The opinion
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9 UNITED STATES DISTRICT COURT
10 SOUTHERN DISTRICT OF CALIFORNIA
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12 GARY MAYCUMBER, Case No.: 25-cv-00793-WQH-DEB
13 Plaintiff,
ORDER
14 v.
15 FRANK BISIGNANO,
Commissioner of Social Security,
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Social Security Administration,
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Defendant.
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HAYES, Judge:
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The matter before the Court is the Joint Motion for Judicial Review of Final Decision
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of the Commissioner of Social Security. (ECF No. 12.)1
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I. BACKGROUND
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Plaintiff Gary Maycumber (“Gary M.”) suffers from cervical degenerative disc
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disease, status-post fusion with cervical fusion syndrome, carpal tunnel conditions,
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osteoarthritis, and migraine headaches. (ECF No. 6-2 at 24; see also ECF No. 12 at 2.)
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1 Frank Bisignano is the Commissioner of Social Security and is automatically substituted as Defendant
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1 On August 16, 2021, Gary M. filed a claim under Title II of the Social Security Act
2 for Social Security Disability Insurance (“SSDI”) benefits and claimed a disability onset
3 date of October 13, 2014. (Compl., ECF No. 1 ¶ 8.)
4 On January 19, 2022, Gary M.’s application for disability benefits was initially
5 denied by the Social Security Administration. (ECF No. 6-2 at 18.) On December 22, 2022,
6 Gary M.’s application was denied upon reconsideration. Id.
7 On January 3, 2023, Gary M. requested a hearing before an Administrative Law
8 Judge (“ALJ”). Id.
9 On June 15, 2023, Administrative Law Judge Robert Iafe (the “ALJ”) held a
10 telephonic hearing on the matter. Id. at 34–65.
11 On April 3, 2024, the ALJ denied Gary M.’s claim for SSDI benefits in a written
12 opinion (“the Decision”). Id. at 18–29. The ALJ concluded that Gary M. “was not disabled
13 under sections 216(i) and 223(d) of the Social Security Act through December 31, 2021,
14 the last date insured.” Id. at 29.
15 Gary M. filed an appeal with the Social Security Administration Appeals Council.
16 On January 27, 2025, the Social Security Administration sent Gary M. a letter informing
17 him that his request for review had been denied and that the ALJ’s decision was the final
18 decision of the Commissioner of Social Security (the “Commissioner”). Id. at 2.
19 On April 2, 2026, Gary M. initiated this action by filing a Complaint seeking review
20 of the Commissioner’s decision under 42 U.S.C. § 405(g). (See Compl.)
21 II. SUMMARY OF THE ALJ’S DECISION
22 A. The Five-Step Evaluation Process
23 The Social Security regulations establish a five-step process for determining whether
24 a claimant is disabled under the Social Security Act. See 20 C.F.R. §§ 404.1520, 416.920;
25 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).
26 First, the ALJ determines whether a claimant is currently engaged in substantial
27 gainful activity. 20 C.F.R. § 404.1520(b). If the claimant is currently engaged in substantial
28
1 gainful activity, their claim is denied. Id. at (a)(4)(i). If not, the evaluation process
2 continues.
3 Second, the ALJ determines whether the claimant has a “severe” impairment within
4 the meaning of 20 C.F.R. § 404.1520(c). If the claimant does not have an impairment or
5 combination of impairments that is “severe,” their claim is denied. 20 C.F.R.
6 §§ 404.1520(a)(4)(iii). If the claimant does have a “severe” impairment, the evaluation
7 process continues.
8 Third, the ALJ determines whether the severity of the claimant’s impairment meets
9 or exceeds an impairment identified in 20 C.F.R. § 404, subpart P, Appendix 1. If the
10 claimant’s impairment satisfies that criteria and an additional durational requirement, the
11 claimant is determined to be disabled and benefits are awarded. 20 C.F.R.
12 § 404.1520(a)(4)(iii). If not, the evaluation process continues.
13 Fourth, the ALJ determines the claimant’s residual functional capacity (“RFC”). 20
14 C.F.R. § 404.1520(e). An RFC is “an assessment of an individual’s ability to do sustained
15 work-related physical and mental activities in a work setting on a regular and continuing
16 basis.” Policy Interpretation Ruling Titles II & XVI: Assessing Residual Functional
17 Capacity in Initial Claims, SSR 96-8p, 1996 WL 374184, at *1 (S.S.A. July 2, 1996). The
18 ALJ then determines whether the claimant’s RFC is adequate to perform relevant previous
19 work activities. 20 C.F.R. § 404.1520(f). If the claimant has sufficient RFC to perform
20 those activities, their claim is denied. 20 C.F.R. § 404.1520(a)(4)(iv). If not, the evaluation
21 process continues.
22 Fifth, the ALJ determines whether other work exists in “significant numbers in the
23 national economy” that the claimant can perform based on their RFC, capacity, age, and
24 work experience. 20 C.F.R. §§ 404.1560(c), 416.960(c). At this step, a limited burden of
25 production shifts to the Social Security Administration to establish that the claimant can
26 perform this other work. “The ALJ usually meets this burden either (1) by the testimony
27 of a vocational expert who assesses the employment potential of a hypothetical individual
28 with all the claimant’s physical and mental limitations supported by the record or (2) by
1 reference to the Medical-Vocational Guidelines at 20 C.F.R. part 404, subpart P, appendix
2 2.” Angela H. v. Bisignano, No. 24-CV-2223-WQH-MMP, 2026 WL 253521, at *2 (S.D.
