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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
DELILAH P.,
Plaintiff,
v.
FRANK J. BISIGNANO, Acting
Commissioner of Social Security,1
Defendant.
Case No.: 25-cv-00320-DMS-JLB
REPORT AND
RECOMMENDATION REGARDING
PLAINTIFF’S MERITS BRIEF
[ECF No. 12]
This Report and Recommendation is submitted to the Honorable Dana M. Sabraw,
United States District Judge, pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule
73.2(d) of the United States District Court for the Southern District of California.
On February 11, 2025, plaintiff Delilah P. (“Plaintiff”) filed a Complaint pursuant
to 42 U.S.C. § 405(g) seeking judicial review of a decision by the Commissioner of Social
1 Frank J. Bisignano, the new Acting Commissioner of Social Security as of
May 6, 2025, is hereby substituted as the defendant in this matter pursuant to Federal Rule
of Civil Procedure 25(d).
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Security (the “Commissioner”) denying her application for disability insurance benefits.
(ECF No. 1.)
Now pending before the Court and ready for decision is Plaintiff’s merits brief.
(ECF No. 12.) The Commissioner filed an opposition (ECF No. 15), and Plaintiff filed a
reply (ECF No. 16). 	For the reasons set forth herein, the Court RECOMMENDS that
Plaintiff’s merits brief be GRANTED, and that judgment be entered reversing the decision
of the Commissioner and remanding this matter for further administrative proceedings
pursuant to sentence four of 42 U.S.C. § 405(g).
I. 	PROCEDURAL BACKGROUND
On or around August 1, 2022, Plaintiff filed an application for disability insurance
benefits under Title II of the Social Security Act and an application for supplemental
security income (“SSI”) benefits under Title XVI of the Social Security Act, alleging
disability beginning July 5, 2018. (Certified Administrative Record [“AR”], at 307–22.)
After her applications were denied initially and upon reconsideration (AR 177–82, 190–
96), Plaintiff requested an administrative hearing before an administrative law judge
(“ALJ”) (AR 197). An administrative hearing was held on February 6, 2024. (AR 35–51.)
Plaintiff appeared at the hearing with counsel, and testimony was taken from her, as well
as from a vocational expert (“VE”). (AR 35–51.) A second administrative hearing before
an ALJ was held on October 29, 2024. 	(AR 52–66.) 	Plaintiff appeared at the second
hearing with counsel, and testimony was taken from her, as well as from a VE. (AR 52–
66.)
As reflected in his December 27, 2024, hearing decision, the ALJ found that Plaintiff
had not been under a disability, as defined in the Social Security Act, from July 5, 2018,
through the date of decision. (AR 14–34.) The ALJ’s decision became the final decision
of the Commissioner on January 17, 2025, when the Appeals Council denied Plaintiff’s
request for review. (AR 1–6.) This timely civil action followed.
//
//
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II. 	SUMMARY OF THE ALJ’S FINDINGS
In rendering his decision, the ALJ followed the Commissioner’s five-step sequential
evaluation process. See 20 C.F.R. §§ 404.1520(a), 416.920(a). At step one, the ALJ found
that Plaintiff had not engaged in substantial gainful activity since July 5, 2018, the alleged
onset date. (AR 20.)
At step two, the ALJ found that Plaintiff had the following severe impairments:
mood disorder with depressive and bi-polar traits; anxiety; diabetes; tachycardia; lumbar
spondylosis with back pain; and vertigo. (AR 20.)
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. (AR 21–22.)
Next, the ALJ determined that Plaintiff had the residual functional capacity (“RFC”)
“to perform medium work” with the following limitations:
she can occasionally climb ramps or stairs; rarely climb ladders; never climb
ropes or scaffolding; frequently balance, stop or crouch; occasionally kneel or
crawl; 	no 	work 	at 	unprotected 	heights 	or 	around 	dangerous 	moving
machinery; 	limited 	to 	work 	involving 	simple 	routine 	tasks 	and 	up 	to
occasional interactions with supervisors, coworkers or the public; and requires
a stable and habitual work environment.
(AR 22.)
For purposes of his step four determination, the ALJ determined that Plaintiff has no
past relevant work. (AR 26.)
At step five, based on the VE’s testimony 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 (e.g., Laundry Worker II, Pie Bakery Laborer,
Sandwich Maker, Price Marker, Housekeeping Cleaner, Office Helper), the ALJ found that
Plaintiff was not disabled under the law from July 5, 2018, through the date of decision.
(AR 27–28.)
//
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III. 	PLAINTIFF’S CLAIMS OF ERROR
As reflected in Plaintiff’s merits brief, the disputed issues that Plaintiff is raising as
the grounds for reversal and remand are as follows:
1. 	Whether 	the 	ALJ 	erred 	in 	evaluating 	Plaintiff’s 	subjective 	symptom
statements; and
2. 	Whether the ALJ erred in evaluating the medical opinion of R. Paxton M.D.
and erred by failing to address and incorporate the unrejected limitations identified by
Dr. Paxton in the RFC. (ECF No. 12 at 4.)
