Moncrief v. Commissioner Social Security Administration

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

REBEKAH M.1, Case No. 6:23-cv-1741-SI

Plaintiff, OPINION AND ORDER

v.

LELAND DUDEK, ACTING

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

Katherine L. Eitenmiller and Brent Wells, WELLS, MANNING, EITENMILLER & TAYLOR, PC,

474 Willamette Street, Eugene, OR 97401. Of Attorneys for Plaintiff.

William Narus, Acting United States Attorney, and Kevin C. Danielson, Executive Assistant

United States Attorney, UNITED STATES ATTORNEY’S OFFICE, 1000 SW Third Avenue,

Suite 600, Portland, OR 97204; John Drenning, Special Assistant United States Attorney, OFFICE

OF THE GENERAL COUNSEL, Social Security Administration, 6401 Security Boulevard, Baltimore,

MD 21235. Of Attorneys for Defendant.

1 In the interest of privacy, this Opinion and Order uses only the first name and the initial

of the last name of the non-governmental party in this case. When applicable, this Opinion and

Order uses the same designation for a non-governmental party’s immediate family member.

Michael H. Simon, District Judge.

Plaintiff Rebekah M. seeks judicial review of the final decision of the Commissioner of

the Social Security Administration (“Commissioner”) denying Plaintiff’s application for

Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act (“Act”). For

the reasons stated below, the Court reverses the decision of the Commissioner and remands the

case for further proceedings.

STANDARD OF REVIEW

The decision of the administrative law judge (“ALJ”) is the final decision of the

Commissioner in this case. The district court must affirm the ALJ’s decision if it is based on the

proper legal standards and the findings are supported by substantial evidence. 42 U.S.C.

§ 405(g); see also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). “Substantial

evidence” means “more than a mere scintilla” and requires only “such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 587

U.S. 97, 103 (2019) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); see also

Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009).

When the evidence is susceptible to more than one rational interpretation, the Court must

uphold the ALJ’s conclusion. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). Variable

interpretations of the evidence are insignificant if the ALJ’s interpretation is a rational reading of

the record, and this Court may not substitute its judgment for that of the ALJ. See Batson v.

Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193, 1196 (9th Cir. 2004). “[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) (quoting

Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). A reviewing court, however,

may not affirm the ALJ on a ground upon which the ALJ did not rely. Id.; see also Bray, 554

F.3d at 1225-26.

BACKGROUND

A. Plaintiff’s Application

Plaintiff filed an application for a period of disability and disability insurance benefits

(“DIB”) under Title II of the Act on May 13, 2021, alleging disability beginning on

December 31, 2008. Administrative Record (“AR”) 252-58. Plaintiff also filed an application for

SSI on May 13, 2021, again alleging disability beginning on December 31, 2008. AR 259-68.

The agency denied her claims both initially and upon reconsideration. See AR 161-65, 172-179.

Plaintiff requested a hearing before an ALJ. AR 180-81. Plaintiff’s written request for a hearing

amended the alleged onset date to May 13, 2021, effectively withdrawing her application for

DIB. See AR 286. Plaintiff acknowledged that she withdrew her DIB claim at the hearing.

AR 41.

Plaintiff’s date of birth is January 6, 1972, and she was 49 years old as of the amended

alleged disability onset date. AR 93. Plaintiff appeared for a telephone hearing before an ALJ in

October 2022. AR 36-37. On November 2, 2022, the ALJ issued a decision denying Plaintiff’s

claim for benefits. AR 15-35. Plaintiff requested the Appeals Council to review the ALJ’s

decision. AR 250-51. On September 26, 2023, the Appeals Council denied Plaintiff’s request for

review. AR 1-5. Accordingly, the ALJ’s decision became the final agency decision from which

Plaintiff now seeks review.

B. The Sequential Analysis

A claimant is disabled if he or she is unable to “engage in any substantial gainful activity

by reason of any medically determinable physical or mental impairment which . . . has lasted or

can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C.

§ 423(d)(1)(A). “Social Security Regulations set out a five-step sequential process for

determining whether an applicant is disabled within the meaning of the Social Security Act.”

Keyser v. Comm’r Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011). Those five steps are:

(1) Is the claimant presently working in a substantially gainful

activity? (2) Is the claimant’s impairment severe? (3) Does the

impairment meet or equal one of a list of specific impairments

described in the regulations? (4) Is the claimant able to perform

any work that he or she has done in the past? and (5) Are there

significant numbers of jobs in the national economy that the

claimant can perform?

Id. at 724-25. Each step is potentially dispositive. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). If

the analysis continues beyond step three, the ALJ must evaluate medical and other relevant

evidence to assess and determine the claimant’s “residual functional capacity” (“RFC”).

The claimant bears the burden of proof at steps one through four. Bustamante v.

Massanari, 262 F.3d 949, 953 (9th Cir. 2001); see also Tackett v. Apfel, 180 F.3d 1094, 1098

(9th Cir. 1999). The Commissioner bears the burden of proof at step five. Tackett, 180 F.3d

at 1100. At step five, the Commissioner must show that the claimant can perform other work that

exists in significant numbers in the national economy, “taking into consideration the claimant’s

residual functional capacity, age, education, and work experience.” Id.; see also 20 C.F.R.

§§ 404.1566, 416.966 (describing “work which exists in the national economy”). If the

Commissioner fails to meet this burden, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v),

416.920(a)(4)(v). If, however, the Commissioner proves that the claimant is able to perform

other work existing in significant numbers in the national economy, the claimant is not disabled.

