# McGlothin

> District Court, D. Oregon · February 17, 2026

URL: https://www.frixlaw.com/law-library/cases/11262625

## Case

- **Full name:** Alyssa M. v. Commissioner Social Security Administration
- **Court:** District Court, D. Oregon
- **Decided:** February 17, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11262625

## How later opinions describe it (automated extraction)

- affirming ALJ’s discounting of subjective claims of disabling pain based on objective medical evidence and daily activities
- holding that competent lay witness testimony “cannot be disregarded without comment” (emphasis in original)
- noting “evidence of medical treatment successfully relieving symptoms can undermine a claim of disability”

## Opinion text

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

ALYSSA M., Ca se No. 6:24-cv-01520-AR

Plaintiff, OPINION AND ORDER

v.

COMMISSIONER SOCIAL SECURITY
ADMINISTRATION,

Defendant.
_____________________________________

ARMISTEAD, United States Magistrate Judge

In this judicial review of the Commissioner’s final decision denying Social Security
benefits, plaintiff Alyssa M. (last name omitted for privacy) challenges the Administrative Law
Judge’s findings regarding step two, their subjective symptom testimony, the medical opinion
evidence, and the lay witness testimony. Because the court finds that the ALJ did not err, the
Commissioner’s decision is affirmed.
ALJ’S DECISION
Plaintiff applied for Title II Disability Insurance Benefits (DIB) and Title XVI
Supplemental Security Income (SSI) on January 19, 2021, alleging disability beginning on June
1, 2012. (Tr. 62-63, 82-83.) Their claims were initially denied and on reconsideration. (Tr. 80-81,
101, 110, 120.) Plaintiff then filed for a hearing that was held before the ALJ on August 24,
2023. (Tr. 37.) The Appeals Council denied review, making the ALJ’s decision final.
In denying plaintiff’s applications, the ALJ followed the five-step sequential evaluation
process. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). At step one, the ALJ determined
plaintiff had not engaged in substantial gainful activity since the alleged onset date. (Tr. 20-21.)

At step two, the ALJ determined that they had the following severe impairments: migraine
headache disorder, obesity, left patellofemoral syndrome, major depressive disorder, and
generalized anxiety disorder. (Tr. 21.) At step three, the ALJ determined that their impairments
singly or in combination did not meet or medically equal the severity of any listed impairment.
(Tr. 22.) As for the ALJ’s assessment of plaintiff’s residual functional capacity (RFC),
20 C.F.R. §§ 404.1545, 416.945, the ALJ determined that plaintiff has the RFC to perform light
work with some limitations. (Tr. 24.) At step four, the ALJ determined that plaintiff has no past
relevant work. (Tr. 29.) Considering their age, education, work experience, and RFC, the ALJ
found at step five that jobs existed in significant numbers in the national economy that plaintiff

could perform, including such representative occupations as electronics worker, garment sorter,
and “stocker checker, apparel[.]” (Tr. 30.)

Page 2 – OPINION AND ORDER
Alyssa M. v. Comm’r Soc. Sec. Admin., 6:24-cv-01520-AR
STANDARD OF REVIEW
The district court must affirm the Commissioner’s decision if the Commissioner applied
proper legal standards and the findings are supported by substantial evidence in the record. 42
U.S.C. § 405(g); Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020). Substantial evidence is
“more than a mere scintilla” and is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Biestek v. Berryhill, 587 U.S. 97, 103 (2019) (quotation and
citation omitted). To determine whether substantial evidence exists, the court must weigh all the
evidence, whether it supports or detracts from the Commissioner’s decision. Garrison v. Colvin,
759 F.3d 995, 1009 (9th Cir. 2014).

DISCUSSION
A. Step Two
At step two, the ALJ determines the medical severity of a physical or mental impairment,
and if the claimant does not have any medically severe impairments, he or she is not
disabled. Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006); 20 C.F.R. §
404.1520(a)(4)(ii); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). An impairment is
severe if it “significantly limits” a claimant’s “physical or mental ability to do basic work
activities,” 20 C.F.R. § 404.1521(a), and not severe if the “medical evidence establishes only a
slight abnormality or combination of slight abnormalities which would have no more than a

minimal effect on an individual’s ability to work.” Social Security Ruling (SSR) 85-28, available
at 1985 WL 56856, at *3 (Jan. 1, 1985). Even if an impairment is not severe, the ALJ must still
consider its limiting effect when formulating the claimant’s RFC. Ghanim v. Colvin, 763 F.3d
1154, 1166 (9th Cir. 2014); 20 C.F.R. § 404.1545(a)(2). Generally, the step two threshold is low;

