The opinion
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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11 BRADLEY K.B., 1 Case No. 2:24-cv-10702-MAA
12 Plaintiff, MEMORANDUM DECISION AND
13 ORDER REVERSING DECISION OF
v.
14 THE COMMISSIONER AND
FRANK BISIGNANO,2 REMANDING FOR FURTHER
15 Commissioner of Social Security, ADMINISTRATIVE PROCEEDINGS
16
Defendant.
17
18 I. INTRODUCTION
19 On December 12, 2024, Plaintiff Bradley K.B. (“Plaintiff”) filed a Complaint
20 seeking review of Defendant Commissioner of Social Security’s (“Commissioner”
21 or “Defendant”) final decision denying his application for disability insurance
22 benefits under Title II of the Social Security Act. (Compl., ECF No. 1.) Pursuant
23
24 1 Plaintiff’s name is partially redacted in accordance with Federal Rule of Civil
25 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
26 States.
27 2 Frank Bisignano became Commissioner of Social Security on May 6, 2025.
Under Federal Rule of Civil Procedure 25(d), he is automatically substituted as
28 Defendant in this suit.
1 to 28 U.S.C. § 636(c), the parties consented to the jurisdiction of a United States
2 Magistrate Judge. (ECF Nos. 8, 9.) On February 13, 2025, Defendant filed an
3 Answer (Ans., ECF No. 11) and Certified Administrative Record (“AR,” ECF Nos.
4 11-1–11-12). On March 19, 2025, Plaintiff filed a Brief. (Pl.’s Br., ECF No. 14.)
5 On April 9, 2025, Defendant filed a Response Brief. (Def.’s Br., ECF No. 16.) On
6 April 22, 2025, Plaintiff filed a Reply Brief. (Pl.’s Reply Br., ECF No. 17.) This
7 matter is fully briefed and ready for decision.
8 The Court deems the matter appropriate for resolution without oral argument.
9 See Fed. R. Civ. P. 78(b); C.D. Cal. L.R. 7-15. For the reasons discussed below, the
10 Court reverses the decision of the Commissioner and remands the matter for further
11 administrative proceedings.
12
13 II. SUMMARY OF ADMINISTRATIVE PROCEEDINGS
14 On November 15, 2022, Plaintiff filed a Title II application for a period of
15 disability and disability insurance benefits, alleging disability beginning October
16 23, 2021. (AR 236–37.) 3 The Commissioner denied this claim initially on March
17 14, 2023 and upon reconsideration on February 9, 2024. (AR 113–123.) On March
18 8, 2024, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”).
19 (AR 129–30.) ALJ D. Coburn conducted a telephonic hearing on September 18,
20 2024, at which Plaintiff and vocational expert Jeff Komar testified. (AR 34–62.)
21 On October 4, 2024, ALJ Coburn issued a decision finding Plaintiff was not
22 disabled after making the following findings under the Commissioner’s five-step
23 evaluation. (AR 17–28.)
24 At step one, the ALJ found that Plaintiff had not engaged in substantial
25 gainful activity since October 21, 2021, the alleged onset date. (AR 19 ¶ 2.) At
26
27 3 Citations to the Administrative Record are to the AR number. Pinpoint citations
to other docketed documents are to the page numbers in the CM/ECF-generated
28 headers.
1 step two, the ALJ found that Plaintiff had the following severe impairments: post-
2 traumatic stress disorder (PTSD) and anxiety disorder. (Id. at ¶ 3.) At step three,
3 the ALJ found that Plaintiff did not have an impairment or combination of
4 impairments that met or medically equaled the severity of one of the agency’s listed
5 impairments. (AR 21 ¶ 4.) Next, the ALJ found that Plaintiff had the following
6 Residual Functional Capacity (“RFC”):
7 [T]he claimant has the residual functional capacity to
8 perform full range of work at all exertional levels but
with the following nonexertional limitations: he can
9
perform simple and routine tasks; he can make simple
10 work-related decisions; and he can have occasional
11 contact with supervisors, coworkers, and the general
public.
12
13 (AR 23 ¶ 5.)
14 At step four, the ALJ found that Plaintiff was unable to perform any past
15 relevant work. (AR 26 ¶ 6.) Finally, at step five, the ALJ found that “there are jobs
16 that exist in significant numbers in the national economy that the claimant can
17 perform,” and therefore concluded Plaintiff had “not been under a disability, as
18 defined by the Social Security Act, from October 21, 2021,” the alleged onset date,
19 through October 4, 2024, the date of the ALJ’s decision. (AR 27–28.)
