Dora R.S. v. Martin O’Malley, Acting Commissioner of Social Security

• Court: District Court, S.D. California
• Decided: July 22, 2024
• Docket: 3:23-cv-00636
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DORA R.S.,1 Case No.: 23cv0636-AJB-SBC

12 Plaintiff, REPORT AND 13 v. RECOMMENDATION GRANTING PLAINTIFF’S MOTION FOR 14 MARTIN O’MALLEY,2 Acting SUMMARY JUDGMENT AND Commissioner of Social Security, 15 REMANDING TO THE Defendant. COMMISSIONER 16

17 [ECF No. 13]

18 19 This report and recommendation is submitted to the United States District Judge 20 Anthony J. Battaglia pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule 72.1(c) of the 21 United States District Court for the Southern District of California. 22 23

24 25 1 Pursuant to Civil Local Rule 7.1(e)(6)(b), “[o]pinions by the Court in [Social Security cases under 42 U.S.C. § 405(g)] will refer to any non-government parties by using only 26 their first name and last initial.” 27 2 Martin J. O'Malley was appointed Commissioner for the Social Security Administration on December 20, 2023 and is automatically substituted as the defendant under Federal 28 1 Dora R.S. (“Plaintiff”) filed this action pursuant to 42 U.S.C. § 405(g) seeking 2 judicial review of the final administrative decision of the Commissioner of Social Security 3 Administration (“Commissioner”) regarding the denial of her application for disability 4 benefits under Title II of the Social Security Act. (See ECF No. 8.) The Administrative 5 Law Judge (“ALJ”) found that the Plaintiff was not disabled within the meaning of the 6 Social Security Act and denied Plaintiff’s benefits from February 11, 2020, through the 7 date of the decision, January 27, 2022. (ECF No. 7 at 22-30 [Administrative Record 8 “AR”].) 9 Now pending before the Court is Plaintiff’s Motion for Summary Judgment, filed on 10 July 11, 2023. (ECF No. 13-1.) On August 15, 2023, Defendant filed a responsive brief. 11 (ECF No. 15.) For the reasons set forth below, the Court RECOMMENDS that judgment 12 be entered REVERSING the decision of the ALJ and REMANDING this matter for 13 further administrative proceedings consistent with the findings presented herein. 14 I. PROCEDURAL HISTORY 15 On January 21, 2021, Plaintiff filed a Title II application for a period of disability 16 and disability insurance benefits, alleging disability beginning February 11, 2020. (AR at 17 22.) Plaintiff’s application was denied on March 24, 2021, and again on reconsideration on 18 May 20, 2021. (Id.) On May 27, 2021, Plaintiff submitted a written request for a de novo 19 hearing by an Administrative Law Judge (“ALJ”), which was granted on June 2, 2021. (Id. 20 at 121.) On December 9, 2021, ALJ Mary Parnow presided over the hearing. (Id. at 35.) 21 Plaintiff appeared via telephone, represented by her attorney, Armando Di Filippo. (Id. at 22 35-54.) Plaintiff with the assistance of a Spanish language interpreter, and a vocational 23 expert, Sandra Trost, testified at the hearing. (Id.) 24 On January 27, 2022, the ALJ issued an unfavorable decision denying Plaintiff’s 25 request for disability benefits. (AR at 30.) On March 25, 2022, Plaintiff submitted a written 26 request for review to the Appeals Council. (Id. at 218-220.) On February 1, 2023, the 27 Appeals Council denied Plaintiff’s request for review. (Id. at 1-3.) Having exhausted all 28 1 administrative remedies, Plaintiff brought this timely civil action, seeking judicial review 2 pursuant to 42 U.S.C. § 405(g). (See ECF No. 8.) 