Brown v. Bisignano

• Court: District Court, E.D. Washington
• Decided: July 31, 2025
• Docket: 2:24-cv-00364
• Status: Unknown

Opinion

1 FILED IN THE U.S. DISTRICT COURT 2 EASTERN DISTRICT OF WASHINGTON Jul 31, 2025 3 4 SEAN F. MCAVOY, CLERK 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON

9 ANDREA B., No. 2:24-CV-00364-ACE

10 Plaintiff, 11 ORDER GRANTING PLAINTIFF’S 12 v. MOTION

13 FRANK BISIGNANO, 14 COMMISSIONER OF SOCIAL ECF Nos. 10, 13 SECURITY,1 15

16 Defendant. 17 18 BEFORE THE COURT is Plaintiff’s Opening Brief and the 19 Commissioner’s Brief in response. ECF Nos. 10, 13. Attorney Thomas Bothwell 20 represents Plaintiff; Special Assistant United States Attorney Jeffrey E. Staples 21 represents Defendant. The parties have consented to proceed before a magistrate 22 judge. ECF No. 3. After reviewing the administrative record and the briefs filed 23 by the parties, the Court GRANTS Plaintiff’s motion, ECF No. 10, and DENIES 24 Defendant’s motion, ECF No. 13. 25 26

27 1 Pursuant to Federal Rule of Civil Procedure 25(d), Frank Bisignano, 28 Commissioner of Social Security, is substituted as the named Defendant. 1 JURISDICTION 2 Plaintiff filed applications for Disability Insurance Benefits and 3 Supplemental Security Income on March 26, 2021, alleging amended onset of 4 disability beginning September 1, 2021. Tr. 17, 98, 242-58. The applications were 5 denied initially and upon reconsideration. Tr. 158-66, 173-83. Administrative 6 Law Judge (ALJ) Melissa Hammock held a hearing on November 1, 2023, Tr. 58- 7 88, and issued an unfavorable decision on January 3, 2024. Tr. 17-33. The 8 Appeals Council denied Plaintiff’s request for review on September 23, 2024, Tr. 9 1-6, and the ALJ’s decision became the final decision of the Commissioner, which 10 is appealable to the district court pursuant to 42 U.S.C. § 405(g). Plaintiff filed this 11 action for judicial review on October 23, 2024. ECF No. 1. 12 STANDARD OF REVIEW 13 The ALJ is tasked with “determining credibility, resolving conflicts in 14 medical testimony, and resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 15 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with 16 deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel, 17 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 18 only if it is not supported by substantial evidence or if it is based on legal error. 19 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 20 defined as being more than a mere scintilla, but less than a preponderance. Id. at 21 1098. Put another way, substantial evidence “is such relevant evidence as a 22 reasonable mind might accept as adequate to support a conclusion.” Richardson v. 23 Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 24 U.S. 197, 229 (1938)). If the evidence is susceptible to more than one rational 25 interpretation, the Court may not substitute its judgment for that of the ALJ. 26 Tackett, 180 F.3d at 1098; Morgan v. Comm’r of Social Sec. Admin., 169 F.3d 595, 27 599 (9th Cir. 1999). If substantial evidence supports the administrative findings, or 28 if conflicting evidence supports a finding of either disability or non-disability, the 1 ALJ’s determination is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-1230 2 (9th Cir. 1987). Nevertheless, a decision supported by substantial evidence will be 3 set aside if the proper legal standards were not applied in weighing the evidence 4 and making the decision. Brawner v. Sec’y of Health and Human Servs., 839 F.2d 5 432, 433 (9th Cir. 1988). 6 SEQUENTIAL EVALUATION PROCESS 7 The Commissioner has established a five-step sequential evaluation process 8 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 9 416.920(a); Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through 10 four the claimant bears the burden of establishing a prima facie case of disability. 11 Tackett, 180 F.3d at 1098-1099. This burden is met once a claimant establishes 12 that a physical or mental impairment prevents the claimant from engaging in past 13 relevant work. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). If a claimant cannot 14 perform past relevant work, the ALJ proceeds to step five, and the burden shifts to 15 the Commissioner to show: (1) that Plaintiff can perform other substantial gainful 16 activity; and (2) that a significant number of jobs exist in the national economy 17 which Plaintiff can perform. Kail v. Heckler, 722 F.2d 1496, 1497-1498 (9th Cir. 18 1984); Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). If a claimant cannot 19 make an adjustment to other work in the national economy, the claimant will be 20 found disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 21 ADMINISTRATIVE DECISION 22 On January 3, 2024, the ALJ issued a decision finding Plaintiff was not 23 disabled as defined in the Social Security Act. Tr. 17-33. 24 At step one, the ALJ found Plaintiff, who met the insured status 25 requirements of the Social Security Act through December 31, 2026, had not 26 engaged in substantial gainful activity since the September 1, 2021, amended 27 alleged onset date. Tr. 20. 28 1 At step two, the ALJ determined Plaintiff had the following severe 2 impairments: relapsing remitting multiple sclerosis (MS), degenerative disc disease 3 of the lumbar and thoracic spine, obesity, major depressive disorder (MDD), 4 generalized anxiety disorder (GAD), and posttraumatic stress disorder (PTSD). Id. 5 At step three, the ALJ found Plaintiff did not have an impairment or 6 combination of impairments that met or medically equaled the severity of one of 7 the listed impairments. Tr. 21. 8 The ALJ assessed Plaintiff’s Residual Functional Capacity (RFC) and found 9 she could perform light work, with the following limitations:

10 She can lift, carry, push, or pull up to 20 pounds occasionally and 10 11 pounds frequently, sit for six hours, and stand and/or walk in 12 combination for two hours in an eight-hour workday. [Plaintiff] can occasionally stoop, kneel, crouch, crawl, climb ramps, and climb 13 stairs, but she can never climb ladders, ropes, or scaffolds. She must 14 avoid concentrated exposure to temperature extremes and pulmonary irritants, and she can have no exposure to workplace hazards, 15 including unprotected heights and moving mechanical parts. 16 [Plaintiff] can perform simple, routine tasks, but not at a production rate pace, while she can make simple work-related decisions, adapt to 17 occasional changes in the work routine, have frequent interaction with 18 supervisors and coworkers, and have occasional interaction with the 19 public. 20 Tr. 24. 21 At step four, the ALJ found Plaintiff was unable to perform any past relevant 22 work. Tr. 31. 23 At step five, the ALJ found that, based on the testimony of the vocational 24 expert, and considering Plaintiff’s age, education, work experience, and RFC, 25 Plaintiff could also perform jobs that existed in significant numbers in the national 26 economy, including the jobs of marker, routing clerk, document preparer, and 27 escort driver. Tr. 32. 28 1 The ALJ thus concluded Plaintiff was not under a disability within the 2 meaning of the Social Security Act at any time from at any time from the alleged 3 onset date through the date of the decision. Tr. 31. 4 ISSUES 5 Plaintiff seeks judicial review of the Commissioner’s final decision denying 6 her disability insurance benefits under Title II and Title XVI of the Social Security 7 Act. The question presented is whether substantial evidence supports the ALJ’s 8 decision denying benefits and, if so, whether that decision is based on proper legal 9 standards. Plaintiff raises the following issues for review (1) whether the ALJ 10 properly evaluated Plaintiff’s subjective complaints; and (2) whether the ALJ 11 failed to fully develop the record. ECF No. 10 at 7-17. 12 DISCUSSION 13 A. Symptom Claims 14 Plaintiff contends the ALJ failed to properly evaluate Plaintiff’s symptom 15 claims. ECF No. 10 at 7-16. 16 It is the province of the ALJ to make determinations regarding a claimant’s 17 subjective statements. Andrews, 53 F.3d at 1039. However, the ALJ’s findings 18 must be supported by specific, cogent reasons. Rashad v. Sullivan, 903 F.2d 1229, 19 1231 (9th Cir. 1990). Once the claimant produces medical evidence of an 20 underlying medical impairment, the ALJ may not discredit testimony as to the 21 severity of an impairment merely because it is unsupported by medical evidence. 22 Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). Absent affirmative evidence 23 of malingering, the ALJ’s reasons for rejecting the claimant’s testimony must be 24 “specific, clear and convincing.” Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 25 1996); Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). “General findings are 26 insufficient: rather the ALJ must identify what testimony is not credible and what 27 evidence undermines the claimant’s complaints.” Lester at 834; Dodrill v. Shalala, 28 12 F.3d 915, 918 (9th Cir. 1993); see also Smartt v. Kijakazi, 53 F.4th 489, 499 1 (9th Cir. 2022) (“Ultimately, the ‘clear and convincing’ standard requires an ALJ 2 to show [their] work[.]”). Thus, to satisfy the substantial evidence standard, the 3 ALJ must provide specific, clear, and convincing reasons which explain why the 4 medical evidence is inconsistent with the claimant’s subjective symptom 5 testimony. Ferguson v. O’Malley, 95 F.4th 1194, 1200 (9th Cir. 2024) (emphasis 6 in original). 7 Here, the ALJ concluded Plaintiff’s medically determinable impairments 8 could reasonably be expected to cause the alleged symptoms; however, Plaintiff’s 9 statements concerning the intensity, persistence, and limiting effects of those 10 symptoms were not entirely consistent with the medical evidence and other 11 evidence in the record. Tr. 25. 12 1. Inconsistent with Objective Medical Evidence 13 An ALJ may not discredit a claimant’s symptom testimony and deny 14 benefits solely because the degree of the symptoms alleged is not supported by 15 objective medical evidence. Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 16 2001); Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir. 1991); Fair v. Bowen, 17 885 F.2d 597, 601 (9th Cir. 1989); Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 18 2005). However, the objective medical evidence is a relevant factor, along with 19 the medical source’s information about the claimant’s pain or other symptoms, in 20 determining the severity of a claimant’s symptoms and their disabling effects. 21 Rollins, 261 F.3d at 857; 20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2). An ALJ 22 must, however, consider all the relevant evidence in the record and may not point 23 to only those portions of the records that bolster their findings. See, e.g., Holohan 24 v. Massanari, 246 F.3d 1195, 1202-03 (9th Cir. 2011) (holding that an ALJ cannot 25 selectively rely on some entries in plaintiff’s records while ignoring others). 26 Here, the ALJ summarized records from prior to Plaintiff’s alleged onset 27 date, noting Plaintiff was diagnosed with MS in 2015, and that in August 2020 she 28 sought treatment with a pain management provider to assess her for narcotic pain 1 medication for widespread body pain. Tr. 25 (citing Tr. 471-75, 1543-49). The 2 ALJ a noted physical exam at that time showed mild tenderness over her lumbar 3 and paraspinal muscles, and that “straight leg resting was limited due to low back 4 pain,” and that Plaintiff’s body mass index (BMI) was 64. Id. The ALJ noted 5 imaging from 2018 and 2019 indicated multilevel lumbar facet joint arthropathy, 6 moderate to severe in degree at the L5-S1 level, along with mild to moderate 7 multilevel disc degeneration with posterior disc protrusions in the thoracic spine. 8 Id. The ALJ noted MRI imaging of Plaintiff’s brain in January 2020 indicated no 9 significant change since 2018. Id. (citing Tr. 458). Both MRI exams, however, 10 were performed in relation to her MS and showed multiple subependymal and 11 periventricular white matter lesions. Tr. 459. An MRI in April 2022 also noted 12 her history of multiple sclerosis and showed “overall stable appearance of mild to 13 moderate pericallosal and periventricular demyelinating disease when compared to 14 prior study. No new lesions were suggested.” Tr. 2421. 15 The ALJ noted that Plaintiff stopped working between the third quarter of 16 2021 and a follow up in April 2022, but that she stated at that time that she loved 17 her MS medication, Ocrevus, had done well with it and presented “at that time 18 with a normal, non-ataxic gait and normal overall physical function except for 19 slight weakness and hyporeflexia.” Tr. 26 (citing Tr. 2504). The ALJ noted that 20 while Plaintiff changed MS medications “due to reported dizzy spells associated 21 with Ocrevus” and records showed increase in dosage of narcotic pain medication 22 due to complaints of uncontrolled lumbar pain, and “reports of upper extremity 23 symptoms consistent with remote history of carpal tunnel status post release 24 surgery,” that “overall Plaintiff’s examination findings were normal with respect to 25 gait, musculoskeletal function, neurological function, and overall physical function 26 aside from notations of her BMI over 60 and some sensory loss in the right hand 27 and to cold in the right foot.” Tr. 26 (citing Tr. 2432-43, 3270-74). 