See Tackett, 180 F.3d at 1099; Bustamante, 262 F.3d at 954.

C. The ALJ’s Decision

At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity

since May 13, 2021. AR 21. At step two, the ALJ determined that Plaintiff had the following

severe impairments: degenerative disc disease of the cervical and lumbar spine, bilateral carpal

tunnel syndrome, osteopenia, fibromyalgia, obesity, post-traumatic stress disorder (“PTSD”),

panic/anxiety disorder, and depressive disorder. Id. At step three, the ALJ determined that

Plaintiff does not have an impairment or combination of impairments that meets or medically

equals the severity of any impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id.

The ALJ next determined Plaintiff’s RFC, concluding Plaintiff’s limitations were as

follows:

lift/carry 20 pounds occasionally and 10 pounds frequently; sit for

six hours in an eight hour workday; stand and/or walk for six hours

in an eight hour workday; occasional climbing of ramps or stairs

but no climbing of ladders, ropes, or scaffolds; frequent balancing;

occasional stooping, kneeling, and crouching; no crawling;

frequent forward, lateral and overhead reaching; frequent handling

and fingering; must avoid concentrated exposure to vibration; no

exposure to hazardous machinery or unprotected heights; able to

understand, remember, and carry out simple tasks while

maintaining attention and concentration for two hours at a time

before requiring a regularly scheduled break; low stress work

defined as having only occasional decision-making and only

occasional changes in the work setting; occasional interaction with

coworker[s] and supervisors; and no interaction with the public.

AR 23.

At step four, the ALJ found that Plaintiff has no past relevant work. AR 29. At step five,

the ALJ found that considering Plaintiff’s age, education, work experience, and RFC, Plaintiff

could perform jobs that exist in significant numbers in the national economy, such as Marker,

DOT #209.587-034 (84,000 jobs in the national economy); Electronics Worker, DOT #726.687-

010 (169,000 jobs in the national economy); and Garment Sorter, DOT #222.687-014 (40,000

jobs in the national economy). AR 29-30. Thus, the ALJ found that Plaintiff was not disabled

under the Act from May 13, 2021, through the date of the ALJ’s decision. AR 30.

DISCUSSION

Plaintiff argues that the ALJ committed two errors. First, Plaintiff argues that the ALJ

failed to identify clear and convincing reasons supported by substantial evidence in the record to

reject Plaintiff’s symptom testimony. Second, Plaintiff argues that the ALJ erred in finding

unpersuasive the medical opinion of Scott Alvord, PsyD. The Court addresses each alleged error

in turn.

A. Plaintiff’s Testimony

1. Standards

A claimant “may make statements about the intensity, persistence, and limiting effects of

his or her symptoms.” SSR 16-3p, 2017 WL 5180304, at *6 (Oct. 25, 2017).2 There is a two-step

process for evaluating a claimant’s testimony about the severity and limiting effect of the

claimant’s symptoms. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). “First, the ALJ must

determine whether the claimant has presented objective medical evidence of an underlying

impairment ‘which could reasonably be expected to produce the pain or other symptoms

alleged.’” Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (quoting Bunnell v.

Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). When doing so, “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 v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996).

2 Effective March 28, 2016, Social Security Ruling (SSR) 96-7p was superseded by

SSR 16-3p, which eliminates the term “credibility” from the agency’s sub-regulatory policy.

SSR 16-3p; Titles II and XVI: Evaluation of Symptoms in Disability Claims, 81 Fed. Reg. 14166

(Mar. 16, 2016). Because, however, case law references the term “credibility,” it may be used in

this Opinion and Order.

“Second, if 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). It is “not sufficient for the ALJ to make only general findings; he must

state which pain testimony is not credible and what evidence suggests the complaints are not

credible.” Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). Those reasons must be

“sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily

discredit the claimant’s testimony.” Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (citing

Bunnell, 947 F.2d at 345-46).

Consideration of subjective symptom testimony “is not an examination of an individual’s

character,” and requires the ALJ to consider all the evidence in an individual’s record when

evaluating the intensity and persistence of symptoms. SSR 16-3p, 2017 WL 5180304, at *2. The

Commissioner recommends that the ALJ examine “the entire case record, including the objective

medical evidence; an individual’s statements about the intensity, persistence, and limiting effects

of symptoms; statements and other information provided by medical sources and other persons;

and any other relevant evidence in the individual’s case record.” Id. at *4. The Commissioner

further recommends assessing: (1) the claimant’s statements made to the Commissioner, medical

providers, and others regarding the claimant’s location, frequency and duration of symptoms, the

impact of the symptoms on daily living activities, factors that precipitate and aggravate

symptoms, medications and treatments used, and other methods used to alleviate symptoms;

(2) medical source opinions, statements, and medical reports regarding the claimant’s history,

treatment, responses to treatment, prior work record, efforts to work, daily activities, and other

information concerning the intensity, persistence, and limiting effects of an individual’s

symptoms; and (3) non-medical source statements, considering how consistent those statements

are with the claimant’s statements about his or her symptoms and other evidence in the file. See

id. at *7-8.

The ALJ’s decision relating to a claimant’s subjective testimony may be upheld overall

even if not all the ALJ’s reasons for discounting the claimant’s testimony are upheld. See

Batson, 359 F.3d at 1197. The ALJ may not, however, discount testimony “solely because” the

claimant’s symptom testimony “is not substantiated affirmatively by objective medical

evidence.” Robbins, 466 F.3d at 883.