3 II. SUMMARY OF THE ALJ’S FINDINGS 4 In rendering her decision, the ALJ followed the Commissioner’s five-step sequential 5 evaluation process. See 20 C.F.R. § 404.1520. At step one, the ALJ found that Plaintiff had 6 not engaged in substantial gainful activity since February 11, 2020, the alleged onset date. 7 (AR at 24.) At step two, the ALJ found that Plaintiff had the following severe impairments: 8 (1) status post Valley Fever; (2) obesity; (3) opioid use disorder; (4) paranoid 9 schizophrenia; (5) depression; (6) anxiety; and (7) bipolar disorder. (Id.) The ALJ also 10 found non-severe impairments, including mild hearing loss, migraine, diverticulosis, 11 fibromyalgia, positive QuantiFERON TB Gold test, cysts in the breasts, facial erythema 12 and pruritis. (Id.) 13 At step three, the ALJ found that Plaintiff did not have an impairment or combination 14 of impairments that met or medically equaled one of the listed impairments listed in the 15 relevant section of the Commissioner’s Listing of Impairments3. (AR at 25.) When a 16 claimant’s impairments, or combination of impairments, do not meet the criteria of a listed 17 impairment, as was the case here, the ALJ next determines the claimant’s residual 18 functional capacity (“RFC”), i.e., the ability to do physical and mental activities despite the 19 claimant’s impairments. (See id. at 25-26.) Step four then considers whether the claimant 20 is not disabled because she has the RFC to do past relevant work, and step five looks at the 21 claimant’s ability to do any other work considering her RFC, age, education, and work 22 experience. (Id. at 24.) 23 24 25 26 3 If the claimant’s impairment or combination of impairments is of a severity to meet or 27 medically equal the criteria of a listing and meets the duration requirement (20 CFR §§ 404.1509 and 416.909), the claimant is deemed disabled. If it does not, the analysis 28 1 The ALJ determined at step four that Plaintiff can perform past relevant work as a 2 cleaner, which the vocational expert classified as light work under the Dictionary of 3 Occupational Titles, and that the job does not require work-related activities beyond 4 Plaintiff’s RFC. (AR at 28.) The ALJ also determined that under 20 C.F.R. §§ 404.1569 5 and 404.1569(a), Plaintiff could perform other jobs in the national economy considering 6 her age, education, work experience, and RFC. (Id.) The ALJ accepted the testimony of the 7 vocational expert, who said Plaintiff could perform the requirements of Silver Wrapper 8 (D.O.T. 318.687-018), Day Worker (D.O.T. 301.687-014), and Hospital Cleaner (D.O.T. 9 323.687-010). (Id. at 29.) 10 In reaching her decision, the ALJ assessed Plaintiff as retaining the RFC to perform 11 a range of medium work as defined in 20 C.F.R. §§ 404.1567(c), with the following 12 limitations: 13 [Plaintiff can] frequently climb ramps/stairs; occasionally climb ladders, ropes and scaffolds; frequently balance, stoop, kneel and crouch; occasionally 14 crawl; avoid concentrated exposure to noise; avoid concentrated exposure to 15 pulmonary irritants (gases, odors, dusts, chemicals, etc.); no more than moderate noise exposure; avoid concentrated exposure to unprotected heights 16 and dangerous moving machinery; precluded from performing complex and 17 detailed tasks; and capable of understanding, remembering and carrying out simple routine tasks in a routine work environment with occasional interaction 18 with the general public. Occasionally is defined as occurring from very little 19 up to one-third of the time, or approximately 2 hours in an 8-hour workday. Frequently is defined as occurring from one-third to two thirds of the time or 20 approximately 6 hours in an 8-hour workday. 21 (AR at 26.) 22 The ALJ stated that the RFC assessment was based on “all symptoms and the extent 23 to which these symptoms can reasonably be accepted as consistent with the objective 24 medical evidence and other evidence, based on the requirements of 20 CFR 404.1529 and 25 SSR 16-3p.” (AR at 26.) The ALJ also considered the medical opinions and prior 26 administrative medical findings in accordance with 20 CFR 404.1520c. (Id.) Based on the 27 testimony of the vocational expert, the ALJ concluded that “considering the [Plaintiff’s] 28 1 age, education, work experience, and residual functional capacity, the [Plaintiff] is capable 2 of making a successful adjustment to other work that exists in significant numbers in the 3 national economy.” (Id. at 29.) The ALJ, therefore, found that Plaintiff was “not disabled” 4 as defined by the Social Security Act, from the alleged onset date of February 11, 2020, 5 through the date of the decision, January 27, 2022. (Id. at 29-30.) 