IV. 	STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to
determine whether the Commissioner’s findings are supported by substantial evidence and
whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846
(9th Cir. 1991). Substantial evidence means “more than a mere scintilla” but less than a
preponderance. 	Richardson v. Perales, 402 U.S. 389, 401 (1971); Desrosiers v. Sec’y of
Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). 	Substantial evidence is
“such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Richardson, 402 U.S. at 401. This Court must review the record as a whole
and consider adverse as well as supporting evidence. Green v. Heckler, 803 F.2d 528, 529-
30 (9th Cir. 1986). Where evidence is susceptible of more than one rational interpretation,
the Commissioner’s decision must be upheld. 	Gallant v. Heckler, 753 F.2d 1450, 1452
(9th Cir. 1984).
V. 	DISCUSSION
A. 	The ALJ Did Not Err in Assessing the Medical Opinion of Dr. Paxton and
the RFC.
Plaintiff argues that the ALJ did not adequately explain the supportability and
consistency factors in addressing the medical opinions of State Agency Mental Consultant
R. Paxton M.D. (ECF No. 12 at 12.) Specifically, Plaintiff argues that the ALJ failed to
appropriately address Dr. Paxton’s opinions that Plaintiff has moderate limitations in the
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following areas: (1) the ability to maintain attention and concentration for extended
periods; (2) the ability to perform activities within a schedule, maintain regular attendance,
and be punctual within customary tolerances; and (3) the ability to sustain an ordinary
routine without special supervision. 	(Id. 12–14 (citing AR 85–86, 110–11).) 	Plaintiff
further argues that because the ALJ left these limitations unaddressed, they were not
rejected and the ALJ erred by failing to incorporate them into Plaintiff’s RFC. (Id. at 13–
15.)
In response, the Commissioner argues that the ALJ’s RFC is valid, supported by
substantial evidence, and should be upheld. 	(ECF No. 15 at 7–11.) 	The Commissioner
argues that the RFC is consistent with Dr. Paxton’s finding that Plaintiff had moderate
mental limitations, as “the agency considers even moderate limitations to mean that the
claimant has a fair ability to function independently, appropriately, or effectively on a
sustained basis in the functional area.” (Id. at 8–9.) The Commissioner further argues that
“Ninth Circuit precedent holds that a limitation to simple tasks adequately captures a
moderate limitation in concentration, persistence, and pace.” (Id. at 9–10 (citing Stubbs-
Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008).)
1. 	Applicable Law
Under the revised regulations which apply to claims, such as this one, filed on or
after March 27, 2017, an ALJ must evaluate the persuasiveness of all medical opinions in
the record and articulate in the decision his or her assessment as to each. See 20 C.F.R. §§
404.1520c(b), 416.920c(b). In evaluating the persuasiveness of a medical opinion, an ALJ
will consider the following factors: (1) supportability; (2) consistency; (3) relationship with
the claimant, including the length, purpose, and extent of the treatment relationship,
frequency of examinations, and examining relationship; (4) specialization; and (5) any
other factors that tend to support or contradict the medical opinion, including familiarity
with the other evidence in the claim. See id. §§ 404.1520c(c)(1)–(5), 416.920c(c)(1)–(5).
Although an ALJ must consider all these factors, the only factors that the ALJ is required
to discuss in his or her opinion are supportability and consistency, unless two conflicting
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medical opinions are both equally well-supported and consistent with the record. 	See id.
§§ 404.1520c(b)(2)–(3), 416.920c(b)(2)–(3).
In evaluating the persuasiveness of medical opinions, the “most important factors”
are “supportability” and “consistency.” 	See id. §§ 404.1520c(a), 416.920c(a); see also
Woods v. Kijakazi, 32 F.4th 785, 791 (9th Cir. 2022). “Supportability means the extent to
which a medical source supports the medical opinion by explaining the ‘relevant . . .
objective medical 	evidence.’” 	Woods, 32 	F.4th 	at 	791–92 	(quoting 	20 	C.F.R. 	§
404.1520c(c)(1)). “Consistency means the extent to which a medical opinion is ‘consistent
. . . with the evidence from other medical sources and nonmedical sources in the claim.’”
Id. at 792 (quoting 20 C.F.R. § 404.1520c(c)(2)). 	An ALJ must “articulate . . . how
persuasive” he or she finds “all of the medical opinions” from each doctor or other source,
and “explain how [her or she] considered the supportability and consistency factors” in
reaching these findings. See 20 C.F.R. §§ 404.1520c(b), 416.920c(b).
In evaluating a claimant’s mental impairments, an ALJ must follow a special
technique. Id. §§ 404.1520a(a), 416.920a(a). As part of the special technique, an ALJ will
rate the claimant’s degree of limitation in the following four broad functional areas, also
known as the “paragraph B” criteria: (1) understand, remember, or apply information; (2)
interact with others; (3) concentrate, persist, or maintain pace; and (4) adapt or manage
oneself. Id. §§ 404.1520a(c)(3), 416.920a(c)(3); see also id. § Pt. 404, Subpt. P, App. 1, §
12.00(E). The ALJ will use the following five-point scale to rate the degree of limitation:
none, mild, moderate, marked, or extreme. Id. §§ 404.1520a(c)(4), 416.920a(c)(4).
A claimant’s RFC “is the most [a claimant] can do despite [his or her] limitations.”