2. Analysis

The ALJ concluded that Plaintiff’s medically determinable impairments could reasonably

be expected to cause the alleged symptoms, satisfying step one of the framework. AR 26. At step

two, the ALJ offered the boilerplate statement that Plaintiff’s statements about the intensity,

persistence, and limiting effects of her symptoms were “not entirely consistent with the medical

evidence and other evidence in the record for the reasons explained in this decision.” Id. Because

there was no evidence of malingering, the ALJ’s decision to discredit Plaintiff’s symptom

testimony will be upheld only if the ALJ identified clear and convincing reasons to do so. See

Lingenfelter, 504 F.3d at 1036. The ALJ discounted Plaintiff’s symptom testimony because it

was contradicted by her treatment history, inconsistent with her daily living activities, and

unsupported by the objective medical evidence. Plaintiff argues that these reasons as articulated

by the ALJ were not clear and convincing, and also asserts that the ALJ failed to articulate his

reasons with the required specificity.

a. Specificity

An ALJ must specifically identify what evidence contradicted what testimony. See

Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1103 (9th Cir. 2014) (stating that an

ALJ may not vaguely conclude that “a claimant’s testimony is ‘not consistent with the objective

medical evidence,’ without any ‘specific findings in support’ of that conclusion” (quoting

Vasquez, 572 F.3d at 592)). A court “cannot review whether the ALJ provided specific, clear,

and convincing reasons for rejecting [a claimant’s] pain testimony where . . . the ALJ never

identified which testimony she found not credible, and never explained which evidence

contradicted that testimony.” Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020) (emphasis in

original) (quoting Brown-Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015)). “[A]n ALJ does

not provide specific, clear, and convincing reasons for rejecting a claimant’s testimony by simply

reciting the medical evidence in support of his or her residual functional capacity determination”

but must “specify which testimony she finds not credible,” and the district court may not “comb

the administrative record to find specific conflicts.” Brown-Hunter, 806 F.3d at 489, 494

(quoting Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014)); see also id. (“[P]roviding a

summary of medical evidence . . . is not the same as providing clear and convincing reasons for

finding the claimant’s symptom testimony not credible.” (emphasis in original)); Treichler, 775

F.3d at 1103 (rejecting the argument that because the ALJ “set out his RFC and summarized the

evidence supporting his determination” the court could infer “that the ALJ rejected [plaintiff’s]

testimony to the extent it conflicted with that medical evidence”). Instead, the ALJ must

“identify the testimony she found not credible” and “link that testimony to the particular parts of

the record supporting her non-credibility determination.” Brown-Hunter, 806 F.3d at 494. Failure

to do so is legal error. Id.

Here, the ALJ summarized Plaintiff’s testimony. AR 23-24. The ALJ then found that

Plaintiff’s “statements about the intensity, persistence, and limiting effects of her symptoms . . .

are inconsistent with clinical observations, diagnostic testing, [Plaintiff’s] treatment history, and

[Plaintiff’s] activities.” AR 26. To support his findings, the ALJ addressed each of Plaintiff’s

severe impairments and selectively summarized the treatment record to conclude that her

allegations were not supported. AR 26-27. “Although the ALJ did provide a relatively detailed

overview of [Plaintiff’s] medical history, providing a summary of medical evidence is not the

same as providing clear and convincing reasons for finding the claimant's symptom testimony

not credible.” See Lambert, 980 F.3d at 1278 (emphasis in original) (cleaned up).

The ALJ broadly rejected Plaintiff’s reports of chronic pain and symptoms related to

panic and anxiety disorder as inconsistent or unsupported by the record, but the ALJ never stated

which elements of Plaintiff’s testimony the ALJ found not credible and which evidence

contradicted that testimony. See id. at 1277. Indeed, after generally summarizing Plaintiff’s

testimony, the ALJ did not further mention any specific testimony by Plaintiff or any particular

limitation. Nor did the ALJ link any medical evidence to any testimony by Plaintiff when

discussing Plaintiff’s medical records. As a result, the ALJ’s opinion fails properly to evaluate

Plaintiff’s subjective symptom testimony.

As the Ninth Circuit has repeatedly instructed, without adequate specificity in the ALJ’s

opinion, the Court cannot evaluate whether the ALJ had specific, clear, and convincing reasons

supported by substantial evidence in the record to reject Plaintiff’s subjective symptom

testimony. The ALJ may not simply summarize Plaintiff’s testimony and then summarize the

medical record. This is reversible error. Even if the ALJ had identified which portions he found

not credible, however, the reasons provided for rejecting Plaintiff’s subjective symptom

testimony were legally insufficient, as the Court next explains.

b. Conservative Treatment

The ALJ rejected Plaintiff’s symptom testimony in part because she received

conservative treatment.3 The amount of treatment is “an important indicator of the intensity and

persistence of [a claimant’s] symptoms.” 20 C.F.R. § 416.929(c)(3). Routine, conservative

treatment can be sufficient to discount a claimant’s subjective testimony regarding the limitations

caused by an impairment. Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007). Not seeking an

“aggressive treatment program” permits the inference that symptoms were not “as all-disabling”

as the claimant reported. Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). If, however,

the claimant has a good reason for not seeking more aggressive treatment, conservative treatment

is not a proper basis for rejecting the claimant’s subjective symptoms. Carmickle v. Comm’r,

Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008).

The ALJ portrayed cortisone wrist injections as a conservative treatment modality. Courts

generally “decline to consider a claimant’s sustained treatment of injections to be conservative.”

