Wright v. Dudek

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
MONICA W.,1
Plaintiff,
v.
FRANK BISIGNANO,2 Commissioner of
Social Security,
Defendant.
Case No.: 25-cv-0682-DMS-DEB
REPORT AND
RECOMMENDATION ON JOINT
MOTION FOR JUDICIAL REVIEW
[DKT. NO. 12]
This Report and Recommendation is submitted to United States District Judge Dana
M. Sabraw pursuant to 28 U.S.C. § 636(b)(1) and Civil Local Rule 72.1.c.
I. 	INTRODUCTION
Plaintiff Monica W. seeks judicial review of the Commissioner of Social Security’s
denial of her application for disability benefits. Dkt. No. 1 (Compl.). The parties filed a
Joint Motion for Judicial Review. Dkt. No. 12.
For the reasons discussed below, the Court recommends 	REVERSING 	and
REMANDING for further proceedings.
//
1 In the interest of privacy, this Order uses only the first name and the initial of the last
name of the non-governmental party in this case. CivLR 7.1(e)(6)(b).
2 Frank Bisignano is substituted for Leland Dudek pursuant to Fed. R. Civ. P. 25(d).
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II. 	PROCEDURAL BACKGROUND
Plaintiff applied for Supplemental Security Income disability benefits alleging
disability beginning January 1, 2019. AR 236.3 The Social Security Administration denied
Plaintiff’s application initially and on reconsideration. AR 62, 81. Plaintiff requested and
received an Administrative Law Judge (“ALJ”) hearing, after which the ALJ issued a
written decision finding Plaintiff not disabled. AR 17–27, 99. The Appeals Council denied
Plaintiff’s request for review (AR 1), and this case followed.
III. 	SUMMARY OF THE ALJ’S DECISION
The 	ALJ 	followed 	the 	five-step 	sequential 	evaluation 	process. 	20 	C.F.R.
§ 416.920(a)(4)(i)–(v). At step one, the ALJ found Plaintiff had “not engaged in substantial
gainful activity since May 31, 2022, the application date.” AR 19.
At step two, the ALJ found Plaintiff’s bipolar and major depressive disorders are
severe impairments. AR 19.
At step three, the ALJ found Plaintiff did not have a physical impairment or
combination 	of 	physical 	impairments 	that 	met 	or 	medically 	equaled 	those 	in 	the
Commissioner’s Listing of Impairments. AR 19. The ALJ also applied the “paragraph B”
criteria to Plaintiff’s mental impairments and found Plaintiff had “moderate” limitations in
all four areas.4 AR 20–21.
Before proceeding to step four, the ALJ found Plaintiff had the residual functioning
capacity (“RFC”) to perform all work with the following limitations:
[U]understand[ing], 	remember[ing], 	and 	carry[ing] 	out 	simple 	job
instructions and simple tasks, unskilled work; able to interact with coworkers
and 	supervisors, 	but 	no 	teamwork 	and 	no 	collaborative 	work; 	can
3 “AR” refers to the Administrative Record lodged on March 20, 2025. Dkt. No. 8. The
Court’s citations to the AR use the page references 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.
4 These criteria are listed in 20 C.F.R. § 416.920a(c)(2).
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appropriately make hand offs of work materials and products to coworkers
and supervisors; no public contact; can appropriately respond to supervision,
routine settings and situations, as well as changes in routine settings and
situations; able to make decisions, ask questions, and use judgment.
AR 21.
At step four, the ALJ found Plaintiff had no past relevant work. AR 26.
At step five, the ALJ concluded Plaintiff could perform jobs that exist in significant
numbers in the national economy. AR 26–27. The ALJ, therefore, concluded Plaintiff was
not under a disability since May 31, 2022. AR 27.
IV. 	STANDARD OF REVIEW
The Court reviews the ALJ’s decision to determine whether the ALJ applied the
proper legal standards and entered findings “supported by substantial evidence . . . .”
42 U.S.C. § 405(g); accord, Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005) (“We
will affirm the ALJ’s determination . . . if the ALJ applied the proper legal standard and
his decision is supported by substantial evidence.”). Substantial evidence is “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek
v. Berryhill, 587 U.S. 97, 97 (2019) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197,
229 (1938)). It is “more than a mere scintilla, but less than a preponderance . . . .” Garrison
v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) (quoting Lingenfelter v. Astrue, 504 F.3d
1028, 1035 (9th Cir. 2007)).
