1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JENETT S., Case No. 22-cv-03217-JSC

8 Plaintiff,

ORDER RE: CROSS-MOTIONS FOR

9 v. SUMMARY JUDGMENT

10 KILOLO KIJAKAZI, Re: Dkt. Nos. 13, 14 Defendant. 11

12 13 Plaintiff seeks Social Security benefits for a combination of physical and mental 14 impairments, including spondylosis, depression, anxiety, degenerative disc disease (DDD), and 15 attention-deficit hyperactivity disorder (ADHD). Pursuant to 42 U.S.C. § 405(g), Plaintiff filed 16 this lawsuit for judicial review of the final decision by the Commissioner of Social Security 17 (“Commissioner”) denying her benefits claim. Before the Court are the parties’ cross-motions for 18 summary judgment. (Dkt. Nos. 13-1, 14.)1 After careful consideration of the parties’ briefing, the 19 Court concludes that oral argument is unnecessary, see N.D. Cal. Civ. L.R. 7-1(b), GRANTS 20 Plaintiff’s motion, DENIES Defendant’s cross-motion, and REMANDS for further proceedings 21 consistent with this Order. Because the ALJ erred in his weighing of medical evidence and 22 Plaintiff’s subjective symptom testimony, but there are outstanding issues to be resolved, remand 23 for further proceedings is proper. 24 25 26

27 1 Record Citations are to material in the Electronic Case File (“ECF”); pinpoint citations are to the 1 BACKGROUND 2 I. Procedural History 3 Plaintiff applied for disability and disability insurance benefits under Title II of the Social 4 Security Act on October 22, 2019.2 (Administrative Record (“AR”) 179-80.) Plaintiff alleged an 5 amended disability onset date of October 23, 2017 due to DDD, spondylosis, depression, anxiety, 6 and ADHD. (Dkt. No. 13-1 at 10; AR 15.) Her application was initially denied on January 29, 7 2020 and upon reconsideration on April 22, 2020. (AR 91-94, 99-103.) An Administrative Law 8 Judge (“ALJ”) held a hearing on February 23, 2021. (AR 32-70.) On April 7, 2021 the ALJ 9 issued a decision denying Plaintiff’s application for disability and disability benefits. (AR 12-31.) 10 A claimant is considered “disabled” under the Act if she meets two requirements. See 42 11 U.S.C. § 423(d); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). First, the claimant must 12 demonstrate “an inability to engage in any substantial gainful activity by reason of any medically 13 determinable physical or mental impairment which can be expected to result in death or which has 14 lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 15 423(d)(1)(A). Second, the impairment or impairments must be severe enough that she is unable to 16 do her previous work and cannot, based on her age, education, and work experience, “engage in 17 any other kind of substantial gainful work which exists in the national economy.” Id. § 18 423(d)(2)(A). 19 To determine whether a claimant is disabled, an ALJ is required to employ a five-step 20 sequential analysis examining: (1) whether the claimant is engaging in “substantial gainful 21 activity”; (2) whether the claimant has a “severe medically determinable physical or mental 22 impairment” or combination of impairments that has lasted for more than 12 months; (3) whether 23 the impairment “meets or equals” one of the listings in the regulations; (4) whether, given the 24 claimant’s RFC, she can still do her “past relevant work”; and (5) whether the claimant “can make 25 an adjustment to other work.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012), superseded 26 by regulation on other grounds; see 20 C.F.R. § 404.1520(a). 27 1 Here, at step one, the ALJ determined Plaintiff had not engaged in substantial gainful 2 activity since her amended alleged onset date of October 23, 2017. (AR 17.) At step two, the ALJ 3 concluded Plaintiff had the following severe impairments: spondylosis, depression, anxiety, DDD, 4 and ADHD. (Id.) The ALJ also determined that Plaintiff’s skin disorders were not severe. (AR 5 18.) At step three, the ALJ found Plaintiff’s impairments, or combination of impairments, did not 6 meet or equal any of the listed impairments in 20 C.F.R. Part 404, Subpt. P, App. 1 (the 7 “Listings”). (Id.) 8 Further, at step three the ALJ found Plaintiff had the residual functional capacity to 9 perform light work with the following limitations: 10 • be on her feet for six hours in an eight-hour day and seated for the remaining two hours; 11 • ability to sit down at least once per hour to be able to change positions; 12 • occasional pushing, pulling, climbing, balancing, stooping, kneeling, crouching or crawling; 13 • no temperature extremes, excessive levels of wetness or humidity; • no occupational hazards, unprotected heights, dangerous machinery, ropes, ladders 14 or scaffolds; 15 • limited to jobs involving no more than simple, routine, repetitive tasks that would have been performed in a low-stress work environment, defined as one involving 16 no high volume productivity requirements and very infrequent unexpected changes; • and no more than occasional interaction with the public, co-workers, and 17 supervisors. 18 (AR 20.) At step four, the ALJ determined Plaintiff could not perform her past relevant work. 19 (AR 24.) At step five, however, the ALJ found there were other occupations Plaintiff could 20 perform such as non-postal mail clerk, marker, and photocopying machine operator. (AR 24-25.) 21 For these reasons, the ALJ concluded Plaintiff was not disabled. (AR 26-27.) 22 The Appeals Council denied Plaintiff’s request for review of the ALJ’s decision on April 23 15, 2022, and thereby made the ALJ’s decision final. (AR 1-6.) Plaintiff then sought review in 24 this Court. (Dkt. No. 13.) In accordance with Civil Local Rule 16-5, the parties filed cross- 25 motions for summary judgment. (Dkt. Nos. 13-1, 14.) 26

27 1 II. Issues for Review 2 1. Whether the ALJ erred in determining Plaintiff’s residual functional capacity (RFC)? 3 a) Whether the ALJ erred in evaluating the medical evidence? 4 b) Whether the ALJ erred in rejecting Plaintiff’s subjective symptom testimony? 5 2. Whether the ALJ erred in relying on “incomplete and improper vocational testimony in 6 determining that [Plaintiff] can perform alternative occupations”? (Dkt. No. 13-1 at 2.) 7 a) Whether the ALJ “curbed [Plaintiff] counsel's right to cross-examine the 8 vocational witness”? (Id.) 9 3. Whether to remand for an award of benefits or further proceedings? 10 DISCUSSION 11 I. Medical Opinion Evidence 12 The Ninth Circuit has applied the Commissioner’s new regulatory framework for 13 evaluating medical opinions for applications filed on or after March 27, 2017. See Woods v. 14 Kijakazi, 32 F.4th 785, 789-792 (9th Cir. 2022); see also 20 C.F.R. §§ 404.1520c, 416.920c 15 (2017). The new framework eliminates a hierarchy of or deference to medical opinions, and 16 instead uses factors to determine the persuasiveness of a medical opinion. See Woods, 32 F.4th at 17 789-792. The factors are: “(1) supportability; (2) consistency; (3) relationship with the claimant; 18 (4) specialization; and (5) other factors, such as evidence showing a medical source has familiarity 19 with the other evidence in the claim or an understanding of our disability program’s policies and 20 evidentiary requirements.” P.H. v. Saul, No. 19-cv-04800-VKD, 2021 WL 965330, at *3 (N.D. 21 Cal. Mar. 15, 2021) (cleaned up) (quoting 20 C.F.R. § 404.1520c(a), (c)(1)-(5), § 416.920c(a), 22 (c)(1)-(5)). 23 The most important factors in evaluating the persuasiveness of medical opinions are 24 supportability and consistency. See Woods, 32 F.4th at 791 (citing 20 C.F.R. § 404.1520c(a)). 25 “Supportability means the extent to which a medical source supports the medical opinion by 26 explaining the relevant objective medical evidence.” Id. at 791-92 (cleaned up) (citing 20 C.F.R. § 27 404.1520c(c)(1)). “Consistency means the extent to which a medical opinion is consistent with 1 (cleaned up) (citing 20 C.F.R. § 404.1520c(c)(2)). The third factor—“relationship with the 2 claimant” encompasses “the length and purpose of the treatment relationship, the frequency of 3 examinations, the kinds and extent of examinations that the medical source has performed, ... and 4 whether the medical source has examined the claimant or merely reviewed the claimant’s 5 records.” Id. at 792 (citing 20 C.F. R. § 404.1520c(c)(3)(i)–(v)). The ALJ must explain how he 6 considered supportability and consistency, and may, but is not required to explain how he 7 considered factors three, four, and five. See id. at 792; see also 20 C.F.R. § 404.1520c(b)(2). 