20 Plaintiff appealed, but the Appeals Council denied the request for review on
21 October 28, 2024. (AR 1–6.) Plaintiff now seeks judicial review of the ALJ’s
22 decision, which stands as the final decision of the Commissioner. See 42 U.S.C. §
23 405(g).
24
25 III. STANDARD OF REVIEW
26 Pursuant to 42 U.S.C. § 405(g), the Court reviews the Commissioner’s final
27 decision to determine whether the Commissioner’s “decision to deny benefits . . .
28 ‘is not supported by substantial evidence or is based on legal error.’” Treichler v.
1 Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014) (quoting Andrews
2 v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). “‘Substantial evidence’ means
3 more than a mere scintilla, but less than a preponderance; it is such relevant
4 evidence as a reasonable person might accept as adequate to support a conclusion.”
5 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (quoting Robbins v.
6 Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)); see also Richardson v.
7 Perales, 402 U.S. 389, 401 (1971). The Court “must consider the record as a
8 whole, weighing both the evidence that supports and the evidence that detracts from
9 the Commissioner’s conclusion, and may not affirm simply by isolating a specific
10 quantum of supporting evidence.” Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir.
11 2014) (quoting Lingenfelter, 504 F.3d at 1035). “‘Where evidence is susceptible to
12 more than one rational interpretation,’ the ALJ’s decision should be upheld.” Orn
13 v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (quoting Burch v. Barnhart, 400 F.3d
14 676, 679 (9th Cir. 2005)). “If the evidence can support either affirming or reversing
15 the ALJ’s conclusion, [a court] may not substitute [its] judgment for that of the
16 ALJ.” Robbins, 466 F.3d at 882.
17
18 IV. DISCUSSION
19 A. Disputed Issue
20 The single disputed issue is whether the ALJ committed reversible error by
21 failing to articulate specific, clear, and convincing reasons for rejecting plaintiff’s
22 subjective symptom testimony. (Pl.’s Br. 4.4)
23
24 B. Applicable Law
25 When assessing a claimant’s credibility regarding subjective symptom
26 testimony or allegations, the ALJ must engage in a two-step analysis. Trevizo v.
27
4 Except for citations to the Administrative Record, pinpoint citations to docketed
28 documents refer to the page numbers in the CM/ECF-generated headers.
1 Berryhill, 871 F.3d 664, 678 (9th Cir. 2017). “First, the ALJ must determine
2 whether the claimant has presented objective medical evidence of an underlying
3 impairment ‘which could reasonably be expected to produce the pain or other
4 symptoms alleged.’” Garrison, 759 F.3d at 1014 (quoting Lingenfelter, 504 F.3d at
5 1035–36). “In this analysis, the claimant is not required to show ‘that her
6 impairment could reasonably be expected to cause the severity of the symptom she
7 has alleged; she need only show that it could reasonably have caused some degree
8 of the symptom.’” Id. (quoting Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir.
9 1996)). “Nor must a claimant produce ‘objective medical evidence of the pain or
10 fatigue itself, or the severity thereof.’” Id. (quoting Smolen, 80 F.3d at 1282).
11 If the claimant satisfies this first step, and there is no evidence of
12 malingering, the ALJ must provide specific, clear and convincing reasons for
13 rejecting the claimant’s testimony about the symptom severity. Id. at 1014–15; see
14 also Robbins, 466 F.3d at 883 (“[U]nless an ALJ makes a finding of malingering
15 based on affirmative evidence thereof, he or she may only find an applicant not
16 credible by making specific findings as to credibility and stating clear and
17 convincing reasons for each.”). “This is not an easy requirement to meet: ‘The
18 clear and convincing standard is the most demanding required in Social Security
19 cases.’” Garrison, 759 F.3d at 1015 (quoting Moore v. Comm’r of Soc. Sec.
20 Admin., 278 F.3d 920, 924 (9th Cir. 2002)). The ALJ must evaluate “the intensity
21 and persistence of those symptoms to determine the extent to which the symptoms
22 limit [the claimant’s] ability to perform work-related activities for an adult . . . .”