Id. §§ 404.1545(a)(1), 416.945(a)(1); see also Laborin v. Berryhill, 867 F.3d 1151, 1153
(9th Cir. 2017) (“The RFC is an administrative assessment of the extent to which an
individual’s medically determinable impairment(s), including any related symptoms, such
as pain, may cause physical or mental limitations or restrictions that may affect his or her
capacity to do work-related physical and mental activities.”). The ALJ is “responsible for
assessing [the RFC].” 20 C.F.R. §§ 404.1546(c), 416.946(c). The ALJ must determine a
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claimant’s RFC “based on all of the relevant medical and other evidence,” and will consider
“any statements about what [the claimant] can still do that have been provided by medical
sources” and “descriptions and observations of [the claimant’s] limitations” provided by
the plaintiff and other non-medical sources. Id. §§ 404.1545(a)(3), 416.946(a)(3); Laborin,
867 F.3d at 1153.
2. 	Relevant Facts
On January 20, 2023, Dr. Paxton completed a Psychiatric Review Technique on
initial review of Plaintiff’s applications and assessed the paragraph B criteria as follows:
Plaintiff would have mild limitations in interacting with others and adapting or managing
oneself and moderate limitations in understanding, remembering, or applying information
and concentrating, persisting, or maintaining pace. (AR 80, 105.)
In assessing Plaintiff’s Mental RFC, Dr. Paxton opined that Plaintiff is able to
remember and understand simple instructions, but she would have moderate limitations
performing detailed and complex tasks. 	(AR 85, 110.) 	Dr. Paxton further opined that
Plaintiff has “sufficient ability to complete simple instructions, to follow directions without
additional assistance, and to maintain adequate attention, concentration, persistence, and
pace as needed.” (AR 86, 111.) Lastly, Dr. Paxton opined that Plaintiff would be able to
interact appropriately with co-workers and supervisors and adapt to work setting with
occasional public contact. (AR 87, 112.)
In assessing the paragraph B criteria, the ALJ found the following:
In understanding, remembering or applying information, the claimant has a
mild limitation. 	In interacting with others, the claimant has a moderate
limitation. With regard to concentrating, persisting or maintaining pace, the
claimant has a moderate limitation. As for adapting or managing oneself, the
claimant has experienced a moderate limitation.
(AR 21.)
Therefore, in assessing the paragraph B criteria, the ALJ found that Plaintiff had
greater limitations than those assessed by Dr. Paxton in adapting or managing oneself and
interacting with others. The only way in which the ALJ rejected the opinion of Dr. Paxton
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was that the ALJ found only mild, as opposed to moderate, limitation in understanding,
remembering, or applying information.
In addressing Dr. Paxton’s opinion, the ALJ stated:
R. Paxton, M.D., initial level DDS mental consultant, and Anna Franco,
Psy.D., reconsideration level DDS mental consultant, assessed the claimant is
able to remember and understand simple instructions, sufficient ability to
complete 	simple 	instructions, 	to 	follow 	directions 	without 	additional
assistance, and to maintain adequate attention, concentration, persistence, and
pace 	as 	needed, 	able 	to 	interact 	appropriately 	with 	co-workers 	and
supervisors, and able to adapt to work setting with occasional public contact
(1A/2A, 5A/6A). The undersigned finds these opinions, which each find some
moderate level mental limitations, substantially (but not fully) persuasive, as
they are mostly supported by and consistent with the record including the
history of emergency department visits and mental health follow-up of
medication and therapy (4F/599, 606, 8F 12F, 14F, 17F). The undersigned,
somewhat more restrictively, finds the record supports the paragraph B
criteria findings as set forth above, and the significant mental restrictions in
the residual functional capacity limiting the claimant to work in a stable and
habitual environment involving simple routine tasks, occasional work-related
interactions with supervisors, coworkers or the public.
(AR 26.)
3. 	Analysis
As Plaintiff recognized in her merits brief, “‘[t]he ALJ is [] responsible for resolving
ambiguities’ and conflicts in the evidence.” 	(ECF No. 12 at 13 (quoting Magallanes v.
Bowen, 881 F.2d 747, 750 (9th Cir. 1989)). 	Moreover, “the ALJ is responsible for
translating and incorporating clinical findings into a succinct RFC.” 	Rounds v. Comm’r
Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015). “If the evidence admits of more than
one rational interpretation, we must uphold the decision of the ALJ.” Allen v. Heckler, 749
F.2d 577, 579 (9th Cir. 1984); see also Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d
1190, 1195 (9th Cir. 2004) (an ALJ must resolve conflicts between medical opinions and
may look to the level of explanation for the various opinions to resolve conflicts).
Here, the ALJ relied on Dr. Paxton’s narrative opinions rather than relying on each
individual checklist-style sub-opinion. In assessing Plaintiff’s sustained concentration and
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persistence limitations, Dr. Paxton assessed no more than moderate limitations, which is
consistent with the ALJ’s decision. (AR 21, 85–86.) When asked to “[e]xplain in narrative
form [Plaintiff’s] sustained concentration and persistence capacities and/or limitations,”
Dr. Paxton stated, “[Plaintiff] has sufficient ability to complete simple instructions, to
follow directions without additional assistance, and to maintain adequate attention,
concentration, persistence, and pace as needed.” 	(AR 86, 111.) 	The ALJ relied on this
narrative in assessing Dr. Paxton’s opinion and in formulating the RFC. 	The Court finds
no error in the ALJ’s decision to do so. See, e.g., Carmickle v. Comm’r, Soc. Sec. Admin.,
533 F.3d 1155, 1165 (9th Cir. 2008) (holding “the ALJ’s decision primarily to rely on
Dr. Patton’s specific statements regarding [the claimaint’s] limitations, rather than his
summary agreement with Dr. Horowitz, was rational, and we will not disturb it”); Rounds,
807 F.3d at 1006 (“An ALJ may rationally rely on specific imperatives regarding a
claimant’s limitations, rather than recommendations.”). As stated on the form itself, while
the “questions . . . help determine the individual’s ability to perform sustained work
activities[,] . . . the actual mental [RFC] assessment is recorded in the narrative
discussion(s).” (AR 84, 109.)
