1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 NORTHERN DISTRICT OF CALIFORNIA 8 9 SUZANNE E., Case No. 3:25-cv-04513-JSC
10 Plaintiff, ORDER RE: SOCIAL SECURITY 11 v. APPEAL
12 COMMISSIONER OF SOCIAL Re: Dkt. No. 12 SECURITY, 13 Defendant.
14 15 Plaintiff seeks social security benefits for a combination of mental and physical 16 impairments including: fibromyalgia, asthma, migraine, obsessive compulsive disorder, panic 17 disorder with agoraphobia, generalized anxiety disorder, and depressive disorder. (Administrative 18 Record (“AR”) 85.) Pursuant to 42 U.S.C. § 405(g), Plaintiff filed this lawsuit for judicial review 19 of the final decision by the Commissioner of Social Security denying her benefits claim. After 20 careful consideration of the parties’ briefing, the Court concludes oral argument is unnecessary, 21 see N.D. Cal. Civ. L.R. 7-1(b), and REVERSES the Commissioner’s decision and REMANDS for 22 further proceedings, as explained below. 23 BACKGROUND 24 Pursuant to the Social Security Act, on May 31, 2022, Plaintiff protectively filed a Title II 25 application for a period of disability and disability insurance benefits alleging a disability onset 26 date of October 1, 2017. (AR 17.) Plaintiff’s application was denied initially and on 27 reconsideration. (AR 71-95.) Plaintiff submitted a timely request for a hearing before an 1 Plaintiff and a vocational expert testified. (AR 37-70.) On April 10, 2024, the ALJ issued an 2 unfavorable decision finding Plaintiff was not disabled within the meaning of the Social Security 3 Act. (AR 17-30.) 4 Plaintiff filed a timely request for review with the Appeals Council, which the Appeals 5 Council denied. (AR 1-3.) Plaintiff thereafter filed the underlying action. In accordance with Civil 6 Local Rule 16-5, the parties filed cross briefs on appeal. (Dkt. Nos. 13, 15.1) 7 LEGAL STANDARD 8 A claimant is considered “disabled” under the Act if she meets two requirements. See 42 9 U.S.C. § 423(d); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). First, the claimant must 10 demonstrate “an inability to engage in any substantial gainful activity by reason of any medically 11 determinable physical or mental impairment which can be expected to result in death or which has 12 lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 13 423(d)(1)(A). Second, the impairment or impairments must be severe enough she is unable to do 14 her previous work and cannot, based on her age, education, and work experience, “engage in any 15 other kind of substantial gainful work which exists in the national economy.” Id. § 423(d)(2)(A). 16 To determine whether a claimant is disabled, an ALJ is required to employ a five-step sequential 17 analysis, examining: (1) whether the claimant is engaging in “substantial gainful activity”; (2) 18 whether the claimant has a “severe medically determinable physical or mental impairment” or 19 combination of impairments that has lasted for more than 12 months; (3) whether the impairment 20 “meets or equals” one of the listings in the regulations; (4) whether, given the claimant’s RFC, she 21 can still do her “past relevant work”; and (5) whether the claimant “can make an adjustment to 22 other work.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012), superseded by regulation on 23 other grounds; see 20 C.F.R. § 404.1520(a). 24 DISCUSSION 25 The sole issue before the Court is whether the ALJ erred in rejecting Plaintiff’s subjective 26 symptom testimony. 