23 Social Security Ruling 16-3p, 2016 SSR LEXIS 4, at *4 (Mar. 16, 2016).
24 While the ALJ cannot “delve into wide-ranging scrutiny of the claimant’s
25 character and apparent truthfulness,” Trevizo, 871 F.3d at 678 n.5, the ALJ may
26 consider “prior inconsistent statements concerning the symptoms, and other
27 testimony by the claimant that appears less than candid; . . . unexplained or
28 inadequately explained failure to seek treatment or to follow a prescribed course of
1 treatment; and . . . the claimant’s daily activities,” Ghanim v. Colvin, 763 F.3d
2 1154, 1163 (9th Cir. 2014) (quoting Smolen, 80 F.3d at 1284). Inconsistencies
3 between a claimant’s testimony and conduct, or internal contradictions in the
4 claimant’s testimony, also may be relevant. Burrell v. Colvin, 775 F.3d 1133,
5 1137–38 (9th Cir. 2014). In addition, the ALJ may consider “the claimant’s work
6 record and observations of treating and examining physicians and other third parties
7 regarding, among other matters, the nature, onset, duration, and frequency of the
8 claimant’s symptom; precipitating and aggravating factors; [and] functional
9 restrictions caused by the symptoms . . . .” Smolen, 80 F.3d at 1284. However, it is
10 improper for an ALJ to reject subjective testimony based “‘solely on a lack of
11 objective medical evidence to fully corroborate’ the claimant’s allegations.” Bray
12 v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009) (quoting
13 Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991)).
14 The ALJ must make “a credibility determination with findings sufficiently
15 specific to permit the court to conclude that the ALJ did not arbitrarily discredit
16 claimant’s testimony.” Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008)
17 (quoting Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002)); see Brown-
18 Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (“A finding that a claimant’s
19 testimony is not credible ‘must be sufficiently specific to allow a reviewing court to
20 conclude the adjudicator rejected the claimant’s testimony on permissible grounds
21 and did not arbitrarily discredit a claimant’s testimony regarding pain.’” (quoting
22 Bunnell, 947 F.2d at 345–46)). Although an ALJ’s interpretation of a claimant’s
23 testimony may not be the only reasonable one, if it is supported by substantial
24 evidence, “it is not [the court’s] role to second-guess it.” Rollins v. Massanari, 261
25 F.3d 853, 857 (9th Cir. 2001).
26 ///
27 ///
28 ///
1 C. Plaintiff’s Statements
2 On September 18, 2024, Plaintiff testified before the ALJ in part as follows:
3 He last worked for his former company in October 2021, then was terminated
4 from that position in December 2021. (AR 39.) He started his own business, but
5 never made any money, and his health problems took a turn for the worse, so he
6 ceased working entirely in November 2022. (AR 39.)
7 His problems date back to his time with his former company. (AR 40.) He
8 submitted an HR complaint in October 2021 because his boss had been repeatedly
9 threatening him and sexually harassing him. (AR 40–41.) He suspected his boss of
10 stealing company data. (AR 41.) His boss also tried to coerce him into committing
11 tax fraud and tried to get him to engage in discriminatory hiring practices. (AR 41.)
12 His boss tried to shoot him eight to ten times. (AR 47.) During a business dinner at
13 a trade show with the man who was harassing him, this man “violently yanked”
14 Plaintiff’s chair at least twice. (AR 41.) After this incident, Plaintiff had nonstop
15 racing thoughts, insomnia, and a lot of dissociation. (AR 41.) Plaintiff submitted
16 an HR complaint to the president of the company, which was Italian. (AR 41.) He
17 then had two meetings with the president, as well as an attorney and a psychologist
18 who were Italian citizens and whom Plaintiff felt “acted in a manner . . . designed to
19 intimidate [him], like they were a part of, associated with, or working with the
20 Italian mafia.” (AR 41.) After that meeting Plaintiff thought he was going to get
21 shot in the head. (AR 41.) The company conducted an investigation, and then
22 Plaintiff was terminated. (AR 41–42.) Plaintiff “had also been working with the
23 police,” but they decided at the last minute not to arrest Plaintiff’s harasser, as
24 Plaintiff had anticipated. (AR 42.)
25 Plaintiff started seeing a psychologist in January 2022, who diagnosed him
26 with PTSD. (AR 42.) Plaintiff had nonstop racing thoughts, insomnia, sleep
27 disturbances, and “nonstop dissociation to the point where [he] just quit watching
28 TV shows and movies.” (AR 42.) He becomes fatigued and needs to rest if he does
1 work on a computer. (AR 42.) He can also become irritable and miserable if he has
2 done several hours of semi-complex work on a computer. (AR 42–43.) He also has
3 back pain from the incident at the business dinner when his boss yanked his chair.