John, H. v. O’Malley, 2024 WL3534430, at *7 (D. Or. July 25, 2024) (quotation marks omitted);

see also Oldham v. Astrue, 2010 WL 2850770, at *9 (C.D. Cal. July 19, 2010) (finding that

steroid injections were not a form of conservative treatment when pursued over the course of

3 The Commissioner asserts in the response brief that the ALJ also argued that Plaintiff’s

treatment was effective. The ALJ mentioned once that “[b]racing was effective at relieving pain”

in discussing Plaintiff’s carpal tunnel. AR 26. The Court does not construe this passing comment

as the ALJ offering improvement with treatment as a reason for discounting Plaintiff’s subjective

testimony. Even if the ALJ intended this comment to be a reason, it is not supported by

substantial evidence in the record. The record citation offered by the ALJ is from

September 22, 2022, in which the provider reported that Plaintiff stated that wearing the brace

“feels good and helped to relieve her pain.” AR 1106. At this visit, however, Plaintiff was

following up from a visit one week earlier. She complained of increased pain. She had worn out

her brace and was getting fitted for a new brace. She was getting an evaluation for surgery. Her

comment that the brace helped in the same visit that she complained of increased pain does not

support that the brace improved her symptoms sufficiently to discount her subjective symptom

testimony.

several months). In contrast, a single injection is generally considered to be a conservative

treatment. See Woods v. Kijakazi, 32 F.4th 785, 794 (9th Cir. 2022) (holding that the plaintiff

received conservative treatment when she treated her symptoms “mostly with medication alone

until she received a left knee injection”); De Magana v. Comm’r of Soc. Sec., 2024 WL 870821,

at *15 (E.D. Cal. Feb. 29, 2024) (“The Court agrees . . . that [the plaintiff’s] treatment was

conservative. [The Plaintiff] received a single Toradol injection.”).

The ALJ noted that Plaintiff “received a cortisone injection . . . for carpal tunnel” in

April 2021. AR 24 (citing AR 695-97). The Commissioner characterizes in the response brief

that “Plaintiff continued with injections and bracing” after the April 2021 injection. ECF 14 at 6

(emphasis added) (citing AR 1011, 1092, 1104-05).4 Although Plaintiff repeatedly discussed

having another injection, as noted by the ALJ (see AR 26, noting that Plaintiff elected limiting

injections and bracing as her treatment modalities), the record does not show that she actually

received another injection. Thus, Plaintiff received conservative treatment for her carpal tunnel.

The ALJ also explained that Plaintiff only treated her osteopenia with supplementation

and exercise. AR 26. The Court agrees that this was conservative treatment.

With respect to Plaintiff’s fibromyalgia, the ALJ simply explained that Plaintiff’s

“medication dosages were not regularly increased to deal with worsening symptoms.” AR 27.

4 The Commissioner’s brief refers to multiple injections but does not specify the total

number of injections that Plaintiff received during the relevant period. Plaintiff received a

cortisone injection in April 2021. AR 695-97. In August 2021, a medical provider noted that

Plaintiff reported worsening carpal tunnel symptoms, was “interested in repeat injection,” and

planned to follow up with “ortho hand.” AR 1011. In July 2022, a medical provider referenced a

“wrist injection 1 year ago x1 which improved symptoms for a few months” and “scheduling

glucocorticoid right wrist injection.” AR 1092. In September 2022, Plaintiff was seen for

occupational therapy, where a medical provider noted that Plaintiff had been wearing a wrist

brace, should continue wearing a wrist brace, and had an appointment “with hand surgery.”

AR 1102-1106.

That reasoning is insufficient because “[a]ny evaluation of the aggressiveness of a treatment

regimen must take into account the condition being treated.” See Revels v. Berryhill, 874

F.3d 648, 667 (9th Cir. 2017) (finding that the ALJ erred in failing to explain why various

prescription medicines and injections in the plaintiff’s neck, back and hands constituted

conservative treatment for fibromyalgia); see also Benecke v. Barnhart, 379 F.3d 587, 590 (9th

Cir. 2004) (“Fibromyalgia’s cause is unknown, there is no cure, and it is poorly-understood

within much of the medical community.”). Fibromyalgia is a somewhat unique condition.

In Cindy F. v. Berryhill, the Court found that the ALJ erred in discounting the plaintiff’s

subjective symptom testimony when the ALJ found that the plaintiff’s doctors “prescribed pain

medications and recommended more activity, but . . . [did] not recommend[] any more

significant treatment for her fibromyalgia.” 367 F. Supp. 3d 1195, 1210 (D. Or. Feb. 13, 2019)

(quotation marks omitted). “Because the ALJ did not specify what ‘more aggressive treatment

options [were] appropriate or available,’ it would be illogical to discredit [the plaintiff] ‘for

failing to pursue non-conservative treatment options where none exist.’” Id. (quoting Lapierre-

Gutt v. Astrue, 382 F. App’x 662, 664 (9th Cir. 2010)). Here, it would be similarly illogical to

discredit Plaintiff because her doctors did not “regularly” increase the dosages of her

medications. The ALJ did not explain what, if any, dosage would be consistent with the symptom

testimony, nor did he acknowledge that fibromyalgia symptoms tend to “wax and wane.” See

SSR 12-2p, 2012 WL 3104869, at *6. Without more, the ALJ’s characterization of Plaintiff’s

fibromyalgia care as “conservative” is not supported by substantial evidence and does not suffice

as a clear and convincing reason to reject her symptom testimony. Further, the ALJ offered no

conservative treatment explanation for Plaintiff’s degenerative disc disease.