8 Under the new framework, the ALJ is no longer required to “provide specific and 9 legitimate reasons for rejecting an examining doctor’s opinion.” Woods, 32 F.4th at 787. Rather, 10 the ALJ’s decision must “simply be supported by substantial evidence.” Id. The “ALJ cannot 11 reject an examining or treating doctor’s opinion as unsupported or inconsistent without providing 12 an explanation supported by substantial evidence.” Id. at 792 (cleaned up). “The agency must 13 articulate how persuasive it finds all of the medical opinions and explain how it considered the 14 supportability and consistency factors in reaching these findings.” Id. (cleaned up) (citing 20 15 C.F.R. §§ 404.1520c(b), 404.1520c(b)(2). 16 Plaintiff argues the ALJ erred in discounting the opinion of her treating psychiatrist—Dr. 17 Julian Lagoy. In January 2021, Dr. Lagoy opined Plaintiff “[was] not able to return to her past 18 work or any type of work due to severe depression and anxiety.” (AR 1918.) Dr. Lagoy noted 19 Plaintiff’s “multiple [past] traumas hinder[ed] her from working again” and that Plaintiff could not 20 “carry out [job] tasks or interact with coworkers in a productive manner.” (Id.) A month later, in 21 a mental medical source statement, Dr. Lagoy diagnosed Plaintiff with major depressive disorder, 22 an unspecified anxiety disorder, post-traumatic stress disorder (PTSD), and ADHD. (AR 1920.) 23 In the same statement, Dr. Lagoy found Plaintiff possessed the following extreme3 limitations: 24 • ability to remember locations and work-like procedures; 25 • ability to understand and remember detailed instructions; 26 3 The definition of an “extreme” limitation is the “ability to perform designated work-related 27 mental functions, but will have limitations that impair the effective performance of the task • ability to carry out detailed instructions; 1 • ability to maintain attention and concentration for extended periods; 2 • ability to perform activities within a schedule, maintain regular attendance and be punctual within customary tolerances; 3 • ability to sustain an ordinary routine without special supervision; • ability to work in coordination with or proximity to others without being unduly 4 distracted by them; 5 • ability to make simple work-related decisions; • ability to complete a normal workday/workweek without interruptions from 6 psychologically based symptoms; • ability to ask simple questions or request assistance; 7 • ability to accept instructions and to respond appropriately to criticism from 8 supervisors; • restriction of understanding, remembering, or applying information; 9 • difficulty in interacting with others; • and deficiencies of concentration, persistence, or maintaining pace. 10 11 (AR 1921-23.) Due to Plaintiff’s impairments, Dr. Lagoy determined Plaintiff would be absent 12 from work more than four days per month. (AR 1923.) 13 The ALJ found Dr. Lagoy’s opinion unpersuasive because his opinion (1) “[was] 14 inconsistent with the claimant’s medical records during the relevant period that included 15 conservative treatment and generally normal examinations,” and (2) “ha[d] minimal relevance to 16 the relevant period.” (AR 24.) Plaintiff contends the ALJ’s rejection of Dr. Lagoy’s medical 17 opinion is not supported by substantial evidence. The Court agrees. 18 First, the ALJ’s conclusion that Dr. Lagoy’s opinion is “inconsistent with the claimant’s 19 medical records during the relevant period that included generally normal examinations” is not 20 supported by substantial evidence. (AR 24.) The ALJ determined Plaintiff’s mental status 21 examinations from November 2016 to January 2018 were “generally normal.” (AR 22.) 22 However, the ALJ erred by ignoring the contrary medical evidence and focusing instead on the 23 limited evidence which supported his finding of non-disability. See Holohan v. Massanari, 246 24 F.3d 1195, 1207 (9th Cir. 2001). “An ALJ may not cherry-pick evidence to support the 25 conclusion that a claimant is not disabled, but must consider the evidence as a whole in making a 26 reasoned disability determination.” Williams v. Colvin, No. ED CV 14-2146-PLA, 2015 WL 27 4507174, at *6 (C.D. Cal. July 23, 2015) (internal citations omitted). 1 Specifically, while the ALJ stated Plaintiff’s November 14, 2016 mental status 2 examination was “normal,” presumably based on Plaintiff’s report that she “fe[lt] overtly better” 3 and was in a “better mood,” the ALJ also acknowledged that at this same visit, Plaintiff received 4 diagnoses of recurrent major depressive disorder and general anxiety disorder. (AR 22, 976-80.) 