27 1 The Ninth Circuit has “established a two-step analysis for determining the extent to which 2 a claimant’s symptom testimony must be credited.” Trevizo v. Berryhill, 871 F.3d 664, 678 (9th 3 Cir. 2017). “First, the ALJ must determine whether the claimant has presented objective medical 4 evidence of an underlying impairment which could reasonably be expected to produce the pain or 5 other symptoms alleged.” Id. “Second, if the claimant meets this first test, and there is no evidence 6 of malingering, the ALJ can reject the claimant’s testimony about the severity of her symptoms 7 only by offering specific, clear and convincing reasons for doing so.” Lingenfelter v. Astrue, 504 8 F.3d 1028, 1036 (9th Cir. 2007) (cleaned up). If the ALJ’s assessment “is supported by substantial 9 evidence in the record, [courts] may not engage in second-guessing.” Thomas v. Barnhart, 278 10 F.3d 947, 959 (9th Cir. 2002) (cleaned up). 11 There are several issues with the ALJ’s findings as to Plaintiff’s subjective symptom 12 testimony. First, while the ALJ referenced the two-step analysis, it is unclear how she applied it 13 here. Immediately after discussing the requirements of the two-step analysis, the ALJ summarized 14 Plaintiff’s subjective symptom testimony and then stated:
15 Turning to the medical evidence, the objective findings of this case are not consistent with the level of disabling symptoms and 16 limitations alleged by the claimant. More specifically, the medical findings do not support the existence of limitations greater than in the 17 residual functional capacity as listed above. 18 (AR 22-23.) The ALJ then proceeded to discuss the medical evidence and concluded with a 19 discussion of an undated treatment summary from Anne-Marie Basso who treated Plaintiff 20 between May 2021 through July 2022. (AR 28 (citing 27F (AR 1613)).) The ALJ stated Plaintiff 21 had become “resistant to behavioral interventions” and “opted to prematurely terminate therapy.” 22 (AR 28.) The ALJ concluded her analysis stating:
23 There is no mention in this summary of the claimant’s mental functioning prior to 2021. It does show that later she failed to follow 24 treatment recommendations, which demonstrates a possible unwillingness to do that which is necessary to improve her condition 25 and may also indicate her symptoms are not as severe as she purports. 26 (AR 28.) 27 The ALJ failed to make an explicit finding at step one regarding whether the objective 1 other symptoms alleged. This omission, combined with the ALJ’s conclusion expressing doubt 2 about the veracity of Plaintiff’s subjective reports of pain, creates an ambiguity in the record as to 3 how the ALJ evaluated Plaintiff’s subjective symptom testimony and whether she found Plaintiff 4 malingering. This ambiguity requires remand. Lingenfelter, 504 F.3d at 1036 (stating the ALJ 5 “must engage in [the] two-step analysis.”); Perkins v. Astrue, No. CV 12-0634 RNB, 2012 WL 6 4755402, at *3 (C.D. Cal. Oct. 5, 2012) (finding “the ALJ’s failure to make this threshold 7 determination, especially in light of the ALJ’s finding that plaintiff had several impairments, 8 constituted a failure to apply the correct legal standard in assessing plaintiff’s subjective pain and 9 symptom testimony.”). 10 Second, the ALJ failed to offer clear and convincing reasons supported by substantial 11 evidence for rejecting Plaintiff’ subjective symptom testimony.
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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 NORTHERN DISTRICT OF CALIFORNIA 8 9 SUZANNE E., Case No. 3:25-cv-04513-JSC
10 Plaintiff, ORDER RE: SOCIAL SECURITY 11 v. APPEAL
12 COMMISSIONER OF SOCIAL Re: Dkt. No. 12 SECURITY, 13 Defendant.
14 15 Plaintiff seeks social security benefits for a combination of mental and physical 16 impairments including: fibromyalgia, asthma, migraine, obsessive compulsive disorder, panic 17 disorder with agoraphobia, generalized anxiety disorder, and depressive disorder. (Administrative 18 Record (“AR”) 85.) Pursuant to 42 U.S.C. § 405(g), Plaintiff filed this lawsuit for judicial review 19 of the final decision by the Commissioner of Social Security denying her benefits claim. After 20 careful consideration of the parties’ briefing, the Court concludes oral argument is unnecessary, 21 see N.D. Cal. Civ. L.R. 7-1(b), and REVERSES the Commissioner’s decision and REMANDS for 22 further proceedings, as explained below. 23 BACKGROUND 24 Pursuant to the Social Security Act, on May 31, 2022, Plaintiff protectively filed a Title II 25 application for a period of disability and disability insurance benefits alleging a disability onset 26 date of October 1, 2017. (AR 17.) Plaintiff’s application was denied initially and on 27 reconsideration. (AR 71-95.) Plaintiff submitted a timely request for a hearing before an 1 Plaintiff and a vocational expert testified. (AR 37-70.) On April 10, 2024, the ALJ issued an 2 unfavorable decision finding Plaintiff was not disabled within the meaning of the Social Security 3 Act. (AR 17-30.) 4 Plaintiff filed a timely request for review with the Appeals Council, which the Appeals 5 Council denied. (AR 1-3.) Plaintiff thereafter filed the underlying action. In accordance with Civil 6 Local Rule 16-5, the parties filed cross briefs on appeal. (Dkt. Nos. 13, 15.1) 7 LEGAL STANDARD 8 A claimant is considered “disabled” under the Act if she meets two requirements. See 42 9 U.S.C. § 423(d); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). First, the claimant must 10 demonstrate “an inability to engage in any substantial gainful activity by reason of any medically 11 determinable physical or mental impairment which can be expected to result in death or which has 12 lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 13 423(d)(1)(A). Second, the impairment or impairments must be severe enough she is unable to do 14 her previous work and cannot, based on her age, education, and work experience, “engage in any 15 other kind of substantial gainful work which exists in the national economy.” Id. § 423(d)(2)(A). 16 To determine whether a claimant is disabled, an ALJ is required to employ a five-step sequential 17 analysis, examining: (1) whether the claimant is engaging in “substantial gainful activity”; (2) 18 whether the claimant has a “severe medically determinable physical or mental impairment” or 19 combination of impairments that has lasted for more than 12 months; (3) whether the impairment 20 “meets or equals” one of the listings in the regulations; (4) whether, given the claimant’s RFC, she 21 can still do her “past relevant work”; and (5) whether the claimant “can make an adjustment to 22 other work.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012), superseded by regulation on 23 other grounds; see 20 C.F.R. § 404.1520(a). 24 DISCUSSION 25 The sole issue before the Court is whether the ALJ erred in rejecting Plaintiff’s subjective 26 symptom testimony. 27 1 The Ninth Circuit has “established a two-step analysis for determining the extent to which 2 a claimant’s symptom testimony must be credited.” Trevizo v. Berryhill, 871 F.3d 664, 678 (9th 3 Cir. 2017). “First, the ALJ must determine whether the claimant has presented objective medical 4 evidence of an underlying impairment which could reasonably be expected to produce the pain or 5 other symptoms alleged.” Id. “Second, if the claimant meets this first test, and there is no evidence 6 of malingering, the ALJ can reject the claimant’s testimony about the severity of her symptoms 7 only by offering specific, clear and convincing reasons for doing so.” Lingenfelter v. Astrue, 504 8 F.3d 1028, 1036 (9th Cir. 2007) (cleaned up). If the ALJ’s assessment “is supported by substantial 9 evidence in the record, [courts] may not engage in second-guessing.” Thomas v. Barnhart, 278 10 F.3d 947, 959 (9th Cir. 2002) (cleaned up). 11 There are several issues with the ALJ’s findings as to Plaintiff’s subjective symptom 12 testimony. First, while the ALJ referenced the two-step analysis, it is unclear how she applied it 13 here. Immediately after discussing the requirements of the two-step analysis, the ALJ summarized 14 Plaintiff’s subjective symptom testimony and then stated:
15 Turning to the medical evidence, the objective findings of this case are not consistent with the level of disabling symptoms and 16 limitations alleged by the claimant. More specifically, the medical findings do not support the existence of limitations greater than in the 17 residual functional capacity as listed above. 18 (AR 22-23.) The ALJ then proceeded to discuss the medical evidence and concluded with a 19 discussion of an undated treatment summary from Anne-Marie Basso who treated Plaintiff 20 between May 2021 through July 2022. (AR 28 (citing 27F (AR 1613)).) The ALJ stated Plaintiff 21 had become “resistant to behavioral interventions” and “opted to prematurely terminate therapy.” 22 (AR 28.) The ALJ concluded her analysis stating:
23 There is no mention in this summary of the claimant’s mental functioning prior to 2021. It does show that later she failed to follow 24 treatment recommendations, which demonstrates a possible unwillingness to do that which is necessary to improve her condition 25 and may also indicate her symptoms are not as severe as she purports. 26 (AR 28.) 27 The ALJ failed to make an explicit finding at step one regarding whether the objective 1 other symptoms alleged. This omission, combined with the ALJ’s conclusion expressing doubt 2 about the veracity of Plaintiff’s subjective reports of pain, creates an ambiguity in the record as to 3 how the ALJ evaluated Plaintiff’s subjective symptom testimony and whether she found Plaintiff 4 malingering. This ambiguity requires remand. Lingenfelter, 504 F.3d at 1036 (stating the ALJ 5 “must engage in [the] two-step analysis.”); Perkins v. Astrue, No. CV 12-0634 RNB, 2012 WL 6 4755402, at *3 (C.D. Cal. Oct. 5, 2012) (finding “the ALJ’s failure to make this threshold 7 determination, especially in light of the ALJ’s finding that plaintiff had several impairments, 8 constituted a failure to apply the correct legal standard in assessing plaintiff’s subjective pain and 9 symptom testimony.”). 10 Second, the ALJ failed to offer clear and convincing reasons supported by substantial 11 evidence for rejecting Plaintiff’ subjective symptom testimony. For example, the ALJ found 12 Plaintiff’s “hatred for her job, a reason not related to her medical conditions, was a contributing 13 factor to her quitting [her job] in May 2018” noting “her job was to stand near exhibits at the 14 Broad Museum, though, towards, the end, she found tolerating the large crowds and bright lights 15 to be unbearable.” (AR 24.) The ALJ ignored Plaintiff’s statements throughout the medical 16 record stating her job aggravated her “severe daily symptoms” of depression and anxiety. (AR 17 728 (5/8/17 treatment note); see also AR 744 (8/15/17 treatment note: “still having panic attacks 18 every day”); AR 754 (11/15/17 treatment note: “headache has not resolved”; “[s]till suffering 19 from anxiety and depression”); AR 758 (11/21/17 treatment note: “[o]ver the past year since she 20 took the new job, her migraine has been more frequent” “occurs almost daily”; has anxiety and 21 depression”); AR 771 (1/19/18 treatment note: “has had anxiety, depression, and migraines for 22 several years. This was exacerbated by work in August 2017 as she was working in a 23 museum…[s]ymptoms have improved somewhat as she hasn’t been able to work since October 24 2017 due to her symptoms”); AR 795 (4/9/18 treatment note: “[a]nxiety and depression are still an 25 active issue. Had to leave work bc of anxiety/depression”).) While the medical record shows her 26 symptoms stabilized in July 2018 for a few months, this also corresponds to the period directly 27 following leaving her job. (AR 873.) When she re-established medical care after moving back to 1 “[s]evere episode of recurrent major depressive disorder.” (AR 937.) 2 The ALJ also appeared to seize on particular portions of the medical records indicating an 3 improvement in her symptoms while ignoring notes from the very same visit discussing the 4 persistent severity of her symptoms. For example, the ALJ focused on the portion of the record 5 from Plaintiff’s April and May 2018 visits with her mental health provider Dr. Misty stating 6 Plaintiff had noticed “major improvement with pain and moderate improvements with mood” on 7 Effexor, but ignored the portion of the very same record stating she “cr[ies] often and continues to 8 isolate” and tried an higher dose of Effexor, but it made her feel “out of body.” (AR 25 (citing 9 1F/21 (AR 470); see also AR 465 (4/5/18 treatment notes: “she describes multiple, dark existential 10 thoughts that catalyze her depressive episodes.”).) 