(SS) Mull v. Commissioner of Social Security

• Court: District Court, E.D. California
• Decided: June 10, 2025
• Docket: 1:24-cv-01503
• Status: Unknown

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 LARRY MULL, Case No. 1:24-cv-01503-SKO

11 Plaintiff, ORDER ON PLAINTIFF’S SOCIAL SECURITY COMPLAINT 12 v. (Doc. 1) 13 FRANK BISIGNANO, Commissioner of Social Security,1 14 15 Defendant. 16 I. INTRODUCTION 17 On December 10, 2024, Plaintiff Larry Mull (“Plaintiff”) filed a complaint under 42 18 U.S.C. § 405(g) seeking judicial review of a final decision of the Commissioner of Social Security 19 (the “Commissioner” or “Defendant”) denying his application for Supplemental Security Income 20 (“SSI”) under Title II of the Social Security Act (the “Act”). (Doc. 1.) The matter is currently 21 before the Court on the parties’ briefs, which were submitted, without oral argument, to the 22 Honorable Sheila K. Oberto, United States Magistrate Judge.2 23 II. FACTUAL BACKGROUND 24 On July 30, 2021, Plaintiff filed an application for SSI payments, alleging he became 25 disabled on April 9, 2017. (Compl. ¶ 4). 26 1 On May 6, 2025, Frank Bisignano was appointed the Commissioner of the Social Security Administration. See 27 https://www.ssa.gov/news/press/releases/2025/#2025-05-07. He is therefore substituted as the defendant in this action. See 42 U.S.C. § 405(g) (referring to the “Commissioner’s Answer”); 20 C.F.R. § 422.210(d) (“the person holding the 28 Office of the Commissioner shall, in his official capacity, be the proper defendant”). 1 Plaintiff was born on April 7, 1969, and was 53 years old on the application date. (AR 94). 2 A. Relevant Medical Evidence3 3 Plaintiff has had extensive medical evaluation, treatment, and care from numerous providers 4 related to a myriad of complaints regarding his physical health. He repeatedly alleged ongoing pain 5 and functional limitations related to various conditions. (See e.g., AR 864, 866–69 (pain); 821, 827, 6 832, 835, 864, 867, 870 (limited range of motion); and 691, 694, 698, 795, 798, 800, 802, 804, 806, 7 810, 813, 815 (abnormal gait)). 8 Plaintiff suffered a gunshot wound in his left thigh as a child, which resulted in large missing 9 area of the underlying muscle and a variety of other complications. (See AR 425, 478, 815.) He 10 frequently reported pain in his left leg, (see, e.g., AR 426); low back, (see, e.g., AR 438, 864); right 11 hip, (see, e.g., AR 544); and right knee, (see, e.g., id.). He also experienced recurrent cellulitis of 12 his leg, (see AR 425); left leg swelling with erythema, (see AR 426); a left leg limp, (see AR 815); 13 decreased range of motion in his left knee, (see AR 810); pain with range of motion in his right hip 14 and both knees, (see AR 815); joint swelling, (see AR 438); myalgias, (see id.); tenderness and 15 decreased range of motion in his lumbar spine, (see AR 867); atrophy in his left hip and thigh, (see 16 id.); and carpal tunnel syndrome, (see AR 691). 17 In 2019, Plaintiff was hospitalized for a bout of his recurrent cellulitis. (See AR 425.) After 18 he was discharged, he attended a follow-up appointment in which doctors noted Plaintiff’s ongoing 19 leg pain, but also that “[t]he patient is currently otherwise doing well without any complaints or 20 pain.” (AR 382). And during a visit to Kern Valley Medical Center that same year, Plaintiff 21 reported experiencing “leg pain” that is “a chronic problem” that “occurs constantly” and is 22 “unchanged” since its onset a year prior. (AR 437.) During that visit, doctors also noted that his 23 “associated symptoms include joint swelling, myalgias, and swollen glands” and that Plaintiff 24 reported that “treatment has provided no relief.” (Id.) 25 In 2022, Plaintiff sought medical attention from the Sienna Wellness Institute for ingrown 26 toenails and an associated concern about a fungus that was turning his toes black. (See AR 720). 27 He continued seeking care for this concern for about a year. (See AR 708–23.) 28 1 In 2023, Plaintiff received medical care from the California Neurology Institute for ongoing 2 symptoms related to carpal tunnel syndrome. (AR 690–707.) Despite compliance with wrist bracing 3 and a referral to physical therapy, Plaintiff reported “continu[ing] to have numbness and tingling of 4 his upper extremities,” “minimal relief” from the bracing, and that physical therapy “mad[e] his 5 symptoms worse.” (AR 697). Also in 2023, during a visit with the Pain Institute of Central 6 California, Plaintiff reported “[t]enderness in the midline at L4 – moderate, at L5 – moderate” and 7 records reflect that “patient ha[d] decreased range of motion with respect to flexion and extension . . . 8 [t]he range of motion is causing the patient to have increased pain.” (AR 864.) Those records also 9 note that Plaintiff experienced “aggravated symptoms with exertional activities, such as prolonged 10 standing, prolonged sitting, walking long distances, lifting, bending and getting up from a bent 11 position.” (AR 864.) 