The opinion
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORINIA
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KACY M.,1 Case No.: 25cv1141-MSB
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Plaintiff,
13 ORDER REVERSING AND
v. REMANDING COMMISSIONER’S
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DECISION [ECF NO. 9]
FRANK BISIGNANO, Commissioner of
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Social Security,
16 Defendant.
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19 On May 5, 2025, Plaintif Kacy M. (“Plaintiff”) filed a Complaint pursuant to 42
20 U.S.C. § 405(g) seeking judicial review of a final adverse decision by the Commissioner of
21 Social Security (“Commissioner”). (ECF No. 1.) Based on all parties’ consent [see ECF
22 Nos. 3, 5], this case is before the undersigned as presiding judge for all purposes,
23 including entry of final judgment. See 28 U.S.C. § 636(c). Now pending before the Court
24 is Plaintiff’s Brief, claiming error by the Administrative Law Judge (“ALJ”) who conducted
25 the administrative hearing and issued the decision denying Plaintiff’s application for
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2 Complaint [ECF No. 1], the Administrative Record (“AR”) [ECF No. 7], Plaintiff’s Brief [ECF
3 No. 9], and the Commissioner’s Responsive Brief [ECF No. 11]. For the reasons set forth
4 below, the Court ORDERS judgment be entered REVERSING the Commissioner’s
5 decision and REMANDING this matter for further administrative proceedings consistent
6 with this Order.
7 I. PROCEDURAL BACKGROUND
8 On January 2, 2019, Plaintiff applied for disability insurance benefits under Titles II
9 and XVIII of the Social Security Act, alleging disability beginning on September 15, 2017.
10 (AR 220–23.) The Commissioner denied the claim initially on April 18, 2019, and again
11 upon reconsideration on July 18, 2019. (AR 123–26; 130–35.) On September 7, 2019,
12 Plaintiff sought an administrative hearing before an ALJ. (AR 136–37.) ALJ Andrew
13 Verne held the first hearing on September 17, 2020, during which Plaintiff appeared
14 with counsel; Plaintiff and vocational expert, Robin Scher, testified. (AR 41–89.) In a
15 written decision dated November 19, 2020, the ALJ concluded Plaintiff had not been
16 under a disability from September 15, 2017, through the date of decision. (AR 18–40.)
17 On January 21, 2021, Plaintiff requested that the Appeals Council review the ALJ’s
18 decision. (AR 217–19.) The Appeals Council denied the request for review on June 2,
19 2021. (AR 6–11.) Plaintiff then sought review by this Court on August 3, 2021. (AR
20 1657–65.) On December 6, 2022, the Court entered an Order granting the parties’ joint
21 motion to remand the matter for further administrative proceedings. (AR 1666–71.) On
22 May 1, 2023, the Appeals Council effectuated the Order of this Court, vacating the
23 Commissioner’s decision and remanding for further proceedings. (AR 1672–77.)
24 On remand, ALJ Andrew Verne conducted the second hearing on March 14, 2024,
25 during which Plaintiff was represented by counsel. (AR 1589–1627.) Both Plaintiff and
26 vocational expert, Doug Lear, testified. (Id.) In a written decision dated May 17, 2024,
27 the ALJ denied Plaintiff’s application, concluding that Plaintiff has not been under a
2 decision. (AR 1560.) The Appeals Council once again denied Plaintiff’s request for
3 review on March 20, 2025, making the ALJ’s decision final. (AR 1548–54.) See also 42
4 U.S.C. §405(g). This timely civil action followed.
5 II. SUMMARY OF THE ALJ’S FINDINGS
6 In rendering his decision, the ALJ applied the Commissioner’s five-step sequential
7 evaluation process. See 20 C.F.R. § 404.1520. At step one, the ALJ found Plaintiff had
8 not engaged in substantial gainful activity from September 15, 2017, through June 30,
9 2022, her date last insured. (AR 1569.) At step two, the ALJ found Plaintiff has the
10 following severe impairments: peripheral nerve entrapment syndrome, mild
11 degenerative disc disease, mild bilateral facet arthropathy, degenerative changes
12 without neuroforaminal narrowing, cervical spine strain, postural dysfunction, pelvic
13 floor dysfunction with pelvic adhesions, myofascial pain syndrome, post-traumatic
14 stress disorder (“PTSD”), major depressive disorder, generalized anxiety disorder, and
15 insomnia. (AR 1570.) The ALJ noted these medically determinable impairments
16 significantly limit Plaintiff’s ability to perform basic work activities. (Id.)
17 At step three, the ALJ determined Plaintiff does not have an impairment or
18 combination of impairments that meets or medically equals the severity of one of the
19 listed impairments in the Commissioner’s Listing of Impairments. (AR 1570.)
20 Specifically, the ALJ found Plaintiff’s physical impairments do not meet or medically
21 equal listing 1.15 (disorders of the skeletal spine resulting in compromise of a nerve
22 root(s)) or 1.16 (lumbar spinal stenosis resulting in compromise of the cauda equina).
23 (Id.) See also 20 C.F.R. § Pt. 404, Subpt. P, App’x 1 § 1.00. Additionally, the ALJ
24 concluded Plaintiff’s mental impairments do not meet or medically equal the criteria of
25 both paragraphs B and C of listing 12.04 (depressive, bipolar and related disorders),
26 12.06 (anxiety and obsessive-compulsive disorders) or 12.15 (trauma- and stressor-
27 related disorders). (AR 1570–71.) See also 20 C.F.R. § Pt. 404, Subpt. P, App’x 1 § 12.00.
