Duane C. v. Commissioner of Social Security

Opinion

1 2 3 WESTERN DISTRICT OF WASHINGTON 6 DUANE C., Case No. 3:25-cv-05604-TLF 7 Plaintiff, v. ORDER REVERSING AND 8 REMANDING DEFENDANT’S COMMISSIONER OF SOCIAL DECISION TO DENY BENEFITS 10 Defendant. 11 12 Plaintiff filed this action pursuant to 42 U.S.C. § 405(g) for judicial review of 13 defendant’s denial of plaintiff’s application for supplemental security income (“SSI”) and 14 disability insurance benefits (“DIB”). Pursuant to 28 U.S.C. § 636(c), Federal Rule of 15 Civil Procedure 73, and Local Rule MJR 13, the parties have consented to the 16 jurisdiction of a Magistrate Judge. Dkt. 2. Plaintiff challenges the ALJ’s decision finding 17 that plaintiff was not disabled. Dkt. 4, Complaint. 19 Plaintiff filed claims for SSI and DIB in May 2022, alleging disability beginning 20 October 1, 2020. AR 18. His applications were denied at the initial level and on 21 reconsideration. Id. ALJ David Johnson held a hearing on June 11, 2024, and issued a 22 decision the following month finding plaintiff not disabled. AR 18-32. The ALJ found that 23 plaintiff had no medically determinable impairments before December 22, 2021. AR 20. 24 Beginning on that date, the ALJ found plaintiff had the severe impairments of 1 degenerative disc disease, obesity, cervicalgia, dorsalgia, spondylosis, spinal stenosis, 2 neuropathy, and radiculopathy. AR 21. Plaintiff had the residual functional capacity 3 (“RFC”) to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), 4 that does not require more than occasional stooping, kneeling, crouching, crawling, or

5 climbing; frequent balancing; occasional reaching overhead; or concentrated exposure 6 to hazards. AR 25. The Appeals Council denied plaintiff’s request for review, making the 7 ALJ’s decision the final decision of the Commissioner. AR 1-3. 9 Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's 10 denial of Social Security benefits if the ALJ's findings are based on legal error or not 11 supported by substantial evidence in the record as a whole. Revels v. Berryhill, 874 12 F.3d 648, 654 (9th Cir. 2017) (internal citations omitted). Substantial evidence is “‘such 13 relevant evidence as a reasonable mind might accept as adequate to support a 14 conclusion.’” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (internal citations

15 omitted). The Court must consider the administrative record as a whole. Garrison v. 16 Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). The Court also must weigh both the 17 evidence that supports and evidence that does not support the ALJ’s conclusion. Id. 18 The Court may not affirm the decision of the ALJ for a reason upon which the ALJ did 19 not rely. Id. Rather, only the reasons identified by the ALJ are considered in the scope 20 of the Court’s review. Id. 21 1. Medical evidence. 22 Plaintiff challenges the ALJ’s rejection of the medical opinions of Dr. Shirley 23 Deem, M.D., and Dr. E. Andrea Shadrach, Psy.D. Dkt. 10 at 3-13. Under the regulations

24 1 applicable to this case, the ALJ was required to articulate how persuasive he found 2 each medical opinion or prior administrative medical finding and explain how he 3 considered supportability and consistency in his analysis. 20 C.F.R. §§ 404.1520c(b)(2), 4 416.920c(b)(2). Supportability means the extent to which a medical source supports

5 their opinion by explaining the relevant medical evidence. Woods v. Kijakazi, 32 F.4th 6 785, 791-92 (9th Cir. 2022). Consistency means the extent to which the opinion is 7 inconsistent with the evidence from other medical and non-medical sources in the claim. 8 Id. at 792. An ALJ cannot reject an opinion as unsupported or inconsistent without 9 providing an explanation supported by substantial evidence. Id. 10 a. Dr. Shirley Deem, M.D. 11 Dr. Deem examined plaintiff on September 9, 2023, and opined that he could 12 stand and walk for at least two hours in an eight-hour day; must alternate sitting and 13 standing; carry less than ten pounds occasionally and frequently; occasionally climb 14 stairs and ladders, balance, stoop, crouch, kneel, and crawl; and occasionally reach