4 (AR 43.) After his interactions with the police and HR, Plaintiff “lost faith in
5 institutions,” which caused him to delay going to the doctor for treatment for his
6 back, though he did go eventually. (AR 43.)
7 His back continues to hurt, and it can be triggered by sitting at a computer for
8 more than two or three hours or being in a car for 45 minutes to an hour. (AR 43–
9 44.) He also has problems with memory loss and complex problem-solving and
10 feels overwhelmed by minor tasks. (AR 44.)
11 He threw himself into starting his own company, but his insomnia prevented
12 him from getting much done. (AR 44.) He was “retriggered” during a deposition
13 and started hating his own company, which became a PTSD trigger. (AR 44.) He
14 tried looking for work and applied to at least 600–800 jobs, but eventually realized
15 he was not capable of working like he used to. (AR 45, 49.) He gets distracted
16 from whatever he is trying to do by thoughts of the traumatic experiences he went
17 through with his former boss. (AR 45.) He hired a psychologist to do a threat
18 assessment on his former boss because he believed himself to be in danger. (AR
19 46.) He found the fact that his former boss had tried to shoot him and was
20 romantically obsessed with him to be severely disturbing. (AR 47.)
21 His former company is located in Texas, where Plaintiff lived for some of the
22 time he worked for that company. (AR 48.) Plaintiff moved back to California in
23 October 2020. (AR 48.) His boss once threatened to follow him to California. (AR
24 49.) Out of all the jobs he applied for, he got a lot of interviews, but only one offer.
25 (AR 49.) It was a sales job requiring a lot of driving, and Plaintiff “decided not to
26 waste their time” because of his back pain and all his other health issues. (AR 49.)
27 Also, about the time he got that offer, his health took a turn for the worse. (AR 49–
28 ///
1 50.) He may have gotten another job offer to work at home doing IT tech support,
2 but does not really remember. (AR 53.)
3 Plaintiff lives in an apartment with no roommates or pets. (AR 50.) He no
4 longer has a car and gets what he needs from Amazon or walks 5 minutes to Rite
5 Aid. (AR 50.) He has social anxiety and has not been around large groups of
6 people in a long time. (AR 50–51.) He does not visit with friends or family. (AR
7 51.) He stopped psychotherapy because it was not helping anymore. (AR 52.) He
8 has concerns about driving when he has not slept. (AR 52.)
9 He spends much of his time exercising: about two and a half to three hours a
10 day four days a week, and about one to two hours a day two days a week. (AR 54.)
11 Otherwise, he often lies on the sofa and does nothing at all. (AR 54.)
12 I’m not on the computer during the day for more than a
few hours, very, very, very like. If not for sure my
13
back’s going to hurt in the evening and I will take
14
ibuprofen. I don’t like taking ibuprofen, so I usually just
15 suffer, so I just avoid the computer during the day. So
mostly exercising and sometimes watching TV. But for
16
the most part, I just exercise and listen to music and
17 maybe watch TV in the afternoon, and I’ll just lay on the
18 sofa.
19 (AR 54.) When asked if he still played videogames, he stated:
20 It’s not the same for me even playing games. I get
anxiety and I get – they can get me wound up and get me
21
to dissociate, too. So, I do play games sometimes and
22
sometimes I you know, it’s the only time I can forget
23 about the situation sometimes. But I only really play
those in the evening, and I don’t do them like I used to,
24
you know, I go sometimes weeks at a time not playing
25 them. I go months and months not playing any games
26 since the fall happened.
27 ///
28 ///
1 (AR 54–55.) He does not belong to a gym and works out entirely at home. (AR
2 55.) He lifts weights, and does cardio and “some boxing” inside his apartment.
3 (AR 55.) He used to run, but stopped leaving his house:
4 I stopped around maybe March of this year. I just got
5 tired of it. I used to run for a very long time and very,
very long periods when I had not wanted to leave the
6
house at all and that started right after I got attacked at
7 that business dinner. And so, if some – for whatever
8 reason, back in March of this year, I just got tired leaving
the house and I didn’t leave the house very much for a
9
very long time. I just started going on walks in the
10 afternoon a couple weeks ago and then in March I
stopped, maybe April, early April/March.
11
12 (AR 55.) He is also involved in a lawsuit against his former employer. (AR 55–
13 56.)
