1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DANNY MAO, Case No. 1:20-cv-00006-HBK 12 Plaintiff, OPINION AND ORDER TO REMAND CASE

TO COMMISSIONER2

13 v. (Doc. No. 17) 14 KILOLO KIJAKAZI,

COMMISSIONER OF SOCIAL

15 SECURITY,1 16 Defendant. 17 18 19 Danny Mao (“Plaintiff”) seeks judicial review of a final decision of the Commissioner of 20 Social Security (“Commissioner” or “Defendant”) denying his application for supplemental 21 security income under the Social Security Act. (Doc. No. 1). The matter is currently before the 22 Court on the parties’ briefs, which were submitted without oral argument. (Doc. Nos. 17, 19, 21). 23 For the reasons stated, the Court orders this matter REMANDED for further administrative 24 proceedings. 25 1 Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9, 2021. Pursuant to Rule 26 25(d) of the Federal Rules of Civil Procedure, Kilolo Kijakazi is substituted for Andrew M. Saul as the defendant in this suit. 27 2 Both parties have consented to the jurisdiction of a magistrate judge, in accordance with 28 U.S.C. §636(c)(1). (Doc. No. 25). 28 1 I. JURISDICTION 2 Plaintiff filed for supplemental security income on September 28, 2016, alleging an onset 3 date of May 19, 2015. (AR 240-48). Benefits were denied initially (AR 202-05), and upon 4 reconsideration (AR 211-16). Plaintiff appeared before Administrative Law Judge David 5 LaBarre (“ALJ”) on December 18, 2018. (AR 123-46). Plaintiff was represented by counsel and 6 testified at the hearing. (Id.). On January 29, 2019, the ALJ issued an unfavorable decision (AR 7 18-40), and on October 29, 2019, the Appeals Council denied review (AR 7-12). The matter is 8 now before this Court pursuant to 42 U.S.C. § 1383(c)(3). 9 II. BACKGROUND 10 The facts of the case are set forth in the administrative hearing and transcripts, the ALJ’s 11 decision, and the briefs of Plaintiff and Commissioner. Only the most pertinent facts are 12 summarized here. 13 Plaintiff was 28 years old at the time of the hearing. (See AR 263). He graduated from 14 high school and was in special education classes “all through school.” (AR 130-31). He lives 15 with his father, mother, sister, and brother. (AR 137). Plaintiff has no work history. (AR 129). 16 Plaintiff testified that he has two to three seizures every day. (AR 131-32). He reported that he 17 has two “big seizures” every week, and two “small” seizures every day. (AR 132-34). Plaintiff 18 testified that he is tired after a seizure and has to lay down for two hours. (AR 133). He gets 19 “depressed” and isolates because of his seizures, gets mad once a month and “can’t control it.” 20 (AR 139). 21 III. STANDARD OF REVIEW 22 A district court’s review of a final decision of the Commissioner of Social Security is 23 governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is limited; the 24 Commissioner’s decision will be disturbed “only if it is not supported by substantial evidence or 25 is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). “Substantial 26 evidence” means “relevant evidence that a reasonable mind might accept as adequate to support a 27 conclusion.” Id. at 1159 (quotation and citation omitted). Stated differently, substantial evidence 28 equates to “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 1 citation omitted). In determining whether the standard has been satisfied, a reviewing court must 2 consider the entire record as a whole rather than searching for supporting evidence in isolation. 3 Id. 4 In reviewing a denial of benefits, a district court may not substitute its judgment for that of 5 the Commissioner. “The court will uphold the ALJ's conclusion when the evidence is susceptible 6 to more than one rational interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 7 2008). Further, a district court will not reverse an ALJ’s decision on account of an error that is 8 harmless. Id. An error is harmless where it is “inconsequential to the [ALJ’s] ultimate 9 nondisability determination.” Id. (quotation and citation omitted). The party appealing the ALJ’s 10 decision generally bears the burden of establishing that it was harmed. Shinseki v. Sanders, 556 11 U.S. 396, 409-10 (2009). 12 IV. FIVE-STEP SEQUENTIAL EVALUATION PROCESS 13 A claimant must satisfy two conditions to be considered “disabled” within the meaning of 14 the Social Security Act. First, the claimant must be “unable to engage in any substantial gainful 15 activity by reason of any medically determinable physical or mental impairment which can be 16 expected to result in death or which has lasted or can be expected to last for a continuous period 17 of not less than twelve months.” 