Goodwin v. Commissioner Social Security Administration

Filing 16

OPINION AND ORDER signed on 2/5/2024 by Magistrate Judge Mustafa T. Kasubhai: The Commissioner's final decision is REVERSED and REMANDED for the immediate payment of benefits, under sentence four of 42 U.S.C. § 405(g). (jk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION
JEFFREY G.,1
Plaintiff,
v.
KILOLO KIJAKAZI, Acting
Commissioner of Social Security

Civ. No. 6:23-cv-00283-MK
OPINION AND ORDER

Defendant.
______________________________________
KASUBHAI, Magistrate Judge:
Plaintiff Jeffrey G. (“Plaintiff”) brings this action for judicial review of the Commissioner
of Social Security’s (“Commissioner”) decision denying his applications for Supplemental
Security Income (SSI) and Disability Insurance Benefits (DIB) under Titles II and XVI of the
Social Security Act (“the Act”). This Court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c).
For the reasons below, the Commissioner’s final decision is reversed and remanded for the

1

In the interest of privacy, this opinion uses only the first name and the initial of the last name of
the non-governmental parties in this case.
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calculation and payment of benefits.
PROCEDURAL BACKGROUND
Plaintiff’s claims for SSI and DIB were denied initially and upon reconsideration. Tr. 165,
170, 177. He requested an administrative hearing and appeared before an administrative law judge
(ALJ) on September 26, 2022. Tr. 51-85. In a written decision dated October 19, 2022, the ALJ
denied Plaintiff’s claim for benefits. Tr. 13-33. The Appeals Council denied Plaintiff’s subsequent
petition for review, rendering the ALJ’s decision final. Tr. 1-6. This appeal followed.
FACTUAL BACKGROUND
Born in 1980, Plaintiff was 39 years old when he applied for benefits on September 25,
2019. Tr. 249.2 He alleged disability as of November 15, 2017, due to combined impairments of
chronic pain from a spinal injury, cubital tunnel syndrome, bipolar disorder, anxiety, depression,
ADHD, mania, and PTSD. Tr. 282.
LEGAL STANDARD
The court must affirm the Commissioner’s decision if it is based on proper legal standards
and the findings are supported by substantial evidence in the record. Hammock v. Bowen, 879 F.2d
498, 501 (9th Cir. 1989). Substantial evidence is “more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971) (quotation omitted). The court must weigh “both the evidence
that supports and detracts from the [Commissioner’s] conclusion.” Martinez v. Heckler, 807 F.2d
771, 772 (9th Cir. 1986). “Where the evidence as a whole can support either a grant or a denial,
[the court] may not substitute [its] judgment for the ALJ’s.” Massachi v. Astrue, 486 F.3d 1149,

“Tr.” refers to the Transcript of the Social Security Administrative Record, ECF No. 10, provided
by the Commissioner.
2

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1152 (9th Cir. 2007) (citation omitted); see also Burch v. Barnhart, 400 F.3d 676, 680–81 (9th
Cir. 2005) (holding that the court “must uphold the ALJ’s decision where the evidence is
susceptible to more than one rational interpretation”). “[A] reviewing court must consider the
entire record as a whole and may not affirm simply by isolating a specific quantum of supporting
evidence.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (quotation omitted).
The initial burden of proof rests upon the claimant to establish disability. Howard v.
Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the claimant must demonstrate
an “inability to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected . . . to last for a continuous period of not
less than 12 months.” 42 U.S.C. § 423(d)(1)(A).
The Commissioner has established a five-step process for determining whether a person is
disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520, 416.920. First, the
Commissioner determines whether a claimant is engaged in “substantial gainful activity”; if so,
the claimant is not disabled. Yuckert, 482 U.S. at 140; 20 C.F.R. §§ 404.1520(b), 416.920(b). At
step two, the Commissioner determines whether the claimant has a “medically severe impairment
or combination of impairments.” Yuckert, 482 U.S. at 140–41; 20 C.F.R. §§ 404.1520(c),
416.920(c). A severe impairment is one “which significantly limits [the claimant’s] physical or
mental ability to do basic work activities[.]” 20 C.F.R. §§ 404.1520(c), 416.920(c). If not, the
claimant is not disabled. Yuckert, 482 U.S. at 141. At step three, the Commissioner determines
whether the impairments meet or equal “one of a number of listed impairments that the
[Commissioner] acknowledges are so severe as to preclude substantial gainful activity.” Id.; 20
C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is conclusively presumed disabled; if not,
the analysis proceeds. Yuckert, 482 U.S. at 141.