12 Plaintiff’s records include some normal findings as well as more specific examination 13 results and reports that tend to color and contextualize those “normal” findings. (See, e.g. AR 438 14 (noting “normal gait” and “normal strength” but also including statements that Plaintiff’s 15 musculoskeletal symptoms were “[p]ositive for back pain, joint swelling and myalgias” and that in 16 his “left upper leg,” he “exhibit[ed] tenderness, swelling and edema”).) 17 B. Administrative Proceedings 18 The Commissioner denied Plaintiff’s application for benefits initially on July 29, 2022, and 19 again on reconsideration on January 11, 2023. (AR 94–113, 115–36.) Consequently, Plaintiff 20 requested a hearing before an Administrative Law Judge (“ALJ”). (AR 150.) On January 17, 2024, 21 Plaintiff appeared with counsel and testified before an ALJ as to his alleged disabling conditions. 22 (AR 36–54.) 23 Plaintiff testified that he worked as a tile setter until 2017, at which point he stopped working 24 because “he had a gunshot wound to the left side and it was just too much weight, [he] couldn’t bend 25 over and pick stuff up or do things and [his] boss ended up firing [him] because of his disability.” 26 (AR 42.) The ALJ inquired why Plaintiff stopped work sixteen years after he had suffered the injury, 27 to which Plaintiff explained, “I was taking a bunch of pills and stuff so [he] could get through the 28 pain of working but after a while there were side effects,” and “once he quit [the medication] then 1 things started really hurting where [he] could not physically do what [he] was supposed to be doing.” 2 (Id.) Plaintiff continued to explain that while he was working, he did have some trouble picking 3 things up and bending over. (AR 43.) He also noted that he had hurt his back while working. (AR 4 43–44.) 5 In response to the ALJ’s inquiry as to what “symptoms” or “difficulties” precluded him from 6 working, Plaintiff responded, “my left thigh, my lower back, my upper neck, C4, 5, and 6, and then 7 just great pain.” (AR 45.) He also explained that “[t]he C4, 5, and 6 in [his] neck is pinching a 8 nerve, so [his] left arm goes numb to where [he] can’t do anything with it.” (Id.) 9 A vocational expert (“VE”) also testified at the hearing. (AR 305–07.) 10 C. The ALJ’s Decision 11 In a decision dated March 15, 2024, the ALJ found that Plaintiff was not disabled, as defined 12 by the Act. (AR 17–29.) 13 In that decision, the ALJ conducted the five-step disability analysis set forth in 20 C.F.R. 14 § 416.920. (AR 19–29.). The ALJ decided that Plaintiff had not engaged in substantial gainful 15 between Plaintiff’s alleged onset date, April 9, 2017, through his last insured date, December 31, 16 2022 (Step One). (AR 20). At Step Two, the ALJ found Plaintiff’s following impairments to be 17 severe: obesity, osteoarthritis, degenerative disc disease of the lumbar, bilateral carpal tunnel 18 syndrome, hepatitis C, gunshot wound of left leg, affective disorder, anxiety disorder, and 19 substance use disorder. (Id.) The ALJ further determined that Plaintiff did not have an impairment 20 or combination of impairments that met or medically equaled one of the listed impairments in 20 21 C.F.R. Part 404, Subpart P, Appendix 1 (“the Listings”) (Step Three). (AR 20–27.) 22 The ALJ then assessed Plaintiff’s residual functional capacity (RFC)4 and applied the 23 assessment at steps four and five. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4) (“Before we go 24

25 4 RFC is an assessment of an individual’s ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis of 8 hours per day, for 5 days per week, or an equivalent work schedule. 26 TITLES II & XVI: ASSESSING RESIDUAL FUNCTIONAL CAPACITY IN INITIAL CLAIMS, Social Security Ruling (“SSR”) 96-8P (S.S.A. July 2, 1996). The RFC assessment considers only functional limitations and restrictions that result 27 from an individual’s medically determinable impairment or combination of impairments. Id. “In determining a claimant’s RFC, an ALJ must consider all relevant evidence in the record including, inter alia, medical records, lay 28 evidence, and ‘the effects of symptoms, including pain, that are reasonably attributed to a medically determinable 1 from step three to step four, we assess your residual functional capacity . . . . We use this residual 2 functional capacity assessment at both step four and step five when we evaluate your claim at these 3 steps.”). The ALJ determined that Plaintiff had the RFC 4 to perform light work as defined in 20 CFR 416.967(b), except he is capable of occasional pushing or pulling with the left leg, occasional climbing of ramps or 5 stairs, and never climbing of ladders, ropes or scaffolds. He was capable of occasional stooping, occasional kneeling, occasional crouching, and occasional 6 crawling. He could work where there is no hazards such as dangerous moving 7 machinery or unprotected heights. He is capable of understanding and remembering simple and detailed, but not complex, instructions. He is capable of 8 performing simple and repetitive tasks, and he can perform work, that once assigned, should be performed primarily alone, without working in coordination 9 with other employees, and does not require constant supervision. He can tolerate 10 occasional and superficial contact with the public. He is capable of occupations that can be performed by someone using a cane to ambulate away from the work 11 station. 