Richard Blair v. Martin O'Malley

• Court: District Court, C.D. California
• Decided: August 23, 2024
• Docket: 5:23-cv-01553
• Status: Unknown

Opinion

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

9 10 RICHARD B.,1 Case No. 5:23-cv-01553-SSC 11 Plaintiff, 12 v. MEMORANDUM AND ORDER 13 MARTIN J. O’MALLEY,2 14 Commissioner of Social Security, 15 Defendant. 16

17 18 Plaintiff Richard B. seeks judicial review of the final decision of 19 the Commissioner of the Social Security Administration denying his 20 application for Title II disability insurance benefits. The Court finds 21 that the administrative law judge failed to provide clear and convincing 22 reasons supported by substantial evidence for rejecting Plaintiff’s self- 23 reported symptoms, and remands for further proceedings. 24 1 Plaintiff’s name is partially redacted in accordance with Rule 25 5.2(c)(2)(B) of the Federal Rules of Civil Procedure and the 26 recommendation of the Committee on Court Administration and Case Management of the Judicial Conference of the United States. 27 2 The Commissioner’s name has been updated in accordance with 1 I 2 In July 2021, Plaintiff filed an application for disability insurance 3 benefits alleging that he had been disabled since January 2019. (ECF 4 12-3 at 16, 33; ECF 12-7 at 2, 6.) His application was denied initially 5 and upon reconsideration. (ECF 12-5 at 7, 31.) He requested a hearing 6 before an administrative law judge (ALJ) (id. at 37), which was held on 7 August 9, 2022 (ECF 12-3 at 30). Plaintiff appeared with counsel, and 8 the ALJ heard testimony from Plaintiff and a vocational expert. (Id.) 9 In July 2022, the ALJ issued a decision that Plaintiff was not 10 under a disability, as defined in the Social Security Act. (Id. at 13–25.) 11 The ALJ followed a five-step sequential evaluation process to assess 12 whether Plaintiff was disabled under the Act.3 See 20 C.F.R. 13 3 The sequential evaluation of disability is set forth at 20 C.F.R. 14 §§ 404.1520 (disability insurance benefits) and 416.920 (supplemental 15 security income). Under the test: 16 A claimant must be found disabled if she proves: (1) that she is not presently engaged in a substantial gainful 17 activity[,] (2) that her disability is severe, and (3) that her 18 impairment meets or equals one of the specific impairments 19 described in the regulations. If the impairment does not meet or equal one of the specific impairments described in 20 the regulations, the claimant can still establish a prima facie 21 case of disability by proving at step four that in addition to the first two requirements, she is not able to perform any 22 work that she has done in the past. Once the claimant 23 establishes a prima facie case, the burden of proof shifts to the agency at step five to demonstrate that the claimant can 24 perform a significant number of other jobs in the national 25 economy. This step-five determination is made on the basis 26 of four factors: the claimant’s residual functional capacity, age, work experience and education. 27 Hoopai v. Astrue, 499 F.3d 1071, 1074–75 (9th Cir. 2007) (cleaned 1 §§ 404.1520(a)(4), 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 2 (9th Cir. 1995), as amended (Apr. 9, 1996), superseded by regulation on 3 other grounds. At step one, the ALJ found that Plaintiff had not 4 engaged in substantial gainful activity since January 22, 2019,4 the 5 alleged onset date. (ECF 12-3 at 18.) 6 At step two, the ALJ found that Plaintiff had the following severe 7 impairments: obesity; degenerative disk disease of the lumbar spine; 8 fibromyalgia; diabetes; sleep apnea; and hypertension. (Id.) The ALJ 9 found that these impairments significantly limited Plaintiff’s ability to 10 perform basic work activities. (Id.) At step three, the ALJ found that 11 Plaintiff did not have an impairment or combination of impairments 12 that met or medically equaled the severity of one of the listed 13 impairments in the applicable regulations. (Id. at 19–20.) 