# (SS) McCarthy v. Commissioner of Social Security

> District Court, E.D. California · May 23, 2025

URL: https://www.frixlaw.com/law-library/cases/11059130

## Case

- **Court:** District Court, E.D. California
- **Decided:** May 23, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11059130

## How later opinions describe it (automated extraction)

- applying the harmless 12 error doctrine where the mistake was non-prejudicial to the claimant
- affirming a remand for further proceedings where the ALJ failed to explain with 11 sufficient specificity the basis for rejecting the claimant’s testimony

## Opinion text

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7 UNITED STATES DISTRICT COURT
8 EASTERN DISTRICT OF CALIFORNIA
9
10 NATHAN ALLEN MCCARTHY, Case No. 1:24-cv-00937-SKO

11 Plaintiff, ORDER ON PLAINTIFF’S SOCIAL
SECURITY COMPLAINT
12 v.
(Doc. 1)
13 FRANK BISIGNANO,
Commissioner of Social Security1,
14
15 Defendant.
16 I. INTRODUCTION
17 On August 13, 2024, Plaintiff Nathan Allen McCarthy (“Plaintiff”) filed a complaint
18 under 42 U.S.C. § 1383(c) seeking judicial review of a final decision of the Commissioner of
19 Social Security (the “Commissioner” or “Defendant”) denying his application for Supplemental
20 Security Income (“SSI”) under Title XVI of the Social Security Act (the “Act”). (Doc. 1.) The
21 matter is currently before the Court on the parties’ briefs, which were submitted, without oral
22 argument, to the Honorable Sheila K. Oberto, United States Magistrate Judge.2
23 II. FACTUAL BACKGROUND
24 On January 29, 2021, Plaintiff filed an application for SSI payments, alleging that he
25 became disabled on July 10, 2017. (Administrative Record (“AR”) 122.)
26
1 On May 6, 2025, Frank Bisignano was appointed the Commissioner of the Social Security Administration. See
27 https://www.ssa.gov/news/press/releases/2025/#2025-05-07. He is therefore substituted as the defendant in this action.
See 42 U.S.C. § 405(g) (referring to the “Commissioner’s Answer”); 20 C.F.R. § 422.210(d) (“the person holding the
28 Office of the Commissioner shall, in his official capacity, be the proper defendant”).
1 Plaintiff was born on February 16, 1972, and was 48 years old on the application date. (AR
2 146.) Plaintiff had no previous relevant work experience. (AR 131).
3 A. Relevant Medical Evidence3
4 1. Plaintiff’s Mental Functioning
5 The record contains two opinions from mental health physician’s assessing
6 Plaintiff’s mental functioning. The first opinion is from state agency physician Tawnya Brode,
7 Pys.D., at the initial review on June 21, 2021. (AR 318.) Dr. Brode opined that Plaintiff had
8 moderate limitations in his ability to carry out detailed instructions; maintain attention and
9 concentration for extended periods; complete a normal workday without interruptions; and interact
10 appropriately with the general public. (AR 321–22.) Dr. Brode further opined that Plaintiff was
11 “not significantly limited” as to several functional areas, including carrying out simple repetitive
12 instructions and having limited public contact. (AR 322, 323.) The second is from state agency
13 physician Alan D. Entin, Ph.D., (AR 338), who assessed the same limitations as Dr. Brode as a part
14 of his October 8, 2021 reconsideration review. (AR 342–45, 338.)
15 2. Plaintiff’s Sleep Disturbances
16 Starting in February 2020, Plaintiff began treatment for a variety of mental
17 health concerns including sleep disturbances and insomnia. February 2020 treatment notes reflect
18 that Plaintiff reported waking up 15 to 20 times with nightmares. (AR 1255.) A year later, in
19 February 2021, Plaintiff reported that he was “sleeping better.” (AR 810.) But in March 2021,
20 treatment notes reflect Plaintiff’s again reported of continued sleep disturbances, (AR 1260.) The
21 records from April 2021 also reflect Plaintiff reporting having difficulties getting, but not staying,
22 asleep, as well as fearing taking injection medications for schizophrenia at the same time as his
23 other medications (including his medications for sleep disturbances) because the combination of
24 the medications would make him sleep for a week. (AR 819, 1381.) May 2021 treatment records
25 reflect Plaintiff’s reports of improved sleep and a decrease in nightmares. (AR 1602).4 June 2021
26 records reflect Plaintiff reporting sleeping from 5:00pm or 6:00pm until 3:00am. (AR 1603.) Then
