Priscilla K. v. Frank Bisignano, Commissioner of Social Security

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10

11 PRISCILLA K., 1 Case No. 2:24-cv-09199-MAA

12 Plaintiff, MEMORANDUM DECISION AND 13 ORDER REVERSING DECISION OF v. THE COMMISSIONER AND 14 REMANDING FOR FURTHER FRANK BISIGNANO,2 15 Commissioner of Social Security, ADMINISTRATIVE PROCEEDINGS

16 Defendant. 1 1 7 8

19 I. INTRODUCTION 20 On February 8, 2022, Plaintiff Priscilla K. (“Plaintiff”) filed a Complaint 21 seeking review of Defendant Commissioner of Social Security’s (“Commissioner” 22 or “Defendant”) final decision denying her application for supplemental security 23

24 1 Plaintiff’s name is partially redacted in accordance with Federal Rule of Civil 25 Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case Management of the Judicial Conference of the United 26 States. 27 2 Frank Bisignano became Commissioner of Social Security on May 6, 2025. Under Federal Rule of Civil Procedure 25(d), he is automatically substituted for 28 Martin O’Malley as Defendant in this suit. 1 income under Title XVI of the Social Security Act. (Compl., ECF No. 1.) Pursuant 2 to 28 U.S.C. § 636(c), the parties consented to the jurisdiction of a United States 3 Magistrate Judge. (ECF Nos. 6, 7.) On December 20, 2024, Defendant filed an 4 Answer (Answer, ECF No. 9) and Certified Administrative Record (“AR,” ECF 5 Nos. 9-1–9-8). On March 17, 2025, the Court ordered Plaintiff to show cause why 6 the case should not be dismissed for lack of prosecution. (ECF No. 10.) On April 7 16, 2025, Plaintiff filed an Opening Brief. (Pl.’s Br., ECF No. 11.) On June 6, 8 2025, Defendant filed a Response Brief. (Def.’s Br., ECF No. 14.) Plaintiff did not 9 file a reply brief. (See docket.) This matter is fully briefed and ready for decision. 10 The Court deems the matter appropriate for resolution without oral argument. 11 See Fed. R. Civ. P. 78(b); C.D. Cal. L.R. 7-15. For the reasons discussed below, the 12 Court reverses the decision of the Commissioner and remands the matter for further 13 administrative proceedings. 14 15 II. SUMMARY OF ADMINISTRATIVE PROCEEDINGS 16 On February 8, 2022, Plaintiff filed a Title XVI application for supplemental 17 security income benefits, initially alleging disability beginning April 20, 2021 (id. 18 at 279, 281) and amending such date to February 8, 2022 (id. at 76).3 On April 28, 19 2023, after her application was denied initially and upon reconsideration (id. at 185, 20 192), Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”) (id. 21 at 200). 22 ALJ David Lacy conducted a telephonic hearing on January 16, 2024. (Id. at 23 71–96.) The ALJ heard testimony from Plaintiff (id. at 78–89), who was 24 represented by counsel, and from an impartial vocational expert (id. at 89–94). On 25 /// 26 27 3 Citations to the Administrative Record are to the AR number. Pinpoint citations to other docketed documents are to the page numbers in the CM/ECF-generated 28 headers. 1 March 14, 2024, after making findings under the Commissioner’s five-step 2 evaluation process, the ALJ issued an unfavorable decision. (Id. at 18–39.) 3 At step one, the ALJ found that Plaintiff had not engaged in substantial 4 gainful activity since February 8, 2022, the amended alleged onset date. (Id. at 5 24 ¶ 1.) 6 At step two, the ALJ found that Plaintiff had the following severe 7 impairments:

8 [D]egenerative disc disease of the cervical spine, status 9 post discectomy and fusion procedure, degenerative disc disease of the thoracic spine with scoliosis, degenerative 10 disc disease of the lumbar spine, neuropathy, right hip 11 labral tear, mood disorder, post-traumatic stress disorder 12 (PTSD) with dissociated features, generalized anxiety disorder wit[h] panic attacks, and depressive disorder. 13 14 (Id. at 24 ¶ 2 (citations omitted).) 15 At step three, the ALJ found that Plaintiff did not have an impairment or 16 combination of impairments that met or medically equaled the severity of one of the 17 agency’s listed impairments. (Id. at 25 ¶ 3.) Next, the ALJ found that Plaintiff had 18 t

he fol lowing Residual Functional Capacity (“RFC”): 19 [T]he claimant can lift and carry 20 pounds occasionally 20 and 10 pounds frequently, stand and walk for six hours in 21 an eight-hour workday for five days a week, and sit for 22 six hours in an eight-hour workday for five days a week. The claimant cannot reach overhead. The claimant can 23 occasionally push and pull with the extremities. The 24 claimant can frequently reach (in all other direction[s]), handle, finger, and feel with the upper extremities. The 25 claimant can have no exposure to hazards, cannot crawl or 26 climb ladders, ropes, or scaffolds, but can have occasional 27 exposure to uneven terrain and can occasionally balance, crawl, crouch, kneel, stoop, and climb ramps and stairs, as 28 1 those are defined in the DOT/SOC. In addition, the 2 claimant can have occasional interactions with supervisors and coworkers, but not interactions with the 3 public. The claimant would also be off-task 10 percent of 4 the day. 5