Plaintiff argues that the ALJ should have specifically addressed Dr. Paxton’s sub-
opinions that Plaintiff was moderately limited in her ability to (1) to maintain attention and
concentration for extended periods, (2) perform activities within a schedule, maintain
regular attendance, and be punctual within customary tolerances, and (3) sustain an
ordinary routine without special supervision. 	(ECF No. 12 at 12–14 (citing AR 85–86,
110–11).) 	However, Dr. Paxton did not include any of these specific limitations in his
narrative assessment. 	Instead, Dr. Paxton stated that Plaintiff could maintain adequate
attention, concentration, persistence, and pace “as needed” so long as she was limited to
simple instructions. 	(AR 86, 111.) 	Dr. Paxton’s omission of further restrictions in his
narrative is consistent with another sub-opinion that Plaintiff was not significantly limited
in her “ability to complete a normal workday and workweek without interruption from
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psychologically 	based 	symptoms 	and 	to 	perform 	at 	a 	consistent 	pace 	without 	an
unreasonable number and length of rest periods.” (AR 86.)2
Given the foregoing, the Court finds that the ALJ’s decision to rely on Dr. Paxton’s
narrative opinions was rational. The ALJ either incorporated these opinions into the RFC
or incorporated more restrictive limitations. Therefore, the Court concludes that the ALJ
did not err in assessing the opinion of Dr. Paxton and incorporating it into the RFC.
B. 	The ALJ Erred in Rejecting Plaintiff’s Symptom Testimony.
Plaintiff argues that the ALJ erred by failing to provide clear and convincing reasons
for rejecting Plaintiff’s subjective symptom testimony. 	(ECF No. 12 at 5–10.) 	The
Commissioner argues in response that the ALJ reasonably discounted Plaintiff’s report of
completely debilitating symptoms. (ECF No. 15 at 2–7.)
1. 	Plaintiff’s Symptom Testimony
During the first hearing on February 6, 2024, Plaintiff testified that she lives with
her youngest son who has high-functioning autism. 	(AR 40.) 	She has to “cue him on
everything” and constantly watch over him. 	(AR 40–41.) 	She cooks for him and helps
him clean, but she does not physically assist him in his personal care anymore. (AR 41.)
Plaintiff testified that it is hard for her to be on her feet to clean her house and take
care of her son due to her back and hip injury and her diabetes. 	(AR 43–44, 50.) 	She
orders her groceries online to be delivered and primarily leaves the house to attend doctor’s
appointments. (AR 45.) Plaintiff stated she is not living her normal life as before and does
not go places because she feels so sick. (AR 45.)
2 Additionally, in a narrative format following his Psychiatric Review Technique
assessment, Dr. Paxton similarly stated: “Claimant is able to remember and understand
simple instructions. 	Claimant would have moderate limitations performing detailed and
complex tasks. Claimant has sufficient ability to complete simple instructions, to follow
directions without additional assistance, and to maintain adequate attention, concentration,
persistence, and pace as needed.” (AR 80, 105.)
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A second hearing was held on October 29, 2024, after Plaintiff had a physical
consultative examination. 	(See AR 3983–94.) 	Plaintiff reported that she felt everything
was getting worse due to not being able to see a specialist and change medications and not
being able to eat. (AR 60.)
In Plaintiff’s Function Report dated September 26, 2022, she reports that her bipolar
disorder makes it very difficult to function each day and to be at a workplace on time each
day. (AR 417.) She also claims her anxiety and depression are paralyzing a lot of the time.
(AR 417.) Physically, Plaintiff states that her back and hip injury and pain from arthritis
and diabetes make her sick and make it hard to function like she used to. (AR 417.)
Plaintiff states that she does not do much on a daily basis. 	(AR 418.) 	She cooks
simple meals for her son and spends time with him. (AR 418.) She takes her son and dog
to the park. (AR 418.) She will also do light cleaning in the house two to three times a
week but needs to take breaks and sit down every five to ten minutes. 	(AR 418.) 	She
reports no problems with personal care. (AR 418.)
Plaintiff drives but does not go shopping in stores. (AR 420.) She claims she used
to go out dancing and have a lot of fun, but she does not have a social life or hobbies
anymore. (AR 420.) She can walk about half a block before she needs to rest for five to
ten minutes. (AR 422.) Plaintiff’s Function Report dated October 7, 2022, reports similar
daily activities. (AR 427–34.)