2 (“RFC”) to do the following:
3 [P]erform light work . . . except [Plaintiff can] lift, carry, push, and pull 20
pounds occasionally, 10 pounds frequently; can stand and/or walk for 6
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hours, sit for 6 hours, in an 8-hour workday with normal breaks; frequently
5 climb ramps, stairs, ladders, ropes, scaffolds, balance, kneel, crouch, and
crawl . . . [Plaintiff] is limited to understanding, remembering, and carrying
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out simple, routine, repetitive tasks, with breaks every two hours, to no
7 interaction with the general public, and to occasional work-related, non-
personal, non-social interaction with co-workers and supervisors involving
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no more than a brief exchange of information or hand-off of product . . .
9 [Plaintiff] cannot perform highly time pressured tasks such that [Plaintiff] is
limited to generally goal-oriented work, not time sensitive strict production
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quotas (that is, production rate pace work with strict by the minute or by
11 the hour production quotas that are frequently and/or constantly
monitored by supervisors or that are fast paced); low-stress environment
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where there are few work place changes (i.e., the claimant would not have
13 to switch from task to task) and [Plaintiff] has minimal decision-making
capability (i.e., [s]he would be unable to exercise substantial discretion in
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carrying out work activities); and limited to reasoning level 1 work.
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(AR 1572.) In making this determination, the ALJ noted he considered all symptoms,
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medical opinions, and prior administrative medical findings. (Id.) The ALJ found that
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while Plaintiff’s “medically determinable impairments could reasonably be expected to
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cause the alleged symptoms . . . [Plaintiff’s] statements concerning the intensity,
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persistence and limiting effects of these symptoms are not entirely consistent with the
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medical evidence and other evidence in the record.” (AR 1573.)
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At step four, the ALJ found Plaintiff could not perform her past relevant work as a
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masseuse; receptionist; cashier wrapper; sales representative, group; manager, beauty
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shop; or manager, health club. (AR 1578–79.) Finally, at step five the ALJ determined
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there are other jobs existing in significant numbers in the national economy that
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Plaintiff can perform considering her age, education, work experience, and RFC. (AR
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1579–80.) The ALJ identified the following occupations: Garment Folder, Dictionary of
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Occupational Titles (“DOT”) 323.687-014, light, unskilled, 39,000 jobs nationally; Tying
2 Agricultural Produce, DOT 529.687-186, light, unskilled, 32,000 jobs nationally. (AR
3 1580.) The ALJ noted that the vocational expert’s testimony was useful in finding that
4 an individual with Plaintiff’s characteristics would be able to make a successful
5 adjustment to other work that exists in significant numbers in the national economy.
6 (Id.) Thus, the ALJ concluded Plaintiff has not been under a disability from September
7 15, 2017, through June 30, 2022. (Id.)
8 III. DISPUTED ISSUE
9 Plaintiff raises one issue as grounds for reversal: whether the ALJ properly
10 considered Plaintiff’s subjective symptom testimony. (ECF No. 9 at 9–22.)
11 IV. STANDARD OF REVIEW
12 Section 405(g) of the Social Security Act allows unsuccessful applicants to seek
13 judicial review of the Commissioner’s final decision. See 42 U.S.C. § 405(g). The scope
14 of judicial review is limited, and the denial of benefits will only be disturbed if the final
15 decision is not supported by substantial evidence or contains a legal error. Luther v.
16 Berryhill, 891 F.3d 872, 875 (9th Cir. 2018) (internal citations omitted). “Substantial
17 evidence” is a “‘term of art’ used throughout administrative law to describe how courts
18 are to review agency factfinding.” Biestek v. Berryhill, 587 U.S. 97, 102 (2019) (quoting
19 T-Mobile S., LLC v. City of Roswell, Ga., 574 U.S. 293, 301 (2015)). The Supreme Court
20 has said substantial evidence means “more than a mere scintilla,” but only “such
21 relevant evidence as a reasonable mind might accept as adequate to support a
22 conclusion.” Id. (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)) (internal
23 quotation marks omitted). The Ninth Circuit explained that substantial evidence is
24 “more than a mere scintilla, but less than a preponderance.” Revels v. Berryhill, 874
25 F.3d 648, 654 (9th Cir. 2017) (quoting Desrosiers v. Sec’y of Health & Hum. Servs., 846
26 F.2d 573, 576 (9th Cir. 1988)) (internal quotation marks omitted).
27 The reviewing court “must consider the entire record as a whole, weighing both
2 quantum of supporting evidence.” See Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir.
3 2014) (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007)) (internal
4 quotation marks omitted). Overall, the substantial-evidence standard is “highly
5 deferential.” Kitchen v. Kijakazi, 82 F.4th 732, 738 (9th Cir. 2023) (citing Rounds v.
6 Comm’r Soc. Sec. Admin., 807 F.3d 996, 1002 (9th Cir. 2015)). Where the evidence is
7 susceptible to more than one rational interpretation, the ALJ’s decision must be upheld.
8 See Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (internal citations
9 omitted). This includes deferring to the ALJ’s credibility determinations and resolutions
10 of evidentiary conflicts. See Lewis v. Apfel, 236 F.3d 503, 509 (9th Cir. 2001) (citing
11 Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). Thus, the court may overturn the
12 ALJ’s decision only if the ALJ’s conclusions are not supported by substantial evidence or
13 the ALJ applied the wrong legal standard. See Smith v. Kijakazi, 14 F.4th 1108, 1111 (9th
14 Cir. 2021); Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).
15 However, the reviewing court “may not reverse an ALJ’s decision on account of an error
16 that is harmless.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citing Stout v.
17 Comm’r Soc. Sec. Admin., 454 F.3d 1050, 1055–56 (9th Cir. 2006)).
18 V. DISCUSSION
19 A. Whether the ALJ Properly Considered Plaintiff’s Subjective Symptom Testimony
20 1. Summary of the parties’ arguments
21 Plaintiff argues the ALJ failed to provide specific, clear, and convincing reasons for
22 rejecting Plaintiff’s subjective symptom testimony. (ECF No. 9 at 9–22.) First, she
23 contends the ALJ merely provided a “general discussion of the medical evidence” but
24 did not offer a “legally sufficient rationale” for discounting Plaintiff’s testimony. (Id. at
25 12.) Plaintiff notes the regulations prohibit rejecting a claimant’s subjective symptom
26 testimony solely based on objective medical evidence. (Id. at 12–13 (citing 20 C.F.R. §
27 404.1529(c)(2).) Further, Plaintiff contends the ALJ’s general statement that Plaintiff’s
2 he discredited and failed to connect it to the medical evidence, which is legal error. (Id.)