Page 3 – OPINION AND ORDER
Alyssa M. v. Comm’r Soc. Sec. Admin., 6:24-cv-01520-AR
the Ninth Circuit describes it as a “de minimus screening device to dispose of groundless
claims.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (citation omitted).
Plaintiff argues that the ALJ committed reversible legal error by concluding that their
fibromyalgia was not medically determinable at step two. Fibromyalgia can be established as
medically determinable under either of two sets of criteria, enumerated in Social Security Ruling
12-2P, 2012 WL 3104869 (July 25, 2012); Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996,
1005 (9th Cir. 2015). First, based on the “1990 ACR Criteria for the Classification
of Fibromyalgia,” this impairment is medically determinable if: (1) the claimant has a “history of

widespread pain—that is, pain in all quadrants of the body (the right and left sides of the body,
both above and below the waist) and axial skeletal pain (the cervical spine, anterior chest,
thoracic spine, or low back)—that has persisted (or that persisted) for at least 3 months. The pain
may fluctuate in intensity and may not always be present.”; (2) “[a]t least 11 positive tender
points on physical examination”; and (3) there is “[e]vidence that other disorders that could
cause the symptoms or signs were excluded.” SSR 12-2P, 2012 WL 3104869, at *2-3. Second,
based on the “2010 ACR Preliminary Diagnostic Criteria,” fibromyalgia is medically
determinable if: (1) the claimant has a “history of widespread pain,” as provided in the 1990
ACR criteria; (2) the claimant has “[r]epeated manifestations of six or more symptoms, signs, or

co-occurring conditions, especially manifestations of fatigue, cognitive or memory problems
(‘fibro fog’), waking unrefreshed, depression, anxiety disorder, or irritable bowel syndrome”;
and (3) there is “[e]vidence that other disorders that could cause these repeated manifestations of
symptoms, signs, or co-occurring conditions were excluded.” Id. at *3.

Page 4 – OPINION AND ORDER
Alyssa M. v. Comm’r Soc. Sec. Admin., 6:24-cv-01520-AR
In the decision, the ALJ determined that plaintiff’s fibromyalgia was not medically
determinable because the evidence failed to satisfy either set of criteria and because their medical
records did not reveal a fibromyalgia diagnosis. Plaintiff argues that they received a diagnosis
from Diman Raj Lamichhane M.D., in May 2023. As the ALJ explained, however, this was not a
formal diagnosis and other conditions were not excluded. (Tr. 22, citing Tr. 1197-1201.) The
treatment note discussed by the ALJ indicates that Dr. Lamichhane stated “[plaintiff’s] findings
are suggestive of fibromyalgia. I will request records from PCP’s office. If not completed, I will
check for thyroid stimulating hormone and creatinine kinase.” (Tr. 1201.) Dr. Lamichhane also
noted that “[plaintiff] will benefit from a genetic test for vascular type Ehler-Danlos.” (Tr. 1201.)

At the hearing, the ALJ repeatedly asked plaintiff’s attorney where the diagnosis for
fibromyalgia was in the record, yet plaintiff’s attorney was unable to pinpoint an official
diagnosis. (Tr. 45-51.) Their attorney explained an array of plaintiff’s symptoms and abnormal
exams from plaintiff’s primary care doctor found at Exhibit 4F, but did not identify an official
diagnosis. (Tr. 45-51.) Further, plaintiff testified that no follow-up with Dr. Lamichhane
regarding additional evaluation for fibromyalgia had occurred. (Tr. 51.)
Also argued by plaintiff is that the ALJ erred by not considering whether plaintiff
satisfied the 2010 criteria. But that is not error. Under SSR 12-2P, a physician may diagnose
fibromyalgia under either the 1990 or the 2010 criteria, provided the physician has ruled out

other possible causes of a claimant’s pain. See Ford, 950 F.3d at 1155 n.7 (citing SSR 12-2P,
2012 WL 3104869, at *2-3) (emphasis added). SSR 12-2P provides that fibromyalgia is a
medically determinable impairment “if the physician diagnosed [fibromyalgia] and provides the