5 The ALJ characterized Plaintiff’s July 7, 2017 examination as “normal except for the claimant 6 having tearful/unhappy affect, low insight and somewhat circumstantial thought process.” (AR 7 22.) A week later, after being referred to do so, Plaintiff completed psychiatry testing “due to 8 symptoms that may be consistent with ADHD,” including “problems focusing.” (AR 1080, 1083.) 9 And, following her July 20, 2017 ADHD screening evaluation, Plaintiff’s medications were 10 increased. (AR 1077.) The ALJ noted that in a July 26, 2017 examination, Plaintiff stated “she 11 did not experience depression,” but also acknowledged that in the same examination, Plaintiff 12 discussed having difficulty focusing and was diagnosed with ADHD. (AR 22, 1076.) Similarly, 13 the ALJ cited Plaintiff’s “normal” August 7, 2017 mental status examination, but Plaintiff’s “chief 14 complaint” for the examination was neck pain and a rash, not her mental impairments. (Compare 15 AR 22 with AR 1067-71.) Further, while the ALJ presumably relied on Plaintiff’s reported 16 “normal mood, behavior, motor activity, and thought processes,” the examination report also 17 indicates Plaintiff “plan[ed] to follow-up with psychiatry to discuss inattention and hyperactivity 18 symptoms.” (AR 1067-68.) 19 The ALJ found Plaintiff’s medications were “adjusted” on October 27, 2017 “due to her 20 complaints of having problems focusing,” and, indeed, the medications were increased as a result 21 of this visit. (AR 22, 1029-30.) The ALJ noted that the following month Plaintiff reported she 22 “fe[lt] calmer,” (AR 22), even though at her November 6, 2017 examination Plaintiff also reported 23 having continued anxiety and poor concentration. (AR 1022.) Plaintiff’s increased medications 24 were continued through Plaintiff’s January 4, 2018 examination—four days after the date last 25 insured. (AR 1014-15.) Lastly, regarding Plaintiff’s January 26, 2018 examination, less than one 26 month after the date last insured, the ALJ found Plaintiff’s “[m]ental status examination was 27 normal except for the claimant having anxious mood and fair impulse control, insight and 1 ADHD, major depressive disorder, and anxiety, among other things, and recommended increasing 2 the dosage of one of her medications when her side effects were controlled, and discontinued the 3 one medication Plaintiff did not believe she needed. (AR 1010-12.) 4 The above evidence does not support the ALJ’s decision to disregard Dr. Lagoy’s opinion 5 on the grounds it was inconsistent with the “generally normal examinations.” Those examinations 6 were not “generally normal,” but instead consistently identified Plaintiff’s ongoing mental health 7 symptoms, increased medication, and continued mental health diagnoses. The ALJ also did not 8 explain how the above history reflected “conservative” treatment. Because the ALJ relied on the 9 evidence that supported his conclusion of Plaintiff’s non-disability while ignoring medical 10 evidence in the very same reports that undermined his determination, the ALJ’s rejection of Dr. 11 Lagoy’s medical opinion is not supported by substantial evidence. See Holohan, 246 F.3d at 12 1207. 13 Second, while the ALJ stated Dr. Lagoy’s opinion had “minimal relevance to the relevant 14 period” because it was made “well after the date last insured,” it treated the opinion as if it had no 15 relevance at all. This finding is not supported by substantial evidence. In support of his decision 16 not to give any weight to Dr. Lagoy’s opinion, the ALJ noted that “Dr. Lagoy began treating the 17 claimant in January of 2021.” (Id.) Although Dr. Lagoy began treating Plaintiff and provided his 18 medical opinion in January and February of 2021—more than three years after the date last 19 insured— “it is well-settled that medical opinions made after the period for disability are relevant 20 to assess the claimant’s disability.” See Smith v. Bowen, 849 F.2d 1222, 1225 (9th Cir. 1988). 