Opinion

1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 STUART A. Y.,1 Case No.: 3:25-cv-01181-GPC-BJW 13 Plaintiff, ORDER REMANDING TO THE ALJ 14 v. 15 FRANK BISIGNANO, Commissioner of [ECF No. 1] Social Security, 16 Defendant. 17 18 On May 8, 2025, Plaintiff Stuart Allan Young (“Plaintiff”) filed an application 19 seeking judicial review of the Commissioner of Social Security’s final decision denying 20 Plaintiff’s application for disability insurance benefits. ECF No. 1. After careful 21 consideration of the pleadings, the supporting documents, and the applicable law, the 22 Court REMANDS this matter for further analysis consistent with this order. 23 BACKGROUND 24 Plaintiff filed an application for disability insurance benefits pursuant to Title II of 25 26 27 1 Pursuant to Civil Local Rule 7.1(e)(6)(b), “[o]pinions by the Court in [Social Security cases under 42 U.S.C § 406(g)] will refer to any non-governmental parties by using only 28 their first name and last initial.” 1 the Social Security Act on December 28, 2021, alleging a disability onset date of 2 December 21, 2020. AR 59. Plaintiff alleged disability based on a back injury, 3 degenerative arthritis of the lumbar spine, a tailbone injury of the coccyx with 4 displacement, PTSD, depression due to PTSD, anxiety due to PTSD, memory problems, 5 and trouble retaining information. Id. The Commissioner denied Plaintiff’s claims for 6 benefits upon initial review on April 25, 2022, and again upon reconsideration on January 7 6, 2023. AR 71, 87. Plaintiff requested a hearing before an Administrative Law Judge 8 (“ALJ”), which took place telephonically on December 21, 2023, before ALJ Andrew 9 Verne. AR 17, 35, 101. On March 27, 2024, ALJ Verne issued a decision denying 10 Plaintiff’s claim for benefits, finding that Plaintiff has the residual functional capacity to 11 perform medium work as defined in 20 C.F.R § 404.1567(c) and can perform past 12 relevant work as a security officer. AR 23-29. ALJ Verne further concluded that 13 Plaintiff had not been disabled from this alleged disability onset date through March 27, 14 2024, the date of the ALJ’s decision. AR 30. Plaintiff requested review of the ALJ’s 15 decision by the Appeals Council, which denied Plaintiff’s request for review on April 3, 16 2025. AR 1. On May 8, 2025, Plaintiff commenced the instant action seeking judicial 17 review of the Commissioner’s decision. ECF No. 1. 18 A. Plaintiff’s Background & Testimony 19 Plaintiff was born on January 24, 1968. AR 41, 172. Plaintiff worked as a security 20 guard at the Federal Building in San Diego. AR 42. Plaintiff was initially employed with 21 US Protect Corporation from 2004 to 2009 and later for Paragon Systems from 2009 to 22 2021.2 AR 213. He became unable to work due to his disabling condition on December 23 21, 2020. AR 172. Plaintiff claims that he suffers from a back injury, degenerative 24 arthritis of the lumbar spine, a tailbone injury of the coccyx with displacement, PTSD, 25 26 27 2 Plaintiff was consistently employed as a security guard at the Federal Building in San Diego during this time, but the company taking the contract at the federal building 28 switched every five to ten years, thus resulting in the transfer of employment. AR 43. 1 depression due to PTSD, anxiety due to PTSD, memory problems, and trouble retaining 2 information. AR 212. He claims that his injuries cause him difficulty standing or 3 walking for long periods of time and negatively impact his ability to lift, squat, bend, 4 reach and kneel. AR 231-236. Specifically, Plaintiff cannot stand or walk for a long 5 time, noting that he is limited to fifteen minutes of standing before his back pain “starts to 6 take over.” AR 231. He also has difficulty sleeping as his lower back pain keeps him 7 moving throughout the night. AR 232. Plaintiff further claims that his posttraumatic 8 stress disorder makes him irritable, unmotivated, and distrusting of others. AR 468. 9 Plaintiff lives alone. AR 231. On most days, Plaintiff spends a significant amount 10 of time sitting on the couch and enjoys watching TV. AR 232, 235. He completes indoor 11 household chores, like cleaning and laundry, but finds prolonged standing difficult. AR 12 233. He notes difficulty in personal care, claiming that bending to put on pants and shoes 13 is very difficult. AR 232. Plaintiff goes outside throughout the day for food, including to 14 secure lunch and dinner; he does not prepare his own meals given his difficulty standing 15 in place. AR 233, 235. According to Plaintiff, his life is less active, and his PTSD has 16 worsened due to back pain. AR 235, 237. 