The Court may not impose its own reasoning to affirm the ALJ’s decision. Garrison,
759 F.3d at 1010. The Court “must consider the entire record as a whole and may not affirm
simply by isolating a ‘specific quantum of supporting evidence.’” Hill v. Astrue, 698 F.3d
1153, 1159 (9th Cir. 2012) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th
Cir. 2006)). “[I]f evidence exists to support more than one rational interpretation, [the
Court] must defer to the [ALJ’s] decision . . . .” Batson v. Comm’r of Soc. Sec. Admin., 359
F.3d 1190, 1193 (9th Cir. 2004).
//
//
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V. 	DISCUSSION
Plaintiff alleges the ALJ erred by: (1) failing to provide specific, clear and
convincing reasons to discount Plaintiff’s subjective symptom testimony; (2) improperly
using Plaintiff’s activities of daily living (“ADLs”) to discredit her symptom testimony;
(3) failing to resolve a conflict between the Vocational Expert’s (“VE”) testimony and the
Dictionary of Occupational Titles’ (“DOT”) reasoning level classifications; (4) assessing
Plaintiff’s current actual educational level incorrectly; and (5) ignoring record evidence
supporting a disability finding.
A. 	Plaintiff’s Testimony
The Court first addresses Plaintiff’s arguments that the ALJ did not properly analyze
Plaintiff’s subjective symptom testimony. The Court agrees the ALJ’s decision does not
meet the legal standards.
In evaluating a claimant’s subjective symptom testimony, “an ALJ must engage in
a two-step analysis.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (citation
omitted). “First, the ALJ must determine 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.” Trevizo v. Berryhill, 871 F.3d 664, 678 (9th
Cir. 2017) (quoting Garrison, 759 F.3d at 1014). Second, “[i]f the claimant satisfies the
first step . . . 	and there is no evidence of malingering, the ALJ can reject the claimant’s
testimony about the severity of her symptoms only by offering specific, clear and
convincing reasons for doing so.” Id. (quoting Garrison, 759 F.3d at 1014–15).
In her June 26, 2022 Adult Function Report, Plaintiff reported that “I have trouble
consintrating [sic]” and “[f]ocusing on one task at a time is impossible. Getting things done
in a timely matter becomes so overwhelming I get confused and tend to cry uncontrollable
[sic].” AR 222. She stated, “[i]f I’m having a bad day nothing will get done. I will not even
shower, clean, or even watch TV.” AR 223. Plaintiff wrote she “can not get along with
others[,]” “get[s] very frustrated easily,” and is prone to “violent behavior.” AR 227, 229.
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At the October 31, 2025 ALJ hearing, Plaintiff testified:
• 	“Sometimes when I get depressed, I absolutely . . . won’t even leave my house, I’m
very anti-social . . . otherwise things make me very angry sometimes and so I try not
to go out of my house so I can avoid situations that cause problems.” AR 35.
• 	“[S]ometimes I get into . . . depressive states where I will not leave my house for
days and days and days, and sometimes I won’t shower for days.” AR 37.
• 	“[My Bipolar] kind of varies to be honest, sometimes I can have a good month and
I would have . . . 15 or 20 good days and only 10 or 11 bad days. And then there’s
some . . . months where I have really bad days . . . like 25 bad days and maybe 5
good days.” AR 38.
• 	“[If] I’m in one of those [depressed] moods, I won’t even turn on the TV, I won’t
take showers, I will barely get up to eat . . . I’ll sleep all day, all night, it just goes
like for days.” AR 38.
• 	During manic episodes, “I get really anxious, and . . . [s]ometimes I will be all over
the place . . . I’m talking so fast that nobody can understand me, I can’t slow down
. . . [i]t happens on good days.” AR 39.
• 	At my “last job, I got into a small confrontation with the employer, I got extremely
like agitated and . . . I got fired for it. I seem to get very agitated pretty quickly . . .
I’ve never been able to even hold full-time employment . . . for a very long period
of time.” AR 41.