6 III. ISSUE IN DISPUTE 7 The sole issue in dispute is whether the ALJ erred when evaluating Plaintiff’s 8 subjective statements regarding her physical limitations4. (See ECF Nos. 13, 15.) 9 IV. LEGAL STANDARD 10 Section 405(g) of the Social Security Act allows unsuccessful applicants to seek 11 judicial review of the Commissioner’s final decision. 42 U.S.C. § 405(g). The scope of 12 judicial review is limited, and the denial of benefits will not be disturbed if it is supported 13 by substantial evidence in the record and contains no legal error. Id.; see also Woods v. 14 Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022) (Under 20 C.F.R. § 404.1520(c), “an ALJ 15 cannot reject an examining or treating doctor’s opinion as unsupported or inconsistent 16 without providing an explanation supported by substantial evidence.”) 17 “Substantial evidence means more than a mere scintilla but less than a 18 preponderance. It means such relevant evidence as a reasonable mind might accept as 19 adequate to support a conclusion.” Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) 20 (quoting Desrosiers v. Sec’y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988)); 21 see also Richardson v. Perales, 402 U.S. 389, 401 (1971). 22 An ALJ’s decision is reversed only if it “was not supported by substantial evidence 23 in the record as a whole or if the ALJ applied the wrong legal standard.” (Id.) “To determine 24 whether substantial evidence supports the ALJ’s determination, [the Court] must assess the 25

26 27 4 Although the ALJ’s decision also addresses Plaintiff’s mental impairments, the Court only considers her physical impairments because Plaintiff does not contest the ALJ’s 28 1 entire record, weighing the evidence both supporting and detracting from the agency’s 2 conclusion.” Ahearn v. Saul, 988 F.3d 1111, 1115 (9th Cir. 2021) (citing Mayes v. 3 Massanari, 276 F.3d 453, 459 (9th Cir. 2001)). The Court “may not reweigh the evidence 4 or substitute [its] judgment for that of the ALJ.” (Id.) “The ALJ is responsible for 5 determining credibility, resolving conflicts in medical testimony, and for resolving 6 ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). 7 Where the evidence is susceptible to more than one rational interpretation, the ALJ’s 8 decision must be upheld. Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). This 9 includes deferring to the ALJ’s credibility determinations and resolutions of evidentiary 10 conflicts. See Lewis v. Apfel, 236 F.3d 503, 509 (9th Cir. 2001). Even if the reviewing court 11 finds that substantial evidence supports the ALJ’s conclusions, the court must set aside the 12 decision if the ALJ failed to apply the proper legal standards in weighing the evidence and 13 reaching his or her decision. See Batson v. Comm’r Soc. Sec. Admin., 359 F.3d 1190, 1193 14 (9th Cir. 2004). 15 V. DISCUSSION 16 A. Whether the ALJ Failed to Properly Evaluate Plaintiff’s Subjective Statements 17 18 An ALJ assesses a claimant’s subjective statements regarding his or her symptoms 19 and limitations in two parts. §§ 404.1529(a), 416.929(a). First, an ALJ must determine 20 whether the claimant has presented objective medical evidence of an underlying 21 impairment that “could reasonably be expected to produce the pain or other symptoms 22 alleged.” (Id.). Second, if the first test is met and there is no evidence of malingering, “the 23 ALJ can reject the claimant’s testimony about the severity of her symptoms only by 24 offering specific, clear and convincing reasons for doing so.” Ragudo v. Saul, 411 F. Supp. 25 3d 1125, 1133-34 (S.D. Cal. 2019) (citing Smolen, 80 F.3d at 1281). “This is not an easy 26 requirement to meet: ‘The clear and convincing standard is the most demanding required 27 in Social Security cases.’” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting 28 Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). 1 The ALJ “determine[s] credibility, resolve[s] conflicts in the testimony, and 2 resolve[s] ambiguities in the record.” Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 3 1090, 1098 (9th Cir. 2014). “General findings are insufficient; rather, the ALJ must identify 4 what testimony is not credible and what evidence undermines the claimant’s complaints.” 5 Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (quoting Reddick v. Chater, 6 157 F.3d 715, 722 (9th Cir. 1998)); Burrell v. Colvin, 775 F. 3d 1133, 1139 (9th Cir. 2014) 7 (finding error where the ALJ “never connected the medical record” to the claimant’s 8 testimony and did not make “a specific finding linking a lack of medical records to [the 9 claimant’s testimony about the intensity of her . . . symptoms”). 10 In assessing a claimant’s statements about his or her symptoms, the ALJ may 11 consider, inter alia, (1) the claimant’s reputation for truthfulness; (2) inconsistencies in the 12 claimant’s testimony or between her testimony and her conduct; (3) the claimant’s daily 13 living activities; (4) the claimant’s work record; and (5) testimony from physicians or third 14 parties concerning the nature, severity, and effect of the claimant’s condition. Thomas v. 15 Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002); see also Ghanim v. Colvin, 763 F.3d 1154, 16 1163 (9th Cir. 2014) (listing factors) (citation omitted). 17 While “an ALJ may not reject a claimant’s subjective complaints based solely on a 18 lack of medical evidence to fully corroborate the alleged severity of pain . . . it is a factor 19 that the ALJ can consider in his credibility analysis.” Burch v. Barnhart, 400 F.3d 676, 680 20 (9th Cir. 2005) (“[A]n ALJ may not reject a claimant’s subjective complaints based solely 21 on a lack of medical evidence to fully corroborate the alleged severity of pain.”); Light v. 22 Social Security Administration, 119 F.3d 789, 792 (9th Cir. 1997) (“[A] finding that the 23 claimant lacks credibility cannot be premised wholly on a lack of medical support for the 24 severity of his pain”); Social Security Ruling (SSR) 16-3p (S.S.A. Oct. 25, 2017) (SSA 25 adjudicators should “not disregard an individual’s statements about the intensity, 26 persistence, and limiting effects of symptoms solely because the objective medical 27 28 1 evidence does not substantiate the degree of impairment-related symptoms alleged by the 2 individual”).5 3 1. Plaintiff’s Subjective Statements 4 At the December 9, 2021, administrative hearing, the ALJ asked Plaintiff about her 5 impairments. (AR at 37-54.) Plaintiff explained that she cleaned houses for fifteen years, 6 but she stopped working because she would run out of strength afterwards and then would 7 have to rest for two to three days. (Id. at 42.) Plaintiff testified to suffering from 8 gastrointestinal issues and stated that she was undergoing “studies” because the pain had 9 lasted two months. (Id. at 44.) Plaintiff also testified to suffering from fibromyalgia, 10 depression, anxiety, migraines, which she stated causes limitations in her daily life. (Id. at 11 45.) 12 Plaintiff stated that she does not leave the house except for when she drives her son 13 to and from school. (AR at 46.) Plaintiff stated it is “extremely difficult” because of the 14 very strong pain. (Id.) Plaintiff can barely get out of bed because she feels very fatigued. 15 (Id.) She is unable to do household chores. (Id.) She stated that she can barely walk, she 16 cannot cook for her son, and her arms do not function anymore. (Id. at 44.) Plaintiff stated 17 that she used to only have issues with her left arm, but now she has issues with both arms. 18 (Id. at 46-47.) As a result, she can no longer wash her body or hair, or open jars. (AR 46- 19 47.) Lastly, Plaintiff stated that she suffers from migraines at least twice a month for at 20 least three days at a time. (Id. at 47.) 21 2. The ALJ’s Analysis of Plaintiff’s Subjective Statements 22 The ALJ’s decision noted the following of Plaintiff’s alleged impairments: 23 24 25 5 Social Security Ruling 16-3p superseded SSR 96-7p and, in part, eliminated use of the 26 term “credibility” from SSA “sub-regulatory policy” to “clarify that subjective symptom 27 evaluation is not an examination of an individual's [overall character or truthfulness] . . . [and] more closely follow [SSA] regulatory language regarding symptom evaluation.” 