21 Further, Dr. Lagoy specifically identified Plaintiff’s mental impairment onset date as October 20, 22 2017. (AR 1923.) And the ALJ’s treatment of Dr. Lagoy’s opinion was inconsistent with his 23 treatment of Dr. Paxton’s review and opinion; the ALJ made no mention of Dr. Paxton’s opinion 24 being made more than two years after the date last insured. (AR 23.) See F.B. v. Kijakazi, No. 21- 25 01628-JCS, 2022 WL 4544202, at *8-9 (N.D. Cal. Sept. 28, 2022) (rejecting an ALJ supporting 26 one retrospective medical opinion, while rejecting another retrospective medical opinion that 27 conflicted with her findings). Indeed, “where medical opinions refer back to the same chronic 1 opinions were issued significantly after [the claimant’s date last insured] does not undercut the 2 weight those opinions are due.” Svaldi v. Berryhill, 720 F. App’x 342, 343-44 (9th Cir. 2017) 3 (internal citations and quotation marks omitted). Because Dr. Lagoy’s opinion was relevant to 4 assess Plaintiff’s disability, the ALJ needed to do more than merely point to Dr. Lagoy’s 5 examination occurring after the date last insured. See Smith, 849 F.2d at 1225-26. Medical 6 opinions and reports are “inevitably rendered retrospectively and should not be disregarded solely 7 on that basis.” Id. (collecting cases finding that “medical evaluations made after the expiration of 8 a claimant’s insured status are relevant to an evaluation of the pre-expiration condition.”). 9 The Commissioner’s reliance on out-of-circuit district court authority is unpersuasive. 10 (Dkt. No. 14 at 10 (citing Garcia v. Saul, 509 F. Supp. 3d 1306, 1313 (D.N.M. 2020); Ross v. 11 Berryhill, 385 F. Supp. 3d 767, 778 (W.D. Wisc. 2019).) In the Ninth Circuit, an ALJ cannot 12 disregard medical opinions merely because they were rendered after the date last insured. Smith, 13 849 F.2d at 1225. The cases are also distinguishable. In Garcia, the post-last-day-insured opinion 14 revealed the doctor did not purport to offer a retrospective opinion and had not reviewed the 15 plaintiff’s medical records. Garcia, 509 F. Supp. 3d at 1313. Here, Dr. Lagoy did make a 16 retrospective opinion and the ALJ made no finding as to whether Dr. Lagoy reviewed the medical 17 records. In Ross, the doctor had not recently treated the plaintiff. Ross, 385 F.Supp.3d at 778. 18 Here, Dr. Lagoy’s opinion was contemporaneous with his treatment of Plaintiff. 19 The Commissioner’s opposition also raises several other reasons why the ALJ might have 20 rejected Dr. Lagoy’s opinion, including the length of time he treated Plaintiff and that the record 21 did not affirmatively show Dr. Lagoy reviewed Plaintiff’s medical records. (Dkt. No. 14 at 10.) 22 The ALJ, however, did not give those reasons and thus they cannot be considered by this Court. 23 See Bray v. Commissioner of Social Security Admin., 554 F.3d 1219, 1225 (9th Cir. 2009) 24 (“[l]ong-standing principles of administrative law require us to review the ALJ’s decision based 25 on the reasoning and factual findings offered by the ALJ—not post hoc rationalizations that 26 attempt to intuit what the adjudicator may have been thinking.”). 27 *** 1 evidence. See Woods, 32 F.4th at 792. 2 II. Subjective Symptom Testimony 3 The Ninth Circuit has “established a two-step analysis for determining the extent to which 4 a claimant’s symptom testimony must be credited.” Trevizo v. Berryhill, 871 F.3d 664, 678 (9th 5 Cir. 2017). “First, the ALJ must determine whether the claimant has presented objective medical 6 evidence of an underlying impairment which could reasonably be expected to produce the pain or 7 other symptoms alleged.” Id. “Second, if the claimant meets this first test, and there is no 8 evidence of malingering, the ALJ can reject the claimant’s testimony about the severity of her 9 symptoms only by offering specific, clear and convincing reasons for doing so.” Lingenfelter v. 10 Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (cleaned up). If the ALJ’s assessment “is supported 11 by substantial evidence in the record, [courts] may not engage in second-guessing.” Thomas v. 12 Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (cleaned up). 13 Applying the two-step analysis, the ALJ first determined Plaintiff’s “medically 14 determinable impairments could reasonably be expected to cause the alleged symptoms.” (AR 15 20.) Because Plaintiff met the first part of the test, the ALJ was required to provide “specific, 16 clear and convincing reasons” for rejecting Plaintiff’s testimony regarding the severity of her 17 symptoms, or else find evidence of malingering. See Lingenfelter, 504 F.3d at 1036. The ALJ did 18 not find evidence of malingering, but found that Plaintiff’s “statements concerning the intensity, 19 persistence and limiting effects of [her] symptoms not entirely consistent with the medical 20 evidence and other evidence in the record.” (AR 21.) 