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At this point, the Commissioner must evaluate medical and other relevant evidence to
determine the claimant’s “residual functional capacity” (“RFC”), which is an assessment of workrelated activities that the claimant may still perform on a regular and continuing basis, despite any
limitations his impairments impose. 20 C.F.R. §§ 404.1520(e), 404.1545(b)–(c), 416.920(e),
416.945(b)–(c). At the fourth step, the Commissioner determines whether the claimant can perform
“past relevant work.” Yuckert, 482 U.S. at 141; 20 C.F.R. §§ 404.1520(e), 416.920(e). If the
claimant can work, he is not disabled; if he cannot perform past relevant work, the burden shifts
to the Commissioner. Yuckert, 482 U.S. at 146 n.5. At step five, the Commissioner must establish
that the claimant can perform other work that exists in significant numbers in the national
economy. Id. at 142; 20 C.F.R. §§ 404.1520(e)–(f), 416.920(e)–(f). If the Commissioner meets
this burden, the claimant is not disabled. 20 C.F.R. §§ 404.1566, 416.966.
THE ALJ’S DECISION
At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity
since his alleged onset date of November 15, 2017. Tr. 16. At step two, the ALJ determined that
Plaintiff had the severe impairments of obesity, aggravating degenerative disc disease of the
lumbar spine, cubital tunnel syndrome with a tear of the TFCC in his left wrist, and a mental
impairment that included bipolar I disorder, post-traumatic stress disorder (PTSD), attention
deficit-hyperactivity disorder (ADHD), possible mixed personality disorder, depression and
anxiety. Tr. 16. The ALJ also found that Plaintiff had the non-severe impairments of IBS, sleep
apnea, hypertension and heart arrhythmia, fasciculations and dysplastic toenails of the right foot,
and hypogonadism but that there was nothing to show these conditions caused significant
vocational limitations. Tr. 16-18.

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At step three, the ALJ found Plaintiff did not have an impairment or combination of
impairments that met or equaled any listings in 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr. 1922.
Prior to step four, the ALJ determined that, despite his impairments, Plaintiff retained the
RFC to perform light work with the following limitations: Plaintiff can no more than frequently
reach in all directions, frequently handle, and frequently finger with the non-dominant left upper
extremity. He can occasionally climb ramps and stairs, but can never climb ladders, ropes, or
scaffolds. He can frequently balance, but can only occasionally stoop, kneel, or crouch, and can
never crawl. He can never work in the presence of unprotected heights or hazardous machinery,
and should not be required to operate a motor vehicle as part of his job duties. He can never work
in the presence of concentrated exposure to extreme heat, extreme cold, dust, odors, fumes, or
pulmonary irritants. He is limited to performing simple, routine, and repetitive tasks, can use
judgment for that type of work, and can deal with changes in a work setting consistent with that
type of work. The claimant can frequently interact with supervisors, but can only occasionally
interact with coworkers and the public. Tr. 22.
At step four, the ALJ found that Plaintiff was unable to perform any past relevant work as
an attorney. Tr. 30-31. At step five, the ALJ found that based on Plaintiff’s age, education, work
experience, and residual functional capacity, he could perform jobs that existed in significant
numbers in the national economy, including marker, garment sorter and router. Id. The ALJ
therefore concluded that Plaintiff was not disabled. Tr. 31-32.
In this appeal, Plaintiff argues that the ALJ erred by (I) failing to properly include his
mental limitations in the RFC; and (II) asking a hypothetical question to the VE without including
all of Plaintiff’s functional limitations regarding his mental health. Pl. Br., at 1-19 (ECF 11).