28 1 This is an incomplete discussion of the record cited. Records cited from 2 December 2022 show several medication changes due to progression of MS as 3 well as side effects including lymphopenia. Tr. 2432. Her provider noted that 4 while Ocrevus was effective, Plaintiff experienced return of symptoms between 5 infusions. Id. The provider noted Plaintiff was on a new medication, Kesimpta, 6 “without concerns or infection,” but that she was also reporting upper extremity 7 symptoms “some of which correlate with carpal tunnel syndrome and somewhat 8 sharp concerning for multiple sclerosis or C6 nerve impingement.” Id. The 9 provider also noted her reports of numbness and “significant life events and 10 psychiatric issues.” Id. Her provider indicated upper extremity decreased 11 sensation as noted by the ALJ, but also that Plaintiff had objective findings 12 including positive Phalen’s and median nerve testing “consistent with recurrence 13 of carpal tunnel syndrome,” and EMG testing as well as MRI of her cervical spine 14 was ordered at that time. Id. The records cited from a November 2022 visit for 15 back pain also show Plaintiff was treated for chronic pain secondary to 16 degenerative disc disease, but that her pain was not adequately controlled at that 17 time, despite opiate pain medication, which was increased. Tr. 3270. Upon exam 18 she was also noted to be morbidly obese, with BMI at that time of 64, and she was 19 diagnosed with “[c]lass 3 severe obesity . . . with serious comorbidity and . . . BMI 20 of 60.0 to 69.9 in adult.” Tr. 3273. 21 The ALJ’s discussion of objective evidence and findings in these records is 22 not an accurate reflection of the records cited; the ALJ left out relevant findings 23 and selectively cited portions of the records showing milder findings while failing 24 to discuss objective evidence that supported Plaintiff’s symptom reports, including 25 ongoing/progressive MS symptoms and side effects of treatment, which are 26 supported with objective findings including lab results. 27 The ALJ also concluded that examination findings before and after Plaintiff 28 stopped working were quite similar, “reflecting only mild weakness in some 1 muscle groups of [Plaintiff’s] lower extremities,” but the ALJ failed to cite to any 2 records here. Tr. 27. Earlier in the decision the ALJ cited to a few exams (out of 3 3000 pages of medical records) and noted that in April 2021 Plaintiff had “nearly 4 full motor strength in most of her body with only minor weakness noted, rated 5 4+/5, thought she did have mild weakness in multiple lower extremity muscles 6 bilaterally rated as 4/5.” Tr. 25 (citing Tr. 1551). Upon exam, however, the 7 provider noted strength 4+/5 “except as detailed below,” and strength in various 8 muscle groups was then noted as 4 and 4-; and the provider did not use the term 9 “mild.” Tr. 1551. The ALJ left out the lowest measurement and did not discuss 10 other portions of the physical exam performed by her neurologist, which also 11 showed a timed walk score, a fatigue impact scale, and cranial nerve testing. Tr. 12 1550. The ALJ also noted that an April 2022 exam showed only “slight” weakness 13 in hip flexion, Tr. 26 (citing Tr. 2504), but the term slight does not appear in the 14 records the ALJ cited. On this record, where Plaintiff is diagnosed with MS and 15 has reported weakness and balance issues and records show “good and bad days” 16 related to MS symptoms and treatment, the ALJ appeared to minimize the records 17 cited, and the ALJ’s analysis is insufficient. See Tr. 73-78, 500. 18 The ALJ also did not discuss what appear to be other relevant findings from 19 the exams cited. Tr. 25, 27. Records from the April 2022 neurology visit show 20 Plaintiff was morbidly obese, that she had to change medications for her MS due to 21 continuously feeling ill and labs showing persistently low lymphocyte count for 22 more than six months, that she was “struggling with fatigue and increased 23 symptoms about 2 months prior to her next dose” of Ocrevus, and that she reported 24 increased migraines “approximately 20 a month” that were no longer controlled 25 with medication; her provider also noted she had a recent diagnosis of sleep apnea, 26 “which is likely contributing,” and her provider noted Plaintiff had a fall when she 27 was still working that exacerbated her chronic pain. Tr. 2500. Records also show 28 fatigue remained a problem, she had reduced strength in her lower extremities, and 1 in October 2020 she was “unable to walk on her toes or her heels and [was] 2 unsteady on tandem walk.” Tr. 458. 