6 (Id. at 27 ¶ 4.) 7 At step four, the ALJ found that Plaintiff had no past relevant work. (Id. at 8 32 ¶ 5.) The ALJ classified Plaintiff as a younger individual on the alleged onset 9 date. (Id. at 32 ¶ 6.) The ALJ categorized Plaintiff as having at least a high school 10 education. (Id. at 32 ¶ 7.) The ALJ concluded the transferability of job skills was 11 not an issue because Plaintiff did not have past relevant work. (Id. at 32 ¶ 8.) 12 At step five, the ALJ noted that the vocational expert testified that Plaintiff 13 could perform the occupations of “office helper,” with approximately 14,000 jobs 14 available nationally; “merchandize maker,” with approximately 137,000 jobs 15 available nationally; and “photo copying machine operator,” with approximately 16 9,000 jobs available nationally. (Id. at 33 ¶ 9.) The ALJ concluded that, 17 “considering the claimant’s age, education, work experience, and residual 18 functional capacity, the claimant is capable of making a successful adjustment to 19 other work that exists in significant numbers in the national economy.” (Id. at 20 34 ¶ 9.) Accordingly, the ALJ concluded Plaintiff was not disabled, as defined by 21 the Social Security Act, since February 8, 2022. (Id. 34 ¶ 10.) 22 On August 20, 2024, the Appeals Council denied Plaintiff’s request for 23 review. (Id. at 1–6.) Plaintiff now seeks judicial review of the ALJ’s decision, 24 which stands as the final decision of the Commissioner. See 42 U.S.C. § 405(g). 25 26 III. STANDARD OF REVIEW 27 Pursuant to 42 U.S.C. Section 405(g), the Court reviews the Commissioner’s 28 final decision to determine whether the Commissioner’s “decision to deny 1 benefits . . . ‘is not supported by substantial evidence or is based on legal error.’” 2 Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014) 3 (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). “‘Substantial 4 evidence’ means more than a mere scintilla, but less than a preponderance; it is such 5 relevant evidence as a reasonable person might accept as adequate to support a 6 conclusion.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (quoting 7 Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)); see also 8 Richardson v. Perales, 402 U.S. 389, 401 (1971). The Court “must consider the 9 entire record as a whole, weighing both the evidence that supports and the evidence 10 that detracts from the Commissioner’s conclusion, and may not affirm simply by 11 isolating a specific quantum of supporting evidence.” Garrison v. Colvin, 759 F.3d 12 995, 1009–1010 (9th Cir. 2014) (quoting Lingenfelter, 504 F.3d at 1035). “‘Where 13 evidence is susceptible to more than one rational interpretation,’ the ALJ’s decision 14 should be upheld.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (quoting 15 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)). “If the evidence can support 16 either affirming or reversing the ALJ’s conclusion, [a court] may not substitute [its] 17 judgment for that of the ALJ.” Robbins, 466 F.3d at 882. 18 19 IV. DISCUSSION 20 A. Disputed Issues 21 Plaintiff raises one disputed issue—whether the ALJ failed to provide clear, 22 convincing, and well-supported reasons for discounting Plaintiff’s allegations 23 regarding her physical and mental disfunction. (Pl’s Br. 6–10.) For the reasons 24 discussed below, the Court finds that reversal and remand for further administrative 25 proceedings are warranted. 26 /// 27 /// 28 /// 1 B. Applicable Law 2 When assessing a claimant’s credibility regarding subjective symptom 3 testimony or allegations, the ALJ must engage in a two-step analysis. Trevizo v. 4 Berryhill, 871 F.3d 664, 678 (9th Cir. 2017). “First, the ALJ must determine 5 whether the claimant has presented objective medical evidence of an underlying 6 impairment ‘which could reasonably be expected to produce the pain or other 7 symptoms alleged.’” Garrison, 759 F.3d at 1014 (quoting Lingenfelter, 504 F.3d at 8 1035–36). “In this analysis, the claimant is not required to show ‘that her 9 impairment could reasonably be expected to cause the severity of the symptom she 10 has alleged; she need only show that it could reasonably have caused some degree 11 of the symptom.’” Id. (quoting Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 12 1996)). “Nor must a claimant produce ‘objective medical evidence of the pain or 13 fatigue itself, or the severity thereof.’” Id. (quoting Smolen, 80 F.3d at 1282). 14 If the claimant satisfies this first step, and there is no evidence of 15 malingering, the ALJ must provide specific, clear and convincing reasons for 16 rejecting the claimant’s testimony about the symptom severity. Id. at 1014–15; see 17 also Robbins, 466 F.3d at 883 (“[U]nless an ALJ makes a finding of malingering 18 based on affirmative evidence thereof, he or she may only find an applicant not 19 credible by making specific findings as to credibility and stating clear and 20 convincing reasons for each.”). “This is not an easy requirement to meet: ‘The 21 clear and convincing standard is the most demanding required in Social Security 22 cases.’” Garrison, 759 F.3d at 1015 (quoting Moore v. Comm’r of Soc. Sec. 23 Admin., 278 F.3d 920, 924 (9th Cir. 2002)). The ALJ must evaluate “the intensity 24 and persistence of those symptoms to determine the extent to which the symptoms 25 limit [the claimant’s] ability to perform work-related activities for an adult . . . .” 