Page 5 – OPINION AND ORDER
Alyssa M. v. Comm’r Soc. Sec. Admin., 6:24-cv-01520-AR
evidence” that meets either criteria. The ALJ is not required to independently determine whether
the ACR criteria are satisfied.
The case that plaintiff relies on, Swales v. Saul, 852 F. App’x 253 (9th Cir. 2021), is
distinguishable. In Swales, the court held the ALJ erred in failing to find Swales’ fibromyalgia
medically determinable because the “record includes documentation of an examining physician
finding that Swales met the diagnostic criteria for fibromyalgia” and evidence that the treating
nurse practitioner acknowledged that diagnosis, and that myriad other possible causes for the
pain had been ruled out. Id. at 255 (emphasis added). The court also concluded that the step-two
error was harmful because the ALJ discredited Swales’s subjective symptom testimony and the

nurse practitioner’s opinion based on a perceived inconsistency between Swales’ subjective
complaints and objective medical evidence related to his fibromyalgia. Id. Unlike Swales,
plaintiff has not identified a diagnosis of fibromyalgia by a physician under the diagnostic
criteria here. Consequently, the ALJ’s finding that plaintiff’s fibromyalgia was not medically
determinable is supported by substantial evidence.
B. Plaintiff’s Symptom Testimony
Plaintiff argues that the ALJ failed to give specific, clear and convincing reasons for
disregarding their subjective symptom testimony. (Pl.’s Br. at 11-17.) Determining the credibility
of a claimant’s testimony regarding subjective reports of pain or symptoms requires the ALJ to

undertake a two-step process of analysis. Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017).
In the first stage, the claimant must produce objective medical evidence of an underlying
impairment that could reasonably be expected to produce the alleged symptoms. Treichler v.
Comm’r Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014); Tommasetti v. Astrue, 533 F.3d

Page 6 – OPINION AND ORDER
Alyssa M. v. Comm’r Soc. Sec. Admin., 6:24-cv-01520-AR
1035, 1039 (9th Cir. 2008). At the second stage, if there is no affirmative evidence of
malingering, the ALJ must provide specific, clear and convincing reasons for discounting the
claimant’s testimony. Brown-Hunter v. Colvin, 806 F.3d 487, 488-89 (9th Cir. 2015); 20 C.F.R.
§ 404.1529. The specific, clear and convincing standard is “the most demanding required in
Social Security cases” and is “not an easy requirement to meet.” Garrison, 759 F.3d at 1015;
Trevizo, 871 F.3d at 678-79. The “clear and convincing” standard requires an ALJ to “show
[their] work” but, ultimately, the question is not whether ALJ’s rationale convinces the court, but
whether the ALJ’s rationale “is clear enough that it has the power to convince.” Smartt v.
Kijakazi, 53 F.4th 489, 499 (9th Cir. 2022).

In plaintiff’s application for disability benefits, they wrote that they cannot engage in full-
time, competitive employment because of their physical and mental health symptoms. In their
function report, plaintiff explained that they had to reduce the number of hours worked in their
past job “because even part-time [work] ha[d] pushed [their] anxiety to the limits, causing
multiple panic attacks a day.” (Tr. 291.) Interactions with others at work triggered them, and they
struggled to communicate with managers. (Tr. 291.) Their mental impairments affected their
ability to maintain a regular sleep schedule and caused an array of executive functioning issues
that hindered them from maintaining their personal hygiene. (Tr. 292.) Plaintiff also explained
that they need reminders to take their medications and to maintain their personal hygiene and

grooming needs, and that they experience “brain fog,” do not drive, and rarely leave home. (Tr.
293-94, 269, 318, 320.) And spending time with family and authority figures causes anxiety,
which means that they only go to places where they know the other people present, and do not
have hobbies. (Tr. 295-96, 321.) Their chronic migraines prevent them from working “for up to a

Page 7 – OPINION AND ORDER
Alyssa M. v. Comm’r Soc. Sec. Admin., 6:24-cv-01520-AR
week at a time.” (Tr. 291.) When they have a migraine, they also experience nausea, pain, aura,
vomiting, with sensitivity to sound, smells, and light. (Tr. 291, 217.) Plaintiff could do household
chores when they did not have a migraine, but they needed frequent breaks to avoid triggering a
migraine. (Tr. 294.)
Plaintiff has a long history of migraines. At the hearing, plaintiff testified that they were
taking Duloxetine to treat fibromyalgia for the past six months, and that they have taken
medication for fibromyalgia since they were 18 years old. (Tr. 51-52.) Plaintiff described that in
2009, their migraines lasted a day and a half, and were treated with Excedrin. (Tr. 52.) In 2014,
their migraines began to increase in frequency—two to three times a week—and became