11 So, throughout the decision, the ALJ’s description of the objective medical evidence 12 cherry picks the evidence which supports her finding while ignoring other contradictory evidence. 13 See Ghanim v. Colvin, 763 F.3d 1154, 1164 (9th Cir. 2014) (finding error when the ALJ’s decision 14 did not account for the record “as a whole,” but rather relied on “cherry picked” evidence); 15 Williams v. Colvin, No. 14-cv-2146-PLA, 2015 WL 4507174, at *6 (C.D. Cal. July 23, 2015) 16 (cleaned up) (“An ALJ may not cherry-pick evidence to support the conclusion that a claimant is 17 not disabled, but must consider the evidence as a whole in making a reasoned disability 18 determination.”). 19 Third, as to both Plaintiff’s mental impairments and her fibromyalgia diagnosis in August 20 2020, the ALJ discounted her subjective symptom testimony based on the lack of consistent 21 treatment. (AR 23, 27.) While “an unexplained, or inadequately explained, failure to seek 22 treatment may be the basis for an adverse credibility finding unless one of a number of good 23 reasons for not doing so applies,” the ALJ must consider the reasons why Plaintiff may not have 24 pursued treatment. Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007) (cleaned up). The record 25 indicates Plaintiff’s referral to the PAMF Palo Alto Behavioral Health Department was rejected 26 because of “insurance restrictions.” (AR 896 (3/24/21 provider notes).) Further, the symptoms of 27 mental health conditions often “wax and wane in the course of treatment. Cycles of improvement 1 ALJ to pick out a few isolated instances of improvement over a period of months or years and to 2 treat them as a basis for concluding a claimant is capable of working.” Garrison v. Colvin, 759 3 F.3d 995, 1017 (9th Cir. 2014); see also Angela V. v. Comm’r, Soc. Sec. Admin., No. 6:19-cv- 4 0836-HZ, 2021 WL 1565788, at *5 (D. Or. Apr. 20, 2021) (holding the ALJ erred in rejecting the 5 plaintiff’s symptom testimony related to her fibromyalgia where the ALJ “isolat[ed] a few 6 examples of symptom improvement and ignor[ed] the many others that indicated continued, 7 severe impairment”) (cleaned up). Moreover, reports of improvement must be examined in 8 context—a relative improvement in a claimant’s symptoms may not mean they are not disabled. 9 See Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001) (“That a person who suffers from 10 severe panic attacks, anxiety, and depression makes some improvement does not mean that the 11 person’s impairments no longer seriously affect her ability to function in a workplace.”). 12 In sum, the ALJ erred in failing to clearly apply the Lingenfelter two-step analysis and in 13 failing to provide specific, clear and convincing reasons for rejecting Plaintiffs’ subjective 14 symptom testimony.2 15 *** 16 While Plaintiff notes the Court has discretion to award benefits, she does not argue the 17 credit-as-true standard is met here or otherwise provide any analysis of why remand for an award 18 of benefits would be the proper remedy here. (Dkt. No. 12 at 12.) When courts reverse an ALJ’s 19 decision, “the proper course, except in rare circumstances, is to remand to the agency for 20 additional investigation or explanation.” Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) 21 (internal citations omitted). Remand for further proceedings is proper here so the ALJ can fully 22 consider Plaintiff’s subjective symptom testimony in the context of the record and unambiguously 23 apply the required two-step analysis. 24 CONCLUSION 25 For the reasons stated above, the Court REVERSES the ALJ’s decision and REMANDS 26 2 The Court does not address the ALJ’s findings as to Plaintiff’s activities of daily living because 27 the ALJ found them inconsistent with her reports of musculoskeletal pain and fibromyalgia, not 1 for further proceedings consistent with this Order. 2 This Order disposes of Docket Nos. 12, 15. 3 IT IS SO ORDERED. 4 || Dated: December 23, 2025 , ne 5 JACQUELINE SCOTT CORL 6 United States District Judge 7 8 9 10 11 g 12
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