42 U.S.C. § 1382c(a)(3)(A). Second, the claimant’s impairment 18 must be “of such severity that he is not only unable to do his previous work[,] but cannot, 19 considering his age, education, and work experience, engage in any other kind of substantial 20 gainful work which exists in the national economy.” 42 U.S.C. § 1382c(a)(3)(B). 21 The Commissioner has established a five-step sequential analysis to determine whether a 22 claimant satisfies the above criteria. See 20 C.F.R. § 416.920(a)(4)(i)-(v). At step one, the 23 Commissioner considers the claimant’s work activity. 20 C.F.R. § 416.920(a)(4)(i). If the 24 claimant is engaged in “substantial gainful activity,” the Commissioner must find that the 25 claimant is not disabled. 20 C.F.R. § 416.920(b). 26 If the claimant is not engaged in substantial gainful activity, the analysis proceeds to step 27 two. At this step, the Commissioner considers the severity of the claimant’s impairment. 20 28 C.F.R. § 416.920(a)(4)(ii). If the claimant suffers from “any impairment or combination of 1 impairments which significantly limits [his or her] physical or mental ability to do basic work 2 activities,” the analysis proceeds to step three. 20 C.F.R. § 416.920(c). If the claimant’s 3 impairment does not satisfy this severity threshold, however, the Commissioner must find that the 4 claimant is not disabled. 20 C.F.R. § 416.920(c). 5 At step three, the Commissioner compares the claimant’s impairment to severe 6 impairments recognized by the Commissioner to be so severe as to preclude a person from 7 engaging in substantial gainful activity. 20 C.F.R. § 416.920(a)(4)(iii). If the impairment is as 8 severe or more severe than one of the enumerated impairments, the Commissioner must find the 9 claimant disabled and award benefits. 20 C.F.R. § 416.920(d). 10 If the severity of the claimant’s impairment does not meet or exceed the severity of the 11 enumerated impairments, the Commissioner must pause to assess the claimant’s “residual 12 functional capacity.” Residual functional capacity (RFC), defined generally as the claimant’s 13 ability to perform physical and mental work activities on a sustained basis despite his or her 14 limitations, 20 C.F.R. § 416.945(a)(1), is relevant to both the fourth and fifth steps of the analysis. 15 At step four, the Commissioner considers whether, in view of the claimant’s RFC, the 16 claimant is capable of performing work that he or she has performed in the past (past relevant 17 work). 20 C.F.R. § 416.920(a)(4)(iv). If the claimant is capable of performing past relevant 18 work, the Commissioner must find that the claimant is not disabled. 20 C.F.R. § 416.920(f). If 19 the claimant is incapable of performing such work, the analysis proceeds to step five. 20 At step five, the Commissioner considers whether, in view of the claimant’s RFC, the 21 claimant is capable of performing other work in the national economy. 20 C.F.R. § 22 416.920(a)(4)(v). In making this determination, the Commissioner must also consider vocational 23 factors such as the claimant’s age, education, and past work experience. 20 C.F.R. § 24 416.920(a)(4)(v). If the claimant is capable of adjusting to other work, the Commissioner must 25 find that the claimant is not disabled. 20 C.F.R. § 416.920(g)(1). If the claimant is not capable of 26 adjusting to other work, analysis concludes with a finding that the claimant is disabled and is 27 therefore entitled to benefits. 20 C.F.R. § 416.920(g)(1). 28 The claimant bears the burden of proof at steps one through four above. Tackett v. Apfel, 1 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to step five, the burden shifts to the 2 Commissioner to establish that (1) the claimant is capable of performing other work; and (2) such 3 work “exists in significant numbers in the national economy.” 20 C.F.R. § 416.960(c)(2); Beltran 4 v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). 5 V. ALJ’S FINDINGS 6 At step one, the ALJ found that Plaintiff has not engaged in substantial gainful activity 7 since September 28, 2016, the application date. (AR 23). At step two, the ALJ found that 8 Plaintiff has the following severe impairments: unspecified anxiety disorder; mild neurocognitive 9 disorder; intellectual disability; and myoclonic epilepsy. (AR 23). At step three, the ALJ found 10 that Plaintiff does not have an impairment or combination of impairments that meets or medically 11 equals the severity of a listed impairment. (AR 24). The ALJ then found that Plaintiff has the 12

RFC:

13 to perform less than a full range of light work as defined in 20 CFR 14 416.967(b). Specifically, the claimant can lift and carry 20 pounds frequently and 10 pounds occasionally; sit for six hours in an eight- 15 hour workday with normal breaks; stand and walk for six hours in an eight-hour workday with normal breaks; is limited to simple one to 16 two step tasks; must avoid heights and dangerous machinery; would require an unscheduled absence once a month; and would be off-task 17 less than 10 percent of an eight-hour workday. 18 (AR 27). At step four, the ALJ found that Plaintiff has no past relevant work. (AR 34). At step 19 five, the ALJ found that considering Plaintiff’s age, education, work experience, and RFC, there 20 are jobs that exist in significant numbers in the national economy that Plaintiff can perform, 21 including: housekeeper, assembler (of small parts), and agricultural sorter. (AR 34-35). On that 22 basis, the ALJ concluded that Plaintiff has not been under a disability, as defined in the Social 23 Security Act, since September 28, 2016, the date the application was filed. (AR 36). 24 VI. ISSUES 25 Plaintiff seeks judicial review of the Commissioner’s final decision denying him 26 supplemental security income benefits under Title XVI of the Social Security Act. (Doc. No. 1). 27 Plaintiff raises the following issues for this Court’s review: 28 1. Whether the ALJ properly considered Plaintiff’s subjective complaints; 1 2. Whether the ALJ erred in assessing the RFC by improperly considering the medical 2 opinion evidence; and 3 3. Whether the ALJ erred at step three. 4 (Doc. No. 17 at 17-34). 5 VII. DISCUSSION 6 A. Symptom Claims 7 An ALJ engages in a two-step analysis when evaluating a claimant’s testimony regarding 8 subjective pain or symptoms. Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). 9 The ALJ first must determine whether there is “objective medical evidence of an underlying 10 impairment which could reasonably be expected to produce the pain or other symptoms alleged.” 11 Id. (internal quotation marks omitted). “The claimant is not required to show that his impairment 12 could reasonably be expected to cause the severity of the symptom he has alleged; he need only 13 show that it could reasonably have caused some degree of the symptom.” Vasquez v. Astrue, 572 14 F.3d 586, 591 (9th Cir. 2009) (internal quotation marks omitted). 15 Second, “[i]f the claimant meets the first test and there is no evidence of malingering, the 16 ALJ can only reject the claimant’s testimony about the severity of the symptoms if [the ALJ] 17 gives ‘specific, clear and convincing reasons’ for the rejection.” Ghanim v. Colvin, 763 F.3d 18 1154, 1163 (9th Cir. 2014) (internal citations and quotations omitted). “General findings are 19 insufficient; rather, the ALJ must identify what testimony is not credible and what evidence 20 undermines the claimant’s complaints.” Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 21 1995)); Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (“[T]he ALJ must make a 22 credibility determination with findings sufficiently specific to permit the court to conclude that 23 the ALJ did not arbitrarily discredit claimant’s testimony.”). “The clear and convincing 24 [evidence] standard is the most demanding required in Social Security cases.” Garrison v. 25 Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 26 F.3d 920, 924 (9th Cir. 2002)). 27 Here, the ALJ found Plaintiff’s medically determinable impairments could reasonably be 28 expected to cause some of the alleged symptoms; however, Plaintiff’s “statements concerning the 1 intensity, persistence, and limiting effects of these symptoms are not entirely consistent with the 2 medical evidence and other evidence in the record” for several reasons. (AR 28). First, the ALJ 3 found that, “as alluded to” in another part of the decision, Plaintiff’s “examination findings, 4 reports of symptoms, reports of limitations, and the type of treatment he received do not fully 5 support the degree of limitations he alleges in [the] proceedings.” (AR 29). Presumably, the ALJ 6 is “alluding to” his general findings elsewhere in the decision that discounted Plaintiff’s symptom 7 claims because (1) “despite numerous physical and mental symptoms, [Plaintiff’s] treatment 8 primarily consisted of medications and outpatient treatment”; (2) “the medical evidence of record 9 does not reveal a significant increase in his symptoms during the relevant period”; (3) Plaintiff’s 10 “symptoms have been relatively stable and controlled with the prescribed treatment regimen”; 11 and (4) the “lack of more aggressive treatment during the relevant period, including 12 hospitalizations, suggest [Plaintiff’s] symptoms and limitations were not as severe as alleged.” 