“significantly longer each time”—they lasted about a day and a half. (Tr. 52-53.)
As to their mental health, plaintiff testified that they spent at least a week in bed each
month due to depression, and that they treat their depression with antidepressants and therapy.
(Tr. 53.) Two to three panic attacks a month caused them to shake, twitch, hyperventilate, and
cry. (Tr. 55) When the ALJ questioned plaintiff about their gap in medical treatment from 2009
to 2014, plaintiff replied that they did not have medical insurance during that time. (Tr. 56.)
The ALJ discounted plaintiff’s subjective symptom testimony because: (1) their
statements regarding their work history were inconsistent, (2) their activities of daily living are
inconsistent with their claimed limitations, (3) their treatment history shows that symptoms

improved with treatment, and (4) their medical records show largely normal objective findings
during medical appointments. Plaintiff contends that the ALJ’s conclusions are not supported by
substantial evidence. (Pl.’s Br. at 11-17.) The court disagrees, and addresses each of the ALJ’s
rationales in turn.

Page 8 – OPINION AND ORDER
Alyssa M. v. Comm’r Soc. Sec. Admin., 6:24-cv-01520-AR
Inconsistent Statements Regarding Work History. The ALJ concluded that the
“inconsistent statements from [plaintiff] and others concerning why [their] work activity
ended . . . suggest [plaintiff] is able to sustain work activity.” (Tr. 27.) Plaintiff reported working
from April 2019 to December 2019 and a treatment note from December 2019 shows that
plaintiff described their work as “more for supplementary income,” and the ALJ stated this
“suggest[s] there were reasons other than disability for limiting work activity.” (Tr. 27, citing Tr.
424.)) The ALJ also pointed out that in March 2022, plaintiff was asked to describe how they
were the last time they worked, and plaintiff stated that they were “doing really well managing
day to day anxieties and depression, but doing so well kept getting me promoted and more

projects” which became overwhelming. (Tr. 27, citing Tr. 725-26.) The ALJ reasonably could
find those statements inconsistent with plaintiff’s reports that they reduced their hours in past
jobs “because even a part-time job ha[d] pushed [their] anxiety to the limits, causing multiple
panic attacks a day.” Tr. 291. And the ALJ discussed that plaintiff’s former employer submitted
a letter stating that they worked part-time from July 19, 2010, through September 17, 2012, and
from July 14, 2017, through January 24, 2018, and that plaintiff was in good standing but did not
return after requesting a medical leave of absence in January 2018. (Tr. 27, citing Tr. 238.) That
letter also states that plaintiff had no attendance issues, “no documentation of infractions of any
sort,” and that plaintiff’s “quality, attendance, and production were all satisfactory.” (Tr. 27,

citing Tr. 238.) The ALJ explained that the medical evidence from April 2015 to December 2018
does not document any impairment related issues that support plaintiff’s stated reason for no
longer being employed after their leave of absence. (Tr. 27, citing Tr. 489-92, 494-97.)

Page 9 – OPINION AND ORDER
Alyssa M. v. Comm’r Soc. Sec. Admin., 6:24-cv-01520-AR
Plaintiff does not challenge the ALJ’s assessment that their work history is inconsistent
with their subjective symptom testimony. The court finds that the ALJ did not err in considering
plaintiff’s inconsistent statements regarding their work history. Tommasetti, 533 F.3d at 1040
(holding ALJ did not err in relying on claimant’s inconsistent statements about work history and
capabilities to discount subjective symptom testimony). That finding is supported by substantial
evidence and is sufficiently specific to allow the court to meaningfully review the ALJ’s
reasoning. The ALJ did not err.
Activities of Daily Living. An ALJ may reject symptom allegations that are inconsistent
with a claimant’s ability to perform normal activities of daily living (ADLs). See 20 C.F.R. §

404.1529(c)(3)(i). There are two ways ADLs may support such rejection: (1) the ADLs
contravene the claimant’s allegations of functional limitations; or (2) the ADLs “meet the
threshold for transferrable work skills[.]” Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007).
“Even where those activities suggest some difficulty functioning, they may be grounds for
discrediting the claimant’s testimony to the extent that they contradict claims of a totally
disabling impairment.” Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012).
Plaintiff argues that the ALJ did not identify what activity he found inconsistent with
their subjective symptom testimony. According to plaintiff, they testified to minimal daily
activities, with depression and anxiety significantly that affected their “ability to maintain

personal hygiene, engage in any activity outside the home, socialize with people they do not
know, and sustain focus and concentration.” (Pl.’s Br. at 10.) Their “progress in self-esteem, self-
advocacy, and boundary setting with family,” in plaintiff’s view, is not substantial evidence that