3 The ALJ’s selective summary of medical evidence and conclusory 4 statements fail to meet the burden of “setting out a detailed and thorough summary 5 of the facts and conflicting clinical evidence, stating [the ALJ’s] interpretation 6 thereof, and making findings.” Trevizo v. Berryhill, 871 F.3d 644, 675 (9th Cir. 7 2017) (internal citations omitted). In citing portions of the record that show milder 8 examination findings while the longitudinal record shows more mixed results, the 9 ALJ’s characterization of the record is also not supported by substantial evidence. 10 Accordingly, the ALJ’s conclusion Plaintiff’s symptom reports were 11 inconsistent with the objective medical evidence is not supported by substantial 12 evidence, and this was not a clear and convincing reason to discount her symptom 13 claims. 14 2. Able to Work 15 The ALJ also found Plaintiff’s ability to work at SGA levels near her alleged 16 onset date inconsistent with her symptom claims. Tr. 27. An ALJ is permitted to 17 consider any work done by a claimant when evaluating a disability claim and 18 working with an impairment supports a conclusion that the impairment is not 19 disabling. See Drouin v. Sullivan, 966 F.2d 1255, 1258 (9th Cir. 1992); Bray v. 20 Astrue, 554 F.3d 1219, 1227 (9th Cir. 2009) (upholding ALJ’s adverse credibility 21 determination in part because the claimant “recently worked as a personal 22 caregiver for two years, and has sought out other employment since then”); 23 Gregory v. Bowen, 844 F.2d 664, 667 (9th Cir. 1988) (finding that substantial 24 evidence supported determination that claimant’s back problems were not 25 disabling where her condition remained constant for several years and the 26 impairment had not prevented her from working during that time). 27 Here, the ALJ discounted Plaintiff’s symptom claims because “she was still 28 working at SGA levels in the third quarter of 2021, walking seven blocks to work 1 each day and spending most of the day on her feet . . . .” Tr. 27. The ALJ 2 concluded such work activity close to her alleged onset date and the fact that 3 “examination findings before and after that point in time were quite similar, 4 reflecting only mild weakness in some muscle groups of [Plaintiff’s] lower 5 extremities,” supported some limitations but not to the extent alleged by Plaintiff. 6 Tr. 27. As discussed supra in relation to the objective medical evidence, however, 7 the ALJ selectively cited the record and misstated findings from exams the ALJ 8 cited, and the ALJ’s conclusion she had only mild weakness upon physical exam 9 was not supported by substantial evidence. 10 The ALJ also did not provide a citation to the record here, Tr. 27, and an 11 exam the ALJ cited earlier in the decision to show she walked seven blocks and 12 was on her feet at her job was dated May 2021, which is further from her alleged 13 onset date than indicated by the ALJ. Tr. 25 (citing Tr. 1544). The notes cited 14 here are labeled “history”; and according to Plaintiff’s testimony she was no longer 15 working a caregiver job after February or March 2021. Tr. 71, 73. She testified 16 that while she tried to work other jobs through 2021, that her condition was 17 worsening. Id. Further, the ALJ again failed to discuss relevant positions of the 18 visit cited. The following page of notes from the same appointment, for example, 19 reveals Plaintiff’s report at the May 26, 2021, appointment that while she had been 20 doing pretty well “last week she fell . . . she said she lost her balance and her 21 husband says that it is balance related . . . has been noticing over the last few 22 months more missteps and balance issues.” Tr. 1545. Records show she was also 23 feeling “more dizzy and [with] more headaches.” Id. Plaintiff alleged worsening 24 of her condition, including balance issues and dizziness in 2021 that led to falls and 25 inability to sustain work later that year, and at the hearing she amended her alleged 26 onset date to September 2021 to better