14 Before proceeding to step four, the ALJ found that Plaintiff had 15 the residual functional capacity (RFC) to perform light work, except 16 that he could “never climb ladders, ropes, or scaffolds[,] . . . occasionally 17 climb ramps and stairs, balance . . . , stoop, kneel, crouch, and crawl[,] 18 [and] . . . tolerate no exposure to hazards such as unprotected heights 19 and heavy machinery.” (Id. at 20.) As relevant here, in determining 20 Plaintiff’s RFC, the ALJ found that Plaintiff’s testimony regarding the 21 severity of his symptoms was not entirely consistent with other 22 evidence in the record. (Id. at 20, 22–23.) 23 At step four, the ALJ found that Plaintiff was unable to perform 24 his past relevant work as an industrial mechanic. (Id. at 24.) At step 25 five, the ALJ made findings of Plaintiff’s vocational profile. The ALJ 26 noted that on the alleged onset date, Plaintiff was 41 years old, defined 27 4 The ALJ found an alleged onset date of January 22, 2019, at the 1 as a younger individual, and that he had at least a high school 2 education. (Id.) The ALJ found that, considering Plaintiff’s age, 3 education, work experience, and RFC, there were jobs that existed in 4 significant numbers in the national economy that Plaintiff could have 5 performed. (Id.) Based on the testimony of a vocational expert, the ALJ 6 identified the following occupations: cleaner housekeeping, power 7 screwdriver operator, casing splitter. (Id. at 25.) Accordingly, the ALJ 8 concluded that Plaintiff was not disabled as defined by the Social 9 Security Act. (Id.) 10 The Appeals Council denied Plaintiff’s request for review, 11 rendering the ALJ’s decision the final decision of the Commissioner. 12 (Id. at 2–5.) 13 II 14 Congress has provided that an individual may obtain judicial 15 review of any final decision of the Commissioner of Social Security 16 regarding entitlement to benefits. 42 U.S.C. § 405(g). A court must 17 affirm an ALJ’s findings of fact if they are supported by substantial 18 evidence, and if the proper legal standards were applied. Mayes v. 19 Massanari, 276 F.3d 453, 458–59 (9th Cir. 2001). “‘Substantial 20 evidence’ means more than a mere scintilla, but less than a 21 preponderance; it is such relevant evidence as a reasonable person 22 might accept as adequate to support a conclusion.” Lingenfelter v. 23 Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (citing Robbins v. Soc. Sec. 24 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). 25 “[A] reviewing court must consider the entire record as a whole 26 and may not affirm simply by isolating a specific quantum of supporting 27 evidence.” Hill v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012) (quoting 1 However, it is not this Court’s function to second guess the ALJ’s 2 conclusions and substitute its own judgment for the ALJ’s. See Burch v. 3 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (“Where evidence is 4 susceptible to more than one rational interpretation, it is the ALJ’s 5 conclusion that must be upheld.”). 6 The Court may review only “the reasons provided by the ALJ in 7 the disability determination and may not affirm the ALJ on a ground 8 upon which he did not rely.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 9 2007) (citing Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003)). 10 The Court will not reverse the Commissioner’s decision if it is based on 11 harmless error, which exists if the error is “‘inconsequential to the 12 ultimate nondisability determination,’ or that, despite the legal error, 13 ‘the agency’s path may reasonably be discerned . . . .’” Brown-Hunter v. 14 Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (citation omitted). 15 III 16 Plaintiff contends that the ALJ erred in discrediting his 17 subjective-symptom testimony.5 (ECF 17 at 10–16.) The Court agrees. 