28 1 During the hearing, the claimant testified that her past work involved cleaning houses and that she stopped working last year. The claimant testified that she 2 is undergoing diagnostic work up concerning her gastrointestinal issues and 3 that she has fibromyalgia, depression and migraine headaches. The claimant testified that she experiences fatigue and migraine headaches and has had 4 difficulty getting out of bed in the past two months. The claimant testified that 5 she has difficulty grabbing and handling with her arms and that she is unable to open a jar. 6 7 (AR at 26-27.) The ALJ found that the record established medically determinable 8 impairments that could reasonably be expected to cause Plaintiff’s alleged symptoms. (Id. 9 at 27.) “However, the [Plaintiff’s] statements concerning the intensity, persistence and 10 limiting effects of these symptoms are not entirely consistent with the medical evidence 11 and other evidence in the record for the reasons explained in this decision.” (Id.) 12 In making the determination, the ALJ stated the following: 13 Several factors indicate that the claimant’s statements concerning the intensity, persistence and limiting effects of her reported symptoms and 14 limitations are not entirely consistent with the medical evidence. The record 15 contains limited treatment notes and lacks treatment notes corresponding to the alleged onset date. Clinical findings, as discussed, support the residual 16 functional capacity determination. The claimant has a longstanding history of 17 smoking cigarettes. (Exhibit 5F/24, 11F/35) The claimant stated that her pain was controlled and that she was able to function. (Exhibit 6F/6) The record 18 lacks longitudinal mental health treatment notes, and the claimant did not take 19 prescribed psychiatric medication consistently. (Exhibit 11F/32) The claimant was able to travel to Mexico. (Exhibit 3F/3). 20 (AR at 27.) 21 This finding meets the threshold with respect to part one. Next, because there was 22 no finding that Plaintiff was malingering, the ALJ was required to make specific findings 23 stating clear and convincing reasons for discounting Plaintiff’s subjective statements. 24 Lingenfelter, 504 F.3d at 1036. 25 i. Failure to Address Certain Alleged Limitations 26 27 First, the Court considers Plaintiff’s argument that the ALJ improperly discounted 28 her subjective statements by failing to address certain limitations to her daily activities. 1 (See ECF No. 13-1 at 4.) Specifically, Plaintiff highlights portions of the administrative 2 hearing where she described difficulties with cooking, walking, driving, chores, migraines, 3 and the inability to use her left arm6. (Id.) Defendant counters that the ALJ properly 4 discounted Plaintiff’s subjective statements because they were not supported by the 5 medical record, and there were limited treatment notes. (ECF No. 15 at 2-4.) Defendant 6 also argues that the ALJ is not required to address all of Plaintiff’s subjective complaints. 7 (Id. at 5.) Although the Court agrees with Defendant, Plaintiff’s subjective statements 8 regarding difficulty with walking, having migraines for multiple days every month, and the 9 inability to use her arm(s) are highly relevant to a disability claim. 