Anderson v. Commissioner of Social Security Administration

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Emily N. Anderson,
Plaintiff,
v.
Commissioner of Social Security,
Defendant.
No. CV-24-00574-TUC-JGZ (EJM)
REPORT AND RECOMMENDATION
Pending before the Court is Plaintiff Emily Anderson’s Opening Brief (Doc. 18).
Defendant filed his Answering Brief (“Response”) (Doc. 20), and Plaintiff replied
(“Reply”) (Doc. 23). Plaintiff brings this cause of action for review of the final decision
of the Commissioner for Social Security pursuant to 42 U.S.C. §§ 405(g), 1383(c). Compl.
(Doc. 1).
Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure,1 this matter
was referred to Magistrate Judge Markovich for Report and Recommendation. Based upon
the pleadings of the parties and the administrative record submitted to the Court, the
Magistrate Judge recommends that the District Judge REVERSE and REMAND the
decision of the Commissioner.
I. BACKGROUND
A. Procedural History
This cause of action follows a previous federal case in which the Hon. Angela M.
1 Rules of Practice of the United States District Court for the District of Arizona.
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Martinez entered an Order reversing the decision of the ALJ and remanding to the
Commissioner of Social Security for further proceedings. Anderson v. Comm’r of Soc.
Sec. Admin., No. CV-22-00273-TUC-AMM, Order (D. Ariz. Sept. 12, 2023), ECF No. 21.
On February 15, 2024, the Appeals Council issued its order vacating the final decision of
the Commissioner and remanding the matter to an Administrative Law Judge (“ALJ”) for
“further proceedings consistent with the order of the court[,]” including an additional
hearing and “any further action needed to complete the administrative record and issue a
new decision.” See Administrative Record (“AR”) at 819.2 Plaintiff’s application prior to
remand was a Title XVI application for Supplemental Security Income (“SSI”) alleging
disability beginning June 15, 2016, due to bipolar, depression, post-traumatic stress
disorder (PTSD), multiple personality disorder, schizoaffective disorder, costochondritis,
and anxiety. See id. at 33, 35, 75, 77–78, 85, 89, 91–92, 101, 106, 111, 116, 218, 232–33,
244, 250, 268, 300, 687, 942. On September 5, 2024, following remand, a telephonic
hearing was held before ALJ Larry Johnson. Id. at 685, 753–80. On October 2, 2024, the
ALJ issued an unfavorable decision. Id. at 682–97. On December 2, 2024, Plaintiff filed
this cause of action. Compl. (Doc. 1).
B. Factual Background
Plaintiff was eighteen (18) years old at the time of the alleged onset of her disability,
and twenty-seven (27) years old at the time of her second administrative hearing. AR at
33, 39, 75, 77–78, 89, 91–92, 202, 218, 232–33, 250, 268, 300, 685, 695, 753. Plaintiff
did not graduate from high school, having left after completing the ninth grade. Id. at 75,
85, 89, 101, 245, 695. Plaintiff did not have relevant work prior to the alleged onset of her
disability. Id. at 695.
. . .
. . .
. . .
2 Page numbers refer to the page numbers demarcated in the Administrative Record rather
than the Court’s Case Management/Electronic Case Files (“CM/ECF”) page numbers.
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1. Plaintiff’s Testimony
a. Administrative Hearings
i. May 5, 2021
Plaintiff testified that her past work included four (4) days at Walmart in 2018 and
approximately a week volunteering at K9 Corral. AR at 52–53. Plaintiff explained that
she experienced a mental health crisis at Walmart, which resulted in her quitting. Id. at
53–54. Plaintiff described seeing a customer who looked like her abuser, triggering her,
and resulting in one of her alternate personalities to come forward and take her to human
resources.3 Id. at 53–54. Plaintiff further testified that when she was triggered by the
customer, she experienced intense anxiety, her chest was tight, she had difficulty breathing,
her hands shook, and she could not focus. Id. at 54. Plaintiff stated that at that point she
switched to one of her alternate personalities. Id. Plaintiff explained she has four (4)
alternate personalities—Tiffany, Rose, Dexter, and Claire—and she (Emily) experiences a
black out when one of her alters takes over. AR at 54–56.
Plaintiff described getting overwhelmed with people coming in, pressure from her
boss causing intense anxiety, and a certain smell reminding her of her abuser resulting in a
PTSD reaction. Id. at 56. Plaintiff reported that she has suffered abuse from the age of ten
(10), with the primary perpetrator as her father, but also included a great-uncle, her fifth
grade teacher, and a student teacher in seventh grade. Id. at 56–57. Plaintiff confirmed
that her relatives had wanted her to get in touch with her father. Id. at 57. Plaintiff noted
that a couple of weeks prior, her father was trying to get in touch with her, allegedly to
make sure she was safe. Id. She told him that she was safe and requested no further contact,
which he had respected to that point. AR at 57.
Plaintiff testified that she quit school in the tenth grade and had never gotten a GED.
Id. at 58. Plaintiff further testified that she receives help from her mom and was able to
get food stamps. Id. Plaintiff confirmed that she currently lives with her mother. Id.
Plaintiff stated that she lived with her boyfriend and a roommate up until March of that
3 Alternate personalities are also referred to as an “alter,” singular, or “alters” plural.
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year. Id. Plaintiff estimated that she had lived with her boyfriend off and on for a couple
of years. AR at 58. Plaintiff reported that he worked outside of the home, including a call
center and Circle K. Id. at 58–59.
Plaintiff denied ever having a driver’s license or trying to get one. Id. at 59. Plaintiff
testified that either her boyfriend, his mother, or her mother drive her to appointments, and
on occasion she has taken Uber for which her mother scheduled and paid. Id. at 59–60.
Plaintiff noted that she had not taken public transportation, in part because she has not
needed to, and in part because her appointments are often telephonic. Id. Plaintiff testified
that she sees her therapist every Monday (either in person or over the telephone) and has
monthly appointments with her psychiatrist, Reggie, at the Well Being Institute. AR at 60.
Plaintiff further testified regarding medications; however, the medication names did not
transcribe. Id. at 60–61.
Plaintiff testified that her personalities started showing up when she was
approximately fourteen (14) or fifteen (15) years old, and they have become more intrusive
over the years. Id. at 61. Plaintiff explained that she was first diagnosed with Dissociative
Identity Disorder (DID) when she was about fourteen (14) because although she hears
voices with her schizoaffective disorder, her alters each have a separate voice and her
therapist at that time directed her to a specialist. Id. at 61. Plaintiff further explained that
the voices from her schizoaffective disorder were more like noise, rather than anyone she
knows. Id. Plaintiff testified that her daily routine varies, because some days she cannot
get out of bed, but on others she does artwork, watches movies and Netflix, and plays video
games. AR at 61. Plaintiff conveyed that she is a self-taught artist, primarily drawing with
pencil on a sketch pad, but her mom recently gave her a tablet for digital art. Id. at 61–62.