27
3 The Court has also omitted discussion of facts not relevant to its holding.
28 4 In June 2021, as a part of a disability report, Plaintiff also reported an increase in nightmares and insomnia after a
1 in December 2021, records reflect Plaintiff reports of continued difficulty falling asleep, though
2 also reporting “adequate sleep.” (AR 1952, 1961.) The next year, in February 2022, records reflect
3 Plaintiff’s continued complaints or poor sleep, nightmares, and PTSD related flashbacks. (AR
4 1999, 2009, 2010.)
5 B. Administrative Proceedings
6 The Commissioner denied Plaintiff’s application for benefits initially on July 15, 2021, and
7 again on reconsideration on December 28, 2021. (AR 309–27, 328–49.) Consequently, Plaintiff
8 requested a hearing before an Administrative Law Judge (“ALJ”). (AR 381.) On May 12, 2023,
9 Plaintiff appeared with counsel and testified before an ALJ as to her alleged disabling conditions.
10 (AR 293–305.)
11 In responding to his attorney’s question about his biggest impairment getting or keeping a
12 job, Plaintiff testified about, among other things, the biggest impairments were not sleeping,
13 nightmares, and insomnia. (AR 300). He testified that medication “helps a little bit,” (id.), but that
14 he still experiences “night terrors” and “nightmares” that wake him “up every hour . . . until about
15 4:00 in the morning” at which point he is unable to go back to sleep, (AR 303).
16 A vocational expert (“VE”) also testified at the hearing. (AR 305–07.) The VE testified
17 that, based on their experience, more than eight days of absenteeism, missing deadlines, and / or
18 being off task fifteen percent of the workday would be preclusive of any position. (AR 306–07.)
19 C. The ALJ’s Decision
20 In a decision dated July 19, 2023, the ALJ found that Plaintiff was not disabled, as defined
21 by the Act. (AR 122–33.)
22 In that decision, the ALJ conducted the five-step disability analysis set forth in 20 C.F.R.
23 § 416.920. (AR 124–32.). The ALJ decided that Plaintiff had not engaged in substantial gainful
24 activity since January 29, 2021, the application date (Step One). (AR 124.) At Step Two, the ALJ
25 found Plaintiff’s following impairments to be severe: bipolar disorder, unspecified psychosis
26 disorder, schizophrenia, generalized anxiety disorder, alcohol abuse disorder, obesity, congestive
27 heart failure, hypertension, and diabetes mellitus. (AR 124–25.) The ALJ further determined that
28 Plaintiff did not have an impairment or combination of impairments that met or medically equaled
1 one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“the Listings”) (Step
2 Three). (AR 125–27.)
3 The ALJ then assessed Plaintiff’s residual functional capacity (RFC)5 and applied the
4 assessment at steps four and five. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4) (“Before we go
5 from step three to step four, we assess your residual functional capacity . . . . We use this residual
6 functional capacity assessment at both step four and step five when we evaluate your claim at these
7 steps.”). The ALJ determined that Plaintiff had the RFC
8 to perform light work as defined in 20 CFR 416.967(b) except he is capable of
understanding, remembering and carrying out simple instructions. The claimant
9
requires a settling that is goal oriented versus requiring that specified pace be
maintained consistently throughout the workday. The claimant can tolerate
10
occasional interaction with the public and can tolerate occasional changes in the
11 work setting. The claimant can frequently climb rams and stairs, stoop, kneel,
crouch, crawl and balance. The claimant can occasionally climb ladders, ropes, and
12 scaffolds.
13 (AR 127.) Although the ALJ recognized that Plaintiff’s impairments “could reasonably be
14 expected to cause the alleged symptoms[,]” the ALJ determined that “the claimant’s statements
15 concerning the intensity, persistence and limiting effects of these symptoms are not entirely
16 consistent with the medical evidence and other evidence in the record.” (AR 1052.)
