Khine K. v. Frank J. Bisignano, Commissioner of Social Security Administration

Opinion

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10 KHINE K., ) Case No. 8:25-cv-00448-SP 11 ) Plaintiff, ) 12 ) v. ) MEMORANDUM OPINION AND 13 ) ORDER FRANK J. BISIGNANO, ) 14 Commissioner of Social Security ) Administration, ) 15 ) Defendant. ) 16 ) ) 17 18 I. 20 On March 7, 2025, plaintiff Khine K. filed a complaint against defendant, the 21 Commissioner of the Social Security Administration (“Commissioner”), seeking a review 22 of a denial of a period of disability and disability insurance benefits (“DIB”) and 23 supplemental security income (“SSI”). The parties have fully briefed the matter in 24 dispute, and the court deems the matter suitable for adjudication without oral argument. 25 Plaintiff presents one disputed issue for decision: whether the administrative law 26 judge (“ALJ”) properly considered plaintiff’s subjective symptom statements connected 27 to her mental health impairments. Plaintiff’s Opening Brief (“P. Mem.”) at 4-26; see 28 Defendant’s Brief (“D. Mem.”) at 2-9. 1 Having carefully studied the parties’ memoranda on the issue in dispute, the 2 Administrative Record (“AR”), and the decision of ALJ, the court concludes that, as 3 detailed herein, the ALJ improperly discounted plaintiff’s subjective symptom statements 4 connected to her mental health impairments. The court therefore remands this matter to 5 the Commissioner for further proceedings in accordance with the principles and 6 instructions enunciated herein. 7 II. 9 Plaintiff was 38 years old on her alleged disability onset date. AR at 69, 84. 10 Plaintiff completed two years of college and has past relevant work as a file clerk and a 11 histology technician. AR at 61, 268. 12 On August 26, 2022, plaintiff filed applications for DIB and SSI due to tightness of 13 the right neck and right shoulder, limited movement of the right arm and hand, numbness 14 and tingling of the right thumb and right index finger, limited abilities to do daily tasks, 15 and depression and low self-esteem. AR at 70, 85. The applications were denied initially 16 on February 21, 2023 and upon reconsideration on May 1, 2023, after which plaintiff 17 filed a request for hearing. AR at 20, 69-118, 138. 18 On January 30, 2024, plaintiff, represented by counsel, appeared telephonically 19 and testified at a hearing before the ALJ. AR at 42-68. The ALJ also heard testimony 20 from Aida Worthington, a vocational expert. AR at 61-65. On April 1, 2024, the ALJ 21 denied plaintiff’s claim for benefits. AR at 20-31. 22 Applying the well-known five-step sequential evaluation process, the ALJ found, 23 at step one, that plaintiff had not engaged in substantial gainful activity since October 15, 24 2019, the alleged onset date. AR at 23. 25 At step two, the ALJ found plaintiff suffered from the severe impairments of 26 cervical spine strain, right shoulder strain, right wrist strain, major depressive disorder, 27 generalized anxiety disorder, obsessive-compulsive disorder, and posttraumatic stress 28 disorder (PTSD). Id. 1 At step three, the ALJ found plaintiff’s impairments, whether individually or in 2 combination, did not meet or medically equal one of the listed impairments set forth in 20 3 C.F.R. part 404, Subpart P, Appendix 1. AR at 23. 4 The ALJ then assessed plaintiff’s residual functional capacity (“RFC”), and 5 determined plaintiff had the RFC to perform light work as defined in 20 C.F.R. 6 §§ 404.1567(b) and 416.967(b) with the limitations that plaintiff: 7 can lift and carry 20 pounds occasionally and 10 pounds frequently; can 8 stand and walk for 6 hours in an 8-hour workday; can sit for 6 hours in an 8- 9 hour workday; can frequently push and pull with right upper extremity; can 10 perform the postural activities occasionally; can perform frequent overhead 11 reaching bilaterally; can perform frequent handling and fingering with the 12 right hand; is limited to work involving simple repetitive tasks; and is 13 limited to work involving no more than occasional interaction with co- 14 workers and supervisors; should not have interaction with the public; and 15 should not work in jobs that involve more than occasional changes in the 16 workplace. 17 AR at 24-25. 18 The ALJ found, at step four, that plaintiff was unable to perform her past relevant 19 work as a file clerk or a histology technician. AR at 29-30. 