Plaintiff reported drawing cartoonish characters and was practicing drawing animals. Id.
at 62. Plaintiff further testified that the video games she plays are online; however, they
are not with other players—she plays alone. Id. Plaintiff also testified that she tries to
clean up after herself around the house or do the dishes, but denied doing any yardwork.
Id. at 62.
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Upon questioning by her counsel, Plaintiff described having thoughts of self-harm
nearly every day, and that she engages in self-harm annually at a minimum. AR at 63.
Plaintiff testified that she also hallucinates daily. Id. Plaintiff explained that she
experiences the almost constant sound of talking in another room, but sometimes she sees
animals and flowers talking out of the wall. Id. Plaintiff acknowledged that at times her
hallucinations become more intrusive and “creepy,” for example, a phantom rushing at her.
Id. at 63–64. Plaintiff confirmed that she had taken Abilify, Zoloft, and Lorazepam
previously, and was currently taking Seroquel; however, although it helps, it does not get
rid of the hallucinations entirely. Id. at 64. Plaintiff reported that she and her psychiatrist
were working to determine the correct dose. AR at 64. Plaintiff denied having tried
Lithium. Id. Plaintiff described her understanding of her alternate personalities comes
from others, especially her mother. Id. Plaintiff further described an incident where
Tiffany was extremely angry and tried to come out and was hunched over in her room;
when her mother came to check on her (Emily), Tiffany was in control and yelled at her
mom to go away and get out. Id. at 65. Plaintiff’s mom and boyfriend have described their
interactions with her personalities, which is how she knows what each is like. Id. Plaintiff
testified that her triggers are anything involving fathers; sexual things; certain smells,
especially certain men’s cologne; anxiety or other negative emotions, such as sadness;
feeling overwhelmed in crowds; drugs and alcohol; and school. AR at 65. Plaintiff
explained that she has been diagnosed over the years with DID, PTSD, schizoaffective
disorder, and depression, plus anxiety and bi-polar disorder. Id. at 66. Plaintiff remarked
that these confirmed diagnoses make life generally overwhelming for her. Id. She
observed that she can become overwhelmed even when doing something she enjoys while
alone. Id.
The ALJ asked her why school was triggering, and Plaintiff further explained that
it was where she suffered abuse throughout the end of fifth grade. Id. Plaintiff reflected
that she thinks because this happened to her at school, she cannot deal with it. AR at 66.
The ALJ also asked about whether she had learned how to deal with her triggers, and
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Plaintiff observed that she has some coping mechanism but does not view those as dealing
with the triggers. Id. Plaintiff agreed with the ALJ’s assessment that when things trigger
her, she cannot function. Id. at 67. Plaintiff testified that she has had years of therapy, and
just now has found one that feels like a good fit. Id. Plaintiff acknowledged that the
medication helps, but it has not resolved her hallucinations. Id. Plaintiff further
acknowledged having past difficulty with medication compliance, and explained that
Tiffany did not like how the medication made them feel, so she would come out when it
was time to take it or possibly hide it. AR at 67. Additionally, Plaintiff noted that
sometimes she feels too overwhelmed with things, and she will forget to take her
medication. Id. Plaintiff described that now she sets an alarm and has her mother help her,
so she can maintain her evening medication schedule. Id. Plaintiff confirmed that this has
improved her mental health; however, she still experiences daily hallucinations, has alters,
and struggles daily. Id. at 68. Plaintiff reiterated that when she lived with her boyfriend,
they had another roommate. Id. Plaintiff confirmed that she and her boyfriend were still
together, and had been since high school—approximately seven (7) years. AR at 68.
ii. September 5, 2024
Plaintiff confirmed that her alleged onset date is June 15, 2016 and denied having
had any earnings or income since that date. AR at 763. Plaintiff also confirmed that she
is currently receiving mental health counseling at CODAC. Id. Plaintiff conveyed that she
is treated by a psychiatrist at CODAC, and she sees her once a month, but sometimes twice
per month or more based on need. Id. Plaintiff reported that she is taking medication,
which have changed in the past year; however, her symptoms have not improved. Id. at
763–64. Plaintiff explained that her symptoms relate to her anxiety, auditory and visual
hallucinations, and PTSD. Id. at 764. Her symptoms include nightmares and flashbacks,
as well as extreme paranoia when she goes outside. AR at 764. Plaintiff observed that she
nearly has a panic attack every time she tries to go outside. Id.
Plaintiff described her panic attacks as causing difficulty breathing—she feels short
of breath, has chest pain and tightness, her vision becomes unfocused and blurry, and
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sometimes she is unable to move. Id. Plaintiff noted that the severity of the attack plays a
role in the symptoms she suffers. Id. Plaintiff further conveyed that her hands tremble,
but when she sits down to try and calm herself, her legs bounce making it very difficult to
calm down. Id. Plaintiff stated that she normally has a family member or friend with her
to assist in calming her. AR at 764. Plaintiff estimated that these panic attacks last from
approximately five (5) to ten (10) minutes. Id. at 764–65. Plaintiff observed that she used
to suffer panic attacks a couple of times per week; however, now she seems to have one
daily. Id. at 765. Plaintiff recognized that the attack frequency is dependent on her stress
levels and anxiousness surrounding whatever triggered the attack. Id. Plaintiff identified
her triggers for panic attacks as going outside or interacting with the public, having a
flashback of her trauma, and stress; however, she further observed that sometimes they
happen for no reason. Id. Plaintiff explained that she experiences stress when she has a
plan of doing something with someone and it gets interrupted or changed; she also
experiences stress when she does not know what the plan is; she becomes irritable and
frustrated when things change; if she has an event to attend, such as a doctor’s appointment
or the hearing, she becomes stressed and is unable to focus on anything; financial burdens,
such as having to pay for her medications are extremely stressful; and speaking publicly
with people is also stressful. AR at 766.
Plaintiff described how she experiences flashbacks of her trauma, noting that they
feel like it physically just happened. Id. When this occurs, she will have a panic attack
and will not be able to calm herself down or focus. Id. Plaintiff remarked that these
occurrences are very intense. Id. Plaintiff explained that the trauma causing her flashbacks
are surrounding her sexual and other physical abuse. Id. at 767. She stated that the initial
flashback is generally anywhere from a couple of seconds to a minute where it is just
continuously playing in her head, then she experiences the memory physically, which is
like having to relive it all over again. AR at 767. The effects of reliving the trauma may
stay with her for the remainder of the day or even weeks afterward. Id. Plaintiff noted
these effects include being stressed; an inability to focus; paranoia that something like that
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is going to happen again; and hypervigilance for any top of danger. Id. Plaintiff described
that her paranoia can become so severe that she isolates in her room and places a chair
against her door to prevent intrusion. Id. Plaintiff explained that her difficulty going
outside is in leaving her house. Id. She observed that this fear derives from not knowing
what will happen, and relates to her PTSD and paranoia causing a continuing worry that
something bad is going to happen to her. AR at 767. Plaintiff testified that her triggers
include certain smells such as cigars; crowds of people going to an unknown place with an
unknown amount of people—Plaintiff reflected that it was the people that were at the root
of this trigger; and loud sounds, such as thunder which she described as a “big trigger.” Id.
at 768. Plaintiff acknowledged that her understanding of her triggers remained a work in
progress. Id.