Plaintiff’s cousin submitted an Adult Third-Party Function Report corroborating
Plaintiff’s testimony about the effects of her bipolar disorder as follows:
• 	Plaintiff has “Bipolar I with manic depression and tend[e]ncies to rage out.” AR 193.
• 	On bad days, Plaintiff “gets really depressed and won[’]t leave the couch . . . on a
good day she can clean the whole house but on a bad day she[’]s very lethargic.”
AR 195.
• 	Plaintiff “has violent outbursts” in response to “people trying to give instructions or
demands . . . .” AR 198–99.
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The ALJ found Plaintiff’s “medically determinable impairment could reasonably be
expected to cause the alleged symptoms; however, the claimant’s statements concerning
the intensity, persistence, and limiting effects of these symptoms are not consistent with
the medical evidence and other evidence in the record.” AR 22. The ALJ’s decision,
however, does not contain specific, clear and convincing reasons for rejecting Plaintiff’s
subjective symptom testimony.
The crux of Plaintiff’s subjective testimony is her bipolar disorder prevents her from
sustaining regular and continuing work because, on “bad days,” her depressive episodes
prevent her from functioning. AR 35, 37–38. Plaintiff also testified about periods of mania
wherein she “get[s] really anxious” and “will be all over the place . . . I’m talking so fast
that nobody can understand me, I can’t slow down[.]” AR 39.
If credited, Plaintiff’s testimony would compel a conclusion that her bipolar disorder
prevents her from sustaining regular and continuing work, and, therefore, she is disabled.
Lingenfelter v. Astrue, 504 F.3d 1028, 1040–41 (9th Cir. 2007) (reversing and remanding,
because the ALJ did not provide clear and convincing reasons to exclude claimant’s
testimony which, if incorporated into the RFC, would have established he was disabled.);
see also SSR 96-8p, 1996 WL 374184, at *2 (July 2, 1996) (“[T]he RFC assessment must
include a discussion of the individual’s abilities” to perform “sustained work activities in
an ordinary work setting on a regular and continuing basis. . . . A ‘regular and continuing
basis’ means 8 hours a day, for 5 days a week, or equivalent work schedule.”); SSR 85-15,
1985 WL 56857, *5–6 (Jan. 1, 1985) (“Since mental illness is defined and characterized
by maladaptive behavior, it is not unusual that the mentally impaired have difficulty
accommodating to the demands of work and work-like settings. . . . The mentally impaired
may cease to function effectively when facing such demands as getting to work regularly,
having their work supervised, and remaining in the workplace for a full day.”).
The ALJ neither evaluated whether Plaintiff can sustain regular and continuing
work, nor cited clear and convincing evidence for rejecting Plaintiff’s testimony that her
bipolar disorder prevents her from doing so. Instead, the ALJ: (1) summarized Plaintiff’s
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subjective symptom testimony (AR 22); (2) summarized the medical record (AR 22–24);
and (3) rejected Plaintiff’s testimony by citing progress notes reflecting that Plaintiff “made
statements to her mental health providers that indicate her symptoms were not as severe as
she alleged in the disability application” (i.e., “I’m doing pretty good actually,” and
“everything is great”). AR 24.
These isolated reports of improvement, however, do not constitute clear and
convincing reasons for rejecting Plaintiff’s testimony about the limitations of her bipolar
disorder. Garrison, 759 F.3d at 1017 (in the context of mental health issues, isolated reports
of improvement “must be interpreted with an understanding of the patient’s overall well-
being and the nature of her symptoms . . . improved functioning while being treated and
while limiting environmental stressors does not always mean that a claimant can function
effectively in the workplace.”); Diedrich v. Berryhill, 874 F.3d 634, 642 (9th Cir. 2017)
(“[T]he fact that [Plaintiff] was not exhibiting certain symptoms at the time of her
appointment on a particular day does not indicate that [Plaintiff] was not experiencing those
symptoms generally or at other pertinent times.”).