18 A 19 Plaintiff submitted both oral and written testimony. At the 20 hearing before the ALJ, Plaintiff testified that he “ha[d] pain” due to 21 fibromyalgia, including “pain in [his] wrists and [his] elbows, joints, 22 things like that.” (ECF 12-3 at 38.) He stated that “every day . . . is 23 different” in that he has “pain in different areas” and “fe[lt] 24 5 Plaintiff argues that the ALJ erred in several other ways. (ECF 25 17 at 2–10.) The Court finds the issue addressed herein to necessitate 26 remand, and thus, declines to address the remaining issues. See Hiler 27 v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012) (“Because we remand the case to the ALJ for the reasons stated, we decline to reach [plaintiff’s] 1 different . . . body-wise.” (Id. at 44.) Generally, he felt “stiff all the 2 time” and experienced daily painful “attacks or something” in his joints. 3 (Id. at 43–44.) He stated he had “gained some weight” because he was 4 “in a lot of pain” and had not “been active at all.” (Id. at 39.) During 5 the hearing itself, Plaintiff alleged that his “knees and [his] ankles 6 [we]re giving [him] problems.” (Id. at 41.) 7 Plaintiff described taking pain medication, including Motrin and 8 Tylenol regularly, and Percocet “once or twice every couple weeks,” 9 “when it[ was] just really bad,” and he was at “the peak of [his] pain,” 10 which would “basically put[] him to sleep.” (Id. at 41, 46.) He also 11 stated that, approximately “once every couple weeks” or “once a week,” 12 depending on his pain level and the location of the pain, he would “try 13 and do the stretches” recommended by his doctor. (Id. at 43.) 14 As to his limitations, Plaintiff stated that he did not “go upstairs” 15 in his home because it was “really hard to get up and down stairs,” and 16 he did not “feel safe” or “sturdy” doing so. (Id. at 37) Plaintiff testified 17 that he felt unstable on his feet and “like [his] back [was] just going to 18 let [him] drop to the floor.” (Id. at 40.) He stated that he “ha[d] fallen” 19 before but did not “know if it was a result of [his] conditions.” (Id. at 20 43.) Plaintiff alleged that “one of [his] main issues” was his inability to 21 stand for more than “10 minutes.” (Id. at 39.) He also stated that he 22 could walk no more than “probably 20 minutes” before stopping because 23 he was “in pain or uncomfortable” and might need “to lean” or “hold 24 [him]self up.” (Id. at 39–40.) Plaintiff described needing to lean on 25 walls or furniture when walking and “leaning on the railing” if climbing 26 stairs. (Id. at 37, 40.) He stated that he could not “walk at a normal 27 pace” and “walk[ed] slower” because he was “usually limping.” (Id. at 1 device to get around but “probably should [have been] using a cane.” 2 (Id.) 3 Plaintiff also testified that he could sit for a similar amount of 4 time, alternating with lying on the couch. (Id. at 40–41.) On the days 5 when his knees and ankles, or some other body part, were hurting, he 6 would instead lie “on [the] couch and ha[ve] [his] feet kind of up, resting 7 on a pillow for a little while.” (Id. at 41.) He further qualified that his 8 ability to sit depended on his back-pain that day, and when his back 9 hurt, he did more lying than sitting. (Id.) Generally, there was “not 10 really anywhere that [he] stay[ed] in one position” because he was 11 “always just trying to get comfortable. (Id.) Plaintiff also stated that he 12 “tr[ied] not to do much lifting,” and that he could, at most, “carry a 13 gallon of milk from the car.” (Id. at 41–42.) 14 Regarding his daily life, Plaintiff testified that he resided with his 15 fiancée and his two children, aged seventeen and seven. (Id. at 37.) 16 Plaintiff did not do any household chores other than briefly “run[ning] 17 the vacuum” to clean up after himself if he dropped something. (Id. at 18 44.) His family took care of the pets because he experienced back-pain 19 with “[a]ny type of bending.” (Id. at 47.) He alleged that he limited his 20 driving by not “tak[ing] far trips” and would make stops every “30 21 minutes” because he could not “just sit in that one position.” (Id. at 43.) 22 He also described limitations in taking care of personal needs, stating, 23 for example, that on days when he experienced “a lot” of pain, he could 24 not stand to brush his teeth. (Id. at 44.) 