reflect at what point she alleged she could 27 no longer work. Tr. 64, 71, 73-74. It is not clear when Plaintiff reported that she 28 walked seven blocks to work each day and spent most of the day on her feet, but 1 based on the records cited by the ALJ it was not in the third quarter of 2021. See 2 Tr. 25, 1544. While ability to work may rebut a Plaintiff’s symptom claims, the 3 ALJ appears to have misstated the record concerning when Plaintiff performed 4 certain work activity, and provided no discussion of the work Plaintiff was 5 performing, if any, later in 2021. On this record, the ALJ’s conclusion that such 6 activity was inconsistent with Plaintiff’s symptom claims is not supported by 7 substantial evidence. 8 Accordingly, the ALJ’s conclusion that Plaintiff’s symptoms were 9 inconsistent with disability because she was still working prior to her alleged onset 10 date and exam findings before and after that time were quite similar was also not a 11 clear and convincing reason supported by substantial evidence to discount 12 Plaintiffs symptom claims. 13 3. Improved with Treatment 14 The ALJ also discounted Plaintiff’s symptom claims because she Plaintiff 15 improved with treatment. Tr. 25-27. An ALJ may rely on the effectiveness of 16 treatment to find a plaintiff’s testimony unpersuasive. See Wellington v. Berryhill, 17 878 F.3d 867, 876 (9th Cir. 2017) (evidence of medical treatment successfully 18 relieving symptoms can undermine a claim of disability); Morgan v. Comm’r of 19 Social Sec. Admin., 169 F.3d 595, 599-600 (9th Cir. 1999) (an ALJ may properly 20 rely on a report that a plaintiff’s symptoms improved with the use of medication). 21 Here the ALJ concluded that Plaintiff improved with treatment, noting that 22 after she was prescribed Norco and started Ocrevus treatments “she reported she 23 was feeling much better and more functional and getting out, and trying to do more 24 walking.” Tr. 25 (citing Tr. 500). The record cited is from 2020, however, which 25 is prior to Plaintiff’s amended onset date in 2021, and while she reported at that 26 time that she was “feeling less pain” since starting opiate pain medication, she 27 reported only that she had “good and bad days” related to MS and treatment. Tr. 28 500. As noted supra, records from April 2022 also reveal she had had difficulty 1 tolerating Ocrevus infusions and she was switched to a different medication. Tr. 2 2500, 2505. The ALJ also noted elsewhere in the decision that Plaintiff reported 3 increased symptoms with Ocrevus treatment, and that she reported falls, increased 4 headaches, and weakness, and she required increased dosage of narcotic pain 5 medication for chronic pain; and records show she was prescribed a walker with 6 wheels by her neurologist in 2023. Tr. 25-26; see Tr. 3226. Accordingly, without 7 further discussion, the ALJ’s conclusion that Plaintiff improved with treatment is 8 not supported by substantial evidence and this was also not a clear and convincing 9 reason to discount her claims. 10 4. Activities 11 The ALJ also discounted Plaintiff’s symptom claims based on her activities. 12 Tr. 28. An ALJ may consider a claimant’s activities that undermine reported 13 symptoms. Rollins, 261 F.3d at 857. If a claimant can spend a substantial part of 14 the day engaged in pursuits involving the performance of exertional or non- 15 exertional functions, the ALJ may find these activities inconsistent with the 16 reported disabling symptoms. Fair, 885 F.2d at 603; Molina v. Astrue, 674 F.3d 17 1104, 1113 (9th Cir. 2012), superseded on other grounds by 20 C.F.R. § 18 416.902(a). “While a claimant need not vegetate in a dark room in order to be 19 eligible for benefits, the ALJ may discount a claimant’s symptom claims when the 20 claimant reports participation in everyday activities indicating capacities that are 21 transferable to a work setting” or when activities “contradict claims of a totally 22 debilitating impairment.” Molina, 674 F.3d at 1112-13. “Only if the level of 23 activity is inconsistent with Claimant’s claimed limitations” do daily “activities 24 have any bearing on Claimant’s credibility.” Ferguson, 95 F.4th at 1203 (quoting 25 Reddick, 157 F.3d at 722). 