3 Cal. Jan. 31, 2026).
4 B. Summary of the ALJ’s Decision
5 Here, the ALJ stated in his Decision that, “[a]fter careful consideration of all the
6 evidence . . . the claimant was not under a disability within the meaning of the Social
7 Security Act from October 13, 2014”—the alleged beginning of Gary M.’s disability—
8 “through the date last insured” of December 21, 2021 (the “Disability Period”). (ECF No.
9 6-2 at 18–19.)
10 At the first step of the analysis, the ALJ determined that Gary M. “did not engage in
11 substantial gainful activity” during the Disability Period. Id. at 20. The ALJ stated: “The
12 claimant’s earnings records indicate earnings of $15,418 in 2015 and $8,739 in 2016,
13 which are attributable to private disability payments, and not substantial gainful activity.”
14 Id. The ALJ proceeded to the next step of the evaluation process.
15 At the second step, the ALJ determined that Gary M. “had the following severe
16 impairments: degenerative disc disease of the cervical spine, status post fusion surgery,
17 with cervical fusion syndrome; carpal tunnel syndrome status-post release surgeries;
18 osteoarthritis of the bilateral knee; and migraine headache.” Id. (citing 20 C.F.R.
19 § 404.1520(c)). The ALJ determined that the “claimant’s obesity is a non-severe
20 impairment” because it did not impose any “additional limitations to the claimant’s residual
21 functional capacity.” Id. at 21. The ALJ determined that the “claimant’s medically
22 determinable mental impairment of depression” was also non-severe. Id. at 21–22. The
23 ALJ proceeded to the next step of the evaluation process.
24 At the third step, the ALJ determined that Gary M. did not have an impairment or
25 combination of impairments that “met or medically equaled the severity of one of the listed
26 impairments in 20 CFR Part 404, Subpart P, Appendix 1.” Id. at 22. (citing 20 C.F.R.
27 §§ 404.1520(d), 404.1525, and 404.1526). The ALJ stated that “no treating or examining
28 physician has reported findings, which either meet or are equivalent in severity to the
1 criteria of any listed impairment, nor are such findings indicated or suggested by the
2 medical evidence of record.” Id. The ALJ proceeded to the next step of the evaluation
3 process.
4 At the fourth step, the ALJ determined that Gary M. “had the residual functional
5 capacity to perform a range of light work,” including the ability to: lift and carry 20 pounds
6 occasionally and 10 pounds frequently,” and “stand and/or walk for 6 hours out of 8 hours
7 and sit for 6 hours out of 8 hours.” Id. at 22–23.
8 In reaching this RFC determination, the ALJ followed a two-step process:
9 (1) determining whether “there is an underlying medically determinable physical or mental
10 impairment . . . that could reasonably be expected to produce the claimant’s pain or other
11 symptoms” and (2) evaluating the “intensity, persistence, and limiting effects of the
12 claimant’s symptoms to determine the extent to which they limit the claimant’s work-
13 related activities.” Id. at 23.
14 The ALJ described Gary M.’s subjective reports of his symptoms, including
15 “chronic pain, sleepless nights, and inability to function due to pain.” Id. “In [Gary M.’s]
16 adult function report, he reported difficulty with lift, walk, sit, stand, and postural abilities”
17 and “reported he cannot spend more than 1–2 hours doing anything other than reading and
18 watching television.” Id.
19 The ALJ then wrote that Gary M.’s “medically determinable impairments could
20 reasonably be expected to cause the alleged symptoms” but that his “statements concerning
21 the intensity, persistence and limiting effects of these symptoms are not entirely consistent
22 with the medical evidence and other evidence in the record.” Id. at 23–24.
23 The ALJ described the medical interventions Gary M. received during the period
24 from May 25, 2018, through March 13, 2023, including: “injections for his bilateral knees,”
25 “anterior cervical diskectomy surgery,” and a “cervical epidural steroid injection.” Id. at
26 24–25. The ALJ wrote that “claimant’s statements about the intensity, persistence, and
27 limiting effects of his symptoms” are “inconsistent because the objective medical evidence
28 generally does not support the alleged loss of function.” Id. at 25.
1 The ALJ continued:
2 Although the claimant reports about his pain complaints, the record
indicates satisfactory results of pain control with his medication. He
3
testified that pain medication helps and it helps him sleep. He testified that
4 he volunteers with church where he will go with a group of people and
drop off a package to people and welcome them to church. Also, during
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the year before the date last insured, he was actually “working in his yard
6 recently and strained his back lifting rocks.” The [ALJ] has considered the
claimant’s reports of symptoms and finds the above reduced light
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exertional level accounts for the claimant’s conditions.
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As for medical opinion(s) and prior administrative medical finding(s), the
9 [ALJ] cannot defer or give any specific evidentiary weight, including
10 controlling weight, to any prior administrative medical finding(s) or
medical opinion(s), including those from medical sources. The [ALJ] has
11 fully considered the medical opinions and prior administrative medical
12 findings as follows.
13 Id. at 25 (citations omitted).
14 The ALJ discussed the following medical assessments and prior administrative
15 medical findings regarding Gary M.’s impairments: an assessment by the “DDS state
16 agency medical consultants”; an “orthopedic examination” conducted by Dr. Tran; and two
17 assessments by Richard Carpenter, the “claimant’s nurse practitioner.” Id. at 25–26. The
18 ALJ found the “reconsideration level” DDS consultants’ assessment to be the most reliable
19 medical opinion because the “DDS medical consultants had the opportunity to review the
20 medical evidence,” whereas the other medical professionals based their opinions on “one
21 visit” or did not “have an opportunity to view the entire record.” Id. at 25–26; see ECF No.