In a letter to the ALJ, dated October 21, 2024, which the ALJ received before the
second hearing, Plaintiff states the following:
My daily routine now is severe panic attacks wake me up. My heart racing
and shaking and having to run to the bathroom. For the first 2 hours once I
wake and take my morning meds. I have to walk my dogs feeling like passing
out. My diabetes is still out of control. The diabetic gastro perosis I can only
handle yogurt and oatmeal baby type food. I feel so severely dehydrated and
depleted. Severe fatigue. I don’t go anywhere but force myself to go to doctor
appts. I have to order everything online to be delivered. Helping my 18 year
old autistic son and walking our dogs takes every bit of energy I have. I can’t
sleep well because I can’t eat enough food and my brain races. I sleep 5 to 6
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hours a night. I feel like my body is infected and rotting. I can’t focus or think
right.
I do not feel human anymore.
I also have been experiencing vertigo and on severe days i cant move my head.
I have to sit still until it stops. And im always dizzy in general.
. . .
Diabetes is so bad the past few years the doctors have had me on different
meds and insulin. I lived in rehab for 3 months due to addiction to oxycodone
for 5 yrs from the injury pain. Now I have to live with the pain. Even when I
sleep. As I am no longer taking pain meds. Bipolar has a hold on me.
Something is wrong with my brain. But I can’t get rid of it and it gets worse.
It has me paralyzed most days. I do not function anymore the way I use to. I
have had several break down episodes with people in public that have verbally
approached me wrong. Then I feel exhausted for days from the episodes. I cry
alot and cant stop.... I try to avoid people.and conversations. I use to cope
better but the past 5 yrs have been debilitating. The dispare and fear I have is
so bad I don’t know why I’m this way and I don’t know how to fix it.
(AR 527.)
2. 	Applicable Law
In deciding whether to accept a claimant’s subjective symptom testimony, the ALJ
must perform a two-step analysis. Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996).
First, the ALJ must assess “whether the claimant has presented objective medical evidence
of an underlying impairment ‘which could reasonably be expected to produce the pain or
other symptoms alleged.’” 	Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007)
(quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991)). Second, if the first test is
met and there is no evidence of malingering, “the ALJ can only reject the claimant’s
testimony about the severity of the symptoms if she gives ‘specific, clear and convincing
reasons’ for the rejection.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (quoting
Lingenfelter, 504 F.3d at 1036). “This is not an easy requirement to meet: ‘The clear and
convincing standard is the most demanding required in Social Security cases.’” Garrison
v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v. Comm’r of Soc. Sec.
Admin., 278 F.3d 920, 924 (9th Cir. 2002)).
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“General findings are insufficient; rather, the ALJ must identify what testimony is
not credible and what evidence undermines the claimant’s complaints.” Brown-Hunter v.
Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (quoting Reddick v. Chater, 157 F.3d 715, 722
(9th Cir. 1998)); see also Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001)
(“[T]he ALJ must specifically identify the testimony she or he finds not to be credible and
must explain what evidence undermines the testimony.”); 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”).
The ALJ is responsible for “determin[ing] credibility, resolv[ing] conflicts in the
testimony, and resolv[ing] ambiguities in the record.” 	Treichler v. Comm’r of Soc. Sec.
Admin., 775 F.3d 1090, 1098 (9th Cir. 2014); see also 42 U.S.C. § 405(g) (directing that
the Commissioner’s “findings . . . as to any fact, if supported by substantial evidence, shall
be conclusive”). In assessing a claimant’s credibility, the ALJ may consider, inter alia, (1)
inconsistencies in the claimant’s testimony or between her testimony and her conduct; (2)
the claimant’s daily living activities; (3) the claimant’s work record; and (4) testimony
from physicians or third parties concerning the nature, severity, and effect of the claimant’s
condition. 	Thomas v. Barnhart, 278 F.3d 947, 958–59 (9th Cir. 2002)3; see also Ghanim
v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (listing factors).
If an ALJ’s evaluation of a claimant’s statements is reasonable and is supported by
substantial evidence, it is not the court’s role to engage in second-guessing. 	See Thomas,
278 F.3d at 959 (citation omitted); see also Batson, 359 F.3d at 1196 (“When evidence
reasonably supports either confirming or reversing the ALJ’s decision, we may not
3 The Court in Thomas also included the claimant’s reputation for truthfulness
as a consideration, but the SSA has since clarified that “[t]he focus of the evaluation of an
individual’s symptoms should not be to determine whether he or she is a truthful person.”
Social Security Ruling (“SSR”) 16-3p, 2017 WL 5180304, at *11 (Oct. 25, 2017); accord
Trevizo v. Berryhill, 871 F.3d 664, 678 n.5 (9th Cir. 2017).
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substitute our judgment for that of the ALJ.”). However, “[i]f the ALJ fails to specify his
or her reasons for finding claimant testimony not credible, a reviewing court will be unable
to review those reasons meaningfully without improperly ‘substitut[ing] [its] conclusions
for the ALJ’s, or speculat[ing] as to the grounds for the ALJ’s conclusions.’” 	Brown-
Hunter, 806 F.3d at 492 (quoting Treichler, 775 F.3d at 1103). Because reviewing courts
“cannot engage in such substitution or speculation, such error will usually not be harmless.”
Id. 	But the ALJ’s reliance on other possibly erroneous credibility findings is harmless if
the ALJ’s conclusion on credibility is supported by other substantial evidence. 	See
Carmickle, 533 F.3d at 1162–63.
