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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
AUDREY F.,1
Plaintiff,
v.
FRANK BISIGNANO,
Commissioner of Social Security,
Defendant.
Case No.: 24cv2460-LR
ORDER REGARDING JOINT
MOTION FOR JUDICIAL REVIEW
[ECF No. 18]
On December 26, 2024, Audrey F. (“Plaintiff”) filed a Complaint pursuant to 42
U.S.C. § 405(g) seeking judicial review of a decision by the Commissioner of Social
Security (“Defendant”) denying Plaintiff’s application for social security disability
benefits. (ECF No. 1.) Now pending before the Court is the parties’ “Joint Motion”
seeking judicial review. (ECF No. 18 (“J. Mot.”).) For the reasons discussed below, the
Court ORDERS that judgment be entered affirming the decision of the Commissioner
pursuant to sentence four of 42 U.S.C. § 405(g).
1 Pursuant to Civil Local Rule 7.1(e)(6)(b), the Court’s opinions in Social Security cases filed under
42 U.S.C. § 405(g) “refer to any non-government parties by using only their first name and last initial.”
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I. PROCEDURAL BACKGROUND
On July 11, 2022, Plaintiff filed an application for a period of disability and
disability insurance benefits under Title II of the Social Security Act, alleging disability
beginning on January 21, 2022. (ECF No. 9 (“AR”)2 at 510.) After her application was
denied initially and upon reconsideration, Plaintiff requested an administrative hearing
before an administrative law judge (“ALJ”). (Id. at 415.) An administrative hearing was
held on July 16, 2024. (Id. at 336–60.) Plaintiff appeared at the hearing with counsel,
and testimony was taken from her and a vocational expert (“VE”). (Id.)
On August 9, 2024, the ALJ issued a written decision finding that Plaintiff had not
been under a disability, as defined in the Social Security Act, from January 21, 2022,
through March 31, 2023, the date last insured. (Id. at 18–33.) The ALJ’s decision
became the final decision of the Commissioner on October 29, 2024, when the appeals
council denied Plaintiff’s request for review. (Id. at 1–7.) This timely civil action
followed. (See ECF No. 1.)
II. SUMMARY OF THE ALJ’S FINDINGS
The ALJ followed the Commissioner’s five-step sequential evaluation process.
See 20 C.F.R. § 404.1520. At step one, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since her alleged onset date of January 21, 2022, through her
date last insured of March 31, 2023. (AR at 20.) At step two, the ALJ found that
Plaintiff had the following severe impairments: a history of cardiovascular accident
(CVA)/stroke, depression, anxiety, alcohol abuse, methamphetamine abuse, cannabis use,
and tobacco use. (Id.) At step three, the ALJ found that Plaintiff did not have an
impairment or combination of impairments that met or medically equaled the severity of
one of the impairments listed in the Commissioner’s Listing of Impairments. (Id. at 21.)
2 “AR” refers to the Administrative Record filed on February 24, 2025. (ECF No. 9.) The Court’s
citations to the AR in this Order are to the page numbers listed on the original document rather than the
page numbers designated by the Court’s Case Management/Electronic Case Filing System (“CM/ECF”).
For all other documents, the Court’s citations are to the page numbers affixed by CM/ECF.
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Next, the ALJ determined that Plaintiff had the residual functional capacity (“RFC”) to
do the following:
[P]erform medium work as defined in 20 CFR 404.1567(c). Specifically,
the clamant can lift and/or carry, push/pull twenty-five pounds frequently,
fifty pounds occasionally; she can stand and/or walk for six hours out of an
eight-hour workday; she can sit for six hours out of an eight-hour workday;
she can frequently climb ramps and stairs, balance, stoop, kneel, crouch and
crawl; she can occasionally climb ladders, ropes and scaffolds; she can
understand, remember and carry out simple routine task with only occasional
interaction with the general public; she can have occasional work-related
non-personal non-social interaction with co-workers and supervisors; she is
limited to jobs requiring only simple work-related decisions and she is able
to keep pace sufficient to complete tasks and met quotas typically found in
unskilled work.
(Id. at 24.)
At step four, the ALJ found that Plaintiff was unable to perform her past relevant
work as a day worker. (Id. at 32.) At step five, based on the VE testimony, the ALJ
determined that a hypothetical person with Plaintiff’s vocational profile and RFC could
perform the requirements of occupations that existed in significant numbers in the
national economy, such as a medium-level hand packager, laundry laborer, and cleaner
industrial. (Id. at 33.) The ALJ then found that Plaintiff was not disabled from January
21, 2022, through March 31, 2023, the date last insured. (Id.)
III. DISPUTED ISSUES
As reflected in the parties’ Joint Motion, Plaintiff is raising the following issues as
the grounds for reversal and remand: (1) whether the ALJ’s RFC assessment for Plaintiff,
that does not include any use of the cane, is supported by the record; and (2) whether the
ALJ provided clear and convincing reasons to reject Plaintiff’s subjective complaints. (J.
Mot. at 4.)
IV. STANDARD OF REVIEW
Section 405(g) of the Social Security Act allows unsuccessful applicants to seek
judicial review of the Commissioner’s final decision. 42 U.S.C. § 405(g). The scope of
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judicial review is limited, and the denial of benefits will not be disturbed if it is supported
by substantial evidence in the record and contains no legal error. See id.; Buck v.
Berryhill, 869 F.3d 1040, 1048 (9th Cir. 2017). “Substantial evidence means more than a
mere scintilla, but less than a preponderance. It means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Revels v. Berryhill,
874 F.3d 648, 654 (9th Cir. 2017) (quoting Desrosiers v. Sec’y Health & Hum. Servs.,
846 F.2d 573, 576 (9th Cir. 1988)). In determining whether the Commissioner’s decision
is supported by substantial evidence, a reviewing court “must assess the entire record,
weighing the evidence both supporting and detracting from the agency’s conclusion,”
and “may not reweigh the evidence or substitute [its] judgment for that of the ALJ.”
Ahearn v. Saul, 988 F.3d 1111, 1115 (9th Cir. 2021). Where the evidence can be
interpreted in more than one way, the court must uphold the ALJ’s decision. Id. at 1115–
16; Attmore v. Colvin, 827 F.3d 872, 875 (9th Cir. 2016). The Court may consider “only
the reasons provided by the ALJ in the disability determination and may not affirm the
ALJ on a ground upon which [he or she] did not rely.” Revels, 874 F.3d at 654 (internal
quotation omitted).
V. RELEVANT MEDICAL RECORDS AND TESTIMONY
A. Examination Findings
1. Dr. Elsayed
From March 2022 through June 2024, Plaintiff was treated at Oxford Care Group
by Dr. Mohammed Elsayed, a primary care physician. (See AR at 633, 653–72, 909–79,
1593–1647.) On March 22, 2022, Dr. Elsayed indicated that Plaintiff had no pain in her
muscles or joints, no limitation of range of motion, and no paresthesia or numbness. (Id.
at 670.) On April 23, 2022, Plaintiff reported continued right-sided weakness, but stated
that her hand grips were normal and equal, and Dr. Elsayed noted that Plaintiff walked
with a cane. (Id. at 666.) On May 15, 2022, Plaintiff reported that she had no headaches,
vertigo, stiffness, pain limitation in range of motion, paresthesia, numbness, or weakness.
(Id. at 664–65.)
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During multiple office visits from August 2022 through June 2024, Dr. Elsayed
documented that Plaintiff did not have arthralgias, back pain, gait problems, joint
swelling, myalgias, neck pain, neck stiffness, dizziness, tremors, seizures, syncope, facial
asymmetry, weakness, light-headedness, and numbness. (See id. at 916–18, 922–24,
927–29, 931–34, 937–39, 941–44, 967–69, 971–73, 975–79, 1593–95, 1605–07, 1612–
15.) During several examinations, Dr. Elsayed observed Plaintiff using a cane with a
“gait problem” and right-sided weakness. (See id. at 931, 937, 962, 964, 997, 1626,
1631, 1637, 1642.) On October 14, 2023, Dr. Elsayed placed an order for a four-pronged
cane for Plaintiff and referred her to physical therapy. (Id. at 918, 921.)
On March 6, 2024, Dr. Elsayed determined that Plaintiff cannot stand for more
than fifteen minutes and has limitations in her upper extremities. (Id. at 1583–84.) Dr.
Elsayed also opined that Plaintiff is unable to perform work and is permanently disabled.
(Id. at 1583.)
2. Dr. Dao
On January 10, 2023, Plaintiff underwent an internal medicine consultative
examination with Dr. Phong Dao. (Id. at 855–62.) Dr. Dao reported that Plaintiff was
able to generate ten pounds of force using her right hand and thirty-five pounds of force
using her left hand, noting that she is right-hand dominant. (Id. at 858.) In his functional
assessment, Dr. Dao concluded that Plaintiff could lift and carry fifty pounds
occasionally, twenty-five pounds frequently, and walk or stand for six hours in an eight-
hour day. (Id. at 861.) Dr. Dao also determined that Plaintiff does not use or require any
assistive device for ambulation and specifically noted that Plaintiff entered the
examination room without any assistive device. (Id. at 857, 861.)