22 6-3 at 31–34.
23 The ALJ also considered a “third party adult function report from the claimant’s
24 spouse” reporting “chronic pain” in Gary M.’s “neck, arms, wrists, hands, back, shoulder,
25 and left knee” and stating that “he stays in bed 12–16 hours a day when he is in pain.” Id.
26 at 23. The ALJ wrote that, “[t]o the extent the [spouse’s] statement suggests a more
27 restrictive functional capacity than found herein, it is not supported by or consistent with
28 the record as a whole, including objective signs and findings.” Id.
1 The ALJ considered opinions regarding Gary M.’s mental state from “DDS state
2 agency mental consultants” and “Dr. Nicholson, [a] psychiatric consultative examiner.” Id.
3 at 26. The ALJ wrote that these opinions “assessed non-severe mental conditions, with all
4 mild [paragraph] B criteria,” reported that Gary M. “had some medication treatment for
5 depression,” and were “consistent with one another.” Id.
6 After reaching the RFC determination, the ALJ stated that Gary M. was “was capable
7 of performing [his] past relevant work as an Airline Pilot, as generally performed in the
8 national economy. This work did not require the performance of work-related activities
9 precluded by the claimant’s residual functional capacity.” Id. at 27 (citing 20 C.F.R.
10 § 404.1565). The ALJ relied on the testimony of a “vocational expert,” who testified that
11 a hypothetical individual with the claimant’s age, education, work experience, and RFC
12 could perform the claimant’s past, relevant work as an airline pilot. Id. at 27.2 The ALJ
13 determined that the vocational expert’s testimony was consistent with the information in
14 the “Dictionary of Occupational Titles.” Id.
15 The ALJ also determined that, “[i]n addition to past relevant work, there were other
16 jobs that existed in significant numbers in the national economy that the claimant also could
17 have performed, considering the claimant’s age, education, work experience, and residual
18 functional capacity.” Id. at 27–28 (citing 20 C.F.R. §§ 404.1569, 404.1569a). The ALJ
19 stated that the testimony of the vocational expert also supported this finding. Id.
20 Accordingly, the ALJ wrote that a “finding of ‘not disabled’ is [] appropriate” for
21 Gary M. during the Disability Period. Id. at 28.
22 / / /
23 / / /
24 / / /
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27 2 The ALJ also wrote that the “vocational expert testified that the hypothetical individual would be able
to perform the claimant’s past work, as School Secretary, as actually performed. . .” (ECF No. 6-2 at 27
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1 III. LEGAL STANDARD
2 Pursuant to 42 U.S.C. § 405(g), a federal district court has authority to review the
3 Commissioner’s decision to deny SSDI benefits. The Commissioner’s decision will be
4 disturbed only if “it is either not supported by substantial evidence or is based upon legal
5 error.” Woods v. Kijakazi, 32 F.4th 785, 788 (9th Cir. 2022) (quoting Luther v. Berryhill,
6 891 F.3d 872, 875 (9th Cir. 2018)).
7 The “substantial evidence” standard requires a district court to “look to the existing
8 administrative record and ask whether it contains sufficient evidence to support the
9 agency’s factual determinations.” Id. (citing Biestek v. Berryhill, 587 U.S. 97, 102 (2019))
10 (citation modified). Substantial evidence means “such relevant evidence as a reasonable
11 mind might accept as adequate to support a conclusion.” Id. (citing Biestek, 587 U.S. at
12 103) (citation modified). The standard requires “more than a mere scintilla, but less than a
13 preponderance” of evidence. Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) (citation
14 omitted).
15 “Overall, the standard of review is highly deferential.” Kitchen v. Kijakazi, 82 F.4th
16 732, 738 (9th Cir. 2023) (quoting Rounds v. Comm’r, 807 F.3d 996, 1002 (9th Cir. 2015),
17 as amended). Thus, “[w]here evidence is susceptible to more than one rational
18 interpretation, it is the ALJ’s conclusion that must be upheld.” Woods, 32 F.4th at 788
19 (quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)). The district court “must
20 consider the entire record as a whole, weighing both the evidence that supports and the
21 evidence that detracts from the Commissioner’s conclusion, and may not affirm simply by
22 isolating a specific quantum of supporting evidence.” Garrison v. Colvin, 759 F.3d 995,
23 1009 (9th Cir. 2014) (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007)).
24 The district court must “review only the reasons provided by the ALJ in the disability
25 determination and may not affirm the ALJ on a ground upon which he did not rely.” Id.
26 (citation omitted); see also Ferguson v. O’Malley, 95 F.4th 1194, 1203 (9th Cir. 2024)
27 (“Courts can consider only the reasons the ALJ asserts.”) (citation modified).
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1 A reviewing court may reverse the Commissioner’s decision based on a lack of
2 substantial evidence or legal error. Garcia v. Comm’r of Soc. Sec., 768 F.3d 925, 929 (9th
3 Cir. 2014). However, even if the court finds that the ALJ committed error, a court may not
4 reverse the decision if the error is harmless, which requires that it be “clear from the record
5 that the ALJ’s error was inconsequential to the ultimate nondisability determination.” Id.
6 at 932 (citation modified) (quoting Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir.
7 2008)).
8 IV. DISCUSSION
9 Gary M. raises five contentions in support of his request that this case be remanded
10 to the Social Security Administration for further proceedings: (1) the ALJ failed to analyze
11 his subjective symptom testimony with sufficient specificity; (2) the ALJ improperly used
12 activities of daily living to discredit his subjective symptom testimony; (3) the ALJ
13 “cherry-picked” evidence to discredit Plaintiff’s subjective symptom testimony; (4) the
14 ALJ failed to consider the severity of Gary M.’s migraine headaches and insomnia in
15 reaching an RFC determination; and (5) the ALJ improperly dismissed Gary M.’s
16 depression at as non-severe at the second step of the evaluation process. (ECF No. 12 at 9–
17 44.)
