Opinion

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

EASTERN DIVISION

RANDY E.,1 Case No. 5:25-cv-00940-DFM

Plaintiff, MEMORANDUM OPINION AND

ORDER

v.

FRANK BISIGNANO,

Commissioner of Social Security,

Defendant. 2

Plaintiff Randy E. appeals the ALJ’s decision denying his claim for

disability insurance benefits. For the reasons set forth below, the ALJ’s denial

of benefits is reversed, and this case is remanded.

BACKGROUND

Plaintiff applied for Social Security disability insurance benefits in April

2021, alleging disability beginning June 1, 2017. See Dkt. 11, Administrative

1 The Court partially redacts Plaintiff’s name in compliance with Federal

Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the

Committee on Court Administration and Case Management of the Judicial

Conference of the United States.

2 Frank Bisignano is the Commissioner of Social Security. Under Federal

Rule of Civil Procedure 25(d), he is automatically substituted for Leland

Dudek as Defendant in this action.

Record (“AR”) 207-10.3 Plaintiff’s claims were denied initially and upon

reconsideration. See AR 109-24. Upon request, Plaintiff received a hearing

before an Administrative Law Judge (“ALJ”) on September 15, 2022. See AR

38-63, 130. The ALJ issued an unfavorable decision on November 2, 2022. See

AR 14-26. After the Appeals Council denied review, Plaintiff sought review in

this Court, and the parties stipulated to a remand. See AR 8-12, 826-38.

On April 1, 2024, the Appeals Council issued an order remanding the

case to an ALJ for further proceedings to include a reevaluation of the nature

and severity of Plaintiff’s hernia impairment, a reevaluation of Plaintiff’s

residual functional capacity (“RFC”), and a reevaluation of Plaintiff’s

subjective complaints. See AR 851-54. On remand, Plaintiff received a second

hearing before a different ALJ on January 15, 2025.4 See AR 777-798. The

ALJ issued an unfavorable decision on January 31, 2025. See AR 751-76.

In the decision, the ALJ followed the five-step sequential evaluation

process for determining whether an individual is disabled. See 20 C.F.R.

§ 404.1520(a). At step one, the ALJ found that Plaintiff had not engaged in

substantial gainful activity during the period from his alleged onset date of

June 1, 2017, through his date last insured of December 31, 2020. See AR 757.

At step two, the ALJ found that Plaintiff had the severe impairments of

“degenerative disc disease (DDD) of the cervical, thoracic, and lumbar spine,

hypertension, congestive heart failure status post STEMI with stent placement,

hernia, chronic pain syndrome, and obesity.” Id. At step three, the ALJ found

that Plaintiff did not have an impairment or combination of impairments that

3 Citations to the AR are to the record pagination. All other docket

citations are to the CM/ECF pagination.

4 The transcript lists the hearing date as January 15, 2024. See AR 777-

98. Given the date of the Appeals Council’s order and the parties’ reference to

a January 15, 2025 hearing, the Court assumes a January 15, 2025 hearing.

met or medically equaled the severity of one of the listed impairments 1n 20

C.F.R. Part 404, Subpart P, Appendix 1. See AR 760-61.

The ALJ determined that Plaintiff had the RFC to perform “light work

as defined in 20 CFR [§] 404.1567(b) except the claimant can frequently push

and/or pull with the left lower extremity; he can occasionally climb ramps and

stairs, balance, stoop, kneel, crouch, and crawl; he can never ladders [sic],

ropes, or scaffolds; and he can have occasional exposure to odors, fumes, dust,

gases, and pulmonary irritants and hazards, but no exposure to unprotected

heights or dangerous moving machinery.” AR 761.

At step four, the ALJ found that Plaintiff had no past relevant work. See

AR 766. Based on the testimony of a vocational expert, the ALJ found that

Plaintiff could have performed jobs that existed in significant numbers in the

national economy such as marker, routing clerk, and ticket seller. See AR 766-

67. Accordingly, the ALJ concluded that Plaintiff was not disabled. See AR

767-68. Plaintiff now seeks judicial review of the second unfavorable decision.

See Dkt. 1.