17 At the December 21, 2023 hearing before the ALJ, Plaintiff testified that he is only 18 able to stand for thirty minutes before he starts to feel extreme pain in his tailbone and 19 lower back. AR 48. He noted that he can stand for thirty minutes when on pain 20 medication and feels more pain when he forgets to take his pain medication. AR 49-50. 21 Plaintiff also needs to be off his feet for twenty to thirty minutes before he can stand for 22 another thirty minutes, but the more he stands, the more the pain progresses. AR 48-49. 23 Plaintiff has also been to the emergency room for anxiety and has been taking mental 24 health medication prescribed from the VA for several years. AR 46-47. 25 B. Lay Testimony from Plaintiff’s Son, David Y. 26 Plaintiff’s son, David Y., filed a function report detailing his observations of 27 28 1 Plaintiff’s symptoms and functional limitations. AR 201-208. Mr. Young noted that 2 Plaintiff is no longer able to go on hikes and can only walk for a quarter of a mile before 3 needing to rest. AR 206. Mr. Young also stated that Plaintiff does not prepare his own 4 meals and finds it difficult to stand in one place for a prolonged period. AR 201, 203. 5 Mr. Young has heard complaints from Plaintiff about back pain when getting up in the 6 morning and claims Plaintiff has a noticeable limp when walking. AR 201-202. 7 According to Mr. Young, Plaintiff struggles with lifting, squatting, bending, standing, 8 reaching, walking, sitting, kneeling, stair climbing, and completing tasks. AR 206. 9 C. The Medical Record 10 1. Dr. Eric Olson 11 Dr. Eric Olson is Plaintiff’s primary care doctor and treating physician. On June 12 11, 2021, Dr. Olson reported that Plaintiff suffered a fall in summer of 2020, resulting in 13 low back and coccyx pain. AR 325-26. Dr. Olson further reported that the disabling 14 condition was preventing Plaintiff from working longer than expected due to the complex 15 injury from the fall. AR 327. Dr. Olson noted chronic lower back and coccyx pain as the 16 chief complaint during an additional visit on October 20, 2021, and reported osteoarthritis 17 of the lumbar spine, injury of the coccyx, pain in the coccyx, and chronic low back pain 18 as some of Plaintiff’s active problems. AR 293-94. On July 18, 2022, Dr. Olson 19 completed a physical residual functional capacity assessment regarding Plaintiff. AR 20 650-57. In that assessment, Dr. Olson reported Plaintiff could occasionally lift and/or 21 carry twenty pounds, stand and/or walk for less than two hours and sit for less than six 22 hours in an eight-hour workday. AR 651. He further reported that Plaintiff developed 23 muscle spasms and back pain when performing activities such as stooping, kneeling, 24 crouching, crawling, balancing, or climbing. AR 652. Dr. Olson notes in his assessment 25 that certain factors can trigger migraines including noise, vibration, fumes, bright 26 27 3 Mr. Y.’s report was dated October 1, 2000. This is assumed to be a misprint, as that 28 would predate Plaintiff’s disability onset date by approximately twenty years. 1 sunlight, and prolonged standing. AR 654. On February 13, 2023, Dr. Olson again 2 reported Plaintiff had, among other active problems, osteoarthritis of the lumbar spine, 3 injury of coccyx, chronic lower back pain, and pain in the coccyx. AR 547. 4 2. Dr. Jessica Durr 5 Dr. Jessica Durr is a psychological consultative examiner. On November 14, 2022, 6 Dr. Durr completed a psychological evaluation of Plaintiff at the request of the 7 Department of Social Services. AR 467. During this evaluation, Plaintiff told Dr. Durr 8 that he was diagnosed with posttraumatic stress disorder in 2016, but symptoms of PTSD 9 began in 1998. AR 468. Plaintiff reported to Dr. Durr that he is unmotivated, suspicious, 10 irritable, and does not trust others. Id. Plaintiff did not report receiving mental health 11 treatment at the time of the visit but did report he is “in 8-9/10 pain daily.” Id. Dr. Durr 12 identifies major depressive disorder and alcohol use disorder as possible DSM-5 13 diagnoses for Plaintiff, while ruling out posttraumatic stress disorder. AR 