15 overhead, reach forward, handle, finger, and feel. AR 916-19. The ALJ found Dr. 16 Deem’s opinion unpersuasive because it lacked objective support and was inconsistent 17 with the record. AR 29. 18 i. Supportability 19 The ALJ found Dr. Deem’s opinion unsupported because she did not provide an 20 opinion of the most standing and walking that could be done in a workday. AR 29. 21 Plaintiff argues that the ALJ failed to explain why this should discredit the other 22 limitations opined by Dr. Deem. Dkt. 10 at 3-4. As the ALJ provided other reasons for 23

24 1 rejecting Dr. Deem’s opinion, it is not apparent that the ALJ discredited all limitations on 2 this basis. 3 Despite acknowledging abnormal findings, the ALJ concluded that Dr. Deem’s 4 limitations lacked objective support because the exam also showed normal range of

5 motion, full strength in the extremities, and intact sensation. AR 29. Plaintiff argues that 6 the ALJ erred by failing to explain how the normal findings outweighed the abnormal 7 findings such as positive straight leg raise, stiff gait, slow coordination, and difficulty 8 squatting and heel-toe walking. Dkt. 10 at 4. 9 Merely listing the findings does not explain why the ALJ considered the normal 10 results more significant. “The ALJ must do more than offer his conclusions. He must set 11 forth his own interpretations and explain why they, rather than the doctors’, are correct.” 12 Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998). 13 The ALJ’s supportability findings are not supported by substantial evidence. 14 Under Woods, a finding that Dr. Deem’s opinion is inconsistent with the longitudinal

15 record, if supported by substantial evidence, would be a sufficient independent basis for 16 the ALJ to conclude that Dr. Deem’s opinion was unpersuasive. See 32 F.4th at 792-94. 17 ii. Consistency 18 Plaintiff argues that the ALJ’s summary of normal findings is not representative of 19 the record as a whole and that many of the records cited by the ALJ contradict his 20 findings. Dkt. 10 at 5. 21 The ALJ is required to consider the entire medical record and may not cherry- 22 pick evidence to support his findings while ignoring evidence to the contrary. Holohan v. 23 Massanari, 246 F.3d 1195, 1207-08 (9th Cir. 2001). Although an ALJ must rely on

24 1 examples to illustrate their findings, the examples must reflect the broader context of the 2 record. Garrison, 759 F.3d at 1017. 3 The ALJ found Dr. Deem’s opinion inconsistent with observations in the record of 4 normal gait, strength, and extremity movement and no obvious range of motion deficits.

5 AR 29. But these normal findings are not an accurate reflection of the cited records. For 6 instance, these records also document excessively tense trapezius muscles, 7 tenderness to palpation of the trochanteric bursa, unsteadiness and pain with heel and 8 toe walking, and decreased sensory function in the right lower extremity. AR 433, 488- 9 89, 496-97. And several of the cited records indicate limited range of motion or pain with 10 full range of motion. AR 433, 519-23, 541. These cherry-picked normal findings are not 11 representative of the record as a whole, which consistently documents reduced range of 12 motion, stiffness, reduced strength and sensation, and uncontrolled pain. See, e.g., AR 13 546, 660-676, 578, 599-600, 623, 704, 818-29, 868-79. By relying on the cherry-picked 14 findings, the ALJ mischaracterized the record and erred.

15 The ALJ also found Dr. Deem’s opinion inconsistent with plaintiff’s improvement 16 following neck surgery. AR 29. Plaintiff argues that the ALJ failed to point to evidence of 17 significantly improved functioning following surgery. Dkt. 10 at 6. Although plaintiff is 18 correct that the ALJ relies on the string of citations, he also refers to his discussion of 19 the DDS opinions. AR 29. In evaluating the ALJ’s decision, the Court must look “to all 20 the pages of the ALJ’s decision.” Kaufmann v. Kijakazi, 32 F.4th 843, 851 (9th Cir. 21 2022). The ALJ’s discussion of the DDS opinions includes a citation to physical therapy 22 records in which plaintiff stated that his neck surgery made him 85% better. AR 29 23 (citing AR 875).

24 1 Yet the ALJ has cherry-picked evidence that does not accurately reflect the 2 context. After he stated his neck was 85% improved, plaintiff remarked that his back 3 pain was his limiting factor. AR 875. The physical therapy records support this 4 statement, indicating improvement in neck pain but continued lower back and hip pain.