Il. LEGAL STANDARD

A district court will set aside a denial of benefits only if “it is either not

supported by substantial evidence or is based on legal error.” Luther v.

Berryhill, 891 F.3d 872, 875 (9th Cir. 2018). Under the substantial-evidence

standard, the district court looks to the existing administrative record and

determines “whether it contains sufficient evidence to support the agency’s

factual determinations.” Biestek v. Berryhill, 587 U.S. 97, 102-03 (2019)

(cleaned up). In this context, “substantial” means “more than a mere scintilla”

but only “such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” Id. at 103 (citation omitted). This threshold

“as not high” and “defers to the presiding ALJ, who has seen the hearing up

close.” Id. at 103, 108. “Where evidence is susceptible to more than one

rational interpretation, it is the ALJ’s conclusion that must be upheld.” Burch

v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).

Il. DISCUSSION

Plaintiff argues that even though the Appeals Council’s remand order

specifically required the ALJ to reassess Plaintiff's persistent hernias and

resulting limitations, subjective statements, and RFC, the ALJ has again failed

to properly assess the same. See Dkt. 15, Plaintiff's Brief (“Pl.’s Br.”) at 4

(referencing AR 853-54).

The parties dispute whether the ALJ properly: (1) determined Plaintiff's

RFC; and (2) evaluated Plaintiff's and his mother’s testimony. See Pl.’s Br.;

Dkt. 18, Defendant’s Brief (“Def.’s Br.”’).

A. Plaintiff’s RFC

A claimant’s RFC is the most they can still do despite their physical or

mental limitations. See 20 C.F.R. § 404.1545(a); Laborin v. Berryhill, 867 F.3d

1151, 1153 (9th Cir. 2017). It is the ALJ’s responsibility to assess RFC. See 20

C.F.R. § 404.1546(c). In determining a claimant’s RFC, an ALJ must assess all

relevant evidence and all of the claimant’s medically determinable

impairments. See id. § 404.1545(a); Laborin, 867 F.3d at 1153. The ALJ must

discuss significant and probative medical evidence and, if he or she rejects or

discounts it, explain why. See Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th

Cir. 2015) (holding federal courts “demand that the agency set forth the

reasoning behind its decisions in a way that allows for meaningful review”).

Here, Plaintiff argues that the ALJ failed to properly consider substantial

and relevant medical evidence of record 1n assessing his RFC. See PI.’s Br. at

4. The Commissioner argues that the ALJ reasonably determined Plaintiff's

RFC, properly carrying out his duty to synthesize the evidence from multiple

medical sources into an RFC reflective of the valid limitations stemming from

Plaintiff's medical conditions. See Def.’s Br. at 3-6.

Plaintiff primarily argues that the ALJ erred in rejecting the internal

medicine consultative examination report of T. Maximous, M.D., who found

Plaintiff limited to walking and standing no more than two hours in an eight-

hour day. See Pl.’s Br. at 4-5 (citing AR 1079). The Commissioner argues that

the ALJ reasonably found that Dr. Maximous’ opinion was unpersuasive as it

was unsupported and inconsistent with the record, including the record prior to

Plaintiff’s December 31, 2020 date last insured. See Def.’s Br. at 3-6 (citing AR

764-65).

Plaintiff filed his application after March 27, 2017, the effective date of

the Social Security Administration’s revised regulations regarding the

evaluation of medical evidence. See 20 C.F.R. § 404.1520c. 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.” Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022).

The ALJ found Dr. Maximous’s opinion “unpersuasive because of its

lack of supportability and inconsistency with the evidence of record.” AR 764.

For supportability, the ALJ found that Dr. Maximous’s opinion regarding

Plaintiff’s standing and walking “is not supported by Dr. Maximous’ own

examination findings . . . .” Id. For consistency, the ALJ found that this

opinion “is also not consistent with the record during the dates of issue.” Id.

The Court discusses each in turn.