25 In addition, Plaintiff testified that he had “major sleep apnea” and 26 “use[d] a CPAP,” but, as he still struggled to fall asleep and maintain 27 sleep, he did not think it was helping. (Id. at 44–45.) He described 1 During the day, he would nap “maybe several times” and sometimes 2 would “sleep the whole day away,” staying up “for an hour or two” after 3 waking up in the morning, then “go[ing] back to sleep the rest of the 4 day” and waking up at “9 or 10:00 at night.” (Id. at 46.) Plaintiff stated 5 that, even on a “good day,” he would likely “fall asleep” during the day 6 for “[m]aybe an hour.” (Id. at 46–47). 7 In December 2021, Plaintiff filled out a Function Report6 that 8 described how his impairments impacted his activities of daily living. 9 (ECF 12-8 at 53–60.) His statements in the Function Report largely 10 tracked his hearing testimony, but Plaintiff additionally reported 11 “car[ing] for [his] 17yr old and 6yr old children” and being the adult at 12 home when they returned from school. (Id. at 54.) He also wrote that, 13 “maybe a couple times a week,” he would “make a sandw[]ich or frozen 14 dinner.” (Id. at 55.) 15 B 16 Plaintiff argues that the ALJ erred in evaluating this subjective- 17 symptom testimony. (ECF 17 at 10–16.) “Where, as here, [Plaintiff] 18 has presented evidence of an underlying impairment and the 19 government does not argue that there is evidence of malingering, [the 20 Court] review[s] the ALJ’s rejection of [Plaintiff’s] testimony for specific, 21 clear and convincing reasons.” Burrell v. Colvin, 775 F.3d 1133, 1136 22 6 The SSA uses standardized forms to gather information about 23 the functional ability of a claimant. Called Function Reports, they are 24 often submitted by a claimant or family members. See 20 C.F.R. § 416.929 (“We will consider all of your statements about your 25 symptoms, such as pain, and any description your medical sources or 26 nonmedical sources may provide about how the symptoms affect your 27 activities of daily living and your ability to work.”); Function Report – Adult, OMB 0960-0681, https://omb.report/omb/0960-0681 (last visited 1 (9th Cir. 2014) (en banc) (footnote omitted). This is not an easy 2 requirement to meet: “[t]he clear and convincing standard is the most 3 demanding required in Social Security cases.” Moore v. Comm’r of Soc. 4 Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002). 5 The ALJ found that Plaintiff’s impairments could be expected to 6 cause his alleged symptoms, but that his “statements concerning the 7 intensity, persistence and limiting effects of these symptoms [we]re not 8 entirely consistent with the medical evidence and other evidence in the 9 record . . . .” (ECF 12-3 at 23.) The ALJ noted two areas of 10 inconsistency, neither of which amounted to a clear and convincing 11 reason.7 12 1 13 First, the ALJ made a finding of inconsistency based on evidence 14 of Plaintiff’s self-reported daily activities. Specifically, the ALJ noted 15 that Plaintiff “cares for his two children and he is the adult at home 16 when they come home from school,” was “able to make simple meals,” 17 and could “drive[] for short periods of time.” (Id.) 18 To discredit Plaintiff’s allegations, the ALJ was required to 19 “mak[e] specific findings relating to those activities,” showing that they: 20

21 7 The Court discusses two inconsistencies in the sections below. 22 The ALJ noted a third—that the objective medical evidence “fail[s] to provide strong support for the claimant’s allegations of disabling 23 symptoms and limitations” and “do[es] not support the existence of 24 limitations greater than [the RFC].” (ECF 12-3 at 20.) On its own, this was not a sufficient reason to discount Plaintiff’s testimony. See Rollins 25 v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (“While an ALJ may 26 find testimony not credible in part or in whole, he or she may not 27 disregard it solely because it is not substantiated affirmatively by objective medical evidence.”). Because the ALJ stated no other legally 1 (1) contradict the claimant’s testimony; and/or (2) meet the threshold for 2 transferable work skills. Burch, 400 F.3d at 681 (“if a claimant engages 3 in numerous daily activities involving skills that could be transferred to 4 the workplace, the ALJ may discredit the claimant’s allegations upon 5 making specific findings relating to those activities”); see Molina v. 6 Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012) (even where daily activities 7 “suggest some difficulty functioning, they may be grounds for 8 discrediting the claimant’s testimony to the extent that they contradict 9 claims of a totally debilitating impairment”), superseded by regulation 10 on other grounds. The ALJ did neither. 