Plaintiff explained that she has costochondritis, which is inflammation of the
sternum causing a tight, sharp pain. Id. She noted that it occasionally flares up, especially
if it is overcast or the weather is “weird” because of the barometric pressure. Id. Plaintiff
observed that it can be debilitating because all she can do is lay down and wait for it to go
away. AR at 768.
Plaintiff described her living situation as living with her mother and nana. Id. She
noted that she occasionally goes to her uncle’s home and stays with him, as well as her
cousin who lives there. Id. Primarily, however, she lives with her mother and nana. Id.
Plaintiff testified that she does not do much with her time because of “how debilitating
everything is.” Id. at 768–69. She will try to watch something if she feels up to it, but her
energy levels vary from day to day. AR at 769. On low energy and high pain days, Plaintiff
testified she is only able to lay down and survive; however, on days when she is feeling
better, she will have someone help her make food or draw, but she is unable to enjoy those
activities anymore. Id.
Plaintiff testified that within the last couple of years, her body pain has gotten worse,
and since May she has been experiencing severe headaches that leads to a migraine and
widespread body pain, encompassing both her joints and muscles. Id. She observed that
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this also flares when the weather is a certain way with the air pressure or when she performs
any type of physical activity. Id. Plaintiff further testified that she can no longer do dishes
without pain or help. Id.
Plaintiff also testified that there is not much that she enjoys doing anymore, when
she tries “it’s just not there.” AR at 769. Plaintiff reported that she has tried drawing,
playing video games, watching shows, and dressing up. Id. She observed that it all ends
up stressing her out more than she enjoys the activity—she cannot do anything for more
than ten (10) to twenty (20) minutes without getting so overwhelmed or unable to find any
joy in the activity that she just stops. Id.
Upon questioning by counsel, Emily described that when she experiences anxiety
that is triggered by changes in her routine or plans, she becomes extremely upset to the
point of tears and is unable to accept it without “putting up a fight.” Id. at 770. She
observed that she gets really anxious and cries, becomes very irritable, and then finds it
hard to let go. Id. This results in abandoning the new plan or whatever the new routine or
plan might be. AR at 770. Plaintiff testified that her depression is such that she isolates in
her room almost daily, and estimated she will stay there for between two (2) and six (6)
hours. Id. at 770–71. During this time, she is unable to focus on anything and is isolating
to avoid talking to anyone, as well. Id. She described that she will lay in her room and
does not have sufficient energy to bring herself to do or focus on anything. Id. at 771.
Plaintiff reiterated her inability to accomplish anything during these periods. Id.
Plaintiff further described that if she has a flashback while doing a task, she is unable
to complete that task. AR at 771. Plaintiff noted that a flashback may cause her to drop
whatever she is holding, and observed that she has broken more than one dish as a result
of experiencing a flashback while doing the dishes. Id. Plaintiff reported having
flashbacks every day. Id. Plaintiff also reported experiencing migraines daily and noted
that they were getting worse. Id. Plaintiff described her migraines as starting as a headache
in the morning but developing into a migraine by the evening/night. Id. at 772. Plaintiff
reiterated that the headache pain worsens throughout the day and interferes with her focus,
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culminating in a need to lay down in a dark room. AR at 772. Plaintiff further described
widespread joint and body pain, which increases with even a small amount of physical
activity. Id. Plaintiff confirmed that she recently discussed her pain with her doctor, who
prescribed new medications to try. Id. at 773. Plaintiff acknowledged that when she goes
to the doctor or another appointment, she needs someone to accompany her because she is
extremely fearful. Id. This fear has also interfered with her ability to maintain her friend
relationships. Id.
b. Administrative Form: Function Report—Adult
i. August 1, 2019
On August 1, 2019, Plaintiff completed a Function Report—Adult. AR at 258–66.
Plaintiff reported that she lives in an apartment with friends. Id. at 258. Plaintiff described
the limitations caused by her medical conditions as follows:
I am just unable to focus due to hallucinations, alt[e]rs, and PTSD. I get
panic attacks, mostly caused by PTSD. This makes it very difficult to handle
customers.
Id. Plaintiff further described her typical day to include staying at home; drawing;
cleaning, if she is able; going on her laptop; and sleeping a lot during the day, because she
is up at night due to her sleep patterns, as well as PTSD. Id. at 259. Plaintiff denied taking
care of other people, but does care for her pet which entails feeding and playing with her
ferret, as well as cleaning her cage. Id. Plaintiff noted that her boyfriend helps her with
the pet care. AR at 259.
Plaintiff reported that prior to her illnesses, she was able to interact with others and
do tasks that were given to her. Id. Plaintiff described having trouble sleeping or falling
asleep due to hallucinations and PTSD, noting that she “get[s] bad anxiety.” Id. Plaintiff
reported that she needs phone alarms or reminders from her boyfriend, as well as occasional
assistance from him, to complete personal care tasks. Id. at 260. Plaintiff also noted that
she needs reminders to take her medications. Id.
Plaintiff reported preparing food, such as mac and cheese, sandwiches, and frozen
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meals, on a daily basis. AR at 260. Plaintiff estimated that food preparation takes her from
ten (10) to thirty (30) minutes, noting that since the onset of her illnesses it takes her longer
to focus. Id. Plaintiff reported that she does cleaning and laundry. Id. at 261. Plaintiff
observed that these activities can take her hours to complete if she cannot focus, and
sometimes the entire day. Id. Plaintiff noted that she needs reminders and reassurance to
assist her in completing these tasks. Id. Additionally, Plaintiff reported that her
costochondritis causes chest pain preventing her from doing yardwork. AR at 261.
Plaintiff stated that she does not go outside very often, estimating that she goes out
once every few days. Id. Plaintiff reported that when she goes out she either walks or rides
in a car. Id. Plaintiff further reported being unable to go out alone, because she suffers
horrible anxiety and her attacks are more frequent if she does. Id. Plaintiff stated that she
does not drive and has never taken the test. Id. Plaintiff confirmed that she shops in stores
and online, purchasing food; drawing supplies; household products; and hygiene products.
AR at 261. Plaintiff estimated that she performs these tasks once or twice per week, and
depending upon the task it can take hours. Id. Plaintiff reported that she cannot pay bills,
handle a savings account, or use a checkbook/money orders, because she has no assets;
however, she is able to count change. Id. at 262. Plaintiff denied that her ability to handle
money has changed since the onset of her illnesses. Id.
Plaintiff listed her hobbies and interests as including drawing, crafting, cosplay,
watching shows, and playing games. Id. Plaintiff expressed that she tries to do these things
daily, but has difficulty focusing. AR at 262. Plaintiff described an inability to focus,
becoming stressed easily, and finding little to no enjoyment as changes since the onset of
her illnesses that impact her hobbies and interests. Id. Plaintiff confirmed spending time
with others talking or getting food, on a daily or weekly basis. Id. Plaintiff listed the places
she goes regularly to include Walmart, but not daily, and Whole Health Clinic for therapy.