21 The ALJ’s boilerplate conclusory rationale fails to satisfy the requirement that an ALJ 22 provide “specific, clear, and convincing reasons” supported by substantial evidence for rejecting 23 Plaintiff’s subjective symptom testimony. See Trevizo, 871 F.3d at 678 (finding the ALJ erred in 24 using “boilerplate language” for the adverse credibility finding rather than offering “specific, 25 clear, and convincing reasons.”); see also Brown-Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 26 2015) (holding the ALJ erred in failing to “specifically identify any such inconsistencies” and 27 instead stating “her non-credibility conclusion and then summariz[ing] the medical evidence 1 “not arbitrarily discredited,” the ALJ must “link [Plaintiff’s] testimony to the particular parts of 2 the record supporting [his] non-credibility determination.” Brown-Hunter, 806 F.3d at 494. 3 The ALJ’s rejection of Plaintiff’s subjective symptom testimony based on what he 4 described as a “course of medical treatment” that was “not consistent with disabling impairments,” 5 her “conservative treatment” through the date last insured, and a work history “not fully consistent 6 with the claimant’s allegations of disability,” are not clear and convincing reasons supported by 7 substantial evidence. (AR 21-22.) 8 First, the ALJ does not indicate what “course of medical treatment” is inconsistent with 9 disability impairments. To the extent the ALJ is relying on what he characterized as Plaintiff’s 10 “generally normal examinations,” this rationale is not supported by substantial evidence as 11 explained above. 12 Second, to the extent the ALJ relied upon Plaintiff’s “conservative treatment,” 13 conservative medical treatment can only be used as a basis for discounting a claimant’s testimony 14 when the ALJ identifies the more aggressive treatment options that were available and appropriate, 15 and considers the reasons the claimant did not pursue more aggressive treatment. See Orn v. 16 Astrue, 495 F.3d 625, 638 (9th Cir. 2007) (“[A]n adjudicator must not draw any inferences about 17 an individual’s symptoms and their functional effects from a failure to seek or pursue regular 18 medical treatment without first considering any explanations that the individual may provide, or 19 other information in the case record, that may explain infrequent or irregular medical visits or 20 failure to seek medical treatment.”) (internal citations and quotation marks omitted); see also 21 Cortes v. Colvin, No. 2:15-CV-2277 (GJS), 2016 WL 1192638, at *4 (C.D. Cal. Mar. 28, 2016) 22 (“[A]n ALJ errs in relying on conservative treatment if the record does not reflect that more 23 aggressive treatment options are appropriate or available.” (internal citations and quotation marks 24 omitted)). 25 Third, the ALJ failed to explain how Plaintiff’s work history undermines her subjective 26 testimony. In his brief discussion of Plaintiff’s work history, the ALJ found Plaintiff’s earning 27 history “unimpressive” and work history “not fully consistent with [Plaintiff’s] allegations of 1 earning history was relevant to his rejection of Plaintiff’s mental impairment symptom testimony. 2 The Commissioner argues Plaintiff’s post-disability onset date income indicates Plaintiff was not 3 as limited as she alleged because she was able to perform some work. (Dkt. No. 14 at 17.) The 4 ALJ, however, did not clearly articulate this rationale. The Court cannot consider the 5 Commissioner’s post-hoc explanation of the ALJ’s reasoning. See Bray, 554 F.3d at 1225. 6 Instead, the ALJ concluded that because Plaintiff applied for a job as a phlebotomist, she had a 7 “subjective belief that she was capable of performing some work.” (AR 21.) However, Plaintiff 8 did not complete her phlebotomy degree despite multiple attempts to pass required phlebotomy 9 courses. (AR 40, 245-51.) Additionally, the ALJ ignored Plaintiff’s hearing testimony, where she 10 stated she was unable to work due to intermittent pain, depression, and anxiety attacks. (AR 42- 11 43.) 12 In sum, the ALJ’s rejection of Plaintiff’s subjective symptom testimony does not satisfy 13 the “demanding clear and convincing standard.” Garrison, 759 F.3d at 1013. 