11 As to contradiction with the testimony, the ALJ stated only that 12 Plaintiff’s self-reported ability to care for children at home without 13 assistance could be “quite demanding both physically and 14 emotionally . . . .” (Id. at 22.) This general finding is insufficient. See 15 Burrell, 775 F.3d at 1138 (“[courts] may not take a general finding—an 16 unspecified conflict between [c]laimant’s testimony about daily 17 activities and h[is] reports to doctors—and comb the administrative 18 record to find specific conflicts”). 19 “[A]ctivities, such as childcare, may support an ALJ’s decision 20 when it can be determined that they are performed for a substantial 21 part of the day.” Bridget A. A. v. Saul, No. 5:20-cv-01163-JDE, 2021 WL 22 2634822, at *5 (C.D. Cal. June 25, 2021) (collecting cases). Plaintiff’s 23 written testimony that he provided after-school care for his children, 24 aged six and seventeen, does not necessarily represent a substantial 25 portion of his day. (ECF 12-8 at 54.) Moreover, the ALJ did not support 26 this discussion with specific findings concerning the nature of Plaintiff’s 27 care of his children. Compare Trevizo v. Berryhill, 871 F.3d 664, 676 1 including whether or how often plaintiff “picked up the children, played 2 with them, bathed them, ran after them, or did any other tasks that 3 might undermine her claimed limitations,” ALJ conclusion was 4 unsupported) with Rollins, 261 F.3d at 857 (plaintiff’s claim of totally 5 disabling pain undermined by self-report that she attended to ‘all of 6 [her] children’s needs; meals, bathing, emotional, discipline, etc.,’ from 7 early in the morning until 10 p.m.). Nor did the ALJ point to specific 8 portions of the testimony that were rendered inconsistent. See Burrell, 9 775 F.3d at 1138. The purported contradiction is not otherwise obvious 10 to the Court. 11 The remaining activities identified by the ALJ suffer similarly. 12 The ALJ provided no explanation concerning the purported 13 inconsistency between Plaintiff’s testimony and his ability to make 14 simple meals and drive for short periods of time. See id. Moreover, 15 these types of daily activities do not bely Plaintiff’s testimony 16 concerning his inability to work. The Ninth Circuit “has repeatedly 17 asserted that the mere fact that a plaintiff has carried on certain daily 18 activities, such as grocery shopping, driving a car, or limited walking for 19 exercise, does not in any way detract from h[is] credibility as to h[is] 20 overall disability.” Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 21 2001); see also Ferguson v. O’Malley, 95 F.4th 1194, 1203 (9th Cir. 2024) 22 (“watching television and playing video games, help[ing] care for his 23 mother’s wild cats, prepar[ing] simple meals, going out to his shop to 24 work on projects,” “walk[ing] every now and then,” “attend[ing] to basic 25 self-care,” and “driving a vehicle” not readily inconsistent with 26 plaintiff’s testimony concerning severe headaches that occurred two or 27 three times a week (cleaned up)); Tina M. v. Comm’r of Soc. Sec., 418 F. 1 simple meals, feed her dogs, dress herself, bathe, load the dishwasher, 2 do laundry, and vacuum” did not contradict testimony about symptoms 3 stemming from fibromyalgia). 4 As to the second prong of the requisite analysis, the ALJ did not 5 discuss how the enumerated activities demonstrate transferrable work 6 skills, presumably relying only on the first prong. See Burch, 400 F.3d 7 at 681. Thus, the ALJ’s finding that Plaintiff’s symptom testimony was 8 inconsistent with his daily activities is not convincing. 