Id. Plaintiff noted that she needs reminders to go places, and tries to go weekly or as much
as she is able. AR at 262. Plaintiff confirmed that she needs someone to go with her when
she goes out. Id.
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Plaintiff described having problems getting along to others, because sometimes she
is easily irritated or stressed and has trouble relating. Id. at 263. Plaintiff also described
getting in arguments more easily, as well as having difficulty making and keeping friends
since the onset of her illnesses. Id. Plaintiff noted that her illnesses affect her ability to
lift, talk, remember, complete tasks, concentrate, understand, follow instructions, and get
along with others. Id. Plaintiff reported that she can lift up to fifteen (15) pounds without
pain, has trouble finishing sentences, is forgetful, cannot finish many tasks, cannot focus
or understand, and has difficulty getting along with others. AR at 263. Plaintiff is right
handed, and can walk a few blocks before needing to rest for approximately ten (10)
minutes. Id. Plaintiff estimated that she can pay attention for a maximum of ten (10) to
twenty (20) minutes and is unable to finish what she starts. Id. Plaintiff reported that she
as difficulty following both written and spoken instructions. Id.
Plaintiff described her ability to get along with authority figures as “mostly okay”;
however, she noted her distrust of teachers. Id. at 264. Plaintiff denied having been fired
or laid off from a job due to her interpersonal skills. AR at 264. Plaintiff conveyed that
she does not handle stress well, and observed that it usually leads to a panic attack. Id.
Plaintiff stated that she is able to handle changes in routine. Id. Plaintiff noted that she is
very paranoid about the possibility of people watching her or breaking in. Id. Plaintiff
listed her medications as Abilify, which causes dizziness and nausea; Effexor, which also
causes nausea; and Doxepin, which also causes dizziness. Id. at 265. Plaintiff reported
that she has been "diagnosed with PTSD, bipolar, schizoaffective disorder, dissociative
identity disorder, costochondritis, and depression[,] [all of which] make it very difficult to
focus and complete tasks, including simple day-to-day tasks.” AR at 265.
ii. January 20, 2020
On January 20, 2020, Plaintiff completed a Function Report—Adult. AR at 281–
89. Plaintiff reported that she lives in an apartment with family. Id. at 281. Plaintiff
described the limitations caused by her medical conditions as follows:
I am just unable to focus on activities due to me switching personalities or
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having a PTSD attack. I get extreme anxiety in public places or crowds. I
can barely fill out this form without help. My alt[e]rs get very loud and
intrusive, making it hard for me to even talk.
Id. Plaintiff further described her typical day to include waking up and visiting with her
mother; getting on her computer, if she is up to it, and checking email; drawing, sometimes;
eating a meal or snack during the day; having tea before bed; and watching shows. Id. at
282. Plaintiff denied taking care of other people or pets. Id. Plaintiff noted that her
illnesses “[o]ften leaves [her] unable to sleep due to the loud voices or PTSD attacks.” AR
at 282.
Plaintiff reported that normally she can dress fine; often forgets to bathe and needs
help remembering; requires reminders for hair care, shaving, and eating; and has no
difficulty using the toilet. Id. at 283. Plaintiff confirmed that she requires verbal reminders
from her mother and boyfriend to take of her personal hygiene. Id. Plaintiff also confirmed
that she needs alarms or verbal reminders to take her medicine. Id. Plaintiff stated that she
prepares her own meals, including sandwiches, as well as frozen and boxed meals, on a
daily basis, although she occasionally needs help. Id. Plaintiff estimated that food
preparation takes her between ten (10) and thirty (30) minutes and observed that she eats
less since the onset of her illnesses. AR at 283.
Plaintiff stated that she makes her bed when able and takes out the garbage with her
mother. Id. at 284. Plaintiff estimated that taking the garbage out takes approximately
fifteen (15) minutes, with help. Id. Plaintiff noted that she performs this task weekly and
needs encouragement and physical help to assist her in completing it. Id. Plaintiff reported
that she rarely goes outside, and when she does she rides in a car. Id. Plaintiff explained
that she cannot go out alone due to her extreme anxiety. AR at 284. Plaintiff stated that
she does not have a license and would not be able to focus. Id.
Plaintiff reported that she shops in stores and online for food and clothes. Id.
Plaintiff estimated that this takes her between thirty (30) minutes to an hour, with help, and
she shops weekly. Id. Plaintiff reported that she cannot pay bills, handle a savings account,
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or use a checkbook/money orders, because she has no assets and needs assistance with
paperwork; however, she is able to count change. Id. at 285. Plaintiff observed that her
ability to handle money has changed because she is unable to concentrate sometimes. AR
at 285.
Plaintiff listed her hobbies and interests as including drawing and watching shows.
Id. Plaintiff noted that she tries to do these things daily, but her ability varies. Id. Plaintiff
described having less interest and ability as changes since the onset of her illnesses that
impact her hobbies and interests. Id. Plaintiff confirmed spending time with others,
watching shows, visiting, and talking with her boyfriend on a weekly basis. Id. Plaintiff
listed home as a place she goes regularly. AR at 285. Plaintiff noted that she needs
reminders to go places, and tries to go weekly but it varies. Id. Plaintiff confirmed that
she needs someone to go with her when she goes out. Id. Plaintiff described having less
interest and ability to participate in social activities since the onset of her illnesses. Id. at
286.
Plaintiff noted that her illnesses affect her ability to talk, hear, remember, complete
tasks, concentrate, understand, and follow instructions. Id. Plaintiff conveyed that the
voices in her head are too loud for her to talk, she dissociates and loses her memory, and
she cannot focus due to the voices and her PTSD. AR at 286. Plaintiff is right handed,
and can walk approximately fifteen (15) minutes before needing to rest for approximately
five (5) minutes. Id. Plaintiff estimated that she can pay attention for “a few minutes” or
approximately a half hour. Id. Plaintiff reported that she as difficulty finishing what she
starts, as well as following both written and spoken instructions. Id.
Plaintiff described her ability to get along with authority figures as “mostly okay”;
however, she noted her distrust of teachers. Id. at 287. Plaintiff denied having been fired
or laid off from a job due to her interpersonal skills. AR at 287. Plaintiff reported that she
does not handle stress or changes in routine well. Id. Plaintiff stated that she has fear of
anything to do with school, holidays, and sometimes family. Id. Plaintiff noted that she
wears glasses daily. Id. Plaintiff listed her medications as Abilify; Lexapro, which causes
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weight gain; and Doxepin, which causes fatigue. Id. at 288. Plaintiff provided an
additional statement, as follows:
It is very hard for me to socialize for long with family or friends. Sometimes
the simplest tasks I dissociate from, or a PTSD attack where I can’t function
and feels like I can’t breathe. My alt[e]rs will take over and sometimes walk
out of the house, talk to toxic people, get angry, and be very intrusive. I will
lose my memory because of this. The things I like to do, like drawing or
watching shows, become very difficult for me to focus on. My daily life is
always interrupted by the memories of trauma to the point where I cannot
function.