The ALJ found that Dr. Maximous’s examination findings undercut

portions of his opinion, noting that the findings “revealed normal gait without

limp or antalgia, mild tenderness in the lumbar spine, but with reduced range

of motion, and normal muscle strength.”5 AR 764. The ALJ did not further

5 The ALJ did not cite to the record for Dr. Maximous’ findings. Dr.

Maximous’ finding regarding Plaintiff’s muscle strength, which is listed under

explain why these findings undercut Dr. Maximous’s opinion, leaving the

Court to guess at the purported inconsistencies between a normal gait, lumbar

spine tenderness with reduced range of motion, intact muscle strength, and the

duration for which Plaintiff can walk and stand. The ALJ’s reasoning is not

supported by substantial evidence. See Brown-Hunter, 806 F.3d at 492.

The ALJ also found that Dr. Maximous’s opinion was “not consistent

with the record during the dates of issue.” AR 764-65. The ALJ proceeded to

list the following from the record: “[Plaintiff] underwent repair of two hernias

with few positive findings and with reports of subjective pain that was

addressed with occasional use of Norco and was fully reducible; he had an

ataxic gait, but was able to stand without difficulty, with lower back pain, leg

numbness and leg pain, range of motion was limited in the cervical and lumbar

spine, positive straight leg raise, spasms, and +4/5 left lower extremity

strength with degenerative disc disease from C4-T1, and thoracic kyphosis and

spondylosis on imaging, but with treatment primarily consisting of pain

medication; and acute St elevation myocardial infarction status post stents to

the right coronary artery, but testing showed a normal ejection fraction and the

claimant denied any chest pain, shortness of breath, palpitations or dizziness

and he was referred to pain management and his pain level went down with

Norco.” Id. (citing AR 343-48, 353, 365, 367-68, 389, 406-08, 425-27, 429-30,

503, 559, 561, 566, 583, 587, 593-602, and 624).

As Dr. Maximous attributed the walking and standing durational

limitation to Plaintiff’s back pain and coronary artery disease (CAD), not to

his hernias, see AR 1079, any purported inconsistences with the record

concerning Plaintiff’s hernias appear irrelevant. Moreover, the ALJ merely

the “Motor” portion of the “Neurological Examination,” describe Plaintiff’s

muscle strength as “intact.” See AR 1077.

recited portions of the record without explaining why Dr. Maximous’s opinion

regarding the duration for which Plaintiff can walk and stand in an eight-hour

day is inconsistent with the same. See AR 764-65. Thus, this reason is not

supported by substantial evidence. See Brown-Hunter, 806 F.3d at 492.

Nor is the Court persuaded that, under the circumstances, it was proper

for the ALJ to reject Dr. Maximous’s opinion solely on the ground that it post-

dates Plaintiff’s date last insured. See Benson v. Kijakazi, No. 20-17010, 2022

WL 613713, at *2 (9th Cir. Mar. 2, 2022) (where the agency ordered an

examination after a remand and determined that the evaluation was necessary

to assist the ALJ in complying with the remand, “the rejection of the report on

the ground that it was long after the date last insured was improper.”).

The Commissioner argues that Dr. Maximous’s opinion was

inconsistent with the assessments of two other doctors: Drs. Vaghaiwalla and

Bawa. See Def.’s Br. at 4-5. However, the ALJ did not explicitly cite this as a

rationale for rejecting Dr. Maximous’s opinion. “Long-standing principles of

administrative law require [the Court] to review the ALJ’s decision based on

the reasoning and factual findings offered by the ALJ—not post hoc

rationalizations that attempt to intuit what the adjudicator may have been

thinking.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1225 (9th Cir.

2009).

Beyond critiquing the ALJ’s rejection of Dr. Maximous’s opinion,

Plaintiff argues that the ALJ has yet to properly assess limitations resulting

from his hernia. See Pl.’s Br. at 4. In support, Plaintiff generally summarizes

the medical evidence. See id. at 6-9. While it is indisputable that the medical

evidence reflects Plaintiff’s history of hernias, the Court agrees with the

Commissioner that Plaintiff has failed to point to any significant evidence

showing that his hernias further limited his functioning. While Plaintiff

describes Dr. Maximous as having “concluded that Plaintiff was limited to

standing and walking no more than 2 hours out of 8 due to the combination of

his lower back and hernia,” see Pl.’s Br. at 13, as noted above, Dr. Maximous

attributed this limitation to Plaintiff's back pain and CAD, see AR 1079. The

Commissioner is correct that Plaintiff cannot establish error by simply

advancing a different interpretation of the record. See Burch, 400 F.3d at 679.