Page 10 – OPINION AND ORDER
Alyssa M. v. Comm’r Soc. Sec. Admin., 6:24-cv-01520-AR
supports the ALJ’s conclusion that plaintiff is able to sustain fulltime competitive employment.
The court disagrees.
The ALJ discounted plaintiff’s testimony because their activities of daily living were
inconsistent with their allegations of debilitating physical and mental health symptoms. (Tr. 26-
27.) The ALJ acknowledged that in September 2022, plaintiff’s second function report stated that
they “were ‘terrified to leave’ the trailer they were living in.” (Tr. 26, quoting Tr. 317.) Even so,
the ALJ explained that this statement was made when plaintiff was getting out of a relationship
and was living on their partner’s family property. (Tr. 26-27, citing Tr. 1038-40.) The ALJ cited
therapy treatment notes from September 2022 to February 2023 where plaintiff reported they had

moved to a better housing situation and were going on several social outings including two
concerts. (Tr. 27, citing Tr. 1018-23, 1080, 1083, 1134.) And in plaintiff’s most recent mental
health treatment notes from August 2023, plaintiff conveyed that one of their “measurable
objectives” was to increase their ability to complete at least one task outside the home per day.
(Tr. 27, citing Tr. 1230.) Based on that treatment note, the ALJ found that plaintiff was
successfully completing tasks outside the home three to four days per week. (Tr. 27, citing Tr.
1230.) The ALJ’s finding that plaintiff’s subjective symptom testimony about their mental
impairments was inconsistent with their activities of daily living is supported by substantial
evidence and a reasonable interpretation of the record. Chaudhry v. Astrue, 688 F.3d 661, 672

(9th Cir. 2012) (“If the ALJ’s finding is supported by substantial evidence, the court may not
engage in second-guessing.” (quotation omitted)).
Migraines Improved with Treatment. The ALJ also found that plaintiff’s migraine
symptoms improved with conservative treatment when concluding that their symptom testimony

Page 11 – OPINION AND ORDER
Alyssa M. v. Comm’r Soc. Sec. Admin., 6:24-cv-01520-AR
overstated their limitations. (Tr. 25-26.) Plaintiff argues that the record “fails to support the
ALJ’s conclusion that their migraines improved with treatment. (Pl.’s Br. at 16.) Also contended
by plaintiff is that they “engaged in regular treatment for ongoing migraines, including
medication management and acupuncture” and that the ALJ erred in discounting their testimony
because they did not seek out more aggressive migraine treatment. (Id.)
An ALJ may reject a claimant’s symptom testimony if that testimony is contradicted by
evidence in the medical record. Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1161
(9th Cir. 2008). If the record shows a claimant’s symptoms have improved with treatment,
that improvement is “an important indicator of the intensity and persistence of . . .

symptoms.” 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3); Wellington v. Berryhill, 878 F.3d 867,
876 (9th Cir. 2017) (noting “evidence of medical treatment successfully relieving symptoms can
undermine a claim of disability”). Symptom improvement, however, must be weighed within the
context of an “overall diagnostic picture.” Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir.
2001).
Here, regarding plaintiff’s migraine symptoms, the ALJ relied on treatments notes from
2010 to 2022 documenting conservative treatment, gaps in treatment, and overall improvement
with treatment. (Tr. 25-26.) Although plaintiff has a long history of migraine headache disorder,
and was diagnosed in 2006 and 2009, the ALJ explained that there is no evidence of treatment

for migraines again until December 2014, when plaintiff described their headaches as
“incapacitating,” unilateral, with aura, nausea, and vomiting once per week. (Tr. 25, citing Tr.
519-24.) The ALJ found this description inconsistent with their hearing testimony about how
often they had migraines during that same time. (Tr. 25.)

Page 12 – OPINION AND ORDER
Alyssa M. v. Comm’r Soc. Sec. Admin., 6:24-cv-01520-AR
In December 2014, Gail Hacker, M.D., prescribed Maxalt as an abortive medication and
treatment notes show that a prophylactic medication would be considered if plaintiff’s migraines
persisted with four months of treatment on Maxalt. (Tr. 25, citing Tr. 522.) The ALJ explained
that at plaintiff’s follow-up appointments, there was no discussion of migraine medication
management. (See Tr. 502-517.) The ALJ explained that in March 2015, Dr. Hacker prescribed
plaintiff amitriptyline which provided good results—plaintiff reported having no headaches or
occasionally once per week—and plaintiff did not seek additional migraine treatment until
December 2018 when they re-established care with Jessica Criser, NP. (Tr. 25, citing Tr. 498-
500; Tr. 26, citing Tr. 489-92.)