Dr. Dao further reported that Plaintiff had difficulty standing on her right toes and
heels, and walked with a slight limp, bearing most of her weight on her left leg when she
ambulates. (Id. at 858.) He also noted that Plaintiff’s motor strength was 5/5 in all
extremities, but that her right upper extremity was slightly weaker than her left upper
extremity despite the 5/5 motor strength score. (Id. at 860.)
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3. Dr. Whitehead
On January 23, 2023, Plaintiff underwent a psychiatric consultative examination
with Dan Whitehead, Ph.D. (See id. at 871–78.) During the examination, Plaintiff stated
that she had difficulty with general daily tasks around the house because of her reported
problems, but could perform most activities of daily living on her own schedule. (Id. at
873.) Specifically, Plaintiff could “pick up and straighten around the house, take out the
trash, dust, perform general cleaning, sweeping, mopping, vacuuming, laundry, dishes,
and other general household tasks.” (Id.) Additionally, she could cook, shower, dress,
bathe, and perform all personal hygiene activities. (Id.) Plaintiff also told Dr. Whitehead
that she could drive and use public transportation. (Id.) Dr. Whitehead observed that
Plaintiff’s gait seemed rather slow, due to physical problems, and that she was using a
cane. (Id. at 874.) Dr. Whitehead ultimately concluded that Plaintiff could consistently
perform work activities, but had a mild limitation in completing a full workday or
workweek. (Id. at 876.)
4. Dr. Lucas
From February 22, 2022, through March 21, 2024, Plaintiff received treatment
from her primary psychiatrist, Darren Lucas, M.D., at South Bay Guidance Wellness.
(See id. at 753–834, 879–907, 1585–92.) During this period, providers at South Bay
Guidance Wellness regularly documented Plaintiff’s cane use and limping gait. (See id.
at 766, 795, 888, 891, 897, 899, 905, 1588.) On February 22, 2022, Plaintiff reported
difficulties with activities of daily living due to her stroke. (Id. at 768.) By February 15,
2023, Plaintiff was able to complete activities of daily living and reported walking
independently, with a steady gait. (Id. at 888–89.) On June 16, 2023, Plaintiff reported
she could complete activities of daily living, but she walked with a cane and had a
slightly unsteady gait. (Id. at 897.)
5. Urgent care examinations
On October 19, 2022, PA Austin Brett examined Plaintiff at SouthBay Urgent Care
for a hand injury and lower leg swelling. (Id. at 837.) Plaintiff denied having joint pain,
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edema, myalgias, dizziness, or headache. (Id. at 837–38.) Plaintiff’s musculoskeletal
examination was abnormal with mild tenderness. (Id. at 839.)
On July 19, 2023, Plaintiff was examined by PA Megan Rodriguez at SouthBay
Urgent Care for a rash. (Id. at 842.) During the examination, Plaintiff denied dizziness,
headache, and numbness. (Id.) Her gait was normal, and her lower and upper extremity
evaluations were also normal. (Id. at 843–44.) A few weeks later, on August 7, 2023,
Plaintiff was examined by PA Austin Brett at SouthBay Urgent Care for bug bites. (Id. at
846.) Plaintiff denied joint pain, and her gait was normal. (Id. at 846–47.)
6. Physical therapy
From May 6, 2022, through August 22, 2024, Plaintiff attended physical therapy at
Spine and Sport Physical Therapy. (See id. at 39–335, 673–752.) Plaintiff’s treatment
providers consistently documented her use of a single-point cane during these visits. (See
id. at 103, 110, 113, 118, 121, 125, 129, 132, 135, 139, 144, 148, 153, 157, 160, 335, 331,
335, 686, 693, 694, 698, 702, 874.)
At her initial session with PT Woody Somvichai on May 6, 2022, Plaintiff
reported difficulty walking without a cane, using her right arm for activities of daily
living, and performing household chores. (Id. at 744.) She also described increased pain
with lifting objects, grocery shopping, and bagging groceries, though she could use a
handrail to climb stairs. (Id.) On May 9, 2022, Plaintiff began exercise for the first time
since her stroke, reporting pain of 7/10. (Id. at 741.) However, during subsequent
sessions, her pain decreased to 2/10. (See id. at 707, 713, 717, 725, 729, 733, 737.) By
late May 2022, Plaintiff reported walking around her neighborhood and riding a bike for
fifteen minutes, but also stated that she did not consistently follow her home exercise
program. (Id. at 725, 729, 733.) Throughout 2022, Plaintiff reported gradual
improvement, but continued to experience difficulty with stairs, biking, and walking
more than half a block due to fatigue. (See id. at 676, 691, 695, 699, 703, 737.)
In 2023, Plaintiff reported mixed progress. During some appointments, she denied
pain and reported improvement. (See id. at 41, 45, 49, 78, 328, 332.) However, during
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other sessions, Plaintiff complained of neck, shoulder, and hand pain, tremors, and
intermittent numbness. (See id. at 59, 63, 67, 71, 82, 89, 92, 97.) On December 4, 2023,
she also reported aggravation of pain after household tasks such as cleaning. (Id. at 97.)
In January 2024, Plaintiff reported extreme right shoulder pain, lower extremity
weakness, balance problems, and reliance on a cane for walking short distances and a
walker for walking longer distances. (See id. at 102–03, 111, 115.) In February and
March 2024, Plaintiff reported improvement, denying pain, and stated that she felt
stronger and more stable. (See id. at 122, 126, 133, 137, 141, 145.) On March 7, 2024,
PTA Linda Esquerra reported that Plaintiff’s activities of daily living were within
functional limits. (Id. at 149.) On March 22, 2024, Plaintiff reported feeling stronger and
more stable, with improved function in her right upper extremity. (Id. at 154.) On June
10, 2024, she reported ongoing shoulder pain. (Id. at 162.) On June 27, 2024, Plaintiff
reported ongoing bicep tendon pain and slight balance problems, but described overall
improvement. (Id. at 180.)
B. Plaintiff’s Testimony and Statements
1. Plaintiff’s function report
In her function report, Plaintiff stated that she relies on a cane, making it difficult
for her to walk, maintain balance, and complete activities of daily living without using an
assistive device for support. (Id. at 569.) Plaintiff reported that her typical day includes
waking up, showering at a friend’s house, and sitting in her car to read. (Id. at 570.) She
noted that she takes care of her necessary tasks, such as her doctor’s appointments or
“get[ting] something to eat.” (Id.)
Plaintiff claimed that her injuries affect her ability to dress, bathe, care for her hair,
shave, use the toilet, and apply makeup. (Id.) Additionally, she noted that her injuries
affect her ability to lift, squat, bend, stand, reach, walk, kneel, stair climb, see, use her
hands, and her memory. (Id. at 574.) However, Plaintiff reported that her injuries do not
affect her ability to sit. (Id.) Plaintiff stated that cooking is difficult due to weakness in
her right hand. (Id. at 571.) She rarely goes outside or shops, but when she does, she
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takes her cane and uses carts. (Id. at 572.) Plaintiff reported that she goes to the park,
library, and a friend’s house regularly. (Id. at 573.) Plaintiff also claimed that she “can’t
go out and do anything because [she does] not want to and has a limp.” (Id.) Finally,
Plaintiff noted she can only walk half a block with a walker or cane before needing to
stop and rest. (Id. at 574.)
2. Plaintiff’s testimony during administrative hearing
On July 16, 2024, Plaintiff testified that she was homeless and that she stayed at
her friends’ homes, as well as her aunt’s house. (Id. at 342.) She stated that she had
previously owned a cleaning service business for about twelve years, working mostly on
beach rentals and earning fifteen to twenty dollars per hour for forty hours a week. (Id. at
344–45.) Her last day of work was in January 2022. (Id.)
Plaintiff further testified that she uses assistive devices, specifically a walker and a
four-pointed cane prescribed by her doctors. (Id. at 347.) She also stated she uses a
shower chair. (Id.) She also stated that she has not had any surgeries that continue to
impact her ability to work. (Id.) Additionally, Plaintiff testified that she has been unable
to return to work since her stroke. (Id. at 349–50.) She explained that the stroke
weakened her right side and impacted everything in her life, noting she is unable to lift
anything or go up the stairs. (Id.)
Plaintiff also testified that she can stand for about ten minutes with a cane before
needing to sit. (Id. at 350.) Plaintiff stated that she uses a cane every day and requires an
assistive device to walk, even inside the home. (Id. at 350–51.) She added that she can
walk less than half a block and cannot carry a gallon of milk. (Id.) Plaintiff further
testified that she has trouble bending over because she loses her balance. (Id. at 351.)
She also criticized the January 10, 2023, consultative examination conducted by Dr. Dao,
stating it lasted only five minutes, was not thorough, and did not involve a review of her
records. (Id. at 352.) Plaintiff also noted that she brought her cane to that examination.
(Id.)