AR at 265.
2. Plaintiff’s Medical Records
Plaintiff has received extensive mental health treatment—including psychiatric,
therapeutic, and pharmacological care. Her treatment records begin in November 2017,
and extend through July 2024. AR 343–518, 567–626, 637–752, 1010–1115.
Additionally, Plaintiff’s non-behavioral health medical records contain information
regarding her mental health. See id. at 519–66. Plaintiff’s earliest psychiatric treatment
appears to have occurred in March of 2013—Plaintiff was inpatient at Sonora Behavioral
Hospital for acute psychosis. See id. at 659. She had a suicide attempt in 2012 and her
records reflect severe physical and sexual abuse from a young age. See e.g., id. at 357,
659. Plaintiff’s records further reflect ongoing treatment for schizoaffective disorder
(bipolar type), dissociative identity disorder (DID), post-traumatic stress disorder (PTSD),
generalized anxiety disorder, and depression, as well as attention deficit hyperactivity
disorder (ADHD). See id. at 343–518, 567–626, 637–752, 1008–1115.
II. STANDARD OF REVIEW
The factual findings of the Commissioner shall be conclusive so long as they are
based upon substantial evidence and there is no legal error. 42 U.S.C. §§ 405(g),
1383(c)(3); Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). This Court may
“set aside the Commissioner’s denial of disability insurance benefits when the ALJ’s
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findings are based on legal error or are not supported by substantial evidence in the record
as a whole.” Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999) (citations omitted); see
also Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014). “Under
the substantial evidence standard, a court looks to an existing administrative record and
asks whether it contains ‘sufficien[t] evidence’ to support the agency’s factual
determinations.” Biestek v. Berryhill, 139 S. Ct. 1148 (2019) (citations omitted)
(alterations in original).
Substantial evidence is “‘more than a mere scintilla[,] but not necessarily a
preponderance.’” Tommasetti, 533 F.3d at 1038 (quoting Connett v. Barnhart, 340 F.3d
871, 873 (9th Cir. 2003)); see also Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014).
Further, substantial evidence is “such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007).
Where “the evidence can support either outcome, the court may not substitute its judgment
for that of the ALJ.” Tackett, 180 F.3d at 1098 (citing Matney v. Sullivan, 981 F.2d 1016,
1019 (9th Cir. 1992)); see also Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007).
Moreover, the court may not focus on an isolated piece of supporting evidence, rather it
must consider the entirety of the record weighing both evidence that supports as well as
that which detracts from the Secretary’s conclusion. Tackett, 180 F.3d at 1098 (citations
omitted). Additionally, the Court will only review issues raised by Plaintiff in this cause
of action. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir.
2008).
III. ANALYSIS
A. The Five-Step Evaluation
The Commissioner follows a five-step sequential evaluation process to assess
whether a claimant is disabled. 20 C.F.R. § 404.1520(a)(4). This process is defined as
follows: Step One asks is the claimant “doing substantial gainful activity[?]” 20 C.F.R. §
404.1520(a)(4)(i). If yes, the claimant is not disabled. Step Two considers if the claimant
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has a “severe medically determinable physical or mental impairment[.]” 20 C.F.R. §
404.1520(a)(4)(ii). If not, the claimant is not disabled. Step Three determines whether the
claimant’s impairments or combination thereof meet or equal an impairment listed in 20
C.F.R. Pt. 404, Subpt. P, App.1. 20 C.F.R. § 404.1520(a)(4)(iii). If not, the claimant is
not disabled. Step Four considers the claimant’s residual functional capacity and past
relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). If claimant can still do past relevant work,
then he or she is not disabled. Step Five assesses the claimant’s residual functional
capacity, age, education, and work experience. 20 C.F.R. § 404.1520(a)(4)(v). If it is
determined that the claimant can make an adjustment to other work, then he or she is not
disabled. Id.
In the instant case, the ALJ found that Plaintiff “has not engaged in substantial
gainful activity since her July 5, 2019, the application date[.]” AR at 687 (citing 20 CFR
416.971, et seq.). At step two of the sequential evaluation, the ALJ found that “[t]he
claimant has the following severe impairments: schizoaffective disorder, bipolar type;
post-traumatic stress disorder (PTSD); dissociative identity disorder; depression; anxiety;
and attention deficit hyperactivity disorder (ADHD).” Id. (citing 20 CFR 416.920(c)). At
step three, the ALJ further found that “[t]he claimant does not have an impairment or
combination of impairments that meets or medically equals the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1[.]” Id. at 688 (citing 20 CFR
416.920(d), 416.925 and 416.926). Prior to step four and “[a]fter careful consideration of
the entire record,” the ALJ determined that “the claimant has the residual functional
capacity to perform a full range of work at all exertional levels but with the following
nonexertional limitations: the claimant has the mental capacity to perform work where
interpersonal contact is only incidental to the work performed where claimant is not
required to frequently consult with or involve co-workers or the general-public (i.e.,
occasional contact)[;] [c]ontact means direct involvement[;] [c]o-workers and public can
be generally present and around[;] [i]nstructions can be detailed and involve multiple steps
but should generally involve infrequent changes[;] [n]o special supervision is required for
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routine work-related tasks, but the claimant would function better in a work environment
in which a supervisor is available at the claimant’s behest[;] [and] [n]o fast-paced
production work.” Id. at 690. At step four, the ALJ observed that “[t]ransferability of job
skills is not an issue because the claimant does not have past relevant work[.]” Id. at 695
(citing 20 CFR 416.968). At step five, the ALJ found that after “[c]onsidering the
claimant’s age, education, work experience, and residual functional capacity, there are jobs
that exist in significant numbers in the national economy that the claimant can perform[.]”
AR at 695 (citing 20 CFR 416.969, 416.969a). Accordingly, the ALJ determined that
Plaintiff was not disabled. Id. at 697.
B. Plaintiff’s Symptom Testimony
Plaintiff challenges the ALJ’s “summary of the evidence with an ultimate RFC
conclusion that fails to connect any of the evidence to the rejection of Plaintiff’s subjective
complaints and also fails to engage in the requisite analysis of factors under SSR 16-3p
that would allow the court to have a clear and convincing path from the evidence to the
ALJ’s decision to reject her allegations.” Opening Br. (Doc. 18) at 14. Plaintiff stresses
that “[t]he ALJ must build a logical bridge between the evidence and his conclusions.” Id.
at 10 (citing Darin W. v. Comm’r of Soc. Sec., No. 3:22-CV-5315-DWC, 2022 WL
12399313, at *3 (W.D. Wash. Oct. 21, 2022)); see also Reply (Doc. 23) at 3. Plaintiff
asserts “the only reason the ALJ gives . . . for rejecting [Plaintiff’s] subjective symptoms
was that she improved with medication[,]” but it was error “to pick out a few isolated
instances of improvement.” Id. at 18. Defendant contends that “[t]he ALJ properly
considered all of the evidence of record, assessing a restrictive RFC that included several
limitations in areas of mental functioning[;] [h]owever, the ALJ reasonably concluded that
evidence of unremarkable examination findings and symptom relief from treatment mean
Plaintiff did not experience further limitations.” Response (Doc. 20) at 5. The Court agrees
with Plaintiff and finds the ALJ did not provide clear and convincing reasons for
discounting her symptom testimony.
