1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 San Francisco Division 11 C.L., Case No. 22-cv-06035-LB

12 Plaintiff, ORDER GRANTING PLAINTIFF’S

MOTION FOR SUMMARY

13 v. JUDGMENT AND DENYING

DEFENDANT’S CROSS-MOTION FOR

14 KILOLO KIJAKAZI, SUMMARY JUDGMENT 15 Defendant. Re: ECF Nos. 16, 21 16 17 INTRODUCTION 18 The plaintiff seeks judicial review of a final decision by the Commissioner of the Social 19 Security Administration denying her claim for social-security benefits under Titles II and XVI of 20 the Social Security Act. The plaintiff moved for summary judgment, seeking reversal and remand 21 without a rehearing of that decision.1 The Commissioner opposed the motion and filed a cross- 22 motion for summary judgment, and the plaintiff filed a reply.2 Under Civil Local Rule 16-5, the 23 matter is submitted for decision without oral argument. The court grants the plaintiff’s motion (in 24 part), denies the Commissioner’s cross-motion, and remands for further proceedings consistent 25 with this order. 26 27 1 Mot. – ECF No. 16. Citations refer to material in the Electronic Case File (ECF); pinpoint citations are to the ECF-generated page numbers at the top of documents. 1 STATEMENT 2 1. Procedural History 3 The plaintiff applied for Title II disability and disability insurance benefits and Title XVI 4 supplemental security income on July 15, 2019.3 The Commissioner denied her claim on 5 September 9, 2019, and upon reconsideration on June 11, 2020.4 The plaintiff asked for a hearing 6 before an Administrative Law Judge (ALJ) on June 13, 2020.5 On September 30, 2021, the ALJ 7 held a telephonic hearing and heard testimony from the plaintiff and a vocational expert (VE).6 8 The ALJ issued an unfavorable decision on October 20, 2021.7 On August 31, 2022, the Appeals 9 Council denied the plaintiff’s request for review, and the ALJ’s decision became the final 10 administrative decision.8 11 On October 13, 2022, the plaintiff commenced this action for judicial review regarding her 12 disability status.9 The parties each moved for summary judgment.10 All parties consented to 13 magistrate-judge jurisdiction.11 14 15 2. Medical Records 16 The plaintiff contended she was disabled because of the following conditions: lupus, chronic 17 depression, interstitial cystitis (IC), and carpal tunnel.12 The plaintiff was treated for these and 18 other conditions (including uterine bleeding and fibromyalgia) at Santa Clara Valley Medical 19 20 21 3 AR 16, 229–41. Administrative Record (AR) citations refer to the page numbers in the bottom-right hand corner of the AR. 22 4 AR 16, 132–36, 139–41. 23 5 AR 16. 6 AR 16, 40. 24 7 AR 16–32. 25 8 AR 1. 26 9 Compl. – ECF No. 1. 10 Mot. – ECF No. 16; Cross-Mot. – ECF No. 21; Reply – ECF No. 23. 27 11 Consents – ECF Nos. 8, 10. 1 Center and Stanford Hospital.13 Because the plaintiff challenges the ALJ’s finding that the 2 plaintiff’s IC, uterine bleeding, and fibromyalgia were not severe or medically determinable, this 3 order summarizes the plaintiff’s history with these conditions. The plaintiff also challenges the 4 ALJ’s consideration of the medical records, so this order summarizes the disputed opinions fully. 5 2.1 The Plaintiff’s Impairments the ALJ Found Non-Severe or Not Medically Determinable 6 Regarding the plaintiff’s IC, she had a cystoscopy procedure in January 2018 with results 7 consistent with IC. Her symptoms the following month included “urinary frequency every 15 8 min[utes] to 20 min[utes] and nocturia 3 times per night associated with urethral pain and bladder 9 pain.”14 In September 2019, the plaintiff reported her urinary frequency was four to five times per 10 night and every 30 minutes during the day. She used “3 pads daily” to control her symptoms.15 In 11 November 2019, the plaintiff’s symptoms had decreased with medication to urinary frequency two 12 times per night and at two-hour intervals during the day.16 In January 2020, the plaintiff reported 13 no side effects from her medication and a continued decrease in her voidance to one time per night 14 and at two “hour intervals” during the day.17 In July 2020, the plaintiff continued to report “no 15 significant side effects from the medication” and that her symptoms included “occasional urgency 16 when she waits too long to void” and urination frequency twice per night and at two to three hour 17 intervals during the day. Her doctor noted that she “can live a normal life.”18 In March 2020 and 18 2021, the plaintiff did have other remaining symptoms such as dysuria.19 19 As to the plaintiff’s abnormal uterine bleeding, on March 17, 2020, the plaintiff’s doctor wrote 20 that the plaintiff had been “concerned about excessively bleeding last year,” but the plaintiff had 21 22 23 13 AR 589–90, 621–22, 687, 704 24 14 AR 395–396. 25 15 AR 622. 26 16 AR 620. 17 AR 619, 632–34. 27 18 AR 678–79. 1 not bled since about January 15, 2020.20 The plaintiff took Provera once a month from March to 2 June 2020.21 In June 2020, her doctor wrote that the plaintiff’s abnormal bleeding was likely due 3 to “hormonal shifts” or “adenomyosis.”22 In July and August 2020, the plaintiff experienced 4 abnormal uterine bleeding whereby she experienced “heavy bleeding” and “two periods per 5 month.”23 The plaintiff again experienced abnormal bleeding in Murch and April 2021.24 In July 6 2021, she reported three weeks of “[l]ight then heavy bleeding.”25 Her doctor noted that she was 7 taking “Micronor consistently” to treat her abnormal uterine bleeding, but she missed three 8 consecutive doses in early April.26 9 Regarding the plaintiff’s fibromyalgia, in August 2019, her rheumatologist Dr. Barkha Amlani 10 diagnosed the plaintiff with fibromyalgia and noted that a Cymbalta trial could help with her 11 fibromyalgia-related chronic pain and depression.27 In December 2019, Dr. Amlani noted that the 12 Amitriptyline that the plaintiff was taking could also help with her fibromyalgia-related chronic 13 pain and depression.28 In June 2020, a different doctor, Dr. Umang Barvalia, wrote that the 14 plaintiff has had “chest pressure” since April 2019 but he was “not sure” if “‘lung issues’ or 15 fibromyalgia or SLE” were the cause. He also reported that the plaintiff cannot sleep on her back 16 because of pain, sleeps three to four hours per night, and takes anxiety medication to help her 17 sleep.29 In February 2021, the plaintiff started Cymbalta to treat her depression and anxiety, which 18 Dr. Abishek Reddy noted could also “provide [a] benefit for [her] fibromyalgia.”30 The plaintiff’s 19 20 20 AR 646. 21 21 AR 646, 743. 22 22 AR 744. 23 23 AR 704. 24 AR 824. 24 25 AR 881. 25 26 AR 882. 26 27 AR 607. 28 AR 589. 27 29 AR 723, 725. 1 doctors continued to report that she had fibromyalgia through June 2021.31 2 The plaintiff’s medical record also reflects other symptoms and conditions such as 3 depression,32 anxiety,33 fatigue,34 cognition or memory problems,35 and widespread pain.36 4 2.2 Dr. Reddy 5 Dr. Abishek Reddy is the plaintiff’s treating psychiatrist. The plaintiff started seeing a 6 clinician in the clinic where Dr. Reddy works on November 20, 2019. She started seeing Dr. 7 Reddy once every four weeks on February 3, 2021.37 8 Dr. Reddy’s notes from his appointment with the plaintiff on February 16, 2021 reflect that she 9 had anxiety, a history of sexual assault and self-harming behaviors, PTSD, difficulty sleeping, a 10 history of heavy alcohol use, hearing voices, and difficulties with “cognition and being able to 11 speak what is on her mind.”38 12 On March 3, 2021, Dr. Reddy saw the plaintiff for a telepsychiatry appointment. His notes 13 reflect that the plaintiff reported a “phobia of going to [the] doctor and getting blood work done” 14 and “panic related symptoms.” During the visit, the plaintiff mentioned that she had “only lasted 15 about [one hour]” in a job helping a friend as a “merchandizer” because she “started 16 hyperventilat[ing] and becoming short of breath.”39 Dr. Reddy found that the plaintiff was “not 17 considered [an] imminent risk for self-harm or harm to others” nor was she “gravely disabled.”40 18 On April 7, 2021, Dr. Reddy recorded that the plaintiff was “not doing too well,” and was still 19 “having difficulties sleeping and paranoia at night.” Dr. Reddy noted that the plaintiff felt that a 20