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DISCUSSION
I.

Mental Limitations in the RFC
Plaintiff first argues that the ALJ failed to properly incorporate all of his credited

limitations into the RFC. Specifically, Plaintiff notes that the ALJ’s RFC failed to capture the full
extent of Plaintiff’s mental limitations as assessed by the state agency physicians. Here, state
agency physicians Bruce Lipetz, PsyD, and Irmgard E. Friedburg, PhD, reviewed Plaintiff’s record
and opined that he was mildly limited in the mental functional area of understanding,
remembering, or applying information, but had moderate limitations in the remaining three
“Paragraph B” areas. Tr. 97, 107, 130, 153. The physicians also provided the following explanation
for their RFC determination regarding Plaintiff’s difficulties with concentration, persistence and
pace:
Over the course of his bipolar illness he’d likely been with periods where he was incapable
of sustaining attention and concentration to do more than simple and repetitive tasks. He is
capable of persisting to complete simple tasks throughout a normal workday/week. He
would benefit from moderate production demands to control for stress as he’s quite self
critical and prone to anxiety. With remission of his bipolar condition, the claimant would
likely improve and regain the ability to sustain complex tasks as he's been able to do in the
past but he cannot do this currently. Tr. at 98, 133.

The ALJ partially credited these opinions, noting that both physicians found Plaintiff limited to
“simple work,” and “occasional coworker contact,” which appears consistent with the record. Tr.
29. However, the ALJ did not agree with their limitation of Plaintiff having “brief public contact”
and saw this is “overly restrictive given the lack of behavioral disturbances.” Id. Consequently,
the ALJ formulated an RFC limiting Plaintiff to “simple, routine, and repetitive tasks” as well as
“occasional coworker contact,” but also occasional interaction with the public. Tr. 22. Plaintiff
argues that the ALJ committed harmful error by ignoring the production-based limitations
specifically set out by the state agency physicians. Pl. Br., at 7 (ECF 11).
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The Commissioner argues that the ALJ’s interpretation of Drs. Lipetz and Friedburg was
not error, citing Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005) for the proposition that
when assessing the RFC, “preparing a function-by-function analysis for medical conditions or
impairments that the ALJ found neither credible nor supported by the record is unnecessary.” The
Commissioner then cites to 20 C.F.R. §§ 404.1512(a), 416.912(a) to argue that it is Plaintiff’s
burden to demonstrate the evidence shows limitations beyond those in the RFC. The
Commissioner finally argues that the ALJ comprehensively reviewed the medical evidence and
found that it supported a finding Plaintiff could perform a restricted range of light work. Def. Br.,
at 5 (ECF 15). The Court disagrees with the Commissioner’s contention.
Here, the ALJ only found Plaintiff’s interaction with the public unpersuasive when
reviewing Drs. Lipetz and Friedburg’s medical opinions. The ALJ did acknowledge and accept
their opinions regarding “moderate production demands,” and failed to cite any evidence
discrediting such production limitations. Tr. 28. In her analysis, the ALJ first cited Dr. Lipetz’s
opinion, which she found to be supported by his “acknowledge[ment] [of] [Plaintiff’s]
longstanding history of multiple mental diagnoses, but pointed to treatment records documenting
an improvement in symptoms with medication, further noting that the claimant demonstrated
average intellectual functioning . . .” Tr. 28, citing Tr. 98, 111, 133-34, 156-57, 94-95, 107-08.
Next, the ALJ found that Dr. Friedburg’s opinion “affirmed Dr. Lipetz’s initial findings,” despite
newly submitted medical records documenting Plaintiff’s mental status through February 2021.
Tr. 29, citing Tr. 126, 149.
After reviewing Plaintiff’s newly submitted medical records, the Court does not agree with
the ALJ that “these new records point to a generally stable level of mental function in spite of
[Plaintiff’s] continued subjective allegations of mental symptoms.” Tr. 29. In fact, the record