In sum, the ALJ, not any medical doctor, properly determines a

claimant’s RFC as an administrative finding as part of the disability

evaluation. See 20 C.F.R. § 404.1546(c). However, when rejecting a medical

opinion as unsupported or inconsistent, an ALJ must provide an explanation

supported by substantial evidence. See Woods, 32 F.4th at 792. As the ALJ did

not provide an explanation supported by substantial evidence to properly reject

Dr. Maximous’s opinion, which included additional limitations, remand is

warranted on this claim of error. See id.

B. Subjective Symptom Testimony

Plaintiff argues that the ALJ did not cite a clear and convincing reason

justifying a complete rejection of Plaintiff's statements of record, testimony

under oath, and Plaintiff's mother’s supportive statements. See Pl.’s Br. at 14-

21. As discussed below, the Court agrees.

1. Plaintiff’s and Plaintiff’s Mother’s Testimony

In May 2021, Plaintiff and his mother each submitted a function report.

See AR 258-65 (Plaintiff's mother’s report), 280-88 (Plaintiffs report). In his

report, Plaintiff stated that he is unable to sit, kneel, stand, bend, crouch, or lift

heavy objects for long periods of time. See AR 280. He stated that he helps get

his kids ready for school, and his mother does most of the cooking and helps

with his children and pets. See AR 281. He has stated that his sleep is affected

due to severe back pain, and he has difficulty with some personal care such

that his wife assists him. Id. He states that he needs reminders, such as to take

his medicine, and can prepare only simple food while his wife and mother do

most of the housework. See AR 282 (“He does make sandwiches and food you

put in micro-wave”). He stated that he does not go out much and his wife and

mother do most of the shopping. See AR 283. He stated that he watches

television, goes to doctors’ appointments, plays games on his phone, and is

short tempered while at times cutting everyone out of his life. See AR 284. He

stated that he can only walk for ten to fifteen minutes before needing to rest.

See AR 285. He stated that he does not handle stress or change well and has

isolated himself from everyone including his family. See AR 286.

Plaintiff’s mother stated that her son has multiple physical and mental

problems including depression; high blood pressure; hernia; pain in his back,

feet, and hip; constant pain; anger issues; difficulty focusing on one thing; and

sleeplessness. See AR 258. She states that Plaintiff watches television and

alienates himself. See AR 259. She states that Plaintiff watches his children

while his wife is at work, but since she is there, he will isolate himself. See id.

She states that she helps with Plaintiff’s children while Plaintiff does his own

personal care. See id. She states that Plaintiff will let the pets out. See id. She

reported that Plaintiff needs reminders for such things as to take his medicine,

only prepares simple food, and is unable to sit or stand very long. See AR 260.

She states that the family treats him like a child because of his pain and anger.

See id. She states that Plaintiff’s wife takes care of all of the bills, and Plaintiff

hardly does anything with his sons or wife. See AR 261-62. If they go

somewhere, they have to rent a scooter for Plaintiff and he does not go out in

public around other people. See AR 262. She states that they remind him of his

doctors’ appointments, and Plaintiff is depressed most of the time and has

difficulty with almost all physical and functional areas. See AR 262-63. She

states that Plaintiff’s attention span is very short and he is only able to walk

about ten to fifteen minutes before needing to rest. See AR 263.

At the first hearing, Plaintiff testified that he can drive, but has difficulty

sitting for longer than thirty to forty-five minutes, at which point he has to pull

over to stretch because his legs get numb. See AR 44. He testified that his

stomach and back problems started after 2003, when he got shot. See AR 48.

Plaintiff testified that he has problems finishing things that he starts and will

have to sit down if he stands too long. See id. He testified that if he sits too

long, he has to stand and stretch, and even activities such as vacuuming affect

him for days. See AR 49. He testified that can stand and walk at most fifteen to

twenty minutes, due mostly to his leg pain and numbness. See id. (“My legs

start burning. They go numb.”). He testified that he has difficulty carrying

things and does not even help his wife with the groceries. See AR 50. He

testified that he goes to pain management, has had steroid shots, and has been

on medications for years, though he is scared of becoming addicted. See AR

50-51. Plaintiff also testified that he takes muscle relaxers and anti-depressants.