9 2 10 Second, relying on Plaintiff’s self-reports to medical providers in 11 treatment notes, the ALJ found Plaintiff’s symptom testimony 12 inconsistent because “[a]t certain points in the record the claimant was 13 exercising” at a “moderate to strenuous level.” (ECF 12-3 at 22.) An 14 ALJ may reject a plaintiff’s symptom testimony when it is contradicted 15 by the medical evidence. See Carmickle v. Comm’r, Soc. Sec. Admin., 16 533 F.3d 1155, 1161 (9th Cir. 2008); Tommasetti v. Astrue, 533 F.3d 17 1035, 1039 (9th Cir. 2008). But the ALJ must explain how the medical 18 evidence contradicts the plaintiff’s testimony. See Dodrill v. Shalala, 12 19 F.3d 915, 918 (9th Cir. 1993). The Court finds that the ALJ failed to 20 identify sufficiently any actual inconsistencies. 21 As noted by the ALJ, the treatment records reflect that, at 22 various points, Plaintiff reported engaging in exercise “at a moderate to 23 strenuous level.” (ECF 12-9 at 91 (“exercises 30 minutes per week at a 24 moderate to strenuous level”), 116 (“exercises 120 minutes per week at 25 a moderate to strenuous level”), 134 (“exercises 60 minutes per week at 26 a moderate to strenuous level”); ECF 12-10 at 65 (“[e]xercises 20 27 minutes 1 days per week at a moderate or strenuous level”), 66 1 level”), 70 (“[e]xercises 20 minutes 2 days per week at a moderate or 2 strenuous level”), 71 (“[e]xercises 20 minutes 1 days per week at a 3 moderate or strenuous level”), 76 “[e]xercises 30 minutes 2 days per 4 week at a moderate or strenuous level”).) Medical records also 5 document periods of time during which Plaintiff reported abstaining 6 entirely from exercise. (ECF 12-9 at 7 (“exercises 0 minutes 0 days per 7 week at a moderate or strenuous level”), 8 (same), 78 (“current exercise 8 activities: none reported”), 205 (“exercises 0 minutes per week at a 9 moderate to strenuous level”); ECF 12-10 at 71 (“[e]xercises 0 minutes 0 10 days per week at a moderate or strenuous level”), 109 (same). 11 Generally, the ALJ was permitted to weigh all of this evidence and 12 resolve it in favor of a finding of inconsistency. See Brown-Hunter, 806 13 F.3d at 492. However, because the ALJ failed sufficiently to develop the 14 record as to the nature of the exercise, it does not necessarily 15 demonstrate inconsistency. See Gonzalez v. Sullivan, 914 F.2d 1197, 16 1201 (9th Cir. 1990) (ALJ erred in discrediting pain testimony based on 17 plaintiff’s report of walking one to one-and-a-half miles twice a day); 18 Bridget D. v. Kilolo Kijakazi, No. 2:20-cv-6198-SK, 2021 WL 5917117, at 19 *1 (C.D. Cal. Sept. 27, 2021) (plaintiff’s reported swimming insufficient 20 reason to discredit testimony where ALJ did not develop record 21 concerning nature and extent); Sanchez v. Colvin, No. CV 16-05136- 22 KES, 2017 WL 3971846, at *11 (C.D. Cal. Sept. 7, 2017) (because record 23 was ambiguous as to nature and extent, treatment notes’ references to 24 swimming and walking did not support ALJ’s conclusion that plaintiff’s 25 ability to exercise was inconsistent with her claimed limitations). It is 26 unclear to what kind of exercise the treatment records refer, and 27 whether or how such exercise was inconsistent with specific portions of 1 active at all” around the time of the hearing. (ECF 12-3 at 39.) 2 Plaintiff did not testify that he abstained entirely from exercise 3 throughout the alleged disability period. In addition, Plaintiff 4 explained that every day is different in relation to his pain in different 5 body parts. (Id. at 44.) He stated that, depending on his pain level and 6 the location of the pain, he might sometimes do stretches recommended 7 by his doctor. (Id. at 43.) None of this testimony is obviously 8 inconsistent. Thus, the ALJ erred in relying on this ground to reject 9 Plaintiff’s testimony without inquiring further. 