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shows Plaintiff's worsening and extreme mental impairments due to his bipolar, anxiety and PTSD
symptoms. The ALJ first mentions Plaintiff’s records from Samaritan Health Services between
April and October of 2021 to conclude that “while [Plaintiff] periodically reported symptoms of
anxiety and depression, he also reported good symptom relief with medication, exhibiting intact
memory and attention.” Tr. 29, citing to Tr. 1343, 1352-53, 1359, 1365, 1371. Though
improvement with treatment is a very common reason for an ALJ to reject symptom testimony, it
is error to isolate a few isolated instances of improvement in the medical record as a basis for
concluding a claimant is capable of working. Garrison, 759 F.3d at 1017 (citation omitted). It is
common for mental health symptoms to wax and wane, such that cherry-picking the record for
facts that support the non-disability decision while ignoring others to paint an inaccurate picture
of the record as a whole is reversible error. Applicable to this case is that “[r]eports 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 [his] symptoms.” Id. (citing Ryan v. Comm’r of
Soc. Sec., 528 F.3d 1194, 1200-01 (9th Cir. 2008)); see also Attmore v. Colvin, 827 F.3d 872, 87779 (9th Cir. 2016) (ALJ erred by finding improvement where claimant continued to have functional
impairments and improvement was not sustained).
The parts of the record the ALJ repeatedly cites to do not coincide with the patient’s overall
well-being as directed by Ryan and Attmore. The ALJ cites to page 1343 of the record as evidence
of intact memory and attention. However, that same page also shows Plaintiff’s stuttering problem
(as mentioned in the 2022 hearing), “hopeless” mood, dysthymic and euthymic affect, his need to
“push away [suicidal] thoughts.” And though some later treatment notes mention his mood as
“more stable than other points in life, calm,” his anxiety and depression were still present despite
substantial treatment, including psychotherapy and a Lithium prescription to combat mania. Tr.

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1371, see also Tr. 1285-86, 1291, 1302, 1307, 1393. Plaintiff’s mental health symptoms came to
a head in April and May 2022, as the ALJ points out, when he demonstrated increased anxiety and
poor grooming at his Corvallis Family Medicine visit. Tr. 29, citing Tr. 1648, 1674. The provider
at that time noted the following for Plaintiff’s psychiatry examination:
poorly groomed, malodor in room, anxious affect, intermittent tearful, express[ed] anxiety
surrounding this visit, endorsing concerns for [suicide] next winter, stutter noted but
otherwise speech is appropriate in tone, volume, and content. Tr. 1648.
At the end of that report the provider also notes Plaintiff is “severe[ly] bipolar to the point where
he is disabled (used to work as a lawyer prior to mental health disorders), endorses repetitive
thoughts and Tourette’s-like symptoms.” Tr. 1650. However, the ALJ concluded that Plaintiff’s
increased symptoms were “merely temporary, as July 2022 records show that he was alert and
pleasant, interacting normally.” Tr. 29, citing Tr. 1779. This is merely one general examination
note and again does not coincide with Plaintiff’s overall well-being as directed by Ryan and
Attmore.
The ALJ next points to more recent records to show that Plaintiff had “symptom
improvement with medication, and [Plaintiff] reported generally normal activities including dating
and providing caregiving services for his elderly mother.” Tr. 29, citing Tr. 1922-23, 1925.
However, the ALJ is again cherry-picking facts in the record. Here, the record the ALJ cites to
does indeed indicate that Plaintiff had a new dating partner and helped care for his mother. Tr.
1922-23, 1925. However, those same progress notes indicate that he frequently dissociates with
his dating partner and ruminates on the events in his life that triggered PTSD, has suicidal ideation,
had “extreme external stress from upcoming SSDI hearing,” experiences “catastrophic thinking,”
and that his mother’s needs are becoming so great that Plaintiff met with a hospice care team for
her. Tr. 1922-23, 1925, 1779. Consequently, the treatment notes the ALJ relies on do not represent