21 31 AR 892. 22 32 AR 530, 889–90, 603, 639, 661, 706, 764, 773, 776, 784. 23 33 AR 106, 513–14, 784, 799, 803, 807–08, 834, 902, 936. 34 AR 90, 106, 396, 451, 483, 488, 520, 827. 24 35 AR 106, 483, 804. 25 36 AR 79–80, 488, 520, 524, 589, 603, 764. 26 37 AR 792. 38 AR 803–04. 27 39 AR 797. 1 recent gynecology appointment set her back in overcoming her social anxiety. The plaintiff also 2 reported having “outbursts where she screams and fears she will alienate [her] family” and being 3 “afraid to do things outside [or] interact with others.”41 4 Dr. Reddy completed a residual functional capacity (RFC) questionnaire regarding the plaintiff 5 on April 15, 2021.42 Dr. Reddy found that “[b]ased on current mental health symptoms, [the 6 plaintiff] has sufficient impairment with focus and completing tasks, has severe anxiety and panic 7 attacks which make it difficult for her to perform adequately in [a] work setting and handle 8 stressors and change.” He also anticipated that the plaintiff’s impairments would cause her to be 9 absent from work more than four days per month and to need unscheduled fifteen-minute breaks 10 every one to two hours during an eight-hour workday.43 Despite these findings, Dr. Reddy found 11 that the plaintiff would be able to work on a full-time basis with limitations, but her conditions 12 would preclude her from certain work.44 13 On May 13, 2021, Dr. Reddy noted that the plaintiff was doing better with “not feeling too 14 fatigued,” still had some anxiety, reported being easily frustrated and angering easily, having 15 “vague hallucinations at bedtime,” and reported “improvement of depression.”45 On June 10, 16 2021, Dr. Reddy wrote that the plaintiff reported depressive symptoms but “overall report[ed] 17 improvement with psychiatric symptom burden.”46 On June 24, 2021, Dr. Reddy reported that the 18 plaintiff still had some problems with motivation, fatigue, and “inner voices.”47 On July 20, 2021, 19 Dr. Reddy wrote that the plaintiff felt “improvement in motivation,” was still experiencing “vague 20 hallucinations,” and reported “increased panic attacks and anxiety.”48 21 22 23 41 AR 936. 42 AR 791. 24 43 AR 794. 25 44 AR 795. 26 45 AR 928. 46 AR 926. 27 47 AR 920. 1 2.3 Dr. Covey 2 Dr. Elizabeth Covey is a state agency psychological consultant and was one of the doctors who 3 made the plaintiff’s disability determination at the reconsideration level.49 On June 10, 2020, Dr. 4 Covey reported that the plaintiff had three severe impairments: (1) systemic lupus erythematosus; 5 (2) depressive, bipolar, and related disorders; (3) anxiety and obsessive-compulsive disorders.50 6 Dr. Covey made these determinations based on an “Initial Mental Health assessment 10/19, with 7 notes through 4/2020” and found an RFC assessment to be necessary.51 Dr. Covey noted that the 8 plaintiff had the following symptoms: pain, weakness, understanding and memory limitations, 9 sustained concentration and persistence limitations, social interaction limitation, and ability to 10 adapt limitations. Dr. Covey found, however, that the plaintiff’s statements regarding her 11 symptoms were only “partially consistent” with the medical and non-medical evidence in the 12 record. As to medical opinions though, Dr. Covey found there was “no indication that there [was] 13 a medical opinion from any medical source.”52 14 In her Mental Residual Functional Capacity (MRFC), Dr. Covey found that the plaintiff has 15 “sustained concentration and persistence limitations” and an “adaptation limitation,” but that the 16 plaintiff does not have “social interaction limitations.”53 17 2.4 Dr. Linder 18 Dr. J. Linder is a state agency internal medicine consultant who made the plaintiff’s disability 19 determination at the initial level.54 On September 6, 2019, Dr. Linder found that the plaintiff had 20 two medically determinable impairments: (1) systemic lupus erythematosus and (2) depressive 21 bipolar and related disorders. Dr. Linder deemed the plaintiff’s systemic lupus erythematosus a 22 23

24 49 AR 28. 25 50 AR 107. 26 51 AR 108. 52 AR 109. 27 53 AR 111–12. 1 severe impairment.55 Dr. Linder recommended a “light RFC w[ith] env[ironmental] limitations” 2 and found the plaintiff has environmental limitations that required her to “[a]void even moderate 3 exposure” to “[f]umes, odors, dusts, gases, poor ventilation, etc.”56 Dr. Linder did not have 4 “sufficient vocational information to determine whether [the plaintiff] can perform any of [her] 5 past relevant work,” but concluded that the plaintiff is not disabled as she could adjust to light 6 work such as “[o]ther work with [the] combined impairments.”57 7 2.5 Dr. Dale 8 Dr. G. Dale is a state agency internal medicine consultant and was one of the doctors who 9 made the plaintiff’s disability determination at the reconsideration level. On June 5, 2020, Dr. 10 Dale confirmed the determination at the initial level that the plaintiff was not disabled but required 11 a light RFC.58 In particular, Dr. Dale found that the plaintiff could occasionally lift and/or carry 20 12 pounds, frequently lift and/or carry ten pounds, and stand and sit for a total of about six hours in 13 an eight-hour workday with normal breaks. Dr. Dale also found the plaintiff had an environmental 14 limitation because she needed to “avoid even moderate exposure” with “[f]umes, odors, dusts, 15 gases, poor ventilation, etc.”59 16 17 3. Non-Medical Evidence 18 3.1 Third-Party Function Reports of S.L. 19 The plaintiff submitted third-party function reports from her sister, S.L., on August 6, 2019, at 20 the initial level and on February 7, 2020, at the reconsideration level.60 S.L. said that the plaintiff 21 22 23

