Katherine Dounce v. Commissioner of Social Security

• Court: District Court, E.D. California
• Decided: September 24, 2025
• Docket: 2:24-cv-02518
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KATHERINE DOUNCE, No. 2:24-cv-2518 AC 12 Plaintiff, 13 v. ORDER 14 COMMISSIONER OF SOCIAL SECURITY, 15 Defendant. 16

17 18 Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security 19 (“Commissioner”), denying her application for disability insurance benefits (“DIB”) under 20 Title II of the Social Security Act, 42 U.S.C. §§ 401-34, and for Supplemental Security Income 21 (“SSI”) under Title XVI of the Social Security Act (“the Act”), 42 U.S.C. §§ 1381-1383f.1 For 22 the reasons that follow, plaintiff’s motion for summary judgment will be GRANTED, and 23 defendant’s cross-motion for summary judgment DENIED. 24 ////

25 1 DIB is paid to disabled persons who have contributed to the Disability Insurance Program, and who suffer from a mental or physical disability. 42 U.S.C. § 423(a)(1); Bowen v. City of New 26 York, 476 U.S. 467, 470 (1986). SSI is paid to financially needy disabled persons. 42 U.S.C. § 1382(a); Washington State Dept. of Social and Health Services v. Guardianship Estate of 27 Keffeler, 537 U.S. 371, 375 (2003) (“Title XVI of the Act, § 1381 et seq., is the Supplemental Security Income (SSI) scheme of benefits for aged, blind, or disabled individuals, including 28 children, whose income and assets fall below specified levels . . .”). 1 I. PROCEDURAL BACKGROUND 2 Plaintiff applied for both DIB and SSI on September 24, 2021, alleging disability 3 beginning December 30, 2020. AR 74.2 The application was disapproved initially on December 4 8, 2021, and after reconsideration on February 7, 2022. Id. On August 3, 2023, ALJ Paul Barker 5 presided over the telephonic hearing on plaintiff’s challenge to the disapprovals. AR 156-209 6 (transcript). Plaintiff, who appeared with Klade Harmon as counsel, testified at the hearing. AR 7 161. William Cody, a Vocational Expert (“VE”), also testified. AR 201. 8 On October 13, 2023, the ALJ found plaintiff “not disabled” under sections 216(i) and 9 223(d) of Title II of the Act, 42 U.S.C. §§ 416(i), 423(d), and section 1614(a)(3)(A) of Title XVI 10 of the Act, 42 U.S.C. § 1382c(a)(3)(A). AR 74-92 (decision), 93-100 (exhibit list). On July 18, 11 2024, after receiving Exhibit 26B, a Request for Review dated November 17, 2023; Exhibit 28E, 12 a Representative Brief dated March 15, 2024; and Exhibit 29E, plaintiff’s undated letter 13 submitted with the Request for Review, the Appeals Council upheld the ALJ’s decision as the 14 Commissioner of Social Security’s final decision. AR 1-6 (decision and additional exhibit list). 15 Plaintiff filed this action on September 17, 2024. ECF No. 1; see 42 U.S.C. § 405(g). 16 The parties consented to the jurisdiction of the magistrate judge. ECF Nos. 4-6. The parties’ 17 cross-motions for summary judgment, based on the Administrative Record filed by the 18 Commissioner, have been briefed. ECF Nos. 11-12 (copies of plaintiff’s summary judgment 19 motion), 14 (defendant’s summary judgment motion). Plaintiff also filed two copies of her reply 20 brief in March 2025. ECF Nos. 15-16. 21 II. FACTUAL BACKGROUND 22 Plaintiff was born in 1990 and accordingly was, at age 30, a younger individual as of her 23 alleged onset date. AR 90; see 20 C.F.R. § 404.1563(c). Plaintiff finished three years of college 24 and can read and write simple messages in English. AR 496. She worked as an account 25 executive from June 2011 to November 2012, a sales development representative from January to 26 November 2013, an education activity coordinator from June 2015 to August 2016, an executive 27 assistant from August 2018 to March 2019, and an office services technician from March to June

28 2 Two copies of the AR are electronically filed, collectively as ECF No. 7 (AR 1 to AR 3153). 1 2020. AR 498. Reported medical conditions include lupus, narcolepsy with cataplexy, extreme 2 fatigue, fibromyalgia, muscle weakness, lack of energy, and an inability to walk much. AR 497. 3 III. LEGAL STANDARDS 4 The Commissioner’s decision that a claimant is not disabled will be upheld “if it is 5 supported by substantial evidence and if the Commissioner applied the correct legal standards.” 6 Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1011 (9th Cir. 2003). “‘The findings of the 7 Secretary as to any fact, if supported by substantial evidence, shall be conclusive . . ..’” Andrews 8 v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (quoting 42 U.S.C. § 405(g)). 9 Substantial evidence is “more than a mere scintilla,” but “may be less than a 10 preponderance.” Molina v. Astrue, 674 F.3d 1104, 1110-11 (9th Cir. 2012). “It means such 11 evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. 12 Perales, 402 U.S. 389, 401 (1971) (internal quotation marks omitted). “While inferences from the 13 record can constitute substantial evidence, only those ‘reasonably drawn from the record’ will 14 suffice.” Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006) (citation omitted). 15 Although this court cannot substitute its discretion for that of the Commissioner, the court 16 nonetheless must review the record as a whole, “weighing both the evidence that supports and the 17 evidence that detracts from the [Commissioner’s] conclusion.” Desrosiers v. Secretary of HHS, 18 846 F.2d 573, 576 (9th Cir. 1988); Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985) (“The 19 court must consider both evidence that supports and evidence that detracts from the ALJ’s 20 conclusion; it may not affirm simply by isolating a specific quantum of supporting evidence.”). 21 “The ALJ is responsible for determining credibility, resolving conflicts in medical 22 testimony, and resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th 23 Cir. 2001). “Where the evidence is susceptible to more than one rational interpretation, one of 24 which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 25 278 F.3d 947, 954 (9th Cir. 2002). However, the court may review only the reasons stated by the 26 ALJ in his decision “and may not affirm the ALJ on a ground upon which he did not rely.” Orn 27 v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007); Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 28 2003) (“It was error for the district court to affirm the ALJ’s credibility decision based on 1 evidence that the ALJ did not discuss”). 2 The court will not reverse the Commissioner’s decision if it is based on harmless error, 3 which exists only when it is “clear from the record that an ALJ’s error was ‘inconsequential to the 4 ultimate nondisability determination.’” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 5 2006) (quoting Stout v. Commissioner, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch v. 6 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 7 IV. RELEVANT LAW 8 DIB and SSI are available for every eligible individual who is “disabled.” 42 U.S.C. 9 §§ 423(a)(1)(E) (DIB), 1381a (SSI). Plaintiff is “disabled” if she is unable to “engage in any 10 substantial gainful activity by reason of any medically determinable physical or mental 11 impairment which can be expected to result in death or which has lasted or can be expected to last 12 for a continuous period of not less than 12 [twelve] months[.]” 42 U.S.C. §§ 423(d)(1)(A), 13 1382c(a)(3)(A); see also Bowen v. Yuckert, 482 U.S. 137, 140 (1987). 14 The Commissioner uses a five-step sequential evaluation process to determine whether an 15 applicant is disabled and entitled to benefits. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); 16 Barnhart v. Thomas, 540 U.S. 20, 24-25 (2003) (setting forth the “five-step sequential evaluation 17 process to determine disability” under Title II and Title XVI). The following summarizes the 18 sequential evaluation: 19 Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two. 20 20 C.F.R. §§ 404.1520(a)(4)(i), (b) and 416.920(a)(4)(i), (b). 21 Step two: Does the claimant have a “severe” impairment? If so, 22 proceed to step three. If not, the claimant is not disabled. 23 Id., §§ 404.1520(a)(4)(ii), (c) and 416.920(a)(4)(ii), (c). 24 Step three: Does the claimant's impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, 25 Subpt. P, App. 1? If so, the claimant is disabled. If not, proceed to step four. 26 Id., §§ 404.1520(a)(4)(iii), (d) and 416.920(a)(4)(iii), (d). 27 Step four: Does the claimant’s residual functional capacity make him 28 capable of performing his past work? If so, the claimant is not 1 disabled. If not, proceed to step five. 2 Id., §§ 404.1520(a)(4)(iv), (e), (f) and 416.920(a)(4)(iv), (e), (f). 3 Step five: Does the claimant have the residual functional capacity perform any other work? If so, the claimant is not disabled. If not, 4 the claimant is disabled. 5 Id., §§ 404.1520(a)(4)(v), (g) and 416.920(a)(4)(v), (g). 6 The claimant bears the burden of proof in the first four steps of the sequential evaluation 7 process. 20 C.F.R. §§ 404.1512(a) (“In general, you have to prove to us that you are blind or 8 disabled”), 416.912(a) (same); Bowen, 482 U.S. at 146 n.5. However, “[a]t the fifth step of the 9 sequential analysis, the burden shifts to the Commissioner to demonstrate that the claimant is not 10 disabled and can engage in work that exists in significant numbers in the national economy.” Hill 11 v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012); Bowen, 482 U.S. at 146 n. 5. 12 V. THE ALJ’s DECISION 13 The ALJ made the following findings:

14 1. The claimant meets the insured status requirements of the Social Security Act through March 31, 2026[…]. 15 2. The claimant has not engaged in substantial gainful activity since 16 December 30, 2020, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.). 17 3. The claimant has the following severe impairments: narcolepsy 18 with cataplexy; systemic lupus erythematosus; discoid lupus erythematosus; undifferentiated connective tissue disorder; chronic 19 pain syndrome; degenerative disc disease of the cervical spine with cervical radiculopathy; and borderline personality disorder (20 CFR 20 404.1520(c) and 416.920(c)).