13 (AR 29-30). It is reasonable for the ALJ to consider the type and effectiveness of treatment as 14 part of the evaluation of Plaintiff’s symptom claims. See Parra v. Astrue, 481 F.3d 742, 751 (9th 15 Cir. 2007) (evidence of conservative treatment is sufficient to discount Plaintiff’s testimony 16 regarding the severity of an impairment); See Tommasetti, 533 F.3d at 1039-40 (holding that the 17 ALJ permissibly inferred that the claimant's “pain was not as all-disabling as he reported in light 18 of the fact that he did not seek an aggressive treatment program” and “responded favorably to 19 conservative treatment”). 20 However, as noted by Plaintiff, “the ALJ failed to identify which portions of Mr. Mao’s 21 symptomology testimony the ALJ believed were inconsistent with which portions of the medical 22 record, rather[,] the ALJ provided a summary of the entirety of the medical record.” (Doc. No. 17 23 at 30). The Ninth Circuit does “not require ALJs to perform a line-by-line exegesis of the 24 claimant’s testimony, nor do they require ALJs to draft dissertations when denying benefits.” 25 Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020). But in considering Plaintiff’s symptom 26 claims, the ALJ must specifically identify the statements he finds not to be credible, and the 27 evidence that allegedly undermines those statements. Holohan v. Massanari, 246 F.3d 1195, 28 1208 (9th Cir. 2001). “To ensure that our review of the ALJ’s credibility determination is 1 meaningful, and that the claimant’s testimony is not rejected arbitrarily, we require the ALJ to 2 specify which testimony she finds not credible, and then provide clear and convincing reasons, 3 supported by the evidence in the record, to support that credibility determination.” Brown-Hunter 4 v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015) (noting the ALJ did not specifically identify any 5 inconsistencies between the claimant’s testimony and the record; rather, “she simply stated her 6 non-credibility conclusion and then summarized the medical evidence supporting her RFC 7 determination.”). Here, as pointed out by Plaintiff, “a general citation to [the entire medical 8 record] that is only later addressed in the ALJ’s summary of medical evidence does not constitute 9 [clear and convincing] reasons required to reject symptomology evidence, especially given the 10 fact that the ALJ completely fails to explain how treatment with increasing doses sedating anti- 11 seizure medications [and] discussions of possible surgery and constant doctor visits [] would not 12 support a disabling and/or worsening level of symptomology testimony.” (Doc. No. 17 at 30). 13 Moreover, contrary to the ALJ’s general findings, Plaintiff’s condition was rarely noted to be 14 “stable”; rather, the longitudinal record includes consistent notations that Plaintiff had “complex 15 partial epilepsy with generalization and with intractable epilepsy” that was not well controlled 16 and consistently managed by increasing anti-seizure medication. (See AR 395 (added additional 17 anti-seizure medication), 407, 422 (add additional anti-convulsive medication), 452 (seizures “not 18 controlled”), 457 (seizures “not well controlled”), 463 (seizures “not controlled”), 467 (seizures 19 “not controlled” and medication increased), 506 (seizures “severe not controlled”), 592 (anti- 20 seizure medication increased). Based on the foregoing, the Court finds that the ALJ’s general 21 reasoning that Plaintiff’s symptom claims were not supported by the conservative nature and 22 effectiveness of treatment, without identification or explanation as to how the medical evidence 23 undermined his testimony, was not a clear and convincing reason, supported by substantial 24 evidence, to reject his symptom claims. 25 Second, the ALJ found “some of [Plaintiff’s] statements regarding the limiting effects of 26 his physical impairments are not entirely consistent with his activities of daily living.” (AR 29). 27 The ALJ may consider a claimant’s activities that undermine reported symptoms. Rollins v. 28 Massanari, 261 F.3d 853, 857 (9th Cir. 2001). If a claimant can spend a substantial part of the 1 day engaged in pursuits involving the performance of exertional or non-exertional functions, the 2 ALJ may find these activities inconsistent with the reported disabling symptoms. Fair v. Bowen, 3 885 F.2d 597, 603 (9th Cir. 1989). “While a claimant need not vegetate in a dark room in order to 4 be eligible for benefits, the ALJ may discount a claimant’s symptom claims when the claimant 5 reports participation in everyday activities indicating capacities that are transferable to a work 6 setting” or when activities “contradict claims of a totally debilitating impairment.” Molina