. . .
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1. Legal Standard
An ALJ must engage in a two-step analysis to evaluate a claimant’s subjective
symptom testimony. Lingenfelter v. Astrue, 504 F.3d 1028, 1035–36 (9th Cir. 2007). First,
“a claimant who alleges disability based on subjective symptoms ‘must produce objective
medical evidence of an underlying impairment which could reasonably be expected to
produce the pain or other symptoms alleged[.]’” Smolen v. Chater, 80 F.3d 1273, 1281–
82 (9th Cir. 1996) (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)
(internal quotations omitted)); see also Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir.
2014). Further, “the claimant need not show that her impairment could reasonably be
expected to cause the severity of the symptom she has alleged; she need only show that it
could reasonably have caused some degree of the symptom.” Smolen, 80 F.3d at 1282
(citations omitted); see also Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017). “Nor
must a claimant produce ‘objective medical evidence of the pain or fatigue itself, or the
severity thereof.’” Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014) (quoting
Smolen, 80 F.3d at 1282). “[I]f the claimant meets this first test, and there is no evidence
of malingering, ‘the ALJ can reject the claimant’s testimony about the severity of her
symptoms only by offering specific, clear and convincing reasons for doing so.’”
Lingenfelter, 504 F.3d at 1036 (quoting Smolen, 80 F.3d at 1281); see also Burrell v.
Colvin, 775 F.3d 1133, 1137 (9th Cir. 2014) (rejecting the contention that the “clear and
convincing” requirement had been excised by prior Ninth Circuit case law). “This is not
an easy requirement to meet: ‘The clear and convincing standard is the most demanding
required in Social Security cases.’” Garrison, 759 F.3d at 1015 (quoting Moore v. Comm’r
of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). Additionally, SSR 16-3p4 states,
in relevant part:
We will not evaluate an individual’s symptoms based solely on objective
4 Social Security Rulings are “binding on all components of the Social Security
Administration.” 20 C.F.R. §§ 402.35(b)(1) and (2); Heckler v. Edwards, 465 U.S. 870, 873 n.3
(1984).
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medical evidence unless that objective medical evidence supports a finding
that the individual is disabled. We will evaluate an individual’s symptoms
based on the evidence in an individual’s record as described below; however,
not all of the types of evidence described below will be available or relevant
in every case.
* * *
In evaluating an individual’s symptoms, it is not sufficient for our
adjudicators to make a single, conclusory statement that “the individual’s
statements about his or her symptoms have been considered” or that “the
statements about the individual’s symptoms are (or are not) supported or
consistent.” It is also not enough for our adjudicators simply to recite the
factors described in the regulations for evaluating symptoms. The
determination or decision must contain specific reasons for the weight given
to the individual’s symptoms, be consistent with and supported by the
evidence, and be clearly articulated so the individual and any subsequent
reviewer can assess how the adjudicator evaluated the individual’s
symptoms.
SSR 16-3p, available at 2017 WL 5180304, at *5, 10 (Oct. 25, 2017).
2. Analysis
The ALJ acknowledged the two-step process for assessing Plaintiff’s symptom
testimony. AR at 690. Next, the ALJ provided a summary paragraph of Plaintiff’s
testimony and concluded that “[a]fter careful consideration of the evidence,” that Plaintiff’s
“medically determinable impairments could reasonably be expected to cause the alleged
symptoms; however, the claimant’s statements concerning the intensity persistence and
limiting effects of these symptoms are not entirely consistent with the medical evidence
and other evidence in the record for the reasons explained in this decision.” Id. at 691.
Following a summary of Plaintiff’s medical records, the ALJ concluded:
As for the claimant’s statements about the intensity, persistence, and limiting
effects of his or her symptoms, they are inconsistent because the claimant’s
exacerbated mental health symptoms improved with a combination of
medication and therapy. [(AR 500, 554, 568, 575, 633, 641, 1016, 1038,
1040, 1071, 1076, 1081, 1086, 1089–90)]. When the claimant experienced
exacerbated symptoms, she was able to receive medication changes to
address the worsening symptoms as needed. [(AR 1016, 1038, 1040, 1045,
1049)]. Moreover, although the claimant had an abnormal mental status
examination on August 7, 2024, the claimant had recently switched
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psychiatric providers and made substantial changes to her medication
regimen, therefore, it is reasonable that the claimant would have an
adjustment period after making such medication changes. [(AR at 1010,
1014, 1101, 1103, 1107, 1114)].
AR at 693.
a. Improvement with medication and therapy
The ALJ found Plaintiff’s symptom testimony “inconsistent because the claimant’s
exacerbated mental health symptoms improved with a combination of medication and
therapy.” AR at 693 (citing AR at 500, 554, 568, 575, 633, 641, 1016, 1038, 1040, 1071,
1076, 1081, 1086, 1089–90). Defendant recognizes that “[t]he type and effectiveness of
treatment are factors to consider when evaluating symptom allegations.” Response (Doc.
20) at 6 (citing 20 C.F.R. § 416.929(c)(3)(iv)–(v)). Defendant further urges “evidence of
medical treatment successfully relieving symptoms can undermine a claim of disability.”
Id. at 7 (quoting Wellington v. Berryhill, 878 F.3d 867, 876 (9th Cir. 2017)). Defendant
correctly states the general rules; however, an “ALJ [is] not permitted to ‘cherry-pick’ from
. . . mixed [treatment] results to support a denial of benefits.” Garrison v. Colvin, 759 F.3d
995, 1017 n.23 (9th Cir. 2014) (quotations and citations omitted). A review of the portions
of Plaintiff’s medical records cited by the ALJ demonstrates that he failed to choose “data
points . . . [that] in fact constitute examples of a broader development [sufficient] to satisfy
the applicable ‘clear and convincing’ standard.” Id. at 1018.
The ALJ first points to a September 9, 2019, Case Summary Note which noted
Plaintiff “was originally on fluconazole but the medication was discontinued[;] . . . she
currently is on Lexapro but feels like it is not working[;] . . . [she] would like to start an
anxiety medication . . . [because] recently her symptoms of anxiety of have increased.” AR
at 500. Plaintiff also recently switched therapists following her previous therapist leaving
the clinic. Id. Next, the ALJ refers to an August 18, 2017 record which reflects Plaintiff’s
depression is “poorly controlled, but improving slightly after establishing care with Psych.”
Id. at 554. Between these two data points, which do not suggest well-controlled symptoms
to begin with, are months of treatment during which Plaintiff suffered varying degrees of
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high anxiety; panic attacks; depression; auditory- and visual-hallucinations; nightmares;
insomnia; continuing presence of alternate personalities due to DID; self-harm (cutting);
suicidal ideations with and without intent; and medication changes. Id. at 343–459.