3 Third, Plaintiff contends the ALJ incorrectly concluded Plaintiff obtained only
4 “conservative” treatment. (Id. at 15–18.) Plaintiff argues the ALJ cannot fault her for
5 “failing to pursue non-conservative treatment options if none exist,” and the ALJ failed
6 to cite any evidence “that there was anything more the doctors wanted [Plaintiff] to
7 do.” (Id. at 15.) Moreover, Plaintiff argues that although the ALJ noted she received
8 injections and took narcotic pain medication, he ignored the laparoscopy surgery she
9 underwent. (Id. at 16.) Plaintiff cites Ninth Circuit cases holding that treatment with
10 narcotic pain medication, injections, and surgery is not “conservative.” (Id.) Next,
11 Plaintiff contends the ALJ improperly discounted her testimony based on his finding that
12 she did not undergo “escalating treatment” for her mental impairments. (Id. at 16–17.)
13 However, Plaintiff highlights how it is common for individuals with chronic mental
14 disease to have better days and worse days. (Id. at 17.) She also cites authority
15 recognizing that the use of medications that modify behavior is not considered
16 “conservative” treatment and contends she underwent the type of care that was
17 required for her symptoms. (Id. at 17–18.)
18 Plaintiff also maintains that the ALJ erred by finding the same objective medical
19 evidence that established she had a severe impairment of myofascial pain syndrome
20 was simultaneously insufficient to support her testimony about her pain in general. (Id.
21 at 18.) Finally, Plaintiff argues that the ALJ did not cite her daily activities as a basis for
22 discrediting her testimony; thus, any such argument by the Commissioner is not
23 properly before the Court. (Id. at 19.) Nevertheless, Plaintiff asserts the limited
24 activities the ALJ sporadically mentioned—such as engaging in sexual activity, changing
25 positions during medical examinations, and performing home stretches—do not
26 demonstrate an ability to sustain full-time work and would be an insufficient basis to
27 reject her testimony. (Id. at 20–22.)
2 symptom complaints is supported by substantial evidence and should be affirmed. (ECF
3 No. 11 at 2–9.) The Commissioner contends the ALJ properly considered Plaintiff’s
4 testimony, found parts of it persuasive, and “incorporated a significant number of
5 limitations into her RFC.” (Id. at 3.) For example, to account for Plaintiff’s physical
6 symptoms, such as her neck and back impairments, the ALJ restricted her to “light work
7 with various postural limitations.” (Id.) To account for Plaintiff’s mental limitations, the
8 ALJ limited Plaintiff to “simple, routine, repetitive tasks, no time pressured tasks or
9 quotas,” and more. (Id.) However, the Commissioner contends the ALJ also reasonably
10 found some of Plaintiff’s “debilitating allegations were inconsistent with the medical
11 evidence.” (Id. at 4.) For example, the record demonstrated Plaintiff’s symptoms were
12 inconsistent with her complaints of back and neck pain and difficulty standing and
13 walking, as physical examinations showed Plaintiff’s gait was normal, she had full range
14 of motion, and she could bend her knees without assistance. (Id.)
15 Additionally, the Commissioner contends the ALJ “pointed to many of Plaintiff’s
16 specific complaints and then cited to portions of the objective medical evidence that
17 were inconsistent with those allegations.” (Id. at 4–5.) For example, the ALJ referenced
18 Plaintiff’s testimony that she was bedridden and required a walker but pointed to
19 physical examinations showing she could change positions without difficulty, moved all
20 extremities appropriately, and was advised to avoid bed rest. (Id. at 5.) Additionally,
21 the ALJ highlighted inconsistencies between Plaintiff’s generally normal mental status
22 examination results and her allegations of debilitating mental impairments. (Id. at 6–7.)
23 Lastly, the Commissioner argues the ALJ appropriately determined Plaintiff’s treatment
24 was “conservative” for both her physical and mental impairments. (Id. at 6–8.) The ALJ
25 acknowledged Plaintiff was prescribed narcotic pain medication and received injections;
26 however, she “subsequently relied on physical therapy, chiropractic adjustments, and
27 massages to treat her pain symptoms” and the surgery she underwent was a diagnostic
2 discounting her testimony related to her mental impairments. (Id. at 8.) Thus, the
3 Commissioner argues that because the ALJ provided multiple, specific reasons
4 supported by substantial evidence for discounting Plaintiff’s subjective complaints, his
5 decision should be affirmed. (Id. at 8–9.)
6 2. Applicable law
7 When evaluating the credibility of a claimant’s allegations regarding subjective
8 symptoms such as pain, the ALJ must engage in a two-step analysis. See Johnson v.
9 Kijakazi, No. 19-17359, 2022 WL 1553259, at *1 (9th Cir. May 17, 2022); Lingenfelter v.
10 Astrue, 504 F.3d 1028, 1035–36 (9th Cir. 2007). First, the ALJ must determine whether
11 there is objective medical evidence of an underlying impairment that “could reasonably
12 be expected to produce the pain or other symptoms alleged.” Trevizo v. Berryhill, 871
13 F.3d 664, 678 (9th Cir. 2017) (quoting Garrison, 759 F.3d at 1014–15. The claimant is
14 not required to show that an underlying impairment could reasonably be expected to
15 cause the severity of the pain or other symptoms alleged, but only that it could have
16 reasonably caused some degree of the symptoms. Vasquez v. Astrue, 572 F.3d 586, 591
17 (9th Cir. 2009) (citing Lingenfelter, 504 F.3d at 1036).