17 The ALJ next made the following findings: Plaintiff (1) had no relevant work experience;
18 (2) fell into the category of “a younger individual” at the time the application was filed bit had
19 changed age category since that time to “closely approaching advanced age;” and (3) had at least
20 a high school education (Step Four). (AR 131.) In light of those findings along with the ALJ’s
21 determination of Plaintiff’s RFC, the ALJ further found that “there are jobs that exist in significant
22 numbers in the national economy that [Plaintiff] can perform” (Step Five)—specifically, cleaner,
23 café attendant, and mail clerk. (AR 131–32.)
24

25 5 RFC is an assessment of an individual’s ability to do sustained work-related physical and mental activities in a work
setting on a regular and continuing basis of 8 hours per day, for 5 days per week, or an equivalent work schedule.
26 TITLES II & XVI: ASSESSING RESIDUAL FUNCTIONAL CAPACITY IN INITIAL CLAIMS, Social Security Ruling (“SSR”)
96-8P (S.S.A. July 2, 1996). The RFC assessment considers only functional limitations and restrictions that result
27 from an individual’s medically determinable impairment or combination of impairments. Id. “In determining a
claimant’s RFC, an ALJ must consider all relevant evidence in the record including, inter alia, medical records, lay
28 evidence, and ‘the effects of symptoms, including pain, that are reasonably attributed to a medically determinable
1 D. Review of the ALJ’s Decision
2 Plaintiff sought review of this decision before the Appeals Council, which denied review
3 on October 8, 2021. (AR 1–7.) Therefore, the ALJ’s decision became the final decision of the
4 Commissioner. 20 C.F.R. § 416.1481. On August 13, 2024, Plaintiff filed a Complaint in the
5 United States District Court seeking judicial review of the Commissioner’s final decision. (Doc.
6 1.)
7 III. LEGAL STANDARD
8 A. Applicable Law
9 An individual is considered “disabled” for purposes of disability benefits if they are unable
10 “to engage in any substantial gainful activity by reason of any medically determinable physical or
11 mental impairment which can be expected to result in death or which has lasted or can be expected
12 to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). However,
13 “[a]n individual shall be determined to be under a disability only if [their] physical or mental
14 impairment or impairments are of such severity that [they] are not only unable to do [their] previous
15 work but cannot, considering [their] age, education, and work experience, engage in any other kind
16 of substantial gainful work which exists in the national economy.” Id. § 423(d)(2)(A).
17 “The Social Security Regulations set out a five-step sequential process for determining
18 whether a claimant is disabled within the meaning of the Social Security Act.” Tackett v. Apfel, 180
19 F.3d 1094, 1098 (9th Cir. 1999) (citing 20 C.F.R. § 404.1520); see also 20 C.F.R. § 416.920. The
20 Ninth Circuit has provided the following description of the sequential evaluation analysis:
21
In step one, the ALJ determines whether a claimant is currently engaged in
22 substantial gainful activity. If so, the claimant is not disabled. If not, the ALJ
proceeds to step two and evaluates whether the claimant has a medically severe
23 impairment or combination of impairments. If not, the claimant is not disabled. If
so, the ALJ proceeds to step three and considers whether the impairment or
24 combination of impairments meets or equals a listed impairment under 20 C.F.R. pt.
404, subpt. P, [a]pp. 1. If so, the claimant is automatically presumed disabled. If
25
not, the ALJ proceeds to step four and assesses whether the claimant is capable of
26 performing [their] past relevant work. If so, the claimant is not disabled. If not, the
ALJ proceeds to step five and examines whether the claimant has the [RFC] . . . to
27 perform any other substantial gainful activity in the national economy. If so, the
claimant is not disabled. If not, the claimant is disabled.
28
1 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005); see, e.g., 20 C.F.R. § 416.920(a)(4) (providing
2 the “five-step sequential evaluation process” for SSI claimants). “If a claimant is found to be
3 ‘disabled’ or ‘not disabled’ at any step in the sequence, there is no need to consider subsequent
4 steps.” Tackett, 180 F.3d at 1098 (citing 20 C.F.R. § 404.1520); 20 C.F.R. § 416.920.
5 “The claimant carries the initial burden of proving a disability in steps one through four of
6 the analysis.” Burch, 400 F.3d at 679 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989)).
7 “However, if a claimant establishes an inability to continue [their] past work, the burden shifts to
8 the Commissioner in step five to show that the claimant can perform other substantial gainful work.”