5 See, e.g., AR 818 (“I still have LB issues…My back still hurts me”); 823 (“pt fearful of his 6 back flaring more than the neck…WATCH the LB and the HIP pain while treating the 7 neck”); 825 (“The lumbar spine and R leg pain at the hip is also limiting”); 829 (“Pt 8 reports his low back and legs are limiting him today and making it difficult to walk and 9 move.”). And, Dr. Deem’s examination notes indicate that her opinion was based on 10 back pain, not neck pain. AR 916 (“At this point, he complains of mid-back problems.”). 11 Thus, plaintiff’s improvement following neck surgery is not inconsistent with Dr. Deems’ 12 limitations. 13 In sum, the ALJ’s consistency findings are not supported by substantial evidence. 14 Having failed to articulate valid supportability or consistency findings, the ALJ

15 erroneously rejected Dr. Deem’s opinion. As Dr. Deem opined limitations more 16 restrictive than those included in the RFC, the error was not “inconsequential to the 17 ultimate nondisability determination,” and was therefore harmful. Molina v. Astrue, 674 18 F.3d 1104, 1115 (9th Cir. 2012). 19 b. E. Andrea Shadrach, Psy.D. 20 Dr. Shadrach evaluated plaintiff on November 21, 2022, and opined that plaintiff 21 could complete simple repetitive tasks; follow moderately complex instructions; 22 understand and follow instructions from a supervisor; and maintain focused attention for 23 rote information. AR 693-94. Dr. Shadrach found that plaintiff’s ability to maintain

24 1 concentration and persistence in a typical work setting would likely be impacted by 2 depressed mood and increased anxiety. Id. She noted plaintiff may struggle to employ 3 working memory and maintain focused attention reliably for sustained tasks, and that a 4 part-time setting with limited conceptual demands would likely be compromised by pain

5 issues. AR 694. 6 The ALJ found Dr. Shadrach’s opinion somewhat unpersuasive. AR 23. He found 7 that Dr. Shadrach’s opinion provided support for limiting plaintiff from complex tasks and 8 to some extent, semi-complex tasks, but did not support a limitation to simple tasks or 9 part-time work. Id. The ALJ also found the opinion inconsistent with subsequent 10 evidence, plaintiff’s testimony, and a lack of need for psychological treatment. Id. 11 i. Supportability 12 The ALJ found Dr. Shadrach’s limitations to simple tasks and part-time work 13 lacked support other than plaintiff’s subjective pain. AR 23. Plaintiff argues that this 14 conclusion misstates the record, as Dr. Shadrach identified pain, depressed mood, and

15 increased anxiety as contributing factors to plaintiff’s limitations. Dkt. 10 at 10. 16 An ALJ may reject a medical opinion if it is based primarily on a claimant’s self- 17 reports that have been properly discounted as lacking credibility. Tommasetti v. Astrue, 18 533 F.3d 1035, 1041 (9th Cir. 2008). But this rule “does not apply in the same manner 19 to opinions regarding mental illness,” as psychiatric diagnoses will always depend in- 20 part on the patient’s self-report. Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017). 21 And “when an opinion is not more heavily based on a patient’s self-reports than on 22 clinical observations, there is no evidentiary basis for rejecting the opinion.” Ghanim v. 23 Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014).

24 1 Dr. Shadrach’s opinion was based in part on plaintiff’s self-report that he suffered 2 from anxiety and depression, but she also conducted a clinical interview and mental 3 status examination. AR 690-94. These are objective measures that cannot be 4 discounted as self-report. Buck, 869 F.3d at 1049.

5 Dr. Shadrach also observed plaintiff’s pain and did not rely only on his reports. 6 See AR 694 (“This claimant evidenced appropriate social skills throughout the interview, 7 but he was clearly masking his pain.”). The ALJ offered no basis for his conclusion that 8 the opinion was based more heavily on plaintiff’s self-reports, and substantial evidence 9 does not support such a conclusion. Accordingly, the ALJ’s supportability findings are 10 not supported by substantial evidence. 11 ii. Consistency 12 The ALJ found Dr. Shadrach’s opinion inconsistent with a later consultative 13 psychological examination by Dr. Higgins that showed better performance in memory 14 and concentration tasks. AR 23 (citing AR 911-14). The ALJ fails to explain why the

15 later opinion is more persuasive than Dr. Shadrach’s. “[A]n ALJ errs when he rejects a 16 medical opinion or assigns it little weight while doing nothing more than ignoring it, 17 asserting without explanation that another medical opinion is more persuasive, or 18 criticizing it with boilerplate language that fails to offer a substantive basis for his 19 conclusion.” Garrison, 759 F.3d at 1012-13. 20 Further, the differences in performance are minimal. Compare AR 692 and 913. 21 During his exam with Dr. Shadrach, plaintiff remembered two of three words after a five- 22 minute delay. AR 692. With Dr. Higgins, he remembered all three words. AR 913. When 23 completing serial 7s with Dr. Shadrach, plaintiff made an error after 8 answers. AR 692.