12 (AR 22.) Although the ALJ recognized that “the record reflects the claimant’s history of obesity, 13 osteoarthritis, degenerative disc disease of the lumber, hepatitis C, status post gunshot wound of 14 the left leg, affective disorder, anxiety disorder, and substance abuse,” (AR 22–23), the ALJ 15 determined that “the weight of the objective evidence does not support the claimant’s claims of 16 disabling limitations to the degree alleged,” (AR 23.) 17 The ALJ next made the following findings: Plaintiff (1) could no longer perform any past 18 relevant work; (2) fell into the category of “a younger individual” at the time the application was 19 filed but had changed age category since that time to “closely approaching advanced age;” and (3) 20 had a limited education (Step Four). (AR 27.) In light of those findings along with the ALJ’s 21 determination of Plaintiff’s RFC, the ALJ further found that “there are jobs that exist in significant 22 numbers in the national economy that [Plaintiff] can perform” (Step Five)—routing clerk, sorter, 23 and small parts assembler. (AR 28.) 24 D. Review of the ALJ’s Decision 25 Plaintiff sought review of this decision before the Appeals Council, which denied review 26 on October 31, 2024. (AR 1–3.) Therefore, the ALJ’s decision became the final decision of the 27 Commissioner. 20 C.F.R. § 416.1481. On December 10, 2024, Plaintiff filed a Complaint in the 28 U.S. District Court seeking judicial review of the Commissioner’s final decision. (Doc. 1.) 1 III. LEGAL STANDARD 2 A. Applicable Law 3 An individual is considered “disabled” for purposes of disability benefits if they are unable 4 “to engage in any substantial gainful activity by reason of any medically determinable physical or 5 mental impairment which can be expected to result in death or which has lasted or can be expected 6 to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). However, 7 “[a]n individual shall be determined to be under a disability only if [their] physical or mental 8 impairment or impairments are of such severity that [they] are not only unable to do [their] previous 9 work but cannot, considering [their] age, education, and work experience, engage in any other kind 10 of substantial gainful work which exists in the national economy.” Id. § 423(d)(2)(A). 11 “The Social Security Regulations set out a five-step sequential process for determining 12 whether a claimant is disabled within the meaning of the Social Security Act.” Tackett v. Apfel, 180 13 F.3d 1094, 1098 (9th Cir. 1999) (citing 20 C.F.R. § 404.1520); see also 20 C.F.R. § 416.920. The 14 Ninth Circuit has provided the following description of the sequential evaluation analysis: 15 In step one, the ALJ determines whether a claimant is currently engaged in 16 substantial gainful activity. If so, the claimant is not disabled. If not, the ALJ proceeds to step two and evaluates whether the claimant has a medically severe 17 impairment or combination of impairments. If not, the claimant is not disabled. If so, the ALJ proceeds to step three and considers whether the impairment or 18 combination of impairments meets or equals a listed impairment under 20 C.F.R. pt. 404, subpt. P, [a]pp. 1. If so, the claimant is automatically presumed disabled. If 19 not, the ALJ proceeds to step four and assesses whether the claimant is capable of 20 performing [their] past relevant work. If so, the claimant is not disabled. If not, the ALJ proceeds to step five and examines whether the claimant has the [RFC] . . . to 21 perform any other substantial gainful activity in the national economy. If so, the claimant is not disabled. If not, the claimant is disabled. 22 23 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005); see, e.g., 20 C.F.R. § 416.920(a)(4) (providing 24 the “five-step sequential evaluation process” for SSI claimants). “If a claimant is found to be 25 ‘disabled’ or ‘not disabled’ at any step in the sequence, there is no need to consider subsequent 26 steps.” Tackett, 180 F.3d at 1098 (citing 20 C.F.R. § 404.1520); 20 C.F.R. § 416.920. 27 “The claimant carries the initial burden of proving a disability in steps one through four of 28 the analysis.” Burch, 400 F.3d at 679 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989)). 1 “However, if a claimant establishes an inability to continue [their] past work, the burden shifts to 2 the Commissioner in step five to show that the claimant can perform other substantial gainful work.” 3 Id. (citing Swenson, 876 F.2d at 687). 