18 Second, if the claimant meets the first step and there is no evidence of
19 malingering, then the ALJ may reject the claimant’s statements about the severity of her
20 symptoms “only by offering specific, clear and convincing reasons for doing so.”
21 Trevizo, 871 F.3d at 678 (quoting Garrison, 759 F.3d at 1014–15). “The clear and
22 convincing standard is the most demanding required in Social Security cases.” Revels,
23 874 F.3d at 655 (quoting Garrison, 759 F.3d at 1014–15). General findings are
24 insufficient, and the ALJ must identify which specific pain and symptom statements are
25 being discounted and what evidence undermines those claims. See Lambert v. Saul, 980
26 F.3d 1266, 1277 (9th Cir. 2020) (citing Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d
27 1090, 1102 (9th Cir. 2014)); see also Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005)
2 undermines the claimant's complaints.”)
3 “Because symptoms, such as pain, are subjective and difficult to quantify,” the ALJ
4 considers “all of the evidence presented,” including information about the claimant’s
5 prior work record, statements about their symptoms, evidence submitted by their
6 medical sources, and observations by the Agency’s employees and other persons. See
7 20 C.F.R §§ 404.1529(c)(3), 416.929(c)(3). Factors the ALJ may consider, in addition to
8 objective medical evidence, include Plaintiff’s daily activities; the location, duration,
9 frequency, and intensity of their pain or other symptoms; precipitating and aggravating
10 factors; the type, dosage, effectiveness, and side effects of any medication taken to
11 alleviate pain; treatment; and any other measures used to relieve pain. See 20 C.F.R. §§
12 404.1529(c)(3), 416.929(c)(3); Titles II & XVI: Evaluation of Symptoms in Disability
13 Claims, Social Security Ruling (“SSR”) 16-3P, 2017 WL 5180304, at *7–8 (S.S.A. Oct. 25,
14 2017). The ALJ may also consider inconsistencies between Plaintiff’s statements
15 regarding pain and the medical evidence. See 20 C.F.R. §§ 404.1529(c)(4), 416.929(c)(4);
16 SSR 16-3p, 2017 WL 5180304, at *8–9.
17 3. Plaintiff’s testimony
18 a. Adult Function Report
19 Plaintiff completed an Adult Function Report on February 16, 2019. (AR 277–
20 284.) Plaintiff summarized her conditions as follows: “I have chronic abdominal pain
21 that is constant. I don’t get regular sleep, I struggle with PTSD, [a]nxiety, and
22 [d]epression. I have difficulty walking, standing[,] laying[,] or sitting for long periods of
23 time. My pain significantly effects [sic] my daily activities and overall health.” (AR 277.)
24 She explained that “sharp stabbing/burning” abdominal pain makes it difficult to sleep
25 or complete activities. (AR 278.) Further, Plaintiff said she is “constantly fatigued and
26 nauseous.” (Id.) Plaintiff said, “I have lost almost all my previous level of functioning
27 due to chronic pain symptoms.” (Id.) Plaintiff reported difficulties with personal care
2 medicine. (AR 279.) She does not prepare her own meals and requires assistance with
3 most household tasks. (Id.) Plaintiff explained she does not go out, “[d]ue to my [h]igh
4 levels of constant pain and mental state.” (AR 280.) Further, Plaintiff marked “[n]o”
5 when asked if she can go out alone, stating the following reasons, “PTSD, [a]nxiety, and
6 [d]ebilitating pain.” (Id.) Plaintiff marked that she does not drive, “[d]ue to panic
7 attacks, PTSD, sharp stabbing pain, and fear of other [d]rivers.” (Id.)
8 In a yes-or-no sequence of questions, Plaintiff marked “no” for the following
9 tasks: pay bills, count change, handle a savings account, or use a checkbook or money
10 orders. (Id.) She explained that due to the side effects of her medications and constant
11 pain, she has “trouble [r]emembering things.” (Id.) Plaintiff reported that her hobbies
12 previously included running, going to the gym, biking, swimming, attending church,
13 participating in social events, and traveling to visit family. (AR 281.) She stated, “since I
14 got hurt in September, I have been unable to do any of the things I once loved.” (Id.)
15 Plaintiff added “[m]y depression, panic attacks, anxiety and social isolation make it
16 difficult for me to have any social activities.” (AR 282.)
17 In a check-box section, Plaintiff marked that her conditions affect the following
18 abilities: lifting, squatting, bending, standing, reaching, walking, sitting, kneeling, stair-
19 climbing, seeing, memory, completing tasks, concentration, understanding, and
20 following instructions. (Id.) Plaintiff reported only being able to walk in five-minute
21 intervals before needing to stop and rest. (Id.) When asked about following
22 instructions, Plaintiff said: “I have a hard time remembering what was said, and
23 difficulty understanding what is being told to me.” (Id.) She said she does not handle
24 stress well, stating it causes her “anxiety to increase.” (AR 283.) Plaintiff reported using
25 a walker, wheelchair, cane, toilet riser, and shower seat, none of which were prescribed
26 by a doctor. (Id.) Finally, Plaintiff wrote that she is taking Trazadone, Clonazepam,
27 Bupropion, Tramadol, Amitriptyline, Cyclobenzaprine, Cyanocobalamin, Ibuprofen, and
2 dizziness, memory loss, nausea, and heartburn. (AR 284.)
3 b. Administrative hearings2
4 Plaintiff’s first administrative hearing was September 17, 2020. (AR 41–89.)
5 Plaintiff testified that she stopped working after getting in a “major motor vehicle
6 accident” in September 2017, then was subsequently involved in another motor vehicle
7 accident in June 2018 that “made [her] pain even worse.” (AR 52–53.) Plaintiff
8 explained that she tore her abdominal muscle and was diagnosed with various
9 conditions, including nerve entrapment and neuropathy. (AR 53.) She said her
10 abdominal pain has progressively worsened since then, describing it as “about a nine or
11 ten.” (AR 54–55.) Plaintiff testified to undergoing laparoscopy surgery in August 2020
12 and trying various prescription medications with minimal improvement. (Id.)