20 At step five, the ALJ found there were jobs that existed in significant numbers in 21 the national economy that plaintiff could perform, including routing clerk, marker, and 22 mail clerk. AR at 30-31. Consequently, the ALJ concluded plaintiff did not suffer from 23 a disability, as defined in the Social Security Act, from October 15, 2019 through the date 24 of the decision. AR at 31. 25 Plaintiff filed a timely request for review of the ALJ’s decision, which the Appeals 26 Council denied. AR at 1-7, 208-09. The ALJ’s decision stands as the final decision of 27 the Commissioner. 28 3 This court is empowered to review decisions by the Commissioner to deny 4 benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security 5 Administration must be upheld if they are free of legal error and supported by substantial 6 evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001) (as amended). But 7 if the court determines the ALJ’s findings are based on legal error or are not supported by 8 substantial evidence in the record, the court may reject the findings and set aside the 9 decision to deny benefits. Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); 10 Tonapetyan v. Halter, 242 F.3d 1144, 1147 (9th Cir. 2001). 11 “Substantial evidence is more than a mere scintilla, but less than a preponderance.” 12 Aukland, 257 F.3d at 1035. Substantial evidence is such “relevant evidence which a 13 reasonable person might accept as adequate to support a conclusion.” Reddick v. Chater, 14 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 F.3d at 459. To determine whether 15 substantial evidence supports the ALJ’s finding, the reviewing court must review the 16 administrative record as a whole, “weighing both the evidence that supports and the 17 evidence that detracts from the ALJ’s conclusion.” Mayes, 276 F.3d at 459. The ALJ’s 18 decision “‘cannot be affirmed simply by isolating a specific quantum of supporting 19 evidence.’” Aukland, 257 F.3d at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 20 (9th Cir. 1998)). If the evidence can reasonably support either affirming or reversing the 21 ALJ’s decision, the reviewing court “‘may not substitute its judgment for that of the 22 ALJ.’” Id. (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)). 23 IV. 25 Plaintiff argues that the ALJ impermissibly rejected her subjective symptom 26 testimony connected to her mental health impairments. P. Mem. at 4-26; Reply at 2-5. 27 The court looks to Social Security Ruling (“SSR”) 16-3p for guidance on 28 evaluating plaintiff’s alleged symptoms. In adopting SSR 16-3p, the Social Security 1 Administration sought to “clarify that subjective symptom evaluation is not an 2 examination of an individual’s character.” SSR 16-3p, 2017 WL 5180304, at *2 (Oct. 3 25, 2017). 4 [SSR 16-3p] makes clear what our precedent already required: that 5 assessments of an individual’s testimony by an ALJ are designed to evaluate 6 the intensity and persistence of symptoms after the ALJ finds that the 7 individual has a medically determinable impairment(s) that could reasonably 8 be expected to produce those symptoms, and not to delve into wide-ranging 9 scrutiny of the claimant’s character and apparent truthfulness. 10 Trevizo v. Berryhill, 871 F.3d 664, 678 n.5 (9th Cir. 2017) (cleaned up). 11 To evaluate a claimant’s symptom testimony, the ALJ engages in a two-step 12 analysis. Christine G. v. Saul, 402 F. Supp. 3d 913, 921 (C.D. Cal. 2019) (citing Trevizo, 13 871 F.3d at 678). First, the ALJ must determine whether the claimant produced objective 14 medical evidence of an underlying impairment that could reasonably be expected to 15 produce the symptoms alleged. Id. Second, if plaintiff satisfies the first step and there is 16 no evidence of malingering, the ALJ must evaluate the intensity and persistence of the 17 claimant’s symptoms and determine the extent to which they limit her ability to perform 18 work-related activities. Id. 19 In assessing intensity and persistence, the ALJ may consider: the claimant’s daily 20 activities; the location, duration, frequency, and intensity of the symptoms; precipitating 21 and aggravating factors; the type, dosage, effectiveness, and side effects of medication 22 taken to alleviate the symptoms; other treatment received; other measures used to relieve 23 the symptoms; and other factors concerning the claimant’s functional limitations and 24 restrictions due to the symptoms. Id. (citing 20 C.F.R. § 416.929); SSR 16-3p at *4; 25 Smolen v. Chater, 80 F.3d 1273, 1283-84 n.8 (9th Cir. 1996)). To reject the claimant’s 26 subjective symptom statements at step two, the ALJ must provide “specific, clear, and 27 convincing” reasons, supported by substantial evidence in the record, for doing so. 28 1 Burrell v. Colvin, 775 F.3d 1133, 1136-37 (9th Cir. 2014); Smolen, 80 F.3d at 1281, 2 1283-84. 