24 55 AR 73, 80–81. 25 56 AR 80, 83–84. 26 57 AR 84–85. 58 AR 107. 27 59 AR 109–10. 1 “cannot function,” is “always tired, upset, mad[,] sad[, or] frustrated,” and that her “physical 2 health is keeping her from going outside due to pain.”61 3 S.L. reported that the plaintiff’s daily activities consist of sleeping, walking her dog for five 4 minutes, drinking coffee but “barely” eating, and doctor appointments when scheduled.62 S.L. 5 described the plaintiff as “very happy, outgoing” and “independent,” and that she loved drives, 6 “visit[ing] new places, dancing, [and] eating at restaurants” before being diagnosed with lupus.63 7 With her illnesses, she receives visits from her sister, sons, and friends on a daily basis as 8 tolerated.64 The plaintiff’s mood swings affect her relationships, and the plaintiff prefers to stay 9 home alone.65 In her second report, S.L. described the plaintiff as “phobic about being in public.”66 10 As for hobbies, the plaintiff watches her pets and television but otherwise does not have hobbies.67 11 S.L. further explained that the plaintiff’s disabilities affect her sleep, necessitate that others 12 provide reminders for the plaintiff to take care of her personal needs and grooming, and render her 13 unable to pay her bills.68 S.L. also reported that the plaintiff “can only walk for a few minutes, [is] 14 hard of hearing, forgets things, cannot lift more than [ten pounds, and has] mobility issues and 15 shortness of breath.”69 Further, the plaintiff “is not able to handle stress, loses her patience quickly 16 and gets angry or sad.”70 In her second report, S.L. indicated that the plaintiff is “anxious at night” 17 and “says she sees things or hears noises and voices.”71 As for household tasks, S.L. wrote that 18 “cleaning the house is a challenge” because the plaintiff “tires easily” and is “sensitive to dust and 19 20 61 AR 289. 21 62 AR 289–90, 331. 22 63 AR 290, 296, 331. 23 64 AR 293. 65 AR 294, 335. 24 66 AR 330. 25 67 AR 293, 334. 26 68 AR 290–92, 332. 69 AR 294. 27 70 AR 295. 1 cleaning products.”72 S.L. also wrote that the plaintiff cannot go out alone because “[h]er body is 2 not stable, she’s fragile, she has vertigo, she’s anxious and afraid to be alone.”73 3 3.2 Observations of Social Security Claims Representatives G. Martinez and D. Tran 4 Two Social Security claims representatives, G. Martinez and D. Tran, provided Disability 5 Reports in connection with the plaintiff’s claim for disability and disability insurance benefits.74 6 Martinez observed that the plaintiff had difficulty talking, standing, and walking in a July 15, 2019 7 report. Martinez further wrote that the plaintiff “was constantly coughing,” “appear[ed] tired,” 8 “stood up slowly and walked away slowly,” and her “voice fade[d] as she [was] talking.”75 Tran 9 noted in a January 7, 2020, report that the plaintiff had difficulty breathing, concentrating, and 10 answering questions. Specifically, Tran described the plaintiff’s “difficulty express[ing] and 11 saying the information out to [Tran]” and that the plaintiff had a “cough and []difficulty breathing 12 while talking.”76 13 14 4. Administrative Proceedings 15 4.1 Disability-Determination Explanations 16 During the administrative process, state agency internal medical consultants generated two 17 disability-determination explanations, one for the plaintiff’s initial application and another at the 18 reconsideration level. The plaintiff filed an initial claim for disability on July 15, 2019, based on 19 the following conditions: lupus, chronic depression, IC, and carpal tunnel.77 20 At the initial level, the state doctors found the plaintiff’s systemic lupus erythematosus to be a 21 severe impairment.78 As explained above, Dr. Linder found the plaintiff required a light RFC for 22 23 72 AR 332. 24 73 AR 333. 25 74 AR 263, 315. 26 75 AR 264–65. 76 AR 316. 27 77 AR 76. 1 her physical conditions but was not severely impaired in terms of her psychiatric conditions.79 The 2 doctors found the plaintiff to be not disabled despite this impairment.80 3 Upon reconsideration, the state doctors found the following conditions to be severe: (1) 4 systemic lupus erythematosus; (2) depressive, bipolar, and related disorders; and (3) anxiety and 5 obsessive-compulsive disorders.81 The state doctors again found the plaintiff to be not disabled.82 6 4.2 Administrative Hearings 7 The ALJ held an administrative hearing on September 30, 2021, during which he heard 8 testimony from the plaintiff and a VE, Shannon Hollander. 9 4.2.1 Plaintiff’s Testimony 10 The ALJ and the plaintiff’s attorney questioned the plaintiff.83 The plaintiff testified that she 11 was born in 1971.84 She started the twelfth grade, but she did not finish high school nor complete 12 her GED or any other certification after high school.85 13 The plaintiff testified to her work history, beginning with her position as a housekeeper for 14 Marriott International in 2004 for about nine or ten months.86 The plaintiff then worked a series of 15 cashier and barista jobs until 2019 where she stocked items, prepped grab-and-go items, made 16 coffee, and had to lift between 50 and 75 pounds.87 Following her housekeeping job, the plaintiff 17 worked as a cashier in a Marriott coffee shop for almost eight years.88 In 2014, she worked for 18 Amtrak but left because she needed more hours.89 From 2016 to 2018, she worked at 19 20 79 AR 81–84. 21 80 AR 85. 22 81 AR 107. 23 82 AR 113. 83 AR 43–61. 24 84 AR 44. 25 85 AR 44–45, 54, 58. 26 86 AR 49. 87 AR 45–50. 27 88 AR 49–50. 1 Guckenheimer Enterprises until she started feeling sick and filed a workers’ compensation claim.90 2 She next worked at Frye’s Electronics for about four months working 40 hours per week in 2019 3 but left the job when she started having mobility issues.91 The plaintiff last worked in July 2019 as 4 a cashier at a juice bar for two weeks.92 5 The plaintiff also described her mental health conditions, including anxiety, hallucinations, 6 mania, bipolar and borderline personality disorders, depression, and PTSD.93 She has had these 7 conditions since she was a teenager, but her anxiety and other conditions reached their current 8 levels after she had a septic infection in September 2019 for which she had to be on a ventilator.94 9 To treat her conditions, the plaintiff sees a psychiatrist once a month and a therapist once a week 10 for about 45 minutes. She also takes medication for her depression, anxiety, bipolar disorder, and 11 mania. The medication has changed four times, but the plaintiff testified that it does not seem to 12 reduce her symptoms as she still “hear[s] voices,” “see[s] things,” and has anxiety. She testified 13 that she hears and cannot ignore about fourteen different clear voices that tell her to “not to take 14 [her] medication,” “tell [a] person not to look at me,” or “just to sleep.” She also sees things like 15 “bugs,” “shadows,” and “a person with horns that look like a . . . goat, but he actually stands up.”95 16 While the plaintiff had these symptoms before September 2019 and could not ignore them then, 17 she testified that she was able to work before September 2019 because she did not have the same 18 physical conditions nor was her PTSD and anxiety as bad as it has been since her septic 19 infection.96 Though she has a license, the plaintiff cannot drive because of her anxiety. Her sons 20 live nearby and visit every day to help with dogs, cleaning, laundry, and to drive her to run 21 errands.97 22 23 90 AR 47–49. 91 AR 45–46. 24 92 AR 46. 25 93 AR 50–51. 26 94 AR 51, 58. 95 AR 58–60. 27 96 AR 61. 1 The plaintiff testified to her physical conditions, including lupus, fibromyalgia, a uterine 2 condition (which she testified is endometriosis) where she bleeds 20–25 days a month, and IC.98 3 The plaintiff also had a history of heavy alcohol use, but she stopped drinking on September 4, 4 2019.99 The plaintiff testified that her IC is “a little bit controlled.”100 A rheumatologist at the San 5 Jose Medical Hospital diagnosed her with fibromyalgia. The plaintiff takes daily medication for 6 her fibromyalgia, but she testified that the medication does not really alleviate her symptoms 7 which include nerve pain and skin sensitivity.101 Regarding her lupus, doctors’ notes indicate that 8 the condition is inactive, but the plaintiff testified that she understands this to mean that her 9 condition does not require her to take stronger medication like steroids. She testified that she still 10 has pain “24/7” in her joints (her knees specifically) and fatigue.102 As a result of her conditions, 11 the plaintiff testified that she can walk for up to an hour, stand for about thirty minutes, sit in a 12 chair for forty-five minutes before needing to stand, carry about twenty-five pounds across a room 13 but only ten pounds consistently throughout the workday, cannot bend at the waist nor squat, and 14 can go up and down the stairs slowly.103 For the twenty to twenty-five days a month that she 15 bleeds, the plaintiff testified that she would need to use the bathroom every hour for about ten 16 minutes. The plaintiff also experiences side effects from the medication she takes, including 17 trouble concentrating, grogginess, dizziness, and nausea.104 18 When her attorney asked, the plaintiff testified that she could not perform a job where she 19 could sit or stand whenever she wanted to, lift about ten pounds, and perform simple and repetitive 20 tasks because she has “really bad general anxiety.”105 21 22 23 98 AR 50–52. 99 AR 56–57. 24 100 AR 52. 25 101 AR 52. 26 102 AR 52, 55–56. 103 AR 53, 54. 27 104 AR 56. 1 4.2.2 VE’s Testimony 2 VE Shannon Hollander testified at the September 30, 2021 hearing.106 The ALJ asked the VE 3 to classify the plaintiff’s prior work according to the Dictionary of Occupational Titles. The VE 4 described the plaintiff’s work as a counter attendant (light exertion level, SVP 3, semi-skilled, 5 performed up to the heavy exertion level) and housekeeper (heavy exertion level, SVP 2, 6 unskilled, performed at heavy).107 The plaintiff’s attorney questioned why the stocking component 7 of the plaintiff’s counter attendant jobs would not require a higher exertion level. The VE testified 8 that stocking is “typical for those jobs” and “it’s typically not heavy items” (i.e., items up to 9 twenty pounds rather than fifty as the plaintiff testified).108 10 The ALJ posed the first hypothetical to the VE: a person of the plaintiff’s age, education level, 11 and work experience who can “lift and carry, push and pull, 20 pounds occasionally and 10 12 pounds frequently, can stand and walk for six hours of an eight-hour workday, can sit for six hours 13 of an eight-hour workday,” “can frequently stoop, climb ramps and stairs, and balance,” “[c]an 14 occasionally kneel, crawl, and crouch, and climb ladders, ropes, and scaffolds,” “can understand, 15 remember, and carry out simple tasks but not at an assembly line rate, [and] can make simple, 16 work-related decisions,” but “must avoid concentrated exposure to extreme cold, extreme heat, 17 humidity, and pulmonary irritants, and should never be exposed to unprotected heights or 18 dangerous, unprotected machinery.”109 The VE testified that the hypothetical person could not 19 perform the plaintiff’s past work but could perform the following jobs: (1) “small parts 20 assembler,” (2) “electronics worker,” and (3) “inspector and hand packager.”110 21 The ALJ posed the second hypothetical to the VE. In addition to the conditions of the previous 22 hypothetical, the person can “only occasionally stoop, climb ramps and stairs, kneel, crawl, and 23 crouch, and can never climb ladders, ropes, or scaffolds,” can sit for six hours of an eight-hour 24