13 Additionally, Plaintiff said she was prescribed a walker in 2018 because she had fallen.
14 (AR 56.) In addition to the laparoscopy surgery, Plaintiff testified to undergoing “TAP
15 [transverse abdominis plane] block procedures” in her abdomen. (AR 57.)
16 Plaintiff had a second administrative hearing on March 14, 2024. (AR 1589–
17 1627.) Plaintiff testified that she last worked full time in September 2017 as a stock
18 concierge at the Westgate Hotel. (AR 1595–96.) When asked why she can no longer
19 work, Plaintiff said “[d]ue to my limitations of pain, of not being able to stand for long
20 periods of time, reach overheard, sit for long periods of time.” (AR 1596–97.) She
21 added, “I have a lot of PTSD, anxiety. I don’t sleep well because I have insomnia and
22 nightmares, just a combination.” (AR 1597.) Plaintiff testified she was last hospitalized
23 in October 20203 for a laparoscopy surgery. (AR 1598.) Although the doctors went in
24 suspecting Plaintiff might have endometriosis, “[they] found out that it was something
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26 2 The Court’s analysis relies primarily on the most recent administrative hearing from March 14, 2024.
(AR 1595–96.) However, the Court also briefly summarizes Plaintiff’s September 17, 2020,
27 administrative hearing, focusing on the initial onset of Plaintiff’s subjective symptom complaints.
2 were in the wrong place attached to my abdominal wall.” (Id.) Otherwise, Plaintiff was
3 hospitalized in June 2018 and September 2018 after the already discussed motor vehicle
4 accidents. (Id.)
5 Plaintiff testified she uses a walker and cane every day and has abdominal
6 blinders. (AR 1599.) She explained she received multiple, unsuccessful block injections
7 prior to her surgery. (AR 1600.) Further, she takes cyclobenzaprine, diazepam, and
8 desvenlafaxine for her “pain, nerve pain, pelvic floor damage.” (AR 1601.) Plaintiff
9 explained, “[b]ecause of all the medications, with not being able to eat with them
10 because my pain gets so high, I get really bad like nausea, and I throw up a lot.” (Id.)
11 Accordingly, Plaintiff takes ondansetron to control her nausea and vomiting. (Id.)
12 Plaintiff stated the pain medications have mixed results: “some days they [help], some
13 days they don’t . . . usually I’m in pain throughout the day and some days it’s higher
14 than others, just depends on if I need to take more or less. But nothing takes the pain
15 away. It’s more or less just helping to manage the pain.” (Id.)
16 Due to pain, Plaintiff testified she can stand or walk for no more than ten to
17 twelve minutes before needing to lay down for twenty to thirty minutes. (AR 1602.)
18 She said she has difficulty sitting because of her pelvic floor dysfunction and nerve
19 damage. (Id.) Plaintiff testified she has difficulty getting out of bed without pain and
20 struggles with grooming, showering, dressing, and preparing food. (AR 1603–04.)
21 Further, Plaintiff said she relies on her husband and friends to do chores around the
22 home due to her debilitating pain. (AR 1604.) She explained that she is unable to stand
23 long enough to do the dishes, cannot carry a laundry basket to the washer, and is unable
24 to lift anything heavier than two to four pounds. (Id.) Plaintiff testified she spends a
25 normal day journaling, meditating and caring for plants. (Id.) She uses voice-to-text to
26 record entries in her journal and participates in Eye Movement Desensitization and
27 Reprocessing (“EMDR”) therapy, where her therapist encourages her to track her daily
2 spikes.” (Id.) Plaintiff reported her pain is progressively worsening and now includes
3 shooting sensations of numbness in her hands. (AR 1607.)
4 Regarding mental health treatment, Plaintiff testified she has been taking mental
5 health medication since 2017 and has been treated by a psychiatrist for over a year. (AR
6 1599.) She has participated in mental health counseling once or twice per month since
7 2017. (AR 1600.) In addition, Plaintiff testified her medication hinders her memory,
8 causing her to lose focus, feel groggy, and experience headaches. (AR 1605.) As a
9 result, she frequently needs to lay down to avoid a “vertigo” feeling. (AR 1606.)
10 Plaintiff said depending on her pain, she could be laying down for thirty minutes to two
11 hours. (Id.) Plaintiff also reported getting “anxiety panic attacks,” which are triggered
12 by sound and noises. (Id.) Lastly, Plaintiff explained how her pain and medications
13 prevent her from focusing on anything for more than ten to fifteen minutes. (AR 1607.)
14 4. Analysis
15 The Court now undertakes the two-step analysis to determine whether the ALJ
16 properly discounted Plaintiff’s testimony. See Johnson, 2022 WL 1553259, at *1;
17 Lingenfelter, 504 F.3d at 1035–36. The ALJ found that Plaintiff’s “medically
18 determinable impairments could reasonably be expected to cause the alleged
19 symptoms,” thereby satisfying the first prong. (AR 1573.) See Vasquez, 572 F.3d at 591
20 (finding the ALJ satisfied step one where the “ALJ acknowledged that [plaintiff’s] injuries
21 ‘could reasonably be expected to produce some of the pain and other symptoms
22 alleged’”) (emphasis in original) (internal citations omitted). Additionally, neither party
23 alleges there is any evidence of malingering. (See ECF Nos. 9 & 11.) Thus, the ALJ may
24 reject Plaintiff’s testimony “only by providing specific, clear, and convincing reasons.”