471. Dr. Durr 14 reports that Plaintiff presents with the ability to understand, remember, and carry out 15 detailed instructions, as well as an ability to make simple workplace decisions without 16 supervision. AR 471-72. She further notes that Plaintiff has a mild inability to follow 17 normal rules of the workplace and is at risk of calling in sick, not showing up, or needing 18 to leave early. AR 472. Dr Durr reports that Plaintiff has a mild inability to interact 19 appropriately with supervisors, coworkers, and peers. Id. 20 3. Dr. Sial Vakas 21 On March 30, 2022, Dr. Sial Vakas conducted an internal medicine consultation at 22 the request of the Department of Social Services. AR 418. His findings were based on 23 both formal testing and observation of the Plaintiff. AR 419. Dr. Vakas reports that 24 Plaintiff’s lumbar back pain travels to his left lower extremity and worsens with sitting or 25 prolonged standing. AR 422-23. He noted that Plaintiff has no tenderness in his back or 26 lower extremities and no muscle spasms in his back. AR 421. Further, Dr. Vakas 27 assessed that Plaintiff has no functional limitations, including in his ability to walk, sit, 28 stand and conduct postural movements. AR 423. 1 4. Dr. Larry Kravitz and Dr. J. Lane—Disability Determination 2 On January 5, 2023, Dr. Larry Kravitz, a psychological consultant, provided a 3 disability determination explanation upon reconsideration of Plaintiff’s case. AR 83. Dr. 4 Kravitz concluded that Plaintiff presents with a non-severe mental impairment with mild 5 limitations in the four areas of the ‘B’ criteria. AR 82. Dr. Kravitz notes that while the 6 mental symptoms claimed are present, they do not appear to significantly reduce 7 Plaintiff’s functioning. AR 83. Further, Dr. Kravitz reports that Plaintiff, aside from 8 being prescribed psychotropics, does not receive any mental health treatment. Id. J. 9 Lane, M.D., a state agency medical consultant, provided administrative medical findings 10 in the same disability determination explanation. AR 81. Dr. Lane reported that 11 Plaintiff’s back issues and mild degenerative changes were non-severe at the initial claim, 12 and Plaintiff has not alleged new or worsening conditions. Id. Dr. Lane concluded that 13 Plaintiff’s physical conditions were non-severe. Id. 14 D. Vocational Expert’s Testimony 15 At Plaintiff’s ALJ hearing, Vocational Expert (“VE”) Nelly K. Katsell testified as 16 to what jobs Plaintiff could perform given his limitations. AR 52-56. She characterized 17 Plaintiff’s past work as a security officer at the light exertion level with a Specific 18 Vocational Preparation (“SVP”) of 4. AR 53. Next, ALJ Verne asked Ms. Katsell if a 19 hypothetical claimant would be able to perform past work given limitations similar to 20 Plaintiff’s. AR 53-55. Ms. Katsell responded that ALJ Verne’s posed hypothetical 21 limitations, notably a limitation that would require a hypothetical claimant to sit every 30 22 minutes, would rule out the past work and would also rule out any application of 23 transferable skills, thus only leaving unskilled work options. AR 53-56. Then ALJ 24 Verne asked Ms. Katsell about the types of jobs to which ALJ Verne’s posed limitations 25 would transfer. AR 53-55. Ms. Katsell offered several examples, including (1) ticket 26 taker at the light level with an SVP of 2 and 44,000 jobs available; (2) retail marker at the 27 light level with an SVP of 2 and 38,000 jobs available; (3) laundry worker at the medium 28 level with an SVP of 2 and 48,000 jobs available. Id. 1 E. The ALJ Decision 2 In order to determine whether a claimant meets the definition of disabled, the ALJ 3 employs a five-step sequential evaluation. 20 C.F.R. § 404.1520(a); Parra v. Astrue, 481 4 F.3d 742, 746 (9th Cir.2007); Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012), 5 superseded on other grounds by 20 C.F.R. § 404.1502(a). If the ALJ determines that a 6 claimant is either disabled or not disabled at any step in the process, the ALJ does not 7 continue on to the next step. See 20 C.F.R. § 404.1520(a)(4) Bray v. Comm'r of Soc. Sec. 8 Admin., 554 F.3d 1219, 1222 (9th Cir. 2009). In brief, the ALJ considers whether a 9 claimant is disabled by determining: (1) whether the claimant is “doing substantial 10 gainful activity;” (2) whether the claimant has a “severe medically determinable physical 11 or mental