10 While “[c]ontradiction with the medical record is a sufficient basis for rejecting the 11 claimant’s subjective testimony,” an ALJ must still “identify what testimony is not credible 12 and what evidence undermines the claimant’s complaints.” Carmickle v. Commissioner, 13 Social Sec. Admin, 533 F.3d 1155, 1161 (9th Cir. 2008); Reddick, 157 F.3d at 722. Here, 14 the ALJ’s decision noted Plaintiff’s subjective statements concerning gastrointestinal 15 issues, fibromyalgia, depression, migraine headaches, fatigue, difficulty getting out of bed, 16 and grabbing and handling objects with her arms. (AR at 26-27.) The ALJ then outlined 17 Plaintiff’s medical history, including septic shock, opioid use disorder, obesity, valley 18 fever, and various mental impairments such as depression and anxiety. (Id. at 27.) The ALJ 19 found that the record contained “limited treatment notes” that correspond to Plaintiff’s 20 severe impairments, which include valley fever, obesity, opioid use disorder, 21 schizophrenia, depression, anxiety, and bipolar disorder7. (See id. at 24, 27.) Then, when 22 concluding that Plaintiff’s subjective statements were “not entirely consistent” with the 23 24 25 26 6 Although Plaintiff’s motion for summary judgment and function report states that she is 27 unable to use her left arm, Plaintiff stated during the administrative hearing that the problem has worsened, and she is now unable to use both of her arms. (See AR at 46-47.) 28 1 record, the ALJ generally noted a lack of treatment notes corresponding to the alleged onset 2 date. (Id. at 27.) 3 However, when discounting Plaintiff’s subjective statements, the ALJ failed to 4 identify which of Plaintiff’s subjective statements were “not entirely consistent” with the 5 record. (See AR at 22-30); see Lambert v. Saul, 980 F.3d 1266, 1278 (9th Cir. 2020) 6 (holding that even though the ALJ provided “a relatively detailed overview of claimant’s 7 medical history, providing a summary of medical evidence ... is not the same as providing 8 clear and convincing reasons for finding the claimant's symptom testimony not credible”). 9 Instead, the ALJ merely provided a general summary of Plaintiff’s subjective statements, 10 medical history, and broadly stated that there is a lack of treatment notes when discounting 11 Plaintiff’s subjective statements. (See AR at 26-27.) At a certain point, the ALJ noted that 12 Plaintiff “complained of bilateral arm pain, but [the] record lacks corresponding diagnostic 13 work up or follow up treatment notes.” (AR at 25.) While this could have been a clear and 14 convincing reason to discount Plaintiff’s subjective statements regarding arm pain, it is 15 important to note that Plaintiff alleges an inability to use her arm(s), which is a significantly 16 more serious claim. (See AR at 46-47, 275.) Ultimately, the ALJ was silent as to which of 17 Plaintiff’s subjective statements were “not entirely consistent” with the record. Therefore, 18 the Court finds the ALJ did not provide clear and convincing reasons to discount Plaintiff’s 19 subjective statements. 20 Furthermore, the ALJ’s failure to specifically identify which parts of the Plaintiff’s 21 testimony or statements were not credible, and then connect those statements to the record 22 of alleged inconsistency prevents the Court from conducting a meaningful judicial review. 23 See Reddick, 157 F.3d at 722 (“General findings are insufficient; rather, the ALJ must 24 identify what testimony is not credible and what evidence undermines the claimant’s 25 complaints.”); Smolen, 80 F.3d at 1284 ([a]n ALJ “must state specifically which symptom 26 testimony is not credible and what facts in the record lead to that conclusion.”); Rios v. 27 Saul, No. 19CV704-LL, 2020 WL 71080, at *5 (S.D. Cal. Jan. 7, 2020). “Because the ALJ 28 did not provide enough reasoning in order for us to meaningfully determine whether the 1 ALJ's conclusions were supported by substantial evidence,” the Court finds the error is not 2 harmless. See Lambert, 980 F.3d at 1266, 1278. 3 ii. Inconsistencies with Daily Activities 4 Next, Plaintiff argues that the ALJ erred by finding that certain activities of daily 5 living, specifically a longstanding history of smoking cigarettes8 and the ability to travel to 6 Mexico, are inconsistent with Plaintiff’s subjective complaints. (See ECF No. 13-1 at 4-5.) 7 Defendant maintains that an ALJ can discount subjective statements when they are 8 inconsistent with a plaintiff’s daily activities, and Plaintiff’s ability to travel to Mexico is 9 just one of the many factors that the ALJ considered when discounting Plaintiff’s subjective 10 statements. (See ECF No. 15 at 4-5.) Furthermore, Defendant explains that the ALJ did not 11 err because “Plaintiff’s travel contradicted her testimony of debilitating pain that 12 essentially left her bedridden.” (Id. at 5-6.) 