4 B. Scope of Review 5 1. Review of an ALJ’s Findings for Substantial Evidence 6 “This court may set aside the Commissioner’s denial of disability insurance 7 benefits [only] when the ALJ’s findings are based on legal error or are not supported by substantial 8 evidence in the record as a whole.” Tackett, 180 F.3d at 1097 (citation omitted). “Substantial 9 evidence is defined as being more than a mere scintilla, but less than a preponderance.” Edlund v. 10 Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1098). “Put another 11 way, substantial evidence is such relevant evidence as a reasonable mind might accept as adequate 12 to support a conclusion.” Id. (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). 13 “This is a highly deferential standard of review.” Valentine v. Comm’r of Soc. Sec. Admin., 14 574 F.3d 685, 690 (9th Cir. 2009). “The ALJ’s findings will be upheld if supported by inferences 15 reasonably drawn from the record.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) 16 (citation omitted). Additionally, “[t]he court will uphold the ALJ’s conclusion when the evidence 17 is susceptible to more than one rational interpretation.” Id.; see, e.g., Edlund, 253 F.3d at 1156 (“If 18 the evidence is susceptible to more than one rational interpretation, the court may not substitute its 19 judgment for that of the Commissioner.” (citations omitted)). 20 Nonetheless, “the Commissioner’s decision ‘cannot be affirmed simply by isolating a 21 specific quantum of supporting evidence.’” Tackett, 180 F.3d at 1098 (quoting Sousa v. Callahan, 22 143 F.3d 1240, 1243 (9th Cir. 1998)). “Rather, a court must ‘consider the record as a whole, 23 weighing both evidence that supports and evidence that detracts from the [Commissioner’s] 24 conclusion.’” Id. (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). 25 2. Review of an ALJ’s Credibility Determination 26 In evaluating the credibility of a claimant’s testimony regarding subjective 27 complaints, an ALJ must engage in a two-step analysis. Vasquez v. Astrue, 572 F.3d 586, 591 (9th 28 Cir. 2009). First, the ALJ must determine whether the claimant has presented objective medical 1 evidence of an underlying impairment that could reasonably be expected to produce the symptoms 2 alleged. Id. The claimant is not required to show that his impairment “could reasonably be expected 3 to cause the severity of the symptom [they have] alleged; [they] need only show that it could 4 reasonably have caused some degree of the symptom.” Id. (quoting Lingenfelter v. Astrue, 504 F.3d 5 1028, 1036 (9th Cir. 2007)). If the claimant meets the first test and there is no evidence of 6 malingering, the ALJ can only reject the claimant’s testimony about the severity of the symptoms if 7 they give “specific, clear and convincing reasons” for the rejection. Id. As the Ninth Circuit has 8 explained: 9 The ALJ may consider many factors in weighing a claimant’s credibility, including (1) ordinary techniques of credibility evaluation, such as the claimant’s 10 reputation for lying, prior inconsistent statements concerning the symptoms, and 11 other testimony by the claimant that appears less than candid; (2) unexplained or inadequately explained failure to seek treatment or to follow a prescribed course 12 of treatment; and (3) the claimant’s daily activities. If the ALJ’s finding is supported by substantial evidence, the court may not engage in second-guessing. 13 14 Tommasetti, 533 F.3d at 1039 (citations and internal quotation marks omitted); see also Bray v. 15 Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1226–27 (9th Cir. 2009). Other factors the ALJ may 16 consider include a claimant’s work record and testimony from physicians and third parties 17 concerning the nature, severity, and effect of the symptoms of which he complains. Light v. Social 18 Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). 19 The clear and convincing standard is “not an easy requirement to meet,” as it is “the most 20 demanding required in Social Security cases.” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 21 2014) (quoting Moore v. Comm’r of Social Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). General 22 findings are not enough to satisfy this standard; the ALJ “‘must identify what testimony is not 23 credible and what evidence undermines the claimant’s complaints.’” Burrell v. Colvin, 775 F.3d 24 1133, 1138 (9th Cir. 2014) (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)). 25 IV. DISCUSSION 26 Plaintiff contends that the ALJ failed to provide clear and convincing reasons to discount 27 Plaintiff’s testimony. (Doc. 11 at 6–14.) The Commissioner does not contest that Plaintiff produced 28 objective evidence of his impairments and that those impairments could reasonably be expected to 1 produce some degree of impairment, (see Doc. 12 at 3–4). Instead, Commissioner responds that the 2 ALJ properly relied on evidence in the record that undermined the credibility of Plaintiff’s 3 allegations of disabling symptoms and limitations. (Id. at 3–8.) Because the there is no dispute that 4 the Plaintiff’s medically determinable impairments could reasonably be expected to cause the 5 alleged symptoms and there is no allegation of malingering, the only remaining issue is whether the 6 ALJ provided “specific, clear and convincing reasons” for the ALJ’s adverse credibility finding. 7 Vasquez, 572 F.3d at 591; see also Herbert v. Astrue, No. 1:07-CV-01016 TAG, 2008 WL 4490024, 8 at *14 (E.D. Cal. Sept. 30, 2008). 9 The Court agrees with Plaintiff that the ALJ improperly discredited his subjective symptom 10 statements with respect to his reports of physical limitations and will remand for further 11 proceedings.5 12 In general, “conflicts between a [claimant’s] testimony of subjective complaints and the 13 objective medical evidence in the record” can constitute specific and substantial reasons that 14 undermine . . . credibility.” Morgan v. Comm’r of Social Sec. Admin., 169 F.3d 595, 600 (9th Cir. 15 1999). However, the lack of supporting objective medical evidence cannot be the “sole basis for 16 discounting [subjective symptom] testimony.” Burch, 400 F.3d at 681; see also Rollins v. 17 Massanari, 261 F.3d 853, 857 (9th Cir. 2001). Therefore, if an ALJ cites the medical evidence, it is 18 not sufficient for the ALJ to simply state that the testimony is contradicted by the record. Holohan 19 v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001) (“[G]eneral findings are an insufficient basis to 20 support an adverse credibility determination”). Rather, an ALJ must “specifically identify what 21 testimony is credible and what evidence undermines the claimant’s complaints.” Greger v. 22 Barnhart, 464 F.3d 968, 972 (9th Cir. 2006); see also Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 23 1993) (an ALJ must identify “what evidence suggests the complaints are not credible”). Importantly, 24

25 5 Because further proceedings will necessitate the re-evaluation of Plaintiff’s symptom statements as a whole, the Court does not reach the issue of the ALJ’s treatment of Plaintiff’s allegations of mental impairments. See Hiler v. Astrue, 26 687 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] alternative ground for remand.”); see also Rendon G. v. Berryhill, No. EDCV 18-0592-JPR, 2019 27 WL 2006688, at *8 (C.D. Cal. May 7, 2019); Harris v. Colvin, No. 13-cv-05865 RBL, 2014 WL 4092256, at *4 (W.D. Wash. Aug. 11, 2014); Augustine ex rel. Ramirez v. Astrue, 536 F. Supp. 2d 1147, 1153 n.7 (C.D. Cal. 2008) (“[The] 28 Court need not address the other claims plaintiff raises, none of which would provide plaintiff with any further relief 1 an ALJ must explain how the medical evidence is inconsistent with a plaintiff’s reported symptoms 2 and limitations, see Brown-Hunter v. Colvin, 806 F.3d 487, 493–94 (9th Cir. 2015), and may not 3 “cherry-pick” medical evidence that favors disability without considering its context in the record, 4 Ghanim v. Colvin, 763 F.3d 1154, 1164 (9th Cir. 2014). Further, throughout their analysis, an ALJ 5 must consider the record as a whole, evaluating the evidence in context. See Nadya I. v. Saul, No. 6 19-CV-04373-TSH, 2020 WL 5232529, at *14 (N.D. Cal. Sept. 2, 2020). 7 The ALJ began their analysis as to Plaintiff’s reported symptoms with the statement “in terms 8 of the claimant’s alleged disabling impairments, the record fails to document any objective clinical 9 findings that the claimant was not able to pursue normal childhood activity in light of the reports of 10 the treating and examining practitioners and the findings made upon examination.” (AR 23). The 11 relevance of Plaintiff’s lack of symptoms in his childhood is unclear given that Plaintiff alleges his 12 disability onset date was when he was forty-eight. (See Compl. ¶ 4.) 13 The ALJ went on to acknowledge “the claimant’s history of obesity, osteoarthrosis, 14 degenerative disc disease of the lumbar, hepatitis C, status post gunshot wound of the left leg, 15 affective disorder, anxiety disorder, and substance abuse.” (AR 23.) However, the ALJ then 16 determined that “the weight of the objective evidence does not support the claimant’s claims of 17 disabling limitations to the degree allowed.” (AR 24.) Because the lack of affirmative evidence 18 confirming evidence alone cannot be a reason to discount Plaintiff’s subjective complaints, the Court 19 must determine whether the inconsistencies identified by the ALJ constitute clear and convincing 20 reasons for discounting Plaintiff’s statements as to his physical limitations. A careful review of the 21 record reveals that the evidence on which the ALJ relied was impermissibly “cherry-picked,” 22 Ghanim, 763 F.3d at 1164, or otherwise taken out of context, see Holohan, 246 F.3d at 1205.6 23 In the first relevant paragraph in which the ALJ purported to “consider the claimant’s 24 physical impairments,” the ALJ contrasted the claimant’s reports—specifically “left leg and low 25 back pain, right hip and knee pain, recurrent cellulitis of the left lower leg, left leg swelling and pain, 26

27 6 The ALJ’s assessment of Plaintiff’s credibility is not particularly logically or thematically organized. Therefore, the Court’s review will track the relevant paragraphs of the ALJ’s analysis of Plaintiff’s subjective complaints as to his 28 physical health and associated limitations. 1 joint pain, joint swelling and myalgias, numbness to all finger of the left hand as well as weakness 2 of the right hand with associated object drop, and neck pain” (AR 24 (citing AR 425–36, 438–39, 3 478, 544, 864)), and “aggravated symptoms with exertional activities, such as prolonged standing, 4 prolonged sitting, walking long distances, lifting, bending and getting up from a bent position,” (id. 5 (citing AR 864))—with Plaintiff’s reports that he was “doing well without any complaints of pain, 6 getting better,” as well as his denial of “generalized weakness in lower extremities,” (id. (citing AR 7 382, 713)). But the two pages of the record that purportedly undermined Plaintiff’s credibility as to 8 his reports of leg, back, hip, knee, finger and hand issues is both cherry-picked and taken out of 9 context. 10 Starting with the ALJ’s first cite to the record, (AR 382), that medical record details an 11 August 2019 follow-up after Plaintiff was hospitalized for cellulitis in his leg. (See AR 24 (citing 12 AR 382)). That particular note reflects a finding that the Plaintiff’s cellulitis had resolved and that 13 “[t]he patient is currently otherwise doing well without any complaints or pain.” (Id.) But that same 14 page notes that Plaintiff had “ongoing” left leg pain and the fact that his cellulitis had resolved is not 15 inconsistent with his alleged recurrent cellulitis. (Id., see also AR 425 (noting Plaintiff has a history 16 of “recurrent cellulitis”).) Moreover, this citation is cherry-picked in light of the numerous records, 17 many more recent than 2019, that support Plaintiff’s contentions. (See e.g., AR 864, 866–69, (pain); 18 821, 827, 832, 835, 864, 867, 870 (limited range of motion)). 19 The other citation to the record in this first paragraph, (AR 713), is also cherry-picked and 20 taken out of context. (See AR 24 (citing AR 713)). This citation is to a record related to a follow 21 up visit specially regarding a chief complaint of ingrown toenails and associated fungal concerns. 22 (See AR 720–21 (original visit), 713 (follow up)). And while that record does include notes that 23 “the patient . . . feels better” and that “patient denied generalized weakness in the lower extremities” 24 it is clear from the context of the note that Plaintiff felt better with regard to his toes, which are not 25 related to any of Plaintiff’s alleged disabling conditions—let alone the specific reported symptoms 26 at issue in this paragraph. (AR 713.) Further, denial of generalized weakness in his lower 27 extremities is not inconsistent with Plaintiff’s specific complaint regarding his left thigh stemming 28 from his prior gunshot wound. And this same record details “cramping in the legs,” “morning 1 stiffness in the joints,” and “left leg pain,” which is consistent with Plaintiff’s complaints. (AR 713– 2 14.) 3 Moving on to the next paragraph, the ALJ again drew a contrast between two long lists of 4 somewhat unrelated individual pieces of medical evidence. The ALJ contrasted examination 5 findings that Plaintiff was 6 obese with old scarring over the lower anterior thigh with a defect, [and had] left lower extremity swelling with erythema above the ankle to below the knee, mild 7 tenderness, left leg limp, decreased range of motion noted in the left knee, pain with range of motion in the right hip, left knee and right knee, missing large area of 8 underlying muscle superior to knee due to well healed gunshot wound, lumbar spine tenderness, decreased range of motion of the lumbar spine, left hip/thigh atrophy in 9 the anterior thigh and medial thigh, 10 (AR 24 (citing 426, 479, 545, 547, 691, 795, 797)), with “additional examination findings” 11 not[ing] that claimant was in no acute distress with normal motor and sensory findings, normal deep tendon reflexes, normal strength, no atrophy, normal gait, 12 normal looking skin of the left lower extremity, cellulitis has resolved, strength 5/5 in all muscle groups, and knee joint without bony abnormality, 13 14 (id. (citing AR 438, 690–91, 698, 713, 864)). This reasoning falls short of being clear and convincing 15 for several reasons. 16 First, the alleged inconsistencies between these two lists of discrete findings are not readily 17 apparent. For example, it is not clear how some of the second set of findings that purportedly 18 undermine Plaintiff’s claims are even relevant to the types of first set of findings that purportedly 19 support Plaintiff’s subjective complaints. For instance, it is not clear how “normal deep tendon 20 reflexes” is related to the prior recitation of evidence. And because the analysis fails to (1) make 21 clear the inconstancies between the two groups of evidence and then (2) tie any such inconsistency 22 to a specific finding about a particular subjective complaint by Plaintiff, the Court cannot discern 23 how this part of the analysis affects the ALJ’s computation of Plaintiff’s RFC. 24 Second, the record citations on which the ALJ relies to draw a contrast between the record 25 and the Plaintiff’s subjective complaints are again taken out of context and cherry-picked. For 26 example, to support their finding that the examination evidence was inconsistent with Plaintiff’s 27 reported symptoms, the ALJ pointed to a record that reflected that Plaintiff had a “normal gait” and 28 “normal strength.” (AR 24 (citing AR 438).) But that same record also states (1) Plaintiff’s 1 musculoskeletal symptoms were “[p]ositive for back pain, joint swelling and myalgias” and (2) as 2 to his “left upper leg,” he “exhibit[ed] tenderness, swelling and edema.” (AR 438). The next page 3 includes an “[a]ssessment” section that includes treatment plan information related to “[c]ellulitis of 4 left leg,” “[n]europathic pain of the left lower extremity,” and “[g]unshot injury,” (AR 439), which 5 all support Plaintiff’s contentions. This particular record also includes a note that details Plaintiff’s 6 subjective report of “leg pain” that is “a chronic problem” that “occurs constantly” and is 7 “unchanged” since its onset a year prior. (AR 437.) The note continues by reflecting Plaintiff’s 8 report that “associated symptoms include joint swelling, myalgias, and swollen glands” and that 9 “treatment has provided no relief.” (Id.) Again, when viewed holistically and in context, these 10 records do not undermine Plaintiff’s subjective complaints highlighted in this paragraph of the ALJ’s 11 decision. 12 Similarly, ALJ pointed to another record reflecting that Plaintiff had “normal strength” and 13 “normal gait.” (AR 24 (citing AR 864).) This citation is more cherry-picking, as that the finding of 14 “normal strength” was limited to Plaintiff’s right leg. (AR 864.) Regarding Plaintiff’s left leg, the 15 primary leg associated with Plaintiff’s complaints, the record states “[a]trophy present in anterior 16 thigh,” “present in medial thigh,” and notes “[p]ain in left thigh.” (Id.) This is in addition to the 17 numerous notations in the record that note Plaintiff’s abnormal gait. (See, e.g., AR 691, 694, 698, 18 795, 798, 800, 802, 804, 806, 808, 810, 813, 815.) This record also supports Plaintiff’s subjective 19 complaints as to his back, as this record states “[t]enderness in the midline at L4 – moderate, at L5 20 – moderate” and that “patient has decreased range of motion with respect to flexion and extension . . . 21 [t]he range of motion is causing the patient to have increased pain.” (AR 864.) 22 A final example of the ALJ’s mischaracterization of the record as to the so-called “normal 23 findings,” mirrors a previous discussion regarding a citation to records related to Plaintiff’s treatment 24 for ingrown toenails and associated fungal concerns. While these records do include some generic 25 language involving “normal findings,” (see AR 713 (noting that “Patient is in no apparent distress”)), 26 they are (1) primarily concerned with conditions not relevant to Plaintiff’s alleged disabling 27 conditions and (2) do reflect evidence that tends to support Plaintiff’s complaints, (see AR 714 28 (noting Plaintiff’s “left leg pain”)). 1 Moving to the next paragraph, the ALJ misrepresents the record as to Plaintiff’s history of 2 carpal tunnel syndrome. While the ALJ states that “this condition was managed medically, with 3 physical therapy and bilateral wrist braces,” that is not an accurate representation of the record. (AR 4 24.) It is true that the record reflects that Plaintiff used wrist braces at the suggestion of his providers 5 and was referred to physical therapy. (See AR 693.) But that same record also reflects that at his 6 next visit, Plaintiff (1) reported “continu[ing] to have numbness and tingling of his upper 7 extremities,” (2) reported compliance with wrist bracing, but that bracing “provided minimal relief,” 8 and (3) detailed that Plaintiff would not continue with physical therapy because it “mad[e] his 9 symptoms worse.” (AR 697.) Although no further treatment was suggested, Plaintiff’s condition 10 was ultimately not managed with physical therapy, and Plaintiff did not experience relief from the 11 limited treatment provided. 