25 See Brown-Hunter v. Colvin, 806 F.3d 487, 489 (9th Cir. 2015).
26 In addition to giving “clear and convincing” reasons for rejecting Plaintiff’s
27 testimony, the ALJ “must specifically identify the testimony she or he finds not to be
2 to do so is a harmful legal error, as it precludes the court from conducting a meaningful
3 review of the ALJ’s reasoning. See Brown-Hunter, 806 F.3d at 492 (“If the ALJ fails to
4 specify his or her reasons for finding claimant testimony not credible, a reviewing court
5 will be unable to review those reasons meaningfully without improperly ‘substitut[ing]
6 our conclusions for the ALJ’s, or speculat[ing] as to the grounds for the ALJ’s
7 conclusions.’”) (quoting Treichler, 775 F.3d at 1103). Here, the Court finds that the ALJ
8 failed to meet the demanding “clear and convincing” standard for several reasons.
9 a. Specificity
10 As an initial matter, the ALJ failed to identify which of Plaintiff’s statements he
11 found not credible and thus did not provide the necessary information to allow for this
12 Court’s meaningful review. See Reddick, 157 F.3d at 722 (“General findings are
13 insufficient; rather, the ALJ must identify what testimony is not credible and what
14 evidence undermines the claimant’s complaints.”) (internal citations omitted). Instead,
15 the ALJ generally explained that Plaintiff’s “statements concerning the intensity,
16 persistence and limiting effects of these symptoms are not entirely consistent with the
17 medical evidence and other evidence.” (AR 1573.) This general, conclusory statement
18 does not rise to the level of “specific, clear, and convincing” reasons for discounting a
19 claimant’s subjective testimony. See, e.g., Treichler, 775 F.3d at 1103 (holding that a
20 boilerplate introductory sentence falls short of “meeting the ALJ’s responsibility” to
21 discuss the objective evidence); Vasquez, 572 F.3d at 592 (finding that the “vague
22 allegation that [Plaintiff’s claims] were ‘not consistent with the objective medical
23 evidence’” was inadequate to reject Plaintiff’s subjective testimony).
24 Following the boilerplate introduction, the ALJ devoted the next several pages to
25 summarizing the medical evidence, medical opinions, and prior administrative medical
26 findings. (AR 1573–78.) At no point did the ALJ identify which of Plaintiff’s statements
27 he found not credible or explain why. (Id.) The ALJ merely stated that he found, based
2 “speculate as to the grounds for the ALJ’s conclusions.” Brown-Hunter, 806 F.3d at 495.
3 Moreover, the Court is “constrained to review [only] the reasons the ALJ asserts.”
4 Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) (internal citations omitted).
5 Because the ALJ failed to identify the specific testimony he found not credible and the
6 specific evidence undermining Plaintiff’s testimony, the Court is unable to accurately
7 assess the adequacy of the ALJ’s findings. See Lambert, 980 F.3d at 1278 (holding that a
8 “relatively detailed overview of [plaintiff’s] medical history” was not the same as
9 providing clear and convincing reasons for discounting plaintiff’s testimony).
10 Nevertheless, the Court addresses each of the ALJ’s purported reasons for discounting
11 Plaintiff’s testimony.
12 b. Objective medical evidence
13 First, the ALJ discounts Plaintiff’s testimony because “the objective medical
14 evidence generally does not support the alleged loss of function.” (AR 1574.) An ALJ’s
15 identification of inconsistencies between a plaintiff’s testimony and the objective
16 medical evidence may be a clear and convincing reason for discounting testimony. See,
17 e.g., Ferguson v. O'Malley, 95 F.4th 1194, 1200 (9th Cir. 2024); Koch v. Berryhill, 720 F.
18 App’x 361, 364 (9th Cir. 2017). However, an ALJ cannot rely solely on objective medical
19 evidence to discredit an individual’s symptom testimony. See 20 C.F.R § 404.1529(c)(2);
20 SSR 16-3p, 2017 WL 5180304, at *5 (“[W]e will not disregard an individual’s statements
21 about the intensity, persistence, and limiting effects of symptoms solely because the
22 objective medical evidence does not substantiate the degree of impairment-related
23 symptoms alleged by the individual”).
24 Based on the Court’s thorough review of the record, it is evident that the ALJ
25 selectively highlighted certain normal findings while ignoring others, which is
26 impermissible. Holohan, 246 F.3d at 1207 (finding error where the ALJ “selectively
27 relied on some entries” while ignoring others showing different results). For example,
2 strength of extremities, gait, station, etc. (See AR 1573 (citing AR 436, 438, 506, 513,
3 519, 535, 671, 861, 916, 960, 1002, 1111, 1152–53, 1158, 1383, 1387, 1397, 1402, 1427,
4 1452, 1459).) Yet, the ALJ underplayed abnormal findings within those same medical
5 records, including abdominal distention [AR 861, 1874] and tenderness to palpation [AR
6 861, 869, 888, 891]. Although the ALJ briefly acknowledged Plaintiff exhibited some
7 “[a]bnormal findings on physical examination,” he did not explain how these findings
8 were weighed against the “normal findings.” (See AR 1573.)
9 Similarly, with respect to Plaintiff’s mental impairments, the ALJ cited mental
10 status examinations showing Plaintiff “was alert and fully oriented, cooperative,
11 pleasant and well groomed” and “exhibited a normal euthymic mood, normal affect,
12 normal memory, a normal fund of knowledge, normal attention, normal concentration.”
13 (AR 1574 (citing AR 424, 469, 481, 513, 1002, 1044, 1054, 1153, 1382, 1386–87, 1497,
14 2103–04).) In the same paragraph, the ALJ noted abnormal findings such as Plaintiff
15 exhibiting a “sad mood and tearful, blunted, or constricted affect” and her diagnoses of
16 depression, generalized anxiety disorder, PTSD, and insomnia. (AR 1574 (citing AR 424,
17 469, 863, 1044, 1054, 1057, 1087, 1394, 1834, 1847).) However, the ALJ once again
18 failed to explain why Plaintiff’s “normal” mental findings outweighed her “abnormal”
19 mental findings. (See AR 1574.)