13 As a preliminary matter, the Court does not find Defendant’s argument persuasive. 14 Even if Defendant’s contention was taken as true and the Court assumed that the ALJ 15 discounted Plaintiff’s subjective statements because of the alleged contradiction between 16 traveling to Mexico and debilitating pain that essentially left Plaintiff bedridden, the Court 17 does not have a basis to affirm the argument because it was not articulated by the ALJ. 18 Brown-Hunter, 806 F.3at 492. 19 As previously discussed, the issue before the Court is whether the ALJ properly 20 discounted Plaintiff’s subjective statements. An ALJ may properly rely on inconsistencies 21 between a claimant’s testimony and the claimant’s reported daily activities as a basis for 22 an adverse credibility determination. Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 23 1997). However, an ALJ must “elaborate on which daily activities conflicted with which 24 25 26 8 When considering the ALJ’s decision regarding Plaintiff’s subjective statements, 27 Defendant acknowledges that it does not rely on the ALJ’s reference to Plaintiff’s history of smoking cigarettes as being supported by substantial evidence. (ECF No. 15 at 5.) 28 1 part of Claimant's testimony.” Burrell, 775 F.3 at 1138. Here, the ALJ failed to show how 2 Plaintiff being able to travel to Mexico was inconsistent with Plaintiff’s statements 3 concerning the intensity, persistence, and limiting effects of her subjective statements. 4 While Defendant correctly argues an ALJ may properly rely on a plaintiff’s daily activities 5 when discounting subjective statements, the ALJ failed to make the connection between 6 which of Plaintiff’s activities were inconsistent with her alleged symptoms and limitations. 7 For example, it was stated that “[t]he claimant was able to travel to Mexico” without further 8 explanation. (See AR at 27.) However, the mere fact that someone has physical limitations 9 does not necessarily mean that they cannot travel. People with physical limitations can still 10 travel between states and countries, albeit sometimes requiring assistance. Therefore, the 11 simple fact that the Plaintiff was able to travel to Mexico, without further detail, does not 12 necessarily undermine her claims of physical limitations. 13 Accordingly, the Court finds that the ALJ’s general conclusion that Plaintiff was 14 able to travel to Mexico is insufficient for discounting her subjective statements. “Because 15 the ALJ did not provide enough reasoning in order for us to meaningfully determine 16 whether the ALJ's conclusions were supported by substantial evidence,” the Court finds 17 the error is not harmless. See Lambert, 980 F.3d at 1266, 1278. 18 iii. Controlled Pain and Cherry-Picking 19 Lastly, the Court addresses Plaintiff’s argument that the ALJ cherry picked 20 information from the record when only citing to one medical record to show that 21 “[Plaintiff’s] pain was controlled and . . . she was able to function9.” (ECF No. 13-1 at 5- 22 6; AR at 27, 543.) Defendant contends that the ALJ’s single citation to the record was 23 merely one example of Plaintiff’s stable symptoms “in an otherwise sparse record.” (ECF 24 No. 15 at 6.) In support of this argument, Defendant highlights doctor office visits in 25 October 2021 where Plaintiff reported that her pain was controlled on her current treatment 26 27 9 The Court notes that Plaintiff failed to cite any record to counter that her pain was not 28 1 course, and that she had no complaints. (Id.; AR at 689, 762) However, the Court notes 2 that Defendant omitted information from one of the visits, which includes “[t]he regimen 3 brings the pain to 5/10 on average.” (See AR at 689.) 