McNurlin

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

MICHELLE M.1, Case No. 6:25-cv-00429-JR

Plaintiff, OPINION AND ORDER

v.

COMMISSIONER OF SOCIAL

SECURITY ADMINISTRATION,

Defendant.

RUSSO, Magistrate Judge:

Plaintiff Michelle M. brings this action for judicial review of the final decision of the

Commissioner of Social Security (“Commissioner”) denying her application for Disability

Insurance Benefits under the Social Security Act. The Commissioner’s decision is reversed and

remanded for further proceedings.

1 In the interest of privacy, this opinion uses only the first name and initial of the last name of the

non-governmental party or parties in this case. Where applicable, this opinion uses the same

designation for a non-governmental party’s immediate family member.

PROCEDURAL BACKGROUND

Born in 1977, plaintiff alleges disability beginning February 7, 2022,2 due to chronic

obstructive pulmonary disease (“COPD”), spine injuries, right hand pain, lung and rib pain, a

burning sensation in her legs and feet, and daily headaches. Tr. 603, 606, 653. Her claim was

denied initially and upon reconsideration. On February 22, 2024, a hearing was held before an

Administrative Law Judge (“ALJ”), wherein plaintiff was represented by counsel and testified, as

did a vocational expert (“VE”). Tr. 231-53. On March 27, 2024, the ALJ issued a decision finding

plaintiff not disabled. Tr. 211-23. After the Appeals Council denied her request for review, plaintiff

filed a complaint in this Court. Tr. 1-7.

THE ALJ’S FINDINGS

At step one of the five step sequential evaluation process, the ALJ found plaintiff had not

engaged in substantial gainful activity since the alleged onset date. Tr. 214. At step two, the ALJ

determined the following impairments were medically determinable and severe: “remote history

of spinal fusion surgery; low back pain; facet arthropathy; super morbid obesity (BMI 49-52); mild

thoracic degenerative disc disease; bilateral carpal tunnel syndrome status post release;

gastroesophageal reflux disease (“GERD”); [COPD]; asthma; migraines/headaches; and lower

extremity numbness.” Id. At step three, the ALJ found plaintiff’s impairments, either singly or in

combination, did not meet or equal the requirements of a listed impairment. Id.

Because she did not establish a presumptive disability at step three, the ALJ continued to

evaluate how plaintiff’s impairments affected her ability to work. The ALJ resolved that plaintiff

had the residual function capacity (“RFC”) to perform sedentary work except:

2 Plaintiff previously applied for, and was denied, Disability Insurance Benefits and

Supplemental Security Income on December 12, 2014. Tr. 311-23.

[She can] occasionally climb ramps and stairs and never climb ladders, ropes, or scaffolds.

[Plaintiff] can occasionally stoop, kneel, crouch, and crawl. [She] can occasionally reach

overhead with both upper extremities. [She] can frequently finger with both upper

extremities. [She] can tolerate no concentrated exposure to pulmonary irritants.

Tr. 217.

At step four, the ALJ determined plaintiff capable of performing her past relevant work as

a receptionist and policyholder information clerk. Tr. 221. At step five, the ALJ alternatively found

that plaintiff could perform jobs that existed in significant numbers in the national economy,

including the jobs of document preparer, surveillance system monitor, and paramutual ticket

checker. Tr. 222.

DISCUSSION

Plaintiff argues the ALJ erred by (1) finding the medical opinion of Deborah Reynolds,

NP, unpersuasive; (2) discounting plaintiff’s subjective symptom testimony by clear and

convincing reasons; and (3) by rejecting the lay witness testimony of her son. Pl.’s Opening Br. 2-

3 (doc. 11).

(1) Deborah Reynolds. Deborah Reynolds, a nurse practitioner, has been treating plaintiff

since August 2019. Tr. 1113. In her 2023 opinion, Reynolds diagnosed plaintiff with fusion of

spine, radiculopathy, spinal stenosis, intervertebral disc degeneration and displacement,

spondylosis without myelopathy or radiculopathy, scoliosis, paresthesia of skin, migraine without

aura (not intractable, without status migrainosus), chronic fatigue, major depressive disorder, and

insomnia. Id. Reynolds stated that plaintiff would have to lie down or rest for twenty minutes to

twenty-four hours a day to relieve her symptoms. Tr. 1114. She noted that plaintiff’s conditions

were multi-factorial and could be related to her mood disorder, daily headaches, recurrent

migraines, or her back pain which is relieved only with lying down. Id. Reynolds opined that

plaintiff could sit for thirty to sixty minutes at a time for a total of twelve hours per day but also

could stand or walk for ten minutes at a time, less than one hour total per day. Tr. 1110, 1114.