26 Social Security Ruling 16-3p, 2016 SSR LEXIS 4, at *4 (Mar. 16, 2016). 27 While the ALJ cannot “delve into wide-ranging scrutiny of the claimant’s 28 character and apparent truthfulness,” Trevizo, 871 F.3d at 678 n.5, the ALJ may 1 consider “prior inconsistent statements concerning the symptoms, and other 2 testimony by the claimant that appears less than candid; . . . unexplained or 3 inadequately explained failure to seek treatment or to follow a prescribed course of 4 treatment; and . . . the claimant’s daily activities,” Ghanim v. Colvin, 763 F.3d 5 1154, 1163 (9th Cir. 2014) (quoting Smolen, 80 F.3d at 1284). Inconsistencies 6 between a claimant’s testimony and conduct, or internal contradictions in the 7 claimant’s testimony, also may be relevant. Burrell v. Colvin, 775 F.3d 1133, 8 1137–38 (9th Cir. 2014). In addition, the ALJ may consider “the claimant’s work 9 record and observations of treating and examining physicians and other third parties 10 regarding, among other matters, the nature, onset, duration, and frequency of the 11 claimant’s symptom; precipitating and aggravating factors; [and] functional 12 restrictions caused by the symptoms . . . .” Smolen, 80 F.3d at 1284. However, it is 13 improper for an ALJ to reject subjective testimony based “‘solely on a lack of 14 objective medical evidence to fully corroborate’ the claimant’s allegations.” Bray 15 v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009) (quoting 16 Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991)). 17 The ALJ must make “a credibility determination with findings sufficiently 18 specific to permit the court to conclude that the ALJ did not arbitrarily discredit 19 claimant’s testimony.” Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) 20 (quoting Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002)); see Brown- 21 Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (“A finding that a claimant’s 22 testimony is not credible ‘must be sufficiently specific to allow a reviewing court to 23 conclude the adjudicator rejected the claimant’s testimony on permissible grounds 24 and did not arbitrarily discredit a claimant’s testimony regarding pain.’” (quoting 25 Bunnell, 947 F.2d at 345–46)). Although an ALJ’s interpretation of a claimant’s 26 testimony may not be the only reasonable one, if it is supported by substantial 27 evidence, “it is not [the court’s] role to second-guess it.” Rollins v. Massanari, 261 28 F.3d 853, 857 (9th Cir. 2001). 1 C. Background 2 During the January 16, 2024 hearing before the ALJ, Plaintiff testified about 3 her problems and limitations as follows: 4 Plaintiff was thirty-nine years old (see AR 136) and suffered from a spinal 5 cord disorder related to injuries she sustained during a violent incident when she 6 was approximately twenty-one years old (id. at 79–80, 86). Plaintiff “didn’t have 7 the best doctors” and “went to a lot of doctors” before learning—sixteen years after 8 the fact—that she had broken her neck and injured her spinal cord. (Id. at 80.) This 9 improper diagnosis had caused progressive paralysis from the neck down, affecting 10 the nerves in her nek and both arms. (Id.) Plaintiff also experienced pain due to a 11 tear in her right hip. (Id.) 12 Plaintiff was in “constant pain” and spent “the majority of [her] day 13 bedridden.” (Id. at 78.) Plaintiff bathed once or twice a week but only showered 14 every couple of weeks, using a shower chair, to wash her hair. (Id.) Plaintiff had 15 difficulty sitting, was always “surrounded by lots of pillows holding [her] up” and 16 spent “most of the time lying down.” (Id. at 79.) Plaintiff could walk for five or ten 17 minutes at a time, stand for two to four minutes at a time, sit for thirty minutes to 18 two hours at a time, and lift approximately one to three pounds. (Id. at 88.) 19 Plaintiff had difficulty typing, holding objects, and moving her hands and wrists. 20 (Id. at 79, 89.) In her prior job, Plaintiff opened “lots of jars,” which she could not 21 do anymore. (Id. at 79.) 22 Plaintiff had difficulty “putting thoughts together and remembering” and 23 would “forget how to spell words that [she had] known how to spell [her] whole 24 life.” (Id.) Plaintiff experienced dizziness “[p]retty much every day.” (Id. at 80.) 25 If she was ever in a car, she would get sick and experience “extreme pain in [her] 26 head and neck area” thereafter. (Id. at 81.) When traveling short distances, 27 Plaintiff used a cane. (Id.) When traveling longer distances, Plaintiff used an 28 automatic wheelchair (id. at 81), which her doctor, Dr. Jaba Harian, prescribed and 1 Plaintiff’s insurance provided (id. at 82, 83). Plaintiff could sit in her wheelchair 2 for one or two hours but was “very exhausted for the next several days.” (Id. at 81.) 