The opinion
1
2
3
4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
6
7 ROBERT C., Case No. 25-cv-05165-SI
8 Plaintiff,
ORDER GRANTING PLAINTIFF’S
9 v. MOTION FOR SUMMARY
JUDGMENT AND DENYING
10 COMMISSIONER OF SOCIAL DEFENDANT’S CROSS-MOTION FOR
SECURITY, SUMMARY JUDGMENT
11
Defendant. Re: Dkt. Nos. 11, 13
12
13
14 Plaintiff Robert C. moves for summary judgment to reverse the final administrative decision
15 of the Commissioner of Social Security, who found that plaintiff was not disabled under Title II of
16 the Social Security Act. Dkt. No. 11-1 (“Pl.’s Mot.”). Defendant cross-moves to affirm the decision.
17 Dkt. No. 13 (“Def.’s Mot.”). Having considered the briefs and the administrative record, and for
18 the reasons set forth below, the Court GRANTS plaintiff’s motion for summary judgment, DENIES
19 defendant’s cross-motion for summary judgment, and REMANDS this action for further
20 administrative proceedings pursuant to sentence four of 42 U.S.C. § 405(g).
21
22 BACKGROUND
23 On August 13, 2021, plaintiff filed an application for Social Security Disability Insurance
24 benefits (“SSDI”) under Title II of the Social Security Act. Dkt. No. 8-1, Admin. Record (“AR”)
25 17. Plaintiff alleged disability beginning July 1, 2016, later amended to February 27, 2019.1 Id. at
26
27
1 Plaintiff’s brief states that he alleges his disability began September 1, 2017, Pl.’s Mot. at
1 38, 59, 354. His date last insured was December 31, 2023. Id. at 17, 59. He was forty-nine years
2 old on his date last insured. Id. at 27, 354.
3 Plaintiff filed for disability benefits on the basis of chronic back pain, sciatica, migraines,
4 chronic obstructive pulmonary disease (“COPD”), and depression. Id. at 60. In 2006, plaintiff
5 underwent back surgery due to an injury sustained while lifting heavy machinery in a work-related
6 accident. Id. at 67-68. The surgery helped, but the back pain continued and worsened over the
7 years. Id. at 68. Plaintiff worked as a residential and commercial painter until 2016, when he
8 stopped working due to his medical conditions. Id. at 287-288.
9 Plaintiff’s benefits application was denied initially and upon reconsideration. Id. at 17.
10 Plaintiff then filed a written request for a hearing, which took place by telephone on March 27, 2024.
11 Id. Plaintiff was represented by counsel at the hearing. Id. Plaintiff testified, as did vocational
12 expert Thomas Linvill. Id. On May 15, 2024, Administrative Law Judge (“ALJ”) Tova Wolking
13 issued an unfavorable decision, finding plaintiff was not disabled within the meaning of the Social
14 Security Act at any time between February 27, 2019, to December 31, 2023. Id. at 28. The Appeals
15 Council denied plaintiff’s request for review, making the ALJ’s decision the final decision of the
16 Commissioner. Id. at 1. Plaintiff then filed this action for judicial review under 42 U.S.C. § 405(g).
17 Dkt. No. 1.
18
19 LEGAL STANDARDS
20 I. Standard of Review
21 The Social Security Act authorizes an Article III court to review final decisions of the
22 Commissioner. 42 U.S.C. § 405(g). This Court may enter a judgment affirming, modifying or
23 reversing the decision of the Commissioner, with or without remanding the case for a rehearing. Id.
24 Factual findings of the Commissioner are conclusive if supported by substantial evidence. Batson
25 v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2001). The Court may set aside the
26 Commissioner’s final decision when that decision is based on legal error or where the findings of
27 fact are not supported by substantial evidence in the record taken as a whole. Tackett v. Apfel, 180
1 than a preponderance.” Id. at 1098. “Substantial evidence means such relevant evidence as a
2 reasonable mind might accept as adequate to support a conclusion.” Molina v. Astrue, 674 F.3d
3 1104, 1110 (9th Cir. 2012) (internal quotation marks omitted). To determine whether substantial
4 evidence exists, the Court must consider the record as a whole, weighing both evidence that supports
5 and evidence that detracts from the Commissioner’s conclusion. Tackett, 180 F.3d at 1098. “Where
6 evidence is susceptible to more than one rational interpretation,” the ALJ’s decision should be
7 upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).
8
9 II. Finding of Disability
10 A claimant is “disabled” under the Social Security Act if: (1) the claimant “is unable to
11 engage in any substantial gainful activity by reason of any medically determinable physical or
12 mental impairment which can be expected to result in death or which has lasted or can be expected
13 to last for a continuous period of not less than twelve months[,]” and (2) the impairment is “of such
14 severity that he is not only unable to do his previous work but cannot, considering his age, education,
15 and work experience, engage in any other kind of substantial gainful work which exists in the
16 national economy[.]” 42 U.S.C. § 1382c(a)(3)(A)-(B). The SSA regulations provide a five-step
17 sequential evaluation process for determining whether a claimant is disabled. 20 C.F.R.
18 § 404.1520(a)(4). The claimant has the burden of proof for steps one through four and the
19 Commissioner has the burden of proof for step five. Tackett, 180 F.3d at 1098.
20 The five steps of the inquiry are:
21 Is claimant presently working in a substantially gainful activity? If so, then the
claimant is not disabled within the meaning of the Social Security Act. If not,
22 proceed to step two. See 20 C.F.R. §§ 404.1520(b), 416.920(b).
23 Is the claimant’s impairment severe? If so, proceed to step three. If not, then the
claimant is not disabled. See 20 C.F.R. §§ 404.1520(c), 416.920(c).
24
Does the impairment “meet or equal” one of a list of specific impairments described
25 in 20 C.F.R. Part 220, Appendix 1? If so, then the claimant is disabled. If not,
proceed to step four. See 20 C.F.R. §§ 404.1520(d), 416.920(d).
26
Is the claimant able to do any work that he or she has done in the past? If so, then
27 the claimant is not disabled. If not, proceed to step five. See 20 C.F.R.
Is the claimant able to do any other work? If so, then the claimant is not disabled. If
1 not, then the claimant is disabled. See 20 C.F.R. §§ 404.1520(f), 416.920(f).
2 Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001). The ALJ has an affirmative duty to
3 assist the claimant in developing the record at every step of the inquiry. Tackett, 180 F.3d at 1098
4 n.3.
5 In between the third and fourth steps, the ALJ must determine the claimant’s Residual
6 Functional Capacity (“RFC”). 20 C.F.R. §§ 404.1520(a)(4), (e), 416.945(a)(5)(i). To determine the
7 RFC, the ALJ considers the impact of the claimant’s symptoms on his or her ability to meet the
8 physical, mental, sensory, and other requirements of work. Id. §§ 404.1545(a)(4), 416.945(e). The
9 ALJ will evaluate all the claimant’s symptoms and the extent to which these symptoms are
10 consistent with evidence in the record. Id. The evidence can include the claimant’s own statements
11 about his or her symptoms, but such statements must be adequately supported by the record in order
12 to establish a disability. Id. In order to determine whether the claimant’s statements are adequately
13 supported, the ALJ must first determine whether the claimant has a medical impairment that could
14 reasonably be expected to produce his or her symptoms, and then must evaluate the intensity and
15 persistence of the claimant's symptoms. Id. When evaluating intensity and persistence, the ALJ
16 must consider all the available evidence, including the claimant’s medical history, objective medical
17 evidence, and statements about how the claimant’s symptoms affect him or her. Id. The ALJ cannot
18 reject statements about the intensity and persistence of symptoms solely because no objective
19 medical evidence substantiates the statements. Id. §§ 404.1529(c)(2), 416.929(c)(2). The ALJ must
20 also consider factors relevant to the claimant’s symptoms, such as the claimant’s daily activities, the
21 claimant’s medications and treatment, any other measures the claimant uses to alleviate symptoms,
22 precipitating and aggravating factors, and any other factors relevant to the claimant’s limited
23 capacity for work due to his or her symptoms. Id. § 416.929(c)(3)(i)-(vii). After determining the
24 RFC, the ALJ proceeds to steps four and five of the disability inquiry.
25
26
27 ALJ HEARING
1 from working. AR 33-58. He testified that his “pain has significantly gotten worse through the
2 years[,]” causing him to “not [be] able to do a full day of work [] without pain.” Id. at 39. He stated
3 that he had received epidural steroid injections “maybe four to five years” before and would have
4 received more injections but could not because insurance would not cover it. Id. at 40. Plaintiff
5 testified that “somedays I wake up and I’m just in such pain, I can’t even get out of bed.” Id. at 41.
6 He claimed that he experiences “very, very shooting pains” “just walking to and from . . . the
7 bathroom” and has experiences where “I’ll be walking and I’ll just get a shock of pain and I will
8 just drop.” Id. He testified that these incidents are “happening more frequently now . . . .” Id. In
9 response to plaintiff’s counsel’s job hypothetical that would require periodic sitting and standing,
10 plaintiff responded that his ability to perform those requirements would “depend[] on my pain level
11 . . . . I can just drop at any time due to the pain.” Id. at 42.
12 Plaintiff testified that he takes pain medication but he “never get[s] full relief from [his]
13 pain” and the medication “make[s him] very drowsy and not so coherent.” Id. at 42-43. Plaintiff
14 reported that he takes Flexeril and Naproxen every day and uses two inhalers for his COPD. Id. at
15 49. Because of the drowsiness, plaintiff testified that he needs to “sleep for at least a couple of hours
16 maybe at minimum” “on a daily basis.” Id. at 43-44.
17 As to whether he could complete daily activities independently, plaintiff responded that it
18 depends on his pain level that day. Id. at 48. If he wakes up in pain, then “[he] might need some
19 help from [his] girlfriend to the shower.” Id. On a decent day he tries to do household chores such
20 as washing dishes or vacuuming, but sometimes the pain level prevents him from getting out of bed.
21 Id. at 44-45. “I get to the point where I may feel like I’m overexerting myself so what I’ll typically
22 [do] is I’ll come back to the bedroom, lay down in bed because that gives me a lot of relief to lay
23 down because it takes the weight off of my [] back.” Id. at 44. Vacuuming also triggers his COPD,
24 causing shortness of breath and requiring him to use his inhaler or lie down. Id. at 45. Plaintiff
25 testified that he only drives “if [he] absolutely [has] to” and to places that are close by. Id. He stated
26 that he lives with his girlfriend of 12 years. Id. at 47-48.
27 Plaintiff indicated that not being able to work has “put [him] in a depression state[.]” Id. at
1 hearing was seeing a behavioral health counselor. Id. at 46-47.
2 When the ALJ asked about his past hobbies, plaintiff testified he “can’t do any hobbies” and
3 “it’s just very difficult to focus on little things like that . . . with my pain[.]” Id. at 49. Plaintiff
4 testified that he stopped talking on the phone and playing video games in 2022 due to his symptoms.
5 Id. at 50. Plaintiff said he quit smoking one and a half to two years before the hearing and that his
6 COPD symptoms have not improved since. Id. at 50-51.
7
8 ALJ DECISION
9 On May 15, 2024, the ALJ issued a decision finding plaintiff not disabled under the Social
10 Security Act. AR 28. The ALJ applied the five-step analysis in accordance with 20 C.F.R.
11 § 416.920. At step one, the ALJ found plaintiff had not engaged in substantial gainful activity
12 during the period from his alleged onset date of February 27, 2019, through his date last insured of
13 December 31, 2023. Id. at 19. At step two, the ALJ found plaintiff suffered severe impairment
14 from lumbar degenerative disc disease. Id. at 20. However, the ALJ declined to find plaintiff’s
15 alleged fatty liver, emphysema, migraines, or depression impairments were severe. Id. at 20-21. At
16 step three, the ALJ found plaintiff’s physical impairment did not meet or medically equal the criteria
17 of one of the Listing of Impairments, specifically Sections 1.15 and 1.16. Id. at 22.
18 The ALJ then determined plaintiff’s RFC and found plaintiff able “to perform light work as
19 defined in 20 CFR 404.1567(b) except he can stand and/or walk up to four hours in an eight-hour
20 workday and sit up to four hours in an eight-hour workday. He can occasionally climb, balance,
21 stoop, kneel, crouch and crawl. He cannot be exposed to temperature extremes or respiratory
22 irritants.”2 Id. at 22-23.
23 At step four, the ALJ found plaintiff unable to perform past work through the date last
24
2 “Light work involves lifting no more than 20 pounds at a time with frequent lifting or
25
carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a
job is in this category when it requires a good deal of walking or standing, or when it involves sitting
26
most of the time with some pushing and pulling of arm or leg controls. To be considered capable of
performing a full or wide range of light work, you must have the ability to do substantially all of
27
these activities. If someone can do light work, we determine that he or she can also do sedentary
1 insured. Id. at 27. At step five, after considering plaintiff’s age, education, work experience, and
2 RFC through the date last insured, and the testimony of the vocational expert, the ALJ found that
3 jobs exist in significant numbers in the national economy that plaintiff can perform, including small
4 products assembler, routing clerk, and marker/pricer. Id. at 28. Accordingly, the ALJ concluded
5 plaintiff was not disabled under the Social Security Act. Id.
6
7 DISCUSSION
8 Plaintiff moves for summary judgment, contending that the ALJ erred (1) in evaluating
9 plaintiff’s symptom testimony, and (2) at the step-five finding. Pl.’s Mot. at 6-15. The
10 Commissioner cross-moves for summary judgment, asserting that the ALJ reasonably discounted
11 plaintiff’s testimony because it conflicted with medical records and with plaintiff’s daily activities
12 and that the vocational expert’s testimony amounted to substantial evidence supporting the ALJ’s
13 step-five decision. See Def.’s Mot.
14
15 I. Plaintiff’s Symptom Testimony
16 The Court agrees with plaintiff that the ALJ erred by improperly rejecting plaintiff’s
17 statements regarding the severity of his symptoms, the side effects of his medication, and the impact
18 of his symptoms on his activities of daily living.
19
20 A. Legal Standard
21 The Ninth Circuit follows a two-step test for deciding what weight to give to a plaintiff’s
22 symptom testimony. At step one, the ALJ must ascertain whether the plaintiff has presented
23 “objective medical evidence of an underlying impairment which could reasonably be expected to
24 produce the pain or other symptoms alleged.” Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir.
25 2017) (quoting Garrison v. Colvin, 759 F.3d 995, 1014-15 (9th Cir. 2014)). If the plaintiff satisfies
26 step one, and there is no evidence of malingering, then at step two, the ALJ can reject the plaintiff’s
27 testimony about the severity of his symptoms only by providing specific, clear, and convincing
1 symptoms is not credible, “[t]he ALJ must state specifically which symptom testimony is not
2 credible and what facts in the record lead to that conclusion.” Smolen v. Chater, 80 F.3d 1273, 1284
3 (9th Cir. 1996). This clear and convincing standard is the most demanding standard required in
4 Social Security cases. Trevizo, 871 F.3d at 678.
5
6 B. ALJ’s Findings
7 At step one of the symptom testimony inquiry, the ALJ found that plaintiff’s medically
8 “determinable impairments could reasonably be expected to cause the alleged symptoms.” AR 23.
9 The ALJ cited no evidence of malingering. At step two, the ALJ concluded that plaintiff’s
10 statements concerning the intensity, persistence, and limiting effects of his symptoms were “not
11 entirely consistent” with the evidence in the record. Id.
12 The ALJ stated various reasons for discrediting plaintiff’s testimony about the severity of
13 his symptoms and limitations. These include: (1) the reports in the record indicate that plaintiff
14 “was neurologically intact” and had a normal gait; (2) “no doctor has indicated that he is a candidate
15 for surgery”; (3) “he has been noted to be in no acute or apparent distress”; (4) “[h]e has been noted
16 to be noncompliant with medication”; and (5) “his daily activities do not support claims of excess
17 limitation.” Id. at 25.
18
19 C. Analysis
20 As a threshold matter, the Court finds that the ALJ’s rejection of plaintiff’s symptom
21 testimony was not sufficiently specific under the applicable legal standard. “A finding that a
22 claimant’s testimony is not credible ‘must be sufficiently specific to allow a reviewing court to
23 conclude the adjudicator rejected the claimant’s testimony on permissible grounds and did not
24 arbitrarily discredit a claimant’s testimony regarding pain.’” Brown-Hunter v. Colvin, 806 F.3d
25 487, 493 (9th Cir. 2015) (citation omitted); see also Smolen, 80 F.3d at 1284. In Brown-Hunter, for
26 instance, the Ninth Circuit found that an ALJ erred by making a conclusory statement for rejecting
27 the claimant’s testimony while “fail[ing] to identify specifically which of Brown-Hunter’s
1 statements she found not credible and why.”3 806 F.3d at 493. Likewise here, over the course of
2 several pages, the ALJ summarized plaintiff’s hearing testimony, plaintiff’s function reports, and
3 some of the medical records (while omitting others, as discussed further below). See AR 23-26. It
4 is unclear from the ALJ’s decision precisely which parts of plaintiff’s testimony the ALJ rejected
5 and specifically what evidence in the record the ALJ found conflicted with that testimony. It is
6 against this backdrop that the Court analyzes the reasons the ALJ provided for finding plaintiff’s
7 testimony unpersuasive overall.
8 First, in rejecting plaintiff’s testimony, the ALJ relied on several neurological medical
9 reports, mostly from 2019, in which the results indicate that plaintiff frequently exhibited 5/5
10 strength, normal muscle bulk and tone, negative straight leg raising and normal gait. Id. at 24-25.
11 Evaluating the medical opinions, the ALJ concluded that the medical opinions supported the RFC
12 determination that plaintiff could perform light work with additional limitations. Id. at 26-27.
13 However, the ALJ failed to make a connection between the examination results and any purported
14 inconsistency with plaintiff’s reported pain. Additionally, the ALJ discounted—without reason—
15 evidence from the record that would support plaintiff’s testimony that his back condition is
16 worsening. For instance, the ALJ noted that plaintiff had an “antalgic” gait in November 2022 but
17 then cited back to earlier treatment notes (from 2019 and early 2020) to show that plaintiff had a
18 “normal” gait on other occasions.4 See id. at 25. The ALJ also failed to note that at the February
19 2022 consultative examination with Dr. Rose Lewis, M.D., plaintiff reported that “he can only walk
20 one or two blocks before he has to stop.” Id. at 657. This is consistent with what he reported in his
21 function report completed that same month. See id. at 301. Dr. Lewis’s examination further noted
22 that plaintiff “cannot do tandem or toe-heel walking complaining of low back pain and he could not
23 balance himself.” Id. at 658. Substantial evidence therefore does not support the ALJ’s finding that
24
25
3 Although “SSR 16-3p eliminated the use of the term ‘credibility,’ [Ninth Circuit] case law
using that term is still instructive in the Court’s analysis.” Christine G. v. Saul, 402 F. Supp. 3d
26
913, 920 n.7 (C.D. Cal. 2019) (citing Trevizo, 871 F.3d at 678 n.5).
27
4 The ALJ also misstated one of the treatment notes, from January 2019, which did not state
1 plaintiff had a normal gait. Rather, the evidence indicates plaintiff’s gait was worsening and was
2 no longer “normal” by early 2022.
3 Second, the ALJ’s decision repeatedly pointed to the lack of a medical recommendation for
4 surgery. See id. at 23, 25. The Court finds this is not a clear and convincing reason to reject
5 plaintiff’s symptom testimony on the present record. A June 2019 treatment note indicates that
6 plaintiff had back surgery in 2006, that the “surgery helped, but [he] still had persistent pain that
7 gradually worsened over the past 6 years.” Id. at 365. At the March 2024 hearing, plaintiff indicated
8 that it was unclear whether he would need surgery again but that he had an upcoming MRI and that
9 surgery might still be a possibility. Id. at 46. The ALJ decided not to keep the record open to receive
10 that new information, given that plaintiff’s date last insured ended December 31, 2023. Id. at 37.
11 In other words, plaintiff had already undergone one surgery, and the possibility of future surgery
12 had not been ruled out.
13 Third, the ALJ pointed to several medical reports in the record where plaintiff “has been
14 noted to be in no acute or apparent distress.” Id. at 25. Plaintiff contends that his lumbar
15 degenerative disc disease is chronic and that a lack of acute or apparent distress during a given
16 doctor’s visit is not a basis for rejecting his symptom testimony. Pl.’s Mot. at 7. The ALJ’s finding
17 relies on several pain management clinic treatment notes in the record in which providers report
18 plaintiff’s “[c]onstitution” to be “alert,” “cooperative,” pleasant,” “well-nourished,” “groomed,”
19 “does not demonstrate notable pain,” and in “no acute distress.” See AR 24-25, 366, 377, 469, 711.
20 But the reports also note, and the ALJ ignored, musculoskeletal examinations showing low back
21 pain and plaintiff’s subjective reports of numbness and sharp pain that radiates down his leg. See,
22 e.g., id. at 376, 397, 474, 605, 707.
23 The presence of acute or apparent distress in medical reports is not particularly informative
24 here. At most the medical reports indicate that plaintiff’s pain was not visibly apparent to the
25 examining medical professional. Plaintiff reported drastic fluctuations in his pain, testifying that
26 some days his back pain is so severe that he “can’t even get out of bed” and that he has “had [his]
27 back go[] out just from brushing [his] teeth or a wrong movement.” Id. at 41-42, 44. Plaintiff
1 The ALJ relied heavily on select medical notes indicating “no acute distress” but did not explain
2 why this evidence was inconsistent with plaintiff’s reported chronic back pain or with plaintiff’s
3 testimony that his pain fluctuates from day to day. The Court finds that these reports of no acute or
4 apparent distress are not clear and convincing reasons to discount plaintiff’s symptom testimony.
5 Fourth, the ALJ cited plaintiff’s purported noncompliance with his gabapentin prescription.
6 The Court finds this, too, was not clear and convincing based on the present record. The record
7 indicates plaintiff was prescribed gabapentin several times between 2017 and 2022. Id. at 499, 519,
8 544, 644, 686. In rejecting plaintiff’s symptom testimony, the ALJ cited a 2019 Stanford Pain
9 Management Clinic medical note in which the physician explained that plaintiff had reported
10 “feeling >50% maybe almost 80% better” after taking the drug gabapentin. Id. at 472. But at the
11 visit plaintiff admitted he “became ‘sloppy’ about taking his gabapentin and he is no longer taking
12 gabapentin[,]” causing his pain to increase. Id. The report further noted that plaintiff “did not feel
13 good” taking the gabapentin but that he was willing to try it again. Id. at 472-473. He received a
14 new prescription for the gabapentin at that visit, and the ALJ cited no other medication
15 noncompliance in the record. See id. at 24, 472. The ALJ did not ask plaintiff any questions at the
16 hearing about the circumstances surrounding his period of noncompliance with gabapentin.
17 Before denying benefits because of a failure to follow treatment, the ALJ must conduct an
18 inquiry into the circumstances of the non-compliance and whether the treatment prescribed can
19 restore the plaintiff’s ability to work. See Byrnes v. Shalala, 60 F.3d 639, 641 (9th Cir. 1995). The
20 ALJ must “consider[ ] possible reasons [plaintiff] may not comply with treatment or seek treatment
21 consistent with the degree of his or her complaints. We may need to contact the individual regarding
22 the lack of treatment or, at an administrative proceeding, ask why he or she has not complied with
23 or sought treatment in a manner consistent with his or her complaints.” SSR 16-3p, available at
24 2017 WL 5180304, at *9 (S.S.A. Oct. 25, 2017).5 Moreover, the ALJ has a “duty to fully and fairly
25
26
5 Social Security Rulings “do not carry the ‘force of law,’ but they are binding on ALJs
nonetheless.” Bray v. Comm’r Soc. Sec. Admin., 554 F.3d 1219, 1224 (9th Cir. 2009). They
27
“‘reflect the official interpretation of the [SSA] and are entitled to some deference as long as they
1 develop the record and to assure that the claimant’s interests are considered.” Tonapetyan v. Halter,
2 242 F.3d 1144, 1150 (9th Cir. 2001) (citations omitted). The Court finds that in failing to conduct
3 this inquiry, the ALJ did not fully develop the record concerning the length of and reasons for
4 plaintiff stopping the gabapentin. In the absence of such information, plaintiff’s noncompliance
5 with the gabapentin is not a clear and convincing reason to reject the symptom testimony. Further,
6 the record shows that plaintiff takes alternative medications that provided him some relief, including
7 Flexeril and Naproxen. AR 365, 376, 713, 731. Despite plaintiff’s testimony that these daily
8 medications cause him to feel drowsy and incoherent, the record does not indicate that plaintiff was
9 noncompliant with these other medications. Id. at 43.
10 Lastly, the ALJ rejected plaintiff’s testimony as purportedly inconsistent with evidence that
11 plaintiff performs many daily activities independently. Id. at 25. Plaintiff argues that the ALJ
12 selectively cited plaintiff’s ability to perform daily activities but rejected his testimony about
13 limitations on how and when he performs those activities. Pl.’s Mot. at 8-9. Plaintiff contends that
14 the ALJ’s omissions led her to incorrectly conclude that plaintiff could perform “’light work’ eight
15 hours a day/five days a week or the equivalent.” Id. at 9. The Court agrees with plaintiff and further
16 notes that the ALJ misstated portions of plaintiff’s reports about his daily functioning.
17 The ALJ’s summary of plaintiff’s daily activities is taken almost verbatim from a July 2022
18 psychological evaluation. See AR 25, 663-664. This account conflicts with plaintiff’s March 2024
19 hearing testimony and other evidence. For instance, the ALJ decision states that plaintiff “is
20 independent for basic activities of daily living” and is “able to shower and dress [him]self
21 independently.” Id. at 25. However, plaintiff testified that some days he requires help from his
22 girlfriend to shower and in his 2022 Function Report he stated that his ability to dress and bathe had
23 been impacted by his conditions and that he gets help from family members to prepare food. Id. at
24 48, 298. The ALJ also stated that plaintiff “is able to drive a vehicle and he was able to drive himself
25 to the [2022] consultative examination,” whereas the plaintiff testified in March 2024 that he cannot
26 drive and drives “only if I absolutely have to[.]” Id. at 25, 42, 45; see also id. at 300 (February 2022
27 Function Report, stating plaintiff sometimes required help if he needed to drive somewhere). The
1 Id. at 25 (citing Ex. B-6E). However, plaintiff left that question blank. See id. at 296. When asked
2 to clarify at the hearing, plaintiff said, “I live with my girlfriend” and “I’ve been with her for 12
3 years.” Id. at 47-48. As a further example, elsewhere in the RFC portion of the decision, the ALJ
4 misstated that plaintiff’s daily activities include “playing video games[.]” See id. at 23. At the
5 hearing, when the ALJ asked whether plaintiff can continue to “play video games on TV[,]” he
6 responded: “That, that has subsided because of the fact that, you know, it’s sitting and standing,
7 yeah. But I haven’t done that in a very long time.” Id. at 50. He said it had been since about 2022
8 that he could play video games on the TV. Id. Thus, the ALJ exaggerated plaintiff’s independence
9 and ability to engage in daily activities in a way that is largely inconsistent with plaintiff’s testimony
10 and Function Reports.
11 The Court notes that overall plaintiff testified consistently and in detail at the hearing
12 regarding his difficulty walking and his need to lie down and rest during the day. He testified that
13 his medications make him so drowsy that he needs to go to sleep and lie down “for at least a couple
14 of hours maybe at minimum” “pretty much” on a daily basis. Id. at 43-44. In assigning an RFC
15 that called for up to four hours of standing/walking and up to four hours of sitting in an eight-hour
16 workday, the ALJ necessarily rejected plaintiff’s testimony regarding how his symptoms impact his
17 daily life, including his need for rest breaks and the side effects of his medications.
18 For all the above reasons, the Court finds the ALJ’s rejection of plaintiff’s symptom
19 testimony did not comport with the “demanding” standard required in the Ninth Circuit.
20
21 II. Step Five
22 Plaintiff argues that the ALJ erred at step five of the analysis because the hypothetical
23 presented to the Vocational Expert (“VE”) was not supported by substantial evidence. Pl.’s Mot. at
24 11. The Court need not address this argument in detail because the errors the ALJ made in
25 discounting plaintiff’s symptom testimony warrant reversal regardless.
26 However, because the ALJ improperly rejected plaintiff’s symptom testimony, the
27 hypothetical questions posed to the VE were likely also unreliable. “In order for the testimony of a
1 limitations, both physical and mental[,]’ supported by the record.” Thomas v. Barnhart, 278 F.3d
2 947, 956 (9th Cir. 2002) (quoting Flores v. Shalala, 49 F.3d 562, 570-71 (9th Cir. 1995)). “If the
3 record does not support the assumptions in the hypothetical, the vocational expert’s opinion has no
4 evidentiary value.” Lewis v. Apfel, 236 F.3d 503, 517 (9th Cir. 2001). Hypothetical questions posed
5 to a vocational expert must include a claimant’s subjective impairments unless the ALJ has clear
6 and convincing reasons for discrediting the claimant’s testimony. See Thomas, 278 F.3d at 959.
7 Thus, to the extent that the ALJ improperly rejected plaintiff’s symptom testimony regarding the
8 extent of his pain, the side effects of his medication, and his need to lie down to rest during the day,
9 the Court agrees with plaintiff that those errors would have also impacted the step five analysis.
10
11 III. Remedy
12 Plaintiff asks the Court to remand this case for an immediate award of benefits. Under the
13 credit-as-true doctrine, the Court retains discretion whether to make a direct award of benefits or
14 remand for further proceedings in cases such as this. Leon v. Berryhill, 880 F.3d 1041, 1045 (9th
15 Cir. 2017) (citing Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1101 (9th Cir. 2014)).
16 As stated above, the Court finds the ALJ committed harmful error in improperly rejecting plaintiff’s
17 symptom testimony. That error impacted the ALJ’s RFC determination which then impacted the
18 hypotheticals presented to the VE. However, the Court declines to remand this case for immediate
19 payment of benefits, finding that “further proceedings in the administrative court would be useful.”
20 See id. at 1044.
21 On remand, the ALJ shall reevaluate plaintiff’s symptom testimony. If the ALJ rejects
22 plaintiff’s testimony, the ALJ may do so only by providing clear and convincing reasons supported
23 by substantial evidence in the record, stating “specifically which symptom testimony is not credible
24 and what facts in the record lead to that conclusion.” See Smolen, 80 F.3d at 1284. The ALJ may
25 hold a rehearing to further develop the record and to elicit additional VE testimony. Accordingly,
26 the Court remands this case for further development of the record as described above and for any
27 other development of the record that would be useful for a new decision.
1 CONCLUSION
2 For the foregoing reasons, plaintiffs motion for summary judgment is GRANTED.
3 Defendant’s motion for summary judgment is DENIED. The Court REMANDS this case pursuant
4 || to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this order.
5
‘ IT IS SO ORDERED.
5 Dated: June 12, 2026 Site WU tee
8 SUSAN ILLSTON
9 United States District Judge
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