21 4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the 22 listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 23 416.926).

24 5. After careful consideration of the entire record, the [ALJ found] that the claimant has the residual functional capacity to perform light 25 work as defined in 20 CFR 404.1567(b) and 416.967(b) except she can lift and carry, push and pull twenty pounds occasionally and ten 26 pounds frequently, and she can stand and walk for six hours of an eight-hour workday with standard breaks, and for thirty minutes at 27 one time, with the option to sit at the workstation and continue working for ten minutes after thirty minutes of standing or walking. 28 The claimant can sit for six hours of an eight-hour workday with 1 standard breaks, and she can occasionally stoop, balance, kneel, crawl, and crouch. The claimant can occasionally climb ramps and 2 stairs, but she can never climb ladders, ropes, or scaffolds. The claimant must never be exposed to unprotected heights or dangerous, 3 unprotected machinery, and she can understand, remember, and carry out simple tasks and make simple work-related decisions. The 4 claimant can have occasional work-related interactions with coworkers and supervisors, and she can have rare work-related 5 interaction with the general public (five percent or less of an eight- hour workday). The claimant can have occasional changes in the 6 work setting.

7 6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965). 8 7. The claimant was born on May 9, 1990, and was 30 years old, 9 which is defined as a younger individual age 18-49, on the alleged disability onset date (20 CFR 404.1563 and 416.963). 10 8. The claimant has at least a high school education (20 CFR 11 404.1564 and 416.964).

12 9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a 13 framework supports a finding that the claimant is “not disabled,” whether or not the claimant has transferable job skills (See SSR 82- 14 41 and 20 CFR Part 404, Subpart P, Appendix 2).

15 10. Considering the claimant’s age, education, work experience, and residual functional capacity, there are jobs that exist in significant 16 numbers in the national economy that the claimant can perform (20 CFR 404.1569, 404.1569a, 416.969, and 416.969a). 17 11. The claimant has not been under a disability, as defined in the 18 Social Security Act, from December 30, 2020, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)). 19 20 AR 76-91. 21 As noted, the ALJ concluded that plaintiff was “not disabled” during the disputed period 22 under Titles II and XVI of the Act. AR 92. 23 VI. ANALYSIS 24 A. The ALJ’s Discussion of Severe Impairments at Step Three Was Inadequate 25 1. Lupus and Connective Tissue Disease 26 Appendix 1 to Subpart P of the regulations (“Appendix 1”) defines systemic lupus 27 erythematosus (“SLE”) as a “chronic inflammatory disease” that affects any combination of 28 major organ or body systems. 20 C.F.R. Subpar. P, App. 1, § 14.00(D)(1)(a). The disease can, 1 but will not necessarily, include constitutional symptoms like “severe fatigue, fever, malaise, [or] 2 involuntary weight loss”. Id. 3 Appendix 1 defines “undifferentiated and mixed connective tissue disease” (collectively 4 “CTD”) to include any “syndrome[] with clinical and immunologic features of several 5 autoimmune disorders” that does not satisfy the criteria of a disorder otherwise specified in 6 Appendix 1. Id. at § 14.00(D)(5)(a). Whereas undifferentiated CTD is diagnosed when the 7 clinical and serologic findings are consistent with autoimmune diseases but do not meet the 8 criteria of any one disease, mixed CTD (“MCTD”) is diagnosed when these findings reflect an 9 overlap of two or more autoimmune diseases. Id. at § 14.00(D)(5)(b). 10 Listings 14.02 and 14.06 list two scenarios where a claimant with SLE or either form of 11 CTD is automatically disabled, in both of which the claimant manifests two of the four specified 12 constitutional symptoms. Id. at §§ 14.02(A)(2), (B), 14.06(A)(2), (B). Under Paragraph A, a 13 claimant must also demonstrate that the SLE or CTD affects two or more organ or body systems, 14 one of which to a “moderate level of severity”. Id. at §§ 14.02(A)(1), 14.06(A)(1). Paragraph B 15 instead requires repeat manifestations of the condition and “marked” limitation in performing 16 activities of daily living, maintaining social functioning, or “completing tasks in a timely manner 17 due to deficiencies in concentration, persistence, or pace.” Id. at §§ 14.02(B), 14.06(B). 18 After reciting each Paragraph’s requirements, the ALJ concluded that plaintiff’s condition 19 did not meet the Appendix 1 requirements for either Listing. AR 78. As to the broad areas of 20 functioning, the ALJ found a moderate limitation in interacting with others and in adapting or 21 managing oneself, and a mild limitation in understanding, remembering or applying information 22 and in concentrating, persisting, or maintaining pace. AR 79. 23 2. Governing Legal Principles 24 At step three of the sequential evaluation, a finding of disability is compelled where the 25 claimant’s impairment or combination of impairments meets or equals an impairment listed in 26 Appendix 1. 20 C.F.R. §§ 404.1520(a)(4)(iii), (d). Each Listing sets forth the specific 27 “symptoms, signs, and laboratory findings” which must be established for a claimant’s 28 impairment to meet the Listing. Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999). The 1 plaintiff bears the burden of proving that she meets each criterion in the listing for that 2 impairment. Burch, 400 F.3d at 683. The burden for this showing is high because the listings in 3 Appendix 1 were “designed to operate as a presumption of disability that makes further inquiry 4 unnecessary.” Kennedy v. Colvin, 738 F.3d 1172, 1176 (9th Cir. 2013) (quoting Sullivan v. 5 Zebley, 493 U.S. 521, 532 (1990)). The ALJ’s findings, however, “must evaluate the relevant 6 evidence before concluding that a claimant’s impairments do not meet or equal a listed 7 impairment.” Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001). 8 3. The ALJ Did Not Adequately Discuss Findings as to Paragraph A 9 Plaintiff argues that as to Paragraph A of each Listing, her conditions affect her skin and 10 her joints, the latter of which to at least a moderate level of severity. ECF No. 11 at 3. She 11 further asserts that she has experienced malaise and fatigue. Id. Her reply brief identifies visits to 12 different physicians in 2021 based on nonspecific skin eruptions, joint pain and stiffness, and 13 fatigue. ECF No. 15 at 8-9 (citing AR 847-53). 14 Plaintiff’s belated citation to supporting evidence reflects a deficiency in the decision 15 itself. Although the ALJ articulates his reasoning as to plaintiff’s performance in broad areas of 16 mental functioning (AR 79), he does not provide any analysis as to Paragraph A requirements. 17 See AR 78. This includes manifestation of constitutional symptoms, which is required under both 18 Paragraphs A and B. See AR 78; 20 C.F.R. Subpar. P, App. 1, §§ 14.02(A)(2), (B), 14.06(A)(2), 19 (B). The ALJ therefore did not adequately discuss evidence that would be relevant to the analysis 20 of plaintiff’s condition based on Appendix I. See Lewis, 236 F.3d at 512. 21 Defendant attempts to address this by citing the RFC analysis, where the ALJ discusses 22 various medical examinations lacking any signs of skin discoloration, pain, or tenderness. ECF 23 No. 14 at 5 (citing AR 83-86). Defendant argues that under Kaufmann v. Kijakazi, a court must 24 look “to all the pages of the ALJ’s decision” when reviewing whether the ALJ met its evidentiary 25 burden. ECF No. 14 at 5 (quoting 32 F.4th 843, 851 (9th Cir. 2022) (emphasis original)). 26 Kaufman reviewed a district court’s granting of a Rule 59(e) motion after realizing it had taken 27 one page about the plaintiff’s subjective testimony out of context. 