14 When Plaintiff was asked whether he had ever been recommended for
15 psychotropic medication therapy, he responded:
16 I told Dr. Lynch early on that that wasn’t a road I wanted
17 to go down and, you know, I do have antianxiety
medicine, Klonopin, you know, during my employment
18
around November 2021, they gave me ten pills and I still
19 have five. Dr. Lynch, you know, I think he didn’t –
there’s a lot of concern with me taking that medicine and
20
using it, and I don’t know if his concerns were specific
21
toward me. I don’t think so (INAUDIBLE) at night. But
22 I have that for emergencies. But other than that, you
know, personally, I think I probably made a mistake not
23
taking antidepressants –
24
* * *
25
You know, I just wanted to – I wanted to be awake every
26 day and eat healthy and go to bed and, you know, not
drink alcohol and prove Dr. Lynch wrong. And, you
27
know, I don’t regret doing all those things, but I think
28
1 that the second psychologist I spoke with (INAUDIBLE)
2 I don’t want to do that.
3 (AR 57.)
4 With respect to his back pain, Plaintiff stated that his doctor had not
5 recommended surgery, and gave him exercises to do, which he does pretty often.
6 (AR 57.) “And other than that, I just try to avoid triggering it, you know, not being
7 on a computer for a long time during the day. I thought maybe running might be
8 triggering it, so I don’t do that anymore. So, that’s it.” (AR 58.)
9
10 D. Analysis
11 At the first step of the two-step evaluation, the ALJ found that Plaintiff’s
12 “medically determinable impairments could reasonably be expected to cause the
13 alleged symptoms.” (AR 24.) At the second step, however, the ALJ found that
14 Plaintiff’s “statements concerning the intensity, persistence and limiting effects of
15 these symptoms are not entirely consistent with the medical evidence and other
16 evidence in the record for the reasons explained in this decision.” (Id.) As the ALJ
17 found no evidence of malingering, the ALJ was required to provide specific, clear
18 and convincing reasons for rejecting Plaintiff’s subjective symptom statements. See
19 Garrison, 759 F.3d at 1014–15.
20 The Court may review only those reasons that the ALJ specifically cited as
21 grounds to reject Plaintiff’s subjective symptom testimony. See Connett v.
22 Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) (“We are constrained to review the
23 reasons the ALJ asserts.”); Garrison, 759 F.3d at 1010 (“We review only the
24 reasons provided by the ALJ in the disability determination and may not affirm the
25 ALJ on a ground upon which he did not rely.”). Here, the ALJ provided four
26 reasons for discounting Plaintiff’s subjective complaints of disabling PTSD
27 symptoms, finding that his complaints were inconsistent with: (1) his admitted
28 activities, (2) the ALJ’s personal observations of Plaintiff during the hearing, (3) the
1 objective medical evidence, and (4) conservative treatment. (AR 24–25.) The
2 Court reviews each reason in turn.
3
4 a. Activities of Daily
5 One of the reasons the ALJ gave for discounting Plaintiff’s statements
6 regarding his symptoms was Plaintiff’s ability to engage in various activities. (AR
7 24.) An ALJ may consider activities of daily living in evaluating the intensity,
8 persistence, and limiting effects of a claimant’s symptoms. 20 C.F.R.
9 §§ 404.1529(c)(3), 416.929(c)(3). “Inconsistencies between a claimant’s testimony
10 and the claimant’s reported activities provide a valid reason for an adverse
11 credibility determination.” Burrell, 775 F.3d at 1137. However, “[t]he Social
12 Security Act does not require that claimants be utterly incapacitated to be eligible for
13 benefits, and many home activities may not be easily transferable to a work
14 environment where it might be impossible to rest periodically or take medication.”
15 Smolen, 80 F.3d at 1284 n. 7.
16 Here, the ALJ discounted Plaintiff’s testimony as inconsistent with his
17 activities of daily living, as follows:
18 He was able to start his own company, look for
19 employment while working, play videogames, submit 90
job applications, use LinkedIn, exercise, started his own
20
company, play games, go to the beach, shop in stores,
21 maintain his grooming and hygiene, plan and prepare
meals, clean, do the laundry, travel on foot, drive, shop
22
online, manage his finances, watch television, read,
23
email, text, and handle stress and changes in routine
24 (Testimony; Exs. 3E; 11F/7, 8; 16F/1, 3, 5). These
activities are specifically inconsistent with the claimant’s
25
subjective complaints about his symptoms and
26 limitations. Accordingly, the undersigned finds that his
27
///
28
1 activities are inconsistent with the claimant’s statements
2 about the intensity and persistence of symptoms.