3. 	ALJ’s Opinion
The ALJ summarized Plaintiff’s symptom testimony as follows:
The claimant reported that she cannot work due to physical and mental
conditions (2E, 3E, 18E). 	In her adult function reports, she reported her
bipolar makes it difficult to function (4E, 5E). She reported back pain and
diabetes. She reported difficulty with lift, walk, sit, stand, postural abilities,
memory, completing tasks, concentration, and getting along with others. 	In
letters, the claimant reported seeking physical and mental care (l 5E, 25E).
She reported panic attacks, out of control diabetes, needs groceries delivered,
does not go anywhere and needs to force herself to go to doctor appointments.
She reported helping her 18 year old autistic son and walking their dogs takes
every bit of energy that she has.
(AR 23.)
In assessing Plaintiff’s subjective symptom testimony, the ALJ determined that
Plaintiff’s “medically determinable impairments could reasonably be expected to cause the
alleged symptoms.” 	(AR 23.) 	However, the ALJ found 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 for the reasons
explained in this decision.” (AR 23.) The ALJ provided the following reasons for rejecting
the severity of Plaintiff’s symptom testimony: (1) Plaintiff’s “active range of activities”;
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(2) lack of objective evidence (i.e., normal physical and mental status examinations); and
(3) improvement with medication. (AR 25.)
4. 	Analysis
a. 	Daily Activities
First, the ALJ discounted Plaintiff’s testimony regarding the severity of her
symptoms by pointing to her “active range of activities.” 	(AR 25.) 	“Engaging in daily
activities that are incompatible with the severity of symptoms alleged can support an
adverse credibility determination.” Ghanim, 763 F.3d at 1165; see also Revels v. Berryhill,
874 F.3d 648, 667 (9th Cir. 2017) (“[I]nconsistent daily activities may provide a
justification for rejecting symptom testimony[.]”); Orn v. Astrue, 495 F.3d 625, 639 (9th
Cir. 2007) (stating that a contradiction between a claimant’s daily activities and his or her
testimony is a ground for forming the basis of an adverse credibility determination). 	In
other words, a court may consider inconsistencies between a claimant’s words and her
actions. 	See Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989), superseded on other
grounds by 20 C.F.R. § 404.1502(a); see also Reddick, 157 F.3d at 722 (“Only if the level
of activity were inconsistent with Claimant’s claimed limitations would these activities
have any bearing on Claimant’s credibility.”). However, “the mere fact that a plaintiff has
carried on certain daily activities, such as grocery shopping, driving a car, or limited
walking for exercise, does not in any way detract from her credibility as to her overall
disability.” Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001). A claimant “does not
need to be utterly incapacitated in order to be disabled.” Id. (internal quotation marks and
citation omitted).
Daily activities may also “be grounds for an adverse credibility finding ‘if a claimant
is able to spend a substantial part of his day engaged in pursuits involving the performance
of physical functions that are transferable to a work setting.’” 	Orn, 495 F.3d at 639
(quoting Fair, 885 F.2d at 603). 	To meet this standard, the ALJ “must make ‘specific
findings relating to [the daily] activities’ and their transferability [to a work setting] to
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conclude that a claimant’s daily activities warrant an adverse credibility determination.”
Id. (quoting Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005)).
Here, the ALJ stated that the “record notes an active range of activities,” including
“self-care independence, driving, caring for dogs and a special needs son” and “going to
the beach, horseback riding and watching movies.” 	(AR 25 (citing 12F/3, 14F/3).) 	The
ALJ contends that these activities “require at least basic mental and physical abilities.”
(AR 25.)
The first record cited by the ALJ is a Mental Evaluation by Psychologist dated
December 29, 2022. 	(Ex. 12F [AR 3790–93].) 	Under the heading “Current Level of
Functioning,” Plaintiff self-reported:
The claimant is able to take care of herself independently. She can dress and
bathe herself. 	She does not have a caregiver. 	She is being financially
supported at this time through her son’s Social Security income, as he has
special needs, and child support from the son’s father. 	She is able to drive.
She spends her days caring for her dogs and her special needs son.
(AR 3791.)
The 	second 	record 	cited 	by 	the 	ALJ 	is 	a 	Psychiatric 	Assessment 	dated
February 5, 2023, completed by the County of San Diego Mental Health Services. 	(Ex.
14F [AR 3804–15].) Under the heading “Social [History],” Plaintiff self-reported:
Born in Detroit. Raised in CA. Grew up with mother and grandmother. Few
years would ditch school. 	Pregnant in 10th grade and dopped [sic] out of
school. Patient studied peds special needs children. Living in apartment with
son with special needs. Single. Never married. 1 daughter 2 sons. Worked as
clerk and CNA. 	Unemployed. 	Enjoys going to beach, horses, watching
movies.
(AR 3806.)
Plaintiff argues that the ALJ mischaracterized the evidence. 	(ECF No. 12 at 8.)
First, Plaintiff argues that the notation that she “[e]njoys going to beach, horses, watching
movies,” does not indicate that she was actually doing any of those things. (Id.) Plaintiff
contends that this was an isolated notation in a record that spans thousands of pages and
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does not reflect her daily activities. 	(Id.) 	The Court agrees that this notation does not
indicate, and there is no substantial evidence in the record to support, that Plaintiff was
going to the beach, riding horses (as opposed to enjoying horses, as stated), and going out
to the movies after her alleged onset date. Especially concerning is that the ALJ changed
“enjoys horses” to “go[es] . . .horseback riding.” (See AR 25, 3806.) The conclusion he
draws, that these activities require “at least basic mental and physical abilities,” is hard to
reconcile with the physical and mental passivity of going to the beach, enjoying horses,
and watching movies, even assuming Plaintiff’s enjoyment of those activities continued
into the alleged disability period.