v. 7 Astrue, 674 F.3d 1104, 1112-13 (9th Cir. 2012) (internal citations omitted), superseded on other 8 grounds by 20 C.F.R. § 416.920(a). To support this finding, the ALJ cites the September 2018 9 examining report of Dr. Robert Wagner that notes Plaintiff cooks, cleans, shops, walks for 10 exercise, and “perform[s] his own activities of daily living without assistance”; and the 11 September 2018 examining report of Dr. Megan Stafford indicating that Plaintiff reported “being 12 able to adequately handle some responsibilities of daily living including hygiene, grooming, and 13 limited household duties.” (AR 29, 520, 532). Plaintiff argues this finding was “harmfully and 14 erroneously ‘cherry picking’ and ‘mischaracterizing’ evidence of [Plaintiff’s] daily activities 15 completely out of context, despite the overwhelming evidence of record [] in testimony and 16 medical records regarding [Plaintiff’s] inability to function independently regarding his basic 17 activities.” (Doc. No. 17 at 31-33). The Court agrees. 18 As Plaintiff notes, the ALJ failed to consider Dr. Stafford’s additional findings in 2018 19 that Plaintiff needs assistance keeping appointments, does not use the stove for safety reasons, has 20 broken dishes when putting them away due to seizures, does not drive or use public 21 transportation, and picks out his own clothes but sometimes puts them on inside out. (Doc. No. 22 17 at 33 (citing AR 532)). Moreover, evidence across the longitudinal record supports Plaintiff’s 23 testimony that he is unable to complete daily activities without assistance due to seizures. (AR 24 347 (“father is interested in help in the home to ensure [Plaintiff] does not hurt himself”), 369 25 (reporting unable to do chores because of seizures), 437 (unable to cook or drive because of 26 seizures), 459 (unable to cook because “he may have seizure and fall on stove or on knives”), 503 27 (unable to cook because he may have seizure and burn himself), 513 (referred to counseling 28 program by treating provider due to “perceived inability to care for himself independently due to 1 his lack of independent living skills”), 652 (treating physician indicated Plaintiff “needs family 2 support for daily activities). Thus, the ALJ’s wholesale rejection of Plaintiff’s symptom claims 3 because they were not consistent with a single report that Plaintiff could perform basic activities 4 of daily living without support was not clear, convincing, and supported by substantial evidence. 5 See Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883–84 (9th Cir. 2006) (“single discrepancy fails 6 to justify the wholesale dismissal of Plaintiff’s testimony.”). 7 Third, the ALJ found that Plaintiff “was observed throughout the hearing and did not 8 demonstrate or manifest significant difficulty concentrating during the hearing. During the time 9 when [Plaintiff] was being questioned, he appeared to process the questions without significant 10 difficulty, and was able to respond to most questions appropriately and without significant delay. 11 As such, [Plaintiff’s] presentation and demeanor during the relevant period were not entirely 12 consistent with the alleged severity of his alleged mental symptoms.” (AR 29). Plaintiff argues 13 the “ALJ erroneously and harmfully applied the ‘sit and squirm’ method of deciding the 14 authenticity of [Plaintiff’s] symptomology.” (Doc. No. 17 at 33). Plaintiff is correct that an 15 ALJ’s reliance on personal observations of a claimant at the hearing “has been condemned as ‘sit 16 and squirm’ jurisprudence.” Perminter v. Heckler, 765 F.2d 870, 872 (9th Cir. 1985) (citation 17 omitted). However, standing alone, the “inclusion of the ALJ’s personal observations does not 18 render the decision improper.” Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999) (quoting 19 Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999)). Here, despite the 20 ALJ’s assertions that Plaintiff was able to respond to questions appropriately, as noted by 21 Plaintiff, the hearing transcript includes multiple assertions at the beginning of the hearing that 22 Plaintiff “didn’t understand” or only understood “a little.” (Doc. No. 17 at 34 (citing AR 128)). 23 Moreover, the Court notes that this reasoning only relates to Plaintiff’s mental symptom claims 24 and is not a clear and convincing reason to discount Plaintiff’s claims of ongoing seizures. 