3 (AR 24–25.)
4 However, the ALJ failed to articulate how the specified activities were
5 inconsistent with Plaintiff’s allegations about his limitations. Further, simply listing
6 these activities does not reveal the context in which they were actually performed,
7 according to Plaintiff’s testimony. For instance, included twice in this list is
8 Plaintiff’s ability to start his own company; however, Plaintiff testified that he was
9 unable to make any money and stopped work on it after less than a year, due to his
10 health problems. (AR 39.) His insomnia prevented him from working full days,
11 and the company became “too much for [him]” and became a PTSD trigger. (AR
12 44.) The ALJ also referenced Plaintiff’s ability to play videogames and watch TV,
13 but Plaintiff specifically testified that he had “quit watching TV shows and movies
14 months ago,” because he could not concentrate due to intrusive thoughts about his
15 past trauma. (AR 42, 45.) As to videogames, he testified that he does not play
16 them as much as, or like, he used to, as they can trigger his anxiety, and he
17 sometimes goes weeks or months without playing them. (AR 54–55.) As to
18 looking for employment, Plaintiff actually testified that he had submitted more like
19 600–800 applications (AR 45, 49), but that des not necessarily translate into an
20 ability to obtain, accept, or hold down a job. As described by Plaintiff, these
21 activities were not inconsistent with Plaintiff’s alleged degree of limitations. See
22 Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) (“[T]he mere fact that a
23 plaintiff has carried on certain daily activities, such as grocery shopping, driving a
24 car, or limited walking for exercise, does not in any way detract from her credibility
25 as to her overall disability.” (citing Fair v. Bowen, 885 F.2d 597, 603 (9th Cir.
26 1989))); Ghanim, 763 F.3d at 1165 (“But here, as described, the daily activities,
27 which included completing basic chores, sometimes with the help of a friend, and
28 attending occasional social events, do not contradict [the claimant’s] testimony.”).
1 An ALJ may not “improperly cherry-pick[]” evidence. Ghanim, 763 F.3d at
2 1164 (holding that ALJ may not “cherry-pick” evidence that favors disability
3 without considering its context in the record); see also Garrison, 759 F.3d at 1017
4 n.23 (“The ALJ was not permitted to ‘cherry-pick’ from those mixed results to
5 support a denial of benefits[.]”). For these reasons, the ALJ’s rejection of Plaintiff’s
6 subjective symptom testimony based on inconsistency with daily activities was not a
7 clear and convincing reason based on substantial evidence in the record.
8
9 b. ALJ’s Personal Observations
10 Another reason the ALJ gave for discounting Plaintiff’s statements regarding
11 his symptoms was their inconsistency with the ALJ’s personal observations of the
12 Plaintiff during the telephonic hearing. (AR 25.) “Although an ALJ’s personal
13 observations do not necessarily render a decision improper, the Ninth Circuit has
14 repeatedly condemned so-called ‘sit and squirm’ jurisprudence.” Thompson v.
15 Colvin, No. CV 15-9608 AS, 2016 U.S. Dist. LEXIS 123421, at *11 (C.D. Cal.
16 Sept. 12, 2016) (citing Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999);
17 Perminter v. Heckler, 765 F.2d 870, 872 (9th Cir. 1985)). Here, the Court is
18 unpersuaded that the ALJ’s observations from Plaintiff’s testimony during a fifty-
19 one minute hearing provide sufficient support for an adverse credibility finding.
20 See Thompson, 2016 U.S. Dist. LEXIS 123421, at *11 (finding “no difficulty
21 concluding that the ALJ’s observations during the fourteen-minute hearing”
22 provided insufficient support for the ALJ’s adverse credibility determination);
23 Agans v. Saul, No. 2:20-cv-00508 AC, 2021 U.S. Dist. LEXIS 71471, *41 (E.D.
24 Cal. Apr. 12, 2021) (holding that claimant’s ability to process and respond to
25 questions during a hearing that lasted less than an hour was not inconsistent with
26 the claimant’s symptoms claims). Accordingly, this was not a clear and convincing
27 reason to reject Plaintiff’s subjective symptom allegations.
