93, 28 95-103, 105-112, 114-121]. 2 First, for the reasons discussed above, the medical records do not indicate that Plaintiff’s 3 seizures were controlled with medication. Moreover, the ALJ’s conclusion that Plaintiff’s 4 seizures never required hospitalization is directly refuted by multiple medical records. (See A.R. 5 771 (documenting December 31, 2015 emergency treatment for seizure); A.R. 1045 (noting that 6 Plaintiff had a seizure on November 23, 2017, “and was seen in [ER]”); A.R. 1222 (noting that 7 Plaintiff “has had 3 seizures and she was seen in the [ER]”)). 8 Likewise, the ALJ’s rejection of Plaintiff’s reports of pain and balance issues due to lack 9 of treatment or mostly normal findings is not convincing. The medical record documents multiple 10 instances of Plaintiff balance issues and neck and back pain. (A.R. 732, 734, 735, 1067, 1258). 11 Moreover, Plaintiff’s headaches are featured in the medical records frequently enough that it was 12 error for the ALJ to simply dismiss them as “occasional” and not requiring “significant 13 intervention.” (A.R. 42). For example, a medical record from January 2015 noted that Plaintiff 14 had “chronic migraines no[t] in optimal control.” (A.R. 877). And another in October 2016, noted 15 16 that Plaintiff had a “severe headache” following a seizure. (A.R. 1171; see also A.R. 124, 448, 17 771, 947). And relatedly, the ALJ erred in rejecting Plaintiff’s testimony due to her not having 18 received certain types of treatment, such as physical therapy and injections, when the ALJ failed 19 to cite to any record evidence indicating that such treatment was warranted. See Cortes v. Colvin, 20 No. 2:15-cv-2277 (GJS), 2016 WL 1192638, at *4 (C.D. Cal. Mar. 28, 2016) (“While evidence of 21 conservative treatment is sufficient to discount a claimant’s testimony regarding the severity of an 22 impairment, an ALJ errs in relying on conservative treatment if the record does not reflect that 23 more aggressive treatment options are appropriate or available.”) (internal citations and quotation 24 marks omitted). 25 Next, the ALJ reliance on Plaintiff’s sparse travel was not a convincing reason to conclude 26 that she was able to do more than she claimed. Notably, the fact that Plaintiff was able to travel 27 on a few occasions between 2016-2018, does not contradict her testimony that she does not like to 28 2 for her international flight she traveled with her sister, who presumably would have assisted 3 Plaintiff if she had a seizure in public. (A.R. 203; see also 1270 (noting trip to Chicago for a 4 family event)). 5 Lastly, the ALJ’s citation to Plaintiff’s mental health records, which contain some reports 6 of Plaintiff feeling better, is not a clear or convincing reason to reject Plaintiff’s testimony. 7 Notably, the ALJ fails to explain what testimony the records even conflict with. Holohan, 246 8 F.3d at 1208 (“[T]he ALJ must specifically identify the testimony she or he finds not to be 9 credible and must explain what evidence undermines the testimony.”). Moreover, the fact that 10 Plaintiff experienced improvement, at times, in her mental health does not mean that she was 11 capable of working. Garrison, 759 F.3d at 1017 (9th Cir. 2014) (“[Reports of improvement of 12 mental health] must also be interpreted with an awareness that improved functioning while being 13 treated and while limiting environmental stressors does not always mean that a claimant can 14 function effectively in a workplace.”). 15 16 Accordingly, the Court concludes that the ALJ failed to provide clear and convincing 17 reasons, supported by substantial evidence, for not giving full weight to Plaintiff’s symptom 18 testimony. 19 C. RFC 20 Plaintiff next argues that “[t]he RFC is not supported by substantial evidence.” (ECF No. 21 20, p. 35). A court upholds a RFC determination “if the ALJ applied the proper legal standard and 22 his decision is supported by substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th 23 Cir. 2005). Here, the ALJ found the following RFC for Plaintiff: 24 After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform work as follows: lift and 25 or carry 20 pounds occasionally and 10 pounds frequently; she can stand and or 26 walk for six out of eight hours; she can sit for six out of eight hours; she can do work not involving concentrated exposure to flashing lights, unprotected heights, 27 moving machinery, commercial driving or climbing ladders, ropes or scaffolds. 28 She can occasionally climb ramps and stairs and balance. She can perform simple, 2 (A.R. 48). 3 Plaintiff alleges two errors from this determination. First, Plaintiff argues that the 4 ALJ erred by affording great weight to Dr. Van Kirk’s RFC determination while affording 5 no weight to Dr. Van Kirk’s conclusion that Plaintiff would benefit from the use of a 6 collapsible cane, pointing to record evidence indicating that Plaintiff had trouble walking. 7 (ECF No. 20, p. 35). Regarding Dr. Van Kirk, the ALJ concluded as follows: 8 The consultative examining physician, Dr. Van Kirk, opined that the claimant can 9 stand and or walk, cumulatively, for six hours in an eight hour day; she has no limitations for sitting; she might benefit from carrying a collapsible cane due to her 10 balance issues and for when she feels unsteady; she can lift and or carry 20 pounds 11 occasionally and 20 pounds frequently; she can perform postural activities occasionally; she has no manipulative limitations; and she should not work at 12 unprotected heights [Exhibit B7F]. The majority of Dr. Van Kirk’s opinion is consistent with the record as a whole, as discussed above, as well as with the 13 claimant’s activities of daily living. For these reasons, the majority of Dr. Van 14 Kirk’s opinion is given great weight.