Although plaintiff’s first gap in treatment from 2009 to 2014 is explained by plaintiff’s
lack of insurance, there is the second gap in treatment from 2014 to 2018. (Tr. 56.) In December
2018, plaintiff reported that they were solely using over-the-counter medications to treat their
migraines during that second gap. Even though plaintiff reported in the next month that they
experienced “migraine headaches most days [without] aura,” there was no discussion of
headaches, plaintiff denied having headache symptoms, and no migraine medication was
prescribed in the following months. (Tr. 26, citing Tr. 485-488, 462-484). The ALJ’s finding that
a significant gap in plaintiff’s migraine treatment from 2014 to 2018 occurred is supported by
substantial evidence and is an appropriate basis on which to discount plaintiff’s subjective

symptom testimony. Based on the four-year absence of treatment, the ALJ could reasonably
conclude that plaintiff’s subjective symptoms were not as disabling as alleged. Molina, 674 F.3d

Page 13 – OPINION AND ORDER
Alyssa M. v. Comm’r Soc. Sec. Admin., 6:24-cv-01520-AR
at 1112 (ALJ may discount claimant’s testimony based on “unexplained or inadequately
explained failure to seek treatment”) (citation modified).
The ALJ also discussed plaintiff’s acupuncture treatment history. In 2019, plaintiff’s
acupuncture decreased the frequency and severity of their migraine headaches. Plaintiff sought a
new referral for acupuncture in June 2020, because they found acupuncture to be helpful in
alleviating their symptoms. (Tr. 26, citing Tr. 459.) At this referral appointment, even though
plaintiff reported experiencing migraines about once a week with photophobia, sensitivity to
odors, vomiting, and nausea, plaintiff had not sought treatment in many months and denied

changes in cognition or mentation. (Tr. 26.) The ALJ found that the frequency and duration of
plaintiff’s migraines is inconsistent with their hearing testimony where they testified that their
migraines had progressively worsened since their onset date. (Tr. 26.)
Next, the ALJ discussed how plaintiff engaged in physical therapy for headaches and
cervicalgia after their vertebral artery dissection. (Tr. 26, citing 577-83, 596-98.) During that
time, plaintiff was using over-the-counter medication to treat their migraines. The ALJ
acknowledged that plaintiff reported that they continued to have severe headaches about once a
month, and that they engaged in one physical therapy appointment despite having a migraine and
nausea. (Tr. 26, citing Tr. 475.). The ALJ explained that “per neurology, plaintiff had an

excellent response to physical therapy in reducing headache frequency to about once a week with
intensity being much less” (Tr. 26, citing Tr. 620-26 (citation modified); in June 2022, plaintiff
alleged near constant migraine symptoms and requested a daily maintenance medication, but
they “did not trial topiramate as prescribed and continued to use only over the counter

Page 14 – OPINION AND ORDER
Alyssa M. v. Comm’r Soc. Sec. Admin., 6:24-cv-01520-AR
medication” (Tr. 26, citing Tr. 758-62); eventually amitriptyline was prescribed, but there was no
discussion in follow-up appointments regarding its efficacy, and that plaintiff did not report
migraine headaches at their acupuncture appointments (Tr. 26, citing Tr. 753-56, 994, 997-99,
664-69, 686-89, 692). The ALJ concluded “at no point was there a prolonged effort to trial
preventative medication aside from amitriptyline . . . and there was no discussion of other
treatment options such as a botulinum toxin or other injectables.” (Tr. 26.) The ALJ’s discussion
of the medical record is supported by substantial evidence.
All said, the record reflects that the ALJ reasonably could conclude that plaintiff’s ability
to obtain relief with treatment, inconsistent participation in treatment, and not pursuing more

aggressive treatment undermined their complaints of disabling migraines and serve as a specific,
clear and convincing reason to discount their testimony. When the record supports more than one
rational interpretation, if the ALJ’s conclusion is reasonable and supported by substantial
evidence, it must be upheld. Molina, 674 F.3d at 1111.
Inconsistency with Objective Medical Evidence. In evaluating a claimant’s subjective
symptom testimony, an ALJ may consider whether it is consistent with objective medical
evidence. 20 C.F.R. § 404.1529(c)(1)-(3); Smartt, 53 F.4th at 498-99. An ALJ may not, however,
discount a claimant’s subjective testimony by demanding positive objective medical evidence

that fully corroborates each allegation within that subjective testimony. Smartt, 53 F.4th at 498-
99; Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005) (affirming ALJ’s discounting of
subjective claims of disabling pain based on objective medical evidence and daily activities).