25 106 AR 62–69. 26 107 AR 62–63. 108 AR 69. 27 109 AR 63. 1 workday, and can stand for an eight-hour workday but would be required to sit for ten minutes 2 after every thirty minutes of standing or walking. The VE responded that the hypothetical person 3 could perform the same jobs as those listed previously, but there would be 75% fewer jobs 4 available. 111 5 The ALJ posed a third hypothetical to the VE: the individual “require[s] an allowance to be 6 off-task at least 20% of an eight-hour workday, in addition to regularly permitted breaks, due to 7 medical impairments.”112 The VE testified that no jobs are available to such a person because 8 regular breaks in unskilled employment are a “10-minute morning break, 30-minute lunch break, 9 and a 15-minute afternoon break.”113 The plaintiff’s attorney asked if ten-minute bathroom breaks 10 every hour would be permitted. The VE responded that they would not be permitted because while 11 “one to two additional breaks may be permitted but lasting no more than about five minutes,” 12 requiring a bathroom break “every hour would be excessive.”114 13 4.3 ALJ Findings 14 The ALJ analyzed the five-step process to determine whether the plaintiff was disabled and 15 concluded that she was not disabled from December 22, 2018, to the date of the ALJ’s decision.115 16 At step one, the ALJ found that the plaintiff did not engage in substantial gainful activity since 17 the alleged onset date of December 22, 2018.116 18 At step two, the ALJ found the plaintiff had the following severe impairments: systemic lupus 19 erythematosus (SLE), obesity, unspecified mood disorder, generalized anxiety disorder, and 20 PTSD. The ALJ found that the following diagnosed impairments were non-severe: IC, 21 pyelonephritis, acute epiglottitis, colitis, pancreatitis, mild obstructive airway disease, 22 hyperlipidemia, abnormal uterine bleeding, anemia, sensorineural hearing loss, and history of 23