28 ///
1 Further, the ALJ stated that Plaintiff “did not demonstrate or manifest any
2 difficulty concentrating, understanding, or remembering during the hearing. During
3 questioning, he appeared to process the questions without difficulty, and responded
4 to the questions appropriately and without delay. He also paid attention throughout
5 the hearing.” (AR 25.) However, while this Court will not substitute its judgment
6 for the ALJ’s personal observations during the telephonic hearing, it must be noted
7 that the written transcript of the hearing does not give the same impression. (See,
8 e.g., AR 53 (Plaintiff does not seem able to remember whether or not he received a
9 job offer for a remote-work job).)
10
11 c. Objective Medical Evidence
12 Another reason the ALJ gave for discounting Plaintiff’s statements regarding
13 his symptoms was that they were inconsistent with the objective medical evidence.
14 (AR 25.) In support of this point, the ALJ states that “the objective findings from
15 the mental status examinations were generally within normal limits,” citing solely
16 to progress notes from Plaintiff’s treating psychologist, Dr. Timothy Lynch, who
17 met with Plaintiff in regular telehealth sessions from January 11, 2022 through
18 April 19, 2023, sometimes weekly and sometimes every two weeks, with a total of
19 37 seven sessions during that period. (AR 419–94.) From the pages cited, it
20 appears the ALJ was referencing the “Mental/Functional” section of the notes for
21 each session, which usually described Plaintiff’s behavior as calm, his appearance
22 as well-groomed, his speech as “[c]lear, coherent, normal for volume, rate, and
23 prosody,” his “[t]hought [p]rocess/content” as “linear, goal directed, unremarkable
24 TC,” and with a “Suicidal Risk Assessment” of “Denied SI, HI, AVH.” (E.g., AR
25 487.) However, in the same section of the treatment notes for most of these
26 sessions—all sessions from February 15, 2022 forward—Plaintiff’s “[m]ood and
27 [a]ffect” are described as “[d]ysphoric, highly anxious when describing the
28 precipitating/trauma event(s).” (AR 420, 422, 424, 426, 428, 430, 432, 434, 436,
1 438, 440, 442, 445, 446, 448, 451, 453, 455, 457, 458, 460, 462, 464, 466, 479, 481,
2 483, 485, 487, 489, 491, 493.) Further, those notes contain other statements
3 documenting Plaintiff’s symptoms, such as noting that his depression and anxiety
4 presented as severe (AR 466), physical symptoms including heart beating; tingling;
5 sweating; chest tightness; increased respiration; stomach tension, tightness, and
6 contractions; neck and head stress; elbow and upper arm pain; rib, chest and
7 trapezoid pain; and jaw clinching. (See, e.g., AR 452, 456, 458, 462, 464.)
8 It is unquestionably true that an ALJ may consider whether a claimant’s
9 subjective symptoms are supported by objective medical evidence, and that an ALJ
10 may reject a claimant’s subjective testimony if it is inconsistent with the objective
11 medical evidence. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155,
12 1161 (9th Cir. 2008) (“Contradiction with the medical record is a sufficient basis
13 for rejecting the claimant’s subjective testimony.”). However, an ALJ cannot
14 “selectively quote[]” a treating physician’s notes. Holohan v. Massanari, 246 F.3d
15 1195, 1208 (9th Cir. 2001). Further, the ALJ here also cited the report of Dr.
16 Michelle Conover, who appears to have examined Plaintiff as part of a defense
17 psychological examination in connection with his civil lawsuit against his former
18 employer. (AR 1001–23.) Dr. Conover felt the need to hire private security guards
19 to be onsite during Plaintiff’s examination. (AR 1005–06.) She describes
20 Plaintiff’s emotional state as including “severe paranoia, delusion, and
21 dissociation,” and therefore recommended that he turn his weapons in to his treating
22 psychologist, Dr. Lynch, whom she noted should “closely monitor [Plaintiff] in
23 order to ensure [his] safety and the safety of others.” (AR 1022.) She also noted
24 that “a psychiatric referral is warranted and advised given the severity of
25 [Plaintiff’s] condition.” (Id.) When “the record contain[s] a mix of normal and
26 abnormal results,” the ALJ must “explain why she found the normal ones more
27 persuasive.” O’Connor v. Berryhill, 355 F. Supp. 3d 972, 984 (W.D. Wash. 2019).
28 The fact that some of Plaintiff’s records showed some findings “within normal
1 limits,” in light of the record as a whole, was not a clear and convincing reason to
2 discount Plaintiff’s testimony.