20 Additionally, the ALJ mischaracterized certain treatment notes by failing to
21 consider them in the context of the entire record. For instance, the ALJ discounted
22 Plaintiff’s testimony that she was “bedridden with the need for the use of a walker,”
23 citing treatment notes indicating Plaintiff could “change positions without difficulty
24 during examinations” and Plaintiff “was advised to avoid bed rest.” (AR 1575 (citing AR
25 1162).) However, a closer look reveals the medical provider advised against “bed rest
26 lasting 4 days or longer” rather than complete avoidance of bed rest. (AR 1158, 1162.)
27 An ALJ may not cherry-pick evidence that supports a finding of non-disability while
2 ALJ relied on a “single medical note” rather than the full record); Ghanim v. Colvin, 763
3 F.3d 1154, 1164 (9th Cir. 2014) (finding error where the ALJ “cherry-picked” certain
4 characterizations of symptoms without considering context).
5 Although the Commissioner raises inconsistencies to support the ALJ’s non-
6 credibility determination, the reviewing court may only review “the reasons provided by
7 the ALJ in the disability determination and may not affirm the ALJ on a ground upon
8 which he did not rely.” Garrison, 759 F.3d at 1010 (citing Connett, 340 F.3d at 874).
9 Like the district court in Lambert, the Commissioner’s attempts to fill in the ALJ’s
10 reasoning by citing portions of the record is improper. 980 F.3d at 1278 (citing Brown-
11 Hunter, 806 F.3d at 494) (“Although the inconsistencies identified by the district court
12 could be reasonable inferences drawn from the ALJ’s summary of the evidence, the
13 credibility determination is exclusively the ALJ's to make,” and the reviewing court is
14 “constrained to review the reasons the ALJ asserts.”). In sum, the ALJ erroneously
15 highlighted normal findings while overlooking abnormal findings and mischaracterized
16 certain treatment notes without examining their full context. While the Commissioner
17 highlights certain inconsistencies between Plaintiff’s testimony and the objective
18 medical evidence, the Court must constrain its review to the reasons provided by the
19 ALJ. Thus, the ALJ’s cherry-picking of selective objective medical evidence is not a clear
20 and convincing reason for discounting Plaintiff’s testimony. See Diedrich v. Berryhill,
21 874 F.3d 634, 642 (9th Cir. 2017) (finding error where the ALJ cherry-picked the absence
22 of certain symptoms rather than engaging in a “broader development”).
23 c. Assistive devices
24 Next, the ALJ discredited Plaintiff’s subjective symptom testimony because “the
25 record does not support the medical need for an assistive device.” (AR 1575.) “To find
26 that a hand-held assistive device is medically required, there must be medical
27 documentation establishing the need for a hand-held assistive device to aid in walking
2 for Less Than A Full Range of Sedentary Work, SSR 96-9P, at *7 (S.S.A. July 2, 1996).
3 Here, there is evidence that Plaintiff was prescribed a walker and used assistive devices
4 regularly. The ALJ’s written decision explicitly notes that on July 19, 2019, Dr. Melissa
5 Deer ordered a walker and abdominal binders. (AR 1573 (citing AR 855).) Additionally,
6 Plaintiff was recorded using a walker in many treatment notes:
7 • July 2, 2020, and September 3, 2020— “Patient is unable to walk 1/2
mile [without] pain or use of a walker” [AR 2223, 2235];
8
• October 12, 2020— “[Pain] has caused her to fall a few times, so she
9 is now walking with a walker” [AR 1865];
• November 14, 2020— “pt found standing outside lobby with front
10
wheel walker, can’t sit for long periods of time” [AR 1847];
11 • December 1, 2020— “Here for new order for walker” [AR 2200];
12 • December 2, 2021, and May 4, 2021— “uses a walker to walk, used
to use a cane” [AR 2042, 2080].
13
14 On December 1, 2020, Plaintiff’s physician ordered durable medical equipment in the
15 form of a walker. (AR 2200–03.) At the first administrative hearing on September 17,
16 2020, Plaintiff testified she used a “prescribed walker.” (AR 56.) Likewise, at the
17 administrative hearing on March 14, 2025, Plaintiff testified she used a walker, cane,
18 and abdominal binders every day. (AR 1599.)
19 Without providing explanation, the ALJ dismissed Plaintiff’s testimony and the
20 many treatment notes referencing her use of a walker and other assistive devices. (AR
21 1574–75.) The ALJ highlighted a few instances where Plaintiff exhibited a normal gait or
22 walked without an assistive device and concludes that “[d]iagnostic imaging did not
23 support the use of a prescribed assistive device.” (AR 1575.) Once again, the Court
24 finds the ALJ improperly cherry-picked favorable evidence without engaging in a
25 broader development necessary to satisfy the “clear and convincing” standard.
26 Diedrich, 874 F.3d at 642; Holohan, 246 F.3d at 1207 (finding error where the ALJ
27 “selectively relied on some entries” while ignoring others). Thus, Plaintiff’s ability to
2 convincing reason to discount her testimony.
3 d. Conservative treatment
4 Finally, the ALJ discounted Plaintiff’s testimony after concluding Plaintiff’s
5 treatment was conservative. (AR 1574–75.) Specifically, the ALJ noted “the record does
6 not reflect escalating treatment modalities, such as assistive device usage, pain
7 management, such as assistive device usage, pain management, recurrent emergency
8 room visits, inpatient hospitalizations, intensive specialist care, or surgery to alleviate
9 the claimant’s alleged symptoms.” (Id.) “The type, dosage, effectiveness, and side
10 effects of any medication . . . taken to alleviate . . . pain or other symptoms,” is an
11 important indicator of the intensity and persistence of an individual’s symptoms. See 20
12 C.F.R. § 404.1529(c)(3). The Ninth Circuit has held that conservative treatment can be a
13 basis for discounting a plaintiff’s “testimony regarding severity of an impairment.” Parra
14 v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007) (holding the use of solely over-the-counter
15 medication to treat pain was “conservative treatment” the ALJ could reasonably rely on
16 to discount Plaintiff’s subjective testimony). However, “[a]ny evaluation of the
17 aggressiveness of a treatment regimen must take into account the condition being
18 treated.” Revels, 874 F.3d at 667. Additionally, conservative treatment is not a proper
19 basis for discrediting a plaintiff’s testimony where there is no indication more aggressive
20 treatment options are available. See Lapeirre-Gutt v. Astrue, 382 Fed. App’x 662, 664
21 (9th Cir. 2010) (“A claimant cannot be discredited for failing to pursue non-conservative
22 treatment options where none exist”).