Further, certain progress notes cited by the ALJ selectively highlight Plaintiff’s
statements of improvement but omit other portions of the progress notes documenting
continuing limitations. AR 24–25. For example, Plaintiff’s September 12, 2022 progress
note where she reported she was “doing pretty good” (AR 444), also documents manic
episodes where she “do[es]n’t care about any consequences” and was hyperverbal with
decreased “need for eating and sleeping” (AR 445). And the June 27, 2023 progress note
where Plaintiff reported “[e]verything is still great” (AR 512), also documents “[i]ncreased
high levels of energy w/o the need for eating and sleeping,” “[r]acing [f]light of ideas,” and
“[d]epressive” thought content (AR 513–14).5
5 The ALJ also described other mental health examinations and findings (AR 23–24), but
omitted statements tending to support Plaintiff’s testimony, such as week-long depressive
episodes (AR 435–37, 462, 473, 481–83), and manic behavior (AR 298, 305, 318, 382–83,
544, 556–58).
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This selective reliance on portions of Plaintiff’s progress notes while ignoring others
tending to support a disability finding is error. Holohan v. Massanari, 246 F.3d 1195, 1207
(9th Cir. 2001) (“selectively [relying] on some entries” and ignoring others showing
possibly disabling impairments is error); Ignacio P. v. Kijikazi, No. 22-cv-1769-MSB,
2024 	WL 	211797, 	at 	*12 	(S.D. 	Cal. 	Jan. 	19, 	2024) 	(“cherry-picking 	of 	certain
inconsistencies ignores the record as a whole and is not a clear, convincing, and specific
reason for discrediting Plaintiff’s testimony.”).
These errors are not harmless. If Plaintiff’s testimony about the effects of her bipolar
disorder were credited, it would follow that she could not sustain regular and continuing
work (i.e., she would frequently be off-task or miss work often). The VE testified no jobs
are available for someone with Plaintiff’s RFC who is off-task more than 15% of the time
or misses work two days or more per month. AR 44 (Q: “[I]f this hypothetical individual
were to miss two days a month of work . . . [or] be off task at least 15% or more, would the
individual be able to do jobs you cited or any other jobs?” A: “No, again not if that is
consistent and ongoing.”). The Court, therefore, recommends remanding Plaintiff’s
disability claim for further proceedings to reevaluate Plaintiff’s subjective symptom
testimony.6
B. 	Reasoning Levels and Vocational Testimony
Plaintiff alleges the ALJ erred by failing to identify and reconcile a conflict between
Plaintiff’s RFC and the reasoning level required by the VE’s identified occupations. Dkt.
No. 12 at 21–25. The Court agrees.
6 Although Plaintiff argues the ALJ improperly relied on her ADLs to discount her
testimony (Dkt. No. 12 at 16–21), the RFC discussion does not appear to consider
Plaintiff’s ADLs (see AR 21–26). If the ALJ relies on Plaintiff’s ADLs in formulating her
RFC on remand, the ALJ “must make specific findings relating to [the ADLs] and their
transferability [to a work setting] to conclude that a claimant’s [ADLs] warrant an adverse
credibility determination.” Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007); see also Popa
v. Berryhill, 872 F.3d 901, 906 (9th Cir. 2017) (finding error where the ALJ failed to
explain why the claimant’s ADLs contradicted her testimony or were transferrable to a
work environment).
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At step five of the sequential evaluation process, the Commissioner must “identify
specific jobs existing in substantial numbers in the national economy that [a] claimant can
perform despite [his] identified limitations.” Zavalin v. Colvin, 778 F.3d 842, 845 (9th Cir.
2015) (quoting Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995) (citing 20 C.F.R.
§ 416.920(g))). In making this determination, the ALJ must rely on the DOT, which is “the
SSA’s primary source of reliable job information[,]” and the VE’s testimony regarding
“specific occupations that a claimant can perform in light of [her RFC].” Id. at 845–46.
When the RFC and the DOT conflict, “the ALJ is required to reconcile the
inconsistency.” Zavalin, 778 F.3d at 846–47 (citing Massachi v. Astrue, 486 F.3d 1149,
1153–54 (9th Cir. 2007)). Specifically, the ALJ must identify the conflict and “determine
whether the vocational expert’s explanation for the conflict is reasonable and whether a
basis exists for relying on the expert rather than the [DOT].” Massachi, 486 F.3d at 1153.
“The [DOT] classifies jobs by General Educational Development Reasoning Level.”