Second, Plaintiff argues that the ALJ mischaracterized the record when relying on
Plaintiff’s ability to care for her dog. (ECF No. 12 at 8.) Plaintiff contends that the record
reflects Plaintiff had difficulty caring for her dog, noting that she had to get rid of her dog
because she was having difficulty taking care of him. 	(Id. (citing AR 1555, 1637–38,
2470).) However, the records cited by Plaintiff indicate that she gave away her dog in 2020
or 2021, which was prior to her reports in 2022–2024 that she regularly walked her dog
and took him outside daily. In 2022, the third record cited by Plaintiff, she reported that
she walked her dog a few times daily for twenty minutes. (AR 2470.) Therefore, the Court
finds that the ALJ did not mischaracterize the record in this way.
Without consideration of the facts on which the ALJ relied that were based on a
mischaracterization of the record, there is no clear and convincing evidence to reject the
severity of Plaintiff’s symptom testimony. The Court does not find that Plaintiff’s ability
to engage in limited self-care, drive, and care for her son and dog is a clear and convincing
reason for rejecting the severity of her testimony. 	None of these activities, as Plaintiff
reportedly performs them, translate into the ability to perform light4 or medium work, and
4 Although the ALJ determined Plaintiff had the ability to perform medium
work in assessing the RFC, he also stated in his decision that the VE “testified that even if
the claimant (now age 54) was assumed to be reduced to a light exertional level with
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the ALJ did not make any specific finding as to transferability. The full range of both light
and medium work “requires standing or walking, off and on, for a total of approximately 6
hours in an 8-hour workday.” 	SSR 83-10, 1983 WL 31251, at *6 (Jan. 1, 1983). 	As
previously stated, daily activities may only “be grounds for an adverse credibility finding
‘if a claimant is able to spend a substantial part of his day engaged in pursuits involving
the performance of physical functions that are transferable to a work setting.’” 	Orn, 495
F.3d at 639 (quoting Fair, 885 F.2d at 603). There is no evidence in the record to suggest
that Plaintiff spends a substantial part of her day engaged in activities that are transferable
to light or medium work.
Accordingly, the Court finds this is not a clear and convincing reason supported by
substantial evidence for rejecting the severity of Plaintiff’s symptom testimony.
b. 	Improvement with Medication and Follow Up
Next, the ALJ discounted Plaintiff’s testimony regarding the severity of her
symptoms on the basis that recent records indicate improvement in her mental symptoms
with medication and follow up. 	(AR 25 (citing Ex. 17F).) 	The ALJ also noted that the
record indicates that personal relationship stressors contribute to her mental health
symptoms. (AR 25 (citing Ex. 17F/1 and et seq.).)
A claimant’s improvement with treatment is “an important indicator of the intensity
and persistence of . . . symptoms.” 	20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3). 	For
example, “[i]mpairments that can be controlled effectively with medication are not
disabling for the purpose of determining eligibility for SSI benefits.” Warre v. Comm'r of
Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006); see also Wellington v. Berryhill,
878 F.3d 867, 876 (9th Cir. 2017) (stating that “evidence of medical treatment successfully
limitation to only occasionally balance, stoop, and crouch, as well as kneel or crawl,” there
were still occupations existing in significant numbers in the national economy that
claimant would be able to perform, such price marker, housekeeper cleaner, and office
helper. (AR 27–28.)
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relieving symptoms can undermine a claim of disability”). 	However, “[r]eports of
‘improvement’ in the context of mental health issues must be interpreted with an
understanding of the patient’s overall well-being and the nature of her symptoms.”
Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014). 	“They must also be interpreted
with an awareness that improved functioning while being treated and while limiting
environmental stressors does not always mean that a claimant can function effectively in a
workplace.” Id. “Caution in making such an inference is especially appropriate when no
doctor or other medical expert has opined, on the basis of a full review of all relevant
records, that a mental health patient is capable of working or is prepared to return to work.”
Id. at 1017–18.
Upon review of the record, the Court finds that the ALJ did not adequately take into
consideration 	the 	waxing 	and 	waning 	of 	Plaintiff’s 	mental 	health 	symptoms. 	In
March 2023, Plaintiff presented with “symptoms of excessive worries, poor appetite,
fatigue, anhedonia, lack of motivation, nightmares, difficulty staying asleep, mood swings,
irritability, and impulsiveness.” (AR 3979.) In addition to bipolar disorder, Plaintiff was
diagnosed with moderate depression and mild anxiety, and she added Lamictal to her
medication regime of Gabapentin, Sertraline, Prazosin, and Hydrozyine. (AR 3978–79.)
In May 2023, Plaintiff reported improvement in her mood symptoms, but verbalized
drowsiness from Hydroxyzine and expressed compulsions, i.e., thoughts of constantly
checking her locks and talking to herself. (AR 3959.)
In June 2023, Plaintiff reported “good sleep at night” and “some improvement in her
nightmares,” but she “still complained of symptoms of depressed mood, poor appetite, lack
[of] motivation, fatigue, mood swings, anhedonia, and sadness.” 	(AR 3947.) 	Her
physician reported her progress as minimal and increased the dosages of her medications.