24 111 AR 64–66. 25 112 AR 66. 26 113 AR 66–67. 114 AR 67. 27 115 AR 31. 1 polysubstance use.117 Finally, the ALJ found that the following impairments were not medically 2 determinable: neck pain, shoulder pain, knee pain, carpal tunnel syndrome, and fibromyalgia.118 3 At step three, the ALJ found that the plaintiff did not have an impairment or combination of 4 impairments that met or medically equaled the severity of a listed impairment.119 5 Before reaching step four, the ALJ determined the plaintiff’s residual functional capacity: 6 [T]he claimant has the residual functional capacity to perform light work . . . except the claimant can lift and carry, push and pull 20 pounds occasionally and 7 10 pounds frequently; can stand and walk for 6 hours of an 8 hour work day, for 30 minutes at time, with the option to sit at the work station for 10 minutes and 8 continue working after 30 minutes of standing or walking; can sit for 6 hours of 9 an 8 hour work day; and can occasionally stoop, climb ramps and stairs, kneel, crawl, and crouch, and never climb ladders, ropes, or scaffolds. She must avoid 10 concentrated exposure to extreme cold, extreme heat, humidity, and pulmonary irritants, and should never be exposed to unprotected heights or dangerous, 11 unprotected machinery. She can understand, remember, and carry out simple tasks but not at an assembly line rate; and can make simple work-related decisions.120 12 13 At step four, the ALJ found that the plaintiff was unable to perform any past relevant work.121 14 At step five, the ALJ found the following jobs were available to the plaintiff: (1) small parts 15 assembler, (2) data entry, (3) home.122 16 The ALJ found the plaintiff was “capable of making a successful adjustment to other work that 17 exists in significant numbers in the national economy” and concluded that the plaintiff was “not 18 disabled.”123 19 STANDARD OF REVIEW 20 Under 42 U.S.C. § 405(g), district courts have jurisdiction to review any final decision of the 21 Commissioner if the claimant initiates a suit within sixty days of the decision. A court may set 22 23 117 AR 19. 24 118 AR 21. 25 119 AR 22–24. 26 120 AR 24–29. 121 AR 29–30 27 122 AR 30–31. 1 aside the Commissioner’s denial of benefits only if the ALJ’s “findings are based on legal error or 2 are not supported by substantial evidence in the record as a whole.” Vasquez v. Astrue, 572 F.3d 3 586, 591 (9th Cir. 2009) (cleaned up); 42 U.S.C. § 405(g). “Substantial evidence is such relevant 4 evidence as a reasonable mind might accept as adequate to support a conclusion, and must be 5 more than a mere scintilla, but may be less than a preponderance.” Kitchen v. Kijakazi, 82 F.4th 6 732, 738 (9th Cir. 2023) (cleaned up). The reviewing court should uphold “such inferences and 7 conclusions as the [Commissioner] may reasonably draw from the evidence.” Mark v. Celebrezze, 8 348 F.2d 289, 293 (9th Cir. 1965). If the evidence in the administrative record supports the ALJ’s 9 decision and a different outcome, the court must defer to the ALJ’s decision and may not 10 substitute its own decision. Tackett v. Apfel, 180 F.3d 1094, 1097–98 (9th Cir. 1999). “Finally, [a 11 court] may not reverse an ALJ’s decision on account of an error that is harmless.” Molina v. 12 Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). 13 14 GOVERNING LAW 15 A claimant is considered disabled if (1) she suffers from a “medically determinable physical or 16 mental impairment which can be expected to result in death or which has lasted or can be expected 17 to last for a continuous period of not less than twelve months,” and (2) the “impairment or 18 impairments are of such severity that [she] is not only unable to do [her] previous work but 19 cannot, considering [her] age, education, and work experience, engage in any other kind of 20 substantial gainful work which exists in the national economy.” 42 U.S.C. § 1382c(a)(3)(A) & 21 (B). The five-step analysis for determining whether a claimant is disabled within the meaning of 22 the Social Security Act is as follows. Tackett, 180 F.3d at 1098−99 (citing 20 C.F.R. § 404.1520). 23 Step One. Is the claimant presently working in a substantially gainful activity? If so, then the claimant is “not disabled” . . . and is not entitled to benefits. If the 24 claimant is not working in a substantially gainful activity, then the claimant’s case cannot be resolved at step one, and the evaluation proceeds to step two. See 20 25 C.F.R. § 404.1520(a)(4)(i). 26 Step Two. Is the claimant’s impairment (or combination of impairments) severe? If not, the claimant is not disabled. If so, the evaluation proceeds to step three. See 20 27 C.F.R. § 404.1520(a)(4)(ii). Step Three. Does the impairment “meet or equal” one of a list of specified 1 impairments described in the regulations? If so, the claimant is disabled and is 2 entitled to benefits. If the claimant’s impairment does not meet or equal one of the impairments listed in the regulations, then the case cannot be resolved at step three, 3 and the evaluation proceeds to step four. See 20 C.F.R. § 404.1520(a)(4)(iii). 4 Step Four. Considering the claimant’s RFC, is the claimant able to do any work that he or she has done in the past? If so, then the claimant is not disabled and is not 5 entitled to benefits. If the claimant cannot do any work he or she did in the past, then the case cannot be resolved at step four, and the case proceeds to the fifth and 6 final step. See 20 C.F.R. § 404.1520(a)(4)(iv). 7 Step Five. Considering the claimant’s RFC, age, education, and work experience, is the claimant able to “make an adjustment to other work?” If not, then the 8 claimant is disabled and entitled to benefits. See 20 C.F.R. § 404.1520(a)(4)(v). If the claimant is able to do other work, the Commissioner must establish that there 9 are a significant number of jobs in the national economy that the claimant can do. 10 There are two ways for the Commissioner to show other jobs in significant numbers in the national economy: (1) by the testimony of a vocational expert or 11 (2) by reference to the Medical-Vocational Guidelines at 20 C.F.R., part 404, subpart P, app. 2. 12 13 For steps one through four, the burden of proof is on the claimant. At step five, the burden 14 shifts to the Commissioner. Gonzalez v. Sec’y of Health & Hum. Servs., 784 F.2d 1417, 1419 (9th 15 Cir. 1986). 16 ANALYSIS 17 The plaintiff contends that the ALJ erred by (1) finding the plaintiff’s fibromyalgia, interstitial 18 cystitis, and uterine bleeding impairments non-severe or not medically determinable at step two 19 and failing to consider them in his RFC analysis, (2) improperly considering the medical evidence, 20 (3) rejecting the plaintiff’s testimony, and (4) disregarding third-party witness statements. 21 1. Whether the ALJ Erred by Finding the Plaintiff’s Fibromyalgia, Interstitial Cystitis, and 22 Uterine Bleeding Disorder Non-Severe or Not Medically Determinable Impairments 23 The plaintiff argues that the ALJ erred in finding her IC and abnormal uterine bleeding non- 24 severe and her fibromyalgia not medically determinable. According to the plaintiff, the ALJ 25 improperly “h[eld] [her] to a higher standing than is required” by not supporting his findings with 26 substantial evidence and failing to include the impairments in his RFC analysis.124 The 27 1 Commissioner responds that the ALJ followed the appropriate standard, there was ample evidence 2 to support his findings, and any error was harmless.125 The court remands on this issue. 3 At step two of the five-step sequential inquiry, the ALJ determines whether the claimant has a 4 medically severe impairment or combination of impairments. Smolen v. Chater, 80 F.3d 1273, 5 1290 (9th Cir. 1996). The ALJ must consider the record as a whole, including evidence that both 6 supports and detracts from his final decision. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 7 1998). An impairment is not severe if it does not significantly limit the claimant’s mental or 8 physical abilities to do basic work activities. 20 C.F.R. § 404.1522(a). Basic work activities are 9 “abilities and aptitudes necessary to do most jobs,” including, for example, “walking, standing, 10 sitting, lifting, pushing, pulling, reaching, carrying, or handling.” Id. § 404.1522(b). 11 “[T]he step two inquiry is a de minimis screening device to dispose of groundless claims.” 12 Smolen, 80 F.3d at 1290 (citing Bowen v. Yuckert, 482 U.S. 137, 153–54 (1987)). Thus, “[a]n 13 impairment or combination of impairments can be found ‘not severe’ only if the evidence 14 establishes a slight abnormality that has no more than a minimal effect on an individual[’]s ability 15 to work.” Id. (cleaned up) (first citing SSR 85-28; then citing Yuckert v. Bowen, 841 F.2d 303, 306 16 (9th Cir. 1988)). 17 The first question is whether the ALJ erred in finding the plaintiff’s IC and abnormal uterine 18 bleeding to be medically determinable impairments but non-severe at step two. The plaintiff 19 argues that the ALJ did not consider Social Security Ruling (SSR) 15-1p in his analysis of the 20 plaintiff’s IC.126 The Commissioner responds that the plaintiff fails to identify how the ALJ’s 21 determination did not align with SSR 15-1p and that the ALJ “complied with the requirement that 22 IC be evaluated to determine whether it was a severe impairment.”127 The plaintiff also argues that 23 the ALJ held the plaintiff to an “impermissibly high standard” in determining that her abnormal 24 uterine bleeding was a non-severe impairment as “[t]here is no legal requirement that . . . she has 25 26 125 Cross-Mot. – ECF No. 20 at 2–5. 27 126 Mot. – ECF No. 16 at 18. 1 had a doctor provide an opinion on specific vocational limitations related to her conditions.”128 2 The Commissioner does not address this issue in the cross-motion.129 3 SSR 15-1p provides the standard for assessing cases involving IC. See SSR 15-1p, 2015 WL 4 1292257 (Mar. 18, 2015). “The Commissioner issues Social Security Rulings” that “do not have 5 the force of law,” but courts give them some deference because “they represent the 6 Commissioner’s interpretation of the agency’s regulations.” Holohan v. Massanari, 246 F.3d 7 1195, 1202 n.1 (9th Cir. 2001). To determine whether a claimant’s medically determinable 8 impairment of IC is severe at step two, SSR 15-1p states: 9 If we find that a person with IC has an MDI that meets the duration requirement, and the person alleges pain and other symptoms consistent with IC, 10 we must consider these symptoms in deciding whether the person’s impairment is “severe” at step 2 of the sequential evaluation process, and at any later steps 11 reached in the sequential evaluation process. If we find that the person’s pain, urinary urgency or urinary frequency, or other symptoms have more than a 12 minimal effect on a person’s ability to perform basic work activities, we must find 13 that the person has a “severe” impairment. 14 Id. at *8. Furthermore, “at the step two inquiry, . . . the ALJ must consider the combined effect of 15 all of the claimant’s impairments on her ability to function, without regard to whether each alone 16 was sufficiently severe.” Smolen, 80 F.3d at 1290; see also 42 U.S.C. § 423(d)(2)(B). 17 The ALJ found the plaintiff’s IC to be a non-severe impairment after describing the plaintiff’s 18 treatment and symptoms over two years. He also noted that the plaintiff’s “urologist concluded 19 that her interstitial cystitis was stable and well controlled with amitriptyline” in January 2020 and 20 “remained well controlled at her next urology follow up appointment in July 2020.”130 As to the 21 plaintiff’s abnormal uterine bleeding, the ALJ described several instances where the plaintiff 22 “experienced an episode of abnormal uterine bleeding,” but noted that “no doctor has noted any 23 vocational limitations related to her abnormal uterine bleeding.”131 24 The plaintiff claims that these impairments were severe because as a result of their combined 25 26 128 Mot. – ECF No. 16 at 19. 129 Cross-Mot. – ECF No. 20. 27 130 AR 19. 1 effect, she must the bathroom more frequently than a non-impaired individual, is fatigued, and has 2 disrupted sleep.132 3 The ALJ erred in failing to consider the combined effect of the plaintiff’s illnesses, failing to 4 accord sufficient weight to the plaintiff’s interstitial cystitis, and failing to consider the plaintiff’s 5 subjective reports of urinary issues. See Allende-Scott v. Astrue, No. CV 09-9404 CW, 2010 WL 6 4916594, *3–4 (C.D. Cal. Nov. 27, 2010) (Plaintiff’s IC improved initially with medication, but 7 she was subsequently hospitalized and the frequency of her “voidings had returned to every 10 8 minutes” before decreasing again to “about every hour” while on medication; held that the ALJ 9 erred in finding the plaintiff’s IC to be non-severe because the “hospitalization and the regression 10 of the plaintiff’s voiding frequency . . . call into question the stability of her treatment”); Sallee v. 11 Comm’r of Soc. Sec. Admin., No. CV-17-04504-PHX-DWL, 2019 WL 669797, at *2 (D. Ariz. 12 Feb. 19, 2019) (finding that ALJ had failed to identify any evidentiary support in the record for 13 conclusion of “minimal limitation” on ability to work). Also, the ALJ considered the progress 14 notes of Dr. Philip Mark Hanno but did not consider them in combination with other illnesses 15 suffered by the plaintiff and did not consider the plaintiff’s subjective description of her 16 symptoms. 17 The second question is whether the ALJ erred in finding the plaintiff’s fibromyalgia not 18 medically determinable. The plaintiff argues that the ALJ erred because there was sufficient 19 objective evidence in the record to establish that the plaintiff’s fibromyalgia was a medically 20 determinable impairment even though the plaintiff’s doctor did not administer a tender point 21 test.133 The Commissioner responds that record supported the ALJ’s determination because there 22 was no objective evidence to support fibromyalgia as a medically determinable impairment.134 23 Medically determinable impairments are “anatomical, physiological, or psychological 24 abnormalities that can be shown by medically acceptable clinical and laboratory diagnostic 25 26 132 Mot. – ECF No. 16 at 19. 27 133 Id. at 20. 1 techniques.” Tomasek v. Astrue, No. C-06-07805 JCS, 2008 WL 361129, at *14 (N.D. Cal. Feb. 2 11, 2008). That is, the impairment must “be established by medical evidence that consists of signs, 3 symptoms, and laboratory findings, and not only by an individual’s statement of symptoms.” Id. 4 Given that step two is a de minimis screening device, the plaintiff’s burden on these points is 5 “low.” Id. at *13. 6 Fibromyalgia is “a rheumatic disease that causes inflammation of the fibrous connective tissue 7 components of muscles, tendons, ligaments, and other tissue.” Benecke v. Barnhart, 379 F.3d 587, 8 589 (9th Cir. 2004). There are “no laboratory tests to confirm the diagnosis” of fibromyalgia, so 9 the “patients’ reports of pain and other symptoms” serve as the basis for a diagnosis. Id. 10 SSR 12-2p provides the criteria for determining whether a plaintiff’s fibromyalgia is a 11 medically determinable impairment. SSR 12-2p, 2012 WL 3104869 (July 25, 2012). The plaintiff 12 must provide evidence from a “licensed physician” that “document[s] that the physician reviewed 13 the person’s medical history and conducted a physical exam.” Id. at *2. The physician must 14 diagnose the plaintiff with fibromyalgia and that diagnosis must be consistent “with the other 15 evidence in the person’s case record.” Id. Furthermore, the physician must include evidence that 16 the plaintiff meets the 1990 American College of Rheumatology (ACR) Criteria for the 17 Classification of Fibromyalgia or the 2010 ACR Preliminary Diagnostic Criteria. Id. Under the 18 1990 ACR criteria, the plaintiff has fibromyalgia if (1) she has a “history of widespread pain” for 19 at least three months, (2) she has “[a]t least 11 positive tender points on physical examination,” 20 and (3) “other disorders that could cause the symptoms or signs were excluded.” Id. at *2–3. 21 Alternatively, the plaintiff meets 2010 ACR criteria if (1) she has a “history of widespread pain” 22 for at least three months, (2) she has “[r]epeated manifestations of six or more [fibromyalgia] 23 symptoms, signs, or co-occurring conditions, especially manifestations of fatigue, cognitive 24 memory problems (‘fibro fog’), waking unrefreshed, depression, anxiety disorder, or irritable 25 bowel syndrome,” and (3) “other disorders that could cause the symptoms or signs were 26 excluded.” Id. at *3. 27 The ALJ found that the plaintiff’s fibromyalgia was not medically determinable because 1 “perform[] a tender point examination or detail[] objective signs of fibromyalgia that comply with 2 the requirements of SSR 12-2p.”135 The parties do not dispute that the plaintiff’s doctor did not 3 perform a tender point examination.136 4 The plaintiff’s rheumatologist, Dr. Amlani, diagnosed the plaintiff with fibromyalgia after the 5 plaintiff reported pain in right shoulder pain, knees and heels, “significant fatigue,” “brain fog,” 6 and “worsening in pain all over.”137 Dr. Amlani also conducted a joint examination in which the 7 plaintiff’s right and left shoulders were tender.138 Dr. Amlani did not document that the plaintiff 8 had “six or more [fibromyalgia] symptoms, signs, or co-occurring conditions.” SSR 12-2p, 2012 9 WL 3104869, at *3. But the plaintiff cites evidence in the record of other symptoms and co- 10 occurring conditions, such as widespread pain, depression, anxiety, cognitive or memory 11 problems, blurred vision, and interstitial cystitis.139 12 The plaintiff has shown evidence, especially given her low burden at step two, that satisfies the 13 2010 ACR criteria. See Ford v. Saul, 950 F.3d 1444, 1155 n.7 (9th Cir. 2020) (affirming the ALJ’s 14 finding that the plaintiff’s fibromyalgia was not medically determinable where the doctor’s 15 diagnosis “consisted only of the single word ‘fibromyalgia,” and did not explain how [the 16 plaintiff] met either the 1990 or the 2010 criteria” and the plaintiff did not “point to evidence in 17 the record satisfying the 2010 criteria”). 18 In sum, the ALJ’s decision reflects step-two error on the severity and medical determinability 19 of some of the plaintiff’s impairments. This error was also not harmless because it factored into 20 the ALJ’s RFC assessment. The court therefore remands on this ground. 21 22 23 24