/ / /
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VI. DISCUSSION
A. The ALJ’s RFC Assessment is Supported by the Record
1. Parties’ arguments
Plaintiff argues that the ALJ erred by failing to include the use of a cane in the
RFC he assessed for Plaintiff, despite extensive evidence in the record showing that
Plaintiff had used a cane since her stroke in January 2022. (J. Mot. at 4–5.) Plaintiff
cites treatment records documenting her need for a single-point cane for prolonged
walking, and subsequent records documenting her need for a four-pronged cane for
ambulation. (See id. at 6–7.) Plaintiff claims that the ALJ incorrectly found that Plaintiff
could perform medium work, arguing that her need for a cane precludes her from walking
for six hours a day or carrying up to fifty pounds. (Id. at 8.) Plaintiff also challenges the
ALJ’s evaluation of the consultative examiner’s examination, Dr. Dao, who found that
Plaintiff does not need an assistive device and that Plaintiff can walk or stand for six
hours in an eight-hour day. (Id. at 9) Plaintiff argues that the findings are inconsistent
with other physical examinations in the record. (Id.) Plaintiff notes that ten days after
the consultative examination, a physical therapist documented that she could not walk for
an hour without an assistive device or for more than fifteen minutes without a single-
point cane. (Id. (citing AR at 45, 51–52, 103, 110, 679, 682).) Plaintiff claims that Dr.
Dao could not accurately assess her mobility because his examination of Plaintiff lasted
only five minutes, compared to Plaintiff’s more than forty one-hour physical therapy
sessions, which documented limitations inconsistent with Dr. Dao’s findings. (J Mot. at
9.) Plaintiff further contends that the ALJ erred in rejecting the opinion of treating
physician Dr. Elsayed Mohammed, arguing that his assessment that Plaintiff could not
work was reasonable given her need for a cane. (Id. at 10.)
In response, Defendant claims the ALJ properly assessed the RFC for medium
exertional work. (Id.) Defendant argues that while the record reflects that Plaintiff used
a cane, no evidence in the record shows that Plaintiff required a cane for ambulation, and
argues that using a cane for ambulation is not the same as a doctor requiring one. (Id. at
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11–12.) Defendant also cites evidence that Plaintiff functioned independently, showed
improved mobility following physical and occupational therapy, and did not use an
assistive device during the consultative examination. (See id. at 11–12.) Finally,
Defendant argues that the ALJ properly evaluated the persuasiveness of the medical
opinion evidence and properly rejected Plaintiff’s subjective testimony. (Id. at 13–14.)
2. Applicable law
RFC refers to what the claimant can do in a work setting, despite the claimant’s
mental or physical limitations caused by impairments or related symptoms. 20 C.F.R.
§ 404.1545(a)(1); see also Social Security Ruling (“SSR”) 96-8p, 1996 WL 374184, at *1
(July 2, 1996) (providing that an 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.”). In assessing the claimant’s RFC, the ALJ must consider all the
claimant’s medically determinable impairments, including nonsevere medically
determinable impairments. 20 C.F.R. § 404.1545(e). “[A]n ALJ must consider all
relevant evidence in the record, including, inter alia, medical records, lay evidence, and
‘the effects of symptoms, including pain, that are reasonably attributed to a medically
determinable impairment.’” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir.
2006) (quoting SSR 96-9p, 1996 WL 374184, at *5). Careful consideration must be
given to “any evidence about symptoms ‘because subjective descriptions may indicate
more severe limitations or restrictions than can be shown by medical evidence alone.’”
Id.
The RFC is not a medical opinion, but a legal decision that is expressly reserved
for the Commissioner. See 20 C.F.R. § 404.1546(c); Vertigan v. Halter, 260 F.3d 1044,
1049 (9th Cir. 2001) (citing 20 C.F.R. § 404.1545) (“It is clear that it is the responsibility
of the ALJ, not the claimant’s physician, to determine residual functional capacity.”).
Where “the record contains conflicting medical evidence, the ALJ is charged with
determining credibility and resolving the conflict.” Benton ex rel. Benton v. Barnhart,
331 F.3d 1030, 1040 (9th Cir. 2003); see also Morgan v. Comm’r of Soc. Sec. Admin.,
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169 F.3d 595, 603 (9th Cir. 1999) (holding that the ALJ was “responsible for resolving
conflicts” and “internal inconsistencies” within physicians’ reports). In determining
whether an ALJ committed error in assessing the RFC, the relevant inquiry is whether the
medical evidence supports the ALJ’s findings. See Stubbs-Danielson v. Astrue, 539 F.3d
1169, 1173–74 (9th Cir. 2009) (holding that the RFC assessment adequately captured
restrictions when it was consistent with the concrete limitations in the medical opinions).
3. Analysis
a. The ALJ properly evaluated the medical opinion evidence.
Plaintiff disputes the ALJ’s analysis of Plaintiff’s treating physician’s and
consultative examiner’s opinions and how the ALJ incorporated those opinions into the
RFC determination. (J. Mot. at 8–10, 12–14.) Plaintiff argues that the ALJ erred in
evaluating both Dr. Dao’s and Dr. Elsayed’s opinions. (Id. at 8–10.) Defendant
maintains that the record supports the ALJ’s assessments of both opinions. (Id. at 12–
14.)
In assessing the medical opinion evidence, the ALJ found that the consultative
examiner, Dr. Dao’s, opinion mostly persuasive because it is supported by objective
medical findings and consistent with the record as a whole. (AR at 30.) By contrast, the
ALJ found the treating physician, Dr. Elsayed’s, opinion unpersuasive, explaining that
his conclusion that Plaintiff could not sit or stand for longer than fifteen minutes is not
supported by medical evidence and is not consistent with the record. (Id. at 29–30.)
In evaluating the intensity and persistence of a claimant’s symptoms, an ALJ must
consider all the available evidence from the claimant’s “medical sources and nonmedical
sources about how [the claimant’s] symptoms affect [her].” 20 C.F.R. § 404.1529(c)(1).
Medical opinions are more persuasive if they are supported by explanations and objective
medical evidence, 20 C.F.R. § 404.1520c(c)(1), and if they are consistent with the
evidence from other medical and nonmedical sources, 20 C.F.R. § 404.1520c(c)(2).
Furthermore, the medical opinion of a specialist “about medical issues related to his or
her area of specialty” is more persuasive than that of a non-specialist. 20 C.F.R.
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§ 404.1520c(c)(4). The purpose, length, and extent of a medical source’s treatment
relationship with the claimant, the kinds and extent of examinations and testing
performed, and the frequency of the claimant’s visits, may also demonstrate a medical
source’s knowledge and understanding of the claimant’s impairments. 20 C.F.R.
§ 404.1520c(c)(3)(i)–(v). In addition, a medical source’s familiarity with other evidence
in a claim may make the source’s opinion more persuasive. 20 C.F.R. § 404.1520c(c)(5).
Revised regulations apply to an ALJ’s analysis of medical opinion evidence for
claims filed on or after March 17, 2017. See Revisions to Rules Regarding the
Evaluation of Medical Evidence, 2017 WL 168819, 82 Fed. Reg. 5844-01, at 5867–68
(Jan. 18, 2017). Under these new rules, the ALJ is no longer required to “defer or give
any specific evidentiary weight, including controlling weight, to any medical opinion(s).”
20 C.F.R. § 404.1520c(a). The ALJ must instead consider all the medical opinions in the
record and evaluate each medical opinion’s persuasiveness using factors including
supportability, consistency, relationship with the claimant, and specialization. Id. The
two most important factors in determining a medical opinion’s persuasiveness are the
opinion’s “supportability” and “consistency.” 20 C.F.R. § 404.1520c(a). The
ALJ must articulate “how [he or she] considered the supportability and consistency of
factors for a medical source’s medical opinions . . . in [his or her] decision.” 20 C.F.R. §
404.1520c(b)(2).
Related to supportability, the “more relevant the objective medical evidence and
supporting explanations presented by a medical source are to support his or her medical
opinion(s), the more persuasive the medical opinions . . . will be.” 20 C.F.R.
§ 404.1520c(c)(1). For consistency, the “more consistent a medical opinion(s) is with the
evidence from other medical sources in the claim, the more persuasive the medical
opinion(s) . . . will be.” 20 C.F.R. § 404.1520c(c)(2). The ALJ is not required to explain
how the ALJ considered other factors, unless the ALJ finds that two or more medical
opinions about the same issue are equally well-supported and consistent with the record,
but not identical. See 20 C.F.R. § 404.1520c(b)(3).
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The revised rules do not, however, replace all previous case law within the Ninth
Circuit. For example, ALJs still may not cherry-pick evidence in discounting
a medical opinion. See Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014); see
also Holohan v. Massanari, 246 F.3d 1195, 1207 (9th Cir. 2001) (reversing an ALJ’s
selective reliance “on some entries in [the claimant’s records while ignoring] the many
others that indicated continued, serious impairment”). Nor, for instance, may the ALJ
dismiss medical opinions without providing a detailed explanation for doing so:
To say that medical opinions are not supported by sufficient objective
findings or are contrary to the preponderant conclusions mandated by the
objective findings does not achieve the level of specificity our prior cases
have required, even when the objective factors are listed seriatim. The ALJ
must do more than offer his own conclusions. [They] must set forth [their]
own interpretation and explain why they, rather than the doctors’, are
correct.