The ALJ also found that Plaintiff received only conservative treatment for mental

impairments because she did not receive “significant or repeated emergency or inpatient

treatment . . . for psychological or psychiatric distress.” AR 27. The Court disagrees that such

treatment is required for a mental impairment to be disabling. “Indeed, the Ninth Circuit has

criticized the use of lack of treatment to reject mental complaints, both because mental illness is

notoriously under-reported and because it is a questionable practice to chastise one with a mental

impairment for the exercise of poor judgment in seeking rehabilitation.” Matthews v.

Astrue, 2012 WL 1144423, at *9 (C.D. Cal. April 4, 2012) (citing Regennitter v. Comm’r of Soc.

Sec. Admin., 166 F.3d 1294, 1299-1300 (9th Cir. 1999)); see also id. at *9 (“Claimant does not

have to undergo inpatient hospitalization to be disabled.”); Joseph S. v. O’Malley, 2024

WL 418632, at *14 (S.D. Cal. Feb. 5, 2024) (“The ALJ erred by suggesting or implying that

emergency or inpatient psychiatric treatment is required to constitute non-conservative

treatment.”). Moreover, prescription of psychiatric medications generally is not considered a

conservative treatment for a mental impairment. Drawn v. Berryhill, 728 F. App’x 637, 642 (9th

Cir. 2018) (“[T]he ALJ improperly characterized [the plaintiff’s] treatment as ‘limited and

conservative’ given that she was prescribed a number of psychiatric medications); Powers v.

Kijakazi, 2021 WL 5154115, at *10 (D. Nev. Nov. 4, 2021) (holding that the prescription of

psychiatric medications Alprazolam, Bupropion, Clonazepam, Risperidone, Sertraline, and

Trazodone was not conservative treatment).

Plaintiff participated in counseling sessions and took multiple prescribed psychiatric

medications, including Clonazepam, Trazodone, and Duloxetine, during the relevant period. See,

e.g., AR 689-91, 1036, 1047-48, 1057. Plaintiff also took Propranolol for anxiety, and a medical

provider increased her Propranolol dose in February 2022 after Plaintiff reported that her anxiety

was getting worse. AR 1047. As such, the ALJ’s reliance on Plaintiff’s conservative care for her

mental impairments was not a clear and convincing reason to discredit Plaintiff’s symptom

testimony.

Although the ALJ properly found that Plaintiff received conservative treatment as to her

bilateral carpal tunnel syndrome and osteopenia, the ALJ failed to provide legitimate reasons in

support of his finding that Plaintiff’s other severe impairments were treated conservatively. Thus,

the ALJ’s reliance on conservative treatment is not a clear and convincing reason to reject

Plaintiff’s testimony and does not support that Plaintiff is able to engage in substantial gainful

activity.

c. Activities of Daily Living

The ALJ rejected Plaintiff’s symptom testimony in part because it conflicted with her

activities of daily living. Daily living activities may provide a basis for discounting subjective

symptoms if the plaintiff’s activities either contradict his or her testimony or meet the threshold

for transferable work skills. See Molina v. Astrue, 674 F.3d 1104, 1112-13 (9th Cir. 2012),

superseded on other grounds by 20 C.F.R. § 404.1502(a); Orn, 495 F.3d at 639. “Engaging in

daily activities that are incompatible with the severity of symptoms alleged can support an

adverse credibility determination.” Ghanim v. Colvin, 763 F.3d 1154, 1165 (9th Cir. 2014). A

claimant, however, need not be utterly incapacitated to receive disability benefits, and

completion of certain routine activities is insufficient to discount subjective symptom testimony.

See Molina, 674 F.3d at 1112-13 (noting that a “claimant need not vegetate in a dark room in

order to be eligible for benefits” (quotation marks omitted)); Vertigan v. Halter, 260 F.3d 1044,

1050 (9th Cir. 2001) (“One does not need to be utterly incapacitated in order to be disabled.”

(quotation marks omitted)). The Ninth Circuit “has repeatedly asserted that the mere fact that a

plaintiff has carried on certain daily activities, such as grocery shopping, driving a car, or limited

walking for exercise, does not in any way detract from her credibility as to her overall

disability.” Vertigan, 260 F.3d at 1050; see also Reddick v. Chater, 157 F.3d 715, 722 (9th

Cir. 1998) (requiring the level of activity be inconsistent with the plaintiff’s claimed limitations

to be relevant to his or her credibility and noting that “disability claimants should not be

penalized for attempting to lead normal lives in the face of their limitations”). Moreover,

particularly with certain conditions, cycles of improvement may be a common occurrence, and it

is error for an ALJ to pick out a few isolated instances of improvement over a period of months

or years and to treat them as a basis for concluding that a plaintiff is capable of working. See

Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014).

With respect to a plaintiff with an impairment of fibromyalgia, daily activities that

include household chores such as doing laundry, washing dishes, mopping, and vacuuming do

not conflict with pain testimony if the plaintiff had “repeatedly and consistently” noted severe

limitations in completing those tasks. See Revels, 874 F.3d at 668 (concluding that the plaintiff’s

report that she could complete household chores, albeit with severe limitations due to her

fibromyalgia, did not contradict with her symptom testimony of pain); see also Stramol-Spirz v.