3 Plaintiff’s Subjective Symptom Testimony 4 The ALJ summarized plaintiff’s subjective testimony about her mental health 5 symptoms and limitations as follows.1 Plaintiff alleges disability due to depression. AR 6 at 25, 267. She and her mother claim plaintiff has difficulty remembering, completing 7 tasks, concentrating, following instructions, and getting along with others, and 8 experiences stress, anxiety, and depression. AR at 25, 308, 314, 318, 324, 328, 334. 9 Plaintiff reported to a workers’ compensation doctor that she was exposed to stress, work 10 pressure, overload, and incidents of harassment by her supervisor, and developed 11 symptoms of anxiety, depression, and insomnia following her work exposure. AR at 27, 12 385. During a psychiatric consultative examination, plaintiff reported depression, 13 anxiety, stress, episodes of crying, fatigue, low motivation, and trouble with 14 concentration and memory. AR at 27, 1249. Plaintiff continued to complain of anxiety, 15 depression, OCD, PTSD, and insomnia in November 2023 and January 2024. AR at 28, 16 1280-1369, 1371. In November 2023, she complained of poor focus/concentration and 17 impaired memory. AR at 28, 1283. At the hearing, plaintiff testified she gets stressed 18 and anxious. AR at 25. 19 Plaintiff highlights additional portions of her hearing testimony. She testified she 20 spends most of the day in her room, sometimes watching TV, but that makes her cry too 21 because just look at “how pretty they are and I don’t look that good.” P. Mem. at 4 22 (citing AR at 55). She will turn off the TV and start crying and cover herself in a blanket. 23 Id. (citing AR at 56). She cannot sleep because she “think[s] all this crazy stuff and a lot 24 of things, random stuff comes to [her] mind.” Id. She rarely leaves her home, except for 25 doctor appointments, and her mother usually drives her. Id. (citing AR at 56-57). She 26

27 1 Because plaintiff does not challenge the ALJ’s evaluation of her subjective symptom testimony connected to her physical health impairments, the court does not 28 discuss plaintiff’s subjective physical health testimony. 1 last drove over a year before the hearing. Id. (AR at 57). She does not socialize with any 2 friends. Id. She hates showering, hates taking off her clothes, and hates changing her 3 clothes. Id. at 5 (citing AR at 58). Once or twice a week, her mother reminds her about 4 her hygiene by telling her she smells. Id. Some days, she does not leave her room 5 because she does not want her mom to see her or tell her she needs to shower. Id. (citing 6 AR at 59). Her medication sometimes helps and sometimes does not. Id. (citing AR at 7 60). She explained that she still cries a lot, talks to herself a lot, and hates herself a lot. 8 Id. After working for three to four months, she was given the option to quit or be fired 9 because she made multiple mistakes and took multiple breaks to go to the bathroom and 10 cry. Id. at 5-6 (citing AR at 47). She testified that her psychological problem is worse 11 than her physical problem. Id. at 7 (citing AR at 54). 12 Analysis 13 At the first step for evaluating a claimant’s symptom testimony, the ALJ found 14 plaintiff’s medically determinable impairments could reasonably be expected to cause the 15 alleged symptoms. AR at 25. At the second step, the ALJ found that plaintiff’s 16 “statements concerning the intensity, persistence and limiting effects of these symptoms 17 are not entirely consistent with the medical evidence and other evidence in the record.” 18 Id. Because the ALJ did not find any evidence of malingering, the ALJ was required to 19 provide specific, clear and convincing reasons, supported by substantial evidence, for 20 discounting plaintiff’s testimony. 