25 135 AR 22. 26 136 Mot. – ECF No. 16 at 21; Cross-Mot. – ECF No. 20 at 4. 137 AR 603. 27 138 AR 606. 1 2. Whether the ALJ Erred in Considering the Medical Evidence 2 The plaintiff argues that the ALJ erred in finding Dr. Reddy’s opinion unpersuasive, Dr. 3 Covey’s opinion persuasive, and Drs. Linder and Dale’s opinion “generally persuasive.”140 The 4 Commissioner contends that the ALJ properly credited or discredited the opinions of these four 5 doctors.141 The court partially remands on this ground. 6 The ALJ is responsible for “resolving conflicts in medical testimony, and for resolving 7 ambiguities.” Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014). In weighing and evaluating 8 the evidence, the ALJ must consider the entire case record, including each medical opinion in the 9 record, together with the rest of the relevant evidence. 20 C.F.R. § 416.920b; see Orn v. Astrue, 10 495 F.3d 625, 630 (9th Cir. 2007) (“[A] reviewing court must consider the entire record as a 11 whole and may not affirm simply by isolating a specific quantum of supporting evidence.”) 12 (cleaned up). 13 The Social Security Administration promulgated new regulations governing an ALJ’s 14 consideration of medical opinions, effective March 27, 2017. The new framework “eliminate[s] 15 the physician hierarchy, deference to specific medical opinions, and assigning weight to a medical 16 opinion.” V.W. v. Comm’r of Soc. Sec., No. 18-CV-07297-JCS, 2020 WL 1505716, at *14 (N.D. 17 Cal. Mar. 30, 2020) (cleaned up); 20 C.F.R. § 416.920c(a). Likewise, the Ninth Circuit’s previous 18 “requirement that ALJs provide ‘specific and legitimate reasons’ for rejecting a treating or 19 examining doctor’s opinion” is “incompatible with the revised regulations.” Woods v. Kijakazi, 20 32 F.4th 785, 792 (9th Cir. 2022). But the ALJ must still articulate how he or she considered every 21 medical opinion and how persuasive he or she finds each. Id.; V.W., 2020 WL 1505716, at *14; 20 22 C.F.R. § 416.920c(b). Persuasiveness is now evaluated based on five factors: “1) supportability; 2) 23 consistency; 3) relationship with the claimant; 4) specialization; and 5) ‘other factors.’” V.W., 24 2020 WL 1505716, at *13 (citing 20 C.F.R. § 416.920c(c)); Woods, 32 F.4th at 792 (factors 25 include “the length and purpose of the treatment relationship, the frequency of examinations, the 26