25 Finally, the ALJ found Plaintiff’s “allegations pertaining to his physical limitations and 26 restriction caused by his impairments are not fully corroborated by the objective medical 27 evidence.” (AR 29). The medical evidence is a relevant factor in determining the severity of a 28 claimant’s pain and its disabling effects. Rollins, 261 F.3d at 857; 20 C.F.R. § 404.1529(c)(2). In 1 support of this finding, the ALJ noted that Plaintiff’s treatment consisted of medications and 2 outpatient visits, he did not seek emergency treatment for his seizures, examination findings by 3 one consultative examiner were largely unremarkable, and a 2015 MRI scan of Plaintiff’s brain 4 “revealed cysts/polyps/lesions” but there was no acute intracranial hemorrhage, no acute cerebral 5 infarction, no evidence for mesiotemporal sclerosis, and no advanced cerebral atrophy or 6 hydrocephalus. (AR 30, 496-97, 519-23). In addition, as to his mental health symptoms, the ALJ 7 noted that the examining psychologist noted Plaintiff’s thought process was grossly logical, 8 organized, and coherent; and he was able to remember three out of three items immediately and 9 within three minutes. (AR 29, 532-33). 10 Defendant argues that Plaintiff “does not point to objective findings compelling a different 11 finding.” (Doc. No. 19 at 19). However, regardless of whether the ALJ erred in finding 12 Plaintiff’s symptom claims were not corroborated by objective testing and physical examinations, 13 it is well-settled in the Ninth Circuit that an ALJ may not discredit a claimant’s pain testimony 14 and deny benefits solely because the degree of pain alleged is not supported by objective medical 15 evidence. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001); Bunnell v. Sullivan, 947 F.2d 16 341, 346-47 (9th Cir. 1991); Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989). As discussed in 17 detail above, the additional reasons given by the ALJ for discounting Plaintiff’s symptom claims 18 were legally insufficient or did not address Plaintiff’s primary claimed impairment of seizures. 19 Thus, because lack of corroboration by objective evidence cannot stand alone as a basis for a 20 rejecting Plaintiff’s symptom claims, the ALJ’s finding is inadequate. 21 The Court concludes that the ALJ did not provide clear and convincing reasons, supported 22 by substantial evidence, for rejecting Plaintiff’s symptom claims. On remand, the ALJ must 23 reconsider Plaintiff’s symptom claims. 24 B. Medical Opinions 25 In his opening brief, Plaintiff contends that the “RFC does not reflect substantial evidence 26 of record.” (Doc. No. 17 at 22). However, his argument is almost entirely premised on whether 27 the ALJ properly considered the medical opinion evidence. (Doc. No. 17 at 22-29). There are 28 three types of physicians: “(1) those who treat the claimant (treating physicians); (2) those who 1 examine but do not treat the claimant (examining physicians); and (3) those who neither examine 2 nor treat the claimant [but who review the claimant’s file] (nonexamining [or reviewing] 3 physicians).” Holohan, 246 F.3d at 1201–02 (citations omitted). Generally, a treating 4 physician’s opinion carries more weight than an examining physician’s opinion, and an 5 examining physician’s opinion carries more weight than a reviewing physician’s opinion. Id. If a 6 treating or examining physician’s opinion is uncontradicted, the ALJ may reject it only by 7 offering “clear and convincing reasons that are supported by substantial evidence.” Bayliss v. 8 Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). Conversely, “[i]f a treating or examining doctor’s 9 opinion is contradicted by another doctor’s opinion, an ALJ may only reject it by providing 10 specific and legitimate reasons that are supported by substantial evidence.” Id. (citing Lester, 81 11 F.3d at 830-31). “However, the ALJ need not accept the opinion of any physician, including a 12 treating physician, if that opinion is brief, conclusory and inadequately supported by clinical 13 findings.” Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009) (quotation 14 and citation omitted). 15 First, Plaintiff generally argues that the “ALJ’s deference to the opinions of the non- 16 examining state agency reviewer over long-term treating specialist physician[s] was harmful 17 error.” (Doc. No. 17 at 22-23). While Plaintiff is correct that an ALJ generally may give more 18 weight to treating providers than non-examining providers, a nonexamining opinion may 19 nonetheless constitute substantial evidence if it is consistent with other independent evidence in 20 the record. See Thomas, 278 F.3d at 957; Orn v. Astrue, 495 F.3d 625, 632-33 (9th Cir. 2007). 21 However, where the treating providers’ opinions are contradicted by medical evidence, the 22 opinions still may be rejected if the ALJ provides specific and legitimate reasons supported by 23 substantial evidence in the record. See Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). 