Regenmitter v. Comm’r of Soc. Sec. Admin., 166 F.3d 1294, 1299 (9th Cir. 1999)
(citation omitted).
i. Dr. Elsayed
Dr. Elsayed has been treating Plaintiff since March 2022. (See AR at 633.) On
March 6, 2024, Dr. Elsayed completed a Verification of Physical/Mental Incapacity
Report and a Physical Residual Functional Capacity Questionnaire. (Id. at 1583–84.) In
the one-page verification report, Dr. Elsayed checked boxes indicating that Plaintiff
cannot perform any work, that her disability is permanent, and that she cannot care for
herself. (Id. at 1583.) In the one-page Physical Residual Functional Capacity
Questionnaire, Dr. Elsayed opined that Plaintiff cannot sit or stand for more than fifteen
minutes. (Id. at 1584.)
The ALJ found that Dr. Elsayed’s opinion is unpersuasive “because of its lack of
supportability and inconsistency with the evidence of the record.” (Id. at 29.) The ALJ
further opined, “[t]his extreme opinion is not supported by the evidence of record.” (Id.)
The ALJ reasoned that this is “an opinion on an issue reserved to the Commissioner, this
statement is not entitled to controlling weight and is not given special significance
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pursuant to 20 C.F.R. 404.1527(d) and 416.927(d) and SSR 96-5.” (Id. at 29–30.) The
ALJ also stated the following:
The claimant not being able to stand or sit longer than fifteen minutes is
inconsistent with the record as a whole, which showed she was found to
have had an acute left pontine stroke most likely secondary to
methamphetamine use, she improved significantly with physical and
occupational therapy in rehabilitation, the right upper and lower extremity
weakness was almost completely resolved, and she was independent for
mobility and gait; she had stopped smoking but was vaping, reported
continued right sided weakness, but her hand grips were normal and equal.
Further examinations were generally within normal limits, had good results
from physical therapy and she had normal gait and strength.
(Id. at 30 (citing id. at 642, 664, 676, 838–39, 843, 967–69, 971–73, 1033).)
Here, the Court notes that while the ALJ’s language is imprecise, the Court finds
the ALJ’s reasoning readily apparent. See Woods v. Kijakazi, 32 F.4th 785, 793 n.4 (9th
Cir. 2022) (noting that when the ALJ’s use of supportability and inconsistency terms are
imprecise, courts look to determine whether “the ALJ’s meaning . . . is clear from
context”); see also Vincent v. Kijakazi, Case No. 22-15941, 2023 WL 3018060, at *1 &
n.1 (9th Cir. Apr. 20, 2023) (noting that “[a]lthough the ALJ’s language was arguably
imprecise, his reasoning is readily apparent” as such to not warrant a remand to reweigh
the evidence).
Regarding supportability, the ALJ cited Dr. Elsayed’s examination notes, which
demonstrate that Dr. Elsayed’s highly restrictive check-box opinion—that Plaintiff
cannot perform work or stand or sit for more than fifteen minutes—is not supported by
the record. (AR at 30 (citing id. at 664–66 (stating that in April 2022, Plaintiff was
“generally healthy, no change in strength or exercise tolerance . . . no pain in muscle or
joints, no limitation of range of motion”); id. at 676 (noting that in November 2022,
Plaintiff had a 0/10 pain level and was fully functional in her activities of daily living);
id. at 967–73 (reporting that in August through October 2022, Plaintiff did not have gait
problems and had normal gait)).) Accordingly, the record supports the ALJ’s conclusion
that Dr. Elsayed’s restrictive opinion is not supported by his own treatment notes.
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Regarding consistency, the ALJ cited other medical records that demonstrate that
Dr. Elsayed’s opinion is not consistent with the record as a whole. (Id. at 30.) The
record reflects that Plaintiff’s lower extremity weakness was almost completely resolved,
that she had good outcomes after physical therapy, and “was independent for mobility
and gait.” (Id. (citing id. at 642 (noting that in January 2022, Plaintiff was independent
for ambulation and independent in activities of daily living); id. at 838–39, 843 (stating
that in October 2022 and July 2023, Plaintiff had a normal gait); id. at 1033 (stating that
“[Plaintiff] has improved significantly with physical and Occupational Therapy. Right
and lower extremity weakness almost completely resolved. [Plaintiff] was independent
for mobility and gait.”)).) The ALJ’s citation of specific treatment records therefore
adequately supports his conclusion that Dr. Elsayed’s opinion is inconsistent with the
record. See Makayla M. v. Bisignano, Case No.: 24-cv-1343-SBC, 2025 WL 2709859, at
*6 (S.D. Cal. Sep. 23, 2025) (finding that a doctor’s medical opinion was inconsistent
with the record showing the claimant’s strong and steady gait, and that she did not require
an assistive device); see also Frank S. v. O’Malley, Case No.: 3:23-cv-1795-DTF, 2024
WL 3551867, at *3, *6 (S.D. Cal. July 26, 2024) (finding that a doctor’s medical opinion
observing that the claimant had difficulty sitting or standing for more than ten minutes
was inconsistent with other evidence in the medical record). Accordingly, the Court
concludes that the ALJ properly found Dr. Elsayed’s opinion—that Plaintiff is unable to
perform any work and cannot sit or stand for more than fifteen minutes—was
inconsistent with the medical record.
Although Plaintiff argues that Dr. Elsayed’s opinion is “not extreme” because he
previously documented Plaintiff’s right-sided weakness, limp, and use of a cane, (J. Mot.
at 10), this argument lacks merit. The evidence that Plaintiff cites contradicts her past
treatment records, where Dr. Elsayed documented that Plaintiff had a normal gait. (See,
e.g., AR at 666, 918, 967, 969.) Dr. Elsayed’s contradiction between his own medical
opinion and his treatment records is further substantial evidence to reject Dr. Elsayed’s
medical opinion. See Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020) (“A conflict
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between a . . . physician’s medical opinion and his own notes is a ‘clear and convincing
reason for not relying on the doctor’s opinion,’ and therefore is also a specific and
legitimate reason for rejecting it.”); see also Fiona M. v. Dudek, Case No.: 3:24-cv-
00568-AHG, 2025 WL 720190, at *5–6 (S.D. Cal. Mar. 6, 2025) (finding that a medical
opinion regarding plaintiff’s physical limitations was inconsistent with other records
noting “gait normal” and “normal range of motion.”).
For these reasons, the Court finds that the ALJ properly found Dr. Elsayed’s
medical opinion unpersuasive. Accordingly, the Court concludes that the ALJ did not err
in excluding Dr. Elsayed’s medical opinion in the RFC determination.
ii. Dr. Dao
On January 10, 2023, Plaintiff underwent an internal medicine consultative
examination with Dr. Dao. (AR at 856.) Dr. Dao opined that Plaintiff could lift and
carry fifty pounds occasionally, twenty-five pounds frequently, and walk or stand for six
hours in an eight-hour workday. (Id. at 861.) He also noted that Plaintiff did not use or
require an assistive device for ambulation and specifically noted that Plaintiff entered the
examination room without an assistive device. (Id. at 858.) Dr. Dao further assessed a
medium level of exertion with frequent postural activity. (Id. at 861.)
The ALJ found that Dr. Dao’s opinion was “mostly persuasive because of its
supportability and consistency with the evidence of the record.” (Id. at 30.) As to
supportability, the ALJ found that the opinion “was based on an in-person exam, well-
supported by objective, medically acceptable clinical or laboratory diagnostic techniques,
the assessment is complete, specific facts are cited upon which the conclusion is based[.]”
(Id.) The ALJ cited specific findings from Dr. Dao’s examination notes, including
observations regarding Plaintiff’s upper and lower extremities, grip strength, gait, and
balance. (Id.; see also id. at 864–70.) Dr. Dao’s opinion also spans five pages of detailed
patient notes and observations, which support the ALJ’s determination. (Id. at 856–61.)
Thus, the ALJ’s finding is sufficient because it is “supported by substantial evidence.”
Woods, 32 F.4th at 792; see also Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997)
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(finding that substantial evidence is “more than a mere scintilla but less than a
preponderance; it is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion”); Matthew C. v. Comm’r of Soc. Sec., Case No.:
24cv322-JES (LR), 2025 WL 572891, at *13 (S.D. Cal. Feb. 21, 2025) (affirming ALJ’s
finding on supportability because state examiner’s medical opinion was supported by
“relevant . . . objective medical evidence”). Accordingly, the Court concludes that the
ALJ did not err by finding that Dr. Dao’s opinion is supported by evidence of the record.
For consistency, the ALJ found Dr. Dao’s opinion:
[L]argely consistent with the record as a whole, which showed she was
found to have had an acute left pontine stroke most likely secondary to
methamphetamine use, she improved significantly with physical and
occupational therapy in rehabilitation, the right upper and lower extremity
weakness was almost completely resolved, and she was independent for
mobility and gait; she had stopped smoking but was vaping, reported
continued right sided weakness, but her hand grips were normal. Further
examinations were generally within normal limits, had good results from
physical therapy and she had normal gait and strength.
(AR at 30.)