32 F.4th at 851. This does not 28 imply that a court must credit the ALJ’s discussion of evidence anywhere in the decision 1 whenever applicable to an earlier step. Such a rule would contravene the established structure of 2 an ALJ’s analysis, which involves five steps that ALJs “follow in a set order.” 20 C.F.R. § 3 416.920(a)(4). They must proceed to the next step if and only if they cannot determine that the 4 claimant is or is not disabled at the current step. Id. An ALJ cannot rely on analysis occurring 5 after step three to justify his decision to not find plaintiff disabled at that step. 6 Finding otherwise would also undermine the distinction between the analysis occurring 7 before and after step three. The ALJ admits that his analysis of mental limitations “at steps 2 and 8 3 of the sequential evaluation process” is not as detailed as “[t]he mental residual functional 9 capacity assessment used at steps 4 and 5”. AR 80. This reflects the general rule that because an 10 RFC includes limitations from severe and nonsevere impairments alike, pre-RFC analysis “is not 11 meant to identify the impairments that should be taken into account[.]” Buck v. Berryhill, 869 12 F.3d 1040, 1048-49 (9th Cir. 2017). The review of medical evidence during the RFC analysis is 13 subject to a different standard than was applicable in step three. Nor can the court assume the 14 ALJ intended for such analysis to apply retroactively to begin with. See Molina, 674 F.3d at 15 1121 (holding that although the court cannot uphold a decision based on reasons the ALJ himself 16 did not articulate, a decision written “with ‘less than ideal clarity’” should be upheld “if the 17 agency’s path may reasonably be discerned.”) (internal citations omitted). 18 The ALJ failed to articulate why plaintiff’s condition did not meet the requirements of 19 Paragraph A of the Appendix I listing for either SLE or CTD. 20 4. The Failure to Adequately Discuss Paragraph A is Not Harmless 21 An error is harmful when it has some consequence on the ultimate non-disability 22 determination. Stout, 454 F.3d at 1055. The Ninth Circuit has clarified that the “relevant 23 inquiry…is not whether the ALJ would have made a different decision absent any error…it is 24 whether the ALJ’s decision remains legally valid, despite such error.” Carmickle v. Comm’r of 25 Soc. Sec. Admin, 533 F.3d 1155, 1162 (9th Cir. 2008). For example, multiple reasons for a 26 particular conclusion can render an error in one harmless because the others provide “a basis for 27 the court to review the ALJ’s decision[.]” Id. at 1163; see also Lambert v. Saul, 980 F.3d 1266, 28 1278 (9th Cir. 2020) (refusing to find an error harmless when “the ALJ did not provide enough 1 ‘reasoning in order for us to meaningfully determine whether the ALJ's conclusions were 2 supported by substantial evidence[.]’”) (internal citations omitted). 3 At step three, the ALJ failed to sufficiently analyze whether plaintiff’s SLE or CTD met 4 the Paragraph A criteria for finding her automatically disabled. This error was harmful. Upon 5 remand, the ALJ must analyze the severity of the effect of these conditions on any disputed 6 organs or body systems, including plaintiff’s skin and joints, as well as whether she experienced 7 any of the constitutional symptoms. 8 B. The ALJ Did Not Err in Discounting Plaintiff’s Allegations of Pain and Dysfunction 9 1. Plaintiff’s Subjective Testimony 10 Plaintiff earned a bachelor’s degree in May 2011. AR 163. Her latest job was at GEO 11 Group as a secretary to the warden of prisons. AR 164. She testified that she was there for only 12 two weeks in December 2020 before developing what would later be identified as lupus 13 symptoms. AR 163. GEO Group kept her on the payroll through paid time off until asking her to 14 resign in early 2022. AR 163. Her previous job as a DNA coordinator and office services 15 technician for the Kern County Department of Child Support Services from March to June 2020, 16 was a largely sedentary position. AR 164-66. She left that job when the pandemic began because 17 she was already immunocompromised from a variety of problems. AR 166. 18 The ALJ noted that plaintiff had rarely kept a job for over a year since 2011. AR 181. 19 Plaintiff identified no overarching reason for her departures, but some were because she needed 20 10 hours of sleep per night due to narcolepsy and could not manage a long commute. AR 181. 21 Plaintiff’s physicians include Dr. Jasaleen Tiwana as her primary care physician, Dr. 22 Myers as her rheumatologist, Dr. Natalie as her neurologist, Dr. Paramour as her pain doctor, Dr. 23 Sandau as her sleep doctor and pulmonologist, an unidentified psychiatrist, and an unidentified 24 cardiologist. AR 189-90. Plaintiff does not have a therapist because she purportedly needs a 25 specialist in PTSD treatment, which is out-of-network for her insurance. AR 190. Said PTSD 26 stemmed from a February 2022 visit to the Mary Kay Shell Crisis Center to get her medication, 27 where she was held based on a false suspicion that she would kill herself. AR 191. 28 Plaintiff testified that her lupus symptoms had worsened in the two years before the 1 hearing, even more so in the final month. AR 182. Muscle pain, joint pain, stiffness, and fatigue 2 would keep her from getting out of bed or off the couch, even to shower or wash her hair for days 3 at a time. AR 182. She also has low fever, hair loss, sores in the mouth and nose, facial rashes, 4 headache, brain fog, memory issues, and night sweats. AR 182. Until she hires a new caregiver, 5 which she has been without for a month and a half, she can barely do what she must to survive 6 and is otherwise living in filth. AR 182-83, 195. She spends 90% of the day on her back, and 7 having the energy to wash all her dishes counted as a “really good day”. AR 196. She had four 8 or five of these days in July 2023, which would still constitute bad days for anyone else. AR 199. 9 Plaintiff therefore began taking Benlysta injections, a biologic injection that should yield 10 improvement after six months of use. AR 183. Because plaintiff took them for seven months 11 without improvement, aside from possibly from less joint pain, the doctor added a five-milligram 12 Prednisone steroid subscription. AR 183-84. The steroids somewhat help but are at too low a 13 dosage for her condition, yet overuse could result in skeletal damage. AR 184. 14 The ALJ noted that although Dr. Meyers diagnosed plaintiff with lupus and MCTD and 15 treating her accordingly, other doctors’ opinions vary and some of the blood work does not reflect 16 usual signs for lupus. AR 184. Plaintiff replied she has no confidence in the four rheumatologists 17 in her hometown of Bakersfield, California, all “one-star doctors.” AR 185. The ALJ asserted 18 that even Dr. Meyers’ own notes seemed inconclusive, alternating between referring to plaintiff’s 19 condition as lupus and as MCTD while trying to reconcile the negative findings. AR 185-86. 20 Plaintiff replied that Dr. Meyers confirmed she only has lupus during their last conversation, three 21 months before the hearing, and another appointment was scheduled for a week after. AR 185-86. 22 The ALJ then noted that in general, the latest medical records did not reflect the 23 symptoms that plaintiff alleged in her testimony. AR 187-88. When the ALJ noted that Dr. 24 Tiwana had noted no fatigue on July 26, 2023, plaintiff argued that must be in error because 25 plaintiff did report fatigue. AR 187-88. 