(AR 3937, 3950.) 	In July 2023, Plaintiff reported “good improvement in [her] sleep at
night, appetite, fatigue, mood swings, motivation, and nightmares, with the dose increase[s]
that were made to her meds.” 	(AR 3937.) 	Her physician assessed her anxiety as severe
and her depression as mild and noted “some progress.” (AR 3940.)
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In September 2023, Plaintiff continued to report “good improvement in her sleep,
improved appetite, decreased fatigue, stable mood, improved motivation, and interest in
fun activities.” 	(AR 3927.) 	She also “expressed improvement in her nightmares.” (AR
3927.) 	She still complained of anxiety symptoms but noted her current financial
difficulties and family problems were factors affecting her anxiety. 	(AR 3927.) 	Her
physician noted “some progress.” (AR 3930.) In November 2023, Plaintiff “complained
of increasing depression, anxiety, and fatigue,” noting that she had not been consistent in
taking her Lamictal and had been taking a lower dose of Sertraline. (AR 3916.) Plaintiff
reported good sleep and appetite, with improvement in her nightmares. 	(AR 3916.)
However, Plaintiff still complained of anxiety symptoms, noting that her current financial
difficulties and family problems were affecting her anxiety. (AR 3916.) Her progress was
reported as minimal. (AR 3919.)
In January 2024, the final record with this provider, Plaintiff complained of
depression, anxiety, lack of motivation, irritability, loss of appetite, self-isolation, sadness,
mood swings, fearful thoughts, and excessive worry. 	(AR 3904.) 	Plaintiff noted that
financial and family problems affected her symptoms. 	(AR 3904.) 	Plaintiff also
complained 	of 	unwanted 	side 	effects 	to 	taking 	Lamictal, 	including 	dizziness 	and
tachycardia. (AR 3904.) Plaintiff claimed her mood swings and anxiety were severe and
“scale 8/10 in severity.” (AR 3904.) Plaintiff was advised to avoid stressful situations to
help alleviate her anxiety. (AR 3904.) Plaintiff’s physician assessed her with moderately
severe depression and moderate anxiety and reported her progress as minimal. (AR 3907,
3910.)
The ALJ stated that “[t]he record indicates personal relationship stressors contribute
to mental health symptoms.” (AR 25 (citing Ex. 17F/1 and et seq.).) However, the ALJ
does not indicate which of Plaintiff’s symptoms were “situational” and whether such
symptoms were unlikely to persist once Plaintiff’s relationship stressors abated. 	See
Chesler v. Colvin, 649 F. App'x 631, 632 (9th Cir. 2016) (finding “the record supports the
ALJ’s conclusion that [the plaintiff’s] mental health symptoms were situational, and so
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unlikely to persist once [the plaintiff’s] circumstances improved” in affirming the ALJ’s
rejection the plaintiff’s subjective symptom testimony); see also Lacie R. v. Berryhill, No.
6:17-CV-1952-SI, 2019 WL 1919168, at *6 (D. Or. Apr. 30, 2019) (noting “an ALJ should
not rely on the presence of situational stressors to downplay the impact of a mental health
crisis on a claimant's ability to engage in basic work activities”).
For the foregoing reasons, the Court finds this is not a clear and convincing reason
supported by substantial evidence for rejecting the severity of Plaintiff’s symptom
testimony.
c. 	Lack of Objective Evidence
Lastly, the ALJ discounted Plaintiff’s testimony regarding the severity of her
symptoms on the basis that “[m]ost physical exams and mental status examinations
throughout the extensive treatment records are mostly within normal limits. (AR 25 (citing
Exs. 15F/36, 16F/16, 17F, 18F).) Contradiction with the medical record is a permissible
basis for rejecting a claimant’s subjective symptom testimony. See Smartt v. Kijakazi, 53
F.4th 489, 498 (9th Cir. 2022) (“When objective medical evidence in the record is
inconsistent with the claimant’s subjective testimony, the ALJ may indeed weigh it as
undercutting such testimony.”); Carmickle, 533 F.3d at 1161.
Upon review of the longitudinal record, while the Court finds that this was a clear
and convincing reason supported by substantial evidence for rejecting the severity of
Plaintiff’s symptom testimony, “an ALJ may not ‘reject a claimant’s subjective complaints
based solely on a lack of medical evidence to fully corroborate the alleged severity of
pain.’” 	Smartt, 53 F.4th at 494–95 (quoting Burch, 400 F.3d at 681). 	As the remaining
reasons were insufficient, for the reasons discussed above, the Court finds that the ALJ
erred in assessing Plaintiff’s subjective symptom testimony.
//
//
//
//
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VI. 	CONCLUSION AND RECOMMENDATION
For the reasons set forth above, the Court RECOMMENDS that Plaintiff’s merits
brief be 	GRANTED, and that judgment be entered reversing the decision of the
Commissioner and remanding this matter for further administrative proceedings pursuant
to sentence four of 42 U.S.C. § 405(g).
Any party having objections to the Court’s proposed findings and recommendations
shall file specific written objections within 14 days after being served with a copy of this
Report and Recommendation. 	See Fed. R. Civ. P. 72(b)(2). 	The objections should be
captioned “Objections to Report and Recommendation.” A party may respond to the other
party’s objections within 14 days after being served with a copy of the objections. See id.
IT IS SO ORDERED.
Dated: February 25, 2026
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