27 140 Mot. – ECF No. 16 at 23–26. 1 kinds and extent of examinations that the medical source has performed or ordered from 2 specialists, and whether the medical source has examined the claimant or merely reviewed the 3 claimant’s records”). 4 Supportability and consistency are the two most important factors, and the ALJ is required to 5 specifically address them. 20 C.F.R. § 416.920c(b)(2). “[A]n ALJ cannot reject an examining or 6 treating doctor’s opinion as unsupported or inconsistent without providing an explanation 7 supported by substantial evidence.” Kitchen, 2023 WL 5965704 at *5. Regarding supportability, 8 “[t]he more relevant the objective medical evidence and supporting explanations presented by a 9 medical source are to support his or her medical opinion(s) or prior administrative medical 10 finding(s), the more persuasive the medical opinions or prior administrative medical finding(s) 11 will be.” 20 C.F.R. § 416.920c(c)(1). Regarding consistency, “[t]he more consistent a medical 12 opinion(s) or prior administrative medical finding(s) is with the evidence from other medical 13 sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior 14 administrative medical finding(s) will be.” Id. § 416.920c(c)(2). 15 Unlike with supportability and consistency, the ALJ is not normally required to explain how 16 he or she considered the other factors. V.W., 2020 WL 1505716, at *14; 20 C.F.R. § 17 416.920c(b)(2). But the ALJ is required to do so where “two or more medical opinions or prior 18 administrative medical findings about the same issue are both equally well-supported . . . and 19 consistent with the record . . . but are not exactly the same.” 20 C.F.R. § 416.920c(b)(3). 20 First, in assessing the persuasiveness of Dr. Reddy’s opinion, the ALJ found that his opinion is 21 “inconsistent with the treatment records of the claimant’s former psychiatrist” and “unsupported 22 by his own treatment records.”142 This explanation is at least supported by substantial evidence, 23 even if a different result could also have been reached. 24 Second, another issue is whether the ALJ erred in finding Dr. Covey’s opinion persuasive. The 25 ALJ found that her opinion was “generally supported by her own review and analysis of the 26 available evidence” and that it was “consistent with the claimant’s recent psychiatric treatment 27 1 records and her self-reported activities of daily living.”143 The plaintiff argues that the ALJ 2 mentioned only two of Dr Covey’s opinions, but failed to address restrictions described by Dr 3 Covey. But the ALJ addressed supportability and consistency in a way supported by substantial 4 evidence. 5 Third, the plaintiff argues that the ALJ erred in finding the opinions of Drs. Linder and Dale 6 generally persuasive. The ALJ found their opinions “generally supported by their own review and 7 analyses of the available evidence” and “somewhat consistent with later evidence that shows the 8 claimant’s lupus because inactive with treatment.” The opinions were not totally persuasive 9 though, because they did “not contain adequate postural or environmental limitations.”144 The 10 plaintiff contends that these doctors’ findings were not well supported because they did not 11 mention all her diagnoses. The defendant responds that these doctors did not need to discuss the 12 symptoms of fibromyalgia and IC specifically because they were either non-medically 13 determinable or non-severe. As the court has found that the ALJ’s step-two analysis was error, the 14 ALJ can reconsider the opinions of Drs. Linder and Dale on remand. 15 16 3. Whether the ALJ Erred by Discounting the Plaintiff’s Testimony 17 In assessing a claimant’s credibility, an ALJ must make two determinations. Molina, 674 F.3d 18 at 1112, superseded by regulation on other grounds as stated in Thomas v. Saul, 830 F. App’x 19 196, 198 (9th Cir. 2020). “First, the ALJ must determine whether [the claimant has presented] 20 objective medical evidence of an underlying impairment which could reasonably be expected to 21 produce the pain or other symptoms alleged.” Id.; see also 20 C.F.R. § 404.1529(a). Second, if the 22 claimant produces that evidence, and “there is no evidence of malingering,” the ALJ must provide 23 “specific, clear and convincing reasons for” rejecting the claimant’s testimony regarding the 24 severity of the claimant’s symptoms. Molina, 674 F.3d at 1112 (cleaned up). 25 26