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substantial evidence to support her conclusion that “Dr. Lipetz and Dr. Friedburg’s proposed
limitation to simple work appears to remain consistent with the record, and the undersigned
incorporates this into [Plaintiff’s] limitation to simple, routine, and repetitive tasks,” absent any
discussion of Plaintiff’s production limitations due to his mental health. Tr. 29.
The Court agrees with Plaintiff’s contention that the Paragraph B regulatory definitions related to
pace, persistence, and production deficiencies are different than other functioning considerations,
such as simple, routine, and repetitive tasks, “and would need to be addressed separately and
specifically in the RFC.” Pl. Br., at 12 (ECF 11). The ALJ failed to do so here. The Commissioner
argues that the ALJ’s RFC sufficiently accommodated Plaintiff’s limitations because:
the ALJ specifically equated the moderate limitations in the areas of “concentrating,
persisting, or maintaining pace” and “adapting or managing oneself” to specific parts of
the RFC including the “simple, routine, or repetitive task” portion as well as the limitation
in the RFC dealing with judgment and changes in the work setting. Def. Br., at 10 (ECF
15).
The Commissioner relies on three Ninth Circuit cases where the court held the RFC determination
limiting [claimant] to “simple, repetitive tasks” adequately encompassed their moderate
difficulties in concentration, persistence, or pace. See Turner v. Berryhill, 705 F. App’x 495, 49899 (9th Cir. 2017); Lee v. Berryhill, 721 F. App’x 604, 608 (9th Cir. 2017); and Sabin v. Astrue,
337 F. App’x 617, 621 (9th Cir. 2009). However, the case here is distinguishable because the above
authority only applies if the determination is consistent with the restrictions identified in the
medical evidence. See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008) (all three
cases the Commissioner cites use this rule). This is not the case here, as the determination contrasts
with the restrictions identified in the medical evidence. To view Plaintiff’s medical record entirely
and conclude that he can do “simple, routine, or repetitive tasks” as a catch-all for his mental
incapacities would be nearly unconscionable. Plaintiff has been battling suicidal thoughts, plans,

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and ideations for several years. Tr. 486, 488, 498, 531, 576, 605, 641. Once a thriving attorney in
the state of Oregon, the record shows Plaintiff’s severe anxiety to even attend his own SSDI and
divorce hearings. Tr. 1888, 1909, 1921, 1925. The record supports his severe PTSD symptoms and
how they affect his daily life, including GI upset, sleep disturbance, physical dissociation
throughout the day, and emotional instability. Tr. 1617, 1650, 1838, 1881, 1888, 1900, 1903, 1913.
The opinions of Drs. Lipetz and Friedburg regarding Plaintiff’s “moderate production limitations”
only scratch the surface of his mental incapacities.
In this case, because the ALJ credited the opinions of the state agency physicians that
Plaintiff was limited to moderate production demands, which included their discussion about how
his anxiety and self-critical nature would impact his production, she was required to incorporate
these limitations into Plaintiff’s RFC. The ALJ’s failure to include Plaintiff’s moderate production
demands into the RFC, but instead limiting him to “simple, routine, and repetitive tasks” was error,
and does not reflect Plaintiff’s “overall well-being and the nature of [his] symptoms.” Ryan, 528
F.3d at 1200-01; see also Attmore, 827 F.3d at 877-79.
II.

Hypothetical Question to the VE
Here, the Court need not address the parties’ specific arguments raised in the briefing

because the Court observes sua sponte that the hypothetical question the ALJ posed to the VE at
the administrative hearing did not contain all the limitations present in the ALJ’s RFC assessment,
which renders the ALJ’s decision unsupported by substantial evidence as discussed previously in
this Order. See Osenbrock v. Apfel, 240 F.3d 1157, 1165 (9th Cir. 2001) (“An ALJ must propound
a hypothetical to a VE that is based on medical assumptions supported by substantial evidence in
the record that reflects all the claimant’s limitations”); see also Parker v. Berryhill, 708 F. App’x.
316, 319 (9th Cir. 2017) (“Hypothetical questions posed to a [VE] must include all of the medical