12 After several paragraphs in which the ALJ addressed Plaintiff’s alleged disabling 13 psychological symptoms, the ALJ turned back to discussing Plaintiff’s reported physical symptoms 14 and limitations with the statement, “[c]onsistent with the diagnostic findings and the residual 15 functional capacity assessed in this decision, the claimant’s objective clinical examinations have also 16 failed to corroborate the full extent of the alleged severity, limiting effects, and frequency of his 17 condition.” (AR 25.) The ALJ nonetheless opined that “[w]hile the claimant has some positive 18 findings, they are limited generally to tenderness, reflex changes, and decreased range of motion 19 with respect to flexion and extension,” (id. (citing AR 685, 688, 864, 867)), and Plaintiff’s allegation 20 that he “needed a cane while walking,” (id. (citing 296)).7 The ALJ then drew a contrast between 21 the limited positive findings and Plaintiff’s reports of needing a cane with evidence that “his primary 22 care provider usually reported normal musculoskeletal range of motion, normal strength, normal 23 muscle tone, normal gait, and no tenderness, deformity, or edema” supported only by broad and 24 indiscriminate citations to the record. (Id. (citing AR 794–871.) But those records tell a different 25 story than the one the ALJ represents. Those records reflect numerous findings of abnormal gait, 26 (see e.g., AR 795, 798, 800, 802, 804, 806, 808, 810, 813, 815, 845); abnormal musculoskeletal 27 7 Because the ALJ nonetheless incorporated Plaintiff’s use of a cane into the assessed RFC, any error as to Plaintiff’s 28 subjective allegations as to his need for a mobility device would be harmless. See Stout v. Comm’r, Social Sec. 1 range of motion, (see e.g., AR 821, 827, 832, 835, 864, 867, 870); and tenderness, (see, e.g., AR 2 821, 827, 832, 835, 867, 870). 3 In sum, without an indication of which symptoms or limitations the ALJ discredits and clear 4 inconsistencies between the medical evidence recited and Plaintiff’s reported symptoms and 5 limitations, the ALJ’s “path [cannot be] reasonably discerned.” Molina v. Astrue, 674 F.3d 1112, 6 1121 (9th Cir. 2012); see also Lambert v. Saul, 980 F.3d 1266, 1278 (9th Cir. 2020). Here the ALJ 7 failed to adequately explain how the medical evidence is inconsistent with Plaintiff’s reported 8 symptoms and limitations, see Brown-Hunter, 806 F.3d at 493–94. Additionally, the reasoning the 9 ALJ provides does not “have the power to convince,” Smartt v. Kijakazi, 53 F.4th 489, 499 (9th Cir. 10 2022), as the reasoning was tainted by “cherry-pick[ed]” medical evidence without considering its 11 context in the record, Ghanim v. Colvin, 763 F.3d 1154, 1164 (9th Cir. 2014).8 12 A. Remand for Further Proceedings 13 The decision whether to remand a matter for further proceedings pursuant to sentence four 14 of 42 U.S.C. § 405(g) or to order immediate payment of benefits is within the discretion of the district 15 court. Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000). Except in rare instances, when a court 16 reverses an agency determination, the proper course is to remand to the agency for additional 17 investigation or explanation. Moisa v. Barnhart, 367 F.3d 882, 886 (9th Cir. 2004) (citing INS v. 18 Ventura, 537 U.S. 12, 16 (2002)). Plaintiff requests the matter be remanded for an immediate award 19 of benefits, or, in the alternative, for further administrative proceedings. (Doc. 11 at 14.) 20 The ALJ failed to identify legally sufficient reasons to reject Plaintiff’s subjective statements, 21 which impacted the RFC determination. A remand for further proceedings regarding the subjective 22 statements of a claimant is an appropriate remedy.9 See, e.g., Bunnell v. Sullivan, 947 F.2d 341, 348 23 (9th Cir. 1991) (affirming a remand for further proceedings where the ALJ failed to explain with 24

25 8 The error is not harmless. Errors are harmless when a reviewing court “can confidently conclude that no reasonable ALJ, when fully crediting the testimony, could have reached a different disability determination.” Stout, 454 F.3d at 26 1056. Had the ALJ credited Plaintiff’s statements related to Plaintiff’s physical limitations—especially with regard to his allegations that he has difficulty with lifting, bending, standing, sitting, kneeling and walking— a more restrictive 27 RFC may have been assessed and the disability determination may have been different. Thus, the error was not “inconsequential to the ultimate nondisability determination.” Molina, 674 F.3d at 1115. 28 9 As to the ultimate outcome of Plaintiff’s claim, the Court expresses no opinion as to what Plaintiff’s RFC should 1 sufficient specificity the basis for rejecting the claimant’s testimony); Byrnes v. Shalala, 60 F.3d 2 639, 642 (9th Cir. 1995) (remanding the case “for further proceedings evaluating the credibility of 3 [the claimant’s] subjective complaints”). Thus, a remand for further proceedings to properly assess 4 Plaintiff’s subjective symptom statements is appropriate in this action. 5 V. CONCLUSION AND ORDER 6 Based on the foregoing, the Court finds that the ALJ’s decision is not supported by 7 substantial evidence and is, therefore, VACATED and the case REMANDED to the ALJ for further 8 proceedings consistent with this Order. The Clerk of this Court is DIRECTED to enter judgment 9 in favor of Plaintiff Larry Mull and against Defendant Bisignano, Commissioner of Social Security. 10 IT IS SO ORDERED. 11

12 Dated: June 10, 2025 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 13

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