21 Plaintiff contends the ALJ’s analysis of her symptom testimony is flawed because 22 the ALJ failed to identify the testimony she found not credible. P. Mem. at 7. Plaintiff 23 also argues that the ALJ discounted her testimony due to a lack of objective medical 24 evidence and unspecified other evidence to support plaintiff’s testimony, which is error. 25 Id. at 8. 26 Where an ALJ rejects a claimant’s testimony, the ALJ must “specifically identify 27 the testimony [from the claimant] that she or he finds not to be credible and . . . explain 28 what evidence undermines the testimony.” Treichler v. Comm’r of Soc. Sec., 775 F.3d 1 1090, 1102 (9th Cir. 2014) (quoting Holohan v. Massanari, 246 F.3d 1195, 1208 (9th 2 Cir. 2001)). Here, the supposed disconnect between plaintiff’s testimony and the 3 inconsistent medical evidence could have been articulated more clearly. It is a somewhat 4 close call whether the ALJ’s juxtaposition of plaintiff’s testimony with the medical and 5 other evidence cited is sufficiently clear for the court to evaluate. AR at 27-28; see 6 Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020) (ALJs are not required to “perform 7 a line-by-line exegesis of the claimant’s testimony, nor do [the regulations] require ALJs 8 to draft dissertations when denying benefits” (citation omitted)). The ALJ notes 9 plaintiff’s testimony that she suffers from depression, anxiety, stress, low motivation, and 10 difficulties with memory and concentration. AR at 25, 27-28. The ALJ then summarizes 11 her medical records, which include some normal findings but also diagnoses of anxiety, 12 depression, and stress, and which the ALJ found overall to “reveal [plaintiff] having 13 some moderate mental issues.” AR at 27-29. The court can make an educated guess as 14 to how the medical evidence may be viewed as undermining plaintiff’s testimony 15 regarding her mental health, but on balance, the ALJ falls short of identifying the 16 testimony he finds not credible and explaining what evidence undermines it. 17 Moreover, the ALJ erred by discounting plaintiff’s symptom testimony on the sole 18 ground that it was “not entirely consistent with the medical evidence and other evidence 19 in the record.” AR at 25. The lack of objective medical evidence to support a plaintiff’s 20 claimed limitations and symptoms is a factor that may be considered when evaluating the 21 testimony, but it is insufficient by itself. See Rollins v. Massanari, 261 F.3d 853, 857 22 (9th Cir. 2001) (lack of corroborative objective medical evidence may be one factor in 23 evaluating subjective symptom testimony); Bunnell v. Sullivan, 947 F.2d 341, 345 (9th 24 Cir. 1991) (an ALJ “may not reject a claimant’s subjective complaints based solely on a 25 lack of objective medical evidence to fully corroborate the alleged severity of pain”); 26 accord Christine G., 402 F. Supp. 3d at 923. Here, the ALJ only cited the lack of 27 supporting medical evidence and other evidence as a reason to discount plaintiff’s 28 testimony. 1 The Commissioner argues that plaintiff’s failure to seek mental health treatment 2 for more than three years after the alleged disability onset date undercuts plaintiff’s 3 symptom testimony. D. Mem. at 4. But the ALJ did not cite this as a reason for 4 discounting plaintiff’s symptom testimony. The ALJ did note that plaintiff was not 5 seeing a psychiatrist or therapist or taking psychotropic medications at the time of her 6 psychiatric consultative examination and State Agency initial review, but that was in the 7 context of the ALJ’s evaluation at step three of the sequential evaluation, discussion 8 about what plaintiff reported to the consultative examiner, and evaluation of the medical 9 opinion evidence. AR at 24, 27, 29. Nowhere did the ALJ indicate this was a reason for 10 discounting plaintiff’s symptom testimony. The court’s review is limited to the reasons 11 actually given by the ALJ in discounting plaintiff’s symptom testimony. See Orn v. 12 Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (“We review only the reasons provided by the 13 ALJ in the disability determination and may not affirm the ALJ on a ground upon which 14 he did not rely.” (citation omitted)).2 15 2 In the Reply, plaintiff argues that the ALJ correctly did not fault her for 16 failing to seek mental health treatment until 2023 because “it is a questionable practice to 17 chastise one with a mental impairment for the exercise of poor judgment in seeking 18 rehabilitation.” Reply at 5 (quoting Regennitter v. Comm’r of Soc. Sec. Admin., 166 F.3d 1294, 1299-300 (9th Cir. 1999)) (citation omitted). The court agrees that the ALJ 19 properly did not rely on a failure to seek prompt mental health treatment to discount 20 plaintiff’s symptom testimony, given plaintiff’s reasons for her initial failure to seek treatment. See Orn, 495 F.3d at 638 (stating that the failure to seek treatment may be a 21 basis for an adverse credibility finding unless there was a good reason for not doing so). 