3 At home, Plaintiff had a massage device in her bed. (Id. at 82.) When asked if she 4 could walk to the restroom without using a cane, Plaintiff testified that she could do 5 so “[s]ometimes,” but that “it takes [her] a while to get there” and she needed to use 6 her massager first. (Id.) 7 Plaintiff took Gabapentin and two other medications for pain, dizziness, 8 spasms, and tingling. (Id. at 83.) She also took medication for anxiety and 9 depression. (Id. at 83–84.) At the time of the hearing, Plaintiff’s doctor “just gave” 10 her a “new medication” which was a self-injection. (Id. at 84.) Plaintiff was 11 “scared of needles” and had not taken the new medication “yet.” (Id.) Plaintiff also 12 used lidocaine patches. (Id.) Plaintiff had recently obtained authorization from her 13 insurance provider to make an appointment with a neurologist in order to receive 14 therapy or additional treatment related to her dizziness and/or concussive injuries. 15 (Id. at 81.) 16 When asked if the ALJ “capture[d] everywhere where [Plaintiff was] 17 experiencing pain,” Plaintiff responded: “Honestly, no . . . . [L]iterally, every 18 single joint of my body hurts all the time. . . . It’s like . . . it’s everywhere in my 19 body.” (Id. at 84.) Plaintiff explained that she experienced pain in her knees, feet, 20 and torso and that her torso pain was “incapacitating” because it was “so sharp” and 21 felt “like lighting.” (Id.) Plaintiff also experienced jaw pain and migraines. (Id.) 22 On a scale of one to ten, Plaintiff reported a pain level seven or eight without 23 medication and four or five with medication. (Id. at 85.) 24 Plaintiff had experienced “a lot of trauma from the violence that led to [her] 25 injury and other injuries on [her] body from an abusive relationship, and [she] had a 26 pretty abusive childhood.” (Id. at 86.) Related to this, she had PTSD, experienced 27 anxiety and depression, and had several “concern[s] of safety” for which she was in 28 “therapy.” (Id. at 87–88.) 1 D. Analysis 2 At the first step of the two-step evaluation, the ALJ found that Plaintiff’s 3 “medically determinable impairments could reasonably be expected to cause the 4 alleged symptoms.” (Id. at 28.) At the second step, however, the ALJ found that 5 Plaintiff’s “statements concerning the intensity, persistence and limiting effects of 6 these symptoms are not entirely consistent with the medical evidence and other 7 evidence in the record for the reasons explained in [the] decision.” (Id.) 8 As the ALJ found no evidence of malingering, he was required to provide 9 specific, clear and convincing reasons for rejecting Plaintiff’s subjective symptom 10 statements. See Garrison, 759 F.3d at 1014–15. The Court may review only those 11 reasons that the ALJ specifically cited as grounds to reject Plaintiff’s subjective 12 symptom testimony. See Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) 13 (“We are constrained to review the reasons the ALJ asserts.”); Garrison, 759 F.3d 14 at 1010 (“We review only the reasons provided by the ALJ in the disability 15 determination and may not affirm the ALJ on a ground upon which he did not 16 rely.”). 17 The ALJ provided three reasons for discounting Plaintiff’s subjective 18 symptom testimony: (1) her statements were inconsistent with her treatment plan; 19 (2) her statements were inconsistent with her daily activities; and (3) her statements 20 were inconsistent with objective medical evidence in the case record. (AR 28–32.) 21 For the reasons stated below, the ALJ failed to provide a clear and 22 convincing reason based on substantial evidence in the record to reject Plaintiff’s 23 subjective symptom testimony. 24 25 1. Conservative Treatment 26 “[E]vidence of ‘conservative treatment’ is sufficient to discount a claimant’s 27 testimony regarding severity of an impairment.” Parra v. Astrue, 481 F.3d 742, 28 751 (9th Cir. 2007) (citing Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995)); 1 see also Tommasetti, 533 F.3d at 1039 (holding that a claimant’s favorable response 2 to conservative treatment permitted an inference that the pain was “not as all- 3 disabling as he reported”). Here, the ALJ discounted Plaintiff’s subjective 4 symptom testimony because “the treatment records . . . imply that [Plaintiff’s] 5 doctors have no over-arching treatment plan nor that these doctors find that 6 [Plaintiff] needs any specific treatment, aside from managed medication, for her 7 impairments.” (AR 31.) For the reasons stated below, the ALJ failed to provide 8 clear and convincing reasons based on substantial evidence in the record for his 9 conclusion. 10 11 a) Plaintiff’s Physical Impairments 12 The ALJ discredited Plaintiff’s subjective symptom testimony about her 13 physical impairments based on three findings. First, the ALJ considered Plaintiff’s 14 testimony that she used a cane and wheelchair (or “scooter”) and found that, while 15 this was consistent with evidence documenting that Plaintiff was using a cane 16 and/or scooter when examined by her treating physicians, it was inconsistent with 17 the record because it did not contain a prescription for a cane or scooter and 18 “largely document[ed] a normal gait.” (Id.) Second, the ALJ found that the record 19 contained “no evidence of [Plaintiff] receiving pain relief injections.” (Id.) Third, 20 the ALJ found that the record contained no evidence that Plaintiff required 21 additional surgical intervention since her 2022 discectomy or that she required 22 revision to this procedure. (Id.) These are not clear and convincing reasons for 23 discrediting Plaintiff’s subjective symptom testimony. 