The ALJ therefore cited a substantial amount of evidence to show that Dr. Dao’s
opinion is consistent with the overall record, including treatment notes reflecting
Plaintiff’s improvement in physical and occupational therapy, normal hand grips, and
normal gait and strength. (Id. (citing id. at 641, 664–66, 676, 838–39, 843–44, 962–63,
968–69, 971, 973, 1033–34).) Such evidence is consistent with Dr. Dao’s assessment of
medium exertion with frequent postural activity. (Id. at 30.) Accordingly, the Court
concludes that the ALJ accurately found Dr. Dao’s opinion was consistent with the
medical record. See Woods, 32 F.4th at 792 (“Consistency means the extent to which a
medical opinion is ‘consistent . . . with the evidence from other medical sources and
nonmedical sources in the claim.’”) (quoting 20 C.F.R. § 404.1520c(c)(2)); see also
Matthew C., 2025 WL 572891, at *13 (affirming ALJ’s finding that state medical
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examiner opinion was consistent with overall medical record which showed plaintiff had
normal motor strength, normal range of motion, and normal gait).
For these reasons, the Court finds that the ALJ properly found Dr. Dao’s opinion
was medically persuasive and did not err in incorporating it into the RFC determination.
The Court therefore concludes that the ALJ did not err in evaluating the medical opinion
evidence or in incorporating the opinions into the RFC determination.
b. The ALJ properly excluded Plaintiff’s cane use from his RFC
assessment.
Plaintiff also contends that the ALJ erred in formulating her RFC by failing to
properly consider her cane use. (J. Mot. at 4.) Defendant argues that the ALJ did not err
because there “is no indication that [Plaintiff] required [a cane] for ambulation.” (Id. at
11.) As explained further below, the Court agrees with Defendant.
Medical documentation must be present in the record, which specifically
establishes that the use of a cane is medically required for Plaintiff’s specific limitations,
including the type of limitation, duration of use, and scope of use. “[T]he use of an
assistive device is probative of a claimant’s functional limitations only where it is
medically required.” Velasquez v. O’Malley, Case No.: 23-cv-1683-RBM-BLM, 2024
WL 3220726, at *4 (S.D. Cal. June 27, 2024) (quoting Luis G. v. Saul, Case No.: ED CV
19-00317-DFM, 2020 WL 1433589, at *3 (C.D. Cal. Mar. 24, 2020)); see also Dean N.
v. Saul, Case No.: CV 18-09840-DFM, 2020 WL 430962, at *1 (C.D. Cal. Jan. 28, 2020)
(“The use of a hand-held assistive device such as a cane is a functional limitation only if
it is medically required.”). “To find that a hand-held assistive device is medically
required, there must be medical documentation establishing the need for a hand-held
assistive device to aid in walking or standing, and describing the circumstances for which
it is needed (i.e., whether all the time, periodically, or only in certain situations; distance
and terrain; and any other relevant information).” SSR 96-9p, 1996 WL 374185, at *7
(July 2, 1996).
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In assessing Plaintiff’s RFC, the ALJ determined that Plaintiff could perform
medium work as defined in 20 C.F.R. § 404.1567(c). (AR at 24.) The ALJ
acknowledged Plaintiff’s testimony that she “has a walker and a four-point cane that was
diagnosed from a doctor as well as a shower chair,” and nonetheless found that “despite
the alleged impairment, the claimant has engaged in a somewhat normal level of daily
activity and interaction.” (Id. at 25.) The ALJ also noted other reports of Plaintiff’s cane
use, but still concluded that she could perform medium work, despite her testimony about
physical limitations and medical records documenting cane use. (See id. at 25–30.)
Contrary to Plaintiff’s assertion, the ALJ properly discounted Plaintiff’s cane use in
determining the RFC because the record does not contain evidence that the cane was
medically required. Plaintiff’s statements and testimony regarding her cane use do not,
by themselves, establish that a cane was medically necessary. See Frank S. v. Kijakazi,
Case No.: 21-cv-01074-JLB, 2022 WL 4125234, at *3 (S.D. Cal. Sep. 9, 2022); see also
Marin v. Astrue, Case No.: CV 11-09331 AJW, 2012 WL 5381374, at *4 (C.D. Cal. Oct.
31, 2012) (finding ALJ “justifiably concluded that plaintiff’s use of a cane did not
warrant a more limited RFC” where only plaintiff’s own testimony corroborated her use
of a cane). In her Adult Disability and Function Reports, Plaintiff asserted that she
requires a cane to walk, that she can only walk “half a block with the walker or cane,”
that she uses the cane most often, and that she “still need[s] to use [her] cane to walk.”
(See AR at 574–75, 580, 587, 600.) Plaintiff similarly testified at the hearing that she
uses a walker and four-point cane prescribed by her doctors and that, since her stroke, she
has needed a device to assist with walking. (Id. at 347, 351.) She stated that even with
her cane, she can only stand “about ten minutes” and walk “less than half a block.” (Id.
at 350–51.) Although Plaintiff reported using a cane, her testimony alone is not sufficient
to establish that a cane was medically necessary. See Frank S., 2022 WL 4125234, at *4
(finding that plaintiff’s testimony claiming he uses the cane for seventy to eighty percent
of the time was insufficient to establish medical necessity); Marin, 2012 WL 5381374, at
*4 (finding that plaintiff’s testimony during an administrative hearing claiming she “felt
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more secure with a cane,” along with other treatment reports, were insufficient to
establish medical necessity). Accordingly, the Court finds that Plaintiff’s testimony is
insufficient to establish that the cane was medically required, and the ALJ did not err by
omitting cane use from the RFC determination.
Plaintiff further relies on a treatment note from Dr. Elsayed to establish medical
necessity. (J. Mot. at 7; see also AR at 918–21.) In support, Plaintiff cites October 12,
2023, treatment note in which Dr. Elsayed evaluated her for bilateral hand and wrist pain,
and carpal tunnel symptoms. (See AR at 916.) Dr. Elsayed issued a “DME [durable
medical equipment] Misc Order: four legs cane” without providing any explanation or
circumstances under which the cane was needed. (See id. at 918–19.) The Court finds
that the brief notation for a “four legs cane” does not satisfy SSR 96-9p’s requirement
that medical documentation must describe the specific circumstances under which an
assistive device is required, including frequency of use, distance, terrain, and other
relevant details. See SSR 96-9p, 1996 WL 374185, at *7; see also Orozco v. O’Malley,
Case No. 1:23-cv-01373-SKO, 2024 WL 3969148, at *2, *7(E.D. Cal. Aug. 28, 2024)
(finding that a referral for a DME walker, did not establish medical necessity absent
descriptions of specific circumstances for which the assistive device was needed); Amber
C. v. Saul, Case No. 2:19-cv-03208-MAA, 2020 WL 2061771, at *3 (C.D. Cal. Apr. 29,
2020) (finding that physician notes instructing a claimant to use a walker with “routine
frequency” did not establish medical necessity absent descriptions of specific
circumstances for which the assistive device was needed); Nielsen v. Comm’r, No. 2:18-
cv-1168 AC, 2019 WL 4734758, at *5 (E.D. Cal. Sep. 27, 2019) (finding that a home
health referral to “use cane” did not establish medical necessity absent descriptions of
specific circumstances for which the cane was needed). Accordingly, the Court finds that
Dr. Elsayed’s “DME Misc Order” does not establish that Plaintiff was medically required
to use a cane for ambulation.
Plaintiff also contends that her treatment records establish that a cane was
medically necessary; however, after reviewing the cited records, the Court finds that the
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records merely document Plaintiff’s use of a cane and fail to demonstrate medical
necessity. (J. Mot. at 6–7.) Specifically, those records include medical providers’
references to Plaintiff’s use of a cane, such as “walking with a cane, can’t exercise,”
“walks with a cane,” and “patient presents in clinic with a SPC for short distances and
reports needing a walker for longer distances.” (See AR at 103, 335, 666, 686, 694, 698,
702, 705, 718, 744, 766, 795–97, 874, 888, 891, 897, 899, 905, 931, 964–65, 997, 1588.)
Observations by medical providers that Plaintiff used a cane are not the same as medical
findings that Plaintiff required a cane for ambulation, and are insufficient to show
medical necessity. See Velasquez, 2024 WL 3220726, at *4 (finding that provider notes
mentioning use of a cane at a medical appointment do not establish medical necessity);
see also Theodore K. M. v. O’Malley, Case No. 5:24-CV-00509-DTB, 2024 WL
5316330, at *4 (C.D. Cal. Nov. 6, 2024) (finding that provider notes referencing a
claimant’s use of a cane do not establish medical necessity); Quintero v. Colvin, Case
No. 1:13–cv–00478–SKO, 2014 WL 4968269, at *10 (E.D. Cal. Sep. 29, 2014)
(“Mentioning the use of a cane [in physician treatment notes] neither established
[p]laintiff needed the cane to balance or walk, nor described the circumstances for which
the cane would be needed”); Cashin v. Astrue, Case No.: EDCV 09-161 JC, 2010 WL
749884, at *11 (C.D. Cal. Feb. 24, 2010) (finding physician’s observation of claimant’s
use of cane during examination was not “an objective finding that plaintiff’s cane was
medically required”). Accordingly, the record in this case does not contain objective
medical evidence that Plaintiff’s use of a cane was medically required. See SSR 96-9p,
1996 WL 374185, at *7.
Substantial evidence in the record therefore supports the ALJ’s RFC determination
that Plaintiff did not require a cane, as the record contains no documentation showing that
any medical provider prescribed or found that Plaintiff required a cane for ambulation.