9 Id. (citing Swenson, 876 F.2d at 687).
10 B. Scope of Review
11 1. Review of an ALJ’s Findings for Substantial Evidence
12 “This court may set aside the Commissioner’s denial of disability insurance
13 benefits [only] when the ALJ’s findings are based on legal error or are not supported by substantial
14 evidence in the record as a whole.” Tackett, 180 F.3d at 1097 (citation omitted). “Substantial
15 evidence is defined as being more than a mere scintilla, but less than a preponderance.” Edlund v.
16 Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1098). “Put another
17 way, substantial evidence is such relevant evidence as a reasonable mind might accept as adequate
18 to support a conclusion.” Id. (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)).
19 “This is a highly deferential standard of review.” Valentine v. Comm’r of Soc. Sec. Admin.,
20 574 F.3d 685, 690 (9th Cir. 2009). “The ALJ’s findings will be upheld if supported by inferences
21 reasonably drawn from the record.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008)
22 (citation omitted). Additionally, “[t]he court will uphold the ALJ’s conclusion when the evidence
23 is susceptible to more than one rational interpretation.” Id.; see, e.g., Edlund, 253 F.3d at 1156 (“If
24 the evidence is susceptible to more than one rational interpretation, the court may not substitute its
25 judgment for that of the Commissioner.” (citations omitted)).
26 Nonetheless, “the Commissioner’s decision ‘cannot be affirmed simply by isolating a
27 specific quantum of supporting evidence.’” Tackett, 180 F.3d at 1098 (quoting Sousa v. Callahan,
28 143 F.3d 1240, 1243 (9th Cir. 1998)). “Rather, a court must ‘consider the record as a whole,
1 weighing both evidence that supports and evidence that detracts from the [Commissioner’s]
2 conclusion.’” Id. (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)).
3 2. Review of an ALJ’s Credibility Determination
4 In evaluating the credibility of a claimant’s testimony regarding subjective
5 complaints, an ALJ must engage in a two-step analysis. Vasquez v. Astrue, 572 F.3d 586, 591 (9th
6 Cir. 2009). First, the ALJ must determine whether the claimant has presented objective medical
7 evidence of an underlying impairment that could reasonably be expected to produce the symptoms
8 alleged. Id. The claimant is not required to show that his impairment “could reasonably be expected
9 to cause the severity of the symptom [they have] alleged; [they] need only show that it could
10 reasonably have caused some degree of the symptom.” Id. (quoting Lingenfelter v. Astrue, 504 F.3d
11 1028, 1036 (9th Cir. 2007)). If the claimant meets the first test and there is no evidence of
12 malingering, the ALJ can only reject the claimant’s testimony about the severity of the symptoms if
13 they give “specific, clear and convincing reasons” for the rejection. Id. As the Ninth Circuit has
14 explained:
15 The ALJ may consider many factors in weighing a claimant’s credibility,
including (1) ordinary techniques of credibility evaluation, such as the claimant’s
16
reputation for lying, prior inconsistent statements concerning the symptoms, and
17 other testimony by the claimant that appears less than candid; (2) unexplained or
inadequately explained failure to seek treatment or to follow a prescribed course
18 of treatment; and (3) the claimant’s daily activities. If the ALJ’s finding is
supported by substantial evidence, the court may not engage in second-guessing.
19
20 Tommasetti, 533 F.3d at 1039 (citations and internal quotation marks omitted); see also Bray v.
21 Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1226–27 (9th Cir. 2009). Other factors the ALJ may
22 consider include a claimant’s work record and testimony from physicians and third parties
23 concerning the nature, severity, and effect of the symptoms of which he complains. Light v. Social
24 Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997).
25 The clear and convincing standard is “not an easy requirement to meet,” as it is “‘the most
26 demanding required in Social Security cases.’” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir.
27 2014) (quoting Moore v. Comm’r of Social Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). General
28 findings are not enough to satisfy this standard; the ALJ “‘must identify what testimony is not
1 credible and what evidence undermines the claimant’s complaints.’” Burrell v. Colvin, 775 F.3d
2 1133, 1138 (9th Cir. 2014) (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)).