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and vocational limitations of the claimant supported by substantial evidence in the record”) (citing
Osenbrock, 240 F.3d at 1163)); Galton v. Astrue, No. EDCV 07-0824-DOC (JTL), 2008 U.S. Dist.
LEXIS 54360, 2008 WL 2677129 at *5 (CD. Cal. July 7, 2008) (“Where a hypothetical fails to
reflect each of the claimant’s limitations that are supported by substantial evidence, the [VE’s]
answer has no evidentiary value.” (citing Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984)).
Specifically, the ALJ did not include Plaintiff’s RFC moderate production demand in the
hypothetical question posed to the VE at the administrative hearing. See Tr. 22 (the ALJ finding
that Plaintiff has the RFC to perform, in relevant part, “simple, routine, and repetitive tasks, can
use judgment for that type of work, and can deal with changes in a work setting consistent with
that type of work.” (emphasis added)); see also Tr. 82-83 (the ALJ asking the VE if a hypothetical
individual of Plaintiff’s same age, education (an associates of art degree because his ability to use
the law degree is not present due to the loss of his license), limitation to light work, limitation to
perform simple routine and repetitive tasks, could use judgment for that type of work, and could
deal with changes in a work setting consistent with that type of work, but could not perform past
relevant work, but could work as a marker, garment sorter, or router)).
Consequently, because the hypothetical question the ALJ asked the VE at the
administrative hearing did not contain all of Plaintiff’s limitations from the ALJ’s RFC
assessment—specifically, Plaintiff’s production demand limitation due to his mental
impairments—the VE’s response to the ALJ’s incomplete hypothetical question had no evidentiary
value. Gallant, 753 F.2d at 1456; Galton, 2008 U.S. Dist. LEXIS 54360, 2008 WL 2677129, at
*5. As such, the ALJ’s findings that Plaintiff can perform the marker, garment sorter, or router
position, are not supported by substantial evidence in the record because the ALJ based her

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findings on the VE’s testimony that was provided in response to an incomplete hypothetical
question.
Accordingly, the Court finds that remand is appropriate, and the only remaining question
is whether remand for further proceedings or for payment of benefits is appropriate.
REMEDY
A reviewing court has discretion to remand an action for further proceedings or for a
finding of disability and an immediate award of benefits. See, e.g., Stone v. Heckler, 761 F.2d
530, 533 (9th Cir. 1985). Whether an action is remanded for an award of benefits or for further
proceedings depends on the likely utility of additional proceedings. Harman v. Apfel, 211 F.3d
1172, 1179 (9th Cir. 2000). In determining whether an award of benefits is warranted, the court
conducts the “three-part credit-as-true” analysis. Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir.
2014). Under this analysis the court considers whether: (1) the ALJ has failed to provide legally
sufficient reasons for rejecting evidence; (2) the record has been fully developed and further
proceedings would serve no useful purpose; and (3) if the improperly discredited evidence were
credited as true, the ALJ would be required to find the claimant disabled on remand. Dominguez
v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015). Even where all the requisites are met, however, a
court may still remand for further proceedings “when the record as a whole creates serious doubt
as to whether the claimant is, in fact, disabled[.]” Garrison, 759 F3d at 1021. “Serious doubt” can
arise when there are “inconsistencies between the claimant’s testimony and the medical
evidence,” or if the Commissioner “has pointed to evidence in the record the ALJ overlooked and
explained how that evidence casts serious doubt” on whether the claimant is disabled under the
Act. Dominguez, 808 F.3d at 407 (citing Burrell v. Colvin, 775 F.3d 1133, 1141 (9th Cir. 2014)
(internal quotation marks omitted)).