Saul, 848 F. App’x 715, 717 (9th Cir. 2021) (concluding that the plaintiff’s symptom testimony

related to fibromyalgia did not conflict with her performance of household chores because she

described her limitations in her function report and at the hearing). A plaintiff’s ability to

complete household chores does conflict with symptom testimony related to fibromyalgia,

however, if the plaintiff has not qualified his or her ability to complete those tasks or is

“equivocal” in his or her ability to “keep up with” those activities. See Rollins v. Massanari, 261

F.3d 853, 857 (9th Cir. 2001) (concluding that the ALJ did not err by discounting the plaintiff’s

symptom testimony related to fibromyalgia because it conflicted with her daily activities, which

included “attending to the needs of her two young children, cooking, housekeeping, laundry,

shopping, attending therapy and various other meetings every week”); see also Roberts v.

Berryhill, 734 F. App’x 489, 491 (9th Cir. 2018) (“A claimant’s completion of certain household

tasks can provide a valid reason for discounting her inconsistent symptom allegations, even in

the specific context of fibromyalgia pain.”); Revels, 874 F.3d at 668 (distinguishing Rollins, 261

F.3d 853).

With respect to Plaintiff’s fibromyalgia, the ALJ noted that “[d]espite reports of ongoing

widespread pain, . . . [Plaintiff] continued to engage in a wide range of activities. [Plaintiff]

sought to increase her exercise and activity level and engaged in regular swimming for a time.”

AR 27. The record shows, however, that Dr. Rachel Elsasser suggested “swimming and aqua

aerobics . . . for fibromyalgia pain and cardiovascular health” during an office visit in

December 2021. AR 1049-50 (emphasis added). It is illogical to fault a claimant for following

her doctor’s pain management recommendations. Further, at the hearing, Plaintiff testified that

she had stopped swimming due to pain. AR 58.

The ALJ also listed the following examples of “activities which demonstrate significant

retained functionality[:]”

[Plaintiff] completed her personal care, served as the primary

caregiver to a teenage child, attended appointments for herself and

others regularly, regularly met with and interacted with family,

lived amicably with others, went to the park and store, prepared

meals, completed household chores, travelled across the country,

volunteered, used a computer, used a smartphone, engaged in arts

and crafts, regularly exercised, and spent time listening to music,

and reading.

AR 27.

As discussed, a claimant’s ability to complete household chores does not conflict with

pain testimony if the claimant has fibromyalgia and has “repeatedly and consistently” noted

severe limitations in completing those household tasks. See Revels, 874 F.3d at 668. Here,

Plaintiff testified that “[d]oing household chores is very, very hard on [her] back.” AR 49. She

does chores “very slow[ly], and . . . take[s] a break between each chore.” Id. Plaintiff explained

that she is “not able to get down on [her] hands and knees to clean” and that it is “hard . . . to

bend over and get things up off the floor because of [her] lower back.” Id. With respect to her

personal care, Plaintiff has trouble gripping or holding items such as a blow dryer and showering

is “very difficult.” AR 51-52, 299.

Plaintiff further testified that she experiences daily panic attacks in public and at home.

AR 44-45. She described having panic attacks at the grocery store “many times,” during which

Plaintiff left behind a full grocery cart and exited the store, eventually returning when she was

calm enough to resume shopping. AR 45. In an effort to “face her anxiety,” Plaintiff volunteered

with the transitional housing authority where she lived twice a week, where the staff allowed her

“to take breaks when anxious.” AR 693. After four months, Plaintiff stopped volunteering due to

anxiety. AR 57. Although Plaintiff and her daughter travelled to New York City to visit

Plaintiff’s brother on one occasion, Plaintiff described the experience as the “scariest thing [she

has] done in [her] life.” AR 53. Plaintiff testified that she experienced panic attacks throughout

the trip. AR 53-55. She “felt like [the trip] was a once in a lifetime chance” to see her brother for

the first time in six years but she could not imagine making the trip again. AR 54.

The relevance of Plaintiff’s enjoyment of listening to music is not immediately clear. As

discussed, Plaintiff “need not vegetate . . . in order to be eligible for benefits.” See Molina, 674

F.3d at 1112-13 (quotation marks omitted). Plaintiff reported that she “tries” arts and crafts one

time per week. AR 302. Although Plaintiff’s reading and her use of a smartphone and computer

may potentially conflict with her alleged symptoms relating to her ability to use her hands, the

ALJ did not obtain further information about how extensively she engages in those activities.

Her function report simply states that she shops in store or by computer. AR 301. It also states

that she reads daily, but not for how long. AR 302. She reports that her activities of arts and

crafts and reading are hard on her hands and that she tires easily. AR 302. It is the ALJ’s

responsibility to develop the record, and the ALJ did not get clarification about these issues at

the hearing. Thus, there is insufficient evidence to conclude on a clear and convincing standard

that these activities conflict with Plaintiff’s claimed limitations.

Plaintiff repeatedly and consistently described severe limitations in her ability to

complete many of the activities of daily living identified by the ALJ. At least one of the activities

was recommended by a treating physician as a pain management tool. Other activities were

undeveloped or appear irrelevant on their face. Accordingly, the ALJ’s reliance on Plaintiff’s

activities of daily living was not a clear and convincing reason to discredit Plaintiff’s symptom

allegations.

d. Objective Medical Record

An ALJ may consider the lack of corroborating objective medical evidence as a “relevant

factor in determining the severity of the claimant’s” alleged symptoms. Rollins, 261 F.3d at 857.