3 IV. DISCUSSION
4 Plaintiff contends that (1) the mental health limitations assessed by the ALJ and incorporated
5 into the RFC are not supported by substantial evidence, (Doc. 14 at 4–8), and (2) the ALJ failed to
6 articulate clear and convincing reasons for discounting his allegations of sleep deprivation, (id. at 8–
7 12). The Commissioner responds that the ALJ’s assessment of Plaintiff’s RFC is supported by
8 substantial evidence, (Doc. 18 at 3–6), and that the ALJ properly relied on evidence in the record
9 that undermined the credibility of Plaintiff’s allegations of disabling symptoms and limitations, (id.
10 at 6–7.) While any error arising related to Plaintiff’s first theory of error would necessarily be
11 harmless, the Court agrees with Plaintiff that the ALJ improperly discredited his subjective symptom
12 statements with respect to his reports of sleep disturbance and associated limitations and will remand
13 for further proceedings.
14 A. Even if the ALJ did err in assessing the RFC with regard to Plaintiff’s mental health
15 limitations, any such error was harmless.
16 The ALJ assessed Plaintiff’s RFC as retaining “the residual functional capacity to perform
17 light work . . . except he is capable of understanding, remembering and carrying out simple
18 instructions,” that he “requires a setting that is goal oriented versus requiring that specified pace be
19 maintained consistently throughout the workday,” and that he “can tolerate occasional changes in
20 the work setting.” (AR 127). Plaintiff argues that this RFC cannot stand as there is no medical
21 opinion to support these limitations. (Doc. 14 at 6). Defendant responds by noting that even though
22 Plaintiff takes issue with the ALJ’s assessed RFC, it is unclear why as any such error could not be
23 prejudicial. (Doc. 4 at 4). Specifically, Defendant notes that the ALJ’s decision that Plaintiff had
24 moderate limitations as to all areas of mental functioning was, in fact, more favorable than that of
25 the medical opinions in the record who assessed mild to moderate limitations. (Id.; see also Doc. 14
26 at 5).
27 Even assuming it was error for the ALJ to assess a more restrictive RFC than the limitations
28 assessed by the medical opinions in the record, contra Lemley v. Colvin, No. 2:13-CV-0299-JTR,
1 2014 WL 1491107, at *7 (E.D. Wash. Apr. 15, 2014) (“Since the ALJ's physical RFC determination
2 is consistent with or more restrictive than the limitations assessed by all other medical professionals
3 of record, the ALJ’s assessment of Plaintiff's physical functioning ability is supported by substantial
4 record evidence and free of error”), any such error is harmless.
5 An error is harmless where “it is inconsequential to the ultimate nondisability
6 determination.” Molina v. Astrue, 674 F.3d 1112, 1115 (9th Cir. 2012). (quoting Carmickle v.
7 Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008)). In assessing whether the error is
8 harmless, the court looks to the record as a whole to determine whether the error alters the outcome
9 of the case. Id. Generally, if the ALJ assesses a more restrictive RFC, even if the ALJ erred in the
10 assessment, the error is harmless because the additional restriction is more favorable to the plaintiff.
11 See Stout v. Comm'r Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006) (applying the harmless
12 error doctrine where the mistake was non-prejudicial to the claimant); De Herrera v. Astrue, 372 F.
13 App’x 771, 774 (9th Cir. 2010) (citing Stout); see also Torres v. Berryhill, 2018 U.S. Dist. LEXIS
14 124710 at *10 (S.D. Cal. July 25, 2018) (Huff, J.) (applying Stout); see also Hopper v. Colvin, No.
15 6:13-CV-01525-HZ, 2014 WL 6473566, at *5 (D. Or. Nov. 14, 2014) (“As discussed above, the
16 ALJ does not err by adopting a more restrictive RFC than the evidence in the record supports.”);
17 Halstead v. Colvin, No. CV12-1706 PHX DGC, 2013 WL 3482186, at *3 (D. Ariz. July 11, 2013);
18 Moore v. Comm’r of Soc. Sec. Admin., No. 1:14-CV-00354-AC, 2015 WL 1731400, at *7 (D. Or.
19 Apr. 14, 2015) (“Assuming, without deciding, the ALJ’s determination was erroneous, this error is
20 not reversible because Claimant does not demonstrate that he was in any way prejudiced by the ALJ
21 adopting a more stringent limitation than was supported by the medical record”); Dale v. Colvin,
22 No. 216CV00910RSLDWC, 2017 WL 354612, at *6 (W.D. Wash. Jan. 4, 2017), report and
23 recommendation adopted, No. 2:16-CV-00910-RSL, 2017 WL 356672 (W.D. Wash. Jan. 24, 2017)
24 (“When an ALJ’s RFC finding is more restrictive than, or otherwise accounts for, opined limitations
25 from a medical source, there can be no harmful error.”). Although the burden of showing that the
26 error was not harmless rests with the party attacking the agency’s determination, the reviewing court
27 can decide whether further administrative review is necessary to determine whether there was
28 prejudice from the error. McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011) (quoting Shineski v.