26 Plaintiff uses a walker to move around. AR 188. Although she prefers carts when in a 27 store because they are taller, she sometimes needs a walker just to get from the parking lot to 28 inside the store. AR 188. Similarly, whether plaintiff uses her walker when she goes to a 1 doctor’s appointment depends on whether she has the energy to get from her car to the waiting 2 room chairs. AR 189. Plaintiff testified that she can drive a car normally but struggles to get in 3 and out of one, usually holding the door to stabilize herself. AR 163. Plaintiff has bad days and 4 good days, and on her best days she can walk the whole time. AR 189. 5 Aside from lupus and PTSD, plaintiff has Crohn’s Disease, fibromyalgia, and narcolepsy 6 with cataplexy. AR 192. The cataplexy is effectively paralysis when sleeping, but plaintiff can 7 control this aspect with medicine. AR 192. 8 The ALJ initially could not determine whether the medical record included any doctor’s 9 confirmation that she had Crohn’s Disease. AR 193. Plaintiff’s counsel later confirmed that Dr. 10 Tiwana and a gastroenterologist had diagnosed it after a recent CT scan of plaintiff’s abdomen. 11 AR 193, 195. This Crohn’s disease “flares” as stomach pain, bloating, or diarrhea when plaintiff 12 is either under a lot of stress or experiencing symptoms of her other conditions. AR 196-97. 13 The Seroquel and Neopax that plaintiff takes for her mental conditions has caused weight 14 gain, with her psychiatrist categorically disliking Seroquel. AR 193-94. Without these 15 medications, plaintiff would be crying in her closet all day, as opposed to having occasional 16 flashbacks and nightmares. AR 195. Aside from brain fog, her trauma from interacting with 17 people prevents her from making new connections and has delayed her finding a new caretaker. 18 AR 198. Plaintiff also has migraine headaches which begin at unpredictable times but last all 19 day, though Topomax helps manage them to a limited degree. AR 197-98. The Tramadol she 20 takes when her pain is excessive also triggers her migraines. AR 197-98. When rating her pain 21 on a 1-10 scale, scores in an average week consist of 2 on one day, 5 on three, and 7-8 on the 22 other three. AR 200. 23 2. Physical Limitations Holding 24 The ALJ found that the evidence did not support plaintiff’s subjective testimony as to the 25 intensity, persistence, and limiting effects of symptoms. AR 82. Plaintiff can attend to her own 26 hygiene, prepare her own simple meals, use a computer, handle a checkbook and savings account, 27 drives, and socialize via telephone and digital communication. AR 82. The ALJ cited plaintiff 28 driving to Coachella in April 2023 with her friend as an example. AR 82 (citing AR 3078). 1 The ALJ also held that the medical record, if anything, reflected an improvement in 2 plaintiff’s condition in recent years. AR 82. As to her narcolepsy with cataplexy, although 3 plaintiff was treated for them years, her symptoms were well-controlled via Xyrem and Sunosi 4 without significant side effects through March 2021. AR 82-83. Only when plaintiff could not 5 have a Sunosi refill approved by insurance from April 2021 through June 2022 did she begin to 6 experience daytime fatigue and tiredness. AR 83. Even then, pulmonary performance was 7 normal between 2021 and 2023. AR 83. Plaintiff did not complain about fatigue through 2023, 8 except in May 2023 when she admitted to missing a Xyrem dose and feeling tired the next day. 9 AR 83 (citing AR 2966-67). Plaintiff’s Epworth sleepiness scale score was an eight out of 24, 10 with a score higher than 10 indicative of sleepiness. AR 83 (citing AR 2966). 11 The ALJ then addressed impairments purportedly linked to lupus, CTD, chronic pain 12 syndrome, paresthesia of the skin, and myalgia. AR 83. March 2021 treatment notes did not 13 show any musculoskeletal abnormalities. AR 83 (citing AR 1016). Examinations did not reveal 14 any physiological signs of pain until July 2021, where she had mild swelling in bilateral fingers. 15 AR 83 (citing AR 840, 844). She complained of joint pain later that month despite lack of 16 swelling in the relevant joints. AR 83 (citing AR 840, 844). 17 Even when plaintiff was diagnosed with myalgia and paresthesia in September 2021, she 18 had normal gait and full strength in all extremities. AR 83 (citing AR 2904, 2906). When an 19 October 2021 nerve conduction study showed abnormalities in both bilateral upper extremities 20 and the C5-C6 vertebrae, there were still no nerve entrapment neuropathies. AR 83-84 (citing AR 21 806). Treatment notes did not reflect any musculoskeletal irregularities in October or November 22 2021, but mild knee swelling in December. AR 84. 23 Brain imaging in January 2022 did not reveal any acute abnormalities, and an 24 endocrinologist told plaintiff in February 2022 that she did not believe plaintiff had lupus. AR 84 25 (citing AR 1441). Antinuclear Antibody (“ANA”) tests were positive but at low titers for lupus. 26 AR 84, 1489. Dr. Samantha Madziarski reported plaintiff was fixated on getting a lupus 27 diagnosis and had been consulting various doctors to find one who would give it. AR 84, 1488. 28 A March 2022 MRI revealed minimal degenerative changes at the C5-6 vertebrae, but tests did 1 not reveal any other irregularities that could explain plaintiff’s complaints of lower extremity pain 2 and weakness. AR 84. She did begin physical therapy in March 2022 and reported no pain to 3 Sukhpreet Sidhu twice in the following two months. AR 84, 1495, 2535, 2539. During a March 4 1, 2022 visit, however, Dr. Tiwana did note that because of plaintiff’s lupus and resulting joint 5 aches and pain, she might benefit from using a rollator walker. AR 84, 957. 6 In April 2022, plaintiff told Dr. Supneet Sandhu that the Imuran had reduced her joint 7 pain, stiffness, and joint swelling. AR 84, 1772, 2932. Later that month, Dr. Bao Hunyh noted 8 that although plaintiff used a roller walker, she has a normal range of motion and no tenderness in 9 any joint. AR 85, 1892. Plaintiff underwent physical therapy from June to October 2022, which 10 she did admit improved her pain. AR 85, 2504, 2506-07. Plaintiff also asserted in August 2022 11 that her pain was controlled with current medications and doing well. AR 85, 3024. 12 During a July 2022 visit, Dr. Sukhpreet noted that a rheumatologist had told plaintiff she 13 did not have enough markers for an SLE diagnosis and instead had undifferentiated CTD. AR 85, 14 2578, 2580. Plaintiff told Dr. Sukhpreet she still believes she has SLE because of a butterfly rash 15 that appears on her face when she’s out in the sun. AR 85, 2578. Although plaintiff has since 16 been treated for SLE, rheumatologist Dr. Myers has conducted all appointments via telemedicine 17 and never physically examined her. AR 85 (citing AR 2687-813). The ALJ also noted 18 “uncertainty” in the SLE diagnosis insofar as plaintiff had inconsistent objective markers, had 19 low positive test results, and often did not respond to SLE treatments. AR 85. 20 The ALJ then held that although palpation of plaintiff’s cervical facet revealed tenderness 21 from the C3 to C7 vertebrae in November 2022, she did not have paresthesia or swelling the next 22 two months. AR 85, 1522, 1555, 2610-11. From December 2022 through July 2023, plaintiff 23 reported some knee pain but demonstrated no signs of fatigue, normal gait, no joint swelling or 24 musculoskeletal tenderness, low levels of positive results for autoimmune markers consistent with 25 SLE, and improvements in plaintiff’s paresthesia and unrelated symptoms with medication. AR 26 85-86, 2601, 2602, 2610, 2669-71, 2938, 2940, 2989, 2891-92, 3074, 3089-90, 3102. 27 Overall, the ALJ concluded that while the medical record did reflect impairments that 28 could result in the alleged symptoms, the longitudinal record showed those symptoms were not as 1 severe as plaintiff alleged. AR 86. Aside from mild-to-moderate test results, medication and 2 physical therapy appeared to successfully control plaintiff’s pain and other symptoms. AR 86. 