24 1 Dr. Higgins did not specify how many answers plaintiff gave for serial 7s, only that he 2 subtracted serial 7s at a good pace without error. AR 913. Such minor discrepancies in 3 performance can hardly represent a meaningful inconsistency, particularly when one 4 considers that “a mental status examination is a mere snapshot of the plaintiff’s

5 functioning on a particular day.” Heckler v. O’Malley, 2024 WL 4766737, at *10 (D. Haw. 6 Nov. 13, 2024) (cleaned up). 7 The ALJ also found the opinion inconsistent with plaintiff’s testimony that his pain 8 had improved. AR 23. The Court notes that the ALJ’s reference to testimony here is 9 erroneous, as plaintiff did not testify to improved pain. Rather, the ALJ refers to 10 plaintiff’s physical therapy records following neck surgery in which he stated that his 11 neck pain was improved. AR 23 (citing AR 843, 875). As discussed above, the cited 12 records show that plaintiff still suffered from back pain after surgery. AR 843, 875. And 13 subsequent records from 2023 and 2024 indicate plaintiff’s pain was uncontrolled and 14 causing significant emotional distress. See, e.g., AR 1015-16 (reports inadequate pain

15 management, causing him significant depression and anxiety); 1018 (“Very concerned 16 re: pain. Reports inadequate pain management currently. Displays and reports some 17 anxious features.”); 1022 (“Currently is feeling that his pain is not controlled…He reports 18 that this is causing him significant depression and anxiety”). Such findings are 19 consistent with Dr. Shadrach’s opinion. 20 Finally, the ALJ found Dr. Shadrach’s opinion inconsistent with a “general lack of 21 need for psychological treatment.” AR 23. This finding is not supported by substantial 22 evidence, as plaintiff was prescribed antidepressants by his primary care physician. AR 23 576 (prescribed trial of ketamine, doxepin); 690 (reports taking doxepin and ketamine

24 1 for depression and pain). Medication management by a primary care provider, as 2 opposed to a mental health specialist, still constitutes formal mental health treatment, 3 and is not a proper basis to discredit a doctor’s opinion of limitations. Sprague v. 4 Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987); Breanne L. F. v. Comm’r of Soc. Sec.,

5 2024 WL 3289606, at *16 (W.D. Wash. July 3, 2024). 6 The ALJ’s consistency findings are not supported by substantial evidence. 7 Having failed to articulate valid supportability or consistency findings, the ALJ 8 erroneously rejected Dr. Shadrach’s opinion. As Dr. Shadrach opined limitations more 9 restrictive than those included in the RFC, the error was not “inconsequential to the 10 ultimate nondisability determination,” and therefore harmful. Molina, 674 F.3d at 1115. 11 2. Plaintiff’s statements regarding subjective symptoms 12 Plaintiff challenges the ALJ’s rejection of his testimony. Dkt. 10 at 15-17. In 13 assessing a claimant’s credibility, the ALJ must determine whether the claimant has 14 presented objective medical evidence of an underlying impairment. If such evidence is

15 present and there is no evidence of malingering, the ALJ can only reject plaintiff’s 16 testimony regarding the severity of his symptoms for specific, clear, and convincing 17 reasons. Ghanim, 763 F.3d at 1163. 18 Plaintiff testified that he suffers from pain in his neck, right arm, and lower back. 19 AR 49. He stated that using his arms or doing anything for too long causes his pain to 20 get out of control. Id. His pain prevents him from sleeping. Id. Plaintiff stated that at least 21 one to two days a week, he has days where his lower back pain is so severe that he 22 cannot walk. AR 50. He testified that he has difficulty doing anything for longer than 30 23 minutes without debilitating pain. AR 49. On a typical day, he spends the first two to four

24 1 hours of his day trying to get his pain under control. AR 56. He stated that he usually 2 lays in his recliner and watches the news during this time but will sometimes get up and 3 take a hot shower. Id. Plaintiff stated that he spends time with his animals, plays video 4 games for maybe an hour a day, and tries to do a little work each day in his garden. Id.