The ALJ may not, however, “discredit the claimant’s testimony as to subjective symptoms

merely because they are unsupported by objective evidence.” Berry v. Astrue, 622 F.3d 1228,

1234 (9th Cir. 2010) (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)); see also

Robbins, 466 F.3d at 883; 20 C.F.R. § 416.929(c)(2) (noting that the Commissioner “will not

reject your statements about the intensity and persistence of your pain or other symptoms or

about the effect your symptoms have on your ability to work . . . solely because the available

objective medical evidence does not substantiate your statements”).

The parties point to different aspects of the medical record with respect to Plaintiff’s

fibromyalgia, neck and back pain, and limitation from her psychological conditions. The Court,

however, has rejected all other reasons proffered by the ALJ to discount Plaintiff’s testimony.

Thus, the ALJ may not rely solely on a lack of support in the objective medical evidence.

B. Dr. Scott Alvord’s Medical Opinion

1. Standards

Plaintiff filed her application for benefits on May 13, 2021. For claims filed on or after

March 27, 2017, Federal Regulation 20 C.F.R. § 416.920c governs how an ALJ must evaluate

medical opinion evidence. See Revisions to Rules Regarding the Evaluation of Medical

Evidence, 82 Fed. Reg. 5844 (Jan. 18, 2017). Under these new regulations, ALJs no longer

“weigh” medical opinions, but rather determine which are most “persuasive.” 20 C.F.R.

§ 416.920c(a)-(b). The new regulations eliminate the hierarchy of medical opinions and state that

the agency does not defer to any particular medical opinions, even those from treating sources.

Id.; see also Woods, 32 F.4th at 792 (“The revised social security regulations are clearly

irreconcilable with our caselaw according special deference to the opinions of treating and

examining physicians on account of their relationship with the claimant.”). Under the new

regulations, the ALJ primarily considers the “supportability” and “consistency” of the opinions

in determining whether an opinion is persuasive. 20 C.F.R. § 416.920c(c). Supportability is

determined by whether the medical source presents explanations and objective medical evidence

to support his or her opinion. 20 C.F.R. § 416.920c(c)(1). Consistency is determined by how

consistent the opinion is with evidence from other medical and nonmedical sources. 20 C.F.R.

§ 416.920c(c)(2).

An ALJ may also consider a medical source’s relationship with the claimant by looking

to factors such as the length of the treatment relationship, the frequency of the claimant’s

examinations, the purpose of the treatment relationship, the extent of the treatment relationship,

and whether there is an examining relationship. 20 C.F.R. § 416.920c(c)(3). An ALJ is not,

however, required to explain how he or she considered these secondary medical factors, unless

he or she finds that two or more medical opinions about the same issue are equally well-

supported and consistent with the record but not identical. 20 C.F.R. § 416.920c(b)(2)-(3).

The regulations require ALJs to “articulate . . . how persuasive [they] find all of the

medical opinions” and “explain how [they] considered the supportability and consistency

factors.” 20 C.F.R. § 416.920c(b). The Court must, moreover, continue to consider whether the

ALJ’s analysis has the support of substantial evidence. See 42 U.S.C. § 405(g); see also

Woods, 32 F.4th at 792 (“Our requirement that ALJs provide ‘specific and legitimate reasons’ for

rejecting a treating or examining doctor’s opinion, which stems from the special weight given to

such opinions is likewise incompatible with the revised regulations. . . . Even under the new

regulations, an ALJ cannot reject an examining or treating doctor’s opinion as unsupported or

inconsistent without providing an explanation supported by substantial evidence.” (citation

omitted)).

2. Analysis

Dr. Alvord conducted a psychodiagnostic evaluation of Plaintiff in September 2022 and

based his opinion on a clinical interview, mental status examination, and a review of available

medical records. Dr. Alvord’s report includes findings regarding Plaintiff’s general appearance,

mood and affect, psychomotor movements, thought content, stream of mental activity,

orientation, memory, attention and concentration, abstract thinking, insight and judgment, fund

of general information, and intellectual functioning. AR 1109-10. Plaintiff’s affect was

“anxious” and she described her mood as “depressed.” AR 1109. She successfully completed

some of the tasks in the “Attention/Concentration” category but struggled with others. Id. Her

thought processes were “intact” and her speech “was within normal limits.” Id. Her intellectual

ability was “judged to fall in the low average IQ range based on fluid tasks, fund of general

information, vocabulary usage, and education/occupation history.” AR 1110.

Dr. Alvord diagnosed Plaintiff with PTSD, depressive disorder NOS, and panic disorder

without agoraphobia. AR 1110. Dr. Alvord assessed that Plaintiff would have “moderate to

marked difficulty understanding, carrying out, and remembering instructions (both complex and

one-two step)”; “moderate difficulty sustaining concentration and persisting in work related

activity at a reasonable pace”; “mild to moderate difficulty maintain[ing] effective social

interaction on a consistent and independent basis with supervisors, co-workers, and in the

public”; and “moderate difficulty dealing with normal pressures in a competitive work setting.”

AR 1110.

The ALJ found Dr. Alvord’s opinion unpersuasive because it “is based on a single one

time examination and evaluation of the claimant and the marked to moderate limitations

indicated are not consistent with Dr. Alvord’s own observations which showed claimant to have

intact memory, attention, concentration, abstract reasoning, fund of knowledge, and average

intellect.” AR 28. The ALJ explained that the degree of limitation alleged in the report “is also

not consistent with clinical observations throughout the treatment record which were generally

unremarkable . . . or [Plaintiff’s] performance of a wide range of activities.” Id.