3 3. Mental Limitations Holding 4 The ALJ acknowledged that plaintiff has been diagnosed with borderline personality 5 disorder. AR 86. In February 2022, plaintiff exhibited a euthymic mood and affect, a logical and 6 linear thought process, and intact memory. AR 86-87 (citing AR 2448). The only abnormal 7 observation during an April 2022 visit was a panicky mood. AR 87 (citing AR 2570). This 8 improved by the following month and remained normal through January 2023. AR 87 (citing AR 9 1431-32, 1435, 2552, 2555, 2558). She even reported in October 2022 that she had started online 10 dating and it had been going well, notwithstanding one person ghosting her. AR 87, 2555. 11 Normal mental status findings, fair judgment and insight, and a lack of suicidal or homicidal 12 ideation or hallucinations persisted through June 2023. AR 87-88 (citing AR 2544-45, 2549-50, 13 2553, 2556, 2559-60, 2902). 14 The ALJ noted that in July 2023, plaintiff asserted that she did not believe her doctors 15 knew as much as she did about the effects and mechanisms for her SLE medication. AR 87, 16 3074. The report tied her argumentative nature as to medications and their half-life to her 17 borderline personality symptoms. AR 87, 3074. She insisted that she wanted to continue taking 18 Seroquel, despite the lack of clinical indication that she should and admonitions that it could lead 19 to heart problems given her other conditions. AR 87, 3074. The ALJ did acknowledge that 20 although plaintiff exhibited some signs of normal mental status, she was attention-seeking, had an 21 incongruent mood and affect, and exhibited poor judgment and insight. AR 87, 3074. 22 Notwithstanding the July 2023 visit records and plaintiff’s borderline personality disorder, 23 the ALJ summarized her mental status as “generally normal.” AR 87. 24 4. Governing Legal Principles 25 In the Ninth Circuit, evaluating a claimant’s testimony as to pain is a two-step process. 26 First, the claimant must provide “objective medical evidence of an underlying impairment ‘which 27 could reasonably be expected to produce the pain or other symptoms alleged.’” Garrison v. 28 Colvin, 759 F.3d 995, 1014 (9th Cir. 2014) (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1 1035–36 (9th Cir. 2007) (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir.1991))). The 2 claimant need not, however, provide evidence that the impairment would result in the same 3 degree of pain or other symptom as what the claimant alleges. Garrison, 759 F.3d at 1014. 4 Second, if the claimant succeeds in providing objective evidence of the impairment and 5 “there is no evidence of malingering,” the ALJ cannot reject the claimant’s testimony about the 6 severity of such symptoms unless there is “‘specific, clear and convincing reasons for doing so.’” 7 Id. at 1014-15 (quoting Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)). The clear and 8 convincing standard is “not an easy requirement to meet” and is in fact the most demanding 9 standard in such cases. Garrison, 759 F.3d at 1015. 10 While an ALJ’s credibility finding must be properly supported and sufficiently specific to 11 ensure a reviewing court the ALJ did not “arbitrarily discredit” a claimant’s subjective 12 statements, an ALJ is also not “required to believe every allegation” of disability. Fair v. Bowen, 13 885 F.2d 597, 603 (9th Cir. 1989); Smartt v. Kijakazi, 53 F.4th 489, 499 (9th Cir. 2022).3 14 Although an ALJ cannot reject complaints of pain solely due to “a lack of medical evidence 15 to fully corroborate the alleged severity of pain[,]” it need not adopt such testimony when it 16 contradicts “objective medical evidence in the record[.]” Id. at 498-99 (quoting Burch, 400 F.3d 17 at 680). Evaluating the “intensity and persistence” of the symptoms of an impairment will 18 involve considering all available evidence, including “medical history, the medical signs and 19 laboratory findings, and statements about how…symptoms affect” the plaintiff. 20 C.F.R. § 20 404.1529(a). Relevant factors include: 21 (ii) The location, duration, frequency, and intensity of your pain or other symptoms; […] 22 (iv) The type, dosage, effectiveness, and side effects of any 23 medication you take or have taken to alleviate your pain or other symptoms; 24

25 3 In this regard, so long as substantial evidence supports an ALJ’s credibility finding, a court 26 “may not engage in second-guessing.” Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002). Defendant argues that the clear and convincing standard in Garrison conflicts with this 27 “substantial evidence” standard, as articulated in 42 U.S.C. § 405(g). ECF No. 14 at 10, n.11; 759 F.3d at 1015. Defendant conflates the evidentiary burden the ALJ must meet in its decision 28 with the standard of review that courts must apply when analyzing such decisions. 1 (v) Treatment, other than medication, you receive or have received for relief of your pain or other symptoms; [and] 2 (vi) Any measures you use or have used to relieve your pain or other 3 symptoms (e.g., lying flat on your back, standing for 15 to 20 minutes every hour, sleeping on a board, etc.); 4 5 20 C.F.R. § 404.1529(c). As to the fourth and fifth factors, the Ninth Circuit has held that 6 an ALJ can consider “unexplained, or inadequately explained, failure to seek treatment or follow 7 a prescribed course of treatment.” Bunnell, 947 F.2d at 346 (quoting Fair, 885 F.2d at 603); see 8 also Plummer v. Berryhill, Case No. 2:16-cv-00753-AC, 2017 U.S. Dist. LEXIS 108184 at *16- 9 17, 2017 WL 2972461 at *6 (E.D. Cal. July 12, 2017) (agreeing with the ALJ that “failure to 10 pursue recommended treatment discredited…[plaintiff’s] subjective testimony.”). 11 5. Plaintiff’s Challenge to 2022 Opinion That Plaintiff Did Not Have SLE 12 Plaintiff challenges the ALJ’s reliance on a mid-2022 opinion from an unspecified 13 rheumatologist, which found that plaintiff did not have enough markers to for an SLE diagnosis 14 and instead had undifferentiated CTD. AR 85, 2578. Plaintiff argues this is not a contradiction 15 because SLE is a part of mixed CTD. ECF No. 11 at 4. As defendant notes, because the ALJ 16 found that plaintiff’s conditions could result in the alleged symptoms, the question of what 17 precise condition she has is no longer relevant. ECF No. 14 at 12; AR 86. In either case, the 18 question is to what degree these impairments are disabling, and whether the medical records 19 support plaintiff’s testimony to that effect. Smartt, 53 F.4th at 498-99; Matthews v. Shalala, 10 20 F.3d 678, 680 (9th Cir. 1993). 21 Plaintiff further argues that the nurse practitioner who told her she did not have SLE had 22 given her incorrect information and was subsequently fired, after which Dr. Huynh was the only 23 practitioner plaintiff saw at that facility. Id. Plaintiff cites no evidence in the record to 24 demonstrate that this particular nurse is an unreliable source, or that any practitioner she worked 25 with was fired for misinformation. In any case, the general reputation of a particular nurse is not 26 one of the enumerated factors an ALJ should use to evaluate a source’s credibility. See infra 27 VI.C; 20 C.F.R. § 404.1520c(c). More important is how consistent any one record is with the 28 longitudinal history, something the ALJ directly noted when summarizing the evidence. AR 86; 1 20 C.F.R. § 404.1520c(b)(2), (c)(2). 2 6. Dr. Myers’ In-Person Examination of Plaintiff Does Not Affect the RFC 3 The ALJ discredited Dr. Myers’ finding that plaintiff did have SLE because all of his 4 consultations were telephonic without any physical examination. AR 85. Plaintiff argues that Dr. 5 Myers did see her in-person in both January and November 2023. ECF No. 11 at 4. As 6 defendant notes in its opposition, the ALJ issued its decision one month before the second of 7 these visits. ECF No. 14 at 12, n.12; AR 92. Records of a post-decision visit were not available 8 to the ALJ and are therefore not relevant to whether he erred in reviewing the medical record. 