5 He tries to keep up with some house chores like taking mail to the mailbox, watering the 6 garden, and washing dishes. AR 57. 7 The ALJ found that plaintiff’s medically determinable impairments could 8 reasonably be expected to cause some of the alleged symptoms, but inconsistencies 9 undermined the weight that could be given to plaintiff’s symptom reports. AR 26. 10 a. No Treatment Before December 22, 2021 11 The ALJ noted that despite alleging an onset date of October 1, 2020, plaintiff did 12 not seek treatment until December 22, 2021. AR 26. The ALJ found this lack of 13 treatment inconsistent with plaintiff’s symptom reports. AR 26. An unexplained or 14 inadequately explained failure to seek treatment can serve as a clear and convincing

15 reason for rejecting a claimant’s symptom testimony. See Burch v. Barnhart, 400 F.3d 16 676, 681 (9th Cir. 2005). But before finding an individual’s symptoms inconsistent with 17 the record on this basis, the ALJ must consider the possible reasons the claimant did 18 not seek treatment consistent with the degree of their complaint. SSR 16-3p, 2017 WL 19 5180304, at *9-10. 20 Here, the ALJ considered that plaintiff may not have sought treatment because of 21 the pandemic. AR 26. The ALJ found, however, that medical care was still available 22 despite the pandemic and plaintiff would have sought treatment if his symptoms were as 23 limiting as alleged. Id. Plaintiff argues that a lack of treatment due to the pandemic is not

24 1 a clear and convincing reason to reject his testimony. Dkt. 10 at 15-16 (citing Kristopher 2 O. v. Comm’r of Soc. Sec., 2025 WL 1891919, at *6 (W.D. Wash. July 9, 2025)). The 3 Court holds that pandemic restrictions are a valid reason for failing to seek treatment. 4 See, e.g., Darren Jeffrey C. v. Kijakazi, 2022 WL 4474261, at *15 (S.D. Cal. Sept. 26,

5 2022); Blanca T. v. O’Malley, 2024 WL 6847881, at *4 (C.D. Cal. Mar. 27, 2024); 6 Michael D. v. Comm’r of Soc. Sec., 2022 WL 3644433, at *2 (W.D. Wash. Aug. 24, 7 2022). The ALJ erred by relying on delay in treatment; under the circumstances of the 8 global COVID-19 pandemic, plaintiff’s delay in treatment was not a clear and convincing 9 reason for rejecting plaintiff’s testimony. 10 b. Normal findings 11 The ALJ summarized some of the medical evidence, including abnormal findings 12 from physical examination reports, then concluded that the medical records were 13 inconsistent with the degree of limitation alleged because they also contained normal 14 findings. AR 26-27. As discussed above in relation to Dr. Deem’s opinion, this is

15 insufficient. Merely listing the findings does not explain why the ALJ considered the 16 normal results more significant. Reddick, 157 F.3d at 725. 17 Further, many of these “normal” findings are not actually inconsistent with 18 plaintiff’s testimony. For example, the ALJ noted the existence of negative Phalen’s and 19 Tinel’s signs. AR 26-27. These tests are used to diagnose carpal tunnel syndrome. See 20 Leusch v. Berryhill, 358 F. Supp. 3d 896, 903 (D. Arizona 2019) (carpal tunnel 21 syndrome evidence including negative or positive Tinel’s and Phalen’s signs, was not 22 sufficiently explained by ALJ); Franzen v. Astrue, 555 F. Supp. 2d 720, 728 (W.D. Tex. 23 2008) (discussing ALJ’s opinion that plaintiff’s examination showed negative Tinel’s and

24 1 Phalen’s signs, but positive Tinel’s and Phalen’s signs would confirm a diagnosis of 2 carpal tunnel syndrome). As plaintiff has not alleged that he has carpal tunnel 3 syndrome, it is unclear why negative results on these tests would be “inconsistent with 4 the degree of limitation asserted.” AR 26.

5 The ALJ also found that “assertions regarding shoulder/arm limits, as well as 6 other limits,” were inconsistent with treatment and exam records showing normal gait 7 and station, unremarkable extremity movements, no focal tenderness, and no obvious 8 range of motion deficits. AR 28 (citing AR 916-20, 1015, 1018, 1021, 1024). This 9 analysis is identical to the ALJ’s analysis of Dr. Deem’s opinion and accordingly fails for 10 the same reasons. Compare AR 28 and AR 29. As discussed above, the ALJ’s findings 11 are both contradicted by the records cited and not representative of the record as a 12 whole. Accordingly, the ALJ erred by rejecting plaintiff’s testimony as inconsistent with 13 cherry-picked normal findings. 14 c. Daily Activities