24 As an initial matter, the ALJ did not provide a single citation to support his 25 conclusion that Plaintiff’s testimony was inconsistent with her treatment plan. 26 Rather, he provided three citations in support of his finding that Plaintiff’s 27 testimony was consistent with her treatment plan as follows: (1) physical therapy 28 and occupational therapy treatment notes dated July 10, 2020 through March 29, 1 2021 corroborated Plaintiff’s testimony that she attended physical therapy (id. at 2 442–486, 639–725); (2) Dr. Minas Harutunian’s treatment note dated November 5, 3 2022 corroborated Plaintiff’s testimony that she used a scooter (id. at 610); and 4 (3) Dr. Randal Caldron’s treatment note dated December 4, 2022 corroborated 5 Plaintiff’s testimony that she used a cane and scooter (id. at 619). As for the ALJ’s 6 findings regarding inconsistency, he pointed to nothing more than a lack of 7 evidence to fully corroborate Plaintiff’s testimony. It is improper for an ALJ to 8 reject subjective testimony based “‘solely on a lack of objective medical evidence 9 to fully corroborate’ the claimant’s allegations.” Bray, 554 F.3d at 1227 (quoting 10 Bunnell, 947 F.2d at 345). 11 Regardless, the record does support Plaintiff’s testimony—indeed, the very 12 portions of the record to which the ALJ cited support such and contradict the ALJ’s 13 findings. Plaintiff testified that she used a cane to walk short distances and a 14 scooter to travel longer distances and that her doctor had prescribed such scooter. 15 (AR 81–83.) The ALJ found that the record failed to evidence such prescription 16 and “largely documented” Plaintiff’s normal gait. (Id. at 31.) But Dr. Caldron’s 17 December 4, 2022 treatment note clearly states that “[Plaintiff] was prescribed a 18 scooter after her surgery.” (Id. at 619.) It also states that Plaintiff “was able to 19 walk with a normal gait and balance but [got] tired and fatigued.” (Id. (emphasis 20 added).) And Dr. Harutunian’s November 5, 2022 treatment note clearly states that 21 Plaintiff had “poor posture.” (Id. at 610.) 22 As for the ALJ’s statement that the record contained “no evidence of 23 [Plaintiff] receiving pain relief injections” (id. at 31), this is entirely consistent with 24 Plaintiff’s testimony. Plaintiff testified that she had recently obtained a prescription 25 for self-injecting medication and that she had not used it “yet” due to her fear of 26 needles. (Id. at 84.) To the extent the ALJ’s conclusion is based on an inference 27 that Plaintiff’s pain testimony is inconsistent with her failure to follow prescribed 28 treatment or pursue more aggressive treatment, the ALJ failed to consider Plaintiff’s 1 explanation for such. See SSR 16-3p, 2016 LEXIS 4, at *25 (an ALJ also must 2 “consider and address reasons for not pursuing treatment that are pertinent to an 3 individual's case.”); see also Orn, 495 F.3d at 638 (noting that an ALJ is required to 4 consider “any explanations that the individual may provide, or other information in 5 the case record, that may explain” the individual's failure to follow a treatment 6 plan). 7 Finally, the ALJ’s statement that the record contained no evidence of Plaintiff 8 needing additional surgery or revision to her 2022 surgery (id. at 31) is entirely 9 unexplained and fails to demonstrate any inconsistency between Plaintiff’s 10 testimony and her treatment. In sum, Plaintiff testified that she continued to 11 experience pain after her surgery and continued to seek and engage in treatment for 12 such pain; the record documents such surgery and subsequent treatment. To the 13 extent the ALJ’s conclusion is based on an inference that Plaintiff’s pain testimony 14 is inconsistent because such pain would necessarily require additional surgical 15 intervention, such conclusion is entirely speculative. At best, the ALJ points to 16 evidence demonstrating Plaintiff’s pain was so severe that she underwent surgery. 17 This is consistent with her testimony. 18 19 b) Plaintiff’s Mental Health Impairments 20 The ALJ discredited Plaintiff’s subjective symptom testimony about her 21 mental impairments as follows:

22 [T]he claimant had no history of admission to a 23 psychiatric unit, and she apparently has not received 24 psychotherapy treatment, or other medical interventions in a mental health facility. The claimant also had no 25 documented history of receiving therapy from a 26 psychiatrist or psychologist, and there is no 27 documentation of the claimant’s treatment with Ms. Hart 28 /// 1 (other from Ms. Hart’s statement that she has seen the 2 claimant since February 2022 per Exhibit B18F).