Page 15 – OPINION AND ORDER
Alyssa M. v. Comm’r Soc. Sec. Admin., 6:24-cv-01520-AR
The ALJ discussed that, despite plaintiff’s left patellofemoral syndrome, they consistently
exhibited regular gait, heel-toe and tandem gait, balance, and coordination. (Tr. 25, citing 427,
451, 459, 521, 560, 580, 684, 780, 784-86, 917, 1200.) As for their mental impairments, the ALJ
discussed how plaintiff’s medical providers seldom observed an anxious or depressed mood, and
when it was observed, it was often due to situational stressors. (Tr. 26, citing 411-12, 416-17,
427, 546, 553, 560, 580, 602, 623, 653-54, 713-18, 1018-23.) The ALJ also discussed that when
plaintiff was consistent with their medication management and in therapy, they reported that
their anxiety decreased when in public, had greater mood stability, and a greater ability to
accomplish daily tasks. (Tr. 26, citing 414-19, 462-64, 466-68, 473-75, 479-80, 482-84, 686-89.)

Plaintiff does not challenge the ALJ’s findings that detail the inconsistencies between the
objective medical evidence and plaintiff’s symptom testimony.1 The ALJ’s findings on this point
are supported by substantial evidence, are a reasonable interpretation of the evidence, and
provide a specific, clear and convincing reasons to discount plaintiff’s subjective symptom
testimony.
In summary, the ALJ provided four reasons, each supported by substantial evidence, to
support his findings. Those reasons, especially in combination, amount to specific, clear and
convincing reasons for discounting plaintiff’s subjective symptom testimony.
C. Medical Opinion Evidence

Plaintiff challenges the ALJ’s consideration of the medical opinions of Kelsey
Pemberton, LCSW, plaintiff’s therapist. The regulations require ALJs to evaluate the

1 Plaintiff also does not argue how the ALJ’s subjective symptom finding would be different
had the ALJ found his fibromyalgia a medically determinable impairment.

Page 16 – OPINION AND ORDER
Alyssa M. v. Comm’r Soc. Sec. Admin., 6:24-cv-01520-AR
supportability and consistency of a medical opinion when assessing its persuasiveness. 20 C.F.R.
§ 404.1520c(c). ALJs must “articulate . . . how persuasive [they] find all of the medical
opinions” and “explain how [they] considered the supportability and consistency factors.” Woods
v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022) (quoting 20 C.F.R. § 404.1520c(b)(2)).
Supportability is determined by assessing whether the medical source provides explanations and
objective medical evidence to support their opinion. 20 C.F.R. § 404.1520c(c)(1). Consistency is
determined by evaluating how consistent the opinion is with evidence from other medical and
nonmedical sources in the record. 20 C.F.R. § 404.1520c(c)(2).
On December 15, 2022, Kelsey Pemberton, LCSW, submitted a treating source form

supporting plaintiff’s disability claim. (Tr. 896-99.) The ALJ found Pemberton’s form
unpersuasive, noting that Pemberton is not an acceptable medical source, her opined limitations
are not consistent with the medical record, and that “while Pemberton provides some
explanation, it is mostly citation to subjective reports from [plaintiff.]” (Tr. 29.) The ALJ’s
conclusions are supported by substantial evidence.
Plaintiff challenges the ALJ’s evaluation of Pemberton’s opinion on two primary
grounds. First, they argue that the ALJ erred in discounting Pemberton’s opinion because she
was not an “acceptable medical source.” In plaintiff’s view, as a qualified mental health
practitioner, Pemberton is a licensed medical practitioner under Oregon law, and the ALJ erred

in rejecting her opinion because she is not an acceptable medical source. (Pl.’s Br. at 8-9, citing
OAR 291-124-1030(2)). The court is not convinced. Even if the ALJ erred in finding that