Plaintiff would need to take an unscheduled break every five to ten minutes in an eight-hour

workday. Tr. 1114. Reynolds also stated that plaintiff would need to periodically elevate her legs

in an eight-hour period. Tr. 1115. Lastly, Reynolds said plaintiff would be off-task at least twenty-

five percent of the workday and would be absent at least four workdays per month due to chronic

fatigue, depression, dizziness, upper extremity weakness, headaches, back pain, and numbness and

tingling in her legs. Id.

The ALJ found Reynolds’s opinion unpersuasive. Tr. 220. However, the ALJ failed to

evaluate the entirety of it. When looking to Reynolds’s opinion, the form provided by plaintiff’s

counsel appears to be a typical treating source statement with several questions and spaces for the

provider to handwrite their answers. See Tr. 1108-1112. However, Reynolds opted to provide typed

answers to the form’s questions, which were attached to the back of the form and directly

correspond to the original form’s questions. See Tr. 1113-15. In her decision, however, the ALJ

stated “Ms. Reynolds opined that [plaintiff] could walk [half] of a block without rest or significant

pain, and she could only sit for [sixty] minutes at a time and stand [or] walk [ten] minutes at a

time. However, none of the remaining questions on the form submitted by the representative were

answered, and no explanation was given for the limits given.” Tr. 220. Though the ALJ is correct

that Reynolds handwrote and circled a few of the questions on the original form, see Tr. 1110, she

also provided full explanations for each question later on in the opinion, having taken the time to

type them out. Compare Tr. 220 with Tr. 1113-15. For example, Reynolds answered question four

by stating “[t]he patient has a [prior medical history] of chronic pain that is multi-factorial in

etiology[]” and goes on to reference observations in the record pertaining to her “documented

cervical radiculopathy with bilateral upper extremity symptoms” and also mentions her treatment

for depression “since 1996 with multiple drug trials of SSRI and SNRI[]s.” Tr. 1113-14. But the

ALJ did not acknowledge that explanation or any other explanation provided by Reynolds. And

there is no way to know how the ALJ would weigh the supportability and consistency factors of

this opinion without a full explanation, as the Court can only review the reasons the ALJ asserts,

not the reasons the ALJ could have given. Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003)

(“We are constrained to review the reasons the ALJ asserts.”); Pinto v. Massanari, 249 F.3d 840,

847-48 (9th Cir. 2001) (“[W]e cannot affirm the decision of any agency on a ground that the agency

did not invoke in making its decision.”). Thus, the ALJ’s assertion that Reynolds’s opinion was

“of little utility given the lack of specifics given,” is not supported by substantial evidence,

constitutes harmful error, and requires remand.

(2) Subjective Symptom Testimony. Plaintiff argues the ALJ failed to give specific, clear

and convincing reasons for discounting her subjective symptom testimony. Pl.’s Opening Br. 11-

18 (doc. 11); Brown-Hunter v. Colvin, 806 F.3d 487, 488-89 (9th Cir. 2015) (if a claimant provides

objective medical evidence of an underlying impairment and there is no affirmative evidence of

malingering, the ALJ must provide specific, clear and convincing reasons for discounting the

claimant’s testimony); 20 C.F.R. § 404.1529. According to plaintiff, the ALJ’s basis for

discounting her symptom testimony—inconsistency with the objective medical evidence and

conservative treatment—were unsupported or failed to account for the entire record. Pl.’s Opening

Br. 11-18 (doc. 11). The Court agrees, in part.

(a) Objective Medical Evidence. The ALJ acknowledged the record supported

plaintiff’s complaints regarding her back pain and carpal tunnel condition, but found that

neurosurgical intervention was deemed unnecessary, and that many of her examination findings

were normal. Tr. 218-19. The ALJ first discussed plaintiff’s musculoskeletal issues. The ALJ cited

plaintiff’s 2022 consultative examination where she exhibited normal gait, good hand-eye

coordination, no balance issues, and five-out-of-five muscle strength. Tr. 219, citing Tr. 1008-17.

During this same exam, however, the ALJ noted that plaintiff was unable to squat and rise with

ease, hop on one foot bilaterally, or walk on her heels and toes. Id. The ALJ next discussed

plaintiff’s 2023 spine specialist consultation, where she presented with a walker, but the ALJ stated

the “objective findings were not indicative of substantial limits.” Tr. 219, citing Tr. 1134. The ALJ

cited plaintiff’s “normal muscle tone and bulk [with five-out-of-five] strength throughout[,]” but

also cited her “bilateral paraspinal muscle tension around the lumbar spine” and that “[p]ercussion

of the spine produced pain at L5-SI[.]” Id., citing Tr. 1135-36. The ALJ then cited plaintiff’s

normal gait but also mentioned that her “back range of motion was full but did produce some

pain.” Id., citing Tr. 1136.