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Here, the first condition is met because the ALJ improperly failed to incorporate Plaintiff’s
mental limitations into the RFC and therefore effectively rejected the opinions of Drs. Lipetz and
Friedburg. Dominguez, 808 F.3d at 407.
The second condition is also met. The Ninth Circuit has held that remanding for further
proceedings rather than for an immediate payment of benefits serves a useful purpose where “the
record has [not] been fully developed [and] there is a need to resolve conflicts and ambiguities.”
Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1101 (9th Cir. 2014) (internal quotations
and citations omitted). Here, there is no suggestion by the parties that the record is not fully
developed, and the court has found no outstanding conflicts or ambiguities after a careful reading
of the record.
As to the third prong of the credit-as-true analysis, the court finds that the ALJ would be
required to find Plaintiff disabled on remand. Here, the ALJ determined that Plaintiff was not
disabled based on a finding that Plaintiff could perform jobs requiring simple, routine, and
repetitive tasks. Tr. 22. This finding was based on Vocational Expert (VE) testimony at the
administrative hearing. At the hearing, the ALJ asked the VE whether a claimant with Plaintiff’s
RFC would be able to perform any work and asked the VE to provide a few examples. The VE
answered in the affirmative, and listed the representative occupations of marker, garment sorter
and router – each at a light exertional level, but also requiring specific levels of production to
remain employed. Tr. 83; see DOT# 209.587-034; see DOT# 222.687-014; see DOT# 222.587038; see also https://occupationalinfo.org/appendxc_1.html (stating that when the job requires
working at a production rate pace entailing the constant pushing and/or pulling of materials even
though the weight of those materials is negligible. NOTE: The constant stress and strain of

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maintaining a production rate pace, especially in an industrial setting, can be and is physically
demanding of a worker even though the amount of force exerted is negligible.)
Consistent with the ALJ’s flawed RFC, the three jobs listed by the VE require specific
production demands to remain sustainable, i.e., sorting garments according to their lot and size
numbers recorded on tags, stamping, stenciling, tagging packages, boxes, or merchandise to
indicate delivery routes, or marking and attaching price tickets to articles of merchandise. See
DOT# 209.587-034; see DOT# 222.687-014; see DOT# 222.587-038. This level of production is
inconsistent with Drs. Lipetz and Friedburg’s limitations on Plaintiff’s production capacity.
Because the VE did not identify any jobs that Plaintiff could perform given his credible mental
limitations, the ALJ would be required to find Plaintiff disabled when the erroneously rejected
limitations are credited as true. See Tr. 83.
If a court concludes, as in this case, that a claimant meets the three criteria of the credit-astrue standard, the improperly discredited evidence is credited as true and remand for an award of
benefits is appropriate unless “the record as a whole creates serious doubt as to whether the
claimant is, in fact, disabled within the meaning of the Social Security Act.” Garrison, 759 F.3d
at 1020–21 (citations omitted). The Commissioner argues that the ALJ provided substantial
evidence supporting her RFC finding and that she was not required to include additional RFC
limitations related to Plaintiff’s mental impairments. Def. Br., at 11 (ECF 15). However, the record
as a whole shows Plaintiff’s severe mental impairments despite substantial treatment, which
contradicts the findings of the ALJ. See Garrison, 759 F.3d at 1017.
Here, the ALJ credited competent medical evidence that Plaintiff was mentally limited in
ways that significantly limit his ability to perform substantive gainful activity. As discussed above,
the VE did not identify any jobs that Plaintiff could perform that accounted for moderate

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production limitations. Considering the record as a whole, the Court therefore concludes that there
is no reason for serious doubt as to whether Plaintiff is disabled. Garrison, 759 F.3d at 1020–21
(citations omitted); see also Revels v. Berryhill, 874 F.3d 648, 668 n.8 (9th Cir. 2017) (explaining
that where each of the credit-as-true factors is met, only in “rare instances” does the record as a
whole leave “serious doubt as to whether the claimant is actually disabled”) (citing Garrison, 759
F.3d at 1021.) Accordingly, the Court exercises its discretion and remands this case for an
immediate calculation and payment of benefits.

CONCLUSION
For the reasons stated above, the Commissioner’s final decision is REVERSED and
REMANDED for the immediate payment of benefits, under sentence four of 42 U.S.C. § 405(g).
IT IS SO ORDERED.
DATED this 5th day of February 2024.
s/ Mustafa T. Kasubhai
MUSTAFA T. KASUBHAI (He / Him)
United States Magistrate Judge

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