The ALJ then points to a September 21, 2020, record in which Plaintiff “sounded
cooperative and socially appropriate” with coherent thought processes and fair insight. Id.
at 568. That same appointment, Plaintiff described “terrifying hallucinations of the walls
bleeding and a phantom with a long jaw and sharp teeth who will stand in a corner or rushes
at her and screams.” AR at 567. The record notes Plaintiff’s increasing hallucinations and
flashbacks stemming from abuse. Id. Records between September 2019 and September
2020 continue to reflect the presence of Plaintiff’s alternate personalities; her urges to self-
harm; depression; anxiety; PTSD; flashbacks; and auditory- and visual-hallucinations, as
well as medication modifications. See id. at 462–518, 524, 531, 528, 593–605. The ALJ
next points to a record in which Plaintiff reports “she has been doing well[,]” but reported
she was not sleeping well and continues to hear voices. Id. at 575. Plaintiff’s doctor
increased her sleep medications. Id. The ALJ points to a March 16, 2021, phone consult,
where Plaintiff reported doing well overall, but reported “[s]he still has occasional
psychotic symptoms[.]” AR at 633. Her anxiety medication was also changed. Id. The
ALJ the cites a March 2, 2021, record which reflects that Plaintiff’s auditory hallucinations
and paranoia are less, but still present, she continues to have anxiety, and she has not been
totally consistent with the higher dose of Quetiapine. Id. at 641. Plaintiff’s anxiety
medication was changed yet again. Id.
The ALJ next cites a June 24, 2024, treatment record in which Plaintiff reports a
lack of focus, paranoia, agoraphobia, depression, anxiety, and difficulty managing her
ADHD. Id. at 1016. The ALJ then cites to a May 28, 2024, record which notes that
Plaintiff’s “psychosis is better after her meds were adjusted[,] [but] her agoraphobia is still
pretty bad.” AR at 1038. The same records reflects that Plaintiff reported her voices are
better; her anxiety increases at night due to her PTSD; she continues to have nightmares,
although fewer; she continues to be depressed; and her anxiety “is all over the place” and
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“way worse” when she is around other people. Id. at 1034. The ALJ points to a May 27,
2024, treatment record, which reflects that Plaintiff’s “voices are far less than how they
were”; her anxiety increases at night due to her PTSD; she continues to have nightmares,
although fewer; she continues to be depressed; and her anxiety “is all over the place” and
“way worse” when she is around other people. Id. at 1040. A May 15, 2024, treatment
record notes that Plaintiff’s anxiety and depression were at a 10/10, her PTSD and paranoia
had been “bad,” and she was unable to leave her room because she felt “something was
going to hurt her or take her away.” Id. at 1045.
Next, the ALJ cites to a March 6, 2024, record which note that Plaintiffs depression
and anxiety are a relatively low 3–4/10, that she “had a great time with her house party,”
and her nightmares are “very rare now.” Id. at 1071. Between March 6, 2024, and May
15, 2024, however, the picture was not as rosy. On April 17, 2024, Plaintiff suffered
difficulty sleeping, anxiety at 8–9/10, increased auditory-hallucinations saying “random”
and “negative stuff.” AR at 1066. Her medications were adjusted again. Id. On April 30,
2024, Plaintiff was struggling with her PTSD, panic attacks, agoraphobia, and difficulty
maintaining hygiene. Id. at 1065. On May 1, 2024, Plaintiff was not sleeping well,
struggled to take care of her daily functions, was suffering paralyzing anxiety and PTSD
symptoms, as well as increased psychosis with “her voices . . . more frequent and louder.”
Id. at 1056. Her medications were adjusted yet again. Id. On May 7, 2024, treatment
records demonstrate that Plaintiff was not doing well. AR at 1054. Plaintiff had “a panic
attack after going out with her mother”; was experiencing psychosis with both auditory-
and visual-hallucinations; and reported that her medication did not seem to be helping
much. Id.
The ALJ next cites to a February 9, 2024, treatment record that reflects Plaintiff’s
“anxiety and depression at about a 3–4/10 with steady mood[,]” she continued to have
auditory hallucinations, as well as nightmares. Id. at 1076. Plaintiff mentioned that she
was having friends over for dress-up and cooking. Id. The ALJ then cites a January 12,
2024, record which notes Plaintiff’s anxiety and depression at a 3–4/10, she was having
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fewer panic attacks, and her focus and concentration were good. Id. at 1081. Plaintiff also
reported “occasionally seeing and hearing things, but not as bad.” AR at 1081. The ALJ
points to a January 4, 2024, treatment record, in which Plaintiff reports her depression and
anxiety are a 4–6/10, with it going up when she is in public. Id. at 1086. Plaintiff continued
to struggle with her PTSD, noting that “prazosin helps with the nightmares but she keeps
having flashbacks and dissociation feelings.” Id. Records further reflect that Plaintiff was
calm and reflective during her therapy appointment; however, she shared “a bad cycle of
being very depressed and triggered.” Id. at 1089–90.
Contrary to demonstrating an inconsistency, the medical records support Plaintiff’s
subject complaints. Furthermore, Defendant’s reliance on Wellington is misplaced. In
Wellington, the court observed that it “recognize[d] that Wellington had experienced
several distressing panic attacks in December 2008[,] [b]ut just a few months later, the
record shows that Wellington’s disabling symptoms had all but disappeared.” 878 F.3d
867, 875 (9th Cir 2017) (emphasis added). Here, despite years of treatment, Plaintiff
regularly hears voices, suffers panic attacks, struggles to leave her house, and battles
anxiety and depression, along with the occasional alternate personality joining the fray.
The Ninth Circuit has made clear, “it is error to reject a claimant’s testimony merely
because symptoms wax and wane in the course of treatment.” Garrison v. Colvin, 759
F.3d 995, 1017 (9th Cir. 2014). “Reports of ‘improvement’ in the context of mental health
issues must be interpreted with an understanding of the patient’s overall well-being and the
nature of her symptoms.” Id. (citations omitted). The Ninth Circuit has further cautioned
that treatment records must “be interpreted with an awareness that improved functioning
while being treated and while limiting stressors does not always mean that a claimant can
function effectively in a workplace.” Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir.