4 (Id.) 5 Again, the ALJ only cited evidence that corroborates Plaintiff’s testimony. 6 Plaintiff testified that she was in therapy to treat her PTSD, depression, and anxiety. 7 (Id. at 87–88.) The ALJ cited to Licensed Marriage and Family Therapist Amy 8 Hart’s statement documenting that Plaintiff had been attending individual 9 psychotherapy on a weekly basis since February 2022 to treat her PTSD stemming 10 from “a history of emotional abuse in childhood, and subsequent later traumas, 11 including multiple incidents of sexual abuse and domestic violence into adulthood.” 12 (Id. at 744.) This is entirely consistent with Plaintiff’s testimony. 13 Again, the ALJ’s findings regarding any purported inconsistency in 14 Plaintiff’s testimony are improperly supported by nothing more than a lack of 15 evidence to fully corroborate Plaintiff’s testimony. Bray, 554 F.3d at 1227 (noting 16 it is improper for an ALJ to reject subjective testimony based “solely on a lack of 17 objective medical evidence to fully corroborate the claimant’s allegations.”) 18 (quotation omitted). Moreover, the Court agrees with Plaintiff that the ALJ’s 19 statement that Plaintiff “had no history of admission to a psychiatric unit” and “no 20 history of receiving therapy from a psychiatrist or psychologist” is not accurate. 21 (Pl.’s Br. 7.) Indeed, in Dr. Harutunian’s November 5, 2022 treatment note she 22 clearly states that Plaintiff was admitted to a psychiatric hospital in 2013, 23 subsequently received non-hospital psychiatric treatment, and “is currently seeing a 24 . . . psychiatrist, Dr. Andrea Best.” (Id. at 611.) This is consistent with Plaintiff’s 25 testimony and inconsistent with the ALJ’s findings. 26 *** 27 /// 28 /// 1 For the reasons stated above, the ALJ failed to provide clear and convincing 2 reasons based on substantial evidence in the record for discrediting Plaintiff’s 3 subjective symptom testimony.

4 5 2. Activities of Daily Living 6 An ALJ may consider activities of daily living in evaluating the intensity, 7 persistence, and limiting effects of a claimant’s symptoms. 20 C.F.R. 8 §§ 404.1529(c)(3), 416.929(c)(3). An ALJ properly may reject a claimant’s 9 subjective symptom testimony if the claimant’s conduct or daily activities are 10 inconsistent with the claimant’s expressed limitations. See, e.g., Molina v. Astrue, 11 674 F.3d 1104, 1112–13 (9th Cir. 2012); see Bray v. Comm’r of Soc. Sec. Admin., 12 554 F.3d 1219, 1227 (9th Cir. 2009). “Even where those activities suggest some 13 difficulty functioning, they may be grounds for discrediting the claimant’s testimony 14 to the extent that they contradict claims of a totally debilitating impairment.” 15 Molina, 674 F.3d at 1113. A claimant’s testimony regarding daily living activities 16 may undermine a disability claim in two ways: (1) the activity testimony may 17 contradict other testimony about severity of symptoms, or (2) the activities show that 18 the claimant is able to spend a substantial part of his or her day engaged in physical 19 functions transferable to a work setting. See Ghanim, 763 F.3d at 1165. However, it 20 is error to “merely recite[] plaintiff’s activities without taking into account her 21 alleged limitations in completing those activities.” See Robinson v. Berryhill, No. 22 ED CV 17-2238-PLA, 2018 U.S. Dist. LEXIS 133911, at *24 (C.D. Cal. Aug. 8, 23 2018). 24 Here, the ALJ discredited Plaintiff’s subjective symptom testimony for the 25 following reason: “The claimant’s activities suggest that the claimant has a better 26 capacity than she has stated in the record.” (AR 32.) The ALJ identified three 27 activities that purportedly were inconsistent with Plaintiff’s testimony: 28 (1) microwaving meals; (2) cleaning the bathroom sink and mirror; and (3) online 1 shopping while getting curbside groceries. (Id. at 31.) The ALJ relied on Exhibit 2 B3E, an October 24, 2022 Function Report (id. at 353–361), in making this 3 determination (id. at 31). With respect to microwaving meals, Plaintiff reported 4 that her “roommate makes/buys dinner [and] all meals” (id. at 352) and to the extent 5 she could prepare her own meals, she could “only microwave meals” (id. at 355). 6 With respect to cleaning, Plaintiff reported that the only household chore she could 7 perform was “clean[ing] the bathroom sink/mirror” but that she “could not scrub 8 hard” and that she relied on her roommate for all other cleaning. (Id.) With respect 9 to online shopping, Plaintiff reported that her shopping was limited to “curbside 10 pickup [for] groceries or physical aids.” (Id. at 356; see also id. at 357.) 