The ALJ failed to identify objective medical evidence that directly conflicted with

plaintiff’s testimony about limitations stemming from her chronic back pain and did not offer a

clear and convincing reason for discounting it. Conflict with objective medical evidence can be a

sufficient basis for discounting a claimant’s testimony. Smartt v. Kijakazi, 53 F.4th 489, 498 (9th

Cir. 2022); 20 C.F.R. § 416.929(c)(2). However, the records the ALJ cited establish that plaintiff

has a baseline of strength and flexibility. The records also support plaintiff’s testimony about the

amount and source of the back pain she suffers, but the ALJ seemingly ignores those observations

without explanation. See Tr. 1134-36. The bulk of plaintiff’s testimony described the difficulties

she suffers as a result of back pain, which does not conflict with gait or range of motion tests.

Because the evidence the ALJ cited did not conflict with plaintiff’s symptom testimony, this was

not a clear and convincing reason for the ALJ to discount plaintiff’s allegations.

In contrast, the ALJ provided sufficient evidence and reasoning to discount plaintiff’s

testimony regarding her asthma, COPD, and stomach issues. Regarding plaintiff’s respiratory

issues, the ALJ found that the objective medical evidence contrasted with her symptom testimony,

mainly because her exacerbation in symptoms were “often linked to infections, including COVID-

19 and pneumonia.” Tr. 219, citing Tr. 1043, 1090. Disability is defined as the “inability to engage

in any substantial gainful activity by reason of any medically determinable physical or mental

impairment which can be expected to result in death or which has lasted or can be expected to last

for a continuous period of not less than 12 months[.]” 42 U.S.C. §§ 423(d)(1)(A), (B); see also

Thompson v. City of Tualatin, No. 3:21-CV-01587-MO, 2022 WL 742682 (D. Or. Mar. 11, 2022)

(holding that because most COVID-19 cases last fewer than 20 days, merely being perceived as

having COVID-19 does not qualify as a disability). The ALJ also mentioned that plaintiff “had

trouble tolerating powder formulations for controllers” but that nevertheless her “spirometry

findings have been normal or indicated only mild obstruction.” Tr. 219, citing Tr. 1020-21, 1238,

1257. Plaintiff does not provide any arguments or evidence disputing the ALJ’s findings. See

Shinseki v. Sanders, 556 U.S. 396, 409-10, 129 S. Ct. 1696, 173 L. Ed. 2d 532 (2009) (the party

challenging the ALJ’s decision bears the burden of showing harm). Therefore, any challenge to

this finding is waived. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th

Cir. 2008).

The ALJ next discussed plaintiff’s gastrointestinal symptoms and acknowledged her recent

reports of “constant abdominal pain and nausea.” Tr. 219, citing Tr. 1278. But the ALJ contrasted

those complaints with plaintiff’s 2024 ultrasound, which showed hepatic steatosis with no acute

abnormality. Id., citing Tr. 1284. The ALJ also discussed plaintiff’s March 2022 evaluation where

she had been referred for gastroesophageal reflux disease. Id., citing Tr. 1001. But only lifestyle

changes were recommended. Id., citing Tr. 1003. Again, plaintiff does not provide any arguments

or evidence disputing the ALJ’s findings, and the ALJ’s reasoning is supported by substantial

evidence in the record. See Shinseki, 556 U.S. at 409-10; see also Carmickle, 533 F.3d at 1161 n.2.

Overall, the ALJ’s reliance on objective medical evidence was a sufficient basis to discount

plaintiff’s testimony regarding her asthma, COPD, and stomach issues. See Smartt, 53 F.4th at

498. Plaintiff does not contest either line of reasoning. See generally Pl.’s Opening Br. (doc. 11).

However, the same cannot be said about the ALJ’s findings regarding plaintiff’s testimony

regarding her chronic back pain. Because the evidence the ALJ cited did not conflict with

plaintiff’s symptom testimony regarding her chronic back pain, this was not a clear and convincing

reason for the ALJ to discount plaintiff’s allegations and must be addressed on remand.

(b) Conservative Treatment. The ALJ’s main reason for discounting plaintiff’s

symptom testimony was due to plaintiff’s conservative treatment and failure to seek treatment. See

Tr. 218-220. A claimant’s conservative course of treatment for an allegedly disabling condition

can undercut subjective testimony regarding the severity of the limitations that impairment causes.

Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007). Not seeking an “aggressive treatment

program” permits the inference that symptoms were not as all-disabling as the claimant reported.

Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). The amount of treatment is “an

important indicator of the intensity and persistence of [a claimant’s] symptoms.” 20 C.F.R. §

416.929(c)(3). If, however, the claimant has a good reason for not seeking more aggressive

treatment, conservative treatment is not a proper basis for rejecting the claimant’s subjective

symptoms. Carmickle, 533 F.3d at 1162.

The ALJ first highlighted plaintiff’s “limited and routine” treatment for back pain and

carpal tunnel, citing multiple instances where plaintiff demonstrated her disinterest and lack of

follow-up. Tr. 218. The ALJ cited physical therapy notes from 2020 where plaintiff attended eight

sessions of physical therapy before being discharged due to non-response to scheduling. Id., citing

Tr. 666-87, 1214. The ALJ then noted that plaintiff did not attempt additional physical therapy

sessions because “physical therapy has never worked.” Id., citing Tr. 826-39, 1133, 1263. The ALJ

also mentioned that acupuncture and massage have also been recommended to plaintiff, but she

was not interested. Id., citing Tr. 1214. The ALJ then acknowledged that plaintiff went to pain

specialists in 2021 and underwent epidural steroid injections, with little benefit. Id., citing Tr. 792-

825, 826-39. The ALJ summed up her evaluation by stating:

While [plaintiff] alleges being essentially bedbound, such extreme symptoms are markedly

inconsistent with her limited follow-up with treatment and examination findings that have

been largely normal. For example, she has alleged difficulty using her right hand, yet has

failed to pursue a carpal tunnel release on the right in over [ten] years and was able to use

both hands without any apparent issue during the consultative examination. She alleges

debilitating pain, yet was only taking over-the-counter medications by the time of the

consultative examination in late 2022, months after the amended alleged onset date. She

alleges significant headache symptoms, yet admitted during testimony to taking ibuprofen

for symptom relief.

Tr. 220 (internal citations omitted).3

Plaintiff argues the ALJ’s evaluation fails to account for plaintiff’s failed treatment

modalities and financial barriers to access. See Pl.’s Opening Br. 14-18 (doc. 11); see also Tr. 811-

12, 817, 832, 836, 838, 1059, 1263. Plaintiff indicated that at one point she did not have insurance

but was willing to pay out of pocket for her testing using money from her divorce. Tr. 1036.

Reynolds then referred plaintiff to neurology for nerve conduction studies but indicated that

diagnostic studies were still limited because plaintiff did not have insurance. Tr. 1271, 1040

(plaintiff’s symptoms were “likely coming from her neck” and noting, “[a]t this point [plaintiff]

3 The ALJ mischaracterized plaintiff’s statement at the administrative hearing here, as plaintiff

stated she takes ibuprofen and Vicodin for symptom relief, neither of which are helpful. See Tr.

241.

does not have health insurance, [so] physical therapy and [an] MRI is not much of an option.”).

Reynolds then tried plaintiff on Tizanidine, but it was not helpful. Tr. 1271, 1263. Plaintiff asserts

that once she was secured insurance, she had an MRI on back which showed abnormalities and

also had a nerve conduction study and EMG done on her wrist for carpal tunnel. Tr. 1259-60, 1287.

In 2024, plaintiff had a carpal tunnel release surgery performed on her dominant hand. Tr. 19-20.

Because the ALJ relied on conservative treatment as a main reason to undermine plaintiff’s

testimony but failed to consider her financial barriers to treatment and failed treatment modalities,

this aspect of plaintiff’s care needs to be reevaluated on remand alongside Reynolds’s full medical

opinion. For example, the ALJ stated that plaintiff “alleges debilitating pain, yet was only taking

over-the-counter medications by the time of the consultative examination in late 2022[,]” but also

acknowledges that in 2023 plaintiff began taking opiates for chronic pain. Compare Tr. 220 with

Tr. 218, citing Tr. 1233, 1273. And despite acknowledging that plaintiff was taking opiates for

chronic pain, the record shows that plaintiff tried numerous pain medications all with side effects

and limited benefit, which the ALJ failed to mention in her decision. See Tr. 1059, 820 (Gabapentin

caused dizziness, lightheadedness, and nausea), 817 (Lyrica caused swelling in plaintiff’s hands

and feet), 811-12 (Belbuca was ineffective and caused dizziness), 1079 (unable to tolerate