18 A. Subjective Symptom Testimony
19 Gary M. contends that the ALJ erred by failing to properly analyze his subjective
20 symptom testimony under the “specific, clear and convincing” standard required by the
21 Ninth Circuit. (ECF No. 12 at 9–10.) Gary M. contends that the ALJ’s Decision “gave an
22 exceptionally brief five sentence[,] omission-ridden summary of [his] subjective symptom
23 testimony that never once referred to [his] testimony [about] specific work-related
24 limitations.” Id. at 13. Gary M. contends that the ALJ improperly used boilerplate
25 language. Id. Gary M. contends that the ALJ failed to identify particular facts that
26 undermine the credibility of his subjective symptom testimony. Id. at 14. Gary M. also
27 contends that the ALJ improperly used “activities of daily living to controvert [his]
28 subjective symptom testimony” but failed to explain how delivering “small church
1 welcome packages” and “lift[ing] rocks in his back yard” contradict a “specific limitation
2 statement of the claimant.” Id. at 26.
3 Defendant responds that the ALJ “provided valid reasons for not fully accepting
4 Plaintiff’s testimony.” Id. at 17. Defendant contends that the ALJ “accurately identified
5 and summarized [Gary M.’s] subjective complaints,” including chronic pain, an inability
6 to sleep, difficulty with regular movements, and trouble “do[ing] anything for more than
7 one to two hours other than reading and watching television.” Id. Defendant contends that
8 the ALJ credited Gary M.’s subjective testimony and only “declined to fully accept” his
9 subjective account because it was inconsistent with “objective diagnostic evidence,”
10 clinical findings, record evidence, and “certain daily activities, such as volunteer work, and
11 performing yard work.” Id. at 18.
12 In assessing the credibility of a claimant’s subjective symptom testimony, an ALJ
13 must undertake a two-part analysis. Ferguson v. O’Malley, 95 F.4th 1194, 1199 (9th Cir.
14 2024). “First, the ALJ must determine whether the claimant has presented objective
15 medical evidence of an underlying impairment which could reasonably be expected to
16 produce the pain or other symptoms alleged.” Id. (quoting Garrison v. Colvin, 759 F.3d
17 994, 1014 (9th Cir. 2014)). The claimant need not demonstrate that their “impairment could
18 reasonably be expected to cause the severity of the symptom” alleged, but that “it could
19 reasonably have caused some degree” of the symptoms. Id. (quotations omitted) (emphasis
20 added).
21 Second, “[i]f the claimant satisfies the first step of this analysis, and there is no
22 evidence of malingering, the ALJ can reject the claimant’s testimony about the severity of
23 their symptoms only by offering specific, clear and convincing reasons for doing so.” Id.
24 (quoting Garrison, 759 F.3d at 1014–15.) The “clear and convincing” standard requires
25 “an ALJ to show his work.” Smartt v. Kijakazi, 53 F.4th 489, 499 (9th Cir. 2022). At the
26 second step of the analysis, the ALJ must “provide specific, clear, and convincing reasons
27 for discounting the claimant’s subjective symptom testimony” to support their
28 determination under the “substantial evidence” standard. Ferguson, 95 F.4th at 1199. The
1 ALJ must “specifically identify the testimony from a claimant she or he finds not to be
2 credible and . . . explain what evidence undermines the testimony.”Treichler v. Comm’r of
3 Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014) (quotation omitted). “The clear and
4 convincing standard is the most demanding required in Social Security cases.” Moore v.
5 Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002).
6 Here, the ALJ determined—at the first stage of the credibility analysis—that Gary
7 M.’s “medically determinable impairments could reasonably be expected to cause” Gary
8 M.’s self-reported symptoms. (ECF No. 6-2 at 23.) At the second stage, the ALJ determined
9 that Gary M.’s statements concerning the “the intensity, persistence and limiting effects of
10 these symptoms are not entirely consistent with the medical evidence and other evidence
11 in the record.” Id. at 24. As a preliminary matter, this statement alone is not sufficient. See
12 Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020) (explaining that this exact
13 “introductory remark” is not adequate to satisfy the substantial evidence standard). The
14 Court must consider the specific basis upon which the ALJ determined that Gary M.’s
15 subjective symptom testimony was “inconsistent [with] the objective medical evidence.”
16 (ECF No. 6-2 at 25.)
17 In the Decision, the ALJ identified three specific reasons to discredit Gary M.’s
18 subjective symptom testimony and to favor the “objective medical evidence [that]
19 generally does not support the alleged loss of function”: (1) “the record indicate[d]
20 satisfactory results of pain control with [] medication,” which “helps [Gary M.] sleep”;
21 (2) Gary M. testified that “he volunteers with church where he will go with a group of
22 people and drop off a package to people and welcome them to church”; and (3) “during the
23 year before the date last insured, [Gary M.] was actually working in his yard recently and
24 strained his back lifting rocks.” Id. (quotation omitted).
25 A claimant’s testimony about “not being in continual pain” or their “reports of pain
26 [that] had come under control” may be evidence adequate to discredit that claimant’s
27 subjective testimony about pain. Celaya v. Halter, 332 F.3d 1177, 1181 (9th Cir. 2003).
28 Here, the ALJ cited Exhibits 6F and 7F, without more specific citations to pages in the
1 Administrative Record, in support of its determination that the record reflects “satisfactory
2 results of pain control with [] medication.” (ECF No. 6-2 at 25.)
3 Exhibit 6F, the Progress Notes from Relieve Pain Center dated 4/3/2019 through
4 10/31/2022, describe that Gary M. reports “chronic pain” and “progressive neck pain,”
5 which is “improved with rest” and “worse with activity.” (ECF No. 6-7 at 122.) As of
6 October 31, 2022, Gary M. was prescribed “[T]ramadol and [G]abapentin by [Dr.]
7 Carpenter.” Id. One report dated June 13, 2019 from Exhibit 6F states: “The pain has failed
8 to respond adequately to more conservative treatment modalities including physical
9 therapy, time, rest, and medication.” (ECF No. 6-7 at 136.)
10 Exhibit 7F, the Hospital Records and Progress Notes from Sharp Community
11 Medical Group dated 7/19/2018 through 2/17/2023, contains 231 pages of patient records.
12 See ECF No. 6-8 at 2–206; ECF No. 6-9 at 1–26. This exhibit includes descriptions of pain
13 medication prescribed to Gary M., see e.g., ECF No. 6-8 at 7 (prescribing 300 mg of
14 Gabapentin to be taken twice per day); id. at 37 (reducing the use of Gabapentin to “once
15 per day”), and medical reports with varying levels of pain during visits. See, e.g., id. at 41
16 (minimal pain), 126 (“more neck pain”), 135 (“continu[ing] to have arm pain that is
17 maintained at 5/10 with medication”), 147 (“neck pain is consistent” and activities of daily
18 living “produce moderate to severe pain in both his arms, elbows, wrist and hands”); see
19 also ECF No. 6-9 at 29 (reporting that “Gabapentin helps with nerve pain”); id. at 174
20 (reporting that “[n]eck pain probably getting worse” but “Gabapentin taken once in the
21 evening, helps him to rest and sleep”); id. at 81 (reporting that Gabapentin “helps [Gary
22 M.] to rest and sleep”).
23 The ALJ’s non-specific citations to these voluminous records describing various
24 levels of pain experienced by Gary M. and responses to medication are inadequate to
25 provide specific, clear, and convincing reasons to discredit Gary M.’s subjective testimony
26 about pain. The ALJ fails to support the generalized conclusion that the “record indicates
27 satisfactory results of pain control” with citations to documents in the record that clearly
28 corroborate that finding. (ECF No. 6-2 at 25.) The ALJ’s Decision likewise does not
1 identify and discuss contradictory evidence in the record, including reports from the two
2 documents it does cite, in which Gary M. describes his pain symptoms. The ALJ’s Decision
3 therefore does not fulfill its “responsibility to provide a discussion of the evidence” in
4 reaching its credibility determination regarding medication and pain management.
5 Treichler, 775 F.3d at 1103 (quotation omitted).
6 An ALJ may also consider “whether the claimant engages in daily activities
7 inconsistent with the alleged symptoms” in assessing whether to discredit the claimant’s
8 subjective symptom testimony. Lingenfelter, 504 F.3d at 1040. Here, the ALJ specifically
9 identified two activities purportedly inconsistent with Gary M.’s reported pain: volunteer
10 church service and his yardwork. (AR at 25.)
11 During the telephonic hearing on June 15, 2023, the ALJ asked Gary M. whether he
12 had been involved in “any volunteer service” over the previous “couple years.” (ECF No.
13 6-2 at 44.) Gary M. responded that he “volunteer[s] with church through the Evangelism
14 program, and that’s been basically going on Wednesday evenings to people’s houses and
15 we have on average about three to four visits. And it’s really just dropping off a package
16 and welcoming them to the church.” Id. The ALJ asked whether Gary M. would “spend[]
17 a great amount of time at any one location” during these events. Id. Gary M. indicated that
18 he did not. Id. In its Decision, the ALJ repeatedly referenced this volunteer activity in the
19 context of Gary M.’s self-described limitations and reports about pain. (ECF No. 6-2 at 22,
20 23, 25). The ALJ did not, however, describe how this volunteer service contradicts Gary
21 M.’s testimony about his pain and his other physical limitations. See id.; but see ECF No.
22 12 at 20 (Defendant contending, in the Joint Motion, that “Plaintiff’s ability to volunteer
23 for his church dropping off welcome packages calls into question his claim that he
24 experienced debilitating pain and limitations that confined him to a bed for 12 to 16 hours
25
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27
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1 a day “most of the time”). The ALJ’s reference to Gary M.’s volunteer service does not
2 clearly explain why the record discredits his subjective symptom testimony.
3 The ALJ also refers repeatedly to Gary M. “working in his yard” and “lifting rocks.”
4 (ECF No. 6-2 at 25–26.) The ALJ cited the notes included in a medical report dated
5 December 16, 2020:
6 Gary says that the medication has been effective for maintaining pain
control affording the ability to perform [activities of daily living]. He was
7
working in his yard recently and strained his back lifting rocks. He was
8 advised to abstain.
9 Exhibit 7F, ECF No. 6-8 at 122; see ECF No. 12 at 19 (Defendant citing the same report
10 in its response to Gary M.’s contentions). As above, the ALJ did not explain its reasoning
11 in greater detail, including which subjective testimony is contradicted by Gary M.’s
12 yardwork and why the yardwork contradicts that testimony. (ECF No. 6-2 at 25–26.) The
13 ALJ did describe the yardwork in the context of assessments reached by Mr. Carpenter,
14 including that Gary M. is limited to “occasionally lift[ing] and carry[ing] 20 pounds.” Id.
15 The Court assumes that the ALJ construed the description of Gary M.’s yardwork as
16 contradicting his self-reported physical limitations, especially his statement during the
17 telephonic hearing that he “can’t even hold [his] iPhone.” (ECF No. 6-2 at 51.)
18 The ALJ failed to address the potential contradictions between Gary M.’s self-
19 reported pain and his daily life activities (volunteerism and yard work) with sufficient
20 specificity to provide clear and convincing evidence that the subjective testimony should
21 be discredited. In Smartt v. Kijakazi, the Ninth Circuit affirmed the Commissioner’s denial
22 of benefits based, in part, on “a direct contradiction” in the claimant’s testimony “regarding
23 her ability to drive.” 53 F.4th at 497. In that case, however, the claimant “testified that she
24 had not driven since her neck surgery in 2015,” but reported in a questionnaire that she
25
26
3 The Commissioner may not supplement the ALJ’s analysis at this stage of the proceedings by adding to
27 or clarifying its analysis. See Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) (citations omitted)
(“We are constrained to review the reasons the ALJ asserts. It was error for the district court to affirm the
28
1 “routinely drove a car” in 2016. Id. Here, the contradiction is less clear. The ALJ did not
2 explain why Gary M.’s volunteerism and yardwork specifically contradict his testimony
3 about his pain, his capacity to perform activities of daily living, or periods in which he is
4 bedridden for extended time. Even if Gary M. lifted rocks on at least one occasion in a
5 manner that contradicts his self-described limitations related to carry weight, the ALJ did
6 not provide greater explanation as to why this event contradicts his testimony about his
7 pain and other physical limitations. Without explanation of the contradiction, the ALJ has
8 not discharged its duty to identify specific, clear, and convincing reasons to discredit Gary
9 M.’s testimony. Connett, 340 F.3d at 874; Lambert, 980 F.3d at 1278 (“The district court’s
10 efforts to shore up the ALJ’s decision, while understandable, are unavailing.”).
11 Moreover, assuming that the ALJ’s Decision relied on the more specific reasoning
12 offered by Defendant in the pending Joint Motion, these two events do not clearly
13 contradict Gary M.’s subjective testimony. During the hearing, Gary M. testified that he
14 occasionally visited neighbors’ homes with a group from his church to “drop[] off a
15 package” and did not spend a “great amount of time” at any of his neighbor’s homes. (ECF
16 No. 6-2 at 44.) The testimony did not describe the frequency or duration of these visits.
17 The testimony likewise did not make clear whether Gary M. carried packages to his
18 neighbors and, if so, the weight of any such packages. The limited description of this
19 volunteer activity is not clearly inconsistent with any of Gary M.’s self-described
20 symptoms, including the most serious reports that he may be confined to bed for between
21 twelve and sixteen hours when experiencing pain. Id. at 23. The same is true of the
22 December 16, 2020 medical notes that reference Gary M. “working in his yard” and
23 “strain[ing] his back lifting rocks.” (ECF No. 6-8 at 122.) The record does not include
24 evidence regarding the nature, duration, or level of exertion required by the yardwork. The
25 few details indicate only that Gary M. spent some amount of time in his yard and, upon
26 lifting rocks, suffered a minor injury. No direct contradiction exists between this event and
27 Gary M.’s subjective testimony, and it remains unclear how this incident belies his reports
28
1 about pain and physical limitations. These two events fail to satisfy the standard for
2 discrediting Gary M.’s subjective symptom testimony.
3 Accordingly, the ALJ’s determination that Gary M.’s “statements about the
4 intensity, persistence, and limiting effects of his symptoms [] are inconsistent” with the
5 record does not satisfy the “substantial evidence” standard. ECF No. 6-2 at 25; Ferguson,
6 95 F.4th at 1199.
7 B. Migraine Headaches, Insomnia, and Depression
8 Gary M. contends that the ALJ failed to “properly account” for his migraine
9 headaches, insomnia, and depression. (ECF No. 12 at 33.) Gary M. contends that the ALJ
10 determined that migraines constituted a severe impairment at the second step of the analysis
11 but, in reaching an RFC determination, improperly concluded that environmental
12 limitations—like avoiding exposure to “extreme cold, to vibration, and to workplace
13 hazards”—were sufficient to account for the migraines. Id. at 34; ECF No. 6-2 at 22–23.
14 Gary M. contends, similarly, that the ALJ’s RFC determination fails to adequately account
15 for his insomnia symptoms. (ECF No. 12 at 35.) Gary M. contends that the ALJ’s failure
16 to adequately include these symptoms in its hypothetical question posed to the vocational
17 expert means that his opinion regarding his ability to perform past work “has no evidentiary
18 value.” Id. at 34–35.
19 Defendant contends, in response, that the ALJ considered these symptoms and
20 merely declined to include unwarranted limitations in the RFC analysis. Id. at 35–37.
21 Defendant contends that Gary M. “fails to provide evidence of those limitations that are
22 supported by the record and not solely dependent on his inconsistent subjective
23 complaints.” Id. at 35–36.
24 A district court may “affirm the ALJ’s determination of [an] RFC if the ALJ applied
25 the proper legal standard and [the] decision is supported by substantial evidence.” Bayliss
26 v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2006) (citations omitted) (affirming an ALJ’s
27 determination that “took into account those limitations for which there was record support
28 that did not depend on [the claimant’s] subjective complaints”). “The ALJ is required to
1 consider all of the limitations imposed by the claimant’s impairments, even those that are
2 not severe.” Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008).
3 Here, the ALJ determined that one of Gary M.’s “severe impairment[s]” was
4 “migraine headache[s]” and, in reaching its RFC determination, referred to Gary M.’s
5 “sleepless nights.” (ECF No. 6-2 at 20, 22, 25.) The ALJ also noted that, on December 21,
6 2021, Gary M. “denied having headaches” at the time. Id. at 25. The ALJ stated that Gary
7 M. “testified that pain medication helps and it helps him sleep.” Id.
8 The ALJ described in greater detail the assessment of “DDS state medical
9 consultants,” which the ALJ found “partially persuasive,” and the reports of Dr. Tran, Dr.
10 Nicholson, and Richard Carpenter, “the claimant’s nurse practitioner.” Id. at 25–26. The
11 ALJ concluded that the “reduced light exertional level” described in its RFC finding was
12 based on “the claimant’s reports of symptoms” and the “medical evidence of record.” Id.
13 An “ALJ is responsible for translating and incorporating clinical findings into a
14 succinct RFC.” Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015).
15 The ALJ’s RFC determination “must take into account the claimant’s testimony regarding
16 his capability” and the ALJ must “assess that testimony in conjunction with the medical
17 evidence.” Chaudhry v. Astrue, 688 F.3d 661, 670 (9th Cir. 2012). An ALJ need not
18 conduct a “function-by-function analysis for medical conditions or impairments that the
19 ALJ found neither credible nor supported by the record” in reaching an RFC determination.
20 Bayliss, 427 F.3d at 1217. However, when discrediting a claimant’s testimony regarding
21 their symptoms, an ALJ must continue to satisfy the substantial evidence standard
22 described above. Id. at 1214 n.1; Ferguson, 95 F.4th at 1199.
23 In its Decision, the ALJ reasoned that Gary M. had testified that “that pain
24 medication helps and it helps him sleep.” (ECF No. 6-2 at 25.). The ALJ’s discussion of
25 third-party medical assessments failed to identify with specificity the medical evidence and
26 testimony that purportedly discredits Gary M.’s description of his headaches and insomnia
27 symptoms. The ALJ stated: “The undersigned finds the initial level DDS medical
28 consultant partially persuasive, and the reconsideration level DDS medical consultant
1 persuasive, where these opinions are supported by and consistent with the record including
2 objective evidence of radiographic scans, physical examinations, and medical treatment
3 notes (5F, 6F, 7F/17-18, 10F–12F).” Id. at 25–26. The ALJ then referenced Gary M.’s
4 volunteerism and yard work. Id. As above, with respect to the ALJ’s determinations about
5 Gary M.’s subjective pain symptoms and physical limitations, the limited and conclusory
6 discussion in the ALJ’s Decision regarding headaches and insomnia symptoms does not
7 satisfy the standard required to discredit a claimant’s subjective symptom testimony.
8 In the Joint Motion, Defendant identifies medical records in which “Plaintiff denied
9 [experiencing] headaches” and contends that “Plaintiff reported that his use of anti-
10 inflammatories caused his migraines, but that they resolved when he stopped.” (ECF No.
11 12 at 36; see, e.g., ECF No. 6-9 at 15, 46, 186, 444.) Defendant also contends that the “ALJ
12 relied upon Plaintiff’s testimony that his pain medication helped him sleep,” that the
13 “record does not appear to show that Plaintiff reported having to nap daily,” and that the
14 “use of Wellbutrin” improved Gary M.’s insomnia symptoms. (ECF No. 12 at 37; see ECF
15 No. 6-10 at 106 (reporting that Gary M. informed a physician that “he simply cannot fall
16 asleep at night” and that, “[d]uring the day[,] he is tired and fatigued but does not nap
17 daily”). Even assuming that these more specific citations to Gary M.’s testimony and
18 medical records would satisfy the substantial evidence standard, the Court’s review of the
19 Joint Motion remains limited to the ALJ’s Decision and the materials discussed by the ALJ.
20 See Connett, 340 F.3d at 874 (“We are constrained to review the reasons the ALJ asserts.
21 It was error for the district court to affirm the ALJ’s credibility decision based on evidence
22 that the ALJ did not discuss.”).
23 Accordingly, the ALJ’s RFC determination is not supported by substantial evidence
24 because it fails to adequately consider Gary M.’s testimony regarding his migraine
25 headaches and insomnia.
26 C. Depression
27 Gary M. contends that the ALJ failed to consider a “wealth of medical evidence”
28 regarding his depression at the second stage of its analysis and erred in determining that
1 his depression was “non-severe.” (ECF No. 12 at 39–40.) Gary M. contends that he has
2 identified “significant probative medical evidence regarding depression,” including
3 “active medication over years and periods of talk therapy,” that the ALJ omitted from its
4 analysis. Id.
5 Defendant responds that the ALJ adequately reviewed the record, which does not
6 support a finding that Gary M.’s depression was “severe.” Id. at 40–42. Defendant also
7 contends that, although the ALJ “did not spell out every single time” a depression diagnosis
8 was “mentioned in the records,” his analysis adequately considered Gary M’s “history of
9 depression” and found that the depression diagnosis was “not significant or probative
10 evidence.” Id. at 30–31.
11 In the Decision, the ALJ wrote that Gary M.’s “medically determinable mental
12 impairment of depression did not cause more than minimal limitation in [his] ability to
13 perform basic mental work activities.” (ECF No. 6-2 at 21.) The ALJ stated that he
14 considered the “disability regulations for evaluating mental disorders,” including four
15 functional areas: understanding, remembering, or applying information; interacting with
16 others; concentrating, persisting, or maintaining pace; and adapting or managing oneself.
17 Id.; see 20 C.F.R. Part 404, Subpart P, Appendix 1 (describing the “Paragraph B criteria”
18 used to review a claimant’s mental impairment). The ALJ found that the “claimant had no
19 limitation” in any of these areas. Id. The ALJ continued:
20 The record indicates the claimant had some medication treatment for
depression, though the record did not indicate continued ongoing mental
21
health treatment (1F/50, 63, 7F/177). The claimant had no history of
22 psychiatric hospitalization (4F).
23 On 10/22/21, the claimant underwent a psychiatric consultative
24 examination with Gregory Nicholson, M.D., for disability determination
purposes (4F). The claimant reported a history of depression in the past.
25 He felt depressed at times but had not been feeling depressed most of the
26 time. He did not feel anxious recently. He denied any history of suicidality.
He denied any history of psychotic symptoms or manic episodes. He
27 currently saw a doctor for psychiatric medication. He operates his own
28 motor vehicle for transportation. He has no difficulty with dressing,
1 bathing or hygiene. Mental status examination showed a euthymic mood,
appropriate affect, and the claimant was not tearful. He was able to perform
2
memory recall task, serial 3s and spell ‘world’ both forward and backward.
3 Dr. Nicholson assessed unspecified depressive disorder, in remission. He
testified that he volunteers with church where he will go with a group of
4
people and drop off a package to people and welcome them to church.
5
The DDS state agency mental consultants, at both levels, assessed non-
6 severe mental conditions, with all mild B criteria (1A, 4A).
7
Dr. Nicholson, psychiatric consultative examiner, assessed non-severe
8 unspecified depressive disorder, with no mental functional limitations
(4F).
9
10 (ECF No. 6-2 at 21–22.) The ALJ concluded: “Because the claimant’s medically
11 determinable mental impairment caused no more than ‘mild’ limitation in any of the
12 functional areas and the evidence does not otherwise indicate that there is more than a
13 minimal limitation in the claimant’s ability to do basic work activities, it was nonsevere.”
14 Id. at 22 (citing 20 C.F.R. § 404.1520a(d)(1)).
15 An impairment “may be found ‘not severe only if the evidence establishes a slight
16 abnormality that has no more than a minimal effect on an individual’s ability to work.’”
17 Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005) (quoting Smolen v. Chater, 80 F.3d
18 1273, 1290 (9th Cir. 1996)). The second stage of the ALJ’s analysis, which considers
19 whether an impairment is severe, is “a de minimis screening device to dispose of
20 groundless claims.” Smolen, 80 F.3d at 1290 (citing Bowen v. Yuckert, 482 U.S. 137, 153–
21 54 (1987)). In reviewing an ALJ’s determination at the second stage of its analysis, the
22 reviewing court considers whether “the ALJ had substantial evidence to find that the
23 medical evidence clearly established that [the claimant] did not have a medically severe
24 impairment.” Webb, 433 F.3d at 687.
25 The ALJ’s decision in this case reflects a review of Gary M.’s history of treatment
26 for depression and consideration of the independent reports of multiple medical experts.
27 Based on specific information in the record and considering the regulatory guidance
28 regarding the severity of mental impairments, the ALJ determined that Plaintiff’s
1 depression did not qualify as severe. In the “absence of evidence of significant functional
2 limitations” attributable to depression, district courts have affirmed an ALJ’s conclusion
3 that the impairment is not severe. Samantha M. v. Comm’r of Soc. Sec. Admin., No.
4 23CV2182-W (LR), 2025 WL 1171590, at *2 (S.D. Cal. Feb. 18, 2025), report and
5 recommendation adopted sub nom. Samantha M. v. Dudek, No. 23-CV-2182 W (LR), 2025
6 WL 985159 (S.D. Cal. Apr. 2, 2025). Plaintiff’s contentions regarding his history of
7 medical treatment for depression over a period of years are not sufficient to establish that
8 his impairment is severe. Accordingly, the ALJ’s determination that Gary M.’s depression
9 was “nonsevere” is supported by substantial evidence and was not error. (ECF No. 6-2 at
10 21.)
11 D. Harmless Error
12 If an ALJ’s error was “inconsequential to the ultimate nondisability determination,”
13 then a district court may nonetheless affirm the ALJ’s decision. Ford v. Saul, 950 F.3d
14 1141, 1154 (9th Cir. 2020) (quotation omitted). The Ninth Circuit notes that its “precedents
15 have been cautious about when harmless error should be found.” Marsh v. Colvin, 792 F.3d
16 1170, 1173 (9th Cir. 2015). Courts should not treat an error as harmless when an ALJ fails
17 to provide adequate reasoning for a reviewing court to determine whether its conclusions
18 were “supported by substantial evidence.” Lambert, 980 F.3d at 1278.
19 Here, the ALJ’s Decision does not demonstrate through clear and convincing
20 evidence that Gary M.’s subjective testimony should be discredited. The Court cannot
21 affirm the ALJ’s decision after concluding that its determination is not supported by
22 substantial evidence. Id.; see Ferguson, 95 F.4th at 1204 (reversing and remanding with
23 instructions for the ALJ to reconsider the claimant’s “headache symptom testimony” after
24 concluding that its RFC assessment was not supported by substantial evidence).
25 V. CONCLUSION
26 IT IS HEREBY ORDERED that the Joint Motion for Judicial Review of Final
27 Decision of the Commissioner of Social Security (ECF No. 12) is granted. The
28
1 || Commissioner’s decision is reversed, and this matter is remanded for further administrative
2 || proceedings consistent with this Order.
3
4 Dated: June 3, 2026 BME: ie Z. Ma
5 Hon. William Q. Hayes
6 United States District Court
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