4 An ALJ cherry picks when they selectively cite to the record, ignoring evidence that 5 contradicts their opinion. See D.T. v. Comm'r of Soc. Sec., 538 F. Supp. 3d 952, 958 (N.D. 6 Cal. 2021); Hoffschneider v. Kijakazi, No. 18-15504, 2022 WL 3229989, at *1 (9th Cir. 7 Aug. 10, 2022). If the ALJ acknowledges facts adverse to their conclusion and relies on a 8 broad set of exams, they have not cherry picked. See D.T., 538 F. Supp. at 958; Wesselius 9 v. Kijakazi, No. 20-35386, 2021 WL 4948928, at *1 (9th Cir. Oct. 25, 2021). 10 Here, the ALJ failed to acknowledge adverse facts and did not consider a broad range 11 of examinations. As Plaintiff highlighted, the ALJ noted that “[Plaintiff] stated that her 12 pain was controlled and . . . she was able to function.” (Id.) In doing so, the ALJ cited one 13 exhibit from the medical record, a telephonic follow-up appointment on February 3, 2021, 14 regarding Plaintiff’s fibromyalgia. (See AR at 27, 543.) A close review of the record shows 15 several other instances where Plaintiff expressed that she was experiencing pain. For 16 instance, on January 6, 2021, only a month earlier, Plaintiff reported “chronic pain.” (See 17 id. at 475.) On October 28, 2020, mental status exam notes state that Plaintiff has a “history 18 of chronic pain.” (Id. at 464-466.) In August 2021, Plaintiff went to Kern Medical 19 Emergency Department with complaints of abdominal pain. (Id. at 649-653.) On October 20 7, 2021, clinic notes state that Plaintiff was receiving treatment for “generalized pain.” (Id. 21 at 731-733.) On October 13, 2021, office visit notes report “fatigue and lethargy constantly 22 throughout day” and “[p]ain in both arms.” (Id. at 881.) On October 20, 2021, Plaintiff 23 reported that she was not doing well. (Id. at 889.) Given the numerous medical records 24 indicating that Plaintiff’s pain was not controlled, and the ALJ’s reliance on one medical 25 record to suggest otherwise, the Court finds that the ALJ impermissibly cherry picked. 26 B. CONCLUSION 27 The only remaining question for the Court is whether to remand for further 28 administrative proceedings or for the payment of benefits. “The decision of whether to 1 ||remand a case for additional evidence, or simply to award benefits[,] is within the 2 || discretion of the court.” Trevizo, 871 F.3d at 682 (quoting Sprague v. Bowen, 812 F.2d 3 || 1226, 1232 (9th Cir. 1987)). “Remand for further administrative proceedings is appropriate 4 enhancement of the record would be useful.” Benecke v. Barnhart, 379 F.3d 587, 593 5 Cir. 2004). A remand for an immediate award of benefits is appropriate only in rare 6 || circumstances. Leon v. Berryhill, 874 F.3d 1130 (9th Cir. 2017). The Court concludes that 7 || “[t]he rare circumstances that result in a direct award of benefits are not present in this 8 || case.” Ud.) 9 Instead, the Court finds further administrative proceedings would serve a meaningful 10 purpose. On remand, the ALJ must provide specific reasons for the weight given to the 11 || Plaintiff's subjective statements. All reasons set forth by the ALJ’s decision must be clearly 12 articulated so that any subsequent reviewer can assess how the ALJ evaluated the 13 || claimant’s symptoms and the record. Stout, 454 F.3d at 1054; Brown-Hunter, 806 F.3d at 14 15 Based on the foregoing, the Court RECOMMENDS that the District Court 16 || VACATE the ALJ’s decision and REMAND this case for further administrative 17 || proceedings consistent with the findings presented herein. 18 IT IS HEREBY ORDERED that any written objection to this report must be filed 19 || with the Court and served on all parties no later than August 5, 2024. The document should 20 || be captioned “Objections to Report and Recommendation.” 21 IT IS FURTHER ORDERED that any reply to the objections shall be filed with 22 ||the Court and served on all parties no later than August 12, 2024. The parties are advised 23 || that failure to file objections within the specified time may waive the right to raise those 24 || objections on appeal of the Court’s order. Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). 25 IT IS SO ORDERED. 26 || Dated: July 22, 2024 GF A. 28 ilies Sees eecistele Judge