9 Whether Dr. Myers’ appointments were in-person or via telemedicine is irrelevant if his 10 notes from any in-person appointment do not disturb the ALJ’s findings as to plaintiff’s condition 11 and the severity thereof. The ALJ’s opinion generally emphasizes that aside from only certain 12 doctors acknowledging a lupus diagnosis, test results suggested the severity of such lupus was 13 minimal. See AR 84-85. Although Dr. Myers did treat plaintiff for lupus, the ALJ found the 14 diagnosis “uncertain” based on “inconsistent objective markers, low positive test results, and the 15 claimant’s failure so far to respond to several different lupus medication treatments.” AR 85 16 (citing AR 2687-813). 17 Dr. Myers’ notes on plaintiff’s January 12, 2023 visit reinforce rather than refute this 18 assertion. He lists lupus as the Reason for Visit and acknowledges the SLE diagnosis. AR 2454. 19 He then noted, however, that multiple lab results were negative and “[c]omplements have been 20 normal on multiple checks.” AR 2454. He also noted plaintiff’s assertion that any medications 21 used thus far to treat lupus either did not address her current symptoms, had serious side effects, 22 or both. AR 2454. 23 Dr. Myers’ treatment notes also support the ALJ’s general assertion that plaintiff has since 24 learned to manage her symptoms and pain through medication and physical therapy. See AR 86. 25 After reviewing plaintiff’s treatment history, he prescribed Benlysta while admonishing plaintiff 26 of it side effects. AR 2454. After some itchiness from the first dose, plaintiff began tolerating the 27 Benlysta well and reported some improvement in her symptoms. See AR 2721-22. 28 Although Dr. Myers did acknowledge plaintiff had lupus during one in-person visit in 1 January 2023, his treatment notes during and since do not suggest an error in the ALJ’s broader 2 analysis of plaintiff’s condition. 3 7. The ALJ Did Not Impermissibly Understate Plaintiff’s Pain 4 To the extent that the ALJ disbelieves plaintiff’s pain allegations based on the medical 5 record, plaintiff argues that pain ratings recorded at doctors’ visits do not accurately reflect her 6 day-to-day pain. ECF No. 11 at 5. Specifically, she argues that her pain varies by day and by 7 what body part she is moving at that precise moment. Id. Doctors usually ask her to rate her pain 8 when it is at its lowest because she is sitting down. Id. 9 Defendant argues that the ALJ was permitted to interpret the medical record as refuting 10 any claims of disabling symptoms to the extent that they were inconsistent. ECF No. 14 at 10 11 (citing Smartt, 53 F.4th at 499). Specifically, Defendant cites medical records showing that 12 plaintiff reported her pain as zero, three, or five out of then. ECF No. 14 at 11 (citing AR 84, 85, 13 2535, 2539, 2504, 2506, 2508). Plaintiff disputes the accuracy of any medical records asserting 14 that she ever rated her pain as 0 on a 1-10 scale. ECF No. 15 at 7; AR 2535, 2539. She asserts 15 without evidence that doctors at those appointments either did not ask her to rate her pain or 16 improperly recorded her response. ECF No. 15 at 7. 17 With or without the 0 scores, whether the evidence is actually inconsistent with her 18 allegations of pain is unclear. Plaintiff testified that her pain is a 2 on one day per week, 5 on 19 three, and 7-8 on the other three. AR 200. As defendant notes, some records show that plaintiff 20 reported pain as only a 5 or less. AR 2504, 2506, 2508. In others, however, plaintiff reported 6-8 21 pain without medication, only dropping to 2 with such medication. AR 1525, 1529, 2998, 3010. 22 In one instance, plaintiff’s pain started at 10 and reduced to 6 with medication. AR 3132. 23 However, the ALJ did not directly discredit plaintiff’s pain allegations. Rather, he found 24 that the “physical examination findings” in general were “far less severe” than alleged, not pain 25 itself. AR 86. His only comment as to pain was that treatment notes reflected effective symptom 26 and pain control through medication and physical therapy. AR 86. The question becomes 27 whether the ALJ erred in this conclusion. 28 //// 1 8. The ALJ Did Not Impermissibly Overstate Plaintiff’s Response to Treatment 2 Plaintiff argues that by finding she can successfully control her pain and other symptoms 3 through medication and physical therapy, the ALJ understated the negative effects of such 4 treatment. ECF No. 11 at 5; AR 86. For example, the opioid pain reliever Tramadol makes her 5 sleepy and leaves her unable to drive, meaning she must organize her schedule around when her 6 pain is so bad that she is forced to take it. ECF No. 11 at 5. A potentially lethal interaction 7 between her Tramadol and her sleep medication Xywav prevents her from taking them within six 8 hours of each other. ECF No. 15 at 7. She therefore must choose between coping with the pain 9 and experiencing sleep attacks, cataplexy, and extreme drowsiness. Id. To the extent that the 10 ALJ implied plaintiff should continue physical therapy, plaintiff cites the VE’s testimony that a 11 claimant who needs two days’ absence from work per month to attend medical appointments 12 would be precluded from any sustained employment. ECF No. 11 at 5; AR 204-05. 13 As defendant argues, plaintiff improperly presupposes that she cannot schedule physical 14 therapy outside of her work hours. ECF No. 14 at 13. The record provides no basis for this 15 assumption. As to Tramadol, defendant notes multiple instances where plaintiff denied side 16 effects from her medication regimen in general. Id.; AR 1525-26, 1529-30, 2998-99, 3010-11, 17 3132. During one such visit in August 2022, plaintiff both “[d]enie[d] any other concerns” and 18 reported that while the medication does not cause the pain to go completely away, it does reduce 19 the pain to the point that it is no longer debilitating. AR 85, 3022, 3024. If plaintiff exhibited 20 side effects from pain relievers before or after the examinations, her failure to report any to her 21 doctors makes her solely responsible for their absence from the record. 22 The ALJ further noted that resurgences in plaintiff’s symptoms, like daytime fatigue in 23 April 2021 and tiredness in May 2023, were sometimes caused by plaintiff’s inability to either 24 obtain medication or remember to take it. AR 83 (citing, e.g., AR 918, 922, 926, 2966). The 25 Ninth Circuit permits ALJs to consider “unexplained, or inadequately explained, failure 26 to…follow a prescribed course of treatment.” Bunnell, 947 F.2d at 346 (citations omitted). 27 These notes also contradict plaintiff’s assertion that she deliberately chooses not to take some 28 medications because of side effects or lethal interactions with others. ECF No. 15 at 7. 1 Plaintiff adds in reply that steroids can also make her feel better, but will destroy her 2 bones and shorten her lifespan in the process. ECF No. 15 at 7. Plaintiff did testify to this side 3 effect of her Prednisone steroid subscription. AR 183-84. An ALJ, however, need only credit 4 plaintiff’s testimony as to subjective pain she currently feels, not the possible effects in the future. 5 See Garrison, 759 F.3d at 1014-15. No authority suggests that the ALJ must acknowledge, 6 without supporting medical opinion, possible future side-effects of treatment or a plaintiff’s sua 7 sponte decision to weigh those against the current efficacy of such medication. Nor must the 8 current treatment regimen be a “magic cure” without any side effects. See ECF No. 15 at 7. 