2014); see also Hutsell v. Massanari, 259, F.3d 707, 712 (9th Cir. 2001) (“[T]he
Commissioner erroneously relied too heavily on indications in the medical record that
Hutsell was ‘doing well,’ because doing well for the purposes of a treatment program has
no necessary relation to a claimant’s ability to work or to her work-related functional
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capacity.”). The Court finds that substantial evidence does not support the ALJ discounting
Plaintiff’s symptom testimony due to an alleged improvement with medication and
therapy. See Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007) (substantial evidence is
“such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.”).
b. Medication changes
The ALJ also found Plaintiff’s symptom testimony inconsistent because “when the
claimant experienced exacerbated symptoms, she was able to receive medication changes
to address the worsening symptoms.” AR at 693 (citing AR at 1016, 1038, 1040, 1045,
1049). “Persistent attempts to obtain relief of symptoms, such as increasing dosages and
changing medications, trying a variety of treatments, referrals to specialists, or changing
treatment sources may be an indication that an individual’s symptoms are a source of
distress and may show that they are intense and persistent.” SSR 16-3p, at *9. Each of the
citations relied on by the ALJ (AR at 1016, 1038, 1040, 1045, 1049), were discussed in the
previous section, and demonstrate the intractability of Plaintiff’s illness. Furthermore,
none of the medication combinations tried by Plaintiff were effective at diminishing her
symptoms to a negligible level. At her best, Plaintiff continued to have auditory-
hallucinations with anxiety, depression, and panic attacks. Additionally, Plaintiff’s periods
of improvement were short-lived. The Court finds the ALJ’s finding that medication
changes to address Plaintiff’s worsening symptoms is not substantial evidence
controverting her symptom testimony. See Parra v. Astrue, 481 F.3d 742, 746 (9th Cir.
2007) (substantial evidence is “such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.”).
c. Abnormal status examination
The ALJ explained Plaintiff’s August 7, 2024, abnormal status examination as due
to the fact that she “had recently switched psychiatric providers and made substantial
changes to her medication regimen.” AR at 693 (citing AR at 1010, 1014, 1101, 1103,
1107, 1114). A provider change does not explain Plaintiff’s struggles in April 2024, when
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Plaintiff was suffering a “regressive period.” See id. at 1061–70. During this time, Plaintiff
struggled with her PTSD, panic attacks, agoraphobia, and difficulty maintaining hygiene.
Id. at 1065. Although Plaintiff’s symptoms waxed and waned in the course of her
treatment, this is not a reason to reject her testimony. Garrison v. Colvin, 750 F.3d 995,
1017 (9th Cir. 2014). The ALJ’s rationale is not supported by substantial evidence.
d. Defendant’s arguments
The Court “review[s] only the reasons provided by the ALJ in the disability
determination and may not affirm the ALJ on a ground upon which he did not rely.”
Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014). Although the Commissioner
outlines reasons that the ALJ could reject Plaintiff’s symptom testimony, this Court is
bound “to review the ALJ’s decision based on the reasoning and factual findings offered
by the ALJ—not post hoc rationalizations that attempt to intuit what the adjudicator may
have been thinking.” Bray v. Comm’r of Soc. Security Admin., 554 F.3d 1219, 1225 (9th
Cir. 2009) (citations omitted).
Defendant asserts that “[t]he ALJ observed that Plaintiff’s mental status
examinations were generally unremarkable.” Answering Br. (Doc. 20) at 6. Simply stating
a non-credibility conclusion, and then summarizing the medical evidence is insufficient to
establish clear and convincing evidence. Brown-Hunter v. Colvin, 806 F.3d 487, 494 (9th
Cir. 2015). The ALJ did not demonstrate how Plaintiff’s mental status examinations are
clear and convincing evidence to reject her symptom testimony.
Similarly, Defendant asserts that “the ALJ noted that there were gaps in Plaintiff’s
treatment and times when she did not take medication[.]” Answering Br. (Doc. 20) at 8.
“We will not find an individual’s symptoms inconsistent with the evidence in the record
on th[e] basis [of treatment non-compliance or insufficient treatment] without considering
possible reasons . . . she may not comply with treatment or seek treatment consistent with
the degree of . . . her complaints.” SSR 16-3p, at *9. The ALJ did not make any such
inquiry.
Although these arguments are improper post-hoc rationalizations, they also are not
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supported by substantial evidence. See Garrison, 759 F.3d at 1010.
e. Conclusion
The Court finds that the ALJ failed to provide specific, clear and convincing reasons
for discounting Plaintiff’s testimony which is supported by substantial evidence in the
record. See Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007); Tommasetti v.
Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008). The Court further finds that this error was
not harmless.
D. Remand
“‘[T]he decision whether to remand the case for additional evidence or simply to
award benefits is within the discretion of the court.’” Rodriguez v. Bowen, 876 F.2d 759,
763 (9th Cir. 1989) (quoting Stone v. Heckler, 761 F.2d 530, 533 (9th Cir. 1985)).
“Remand for further administrative proceedings is appropriate if enhancement of the record
would be useful.” Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004) (citing Harman
v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000)). Conversely, remand for an award of
benefits is appropriate where:
(1) the ALJ failed to provide legally sufficient reasons for rejecting the
evidence; (2) there are no outstanding issues that must be resolved before a
determination of disability can be made; and (3) it is clear from the record
that the ALJ would be required to find the claimant disabled were such
evidence credited.
Benecke, 379 F.3d at 593 (citations omitted). Where the test is met, “we will not remand
solely to allow the ALJ to make specific findings. . . . Rather, we take the relevant testimony
to be established as true and remand for an award of benefits.” Id. (citations omitted); see
also Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). “Even if those requirements are
met, though, we retain ‘flexibility’ in determining the appropriate remedy.” Burrell v.
Colvin, 775 F.3d 1133, 1141 (9th Cir. 2014).
Here, the ALJ committed legal error in assessing Plaintiff’s symptom testimony.
This matter is before the Court after a previous remand. “Allowing the Commissioner to
decide the issue again would create an unfair ‘heads we win; tails, let’s play again’ system
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of disability benefits adjudication.” Benecke, 379 F.3d at 595 (citations omitted). The
record is complete and there are no outstanding issues remaining for resolution. Id. at 593.
If the ALJ had credited Plaintiff’s testimony as true, she would have been found disabled.
See AR at 778–79 (VE Tolley opined that if an individual was off task more than 10% due
to interruptions from psychological and emotional symptoms, there would not be
competitive work for that individual). Accordingly, the Court recommends that Plaintiff’s
testimony be credited as true and this case remanded for an award of benefits.
IV. CONCLUSION
Based on the foregoing, the Court finds the ALJ committed legal error in assessing
Plaintiff’s symptom testimony. “Remand for further administrative proceedings is
appropriate if enhancement of the record would be useful.” Benecke v. Barnhart, 379 F.3d
587, 593 (9th Cir. 2004) (citing Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000)).
The Court further finds that the facts of this case do not necessitate further consideration
by the ALJ. Rather, remand for an award of benefits beginning on July 5, 2019, is
warranted. See Benecke, 379 F.3d at 593.
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V. RECOMMENDATION
For the reasons delineated above, the Magistrate Judge recommends that the District
Judge enter an order REVERSING the Commissioner’s decision and REMANDING for
an award of benefits consistent with this opinion.
Pursuant to 28 U.S.C. § 636(b) and Rule 72(b)(2), Federal Rules of Civil Procedure,
any party may serve and file written objections on or before February 16, 2026. A party
may respond to another party’s objections on or before February 23, 2026. No replies
shall be filed unless leave is granted from the Honorable Jennifer G. Zipps. If objections
are filed, the parties should use the following case number: CV-24-00574-TUC-JGZ.
Failure to file timely objections to any factual or legal determination of the
Magistrate Judge may result in waiver of the right of review.
Dated this 6th day of February, 2026.
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