Page 17 – OPINION AND ORDER
Alyssa M. v. Comm’r Soc. Sec. Admin., 6:24-cv-01520-AR
Pemberton was not an acceptable medical source,2 the ALJ evaluated Pemberton’s medical
source opinion about plaintiff’s limitations, including its supportability and consistency. 20
C.F.R. §§ 404.1520c, 416.920c
Second, plaintiff contends that the ALJ erred by discounting Pemberton’s opinion
because it relied on plaintiff’s self-reports rather than clinical findings. (Tr. 29, citing 901-04.).
According to plaintiff, an ALJ must exercise care when rejecting opinions based on self-reports
in the mental health context. Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017) (“the rule
allowing an ALJ to reject opinions based on self-reports does not apply in the same manner to
opinions regarding mental illness”). But it wasn’t that the ALJ rejected Pemberton’s opinion

based on plaintiff’s self-reports, but that Pemberton’s form is mostly a record of what plaintiff
reported to her. (Tr. 29 (“while Pemberton provides some explanation, it is mostly citation to
subjective reports from the claimant.”)
The ALJ also concluded that Pemberton’s opinion was inconsistent with the objective
medical record. An ALJ may also reject an opinion that is “brief, conclusory, and inadequately
supported by clinical findings,” Bray v. Comm’r Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir.
2009) (citation omitted), and the ALJ here did that by discussing how the marked and extreme
limitations assessed by Pemberton are inconsistent with other record evidence, noting that

2 The parties agree that “physical or mental impairments must be established by objective
medical evidence from an acceptable medical source,” 20 C.F.R. §§ 404.1521, 416.921, and that
Pemberton is not an “acceptable medical source” as defined under 20 C.F.R. § 404.1502(a)
(defining “acceptable medical source” to include a licensed physician or licensed psychologist).
Pemberton’s state license only means that she is a “medical source” under social security
regulations. 20 C.F.R § 1502(d) (defining “medical source” as individuals licensed “as a
healthcare worker by a State”).

Page 18 – OPINION AND ORDER
Alyssa M. v. Comm’r Soc. Sec. Admin., 6:24-cv-01520-AR
plaintiff engaged in activities “contrary to the degree of restriction assessed,” including progress
in “self-esteem, self-advocacy, and boundary setting with family” and (Tr. 29, citing Tr. 728,
1054, 1080, 1083, 1104, 1119, 1160-61, 1176, 1229-1249.) Given that the ALJ addressed these
activities when evaluating plaintiff’s subjective symptom testimony, this finding is supported by
substantial evidence and is sufficiently specific to allow the court to meaningfully review the
ALJ’s reasoning. Tommasetti, 533 F.3d at 1041. As a result, the ALJ did not err.
D. Lay Witness Testimony
Lay witness testimony about a claimant’s symptoms is competent evidence that an ALJ
must consider unless he “expressly determines to disregard such testimony and gives reasons

germane to each witness for doing so.” Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001);
Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996) (holding that competent lay witness
testimony “cannot be disregarded without comment” (emphasis in original)). An ALJ may not
reject such testimony without comment and “must give reasons that are germane to each
witness.” Id. (quoting Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993)).3
Plaintiff asserts that the ALJ erred by not providing an assessment of her friend Kati’s

3 The Commissioner argues that under new regulations governing the evaluation
of medical evidence, an ALJ need not provide any reason for rejecting lay witness statements.
Although the “germane reasons” standard is under consideration at the Ninth Circuit, absent
clear direction, the court will continue to require the ALJs to consider and address lay witness
testimony. See Hudnall v. Dudek, 130 F.4th 668, 671 (9th Cir. March 7, 2025) (overruling
germane reasons standard), vacated and withdrawn, 133 F.4th 968 (9th Cir. Apr. 7, 2025)); see
also Isaiah L. v. Comm’r Soc. Sec. Admin., 6:24-cv-02081-AR, 2025 WL 2910190, at *6 (D. Or.
Oct. 14, 2025) (concluding that “the new regulations have not eliminated an ALJ’s obligation to
consider and address lay witness testimony”); Karen W. v. Comm’r Soc. Sec. Admin., 6:24-cv-
00294-AR, 2025 WL 654113, at *8 (D. Or. Feb. 28, 2025) (same, collecting cases)).

Page 19 – OPINION AND ORDER
Alyssa M. v. Comm’r Soc. Sec. Admin., 6:24-cv-01520-AR
function report. But the ALJ did consider Kati’s function report, and observed that it had “little
evidentiary value” because most of the responses in the report were not direct observations of
plaintiff and some responses were inconsistent with other information. (Tr. 25; “responses are
inconsistent with other information, such as the claimant being unable to go [to] concerts
because later that year they did in fact attend a concert.”’)
That explanation is sufficiently germane, and supported by substantial evidence.
CONCLUSION
For the above reasons, the court AFFIRMS the Commissioner’s final decision, and this
action is DISMISSED.
DATED: February 17, 2026.
i / ISTEAD
United States Magisttate Judge

Page 20 - OPINION AND ORDER
Alyssa M. v. Comm’r Soc. Sec. Admin., 6:24-cv-01520-AR

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11262625. Public record. Not legal advice.