9 9. Plaintiff’s Argument as to the ALJ’s Analysis of Mental Symptoms is Inadequate 10 As defendant notes, plaintiff’s objections to the ALJ’s review of her mental status mostly 11 reiterate purported symptoms from her testimony, like brain fog and memory issues. ECF Nos. 12 11 at 5-6, 14 at 13; AR 182. She asserts that this has led to forgetting why she has begun a phone 13 call, getting in the car only to forget where she wants to go, limiting herself to microwavable 14 meals, taking forever to do what used to be easy, showering so infrequently that she often smells, 15 and spending the rest of her day after the hearing lying down to get energy back. ECF No. 11 at 16 5-7. She can do more on her best days but still asks for supervision to avoid dangerous mistakes. 17 Id. at 6. 18 Defendant responds that the record does not reflect some of these symptoms and outright 19 contradicts others. ECF No. 14 at 13-14. For example, the record says she emails almost every 20 day, texts daily, and appeared clean at every appointment she attended. Id. She also managed to 21 drive her friend to Coachella. Id. at 13 (citing AR 3078). Plaintiff responds that she only 22 “emails” insofar as she opens her emails and texts daily, reading any she received because she is 23 on mailing lists. ECF No. 15 at 4. She further argues that driving her friend to Coachella was a 24 singular event where she drove her friend, spent most of the trip recovering from the pain from 25 such minimal driving, and was told that she ruined the trip for her friend by not hiding her pain 26 more. ECF No. 15 at 3. As for the medical appointments, plaintiff asserts she just plans her 27 showers around them by resting extensively the days prior. Id. at 4. 28 Because “[c]ycles of improvement and debilitating symptoms are a common occurrence” 1 for a mental disability, the ALJ cannot reject a plaintiff’s testimony merely due to this waxing and 2 waning. Garrison, 759 F.3d at 1017. When a person “suffers from severe panic attacks, anxiety, 3 and depression[,]” for example, improvement does not necessarily mean that that the mental 4 disability no longer affects the plaintiff’s ability to function in the workplace. Id. (citing Holohan 5 v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001)). Symptoms must be interpreted in the context 6 of the patient’s overall well-being, with the understanding that symptoms that would prevent 7 someone from functioning in the workplace may not manifest “while being treated and while 8 limiting environmental stressors[.]” Garrison, 759 F.3d at 1017. This degree of caution is 9 especially merited when no medical expert has opined based on review of the full record that 10 plaintiff can return to work. Id. 11 Plaintiff is therefore correct that one-off events like driving her friend to Coachella are 12 themselves inadequate to refute her testimony as to mental fog and fatigue. The details of this 13 trip further undermine such an argument. Plaintiff told Dr. Gerardo Perez that the original plan 14 was for her to only drive to LAX, with her friends driving the rest of the way. AR 3078. Those 15 friends gaslit and insulted her, and she was grateful to make it home despite the trip being a 16 “blessing in disguise”. AR 3078. Whether a long drive is something plaintiff can safely do, as 17 opposed to something she was bullied into doing, is unclear from this event alone. 18 This observation does not, however, obviate the significance of a positive treatment 19 history in relation to mental health. The court in Garrison contrasted “singl[ing] out a few periods 20 of temporary well-being from a sustained period of impairment” against “describe[ing]… 21 symptoms, course of treatment, and bouts of remission, and thereby chart[ing] a course of 22 improvement”. 759 F.3d at 1018. Accordingly, the court in Lenentine v. Kijakazi upheld an ALJ 23 decision that found “multiple specific examples” across a record void of symptom fluctuation to 24 discredit the plaintiff’s allegations. Case No. 23-00011 JAO-RT, 2023 U.S. Dist. LEXIS 170137 25 at *20, 2023 WL 6213361 at *8 (D. Haw. Sep. 25, 2023). The same applies here, where the ALJ 26 noted that plaintiff had a panicky mood during one April 2022 visit but otherwise normal mood, 27 affect, judgment, and insight through June 2023. See AR 86-88 (citations omitted). Plaintiff’s 28 claim that she is chronically fatigued but could consistently manage her energy across multiple 1 days to always appear alert during appointments strains credulity. See ECF No. 15 at 3. 2 Admittedly, the ALJ could have interpreted plaintiff’s abnormal mood, affect, and 3 judgment during a July 2023 visit as last-minute fluctuations that contradict the impression that 4 her symptoms were otherwise controlled. AR 87, 3074. ALJs may, however, consider a 5 plaintiff’s “unexplained, or inadequately explained, failure to seek treatment or follow a 6 prescribed course of treatment.” Bunnell, 947 F.2d at 346. Plaintiff did more than refuse to 7 follow doctors’ advice; she actively argued that she knew more about her SLE medication and 8 wanted to continue taking it despite no proof of a medical need. AR 3074. Although plaintiff 9 argues that this discussion was less extensive than the doctor’s notes suggest, this argument 10 inherently lacks support in the record. See ECF No. 15 at 6.4 11 The ALJ permissibly discounted any subjective complaints from plaintiff’s July 2023 12 visit, and comprehensively reviewed her history of normal mood and affect up to that point. The 13 ALJ sufficiently justified his decision to discredit her testimony as to mental symptoms. 14 C. Plaintiff Does Not Adequately Object to the Analysis of Dr. Tiwana’s Opinion 15 1. Medical Opinion 16 During a March 2022 visit to Dr. Tiwana, plaintiff told her that her SSI application was 17 denied. AR 957. In response, Dr. Tiwana opined that plaintiff’s “lupus, fibromyalgia, chronic 18 migraine, narcolepsy and depression” prevented her from working as of that visit. AR 957. She 19 stated that plaintiff’s joint aches would limit how much she could use her limbs, whereas her 20 focus was impaired by her migraines and depression. AR 957. 21 Treating this as Dr. Tiwana’s formal opinion5, the ALJ found it unsupported by her own 22

23 4 Plaintiff similarly fails to show support for the assertion that this physician antagonized her about her weight. See ECF No. 15 at 6. 24 5 The ALJ was arguably generous in considering this statement as an opinion favorable to plaintiff’s application. Some courts do not credit unsigned medical reports as expert opinion 25 evidence when determining disability. Compare Fox v. Heckler, 776 F.2d 738, 742 (7th Cir. 26 1985) (finding that a report “completed and signed in accordance with…normal and usual procedures in evaluating a disability claim” must be treated as opinion evidence) with Valencia v. 27 Bowen, 691 F. Supp. 1120, 1125, n.2 (N.D. Ill. 1988) (not treating a state agency report as a medical opinion because it was “not signed and may not be a medical report at all.”). The 28 appointment notes at issue were “Not signed” by Dr. Tiwana. AR 955. 1 examination findings. AR 89. Dr. Tiwana found no motor or sensory deficits and no tenderness 2 in any of plaintiff’s extremities, all of which had full range of motion. AR 89, 956. Plaintiff had 3 a flat affect during the appointment but exhibited no acute distress, was alert and oriented, and 4 had no suicidal or homicidal ideation. AR 89, 956. As to consistency, other medical providers 5 had found “fairly normal mental and physical examination findings” including “normal gait, 6 normal strength, normal range of motion, and intact sensation”. AR 89. Mental status 7 examination findings also consistently reflected normal attention and concentration. AR 89. 