Accordingly, the Court concludes that the ALJ did not err in excluding the use of a cane
in the RFC determination.
/ / /
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4. Conclusion
For the reasons stated above, the Court finds that the ALJ properly evaluated the
medical opinion evidence and incorporated those findings into the RFC determination.
The ALJ reasonably found that Dr. Elsayed’s extreme limitations were unsupported and
inconsistent with the record, while finding Dr. Dao’s opinion was both supported by and
consistent with objective evidence in the record. The Court also finds that substantial
evidence supports the ALJ’s decision to omit cane use from Plaintiff’s assessed RFC,
because the record does not establish that the cane was medically required under SSR 96-
9p. Accordingly, the ALJ did not err in the RFC determination.
B. The ALJ Properly Discounted Plaintiff’s Subjective Symptom Testimony
1. Parties’ arguments
Plaintiff contends that the ALJ failed to articulate clear and convincing reasons for
rejecting her subjective symptom testimony. (J. Mot. at 16.) Specifically, Plaintiff
argues that the ALJ improperly discounted Plaintiff’s statements that she could not stand
or walk without a cane for more than fifteen minutes. (Id. at 17–18.) Plaintiff also
argues that the ALJ did not provide any reason to reject her statement that she had a cane
at her appointment with the consultative examiner, Dr. Dao. (Id. at 18–19.) Further,
Plaintiff argues that because the ALJ failed to cite any treatment, beyond physical
therapy, that could improve Plaintiff’s ability to walk for prolonged periods without a
cane, the ALJ lacked a proper basis to reject Plaintiff’s subjective symptom testimony on
the ground that her treatment was conservative. (Id. at 18.) Plaintiff also asserts that the
ALJ erred by equating “gait” to the “length of time” Plaintiff could walk and stand. (Id.)
Defendant responds that the ALJ properly discounted Plaintiff’s symptom
testimony, including her use of a cane, because the objective findings in the record did
not support Plaintiff’s statements. (Id. at 21–23.) Defendant argues that Plaintiff’s
reported independence and ability to perform most daily activities undermines her claim
of total disability. (Id. at 21.) Defendant further asserts that the ALJ properly considered
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Dr. Dao’s consultative examination findings, and argues that those findings were
supported by substantial evidence. (Id. at 22 (citing AR at 600, 856–61).)
2. Applicable law
The Ninth Circuit has established a two-part test for evaluating a claimant’s
allegations regarding subjective symptoms. See Trevizo v. Berryhill, 871 F.3d 664, 678
(9th Cir. 2017); see also SSR 16-3p, 2016 WL 1119029 (Mar. 16, 2016). First, the ALJ
determines whether there is “objective medical evidence of an underlying impairment
that could reasonably be expected to produce the pain or other symptoms alleged.”
Trevizo, 871 F.3d at 678 (quoting Garrison v. Colvin, 759 F.3d 995, 1014–15 (9th Cir.
2014)). Second, if a claimant presented such evidence, and there is no evidence of
malingering, the ALJ may reject the claimant’s statements about the severity of the
claimant’s symptoms “only by offering specific, clear and convincing reasons for doing
so.” Id.
When evaluating subjective symptom testimony, “[g]eneral findings are
insufficient.” Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015). “[A]n ALJ
does not provide specific, clear, and convincing reasons for rejecting a claimant’s
testimony by simply reciting the medical evidence in support of his or her residual
functional capacity determination.” Id. at 489. Instead, the ALJ must identify the
testimony regarding the claimant’s symptoms that the ALJ finds not credible, and explain
what evidence undermines the claimant’s testimony. See Lambert v. Saul, 980 F.3d
1266, 1277 (9th Cir. 2020) (citing Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d
1090, 1102 (9th Cir. 2014); see also Burrell v. Colvin, 775 F.3d 1133, 1139 (9th Cir.
2014) (finding error where the ALJ “never connected the medical record” to the
claimant’s testimony, and did not make “a specific finding linking a lack of medical
records to [the claimant’s] testimony about the intensity” of her symptoms); Orteza v.
Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (providing that the ALJ’s reasons for
discounting a claimant’s testimony must be “sufficiently specific to permit the reviewing
court to conclude that the ALJ did not arbitrarily discredit the claimant’s testimony”).
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“Because symptoms sometimes suggest a greater severity of impairment than can
be shown by objective medical evidence alone,” the ALJ considers “all of the evidence
presented,” including information about the claimant’s prior work record, statements
about symptoms, evidence from medical sources, and observations by the Agency’s
employees and other individuals. See 20 C.F.R. § 404.1529(c)(3); SSR 16-3p, 2016 WL
1119029. In addition, the ALJ may consider other factors, such as the claimant’s daily
activities; the location, duration, frequency, and intensity of pain or other symptoms;
precipitating and aggravating factors; the type, dosage, effectiveness, and side effects of
any medication taken to alleviate pain; treatment; and any other measures used to relieve
pain. See 20 C.F.R. § 404.1529(c)(3); SSR 16-3p, 2016 WL 1119029.
3. Analysis
The parties do not dispute the ALJ’s finding that Plaintiff’s medically determinable
impairments could reasonably be expected to cause the alleged debilitating symptoms.
(AR at 25; see also J. Mot. at 20.) Accordingly, the first prong of the ALJ’s inquiry
regarding Plaintiff’s subjective symptoms is satisfied.
Turning to the second prong of the ALJ’s inquiry, neither party alleges that the
ALJ found Plaintiff was malingering. (See generally J. Mot.) The Court therefore is
required to determine whether the ALJ identified which of Plaintiff’s subjective
allegations of impairment he discounted, and whether the ALJ provided specific, clear,
and convincing reasons for doing so. See Brown-Hunter, 806 F.3d at 489; Lambert, 980
F.3d at 1277.
The ALJ summarized Plaintiff’s testimony as follows:
The claimant alleged she was disabled due to a stroke, limited mobility due
to stroke, depression, and arthritis (Exhibit 2E, p. 2). She testified that she
has been outpatient since her stroke in January of 2022 and has a walker and
a four-point cane that was diagnosed from [sic] doctor as well as a shower
chair. She explained she has appointments with psych every three months as
is on [sic] medication but has had no hospitalizations due to mental health.
She reported she does not smoke but she vapes and has done detox for drugs.
She stated that she has been sober since her stroke, but she does drink a little
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bit, she had a relapse on methamphetamine twice, last used meth in March of
2023, and last smoked marijuana a couple of weeks ago. She indicated that
she is weak on her right side, and she cannot go upstairs, she does physical
therapy twice a week and she cannot type with her right hand. She stated
that her consultative examination did not do a thorough examination that
lasted for five minutes, and she had brought a cane to the examination.
(AR at 25)
The ALJ concluded that Plaintiff’s “statements concerning the intensity,
persistence and limiting effects of these symptoms are not entirely consistent with the
medical evidence and other evidence in the record.” (Id.) The ALJ then discounted
Plaintiff’s subjective symptom testimony, citing the following reasons: (1) the objective
medical evidence did not support Plaintiff’s allegations of disabling symptoms and
limitations; (2) Plaintiff’s allegations of disabling symptoms were not consistent with her
daily activities; and (3) Plaintiff had mostly routine, conservative, and non-emergency
treatment. (See id. at 25–26.)
The Court can only assess the reasoning the ALJ provided in his decision. See
Revels, 874 F.3d at 654 (stating that a court may consider “only the reasons provided by
the ALJ in the disability determination and may not affirm the ALJ on a ground upon
which [he or she] did not rely”); Garrison, 759 F.3d at 1010 (same). The Court will
therefore examine the validity of the ALJ’s stated reasons for discounting Plaintiff’s
testimony.
a. Inconsistency with medical evidence
The ALJ discounted Plaintiff’s subjective symptom testimony because Plaintiff’s
statements regarding the intensity, persistence, and limiting effects of the symptoms were
inconsistent with the medical evidence. (AR at 25.) Generally, the ALJ may not reject
the claimant’s subjective complaints based solely on a lack of medical evidence to fully
corroborate the alleged severity of pain. Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir.
2005). However, “when objective medical evidence in the record is inconsistent with the
claimant’s subjective testimony, the ALJ may indeed weigh it as undercutting such
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testimony.” Smartt v. Kijakazi, 53 F.4th 489, 498 (9th Cir. 2022) (explaining that Burch
does not forbid the ALJ from using inconsistent objective medical evidence in the record
to discount subjective symptom testimony). Contradiction of the claimant’s subjective
complaints with the medical record is a sufficient basis for rejecting the claimant’s
subjective testimony. See Carmickle v. Comm’r. Soc. Sec. Admin., 533 F.3d 1155, 1161
(9th Cir. 2008). The ALJ must identify “specific, clear, and convincing examples” that
contrast the claimant’s “subjective [ ] testimony with objective medical evidence.”
Smartt, 53 F.4th at 499. “The Ninth Circuit has found that evidence documenting intact
limb strength demonstrates greater functionality than claimed.” Peters v. Comm’r of Soc.