See AR 51. He stated that he gets anxious and angry and had a heart attack in

October 2020. See id. He testified that he struggles to keep his blood pressure

down and, since his heart attack, gets winded and tires easily. See AR 52. He

states that he loses his breath and uses inhalers. See id.

Plaintiff testified that his activities depend on how his back feels. See AR

53. While he might cook breakfast if he feels he is able to stand, his mother

does most of the cooking and he no longer does household chores. See id. He

testified that if he tried to vacuum, he would be in bed for the next two to three

days because he could hardly move. See AR 53-54. He testified that he lays

down most of the day to relieve the pressure. See AR 54. He testified that

during the day he watches television, takes naps totaling three to four hours,

can go to doctors’ appointments, but no longer does the grocery shopping

which is done primarily by his wife and mother. Id. Plaintiff testified about his

poor sleep. See AR 55. Plaintiff testified that his “never ending” pain “never

lets up,” and his medications dull it a little bit as does his TENS machine. See

AR 56.

At the second hearing, Plaintiff testified that his back and hernia have

been limiting him, and he has not been able lose weight due to difficulty in

walking. See AR 785. Plaintiff stated that his doctors told him that he needs to

lose at least seventy pounds before undergoing another hernia surgery, and his

inability to be active makes it difficult to do so. See AR 788. Plaintiff testified

that if he walks for fifteen minutes, his legs go numb and he needs to sit down,

and it has been like this for a long time. See AR 785. Plaintiff stated that his

physical limitations worsened after his October 2020 heart attack, see AR 789,

and he could possibly lift up to twenty-five to thirty pounds on a single

occasion, but not multiple times in a day and he would be sore the next day.

See AR 790. Plaintiff stated that trying to lift that much weight would

aggravate his back pain and hernia. See AR 790-91. Plaintiff further stated that

his lifting ability is also limited by his cardiac condition and his neck. See AR

792. Plaintiff testified that even if he can lift something weighing twenty-five to

thirty pounds, he could move it, but he would not be able to carry it even five

steps due to his back and stomach. See id. Plaintiff testified that he can stand

or walk about fifteen to twenty minutes at a time, and that this same limitation

was true before the end of 2020. See id. Plaintiff testified that he still has

ongoing leg pain, burning and numbness “all the time.” See id. Additionally,

Plaintiff testified that he had arm cancer surgery in 2022, which had been

affecting his left arm since before 2020. See AR 787.

2. Relevant Law

The ALJ applies a two-step analysis to assess a claimant’s credibility for

symptom severity. See Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017).

Once the claimant “has presented objective medical evidence of an underlying

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

14

symptoms alleged,” then, absent 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.” Id. (citation omitted).

“This is not an easy requirement to meet: The clear and convincing standard is

the most demanding required in Social Security cases.” Id. (citation omitted).

The ALJ’s findings “must be sufficiently specific to allow a reviewing

court to conclude the adjudicator rejected the claimant’s testimony on

permissible grounds and did not arbitrarily discredit a claimant’s testimony

regarding pain.” Brown-Hunter, 806 F.3d at 493 (citation omitted). However,

“an ALJ is not required to believe every allegation of disabling pain, or else

disability benefits would be available for the asking, a result plainly contrary to

the Social Security Act.” Smartt v. Kyakazi, 53 F.4th 489, 499 (9th Cir. 2022)

(citation and internal quotation marks omitted). The clear and convincing

“standard isn’t whether our court is convinced, but instead whether the ALJ’s

rationale is clear enough that it has the power to convince.” Id.

3. Analysis

Here, the ALJ made no allegations of malingering. The ALJ discredited

Plaintiff at the second Trevizo step, finding that his “statements concerning the

intensity, persistence and limiting effects of [his] symptoms are not entirely

consistent with the medical evidence and other evidence in the record.” AR

762.