1 Sanders, 556 U.S. 396, 409–10 (2009)). Critically, “where harmlessness is clear and not a
2 ‘borderline question,’” remand for reconsideration is not appropriate. Id.
3 Here, it is difficult to see how these stricter limitations constitute a consequential or
4 prejudicial error to Plaintiff. Even assuming the ALJ erred in giving Plaintiff a stricter limitation
5 than the agency physicians, the ALJ’s more restrictive RFC reduced the number of potential jobs
6 available in the domestic economy that Plaintiff could perform. Such a reduction makes it more—
7 not less likely— that Plaintiff would be disabled. Because the error rendered Plaintiff more likely
8 to be disabled and the ALJ still did not render a favorable disability finding, the error proved
9 “inconsequential to the ultimate nondisability determination.” See Molina, 674 F.3d at 1115. The
10 Court need not make an independent finding based on the evidence to conclude this error was
11 harmless. See Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015). For the foregoing
12 reasons, Plaintiff does not establish a reversible error on this point.
13 B. The ALJ committed harmful error in not providing clear and convincing reasons for
discounting Plaintiff’s subjective complaints of sleep disturbance.
14
15 As noted above, in determining Plaintiff’s RFC, the ALJ concluded that Plaintiff’s medically
16 determinable impairments reasonably could be expected to cause the alleged symptoms. (AR 128.)
17 The ALJ, however, also found that Plaintiff’s statements regarding the intensity, persistence and
18 limiting effects of these symptoms were “not entirely consistent” with the medical record. (Id.)
19 Since the ALJ found Plaintiff’s “medically determinable impairments could reasonably be expected
20 to cause the alleged symptoms,” the only remaining issue is whether the ALJ provided “specific,
21 clear and convincing reasons” for Plaintiff’s adverse credibility finding. See Vasquez, 572 F.3d at
22 591.
23 In general, “conflicts between a [claimant’s] testimony of subjective complaints and the
24 objective medical evidence in the record” can constitute specific and substantial reasons that
25 undermine . . . credibility.” Morgan v. Comm’r of Social Sec. Admin., 169 F.3d 595, 600 (9th Cir.
26 1999). The Ninth Circuit explained, “[w]hile subjective [symptom] testimony cannot be rejected on
27 the sole ground that it is not fully corroborated by objective medical evidence, the medical evidence
28 is still a relevant factor in determining the severity of the claimant’s [symptoms] and [their] disabling
1 effects.” Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001); see also Burch, 400 F.3d at 681
2 (“Although lack of medical evidence cannot form the sole basis for discounting [subjective
3 symptom] testimony, it is a factor that the ALJ can consider in his credibility analysis”). Because
4 the ALJ did not base their decision solely on the fact that the medical record failed to support the
5 degree of symptoms alleged by Plaintiff, the objective medical evidence was a relevant factor
6 evaluating her subjective complaints.
7 However, if an ALJ cites the medical evidence, it is not sufficient for the ALJ to simply state
8 that the testimony is contradicted by the record. Holohan v. Massanari, 246 F.3d 1195, 1208 (9th
9 Cir. 2001) (“[G]eneral findings are an insufficient basis to support an adverse credibility
10 determination”). Rather, an ALJ must “specifically identify what testimony is credible and what
11 evidence undermines the claimant’s complaints.” Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir.
12 2006); see also Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993) (an ALJ must identify “what
13 evidence suggests the complaints are not credible”). Importantly, an ALJ must explain how the
14 medical evidence is inconsistent with a plaintiff’s reported symptoms and limitations, see Brown-
15 Hunter v. Colvin, 806 F.3d 487, 493–94 (9th Cir. 2015), and may not “cherry-pick” medical evidence
16 that favors disability without considering its context in the record, Ghanim v. Colvin, 763 F.3d 1154,
17 1164 (9th Cir. 2014).