10 Next, to discredit Plaintiff’s complaints based on evidence of daily 11 activities such as exercise, the ALJ was required to find that Plaintiff 12 could spend “a substantial part of his day engaged in pursuits involving 13 the performance of physical functions that [were] transferable to a work 14 setting.” See Fair v. Bowen, 885 F.2d 597, 602 (9th Cir. 1989), 15 superseded by regulation on other grounds; Bullington v. Astrue, No. 11- 16 CV-2459-LAB(JMA), 2013 WL 1147725, at *17 (S.D. Cal. Feb. 13, 2013) 17 (ALJ erred in rejecting testimony based on reported ability to walk 3–4 18 times a week for 30 minutes at a time and at-home stretching exercises 19 because plaintiff did not do those daily), report and recommendation 20 adopted as modified, No. 11cv2459-LAB (JMA), 2013 WL 1147649 (S.D. 21 Cal. Mar. 19, 2013). The records cited by the ALJ note that Plaintiff 22 exercised, at most, several times per week. And the ALJ neither made 23 the requisite showing that Plaintiff spent a substantial part of his day 24 engaging in exercise, nor, as discussed above, that the nature of the 25 exercise rendered it transferable to a work setting. 26 Finally, there is evidence in the record that exercise was a 27 treatment recommendation for Plaintiff’s fibromyalgia condition (ECF 1 low back pain . . . . exercise does not seem to help”), 137 (“The primary 2 management recommendation for fibromyalgia is to do regular exercise 3 most days of the week.”), 173 (same)), and exercise was recommended 4 as part of a weight-management workshop (ECF 12-10 at 70, 76). The 5 Ninth Circuit has found no inconsistency where a plaintiff engages in 6 certain exercises “despite pain for therapeutic reasons.” Vertigan, 260 7 F.3d at 1050 (emphasis in original). Thus, absent any finding that 8 Plaintiff was engaging in non-therapeutic exercise inconsistent with his 9 alleged limitations, the ALJ erred in rejecting Plaintiff’s testimony on 10 this ground. See id.; Maryanne M. v. Saul, No. 3:19-CV-02008-AHG, 11 2021 WL 1186830, at *10 (S.D. Cal. Mar. 30, 2021) (ALJ failed to 12 explain how plaintiff’s reports of daily stretching and swimming once or 13 twice per week “to take pressure off of her spine” were inconsistent with 14 her alleged limitations). 15 Accordingly, the ALJ erred in rejecting Plaintiff’s testimony.8 16 *** 17 Because the ALJ did not provide at least one supported, clear and 18 convincing reason to reject Plaintiff’s subjective-symptom testimony, 19 the ALJ’s error was not harmless. See Molina, 674 F.3d at 1115 (“an 20

21 8 Defendant contends that the ALJ cited two additional grounds to 22 reject Plaintiff’s testimony: (1) lack of mental-health treatment, and (2) “improvement with treatment” as to Plaintiff’s physical conditions. 23 (ECF 22 at 13–14 (citing ECF 12-3 at 19, 21, 24).) The ALJ made no 24 such conclusions. The ALJ merely repeated, elsewhere in the decision, certain relevant notations as they appeared in the medical records. 25 (ECF 12-3 at 21, 24.) The ALJ did not raise these in relation to 26 rejecting Plaintiff’s testimony, and the Court may “review only the 27 reasons provided by the ALJ in the disability determination and may not affirm the ALJ on a ground upon which he did not rely.” Orn, 495 1 | ALJ’s error was harmless where the ALJ provided one or more invalid 2 | reasons for disbelieving a claimant’s testimony, but also provided valid 3 | reasons that were supported by the record”). 4 IV 5 Remand is appropriate on the ground that the ALJ did not 6 | identify legally sufficient reasons for rejecting Plaintiff's subjective- 7 | symptom testimony. The outstanding issues concerning Plaintiffs 8 | alleged disability “should be resolved through further proceedings on an 9 | open record before a proper disability determination can be made by the 10 | ALJ in the first instance.” Brown-Hunter, 806 F.3d at 496. 11 ORDER 12 For the reasons set forth above, IT IS ORDERED that Judgment 13 | shall be entered REVERSING the decision of the Commissioner 14 | denying benefits and REMANDING this action for further proceedings 15 | consistent with this Memorandum and Order. 16 17 | DATED: August 23, 2024 □□ 18 19 HONORABLE STEPHANIE 8S. CHRISTENSEN 50 UNITED STATES MAGISTRATE JUDGE

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