Sec., Case No. 2:23-cv-01924 AC, 2024 WL 4225839, at *5 (E.D. Cal. Sept. 18, 2024)
(citing Osenbrock v. Apfel, 240 F.3d 1157, 1166 (9th Cir. 2001); Meanel v. Apfel, 172
F.3d 1111, 1114 (9th Cir. 1999); Macri v. Chater, 93 F.3d 540, 544 (9th Cir. 1996)); see
also Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007) (upholding the ALJ’s finding that
the claimant’s subjective complaints of pain were contradicted by normal examination
findings); Ryan L. v. O’Malley, Case No.: 23-cv-338-DDL, 2024 WL 1283812, at *6
(S.D. Cal. Mar. 26, 2024) (finding that the ALJ properly discounted plaintiff’s subjective
symptom testimony, where the ALJ found that “the consistently normal findings on
physical examination over a period of years rendered [p]laintiff’s allegations that he
could not sit upright, walk ‘down the street,’ or use his arms, hands or fingers without
pain less than credible.”).
In this case, Plaintiff testified during her July 16, 2024, administrative hearing that
she was unable to work because her stroke completely weakened her right side, affecting
all aspects of her life, and that she was unable to lift anything or go up the stairs. (AR at
349–50.) Specifically, Plaintiff stated that she used a cane every day and needed an
assistive device to help her walk, even inside the home, and that she could only walk as
far as less than half a block. (Id. at 350–51.) The ALJ found that the objective medical
evidence did not corroborate the extreme degree of limitation Plaintiff alleged or her
asserted cane use. (Id. at 25–28.) In particular, the ALJ concluded that, contrary to
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Plaintiff’s allegations regarding the severity of her symptoms, Plaintiff’s medical records
documented her ability to sit, stand, walk, lift, and carry, demonstrating her
improvements after her stroke. (See id. at 27–28.) The ALJ cited Dr. Dao’s January 10,
2023, examination, documenting that Plaintiff could generate ten to thirty-five pounds of
force with her right and left hands, respectively. (Id. at 27 (citing id. at 855–62, 863–
70).) Dr. Dao observed that Plaintiff entered the examination room without an assistive
device, noted only slight difficulty standing on her right toes and heels while she bore
most of her weight on her left leg, and found 5/5 motor strength in all extremities, with
only slightly reduced strength in the right upper extremity compared to the left. (Id.) Dr.
Dao opined that Plaintiff could lift and carry fifty pounds occasionally, twenty-five
pounds frequently, and could walk or stand for six hours in an eight-hour day. (Id. at 30.)
As discussed in Section VI.A.3.a.i, the ALJ correctly found Dr. Dao’s opinion mostly
persuasive because of its supportability and consistency with the evidence of record.
(Id.)
The ALJ also determined that “[Plaintiff’s] alleged symptoms [were] just not
reasonably consistent with the medical evidence and other evidence in the record.” (Id. at
27.) “The ALJ may . . . compare a claimant’s statements to medical providers regarding
their symptoms and daily activities to statements made in the context of their disability
application.” See Mofeda Z. v. Bisignano, Case No.: 24-CV-2224-MMA-DDL, 2025
WL 2399670, at *6 (S.D. Cal. Aug. 19, 2025). In this case, the ALJ cited October 19,
2022, examination notes from PA Austin Brett at SouthBay Urgent Care, documenting
that Plaintiff denied joint pain, edema, myalgias, dizziness, or headache, and had normal
gait and intact cranial nerves. (AR at 27 (citing id. at 837–39).) The ALJ further relied
on March 23, 2023, examination notes from Dr. Elsayed, who reported that Plaintiff was
fatigued, but did not have arthralgias, back pain, dizziness, light-headedness, numbness,
and headaches. (Id. (citing id. at 962).) Further, the ALJ cited July 19, 2023, SouthBay
Urgent Care notes from PA Megan Rodriguez, which stated that Plaintiff denied
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dizziness, headache, and numbness, and that her gait and upper and lower extremity
examinations were normal. (Id. (citing id. at 842–43).)
The ALJ cited Plaintiff’s improvements and normal physical examinations as
reasons to discount Plaintiff’s subjective symptoms. (Id. at 26–27.) The ALJ noted that
Plaintiff was discharged from the hospital on February 18, 2022, after significant
progress with physical and occupational therapy, at which time her right upper and lower
extremity weakness was almost completely resolved, and she was independent in
mobility and gait. (Id. at 26 (citing id. at 1032–34).) The ALJ highlighted findings that
Plaintiff’s “right lower extremity strength was 5/5, and right upper extremity strength was
about 4+/5 in handgrip, supporting a limitation to a medium exertion.” (Id.) The ALJ
also cited physical therapy records from May 6, 2022, through November 25, 2022,
showing that Plaintiff reported improvement, minimal right shoulder pain, and the ability
to perform activities of daily living. (Id. at 27 (citing id. at 676).) However, the ALJ also
noted that Plaintiff continued to have difficulties going up and down stairs, getting on and
off her bike, and walking over half a block due to fatigue. (Id.) In addition, the ALJ
cited October 4, 2022, notes from Dr. Elsayed documenting that Plaintiff did not have
arthralgias, back pain, gait problems, joint swelling, myalgias, neck pain or stiffness,
dizziness, numbness, and headaches, and that she had normal coordination, gait, and
reflexes—findings the ALJ deemed consistent with limiting Plaintiff to no more than
frequent climbing of ramps and stairs, balancing, stooping, kneeling, crouching, and
crawling. (Id. (citing id. at 967).)
The ALJ further relied on numerous records demonstrating Plaintiff’s progress and
improvement after her stroke, noting that, despite Plaintiff’s allegations regarding the
severity of her symptoms and limitations, multiple providers consistently recorded good
results from physical therapy, normal gait and strength, with intact 5/5 strength in her
lower extremities and 5/5 motor strength in all extremities. (Id. at 26–30 (citing id. at
641, 664–66, 676, 837–38, 841–43, 855–62, 863–70, 962–63, 967, 968–69, 971, 973,
1032–34)); see also Macri, 93 F.3d at 544 (noting that the evidence documenting intact
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limb strength is a specific reason to reject a claimant’s subjective pain testimony).
Ultimately, the ALJ concluded that Plaintiff’s examination findings showing 5/5 motor
strength in all extremities, intact sensation, normal gait, normal range of motion of all
joints, and normal neurological examination were inconsistent with Plaintiff’s assertions
of extreme limitations. (AR at 27.) The ALJ therefore reasonably determined that the
objective evidence in the record was inconsistent with Plaintiff’s allegations of extreme
limitations. See Scianna v. Saul, 839 F. App’x 134, 135 (9th Cir. 2021) (finding that an
inconsistency with objective evidence can form a basis for rejecting a claimant’s
allegations) (quoting Carmickle, 533 F.3d at 1161 (“Contradiction with the medical
record is a sufficient basis for rejecting the claimant’s subjective testimony.”)).
In sum, the Court finds that ALJ properly identified the portions of Plaintiff’s
subjective symptom testimony that he discounted, including Plaintiff’s reports of extreme
weakness, need for an assistive device to ambulate, and inability to walk more than half a
block. See Morgan, 169 F.3d at 599–600 (finding that “[t]he ALJ provided clear and
convincing reasons for rejecting [Plaintiff’s] testimony” by “point[ing] to specific
evidence in the record—including reports by [Plaintiff’s doctors]—in identifying what
testimony was not credible and what evidence undermined [Plaintiff’s] complaints.”)
The ALJ cited specific, largely normal examination findings that indicated greater
functional capacity than alleged and thus provided clear and convincing reasons,
supported by substantial evidence in the record, for discounting Plaintiff’s symptom
testimony. See Smartt, 53 F.4th at 498; Parra, 481 F.3d at 750. The ALJ therefore
provided a clear and convincing reason, supported by substantial evidence in the record,
to discount Plaintiff’s subjective symptom allegations.
b. Daily activities
The ALJ also discounted Plaintiff’s subjective symptom testimony based on her
relatively normal level of daily activity and interaction. (AR at 25.) Specifically, the
ALJ stated that:
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[Plaintiff] admitted activities of daily living including she has a driver
license with no limitations. In a function report, the claimant acknowledged
she stays with friends, showers, reads, gets to doctor appointments, can go
out alone, can walk places, shops in stores, manages her finances, socializes
in person and via phone and texting, goes to the park and library, has no
problems getting along with family, friends, neighbors, or others, and can
follow instructions good (Exhibit 4E). She was fully functional in her
activities of daily living (Exhibit 3F, p. 4). She told Dr. Whitehead that she
has some difficulty with general daily tasks around the home because of her
reported problems, but on her own schedule and timing she is generally able
to perform most daily living activities, tasks around the home, and the like;
she can pick up and straighten up around the house, take out the trash, dust,
perform general cleaning, sweeping, mopping, vacuuming, laundry, dishes,
and other general household tasks; she is able to cook and prepare simple
foods, shower, dress, bathe, and perform all personal hygiene activities; and
she can drive and is able to take public transportation (Exhibit 9F, p. 3).
(Id. at 25.)
The ALJ concluded that “[t]hese activities reflect a significant functional capacity
and not an individual unable to sustain regular and continuing work due to medically
determinable impairments,” and that the physical and mental capabilities required to
perform such activities “replicate those necessary for obtaining and maintaining
employment.” (Id.)