18 In support of the conclusion that Plaintiff’s complaints were “not entirely consistent with the
19 medical evidence and other evidence in the record,” the ALJ broadly stated that the statements were
20 “inconsistent because the evidence does not support the severity of the limitations as alleged at the
21 hearing.” (AR 128). The Court must determine whether this constitutes a clear and convincing
22 reason for discounting Plaintiff’s statements.
23 As noted above, in determining that the evidence did not support Plaintiff’s statements about
24 the severity of Plaintiff’s limitations, the ALJ relied on several pieces of medical evidence. A careful
25 review of the record reveals that (1) the evidence on which the ALJ relied was “cherry-picked,” and
26 (2) the ALJ failed to clearly and convincingly explain how the evidence cited was inconsistent with
27 Plaintiff’s subjective complaints.
28 First, the ALJ observed that “[t]he claimant’s treatment has been essentially routine and
1 conservative in nature, consisting mostly of visits to the providers for medications management” and
2 that “claimant’s symptoms were waxing and waning but were generally stable.” (AR 130).
3 Specifically, as to the issue of Plaintiff’s allegations of limiting insomnia and other sleep
4 disturbances, (AR 128, 300, 303), the ALJ observed that “once [Plaintiff] started receiving Invega
5 injections, he reported . . . better sleep [and] decreased nightmares.” (AR 130 (citing AR 1602)).
6 And while it is true that Plaintiff reported an improvement in sleep and a decrease in nightmares in
7 May 2021, (AR 1602), Plaintiff points to additional medical evidence in the record after that date
8 that indicate that his symptoms were not “stable,” (Doc. 14 (citing 1255 (records detailing Plaintiff’s
9 February 2020 report of waking 15 to 20 times with nightmares); 810 (records detailing Plaintiff’s
10 February 2021 report that he was “sleeping better”), 1260 (records detailing Plaintiff’s March 3,
11 2021 report of continued sleep disturbances), 1381 (records detailing Plaintiff’s April 2021 report
12 of having difficulties getting, but not staying, asleep), 819 (records detailing Plaintiff’s April 2021
13 fear of taking the injections and his medication at the same time because that combination would
14 cause him to sleep for a week), AR 527 (records detailing Plaintiff’s June 2021 report of increased
15 nightmares and insomnia after a change in medication due to side effects), 1603 (records detailing
16 Plaintiff’s June 2021 report of sleeping from around 5:00pm or 6:00pm until 3:00am), 1952 (records
17 detailing Plaintiff’s December 2021 reports of continued difficulty falling asleep, though also
18 reporting “adequate sleep”), 1961 (same), 1999 (records detailing Plaintiff’s February 2022
19 complaints of poor sleep), 2009 (same), 2010 (records detailing Plaintiff’s February 2022 complaints
20 of PTSD symptoms of poor sleep, nightmares, and flashbacks from experiencing fires)).
21 Additionally, while the ALJ determined that Plaintiff’s symptoms were “generally stable,” in the
22 very next sentence, the ALJ described Plaintiff as “report[ing] doing great and looking for work, but
23 within a couple of months, [complaining] of inability to concentrate and to care for his daily
24 activities.” (Id.). This observation, while consistent with the medical record, undermines the ALJ’s
25 conclusion that Plaintiff’s symptoms were “stable.” (Id.). The ALJ’s reliance on cherry-picked
26 citations to the record without acknowledgment of the other pieces of medical evidence that tend to
27 support Plaintiff’s complaints, undermines the ALJ’s conclusion that Plaintiff’s symptoms were
28 “stable.” The ALJ did not provide clear and convincing reasons to support her conclusion that
1 Plaintiff’s symptoms were “stable.”
2 Second, the ALJ failed to adequately explain how the medical evidence was inconsistent
3 with Plaintiff’s reported symptoms and limitations. As an initial matter, the ALJ’s analysis includes
4 several paragraphs in which the ALJ merely recites medical evidence and then makes a general
5 finding that that the evidence “does not support [Plaintiff’s] allegations that [his] conditions render
6 him wholly disabled.” (AR 130). The ALJ fails to tie the medical evidence she recites to the
7 Plaintiff’s complaints that she purportedly finds inconsistent with the medical evidence recited. The
8 ALJ also does not explain how any purported inconsistency relates to Plaintiff’s alleged limitations
9 or RFC. Without an indication of which symptoms or limitations the ALJ discredits, clear
10 inconsistencies between the medical evidence recited and Plaintiff’s reported symptoms and
11 limitations, or to what extent the ALJ credited Plaintiff’s testimony and incorporated it into the RFC,
12 the ALJ’s “path [cannot be] reasonably discerned.” Molina v. Astrue, 674 F.3d 1112, 1121 (9th Cir.