Plaintiff argues that the ALJ erred in finding unpersuasive the medical opinion of

Dr. Alvord because his clinical findings do support the “marked to moderate” limitations noted

in his report. Only one of Plaintiff’s citations to the record in support of this argument, however,

refers to Dr. Alvord’s examination. Plaintiff points out that “Dr. Alvord observed an anxious

affect and some difficulty in attention and concentration during testing,” but the simple fact that

a treating provider’s report notes some impairments does not support that an ALJ erred in finding

that those impairments do not support the degree of limitation indicated in the medical opinion.

The ALJ’s explanation that Dr. Alvord’s opinion is unpersuasive because it is

inconsistent with his own clinical findings is a reason supported by substantial evidence. The

ALJ identified several specific findings from Dr. Alvord’s examination that conflicted with the

“marked to moderate limitations indicated.” AR 28. Thus, the ALJ properly analyzed the

supportability of the medical opinion. See 20 C.F.R. § 416.920c(c)(1). Plaintiff also states that an

ALJ may not reject a medical opinion merely because it is based on a single examination; but

here, the ALJ did not err in considering, as a factor, the length of the treatment relationship.

See 20 C.F.R. § 416.920c(c)(3)(i) (“The length of time a medical source has treated you may

help demonstrate whether the medical source has a longitudinal understanding of your

impairment(s).”).

With regard to consistency, the ALJ’s finding that Dr. Alvord’s opinion is inconsistent

with clinical observations throughout the treatment record is a reason supported by substantial

evidence. For example, the record shows that some treating providers described Plaintiff’s

cognition as “normal” or “grossly intact,” her memory as “normal,” and her thought process as

“linear, logical and goal-oriented,” although she “at times lost [her] train of thought.” AR 701,

730, 799. These clinical observations do not support that Plaintiff would have “moderate to

marked difficulty understanding, carrying out, and remembering instructions” as indicated by

Dr. Alvord’s report. Plaintiff points to other medical records that may support Dr. Alvord’s

conclusions. But even if Plaintiff’s interpretation is a rational one, the ALJ’s interpretation also is

rational. When there are two competing rational interpretations of the evidence, the Court

follows the ALJ’s interpretation. See Burch, 400 F.3d at 679. Although the Court rejects the

ALJ’s reliance on Plaintiff’s daily activities to discount Dr. Alvord’s opinion for the same

reasons the Court rejected Plaintiff’s activities to discount Plaintiff’s testimony, the ALJ

provided other valid reasons to discount Dr. Alvord’s opinion. Thus, the ALJ did not err in

finding unpersuasive Dr. Alvord’s medical opinion.

C. Remedy

Within the Court’s discretion under 42 U.S.C. § 405(g) is the “decision whether to

remand for further proceedings or for an award of benefits.” Holohan v. Massanari, 246

F.3d 1195, 1210 (9th Cir. 2001). Although a court should generally remand to the agency for

additional investigation or explanation, a court has discretion to remand for immediate payment

of benefits. Treichler, 775 F.3d at 1099. The issue turns on the utility of further proceedings. A

court may not award benefits punitively and must conduct a “credit-as-true” analysis on evidence

that has been improperly rejected by the ALJ to determine if a claimant is disabled under the

Social Security Act. Strauss v. Comm’r of the Soc. Sec. Admin., 635 F.3d 1135, 1138 (9th

Cir. 2011).

In the Ninth Circuit, the “credit-as-true” doctrine is “settled” and binding on this

Court. Garrison, 759 F.3d at 999. A court first determines whether the ALJ made a legal error

and then reviews the record as a whole to determine whether the record is fully developed, the

record is free from conflicts and ambiguities, and there is any useful purpose in further

proceedings. Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015). Only if the record has

been fully developed and there are no outstanding issues left to be resolved does the district court

consider whether the ALJ would be required to find the claimant disabled on remand if the

improperly discredited evidence were credited as true. Id. If so, the district court can exercise its

discretion to remand for an award of benefits. Id. The district court retains flexibility, however,

and is not required to credit statements as true merely because the ALJ made a legal error. Id.

at 408.

The ALJ committed harmful error in evaluating Plaintiff’s testimony. The ALJ’s

boilerplate statement that Plaintiff’s testimony is “not entirely consistent with the medical

evidence and other evidence in the record for the reasons explained in this decision,” in

conjunction with the ALJ’s failure to identify which portions of Plaintiff’s testimony the ALJ

discounted, prevents the Court from meaningfully determining whether the ALJ’s conclusions

were clear and convincing reasons supported by substantial evidence. Further, even if the Court

attempts to discern the ALJ's reasoning, the reasons provided were not clear and convincing. On

this record, the Court cannot conclude that further proceedings would serve no useful purpose.

There are ambiguities regarding Plaintiff’s limitations and conflicts between Plaintiff’s testimony

and other evidence in the record. The ALJ should have the opportunity to properly evaluate

Plaintiff’s symptom allegations and resolve any ambiguities concerning Plaintiff’s physical and

mental limitations, including reformulating an appropriate RFC if necessary.

CONCLUSION

The Court REVERSES the Commissioner’s decision that Plaintiff was not disabled and

REMANDS for further proceedings consistent with this Opinion and Order.

IT IS SO ORDERED.

DATED this 10th day of March, 2025.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge