Anna Marie Franco v. Commissioner of Social Security

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANNA MARIE FRANCO, Case No. 1:25-cv-00715-KES-HBK 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO REMAND TO THE COMMISSIONER OF 13 v. SOCIAL SECURITY 1 14 COMMISSIONER OF SOCIAL FOURTEEN-DAY OBJECTION PERIOD SECURITY, 15 (Docs. 18, 20) Defendant. 16 17 18 19 Anna Marie Franco (“Plaintiff”) seeks judicial review of a final decision of the 20 Commissioner of Social Security (“Commissioner” or “Defendant”) denying her application for 21 disability insurance benefits under the Social Security Act. (Doc. 1). The matter is currently 22 before the Court on the parties’ briefs, which were submitted without oral argument. (Docs. 18, 23 20-21). For the reasons below, the undersigned recommends granting Plaintiff’s motion for 24 summary judgment, denying Defendant’s cross-motion for summary judgment, and remanding 25 for further administrative proceedings. 26 ////

27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 (E.D. Cal. 2025). 28 1 I. JURISDICTION 2 Plaintiff protectively filed for disability insurance benefits on May 19, 2022, alleging an 3 onset date of February 19, 2019. (AR 178-84). Benefits were denied initially and upon 4 reconsideration (AR 59-80, 109-12; 81-108, 121-26). Plaintiff appeared before an Administrative 5 Law Judge (“ALJ”) on March 26, 2024, with counsel and testified at the hearing. (AR 36-58). 6 On June 14, 2024, the ALJ issued an unfavorable decision (AR 14-35), and on May 2, 2025, the 7 Appeals Council denied review (AR 1-6). The matter is now before this Court pursuant to 42 8 U.S.C. § 405(g). 9 II. BACKGROUND 10 The facts of the case are set forth in the administrative hearing transcripts, the ALJ’s 11 decision, and the parties’ briefs. Only the most pertinent facts are summarized here. 12 Plaintiff was 51 years old at the time of the hearing. (See AR 243). She graduated from 13 high school. (AR 39-40). She lives with her daughter and grandchildren in an apartment. (AR 14 40-41). Plaintiff has past work as patient registration clerk, cashier, administrative assistant, and 15 human resources assistant. (AR 41-43, 52). Plaintiff testified she is unable to work because of 16 her back injury, total replacement of her left knee, right knee injury, high blood pressure, 17 diabetes, shortness of breath, and sleep disturbances. (AR 43-44). She reported left knee pain 18 that “locks up,” and difficulty standing correctly, pain, swelling, and numbness in her right knee, 19 headaches, high blood pressure, and shortness of breath due to cardiac blockage. (AR 44-45). 20 She uses a cane provided after a work accident. (AR 46). Plaintiff experiences fatigue about half 21 of the time, has lower back swelling, and uses a CPAP machine to sleep. (AR 48-50). She 22 reported she can sit 15-20 minutes before needing to move around, can stand or walk for 10-15 23 minutes, and cannot lift more than five pounds. (AR 51). 24 III. STANDARD OF REVIEW 25 A district court’s review of a final decision of the Commissioner of Social Security is 26 governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is limited; the 27 Commissioner’s decision will be disturbed “only if it is not supported by substantial evidence or 28 is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). “Substantial 1 evidence” is “relevant evidence that a reasonable mind might accept as adequate to support a 2 conclusion.” Id. at 1159 (quotation and citation omitted). Stated differently, substantial evidence 3 is “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and citation 4 omitted). In determining whether the standard has been satisfied, a reviewing court must consider 5 the entire record as a whole rather than searching for supporting evidence in isolation. Id. 6 A court may not substitute its judgment for the Commissioner’s and must “uphold the 7 ALJ’s conclusion when the evidence is susceptible to more than one rational interpretation.” 8 Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). Harmless error does not warrant 9 reversal. Id. An error is harmless if it is “inconsequential to the [ALJ’s] ultimate nondisability 10 determination.” Id. (quotation and citation omitted). The party appealing the ALJ’s decision 11 bears the burden of establishing harmful error. Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009). 12 IV. FIVE-STEP SEQUENTIAL EVALUATION PROCESS 13 To be considered disabled, a claimant must satisfy two conditions. First, the claimant 14 must be “unable to engage in any substantial gainful activity by reason of any medically 15 determinable physical or mental impairment which can be expected to result in death or which 16 has lasted or can be expected to last for a continuous period of not less than twelve months.” 42 17 U.S.C. § 423(d)(1)(A). Second, the claimant’s impairment must be “of such severity that he is 18 not only unable to do his previous work[,] but cannot, considering his age, education, and work 19 experience, engage in any other kind of substantial gainful work which exists in the national 20 economy.” 42 U.S.C. § 423(d)(2)(A). 21 The Commissioner uses a five-step sequential evaluation to determine a claimant’s 22 disability. See 20 C.F.R. § 404.1520(a)(4)(i)-(v). At step one, the Commissioner considers the 23 claimant’s work activity. 20 C.F.R. § 404.1520(a)(4)(i). If the claimant is engaged in 24 “substantial gainful activity,” the Commissioner must find that the claimant is not disabled. 20 25 C.F.R. § 404.1520(b). 26 If the claimant is not engaged in substantial gainful activity, the analysis proceeds to step 27 two. At this step, the Commissioner considers the severity of the claimant’s impairment. 20 28 C.F.R. § 404.1520(a)(4)(ii). If the claimant suffers from “any impairment or combination of 1 impairments which significantly limits [his or her] physical or mental ability to do basic work 2 activities,” the analysis proceeds to step three. 20 C.F.R. § 404.1520(c). If the claimant’s 3 impairment does not satisfy this severity threshold, however, the Commissioner must find that the 4 claimant is not disabled. 20 C.F.R. § 404.1520(c). 5 At step three, the Commissioner compares the claimant’s impairment to severe 6 impairments recognized by the Commissioner to be so severe as to preclude a person from 7 engaging in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(iii). If the impairment is as 8 severe or more severe than one of the enumerated impairments, the Commissioner must find the 9 claimant disabled and award benefits. 20 C.F.R. § 404.1520(d). 10 If the severity of the claimant’s impairment does not meet or exceed the severity of the 11 enumerated impairments, the Commissioner must pause to assess the claimant’s “residual 12 functional capacity.” Residual functional capacity (RFC), defined generally as the claimant’s 13 ability to perform physical and mental work activities on a sustained basis despite his or her 14 limitations, 20 C.F.R. § 404.1545(a)(1), is relevant to both the fourth and fifth steps of the 15 analysis. 16 At step four, the Commissioner considers whether, in view of the claimant’s RFC, the 17 claimant is capable of performing work that he or she has performed in the past (past relevant 18 work). 20 C.F.R. § 404.1520(a)(4)(iv). If the claimant is capable of performing past relevant 19 work, the Commissioner must find that the claimant is not disabled. 20 C.F.R. § 404.1520(f). If 20 the claimant is incapable of performing such work, the analysis proceeds to step five. 21 At step five, the Commissioner considers whether, in view of the claimant’s RFC, the 22 claimant is capable of performing other work in the national economy. 20 C.F.R. § 23 404.1520(a)(4)(v). In making this determination, the Commissioner must also consider 24 vocational factors such as the claimant’s age, education and past work experience. 20 C.F.R. § 25 404.1520(a)(4)(v). If the claimant is capable of adjusting to other work, the Commissioner must 26 find that the claimant is not disabled. 20 C.F.R. § 404.1520(g)(1). If the claimant is not capable 27 of adjusting to other work, analysis concludes with a finding that the claimant is disabled and is 28 therefore entitled to benefits. 20 C.F.R. § 404.1520(g)(1). 1 The claimant bears the burden of proof at steps one through four above. Tackett v. Apfel, 2 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to step five, the burden shifts to the 3 Commissioner to establish that (1) the claimant is capable of performing other work; and (2) such 4 work “exists in significant numbers in the national economy.” 20 C.F.R. § 404.1560(c)(2); 5 Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). 6 V. ALJ’S FINDINGS 7 At step one, the ALJ found Plaintiff did not engage in substantial gainful activity from her 8 alleged onset date of February 18, 2019, through March 31, 2024 (date last insured). (AR 19). At 9 step two, the ALJ found the following severe impairments: lumbar degenerative disc disease, 10 status post left knee arthroplasty, partial left Achilles tendon tear, right knee degenerative joint 11 disease, fibromyalgia, and peripheral neuropathy. (AR 19-20). At step three, the ALJ found 12 Plaintiff had no impairment or combination of impairments that met or medically equaled the 13 severity of a listed impairment. (AR 21). 14 The ALJ found Plaintiff had the RFC to perform light work as defined in 20 CFR 15 404.1567(b), except she could stand/walk four hours in an eight-hour workday; could 16 occasionally climb ramps and stairs; could never climb ladders, ropes or scaffolds; could 17 occasionally stoop, kneel, crouch, crawl; and had to avoid unprotected heights. (AR 21). 18 At step four, the ALJ found Plaintiff could perform past relevant work as an 19 administrative assistant, cashier, human resources assistant, and patient registration clerk. (AR 20 26). Accordingly, the ALJ concluded Plaintiff was not under a disability from February 18, 2019, 21 through March 31, 2024. (AR 27). 22 VI. ISSUES 23 Plaintiff seeks judicial review of the Commissioner’s final decision denying her disability 24 insurance benefits under Title II of the Social Security Act. (Doc. 1). Plaintiff raises two issues: 25 1. Whether the ALJ properly considered Plaintiff’s symptom claims regarding her back 26 and knee injuries, degenerative disc and joint disease, fibromyalgia, and peripheral 27 neuropathy; and 28 2. Whether the ALJ properly assessed the RFC in light of the lack of any opinion 1 supporting the physical restrictions. 2 (Doc. 18 at 7-16). 3 VII. DISCUSSION 4 A. Symptom Claims 5 An ALJ evaluates subjective pain or symptoms using a two-step analysis. Lingenfelter v. 6 Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). The ALJ first must determine whether there is 7 “objective medical evidence of an underlying impairment which could reasonably be expected to 8 produce the pain or other symptoms alleged.” Id. (internal quotation marks omitted). “The 9 claimant is not required to show that his impairment could reasonably be expected to cause the 10 severity of the symptom he has alleged; he need only show that it could reasonably have caused 11 some degree of the symptom.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (internal 12 quotation marks omitted). 13 Second, “[i]f the claimant meets the first test and there is no evidence of malingering, the 14 ALJ can only reject the claimant’s testimony about the severity of the symptoms if [the ALJ] 15 gives ‘specific, clear and convincing reasons’ for the rejection.” Ghanim v. Colvin, 763 F.3d 16 1154, 1163 (9th Cir. 2014) (internal citations and quotations omitted). “General findings are 17 insufficient; rather, the ALJ must identify what testimony is not credible and what evidence 18 undermines the claimant’s complaints.” Id. (quoting Lester, 81 F.3d at 834); Thomas v. Barnhart, 19 278 F.3d 947, 958 (9th Cir. 2002) (“[T]he ALJ must make a credibility determination with 20 findings sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily 21 discredit claimant’s testimony.”). “The clear and convincing [evidence] standard is the most 22 demanding required in Social Security cases.” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 23 2014) (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). 24 Here, the ALJ found Plaintiff’s impairments could reasonably be expected to cause some 25 of the alleged symptoms; but concluded her statements about “the intensity, persistence, and 26 limiting effects of these symptoms are not entirely consistent with the medical evidence and other 27 evidence in the record” for several reasons. (AR 22). Plaintiff argues the ALJ failed to provide 28 clear and convincing reasons to reject her symptom claims related to her back and knee injuries, 1 degenerative disc and joint disease, fibromyalgia, and peripheral neuropathy. (Doc. 18 at 12-16). 2 The Court agrees. 3 Objective Medical Evidence 4 The ALJ discounted Plaintiff’s symptom claims as “greater than expected in light of the 5 objective evidence of record.” (AR 24). An ALJ may discount a claimant's symptom testimony 6 based on objective medical evidence in the record. See Young v. Saul, 845 F. App'x 518, 520 (9th 7 Cir. 2021). In support, the ALJ cited 2021 x-rays of Plaintiff’s back and knees described as “not 8 significantly abnormal,” and acknowledged significant abnormalities on earlier x-rays and an 9 MRI prior to her total left knee replacement. (AR 24, 104-05, 1326 (x-ray of lumbar spine 10 showing Grade I-II spondylolisthesis of L5 on S1 and disc narrowing at L5-SI, x-ray of right knee 11 showing moderate medial compartment joint space narrowing and slight tilt to the patellofemoral 12 joint, and x-ray of left knee showing total knee arthroplasty in satisfactory alignment), 2456 (MRI 13 of left ankle showing partial Achilles tear, tendinosis, and arthritic changes). The ALJ also 14 referred broadly to “a number of physical examinations with unremarkable findings.” (AR 24 15 (citing 671, 1629-32, 1640, 2634, 2639, 2784, 2793, 2827, 3061, 3076 (noting no physical 16 examination was done), 3078 (noting she is not doing well with medication). However, the 17 Court’s independent review of the record, indicates many of the cited examinations also 18 documented abnormal findings, particularly related to Plaintiff’s back and knee impairments, 19 including limited range of motion with pain in low back and cervical spine, tenderness in the 20 lumbar muscles, antalgic gait with slight limp on the left, muscle spasms, joint pain, back 21 abnormality, positive Tinel and Phalen signs, and walks “like she is walking on glass.” (AR 1630- 22 33, 1640, 2634, 2639, 2784). Similarly, while the ALJ’s summary of medical evidence includes 23 relevant findings of normal range of motion, intact sensation, normal deep tendon reflexes, gait 24 within normal limits with “minimal limp,” right lower extremity 5/5 strength, normal muscle tone 25 and strength, no tenderness, and no swelling; these same records also include evidence that tends 26 to support Plaintiff’s symptom claims. (AR 23 (citing AR 250 (normal musculoskeletal findings 27 but also reporting torn meniscus and suspected patella fracture), 359, 364, 371 (noting post-op for 28 arthroscopic left knee procedure), 671 (severe osteoarthritis previously noted), 1630 1 (examination also noting increased pain with range of motion, antalgic gait with limp), 1640 2 (abnormalities noted), 2634 (“walking on glass”), 2639 (same), 2784 (mild limp in left lower 3 extremity, severe tenderness over Achilles tendon), 2793, 2827, 3061, 3076 (noting no physical 4 examination was done), 3078 (noting she is not doing well with medication). Moreover, the 5 ALJ’s decision acknowledges ongoing “physical examinations during treatment” that observed 6 tenderness to palpation, pain with range of motion, mild swelling, limited range of motion, 7 swollen Achilles tendon, left knee tenderness, and trigger points for fibromyalgia. (AR 23). On 8 this record, the ALJ’s reliance on objective evidence to discount Plaintiff’s symptom claims is 9 arguably not supported by substantial evidence. 10 Moreover, the Ninth Circuit has long held that an ALJ may not discredit a claimant’s pain 11 testimony and deny benefits solely because objective medical evidence fails to fully corroborate 12 the severity of pain alleged. (Doc. 18 at 13); Rollins, 261 F.3d at 857 (emphasis added); Bunnell 13 v. Sullivan, 947 F.2d 341, 346-47 (9th Cir. 1991); Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 14 1989). As discussed below, the additional reasons given by the ALJ for discounting Plaintiff’s 15 symptom claims are not supported by substantial evidence. Thus, because lack of corroboration 16 by the objective evidence cannot stand alone as a basis for rejecting Plaintiff’s symptom claims, 17 ALJ’s finding is inadequate. 18 Daily Activities 19 The ALJ relied on Plaintiff’s reported ability to do some household chores, climb stairs to 20 her bedroom, shower, and get dressed as a basis to reject additional limitations beyond those in 21 the RFC. (AR 24). The ALJ may consider a claimant’s activities that undermine reported 22 symptoms. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). However, the Ninth Circuit 23 has “repeatedly warned that ALJs must be especially cautious in concluding that daily activities 24 are inconsistent with testimony about pain, because impairments that would unquestionably 25 preclude work and all the pressures of a workplace environment will often be consistent with 26 doing more than merely resting in bed all day.” Garrison, 759 F.3d at 1016; Vertigan v. Halter, 27 260 F.3d 1044, 1050 (9th Cir. 2001) (“This court has repeatedly asserted that the mere fact that a 28 plaintiff has carried on certain daily activities, such as grocery shopping, driving a car, or limited 1 walking for exercise, does not in any way detract from her [testimony] as to her overall 2 disability.”). Here, Plaintiff testified that she tries to help with chores but her daughter and 3 grandchildren “get it done,” her daughter helps her shower and get dressed, and she walks 4 downstairs in the morning and “once I am down there, I stay.” (AR 46-48). Plaintiff also 5 reported in November 2021 that she was unable to get out of bed, perform housework, shop, or 6 prepare meals without assistance. (AR 1260, 1286). Moreover, the ALJ confined this conclusory 7 finding to the consistency between the daily activities and the assessed RFC, as opposed to citing 8 any evidence suggesting that the sporadic activities reported by Plaintiff contradicted her reported 9 symptom claims, or that the activities were performed in a manner transferable to a work setting. 10 See Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). 11 Furthermore, an ALJ must specifically identify the statements he or she finds not to be 12 credible, and the evidence that allegedly undermines those statements. Holohan v. Massanari, 13 246 F.3d 1195, 1208 (9th Cir. 2001). “To ensure that our review of the ALJ’s credibility 14 determination is meaningful, and that the claimant’s testimony is not rejected arbitrarily, we 15 require the ALJ to specify which testimony she finds not credible, and then provide clear and 16 convincing reasons, supported by the evidence in the record, to support that credibility 17 determination.” Brown-Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015) (noting the ALJ did 18 not specifically identify any inconsistencies between the claimant’s testimony and the record; 19 rather, “she simply stated her non-credibility conclusion and then summarized the medical 20 evidence supporting her RFC determination.”). Here, in addition not identifying specific 21 testimony deemed not credible, the ALJ did not explain how Plaintiff’s limited sporadic activities 22 contradicted her symptom claims, particularly as to difficulties related to back, knee, and joint 23 impairments. Thus, the ALJ’s finding that Plaintiff’s daily activities were inconsistent with her 24 claimed limitations was not a clear and convincing reason, supported by substantial evidence, to 25 discount her symptom claims. 26 Alleged Inconsistent Statements 27 Defendant argues the ALJ reasonably relied on Plaintiff’s inconsistent statements as a 28 clear and convincing reason to discount her symptom claims. (Doc. 20 at 8). An ALJ may 1 consider inconsistent statements by a claimant in assessing her symptom claims. Popa v. 2 Berryhill, 872 F.3d 901, 906 (9th Cir. 2017); Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 3 2001). In support of this argument, Defendant cites the ALJ’s finding that Plaintiff “reported 4 aggravated symptoms with exertional activities, such as lifting, standing, and walking, postural 5 activities such as bending and movement, and activities of daily living, including personal care, 6 sleeping, and housework. Yet, during treatment, the claimant also reported no shortness of 7 breath, muscle weakness, no fatigue, back pain slightly improving, able to do more activities, no 8 arthralgias/joint pain, no back pain, no swelling in the extremities and doing well.” (AR 23, 358- 9 59, 477, 532, 541, 562, 1241, 1265, 2266, 2278, 3096, 3098). In support, the ALJ largely relies 10 on the “review of systems” (“ROS”) in selected treatment notes from the relevant adjudicatory 11 period. However, the Court’s review of the ROS in those treatment notes indicates those entries 12 may have been entered by default in some instances. For example, in October 2019 the ROS 13 indicated no report of migraines and no dizziness, but those symptoms were listed as Plaintiff’s 14 primary complaints (AR 358-59 (also noting Plaintiff went to hospital for migraine several weeks 15 earlier); in February 2021 the ROS noted no reports of pain but the chief complaint at the 16 treatment visit was pain radiating down Plaintiff’s neck and back (AR 562); and in April 2021 the 17 ROS noted no reports of dizziness and no loss of consciousness, while simultaneously noting 18 Plaintiff sought treatment after a fainting episode that resulted in hospitalization (AR 1241). The 19 Court also was unable to locate Plaintiff’s statements that she as improving or able to do more 20 activities in the cited records and identified only a single note that she is “doing well” (AR 3096). 21 Further, the ALJ otherwise acknowledged Plaintiff’s repeated reports of pain and examination 22 consistent with her complaints. (See AR 23). For these reasons, to the extent the ALJ relied on 23 inconsistent statements by Plaintiff, the Court finds it was not a clear and convincing reason, 24 supported by substantial evidence, to reject Plaintiff’s symptom claims. 25 Medical Opinions and Lack of Supporting Statements 26 Defendant further argues that the ALJ observed that the state agency medical consultants’ 27 findings supported the RFC. (Doc. 20 at 8). This argument is unpersuasive for several reasons. 28 First, the ALJ in fact found the opinions of the state agency medical consultants “less persuasive” 1 due to partial record review. (AR 25). The ALJ also noted “there is no medical source statement 2 from an examining or treating physician that endorses the extent of claimant’s alleged functional 3 limitations.” (AR 24). An ALJ may reasonably rely on the lack of any corroborating medical 4 source statement in discounting the severity of Plaintiff’s subjective claims. See Johnson v. 5 Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995) (contradiction with the relevant medical record was a 6 sufficient basis for the ALJ to reject Plaintiff’s subjective testimony); Carmickle v. Comm’r of 7 Soc. Sec., 533 F.3d 1155, 1161 (9th Cir. 2008); see also Edna v. Saul, 2020 WL 1853312, at *8 8 (S.D. Cal. Apr. 13, 2020) (lack of medical opinion finding Plaintiff disabled was a clear and 9 convincing reason to reject Plaintiff’s subjective allegations). However, although the ALJ found 10 those opinions unpersuasive and Plaintiff did not challenge that finding, the record includes 11 progress reports from treating or examining physicians during the relevant period that imposed 12 restrictions on lifting, pushing, pulling, bending, twisting, kneeling, squatting and walking as part 13 of Plaintiff’s worker’s compensation claim. (AR 25, 1034-35, 1060, 1103, 1330); see 20 C.F.R. § 14 404.1504 (“we will not provide any analysis in our determination or decision about a decision 15 made by any other government agency or a nongovernmental entity about whether you are 16 disabled …. However, we will consider all of the supporting evidence underly the governmental 17 agency or nongovernmental entity’s decision that we receive as evidence in your claim.”). Even 18 assuming the lack of a disabling medical opinion could be one clear and convincing reason, on 19 this record it does not amount to substantial evidence to reject Plaintiff’s symptom claims in their 20 entirety, particularly as to her back and knee injuries, degenerative disc and joint disease, 21 fibromyalgia, and peripheral neuropathy. 22 Conservative Treatment 23 While not addressed by the parties’ briefs,2 the ALJ characterized Plaintiff’s post-knee 24 surgery treatment as “conservative, generally limited to medication, physical therapy, and steroid 25 injections.” (AR 24). Evidence of conservative treatment can support discounting symptom 26 2 The Court may decline to consider this issue as it was not raised with specificity in Plaintiff’s opening 27 brief. See Carmickle v. Comm'r of Soc. Sec. Admin., 533 F.3d at 1161 n.2 (9th Cir. 2008); see also Kim v. Kang, 154 F.3d 996, 1000 (9th Cir. 1998) (the court may not consider on appeal issues not “specifically 28 and distinctly argued” in the party's opening brief). 1 allegations. Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007); Johnson v. Shalala, 60 F.3d 2 1428, 1434 (9th Cir. 1995) (ALJ may properly rely on the fact that only conservative treatment 3 has been prescribed). However, “the fact that treatment may be routine or conservative is not a 4 basis for finding subjective symptom testimony unreliable absent discussion of the additional, 5 more aggressive treatment options the ALJ believes are available.” Block v. Berryhill, 2018 WL 6 1567814, at *5 (E.D. Cal. Mar. 31, 2018), quoting Moon v. Colvin, 139 F. Supp. 3d 1211, 1220 7 (D. Or. 2015)); Lapeirre-Gutt v. Astrue, 382 Fed. App’x 662, 664 (9th Cir. 2010) (holding ALJ 8 erred in relying on conservative treatment if “the record does not reflect that more aggressive 9 treatment options are appropriate or available. A claimant cannot be discredited for failing to 10 pursue non-conservative treatment options were none exist.”). An ALJ errs in rejecting 11 subjective complaints if he “failed to explain why [the treatment] is routine or conservative or 12 what more aggressive treatment was available and appropriate for Plaintiff.” See Candice C. v 13 Saul, 2019 WL 5865610, at *4 (C.D. Cal. Nov. 8, 2019). Here, the ALJ did not cite specific 14 records supporting the “conservative” characterization or link that characterization to a particular 15 symptom claim by Plaintiff. (See generally AR 23-24); Holohan, 246 F.3d at 1208 (in 16 considering Plaintiff’s symptom claims, “the ALJ must specifically identify the statements he or 17 she finds not to be credible and must explain what evidence undermines the testimony”); Brown- 18 Hunter, 806 F.3d at 494. Thus, the Court cannot conclude that this general reference to 19 “conservative treatment” constitutes clear and convincing reason, supported by substantial 20 evidence, to discount the severity of Plaintiff’s symptom claims. 21 Conclusion 22 The Court concludes that the ALJ did not provide clear and convincing reasons, supported 23 by substantial evidence, for rejecting Plaintiff’s symptom claims. On remand, the ALJ must 24 reconsider Plaintiff’s symptom claims. 25 B. Additional Assignments of Error 26 Plaintiff also argues the RFC is not supported by substantial evidence because the ALJ did 27 not rely on any medical opinion supporting the assessed physical restrictions and failed to 28 develop the record by obtaining “an opinion of Plaintiff’s RFC from a medical professional.” 1 (Doc. 18 at 8-12). Because these issues are intertwined with the ALJ’s symptom evaluation and 2 the related assessment of the medical evidence and RFC, the Court declines to address these 3 challenges in detail. On remand, the ALJ must reconsider Plaintiff’s symptom claims and 4 conduct a new sequential analysis, including a reassessment of the medical opinion evidence, if 5 necessary. 6 C. Remedy 7 Plaintiff seeks remand for administrative proceedings, and the Court agrees that remand, 8 rather than an award of benefits, is appropriate where further proceedings serve a useful purpose. 9 See Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1103-04 (9th Cir. 2014). The ALJ’s 10 errors in evaluating Plaintiff’s symptom claims call into question whether the RFC and 11 corresponding hypothetical to the vocational expert are supported by substantial evidence, and 12 unresolved factual issues remain. On remand, the ALJ should reevaluate Plaintiff’s symptom 13 claims and the medical evidence (including medical opinions), obtain additional consultative 14 examinations and expert testimony, if appropriate, conduct a new sequential analysis, reassess the 15 RFC, and, if necessary, obtain further vocational expert testimony incorporating all limitations the 16 ALJ credits. 17 Accordingly, it is RECOMMENDED: 18 1. Plaintiff’s Motion for Summary Judgment (Doc. 18) be GRANTED. 19 2. Defendant’s Cross Motion for Summary Judgment (Doc. 20) be DENIED. 20 3. Pursuant to sentence four of 42 U.S.C.§ 405(g), the Court REVERSE the 21 Commissioner’s decision and REMAND this case back to the Commissioner of 22 Social Security for further proceedings consistent with this Order. 23 4. The district court direct the Clerk to enter judgment in favor of the Plaintiff, 24 terminate any pending motions/deadlines, and close this case. 25 NOTICE TO PARTIES 26 These Findings and Recommendations will be submitted to the United States District 27 Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 28 after being served with a copy of these Findings and Recommendations, a party may file written 1 | objections with the Court. /d.; Local Rule 304(b). The document should be captioned, 2 | “Objections to Magistrate Judge’s Findings and Recommendations” and shall not exceed fifteen 3 | (15) pages. The Court will not consider exhibits attached to the Objections. To the extent a party 4 | wishes to refer to any exhibit(s), the party should reference the exhibit in the record by its 5 | CM/ECF document and page number, when possible, or otherwise reference the exhibit with 6 || specificity. Any pages filed in excess of the fifteen (15) page limitation may be disregarded by 7 | the District Judge when reviewing these Findings and Recommendations under 28 U.S.C. § 8 | 636(b)(1)(C). A party’s failure to file any objections within the specified time may result in the 9 | waiver of certain rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014). 10 Dated: _ June 5, 2026 Mila Zh. foareh Zack 12 HELENA M. BARCH-KUCHTA 3 UNITED STATES MAGISTRATE JUDGE

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