8 2. Governing Legal Principles 9 In evaluating medical opinion evidence, ALJs give no specific evidentiary weight to any 10 particular type of opinion or source, but instead must consider and evaluate the persuasiveness of 11 all medical opinions or prior administrative medical findings from medical sources and evaluate 12 their persuasiveness. Revisions to Rules, 2017 WL 168819, 82 Fed. Reg. 5844, at 5867-68; see 13 20 C.F.R. § 404.1520c(a) and (b). The factors for evaluating the persuasiveness of a physician 14 opinion include supportability, consistency, relationship with the claimant (including length of the 15 treatment, frequency of examinations, purpose of the treatment, extent of the treatment, and the 16 existence of an examination), specialization, and “other factors that tend to support or contradict a 17 medical opinion or prior administrative medical finding” (including, but not limited to, “evidence 18 showing a medical source has familiarity with the other evidence in the claim or an understanding 19 of our disability program’s policies and evidentiary requirements”). 20 C.F.R. § 404.1520c(c)(1)- 20 (5). Supportability and consistency are the most important factors, and therefore the ALJ is 21 required to explain how both factors were considered. 20 C.F.R. § 404.1520c(b)(2). 22 Supportability and consistency are defined in the regulations as follows: 23 Supportability. The more relevant the objective medical evidence and supporting explanations presented by a medical source are to 24 support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior 25 administrative medical finding(s) will be. Consistency. The more consistent a medical opinion(s) or prior 26 administrative medical finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more 27 persuasive the medical opinion(s) or prior administrative medical finding(s) will be. 28 1 20 C.F.R. § 404.1520c(c)(1)-(2). 2 The ALJ may, but is not required to, explain how the other factors were considered. 20 3 C.F.R. § 404.1520c(b)(2). The Ninth Circuit has confirmed that the new regulatory framework 4 eliminates the “treating physician rule” and displaces the longstanding case law requiring an ALJ 5 to provide “specific and legitimate” or “clear and convincing” reasons for rejecting a treating or 6 examining doctor’s opinion. Woods v. Kijakazi, 32 F.4th 785 (9th Cir. 2022). Still, in rejecting 7 any medical opinion as unsupported or inconsistent, an ALJ must provide an explanation 8 supported by substantial evidence. Id. In sum, the ALJ “must ‘articulate ... how persuasive’ [he 9 or she] finds ‘all of the medical opinions’ from each doctor or other source ... and ‘explain how 10 [he or she] considered the supportability and consistency factors’ in reaching these findings.” Id. 11 (citing 20 C.F.R. §§ 404.1520c(b), 404.1520(b)(2)). 12 3. Dr. Tiwana’s Relationship with Plaintiff Does Not Affect the ALJ’s Analysis 13 Plaintiff argues that Dr. Tiwana, as her primary physician, saw her monthly from 14 December 2020 to Octboer 2023 and knows about the severity of all of plaintiff’s health 15 conditions. ECF No. 11 at 7. She contrasts this against specialists she only met once every few 16 months to discuss one condition apiece. Id. Plaintiff further argues that Dr. Tiwana was the only 17 one who was thorough enough to even realize plaintiff needed a rheumatologist. Id. 18 As defendant notes, whether plaintiff and Dr. Tiwana have an ongoing treatment 19 relationship was more relevant to applications filed before March 27, 2017. ECF No. 14 at 16; 20 20 C.F.R. §§ 404.1527(a)(2), (c)(2). At best, this is now one of three other factors that an ALJ can 21 discuss, but he is not required to do so unless deciding between two opinions with comparable 22 supportability and consistency. 20 C.F.R. §§ 404.1520c(b)(2)-(3), (c)(3). Here the ALJ did not 23 find it necessary to analyze additional factors before concluding that Dr. Tiwana’s opinion was 24 unpersuasive. Plaintiff has failed to identify any error. 25 D. Plaintiff’s Use of a Walker Was Not Medically Necessary 26 The ALJ acknowledged that plaintiff testified to using a walker, and that the walker was 27 sometimes mentioned in the medical record. AR 86. However, other treatment notes reported 28 that her gait was normal. AR 86 (citing AR 794, 798, 834, 1772, 1776, 1782, 1893, 2907, 3074). 1 The ALJ also found no documentation from a medical source showing that plaintiff needed an 2 assistive device for 12 continuous months. AR 86. There was “no evidence establishing the need 3 for a hand-held assistive device” or “describing the circumstances for which it is needed.” AR 4 86. The ALJ therefore concluded the walker was not medically necessary. AR 86. 5 Plaintiff argues that Dr. Tiwana ordered a walker because she needed one, and that Dr. 6 Ghai agreed. ECF No. 11 at 4. She further explains that while she does not need one for short 7 distances on good days, there are days where she does not even have the energy to stand without 8 one. Id. Nor does plaintiff know in advance whether a particular day will be good or bad in this 9 regard due to her SLE. Id. 10 Both defendant and the ALJ seem to rely on 42 U.S.C. § 423(d)(1)(A), under which a 11 physical impairment can only constitute “disability” if the condition “has lasted or can be 12 expected to last for a continuous period of not less than 12 months[.]” See ECF No. 14 at 16. 13 This does not necessarily require that plaintiff needed an assistive device for 12 consecutive 14 months, but rather that her general difficulties walking and standing have persisted for that long. 15 As discussed above, however, the ALJ reasonably found that that plaintiff’s physical symptoms 16 as a whole are not as severe as she alleged in her testimony. See supra VI.B.2; AR 86. Aside 17 from the consistently normal gait undermining claims that she needs a walker, multiple visits 18 revealed no swelling or tenderness in the relevant joints. AR 83-85 (citing AR 840, 844, 1892). 19 The ALJ had also found that medication and physical therapy allowed plaintiff to adequately 20 manage pain and other symptoms. AR 86. 21 Whether Dr. Tiwana even said a walker was necessary to begin with is unclear. During 22 the February 2022 visit, she wrote that the clinic would help plaintiff obtain a rotator walker 23 because “she may benefit from” one. AR 957. This may not equate to the device being 24 necessary. When combined with the review of plaintiff’s general treatment history as to physical 25 impairment, the ALJ was justified in finding that a walker was not medically necessary. 26 E. Remand 27 The undersigned agrees with plaintiff that the ALJ erred by failing to analyze whether 28 plaintiff’s SLE or CTD met the Paragraph A criteria for finding her automatically disabled prior 1 | toan RFC determination. Whether plaintiff seeks remand for further proceedings or an order 2 || directing the ALJ to award benefits is unclear. However, it is for the ALJ to determine in the first 3 || instance whether plaintiff has severe impairments and, ultimately, whether she is disabled under 4 || the Act. See Marsh v. Colvin, 792 F.3d 1170, 1173 (9th Cir. 2015) (“the decision on disability 5 || rests with the ALJ and the Commissioner of the Social Security Administration in the first 6 || instance, not with a district court”). “Remand for further administrative proceedings is 7 || appropriate if enhancement of the record would be useful.” Benecke v. Barnhart, 379 F.3d 587, 8 | 593 (9th Cir. 2004). When an ALJ outright failed to analyze a particular element of an SSI 9 || application, as here, remand for further proceedings permits the ALJ to revisit the matter. The 10 || court finds that remand is the appropriate remedy. 1] VI. CONCLUSION 12 For the reasons set forth above, IT IS HEREBY ORDERED that: 13 1. Plaintiffs motion for summary judgment (ECF No. 11) is GRANTED; 14 2. The Commissioner’s cross-motion for summary judgment (ECF No. 14) is DENIED; 15 3. This matter is REMANDED to the Commissioner for further consideration consistent 16 | with this order; and 17 4. The Clerk of the Court shall enter judgment for the plaintiff and close this case. 18 | DATED: September 24, 2025 19 ~ Ctt10 Lhar—e_ 20 ALLISONCLAIRE. SS 21 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 27