22 At the hearing, plaintiff testified that she did not seek treatment earlier because of her cultural background and opposition from her family, making her nervous “to air [her] 23 dirty laundry to a stranger.” AR at 55, 58. These are reasons that would prevent the ALJ 24 from properly discounting plaintiff’s symptom testimony on the basis of failure to seek 25 prompt mental health treatment. See Mou v. Berryhill, 2017 WL 1177978, at *23 (N.D. Cal. Mar. 30, 2017) (finding ALJ erred by reasoning that claimant’s failure to promptly 26 seek mental health treatment undermined her credibility where claimant cited cultural 27 reasons for her delayed treatment). Thus, the failure to seek prompt mental health treatment would not be a clear and convincing reason to discount plaintiff’s symptom 28 testimony here in any event. 1 In sum, the only reason the ALJ gave for discounting plaintiff’s symptom 2 testimony was that her subjective symptoms were not supported by the objective medical 3 evidence and other evidence. By itself, this was not a clear and convincing reason. And 4 indeed, the ALJ also failed to clearly identify the testimony he found not credible and 5 what evidence undermined it. The ALJ therefore erred in discounting plaintiff’s 6 symptom testimony regarding her mental health impairments. 7 V. 9 The decision whether to remand for further proceedings or reverse and award 10 benefits is within the discretion of the district court. McAllister v. Sullivan, 888 F.2d 599, 11 603 (9th Cir. 1989). It is appropriate for the court to exercise this discretion to direct an 12 immediate award of benefits where: “(1) the record has been fully developed and further 13 administrative proceedings would serve no useful purpose; (2) the ALJ has failed to 14 provide legally sufficient reasons for rejecting evidence, whether claimant testimony or 15 medical opinions; and (3) if the improperly discredited evidence were credited as true, the 16 ALJ would be required to find the claimant disabled on remand.” Garrison v. Colvin, 17 759 F.3d 995, 1020 (9th Cir. 2014) (setting forth three-part credit-as-true standard for 18 remanding with instructions to calculate and award benefits). But where there are 19 outstanding issues that must be resolved before a determination can be made, or it is not 20 clear from the record that the ALJ would be required to find a plaintiff disabled if all the 21 evidence were properly evaluated, remand for further proceedings is appropriate. See 22 Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel, 211 F.3d 23 1172, 1179-80 (9th Cir. 2000). In addition, the court must “remand for further 24 proceedings when, even though all conditions of the credit-as-true rule are satisfied, an 25 evaluation of the record as a whole creates serious doubt that a claimant is, in fact, 26 disabled. Garrison, 759 F.3d at 1021. 27 Here, as set forth above and as requested by plaintiff, remand for further 28 proceedings is appropriate because there are outstanding issues that must be resolved 1 || before it can be determined whether plaintiff is disabled. See Reply at 6. The ALJ must 2 ||reconsider plaintiff's testimony regarding her mental health impairments and either credit 3 testimony or provide clear and convincing reasons to reject it. The ALJ must then 4 reassess plaintiff's RFC, and proceed through steps four and five to determine what work, 5 ||if any, plaintiff is capable of performing. 6 VI. 8 IT IS THEREFORE ORDERED that Judgment shall be entered REVERSING the 9 || decision of the Commissioner denying benefits, and REMANDING the matter to the 10 |}Commissioner for further administrative action consistent with this decision. 11 12 13 Dated: March 31, 2026 LRep 6 United States Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28