At the outset, the Court notes that Plaintiff challenges the ALJ’s

“complete rejection of Plaintiff's statement of record and testimony under

oath.” Pl.’s Br. at 21. To ensure that “appellate review is meaningful,” the ALJ

is required to “specifically identify the testimony [from a claimant] she or he

finds not to be credible and . . . explain what evidence undermines the

testimony.” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1102

(9th Cir. 2014) (citation omitted) (alterations in original); see also Brown-

Hunter, 806 F.3d at 494-94 (finding error where “the ALJ stated only that she

found, based on unspecified claimant testimony and a summary of medical

evidence, that ‘the functional limitations from the claimant’s impairments were

less serious than she has alleged’”).

Here, much of the ALJ’s written decision does not meet the above-

mentioned requirements. The ALJ briefly summarized some of Plaintiff’s

testimony before launching into an overview of Plaintiff’s medical history. See

AR 761-64. Along the way, the ALJ noted that Plaintiff “received mostly

routine, and non-emergency treatment.” AR 762.6 The ALJ did not, however,

specifically identify any of Plaintiff’s testimony that he found not to be

credible. The ALJ’s failure to identify which testimony he found not credible

and explain which evidence contradicted that testimony fell short of the ALJ’s

responsibility. See Brown-Hunter, 806 F.3d at 494-95. Moreover, as discussed

below, the ALJ’s reasons for rejecting Plaintiff’s testimony do not meet the

“clear and convincing” standard.

a. Daily Activities

As the bulk of Plaintiff’s argument focuses on the ALJ’s discussion of

Plaintiff’s daily activities, the Court begins there.

The ALJ rejected Plaintiff’s testimony based on his daily activities. See

AR 761-62. “Engaging in daily activities that are incompatible with the

6 Plaintiff did not directly challenge the ALJ’s use of “routine and non-

emergency” treatment. To the extent the ALJ relied on this as a reason to

discredit Plaintiff’s testimony, there is limited support in the record for this

conclusion. For example, in 2020 alone, Plaintiff underwent hernia repair

surgery and visited the emergency room multiple times, including in October

when he was admitted to the hospital, diagnosed with ST elevation (STEMI)

myocardial infarction, and underwent a left heart catheterization with right

coronary artery intervention and placement of stents. See AR 344-45, 498-503,

590-91.

severity of symptoms alleged can support an adverse credibility

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

activities may also be “grounds for an adverse credibility finding if a claimant

is able to spend a substantial part of his day engaged in pursuits involving the

performance of physical functions that are transferable to a work setting.” Id.

(citation and internal quotation marks omitted). “The ALJ must make specific

findings relating to the daily activities and their transferability to conclude that

a claimant’s daily activities warrant an adverse credibility determination.” Orn

v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (citation omitted) (cleaned up).

The ALJ noted that Plaintiff “admitted activities of daily living including

he lives with family, gets the children ready for school, goes to the park,

prepares meals, takes care of his children, has dogs and a turtle he cares for,

takes out the trash, picks up dog poop, drives, goes out alone, shops in stores

and by phone, can count change, watch television, play games on his phone,

and socialize in person, by phone and text, and video chat.” AR 761-62 (citing

AR 279-88). The Court agrees with Plaintiff that the ALJ mischaracterizes

some of Plaintiff’s activities.

For instance, in his function report, Plaintiff reported that he takes out

the trash and picks up after the dogs, but “[i]t takes me a while just walking out

the sidewalk. By the time I come back in I have so much pain in my back I

have to sit down.” AR 282. Plaintiff also reported that his wife and mother do

the majority of yard and housework because of his back pain. See id. For

meals, Plaintiff testified at the first hearing that he cooks breakfast only if he

feels like he can stand, otherwise, his mother cooks for him and his sons while

his wife works. See AR 53. Plaintiff reported that he will “try to prepare

dinner, but most of the time my mother helps,” and he makes “only

sandwiches” and “food you put in micro-wave.” AR 281-82. For socializing,

Plaintiff reported sitting at home and watching movies everyday with his

family. See AR 284. Overall, Plaintiff repeatedly emphasized that his daily

activities depend on his pain level, and he experiences “never ending” back

pain “[a]ll day long.” AR 56, 281-84.