23 The record reflects Plaintiff attempted a wide array of treatments for her physical
24 impairments, including: multiple rounds of abdominal nerve block injections [AR 862,
25 885, 896]; bilateral transverse abdominis place (“TAP”) block and trigger point injections
26 [AR 859, 869, 877, 903]; a diagnostic laparoscopy [AR 1854, 1870]; acupuncture [AR
27 2080, 2107, 2214]; chiropractic adjustments [AR 882, 2206]; pelvic physical therapy [AR
2 Notably, Plaintiff was forced to cease taking tramadol, an opioid, due to anaphylaxis.
3 (AR 1573, 1854.) Plaintiff’s mental health treatment consisted of “medical management
4 with a psychiatrist every two to three months and monthly counseling with a therapist.”
5 (AR 1574 (citing AR 632–57, 1040–1115, 2098–2219).) To treat her depression,
6 generalized anxiety disorder, PTSD, and insomnia, Plaintiff took numerous prescription
7 medications, including: trazodone, prazosin, amitriptyline, wellbutrin, and klonopin. (AR
8 1574 (citing AR 1054, 1102, 1357, 1364, 2104).)
9 Here, Plaintiff underwent surgery, injections, physical therapy, and various other
10 treatments, as she searched for relief from persistent pain and other symptoms. The
11 Ninth Circuit has held that injections coupled with pain medication cannot be
12 characterized as “conservative.” See, e.g., Garrison, 759 F.3d at 1015 n. 20 (“[W]e
13 doubt that epidural steroid shots to the neck and lower back qualify as ‘conservative’
14 medical treatment”); Gilliland v. Saul, 821 Fed. App’x 798, 799 (9th Cir. 2020) (finding
15 treatment consisting of pain medications and injections was not conservative).
16 Similarly, the Ninth Circuit has held that multiple prescription psychiatric medications is
17 not “limited and conservative” treatment. Drawn v. Berryhill, 728 F. App’x 637, 642 (9th
18 Cir. 2018) (quoting Parra, 481 F.3d at 750–51)). There is no indication that other non-
19 conservative treatments were available or appropriate for Plaintiff. See Lapeirre-Gutt,
20 382 Fed. App’x at 664; Salazar v. O’Malley, No. 24cv1432-WHQ (BLM), 2025 WL
21 1682891, at *5 (S.D. Cal. June 16, 2025), report and recommendation adopted sub nom.
22 Carlos S. v. Comm’r of Soc. Sec., No. 24cv1432-WQH (BLM), 2025 WL 1920150 (S.D. Cal.
23 July 10, 2025) (finding “conservative” treatment was not a clear and convincing reason
24 where the ALJ “did not identify any more aggressive treatments that Plaintiff should
25 have pursued”). Therefore, Plaintiff’s allegedly conservative treatment does not
26 constitute a specific, clear, and convincing reason to discredit her testimony.
27 / / /
2 The reviewing court may enter a “judgment affirming, modifying, or reversing”
3 the Commissioner’s decision. 42 U.S.C. § 405(g). The reviewing court may also remand
4 the case to the Social Security Administration for further proceedings. Id. The reviewing
5 court has discretion in determining whether to remand for further proceedings or award
6 benefits. See Salvador v. Sullivan, 917 F.2d 13, 15 (9th Cir. 1990); McAllister v. Sullivan,
7 888 F.2d 599, 603 (9th Cir. 1989). Remand for further proceedings is warranted where
8 additional administrative proceedings could remedy defects in the decision. See Kail v.
9 Heckler, 722 F.2d 1496, 1497 (9th Cir. 1984). Remand for the payment of benefits is
10 appropriate where no useful purpose would be served by further administrative
11 proceedings, where the record has been fully developed, or where remand would
12 unnecessarily delay the receipt of benefits to which the disabled plaintiff is entitled. See
13 Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004); Hoffman v. Heckler, 785 F.2d
14 1423, 1425 (9th Cir. 1986).
15 In this case, Plaintiff asks this Court to reverse the ALJ’s decision and “remand for
16 the correction of the legal errors.” (ECF No. 9 at 23.) As discussed above, the ALJ erred
17 in two distinct ways. First, the ALJ failed to specifically identify which of Plaintiff’s
18 statements he found not credible or explain why. Holohan, 246 F.3d at 1208. Second,
19 the ALJ failed to provide clear and convincing reasons, supported by substantial
20 evidence in the record, to support his non-credibility determination. Brown-Hunter, 806
21 F.3d at 494. The Court finds that remand for further administrative proceedings is
22 appropriate because additional proceedings could remedy the defects in the ALJ’s
23 decision. Specifically, the Court REMANDS so that the ALJ may reexamine Plaintiff's
24 subjective pain and symptom testimony and the applicable clear and convincing
25 standard, in a manner consistent with this Order. For the foregoing reasons, the Court
26 ORDERS that judgement be entered REVERSING the decision of the Commissioner and
27 REMANDING this matter for further administrative proceedings pursuant to sentence
1 IT IS SO ORDERED.
2 ||Dated: May 29, 2026
4 Honorable Michael S. Berg
United States Magistrate Judge
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