14 III. Vocational Expert Testimony 15 Because the ALJ’s determination of Plaintiff’s RFC is not supported by substantial evidence, 16 the Court need not consider Plaintiff’s additional argument regarding the ALJ’s step-five analysis. 17 Particularly, the Court need not address Plaintiff’s vocal expert testimony arguments because the 18 Court’s order for further proceedings will result in new testimony. 19 IV. Harmless Error 20 Because the ALJ’s consideration of the medical evidence and subjective symptom testimony 21 is not supported by substantial evidence, the ALJ’s decision cannot stand. The ALJ’s errors here 22 go to the heart of the disability determination and are not harmless. “[A] reviewing court cannot 23 consider the error harmless unless it can confidently conclude that no reasonable ALJ, when fully 24 crediting the testimony, could have reached a different disability determination.” Stout v. Comm’r, 25 Soc. Sec. Admin., 454 F.3d 1050, 1056 (9th Cir. 2006). Had the ALJ not erred in evaluating the 26 medical opinion evidence and rejecting Plaintiff’s subjective symptom testimony, the ALJ could 27 have reasonably come to a different conclusion regarding Plaintiff’s RFC. See id. 1 V. Remand 2 Plaintiff asks the Court to remand the case for the payment of benefits or alternatively, for 3 further proceedings. (Dkt. No. 13-1 at 29.) When reversing an ALJ’s decision, “the proper course, 4 except in rare circumstances, is to remand to the agency for additional investigation or explanation.” 5 Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004). Remand for an award of benefits is proper, 6 however, “where (1) the record has been fully developed and further administrative proceedings 7 would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for 8 rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly 9 discredited evidence were credited as true, the ALJ would be required to find the claimant disabled 10 on remand.” Revels v. Berryhill, 874 F.3d 648, 668 (9th Cir. 2017) (internal quotation marks and 11 citation omitted). 12 Here, prong one is not satisfied because the record has not been fully developed. Because 13 the ALJ erred in discounting Dr. Lagoy’s opinion and rejecting Plaintiff’s subjective symptom 14 testimony to determine her RFC, there are outstanding issues that must be resolved before a final 15 determination can be made. Prong two has been satisfied because as discussed above, the ALJ gave 16 legally insufficient reasons for discounting Dr. Lagoy’s opinion and Plaintiff’s subjective symptom 17 testimony. The third prong is not satisfied because it is not clear from the record that the ALJ would 18 be required to find Plaintiff disabled if medical opinions were properly evaluated and Plaintiff’s 19 symptom testimony was properly credited. For instance, to determine Plaintiff’s disability status, 20 the ALJ should reconcile conflicting medical opinions, such as Dr. Lagoy’s and Dr. Paxton’s, and 21 other evidence in the record finding Plaintiff’s impairments could be addressed through work- 22 related limitations. Because the three elements are not met, further proceedings are warranted. 23 CONCLUSION 24 For the reasons stated above, the Court GRANTS Plaintiff’s motion, DENIES Defendant’s 25 cross-motion, and REMANDS for further proceedings consistent with this Order. Further, because 26 Plaintiff has not provided “evidence of bias, substantial delay, or other reason for disqualification,” 27 Plaintiff’s request for remand to a different ALJ is DENIED. See M.P. v. Kijakazi, No. 21-CV- 1 F.3d 853, 857-58 (9th Cir. 2001) (noting that “ALJs and other similar quasi-judicial administrative 2 || officers are presumed to be unbiased” and “this presumption can be rebutted by a showing of conflict 3 || of interest or some other specific reason for disqualification.”). Plaintiff has not shown that the 4 || ALJ’s behavior, in the context of the entire case, was “so extreme as to display clear inability to 5 || render fair judgment.” Rollins, 261 F.3d at 858 (citing Liteky v. United States, 510 U.S. 540, 551 6 || (1994)). 7 This Order disposes of Docket Nos. 13, 14. 8 IT IS SO ORDERED. 9 || Dated: April 25, 2023 10

JACQUELINE SCOTT CORLEY

12 United States District Judge

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