Plaintiff’s statements and the other record evidence about his daily

activities do not contradict his statements regarding his limitations. Plaintiff

consistently testified that he engages in activities only if his pain allows and/or

that he suffers in pain for some time afterward. The ALJ also failed to

demonstrate that Plaintiff’s limited activities equate to the ability to

consistently perform and persist at full time light work activity as contemplated

by the ALJ. “The Social Security Act does not require that claimants be utterly

incapacitated to be eligible for benefits, and many home activities are not easily

transferable to what may be the more grueling environment of the workplace,

where it might be impossible to periodically rest or take medication.” Fair v.

Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (internal citations omitted).

In sum, this was not a clear and convincing reason for the ALJ to

summarily reject Plaintiff’s testimony. Additionally, as the ALJ partially

rejected at Plaintiff’s mother’s statements on account of this proffered

rationale, see AR 762 (noting that her statements are “generally consistent”

with the claimant’s admitted ability to perform several activities of daily life,

which activities “reflect a significant functional capacity”), this was insufficient

rationale to reject Plaintiff’s mother’s statements for the same reasons espoused

above.

b. Inconsistent with Medical Evidence

The ALJ also found that Plaintiff’s statements were “inconsistent”

because his allegations “are greater than expected in light of the objective

evidence of record.” AR 761. The ALJ found that “[e]ven if the claimant’s

daily activities are truly as limited as alleged, it is difficult to attribute that

degree of limitation to the claimant’s medical condition, in view of the

relatively benign medical evidence.” Id. Plaintiff contends, without much

more, “that his subjective statements of record and testimony under oath are

consistently and credibly supported by the medical evidence of record.” Pl.’s

Br. at 21.

An ALJ may not “reject a claimant’s subjective complaints based solely

on a lack of medical evidence to fully corroborate the alleged severity of pain.”

Burch, 400 F.3d at 681. However, “[w]hen objective medical evidence in the

record is inconsistent with the claimant’s subjective testimony, the ALJ may

indeed weigh it as undercutting such testimony.” Smartt, 53 F.4th at 498.

Here, the ALJ provided an overview of Plaintiff’s medical history. See

AR 762-64. But “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.” Lambert v. Saul, 980 F.3d 1266, 1278 (9th Cir. 2020)

(citation omitted). The Ninth Circuit’s decision in Lambert is instructive.

There, after some introductory boilerplate, the ALJ provided four high-level

reasons as to why claimant’s allegations were “less than fully consistent with

the evidence.” Id. at 1277. The Ninth Circuit concluded that the ALJ’s “brief

discussion” was insufficient: “Our cases do not require ALJs to perform a line-

by-line exegesis of the claimant’s testimony, nor do they require ALJs to draft

dissertations when denying benefits. But our precedents plainly required the

ALJ to do more than was done here, which consisted of offering non-specific

conclusions that [claimant’s] testimony was inconsistent with her medical

treatment.” Id. (internal citation and citation omitted); see also Burrell v.

Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014) (explaining that the reviewing

court may not “take a general finding—an unspecified conflict between

Claimant’s testimony about daily activities and her reports to doctors—and

comb the administrative record to find specific conflicts.”). Likewise here, the

ALJ’s findings do not meet the specificity requirements.

While the Commissioner argues that the medical opinion evidence

indicated Plaintiff was not as limited as alleged, see Def.’s Br. at 7 (referencing

the opinions of Drs. Vaghaiwalla and Bawa, and state agency psychologist

Larry Kravitz, Psy. D), the ALJ did not reference specific medical opinions in

rejecting Plaintiff’s testimony, see AR 762-64. Although the inconsistencies

identified by the Commissioner “could be reasonable inferences drawn from

the ALJ’s summary of the evidence, the credibility determination is exclusively

the ALJ’s to make,” and the Court is “constrained to review the reasons the

ALJ asserts.” Brown-Hunter, 806 F.3d at 494 (citation omitted) (cleaned up).

c. Failure to Follow Treatment

The Commissioner argues that the ALJ reasonably discounted Plaintiff’s

testimony due to his failure to follow recommended medical advice to stop

smoking and lose weight in order to have another hernia surgery. See Def.’s

Br. at 8 (citing AR 763). Plaintiff did not respond to this argument. See Dkt. 19

(Plaintiff’s Statement of No Reply).