27 143 AR 28. 1 “The ALJ must state specifically which symptom testimony is not credible and what facts in 2 the record lead to that conclusion.” Smolen, 80 F.3d at 1284; Treichler v. Comm’r of Soc. Sec. 3 Admin., 775 F.3d 1090, 1102–03 (9th Cir. 2014) (in order to have a meaningful appellate review, 4 the ALJ must explain its reasoning; “[g]eneral findings are insufficient”); Burrell v. Colvin, 775 5 F.3d 1133, 1138 (9th Cir. 2014). “Factors that an ALJ may consider in weighing a claimant’s 6 credibility include reputation for truthfulness, inconsistencies in testimony or between testimony 7 and conduct, daily activities, and unexplained, or inadequately explained, failure to seek treatment 8 or follow a prescribed course of treatment.” Orn, 495 F.3d at 636 (cleaned up); see also 20 C.F.R. 9 § 416.929. And the court will “review only the reasons provided by the ALJ in the disability 10 determination and may not affirm the ALJ on a ground upon which he did not rely.” Garrison, 759 11 F.3d at 1010. 12 Here, for the reasons given by the plaintiff, the ALJ’s reasoning was not clear and convincing. 13 Because the court has already ordered remand on the step-two analysis, the ALJ can reconsider the 14 plaintiff’s symptom testimony on remand. 15 16 4. Whether the ALJ Erred by Disregarding Third-Party Witness Statements 17 The plaintiff contests the ALJ’s allegedly inadequate consideration of the plaintiff’s sister’s 18 testimony and the observations of Social Security claims representatives G. Martinez and D. Tran. 19 “Under the regulations that took effect in March 2017, an ALJ is not required to articulate how 20 he or she considered evidence from nonmedical sources.” Stephan v. Kijakazi, No. 22-cv-06021- 21 SK, 2023 WL 7284144, at *9 (N.D. Cal. Nov. 3, 2023) (citing 20 C.F.R. § 416.920c(d)); Melissa 22 G. v. Kijakazi, No. 21-CV-05803-SK, 2022 WL 4596623, at *7 (N.D. Cal. July 13, 2022) (same) 23 (family members are lay witnesses). 24 Given this standard, the ALJ’s consideration of the third parties’ testimony and observations 25 was not error. 26 27 ] 5. Whether the Court Should Remand for Further Proceedings or Determination of 2 Benefits 3 The court has “discretion to remand a case either for additional evidence and findings or for an 4 || award of benefits.” McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002); McAllister v. 5 || Sullivan, 888 F.2d 599, 603 (9th Cir. 1989) (“The decision whether to remand for further 6 || proceedings or simply to award benefits is within the discretion of [the] court.”). “[I]f additional 7 || proceedings can remedy defects in the original administrative proceeding, a social security case 8 should be remanded.” Garrison, 759 F.3d at 1019 (cleaned up). 9 Here, remand is appropriate to “remedy defects in the original administrative proceeding.” /d. 10 1] CONCLUSION 12 The court grants the plaintiff's motion (in part), denies the Commissioner’s cross-motion, and 13 || remands for further proceedings consistent with this order. This resolves ECF Nos. 16 and 21.

IT IS SO ORDERED.

3 15 Dated: March 31, 2024 LAE 16 SF

LAUREL BEELER

17 United States Magistrate Judge 18 19 20 21 22 23 24 25 26 27 28