11 These daily activities were not a valid reason for rejecting Plaintiff’s 12 subjective symptom testimony because “the ALJ did not elaborate on which daily 13 activities conflicted with which part of [Plaintiff’s] testimony.” Burrell, 775 F.3d at 14 1138. An ALJ may reject a claimant’s testimony about the severity of their 15 symptoms only by providing specific, clear, and convincing reasons for doing so, 16 which “requires the ALJ to ‘specifically identify the testimony [from a claimant] she 17 or he finds not to be credible . . . explain what evidence undermines that 18 testimony.’” Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020); Brown-Hunter, 19 806 F.3d at 494 (finding legal error where the ALJ failed to identify the testimony 20 she found not credible and did not link that testimony to the particular parts of the 21 record supporting her non-credibility determination); Treichler, 775 F.3d at 1103 22 (“The ALJ must identify the testimony that was not credible, and specify ‘what 23 evidence undermines the claimant’s complaints.’” (quoting Reddick v. Chater, 157 24 F.3d 715, 722 (9th Cir. 1988)). Here, the ALJ failed to link any parts of the record 25 to any testimony—he merely concluded that microwaving meals, light cleaning, and 26 picking up curbside groceries—“suggest[ed] . . . a better capacity” than Plaintiff 27 stated on the record. (Id. at 33.) The ALJ cited nothing in the record indicating that 28 1 Plaintiff’s participation in the identified activities exceeded the activity to which she 2 testified. 3 In fact, Plaintiff did not testify—nor did the ALJ inquire—about Plaintiff’s 4 activity regarding meal preparation, cleaning, or shopping. (See AR 78–89). With 5 respect to Plaintiff’s daily activities she testified only as follows: Plaintiff was 6 bedridden most of the day (id. at 78); she bathed once or twice a week and 7 infrequently showered (id.); she could walk for five or ten minutes at a time, stand 8 for two to four minutes at a time, sit for thirty minutes to two hours at a time, and lift 9 approximately one to three pounds (id. at 88); she used a cane to walk short 10 distances and a scooter to travel long distances (id. at 81); she experienced sickness 11 and pain during and after car rides but occasionally went to a museum or library 12 with her roommate (id.); and she relied on her roommate for physical and emotional 13 support (id. at 87–88). These statements are entirely consistent with the Function 14 Report which documents, among other things, that: Plaintiff was “physically 15 incapable of sitting up for prolonged time” and “physically incapable of showering 16 more than one day per week” (id. at 353); she experienced “excruciating pain when 17 putting a shirt overhead” and had an “inability to be upright and lather body” when 18 bathing (id. at 354); her roommate drove her “to the park at least once a week to eat 19 in the car” (id. at 356); she went to a “museum or botanical garden in a wheelchair 20 for 2 hours max[imum] every few weeks or months” (id. at 357); she had difficulty 21 trusting anyone and “lost a lot of friends, stopped going out to dance, never go[es] to 22 the movie theater, cannot sit up at dinner, and do[es not] date” (id.). 23 To whatever extent the ALJ found Plaintiff’s ability to perform these activities 24 contradicted her testimony regarding her strength, energy, or mobility, such a 25 finding mischaracterizes the evidence. Notably, the ALJ omitted the fact that, while 26 Plaintiff could clean the sink and mirror, she could “not scrub hard, sometimes 27 having no cleaning effect.” (Id. at 355 (emphasis added by Plaintiff).) An adverse 28 credibility finding based on such a characterization is erroneous. See Rawa v. 1 Colvin, 672 F. App’x 665, 666 (9th Cir. 2016) (finding that that ALJ 2 mischaracterized plaintiff’s level of activity because it omitted “a number of salient 3 and dispositive facts and details, and thus concluding that “[s]uch an inaccurate 4 representation of the record can not constitute a specific, clear, and convincing 5 reason for rejecting [the plaintiff’s] testimony.”). Moreover, the Court sees no clear 6 contradiction between Plaintiff’s ability to complete basic household chores—such 7 as microwaving meals and lightly cleaning the bathroom sink or mirror—and the 8 limiting effects of her symptoms. Ghanim, 763 F.3d at 1165 (finding “daily 9 activities, which included completing basic chores, sometimes with the help of a 10 friend, and attending occasional social events” did not support the ALJ’s adverse 11 credibility finding). 