24 Thus, the salient question before the Court is whether the ALJ offered the requisite reasons to 25 reject the treating opinions. 26 Plaintiff argues the ALJ failed to provide specific and legitimate reasons for rejecting the 27 treating opinions of Dr. Rohini J. Joshi and Dr. Angela Grasser. (Doc. No. 17 at 24-27). In 28 February 2017, Dr. Grasser opined that due to “severe seizures” Plaintiff would be absent from 1 work due to physical/mental symptoms 5 days or more per month; would be “off-task” 20% of 2 the day; would need to lie down and/or recline for about 2 hours in an 8-hour workday; could sit 3 for about 2 hours in an 8-hour workday; and could stand and walk for about 4 hours in an 8-hour 4 workday. (AR 437-40). In September 2018, Dr. Grasser opined that Plaintiff would be absent 5 from work due to symptoms 5 days or more per month; would be “off-task” 10% or less of the 6 day; would need to lie down and/or recline for about 3 hours in an 8-hour workday; could sit 7 about 5 hours in an 8-hour workday; and could stand and walk for about 4 hours in an 8-hour 8 workday. (AR 577-80). The ALJ noted Dr. Grasser’s treating relationship with Plaintiff but gave 9 little weight to her opinions because “these limitations as a whole are overly restrictive in light of 10 the relatively stable documented symptoms, [Plaintiff’s] ability to perform various activities of 11 daily living, and the routine and conservative nature of his medical treatment.” (AR 31). 12 In November 2018, Dr. Joshi opined that Plaintiff could sit, stand, and walk for less than 2 13 hours in an 8-hour workday; rarely lift 10 pounds; would need to take unscheduled breaks during 14 an 8-hour workday; and was likely to be absent about 3 days per month as a result of his 15 impairments. (AR 651-54). The ALJ again noted Dr. Joshi’s treating relationship with Plaintiff 16 but gave little weight to Dr. Joshi’s opinion “for similar reasons” as those given to reject Dr. 17 Grasser’s opinion, namely, the “opined limitations are overly restrictive in light of the objective 18 evidence and [Plaintiff’s] capability of performing activities of daily living.” (AR 31). 19 The consistency of a medical opinion with the record as a whole is a relevant factor in 20 evaluating that medical opinion. Orn, 495 F.3d at 631; see also Batson, 359 F.3d at 1195 (an 21 ALJ may discount an opinion that is conclusory, brief, and unsupported by the record as a whole, 22 or by objective medical findings). In addition, an ALJ may discount a medical opinion that is 23 inconsistent with a claimant’s reported functioning. See Morgan v. Comm'r of Soc. Sec. Admin, 24 169 F.3d 595, 601-02 (1999). Plaintiff correctly notes that when considering the medical opinion 25 evidence, the ALJ must do more than state a conclusion; rather, the ALJ must “set forth his own 26 interpretations and explain why they, rather than the doctors,’ are correct.” Reddick v. Chater, 27 157 F.3d 715, 725 (9th Cir. 1998); Brown-Hunter v. Colvin, 806 F.3d 487, 495 (9th Cir. 2015) (a 28 court “cannot substitute [the court's] conclusions for the ALJ’s, or speculate as to the grounds for 1 the ALJ's conclusions. Although the ALJ’s analysis need not be extensive, the ALJ must provide 2 some reasoning in order for [the court] to meaningfully determine whether the ALJ’s conclusions 3 were supported by substantial evidence.”). “This can be done by setting out a detailed and 4 thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, 5 and making findings.” Reddick, 157 F.3d at 725. Here, the ALJ fails to state with requisite 6 specificity how a single report of Plaintiff’s ability to do basic daily activities, and the treatment 7 record, which largely consists of Plaintiff’s treatment visits with Dr. Grasser and Dr. Joshi, are 8 inconsistent with their opined limitations. Thus, these were not specific and legitimate reasons, 9 supported by substantial evidence, for the ALJ to reject the treating opinions of Dr. Grasser and 10 Dr. Joshi. Particularly in light of the need to reconsider Plaintiff’s treatment claims, as discussed 11 above, the ALJ must reconsider the medical opinion evidence and reassess Plaintiff’s RFC on 12 remand.3 13 C. Step Three 14 Plaintiff additionally argues that the ALJ erred at step three by determining that Plaintiff’s 15 seizure disorder does not meet or equal Listing 11.02, and his borderline intellectual functioning 16 does not meet or equal Listing 12.05. (Doc. No. 17 at 17-22). Because the analysis of step three 17 is at least in part dependent on the ALJ’s reevaluation of Plaintiff’s symptom claims and the 18 reassessment of the medical opinion evidence, the Court declines to address these challenges in 19 detail here. The reconsideration of Plaintiff’s symptom claims and the medical opinion evidence 20 is particularly relevant in this case as the Listing at 11.02 is based, in large part, on the type and 21 number of seizures experienced by Plaintiff in a certain time period. See 20 C.F.R. Part 404, 22 Subpt. P, App. 1, § 11.02. On remand, the ALJ is instructed to reconsider Plaintiff’s symptom 23 claims and the medical opinion evidence, conduct a new sequential analysis considering all of the 24