26 Here, the ALJ noted Plaintiff could drive a vehicle, handle bank accounts, 27 pay bills, shop, clean, prepare simple meals, and use household appliances, and 28 that she spent time with family, watched movies, and took care of a household 1 including chores. Tr. 22-23. It is well-established, however, that a claimant need 2 not be “utterly incapacitated” to be eligible for benefits. Fair, 885 F.2d at 603. At 3 the 2023 hearing Plaintiff testified she had fallen twice, had chronic fatigue, could 4 not stand or walk for long, and had to take breaks during any activity that required 5 her to be on her feet due to fatigue and pain, and that she had to lie down an hour 6 or two during the day due to dizziness and pain. Tr. 74, 76-78. Plaintiff also 7 testified that her daughter helps her make dinner and stays by her if she is not 8 feeling well or feels like she might fall. Tr. 75-76. She testified she was 9 prescribed a rolling walker earlier in 2023 and used it for walking outside her 10 home; and she testified she used a cart she can sit in to grocery shop because it hurt 11 to walk around the store. Tr 80. 12 None of the activities listed by the ALJ are inconsistent with Plaintiff’s 13 allegations of chronic pain and other symptoms preventing her from working a 14 full-time job during the period at issue, and the ALJ’s conclusion that Plaintiff’s 15 activities do not support her allegations of disabling symptoms is not supported by 16 substantial evidence. 17 The ALJ did not provide clear and convincing reasons supported by 18 substantial evidence to discount Plaintiff’s symptom claims. Additionally, the ALJ 19 erred in misstating the record and selectively citing portions of the record showing 20 milder findings while failing to discuss evidence supportive of Plaintiff’s symptom 21 reports during the period at issue. 22 The case is remanded for the ALJ to reassess Plaintiff’s symptom claims and 23 conduct the sequential analysis anew, reevaluating Plaintiff’s symptom claims and 24 their impact on each step of the sequential analysis throughout the period at issue 25 with the assistance of medical expert testimony. 26 B. Develop the Record 27 Plaintiff contends the ALJ also erred in failing to develop the record. ECF 28 No. 10 at 16-17. The ALJ has an independent duty to fully and fairly develop a 1 record in order to make a fair determination as to disability, even where, as here, 2 the claimant is represented by counsel. Celaya v. Halter, 332 F.3d 1177, 1183 (9th 3 Cir. 2003); see also Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001); 4 Crane v. Shalala, 76 F.3d 251, 255 (9th Cir. 1995). 5 As the claim is remanded for reconsideration of Plaintiff’s symptom claims, 6 and to reperform the sequential analysis with the assistance of medical expert 7 testimony, the ALJ will ensure the record is fully developed with the assistance of 8 medical expert testimony. 9 CONCLUSION 10 Having reviewed the record and the ALJ’s findings, the Court concludes the 11 ALJ’s decision is not supported by substantial evidence and not free of harmful 12 legal error. 13 On remand, the ALJ will update the medical record. The ALJ will reassess 14 all medical evidence and reperform the sequential analysis with the assistance of 15 medical expert testimony, reconsidering Plaintiff’s symptom claims any other 16 evidence or testimony relevant to Plaintiff’s disability claim. 17 Upon remand, the ALJ will obtain all updated medical records and 18 reevaluate all medical evidence of record. The ALJ is instructed to reassess 19 plaintiff’s subjective complaints and to perform the sequential analysis anew with 20 the assistance of medical expert testimony, making new findings on each of the 21 five steps of the sequential evaluation process, and taking into consideration any 22 other evidence or testimony relevant to Plaintiff’s disability claim. 23 Accordingly, IT IS ORDERED: 24 1. Plaintiff’s Motion, ECF No. 10, is GRANTED. 25 2. Defendant’s Motion, ECF No. 13, is DENIED. 26 3. The matter is REMANDED to the Commissioner for further 27 proceedings consistent with this order. 28 4. An application for attorney fees may be filed by separate motion. 1 The District Court Executive is directed to update the docket sheet to reflect the substitution of Frank Bisignano as Defendant, file this Order and provide a 3|| copy to counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff and the file shall be CLOSED. 5 DATED July 31, 2025. CAagwnler (Glam oe gs ALEXANDER C. EKSTROM _ UNITED STATES MAGISTRATE JUDGE

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