13 2012); see also Lambert v. Saul, 980 F.3d 1266, 1278 (9th Cir. 2020).
14 This is especially true in light of the fact that the paragraphs reciting the medical evidence
15 include evidence that appear to support Plaintiff’s reports and undermine the ALJ’s conclusion. For
16 example, these paragraphs include detail like “[Plaintiff’s] medical records showed reports of . . .
17 nightmares waking him up, as testified,” (AR 128 (emphasis added) (citing AR 1255)); as well as
18 reference to evidence that while Plaintiff’s “nightmares decreased . . .he was having some bizarre
19 dreams,” (id. (citing 1603)), and that Plaintiff “reported having nightmares and waking up ‘smelling
20 fire,’” (AR 129 (citing 2217)).
21 The Court is unable to find the ALJ met the burden provide clear and convincing reasons to
22 discount Plaintiff’s testimony concerning the severity of his sleep disturbances and reported
23 corresponding limitations.6
24 C. Remand for Further Proceedings
25 The decision whether to remand a matter for further proceedings pursuant to sentence four
26
6 The error is not harmless. Errors are harmless when a reviewing court “can confidently conclude that no reasonable
27 ALJ, when fully crediting the testimony, could have reached a different disability determination.” Stout v. Comm’r,
Social Sec. Admin., 454 F.3d 1050, 1056 (9th Cir. 2006). Had the ALJ credited Plaintiff’s statements related to
28 Plaintiff’s insomnia and assessed a more restrictive RFC, the disability determination may have been different. Thus,
1 of 42 U.S.C. § 405(g) or to order immediate payment of benefits is within the discretion of the district
2 court. Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000). Except in rare instances, when a court
3 reverses an agency determination, the proper course is to remand to the agency for additional
4 investigation or explanation. Moisa, 367 F.3d at 886 (citing INS v. Ventura, 537 U.S. 12, 16 (2002)).
5 Plaintiff requests the matter be remanded for an immediate award of benefits, or, in the alternative,
6 for further administrative proceedings. (Doc. 12 at 29.)
7 The ALJ failed to identify legally sufficient reasons to reject Plaintiff’s subjective statements,
8 which impacted the RFC determination. A remand for further proceedings regarding the subjective
9 statements of a claimant is an appropriate remedy.7 See, e.g., Bunnell v. Sullivan, 947 F.2d 341, 348
10 (9th Cir. 1991) (affirming a remand for further proceedings where the ALJ failed to explain with
11 sufficient specificity the basis for rejecting the claimant’s testimony); Byrnes v. Shalala, 60 F.3d
12 639, 642 (9th Cir. 1995) (remanding the case “for further proceedings evaluating the credibility of
13 [the claimant’s] subjective complaints . . .”). Thus, a remand for further proceedings to properly
14 assess Plaintiff’s subjective symptom statements is appropriate in this action.
15 V. CONCLUSION AND ORDER
16 Based on the foregoing, the Court finds that the ALJ’s decision is not supported by
17 substantial evidence and is, therefore, VACATED and the case REMANDED to the ALJ for further
18 proceedings consistent with this Order. The Clerk of this Court is DIRECTED to enter judgment
19 in favor of Plaintiff Nathan Allen McCarthy and against Defendant Bisignano, Commissioner of
20 Social Security.
21
IT IS SO ORDERED.
22

23 Dated: May 23, 2025 /s/ Sheila K. Oberto .
UNITED STATES MAGISTRATE JUDGE
24

25
26
27

28 7 As to the ultimate outcome of Plaintiff’s claim, the Court expresses no opinion as to what Plaintiff’s RFC should

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11059130. Public record. Not legal advice.