An ALJ may rely on an “unexplained or inadequately explained failure

to seek treatment or to follow a prescribed course of treatment” in weighing a

claimant’s credibility. See Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir.

2012), superseded on other grounds by regulation. At the January 2025

hearing, the ALJ asked Plaintiff about his efforts to lose weight and stop

smoking. See AR 785-86. After Plaintiff testified that ailments including his leg

numbness made exercise difficult, the ALJ asked about dieting. See id. Plaintiff

testified that he tried dieting, but “failed miserably.” AR 786. As to his

smoking, Plaintiff testified that he has “been really trying to limit it,” “it’s a

challenge,” and, at that time, Plaintiff was back up to ten cigarettes. Id.7

While Plaintiff’s failure to follow the recommended medical advice to

stop smoking and lose weight to have another hernia surgery may be a ground

to reject Plaintiff’s testimony regarding his hernias, the ALJ erred to the extent

he relied on this rationale to reject all of Plaintiff’s testimony.

d. Improvement With Treatment

The Commissioner highlights how the ALJ noted that Plaintiff’s

condition improved with treatment. See Def.’s Br. at 8-9 (citing AR 757-58,

764). Plaintiff did not reply. See Dkt. 19. “[E]vidence of medical treatment

successfully relieving a claimant’s symptoms can undermine a claim of

disability.” See Wellington v. Berryhill, 878 F.3d 867, 876 (9th Cir. 2017)

(citation omitted); Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006

(9th Cir. 2006) (“Impairments that can be controlled effectively with

medication are not disabling for the purpose of determining eligibility for SSI

benefits.”).

As to Plaintiff’s mental limitations, this rationale may be valid, as

Plaintiff reported improvement after he was started on medication. See AR

757-58 (citing AR 612, 614). As to Plaintiff’s physical limitations, Plaintiff’s

condition did not reportedly improve, albeit perhaps temporarily, until after

the relevant period. See AR 764 (citing AR 561 [notes from a December 9,

2020 medical visit include: “Patient stated that he didn’t notice any changes in

his pain since he started taking Tizanidine”], 566 [notes from a January 8,

2021 follow-up visit include: “Norco helps to bring his pain level down to

7 The Ninth Circuit has acknowledged the possibility that a claimant

may be “so addicted to cigarettes that [they] continued smoking even in the

fact of debilitating [claimed severe ailments].” Bray, 554 F.3d at 1227.

about 3/10 for about 3-4 hours w/ light activity”]). But see Pl.’s Br. at 10-13

(discussing Plaintiff's subsequent medical history which includes complaints of

ongoing pain and decreased medication efficacy, as well as additional

procedures including spinal injections and surgeries). This rationale is not

supported by substantial evidence.

4. Conclusion

In sum, the ALJ did not offer adequate reasons supported by substantial

evidence for discounting Plaintiff's and Plaintiff's mother’s testimony. Nor did

the ALJ sufficiently identify which portions of testimony he found not

credible. Remand is accordingly warranted on this issue.

IV. REMAND IS WARRANTED

The choice whether to reverse and remand for further administrative

proceedings, or to reverse and simply award benefits, is within the discretion of

the district court. See Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000)

(holding that the district court’s decision whether to remand for further

proceedings or payment of benefits is discretionary and is subject to review for

abuse of discretion). A remand is appropriate where there are outstanding

issues that must be resolved before a determination of disability can be made,

and it is not clear from the record that the ALJ would be required to find the

claimant disabled if all the evidence were properly evaluated. See Bunnell v.

Barnhart, 336 F.3d 1112, 1115-16 (9th Cir. 2003). Here, while the Court is

sensitive to the timeline of these proceedings, the Court finds it appropriate to

reverse and remand.

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V. CONCLUSION

This action is remanded to the Commissioner for further proceedings

consistent with this opinion.

Date: January 20, 2026 L, é ty)

DOUGLAS F. McCORMI

United States Magistrate Judge

IN)