Kelsey v. Berryhill, No. 6:16-cv-01253-AA, 2017 WL 3218072, at *3 (D. Or. July 27,
2017). “A job with Reasoning Level 1 requires the worker to ‘[a]pply commonsense
understanding to carry out simple one- or two-step instructions.’” Leach v. Kijakazi, 70
F.4th 1251, 1256 (9th Cir. 2023) (quoting DOT, app. C (4th ed. 1991), available at 1991
WL 688702). “A job with Reasoning Level 2 demands more; the employee must ‘[a]pply
commonsense 	understanding 	to 	carry 	out 	detailed 	but 	uninvolved 	written 	or 	oral
instructions.’” Id. (quoting DOT, app. C).
The ALJ’s non-disability finding was based on the VE’s identification of Level 2
jobs that Plaintiff could perform.7 Plaintiff’s RFC, however, limited her to “understand,
remember, [and] carry out simple job instructions and simple tasks.” AR 21. In formulating
this RFC, the ALJ expressly rejected two Disability Determination Services (“DDS”)
7 Specifically: (1) Packager (DICOT 920.587-018, available at 1991 WL 687916);
(2) Industrial 	Cleaner 	(DICOT 	381.687-018, 	available 	at 	1991 	WL 	673258); 	and
(3) Assembler 	(DICOT 	729.687-010, 	available 	at 	1991 	WL 	679733). 	See 	also
AR 27, 43–45.
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consultants’ opinions that Plaintiff was “not significantly limited in ability to carry out
detailed instructions.” AR 25–26; see also AR 57, 75 (DDS medical opinions).
This creates a discrepancy the ALJ did not resolve. The ALJ found Plaintiff
significantly limited in her ability to carry out detailed instructions. AR 25–26. The Level
2 jobs the ALJ found Plaintiff capable of performing, however, require the ability “to carry
out detailed . . . written or oral instructions.” Leach, 70 F.4th at 1256.
The ALJ’s failure to identify and resolve this conflict, left a “gap in the record”
precluding the Court from “determin[ing] whether substantial evidence supports the ALJ’s
step-five finding that [Plaintiff] could perform [the] work.” Zavalin, 778 F.3d at 846, 848.
This error also is not harmless. All jobs identified by the VE require Level 2
reasoning beyond what the ALJ found Plaintiff can perform. The Court, therefore,
recommends remanding this matter to reconcile this discrepancy. Rounds v. Comm’r of
Soc. Sec. Admin., 807 F.3d 996, 1004 (9th Cir. 2015) (finding non-harmless error because
there was “no explanation in the record as to why the VE or the ALJ may have believed
that [plaintiff’s] specific limitation . . . should not be taken at face value.”).
VI. 	REMAND
“The decision whether to remand a case for additional evidence, or simply to award
benefits is within the discretion of the court.” Trevizo, 871 F.3d at 664 (quoting Sprague v.
Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987)). Because a properly formulated RFC might
support a conclusion that Plaintiff was not disabled, a remand for further proceedings is
appropriate here. See Bunnell v. Barnhart, 336 F.3d 1112, 1116 (9th Cir. 2003) (remanding
for further administrative proceedings where several “outstanding issues” remained to be
solved, as it was “not clear from the record that an [ALJ] would be required to find the
claimant disabled and award disability benefits”).
//
//
//
//
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VII. 	CONCLUSION
Based 	on 	the 	foregoing, 	the 	Court 	RECOMMENDS 	entering 	an 	Order:
(1) approving and adopting this Report and Recommendation; (2) GRANTING the Joint
Motion for Judicial Review in Plaintiff’s favor and REVERSING the Commissioner’s
decision; and (3) REMANDING this case for further proceedings consistent with the
findings presented herein.
IT IS HEREBY ORDERED that any written objection to this report must be filed
with the court and served on all parties no later than March 19, 2026. The document should
be captioned “Objections to Report and Recommendation.”
IT IS FURTHER ORDERED that any reply to the objections shall be filed with
the Court no later than March 26, 2026. The Parties are advised that failure to file
objections within the specified time may waive the right to raise those objections on appeal
of the Court's order. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).
IT IS SO ORDERED.
Dated: March 5, 2026
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