Topamax and Phentermine due to insomnia), 1263 (Tizanidine was unhelpful), 1220

(Hydrocodone was only temporarily helpful). The record also documents that plaintiff underwent

interlaminar epidural steroid injections and a peripheral nerve block for cluneal nerve entrapment

without benefit. Tr. 832, 836, 838. The ALJ failed to acknowledge that plaintiff treated her back

condition with steroidal injections, which are not considered typical “conservative” treatment. See,

e.g., Contreras v. Berryhill, No. 19-CV-00154-KAW, 2020 WL 619792, at *4 (N.D. Cal. Feb. 10,

2020) (noting that “[n]umerous courts have rejected the argument that trigger point injections are

‘conservative’”); see also Lapeirre-Gutt v. Astrue, 382 F. App’x 662, 664 (9th Cir. 2010)

(suggesting treatments such as occipital nerve blocks and trigger point injections do not constitute

conservative treatment). The ALJ also faults plaintiff for failing to pursue a carpal tunnel release

but failed to consider that she was unable to afford the testing and procedure without insurance.

See Tr. 220, 1036, 1040, 1271. This is a sufficient explanation for failure to follow treatment

advice, and it was error for the ALJ not to consider it. Gamble v. Chater, 68 F.3d 319, 321 (9th

Cir. 1995). Plaintiff’s supposed “limited” care for her back pain and “fail[ure] to pursue” a carpal

tunnel release were not clear and convincing reasons to reject plaintiff’s testimony about these

symptoms. Tr. 220. On remand, the ALJ must consider plaintiff’s full treatment history and her

justifications for failure to follow through with carpal tunnel release surgery.

(3) Lay Witness Testimony. Plaintiff’s son provided a third-party statement regarding

plaintiff’s physical health-related limitations that tracked plaintiff’s own allegations. See Tr. 663.

The ALJ stated “[w]hile carefully considered and generally consistent with [plaintiff]’s subjective

reports, such extreme limits opined are not reflected in the record. Exams do not show findings

indicative of such inactivity, such as muscle atrophy, and [plaintiff]’s limited follow-through with

treatment does not support pain at the level alleged.” Plaintiff argues the ALJ’s reasoning is not

supported by substantial evidence in the record. Pl.’s Opening Br. 19 (doc. 11). The Court agrees.

The ALJ did not rely on substantial evidence when disregarding plaintiff’s son’s testimony

and therefore erred. As discussed above, the ALJ failed to supply legally sufficient reasons for

rejecting plaintiff’s subjective complaints about her back pain and carpal tunnel, and these same

rationales do not support the decision to discount the lay witness testimony. The ALJ erred in

rejecting the lay testimony in this case. Garrison v. Colvin, 759 F.3d 995, 1020-23 (9th Cir. 2014).

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

to remand for further proceedings or for an award of benefits.” Holohan v. Massanari, 246 F.3d

1195, 1208 (9th Cir. 2001) (citation omitted). Plaintiff asks the Court to remand for an award of

benefits but fails to address all of the requirements. Pl.’s Opening Br. 19 (doc. 11). Because

plaintiff fails to meaningfully address the credit-as-true standard, it is unnecessary for this Court

to address whether those requirements are met. See Burrell v. Colvin, 775 F.3d 1133, 1141 (9th

Cir. 2014) (discussing credit-as-true standard). Instead, the Court concludes that a remand for

further proceedings would be useful because there are conflicts and ambiguities in the record that

must be resolved by the ALJ. See Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099-

1100 (9th Cir. 2014).

As discussed herein, the ALJ committed harmful legal error in regard to Reynolds’s

medical opinion and plaintiff’s subjective symptom testimony surrounding her physical

impairments. Further proceedings would be useful because the record is ambiguous as to plaintiff’s

functional abilities. As such, further proceedings are required to resolve this case. See Treichler,

775 F.3d at 1099 (except in “rare circumstances,” the proper remedy upon a finding of harmful

error is to remand for further administrative proceedings). Therefore, upon remand, the ALJ must

review the entire record, including Reynolds’s full medical opinion, consider plaintiff’s barriers to

treatment and failed treatment, and opine as to her combined functional abilities and, if necessary,

reweigh the medical and other evidence of record, reformulate plaintiff’s RFC, and obtain

additional VE testimony.

CONCLUSION

For the reasons stated above, the Commissioner’s decision is REVERSED, and this case is

REMANDED for further proceedings.

IT IS SO ORDERED.

DATED this 6th day of May, 2026.

/s/ Jolie A. Russo

Jolie A. Russo

United States Magistrate Judge