3
4 d. Conservative Treatment
5 Another reason the ALJ gave for discounting Plaintiff’s statements regarding
6 his symptoms was that they were inconsistent with the extent of treatment sought
7 by Plaintiff. (AR 25.) An ALJ may consider a claimant’s treatment and medication
8 in evaluating a claimant’s symptom testimony. 20 C.F.R. §§ 404.1529(c)(3),
9 416.929(c)(3). “[E]vidence of ‘conservative treatment’ is sufficient to discount a
10 claimant’s testimony regarding severity of an impairment.” Parra v. Astrue, 481
11 F.3d 742, 751 (9th Cir. 2007) (citing Johnson v. Shalala, 60 F.3d 1428, 1434 (9th
12 Cir. 1995)); see also Tommasetti, 533 F.3d at 1039–40 (determining that claimant’s
13 favorable response to conservative treatment undermined claimant’s testimony of
14 disabling pain); Johnson, 60 F.3d at 1434 (holding that ALJ properly may rely on
15 the fact that only conservative treatment had been prescribed to reject claimant
16 testimony). However, “[a]ny evaluation of the aggressiveness of a treatment
17 regimen must take into account the condition being treated.” Revels v. Berryhill,
18 874 F.3d 648, 667 (9th Cir. 2017).
19 Here, the ALJ stated that the degree of Plaintiff’s “subjective complaints
20 [was] not comparable to the extent of treatment sought by [Plaintiff]. In fact,
21 [Plaintiff’s] treatment regimen was conservative and the case record is devoid of
22 evidence of persistent attempts to obtain relief symptoms, such as trying a variety of
23 treatments, referrals to specialists, or changing treatment sources. For instance, he
24 was treated with medications and therapy.” (AR 25.) The ALJ did not, however,
25 identify any particular treatment that Plaintiff could have, but did not, try. (Id.)
26 Further, “medication for the treatment of psychiatric disorders is generally not
27 considered to be ‘conservative treatment,’ and not every disabling impairment
28 requires the claimant be hospitalized.” Moreno v. Comm’r of SSA, No. CV-22-
1 00319-PHX-DLR, 2023 U.S. Dist. LEXIS 134523, at *15 (D. Ariz. Aug. 2, 2023);
2 see also Gary I. v. Kijakazi, No. 2:20-CV-07882-GJS, 2022 U.S. Dist. LEXIS
3 13650, at *5 (C.D. Cal. Jan. 24, 2022) (“Courts have established that medication
4 treatment regimens [for mental impairments] with [prescription] medications are
5 not conservative. . . . Nor must a claimant undergo psychiatric hospitalization to be
6 considered disabled.” (citations omitted)). Accordingly, this was not a clear and
7 convincing reason to reject Plaintiff’s subjective symptom allegations.
8
9 * * *
10 In sum, the ALJ’s decision does not provide specific, clear, and convincing
11 reasons for rejecting Plaintiff’s subjective symptom allegations. Reversal is
12 warranted.
13
14 E. Remand for Further Proceedings
15 The decision whether to remand for further proceedings or order an
16 immediate award of benefits is within the district court’s discretion. See Harman v.
17 Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000). Where no useful purpose would be
18 served by further administrative proceedings, or where the record has been fully
19 developed, it is appropriate to exercise this discretion to direct an immediate award
20 of benefits. See id. at 1179 (“[T]he decision of whether to remand for further
21 proceedings turns upon the likely utility of such proceedings.”). However, where,
22 as here, the circumstances of the case suggest that further administrative review
23 could remedy the Commissioner’s errors, remand is appropriate. See McLeod v.
24 Astrue, 640 F.3d 881, 888 (9th Cir. 2011). Specifically, remand is warranted here
25 for reconsideration of Plaintiff’s symptom statements regarding his mental health
26 issues because the ALJ’s failure to provide legally sufficient reasons for discounting
27 such statements in the decision prevents this Court from meaningfully determining
28 whether the decision is supported by substantial evidence. See Treichler, 775 F.3d
1 || at 1103 (“Because ‘the agency’s path’ cannot ‘reasonably be discerned,’ we must
2 || reverse the district court’s decision to the extent it affirmed the ALJ’s credibility
3 || determination.” (citation omitted)).
4
| V. ORDER
6 The Court ORDERS that judgment be entered reversing the decision of the
7 || Commissioner and remanding this matter for further administrative proceedings.
8
9 IT IS SO ORDERED. .
10 ;
11 || DATED: March 31, 2026
12 HONO LE MARIA A. AUDERO
UNITED STATES MAGISTRATE JUDGE
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