25 3 Plaintiff additionally argues that the ALJ’s finding that the record supports Plaintiff “being off task less than 10 percent and requiring an absence of one day a month due to his seizures” is not “based on any 26 treating or examining physician opinion”; and despite giving the Dr. Megan Stafford’s opinion great weight, the RFC does not reflect limitations opined in her consultative examining opinion. (Doc. No. 17 27 at 27-28; AR 31, 535). In light of the need to remand to reconsider the treating opinion evidence, the Court declines to consider these arguments. On remand, the ALJ must reconsider all of the medical 28 opinion evidence. 1 evidence in the record, including a reevaluation of step three. 2 D. Remedy 3 Plaintiff contends that the Court should remand for a payment of benefits, or in the 4 alternative, the Court should remand for further proceedings. (Doc. No. 17 at 34). The decision 5 whether to remand for further proceedings or reverse and award benefits is within the discretion 6 of the district court. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). An immediate 7 award of benefits is appropriate where “no useful purpose would be served by further 8 administrative proceedings, or where the record has been thoroughly developed,” Varney v. Sec'y 9 of Health & Human Servs., 859 F.2d 1396, 1399 (9th Cir. 1988), or when the delay caused by 10 remand would be “unduly burdensome[.]” Terry v. Sullivan, 903 F.2d 1273, 1280 (9th Cir. 11 1990); see also Garrison, 759 F.3d at 1021 (noting that a district court may abuse its discretion 12 not to remand for benefits when all of these conditions are met). This policy is based on the 13 “need to expedite disability claims.” Varney, 859 F.2d at 1401. But where there are outstanding 14 issues that must be resolved before a determination can be made, and it is not clear from the 15 record that the ALJ would be required to find a claimant disabled if all the evidence were 16 properly evaluated, remand is appropriate. See Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th 17 Cir. 2004); Harman v. Apfel, 211 F.3d 1172, 1179-80 (9th Cir. 2000). 18 The Court finds in this case that further administrative proceedings are appropriate. See 19 Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1103-04 (9th Cir. 2014) (remand for 20 benefits is not appropriate when further administrative proceedings would serve a useful 21 purpose). Here, the ALJ improperly considered Plaintiff’s symptom claims and the medical 22 opinion evidence, which calls into question whether the assessed RFC, and resulting hypothetical 23 propounded to the vocational expert, are supported by substantial evidence. “Where,” as here, 24 “there is conflicting evidence, and not all essential factual issues have been resolved, a remand for 25 an award of benefits is inappropriate.” Treichler, 775 F.3d at 1101. Instead, the Court remands 26 this case for further proceedings. On remand, the ALJ should reevaluate Plaintiff’s symptom 27 claims. The ALJ should also reconsider the medical opinion evidence, and provide legally 28 sufficient reasons for evaluating the opinions, supported by substantial evidence. If necessary, 1 | the ALJ should order additional consultative examinations and, if appropriate, take additional 2 | testimony from medical experts. Finally, the ALJ should reconsider steps the remaining steps in 3 | the sequential analysis, reassess Plaintiff’s RFC and, if necessary, take additional testimony from 4 | a vocational expert which includes all of the limitations credited by the ALJ. 5 Accordingly, it is ORDERED: 6 1. Pursuant to sentence four of 42 U.S.C.§ 405(g), the Court REVERSES the 7 Commissioner’s decision and REMANDS this case back to the Commissioner of 8 Social Security for further proceedings consistent with this Order. 9 2. An application for attorney fees may be filed by separate motion. 10 3. The Clerk shall terminate any motions and deadlines and close this case. 11 2 | Dated: _ March 4, 2022 Mihaw. fareh Zack 13 HELENA M. BARCH-KUCHTA 4 UNITED STATES MAGISTRATE JUDGE

15 16 17 18 19 20 21 22 23 24 25 26 27 28 16