An ALJ may properly consider the claimant’s daily activities in evaluating
testimony regarding subjective symptoms. See 20 C.F.R. § 404.1529(c)(3)(i). An ALJ
may discount a claimant’s subjective symptom testimony on the following grounds: (1)
the claimant’s daily activities involved skills that contradict the claimant’s other
testimony, or (2) the claimant’s daily activities meet the threshold for transferable work
skills. Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007); see also Steele v. Berryhill,
Case No.: 3:17-cv-01923-LAB (RNB), 2018 WL 2718033, at *3 (S.D. Cal. June 6, 2018)
(same). In this case, the ALJ relied on both grounds. (See AR at 25.)
With respect to the first ground, the ALJ reasonably found that Plaintiff’s reported
daily activities undermined her allegations of extreme limitation. Plaintiff testified that
she requires an assistive device such as a cane or walker, cannot sustain prolonged
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standing and walking, and struggles in multiple functional domains. (Id. at 338–60). The
ALJ cited evidence that Plaintiff was able to walk to different places, shop in stores,
attend appointments, and perform a broad range of household chores and personal care
activities without incapacitating limitations she alleged. (See id. at 25 (citing id. at 569–
76 (containing Plaintiff’s function report, acknowledging that she stays with friends,
showers, gets to doctor appointments, can go out alone, walk places, shop in stores,
manage finances, socialize in person, and go to the park and library); id. at 676
(containing physical therapy notes, documenting that Plaintiff is fully functional in her
activities of daily living); id. at 873 (containing examination notes documenting
Plaintiff’s ability to perform most daily living activities, including “pick[ing] up and
straighten[ing] up around the house,” taking out the trash, performing general cleaning,
sweeping, vacuuming, laundry, dishes, and other general household tasks, as well as
cooking, preparing simple foods, showering, dressing, bathing, performing all personal
hygiene activities, and driving)).) In light of this record, the Court finds that substantial
evidence supported the ALJ’s conclusion that Plaintiff’s activities of daily living were
inconsistent with the testimony of her alleged impairment. See Thomas v. Barnhardt, 278
F.3d 947, 958–60 (9th Cir. 2002) (concluding that an ALJ may reject a claimant’s
testimony when her daily activities, such as household chores, are inconsistent with the
alleged limitation); see also Scolari v. Kijakazi, Case No.: 21- cv-1250-BLM, 2022 WL
6785752, at *4–5 (S.D. Cal. Oct. 11, 2022) (finding that substantial evidence supported
the ALJ’s determination that a plaintiff’s daily activities were not consistent with her
subjective testimony and claims, which was a clear and convincing reason to discount the
plaintiff’s subjective testimony and claims).
As for the second ground on which the ALJ relied to discount Plaintiff’s subjective
symptom testimony, the ALJ determined that Plaintiff’s activities meet the threshold
necessary for obtaining and maintaining employment. (AR at 25.) “[I]f the claimant
engages in numerous daily activities involving skills that could be transferred to the
workplace, an adjudicator may discredit the claimant’s allegations upon making specific
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findings relating to the claimant’s daily activities.” Bunnell v. Sullivan, 947 F.2d 341,
346 (9th Cir. 1991); see also Orn, 495 F.3d at 639. Here, the ALJ discounted Plaintiff’s
allegations by determining that she remained fully functional in her activities of daily
living, and that her physical, mental, and social capabilities to perform many of those
activities “replicate those necessary for obtaining and maintaining employment.” (AR at
25.)
Consistent with the ALJ findings, Plaintiff’s medical records demonstrate
Plaintiff’s ability to be functional in her activities of daily living. (See id. at 676
(containing November 25, 2022, examination documenting Plaintiff’s report that she felt
improved with minimal pain in the posterior or the right shoulder, was fully functional in
her activities of daily living, but continued to have difficulties going up and down stairs,
getting on and off her bike as well as walking over half a block due to fatigue); id. at 683
(containing November 15, 2022, examination notes documenting that Plaintiff was fully
functional in her activities of daily living); id. at 888–89 (containing February 15, 2023,
examination notes documenting that Plaintiff was able to complete activities of daily
living and walk independently, with steady gait)). The ALJ highlighted Plaintiff’s ability
to manage her personal hygiene, prepare meals, perform a wide array of household
chores, manage finances, maintain social relationships, and travel independently by
driving and using public transportation, and reasonably characterized these tasks as
requiring planning, concentration, physical endurance, and interpersonal interaction
comparable to the basic demands of unskilled work. (Id. at 25 (citing id. at 569–76,
873).) These activities are similar to activities that the Ninth Circuit determined could be
applied to the workplace. See Stubbs-Danielson, 539 F.3d at 1175 (finding that the
claimant’s activities of cooking, house cleaning, doing laundry, and helping her husband
in managing finances “suggest[ed] the claimant may still be capable of performing the
basic demands of competitive, remunerative, unskilled work on a sustained basis”);
Burch, 400 F.3d at 681 (finding that the claimant’s daily activities could reasonably be
found to be transferrable to a workplace, where the activities suggested that the claimant
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was “quite functional” because she was able to care for her personal needs, cook, clean,
shop, interact with her nephew and boyfriend, and manage her and her nephew’s
finances).
The ALJ reasonably determined that Plaintiff’s daily activities both contradicted
her testimony and demonstrated skills transferable to a work setting. Under Ninth Circuit
precedent, the Court must defer to that interpretation where it is supported by substantial
evidence. See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1198 (9th Cir.
2004) (quoting Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995)) (“When the
evidence before the ALJ is subject to more than one rational interpretation, [the Court]
must defer to the ALJ’s conclusion.”); Ahearn, 988 F.3d at 1115–16 (same).
Accordingly, the ALJ’s reliance on Plaintiff’s daily activities during the relevant period
constitutes a clear and convincing reason, supported by substantial evidence, for
discounting her subjective symptom allegations.
c. Conservative treatment
The ALJ further discounted Plaintiff’s subjective symptom testimony after
concluding that her treatment was conservative. (AR at 25–26.) To support this
conclusion, the ALJ only stated that “the treatment records reveal the claimant received
mostly routine, conservative, and non-emergency treatment since the alleged onset date.
The undersigned has read and considered all the medical evidence in the records
(Exhibits 1F–28F).” (Id. at 26.)
The treatment a claimant seeks and receives is an important indicator of the
intensity and persistence of the claimant’s symptoms. See 20 C.F.R. § 404.1529(c)(3)(v).
Evidence of conservative treatment is sufficient to discount a claimant’s testimony
regarding the severity of the claimant’s impairment. See Tommasetti v. Astrue, 533 F.3d
1035, 1039–40 (9th Cir. 2008); Parra, 481 F.3d at 750–51. Nevertheless, conservative
treatment is not a proper basis for discounting a claimant’s symptom allegations where
there is no indication that more aggressive treatment options are appropriate or available.
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See Carmickle, 533 F.3d at 1162; Lapeirre-Gutt v. Astrue, 382 F. App’x 662, 664 (9th
Cir. 2010).
In this case, the ALJ did not properly evaluate the conservative nature of Plaintiff’s
treatment. Rather than identifying specific examples or explaining why the cited
treatment undercuts Plaintiff’s allegations, the ALJ simply cited twenty-eight exhibits
without analysis. (AR at 26.) The ALJ’s generalized and cursory reference does not rise
to the level of “specific, clear, and convincing reasons,” for discounting Plaintiff’s
subjective symptom testimony based on Plaintiff’s conservative treatment. See Reddick
v. Charter, 147 F.3d 715, 722 (9th Cir. 1998) (providing that generalized references do
not constitute the “specific, clear, and convincing reasons” to discount a claimant’s
subjective symptom testimony, and stating that the ALJ must identify what testimony is
not credible and what evidence undermines the testimony); Thomas, 278 F.3d at 958
(providing that the ALJ’s findings must be “sufficiently specific to permit the court to
conclude that the ALJ did not arbitrarily discredit claimant’s testimony”). The Court
therefore finds that the ALJ’s reference to Plaintiff’s allegedly conservative treatment
does not provide a clear and convincing reason for discounting her subjective symptom
testimony. Nonetheless, because the ALJ provided other valid, independently adequate
reasons supported by substantial evidence in the record, which are discussed above, the
ALJ’s decision to discount Plaintiff’s symptom testimony was supported by substantial
evidence in the record.
d. Conclusion
Accordingly, the ALJ provided three reasons for discounting Plaintiff’s subjective
symptom testimony. Although one of those reasons was not supported by substantial
evidence, substantial evidence supported the ALJ’s two other stated reasons. The Court
therefore finds that the ALJ provided clear and convincing reasons, supported by
substantial evidence in the record, for rejecting Plaintiff’s subjective symptom testimony.
/ / /
/ / /
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VII. CONCLUSION AND ORDER
For the reasons stated above, the Court finds that the ALJ did not err in his RFC
assessment for Plaintiff. The Court further finds that the ALJ properly discounted
Plaintiff’s subjective symptom testimony. Accordingly, the Court ORDERS that
judgment be entered affirming the decision of the Commissioner pursuant to sentence
four of 42 U.S.C. § 405(g) and dismissing this case.
IT IS SO ORDERED.
Dated: March 23, 2026
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