15 Plaintiff was prescribed physical therapy in March 2022, but was hesitant, noting 16 “I’m active, I do not sit around all day. AR 544. The ALJ found this statement 17 inconsistent with plaintiff’s hearing testimony that he sits in his chair for the first two to 18 four hours of the day waiting for his pain to get under control, spends fifteen minutes per 19 day doing what he can, and plays an hour of video games. AR 27. 20 An ALJ may discount a claimant’s testimony based on daily activities that either 21 contradict their testimony or that meet the threshold for transferable work skills. Orn v. 22 Astrue, 495 F.3d 625, 639 (9th Cir. 2007). But “[o]nly if the level of activity were 23

24 1 inconsistent with claimant’s claimed limitations would these activities have any bearing 2 on claimant’s credibility.” Reddick, 157 F.3d at 722. 3 Plaintiff’s testimony is not inconsistent with the cited statement. Two to four hours 4 in the morning is not equivalent to “all day.” Plaintiff also testified that he tries to keep up

5 with household chores and does some minimal grocery shopping. AR 57. And in his 6 function reports, plaintiff described taking rest breaks between minor daily tasks. AR 7 280. Thus, while plaintiff cannot perform tasks continuously throughout the day, he does 8 not “sit around all day.” So there is no inconsistency between his testimony and the 9 statement to his provider. 10 d. Improvement with Treatment 11 The ALJ found plaintiff’s improvement with ACDF surgery, physical therapy, and 12 pain medications inconsistent with the degree of limitation alleged. AR 27-28. Evidence 13 of medical treatment successfully relieving symptoms can undermine a claim of 14 disability. Wellington v. Berryhill, 878 F.3d 867, 876 (9th Cir. 2017). Yet improvement

15 must be evaluated in the context of the “overall diagnostic picture.” Holohan, 246 F.3d 16 at 1205. As already discussed in relation to the medical opinion evidence, the ALJ’s 17 reliance on plaintiff’s improvement with neck surgery is misplaced. After surgery, 18 Plaintiff continued to complain of severe lower back pain despite treatment with multiple 19 types of pain medication including oxycodone, syrica, paclofen, buprenorphine patches, 20 and long-acting morphine; he tried gabapentin but it was not effective. See, e.g., AR 21 843-847, 924-28. The ALJ may not rely on cherry-picked instances of partial 22 improvement to reject plaintiff’s testimony. Ghanim, 763 F.3d at 1164. Accordingly, 23

24 1 improvement with treatment was not a clear and convincing reason to reject plaintiff’s 2 testimony. 3 In sum, the ALJ did not provide clear and convincing reasons to reject plaintiff’s 4 testimony.

5 3. Lay witness evidence 6 For applications filed on or after March 27, 2017, it remains unsettled whether an 7 ALJ is still required to consider lay witness evidence, but “[a]ssuming that an ALJ must 8 consider such evidence, an ALJ need only give germane reasons for discrediting the 9 testimony of lay witnesses.” Apple v. Bisignano, 2025 WL 1525314, at *3 (9th Cir. May 10 29, 2025) (cleaned up). The Court finds that if the ALJ was required to provide germane 11 reasons for rejecting the lay witness testimony, the ALJ failed to do so here. Plaintiff’s 12 partner, Patricia W., reported many of the same limitations expressed by plaintiff in his 13 hearing testimony and function reports. See AR 272-76, 314-18. The ALJ rejected 14 Patricia W.’s statements because they were inconsistent with the record as a whole,

15 including plaintiff’s improvement with medications and neck surgery. AR 29-30. As 16 discussed above, the ALJ erred in relying on cherry-picked instances of improvement 17 after plaintiff’s neck surgery to reject plaintiff’s testimony and the medical opinions. Such 18 reliance here is similarly erroneous. 20 For these reasons, the Court concludes the ALJ improperly determined plaintiff to 21 be not disabled. Therefore, the ALJ’s decision is reversed and remanded for further 22 administrative proceedings. On remand, the Commissioner shall conduct a de novo 23 hearing; allow plaintiff to present additional evidence; reevaluate the medical evidence

24 including Dr. Shadrach’s opinion, and Dr. Deem’s opinion, without discounting those 1 opinions for the erroneous reasons described in this order; consider plaintiff’s testimony 2 without discounting it based on the erroneous reasons described in this Order; consider 3 the lay witness testimony; and proceed with the sequential analysis as necessary. 4

5 Dated this 11th day of March, 2026. A 6

Theresa L. Fricke 7 United States Magistrate Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24