15 However, Dr. Van Kirk’s opinion that the claimant might benefit from carrying a collapsible cane due to her balance issues and for when she feels unsteady is given 16 discounted weight with respect to the residual functional capacity. The 17 undersigned considered including the use of an assistive device in the residual functional capacity however declined because the examiner’s reference to such 18 was vague, appeared to be based on the claimant’s subjective reports, and not supported by objective findings. The medical evidence of record has generally 19 noted the claimant as having a normal gait, with little indication that the claimant 20 has been diagnosed with any lower extremity impairment, has difficulty walking, and or has been prescribed or advised to use a cane for ambulation, even by her 21 providers who otherwise advocated for a conclusion of disability. For these reasons, this portion of Dr. Van Kirk’s opinion is given no weight. 22 (A.R. 46). The Court concludes that there was not substantial evidence to support the ALJ’s 23 rejection of Dr. Van Kirk’s opinion as to Plaintiff benefiting from a cane. Notably, Dr. Van 24 25 Kirk’s opinion was not based, at least solely, on Plaintiff’s subjective reports. Rather, Dr. Van 26 Kirk noted that, in a “Romberg test,” Plaintiff wavered and almost fell after five seconds. (A.R. 27 734). Moreover, observed that Plaintiff’s “balance is not good” and that she appeared to “be a bit 28 dizzy.” (Id.). Moreover, other evidence in the record shows that Plaintiff had balance issues (AR 2 (A.R. 1258 (“walks with a cane”)). 3 Second, Plaintiff argues that the ALJ should have included Dr. Gomez’s limitation of 4 twisting being limited to “rarely” performed by Plaintiff on the medical source statement. (ECF 5 No. 20, p. 37). While Plaintiff attributes this finding “due to her severe back and neck pain,” as 6 the Commissioner points out, the medical source statement itself (A.R. 975) does not explain this 7 finding but merely checks a box; moreover, Plaintiff offers no other evidence to support such a 8 limitation as to twisting.9 (ECF No. 24, p. 29). Accordingly, the Court does not conclude that the 9 ALJ erred by failing to include Dr. Gomez’s limitation on twisting in the RFC. 10 D. New and Material Evidence 11 Plaintiff next argues that “[t]he ‘[n]ew and [m]aterial’ [e]vidence submitted to the Appeals 12 Council [] would change the outcome of the decision.” (ECF No. 29, p. 37). Plaintiff asks this 13 Court to review evidence submitted to the Appeals Council that would have changed the ALJ’s 14 decision had the ALJ considered the evidence, including the following records: 15 Specifically, the AC failed to consider treatment records further documenting Ms. 16 Luna’s severe, constant headache symptomology; continued uncontrolled seizures 17 with tongue biting; the fact that she required ER treatment after she fell “face forward” during a seizure and that her husband had witnessed another seizure. 18 Specifically, these records include a January 23, 2018 treatment record where Nurse Madala documented Ms. Luna’s complained of headaches 2-3 times per 19 week, with forgetfulness, confusion, nervousness, not knowing where she is or 20 where she is going, poor judgment, inappropriate behavior, sluggishness, and changes in sleep patterns. (AR 148). On a follow-up treatment record dated May 1, 21 2018, Dr. Joshi documented Ms. Luna experienced ongoing seizures with tongue 22 biting, as well as frequent headaches for the last three months associated with nausea. (AR 124). Dr. Joshi continued Ms. Luna on current anti-seizure 23 medications. (AR 129). On June 15, 2018, Dr. Joshi documented Ms. Luna was not doing well, as she has a seizure where she fell face forward and was taken to 24 the ER. (AR 102). On a neurology follow-up visit with Dr. Joshi dated July 31, 25 2018, Ms. Luna reported she had a seizure on July 24th that was witnessed by her husband. (AR 68). Dr. Joshi continued prescriptions for her complex partial 26