12 Finally, to the extent the ALJ concluded that the identified activities translated 13 to an ability to sustain employment, the Ninth Circuit has been clear that 14 “impairments that would unquestionably preclude work and all the pressures of a 15 workplace environment will often be consistent with doing more than merely resting 16 in bed all day.” Garrison, 759 F.3d at 1016. Indeed, a claimant need not be “utterly 17 incapacitated” to qualify for benefits. Id. (quoting Smolen, 80 F.3d at 1287 n.7). To 18 the contrary, claimants “should not be penalized for attempting to lead normal lives 19 in the face of their limitations,” and “[o]nly if [the claimant’s] level of activity were 20 inconsistent with [the claimant’s] claimed limitations would these activities have any 21 bearing on [the claimant’s] credibility.” Id. (quoting Reddick, 157 F.3d at 722 (first 22 alteration in original)). The failure of an ALJ to recognize the critical differences 23 between activities of daily living and activities in a full-time job—to wit, the 24 flexibility in scheduling at home, the ability of get help from others at home, and the 25 absence of minimum standards of performance—is a “deplorable[ ] feature of 26 opinions by administrative law judges in social security disability cases.” Id. 27 (quoting Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir. 2012)). The evidence of 28 Plaintiff’s daily activities the ALJ identified does not support the conclusion the ALJ 1 drew regarding Plaintiff’s “better capacity” and does not refute the limitations to 2 which Plaintiff testified. For the reasons discussed above, the Court finds that 3 Plaintiff’s testimony is wholly consistent with the ability to microwave meals, 4 perform light cleaning, pick up curbside groceries and the inability to function in a 5 workplace environment. 6 For the reasons stated above, Plaintiff’s daily activities were not a clear and 7 convincing reason based on substantial evidence in the record to reject Plaintiff’s 8 subjective symptom testimony. 9 10 3. Objective Medical Evidence 11 The parties dispute whether Plaintiff’s subjective symptom testimony was 12 inconsistent with the objective medical evidence. (Pl.’s Br. 6–9; Def.’s Br. 5–9.) 13 Even if the objective medical evidence did not corroborate Plaintiff’s subjective 14 allegations, lack of objective medical evidence is a legally insufficient reason on its 15 own to discount Plaintiff’s symptom testimony. See, e.g., Bunnell, 947 F.2d at 345 16 (“[A]n adjudicator may not reject a claimant’s subjective complaints based solely 17 on a lack of objective medical evidence to fully corroborate the alleged severity of 18 pain.”); Robbins, 466 F.3d at 883 (“While an ALJ may find testimony not credible 19 in part or in whole, he or she may not disregard it solely because it is not 20 substantiated affirmatively by objective medical evidence.”). Here, even assuming 21 the record supports the ALJ’s reasoning regarding the lack of support from 22 objective medical evidence, the ALJ did not identify any other clear and convincing 23 reason, supported by substantial evidence, to discount Plaintiff’s subjective 24 symptom statements. Standing alone, the purported lack of support from objective 25 medical evidence is not a legally sufficient reason to discount Plaintiff’s symptom 26 testimony. 27 * * * 28 /// 1 In sum, the ALJ’s decision does not provide specific, clear, and convincing 2 reasons for rejecting Plaintiff’s subjective symptom testimony of physical or mental 3 dysfunction. Reversal is warranted. 4 5 E. Remand for Further Proceedings 6 The decision whether to remand for further proceedings or order an 7 immediate award of benefits is within the district court’s discretion. See Harman v. 8 Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000). Where no useful purpose would be 9 served by further administrative proceedings, or where the record has been fully 10 developed, it is appropriate to exercise this discretion to direct an immediate award 11 of benefits. See id. at 1179 (“[T]he decision of whether to remand for further 12 proceedings turns upon the likely utility of such proceedings.”). However, where, 13 as here, the circumstances of the case suggest that further administrative review 14 could remedy the Commissioner’s errors, remand is appropriate. See McLeod v. 15 Astrue, 640 F.3d 881, 888 (9th Cir. 2011). Specifically, remand is warranted here 16 for reconsideration of Plaintiff’s symptom statements because the ALJ’s failure to 17 provide legally sufficient reasons for discounting such statements in the decision 18 prevents this Court from meaningfully determining whether the decision is 19 supported by substantial evidence. See Treichler, 775 F.3d at 1103 (“Because ‘the 20 agency’s path’ cannot ‘reasonably be discerned,’ we must reverse the district 21 court’s decision to the extent it affirmed the ALJ’s credibility determination.” 22 (citation omitted)). 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 2||V. ORDER 3 The Court ORDERS that judgment be entered reversing the decision of the 4 || Commissioner and remanding this matter for further administrative proceedings. 5 IT IS SO ORDERED. 6 7 || DATED: March 2, 2026 g HONORABLE MARIA A. AUDERO 9 UNITED STATES MAGISTRATE JUDGE

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21