27 9 The Court recognizes that Dr. Van Kirk noted that Plaintiff’s lower back pain increases if she has to twist. (A.R. 732). However, this brief reference to twisting does not support Dr. Gomez’s assessment that 28 Plaintiff could only twist 1% to 5% in an 8-hour working day. evidence is likely to change the outcome of the decision as the ALJ repeatedly 2 opined that Ms. Luna did not have balance issues; that she has not received ER treatment for seizures; that her seizures are not witnessed and that she sought little 3 treatment for headaches as reasons to reject the less than sedentary RFC determinations. 4 (ECF No. 20, pp. 37-38). 5 The Ninth Circuit has concluded “that when a claimant submits evidence for the first time 6 7 to the Appeals Council, which considers that evidence in denying review of the ALJ’s decision, 8 the new evidence is part of the administrative record, which the district court must consider in 9 determining whether the Commissioner’s decision is supported by substantial evidence.” Brewes 10 v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1159-60 (9th Cir. 2012).10 Here, after considering 11 the new records in light of the record before the ALJ, the Court has already determined, as 12 discussed above, that the ALJ’s decision lacked substantial evidence to discount Plaintiff’s 13 treating physicians’ opinions and Plaintiff’s testimony. 14 II. REMEDY 15 Plaintiff concludes by stating that “her claim [should be] remanded for payment of 16 benefits,” or, alternatively, “be remanded for a new hearing.” (ECF No. 20, p. 39). The 17 Commissioner argues that, if this Court overturns the ALJ’s decision, “the proper remedy is a 18 remand for further administrative proceedings.” (ECF No. 24, p. 31). 19 The decision whether to remand for further proceedings or for immediate payment of 20

21 10 While both Plaintiff (ECF No. 20, p. 37) and the Commissioner (ECF No. 24, p. 30) agree that the new evidence may be considered by this Court to determine whether the decision is supported by substantial 22 evidence, Plaintiff asserts that the Appeals Council “improperly failed to consider” the new evidence. (ECF No. 20, p. 37). However, if the Appeals Council actually did not consider the new evidence, it would 23 “not become part of the record” and this Court could “not consider it.” Amor v. Berryhill, 743 F. App’x 145, 146 (9th Cir. 2018) (unpublished). Here, the Appeals Council acknowledged the new evidence but 24 concluded as follows: “We find this evidence does not show a reasonable probability that it would change 25 the outcome of the decision. We did not exhibit this evidence.” (A.R. 12). Examining similar language, other courts have reasoned that, although ambiguous, such language indicates that the Appeals Council 26 considered the new evidence, as it would be illogical to conclude that there is not a reasonably probability that new evidence would have changed the outcome of the decision unless the Appeals Council actually 27 considered the evidence. See Blancett v. Saul, No. 1:20-CV-00253-SKO, 2021 WL 1736880, at *4 (E.D. Cal. May 3, 2021) (collecting cases). This Court finds this reasoning persuasive and concludes that the 28 Appeals Council considered the new evidence and thus it is part of the record for the Court to consider. 1 | benefits is within the discretion of the Court. Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2 | 2000). To determine which type of remand is appropriate, the Ninth Circuit uses a three-part test, 3 | with each of the following parts of the test needing to be satisfied to remand for benefits: 4 (1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient 5 reasons for rejecting evidence, whether claimant testimony or medical opinion; 6 and (3) if the improperly discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand. 7 Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). However, even if all these parts are met, 8 the Court may still remand when “an evaluation of the record as a whole creates serious doubt ? that a claimant is, in fact, disabled.” Jd. at 1021. Notably, remand for further proceedings is the 10 “ordinary” requirement whereas a remand for payment of benefits is the rare exception. See Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1101 (9th Cir. 2014). 12 Here, in light of the various medical statements and comments cited above, the Court 13 finds it appropriate to remand for further consideration and potential award of benefits. Although it appears highly likely based on the discussion above that an award of benefits will be the 15 outcome, the Court has not independently prepared a revised RFC based on the limitations 16 discussed above, nor has it obtained vocational evidence or considered application of the grids to M7 this situation. Thus, remand for consideration is appropriate. 18 I. CONCLUSION AND ORDER Accordingly, the decision of the Commissioner of the Social Security Administration is “0 REVERSED and REMANDED for further administrative proceedings consistent with this decision. The Clerk is directed to enter judgment in favor of Plaintiff and against Defendant.

23 | IT IS SO ORDERED. 24 25 | Dated: _November 18,2021 __sfe ey

UNITED STATES MAGISTRATE JUDGE

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