impairment” or combination of impairments that has lasted for more than 12 12 months; (3) whether the impairment “meets or equals” one of the listings in the 13 regulations; (4) whether, given the claimant's residual functional capacity (“RFC”), the 14 claimant can still do his or her “past relevant work;” and (5) whether the claimant “can 15 make an adjustment to other work.” 20 C.F.R. § 404.1520(a)(4). Between steps three 16 and four, the ALJ must, as an intermediate step, assess the claimant's residual functional 17 capacity. See 20 C.F.R. § 404.1520(e); Bray, 554 F.3d at 1222-23. The burden of proof 18 is on the claimant at steps one through four but shifts to the Commissioner at step five. 19 Bray, 554 F.3d at 1222. 20 The ALJ applied the five-step sequential framework to determine that Plaintiff did 21 not have a disability within the meaning of the Social Security Act from December 21, 22 2020 through the date of the ALJ’s decision. AR 30. At step one, the ALJ determined 23 that Plaintiff had not engaged in substantial gainful activity since his alleged disability 24 onset date of December 21, 2020. AR 19. At step two, the ALJ determined that Plaintiff 25 had the severe impairment of osteoarthritis of lumbar spine with lumbar back pain. AR 26 20. The ALJ further determined Plaintiff’s medically determinable mental impairments 27 were non-severe, as the impairments resulted in no more than a “mild” limitation in any 28 of the functional areas. AR 22. At step three, the ALJ determined that Plaintiff did not 1 have an impairment or combination of impairments that met or medically equaled the 2 severity of one of the impairments in 20 C.F.R. Part 404, Subpart P, App. 1, noting that 3 he had considered Listings 1.15 and 1.16. AR 23 (citing 20 C.F.R. §§ 404.1520(d), 4 404.1525, 404.1526). The ALJ further determined that Plaintiff had the RFC to perform 5 medium work as defined within 20 C.F.R. § 404.1567(c). Id. 6 The ALJ stated the following regarding Plaintiff’s RFC: 7 “[Plaintiff] can lift and/or carry, push and/or pull fifty pounds occasionally 8 and twenty-five pounds frequently. [He] can stand and/or walk six hours and sit six hours in an eight-hour workday with normal breaks. [He] can frequently 9 climb ramps and stairs; occasionally climb ladders, ropes, and scaffolds; 10 frequently balance, stoop, kneel, crouch, and crawl.” 11 AR 23. At step four, the ALJ concluded that Plaintiff is capable of performing his past 12 relevant work as a security officer. AR 29 (citing 20 C.F.R. § 404.1565). The ALJ 13 determined working as a security officer does not require the performance of work- 14 related activities precluded by the claimant’s residual functional capacity. Id. 15 The ALJ, after determining Plaintiff remains capable of performing his past 16 relevant work as a security officer, did not address the last step of the sequential 17 evaluation process. Id. 18 LEGAL STANDARD 19 Section 205(g) of the Social Security Act (“the Act”) permits unsuccessful 20 claimants to seek judicial review of the Commissioner’s final agency decision. 42 U.S.C. 21 § 405(g). The reviewing court may enter a judgment affirming, modifying, or reversing 22 the Commissioner’s decision, and may also remand the matter to the Commissioner of 23 Social Security for further proceedings. Id. 24 A court will set aside the Commissioner’s decision to deny benefits only if it is not 25 supported by substantial evidence or if it is based upon the application of improper legal 26 standards. Berry v. Astrue, 622 F.3d 1128, 1231 (9th Cir. 2010). Substantial evidence is 27 “such relevant evidence as a reasonable mind might accept as adequate to support a 28 conclusion.” Biestek v. Berryhill, 587 U.S. 97, 103 (2019) (quoting Consolidated Edison 1 Co. v. NLRB, 305 U.S. 197, 229 (1938)). The evidence must be “more than a mere 2 scintilla, but less than a preponderance.” Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 3 2017). The court will uphold an ALJ’s findings when the evidence is susceptible to more 4 than one rational interpretation. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) 5 (citing Andrews v. Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995)). “When evidence 6 reasonably supports either confirming or reversing the ALJ’s decision, we may not 7 substitute our judgment for that of the ALJ.” Batson v. Comm’r of Soc. Sec. Admin., 359 8 F.3d 1190, 1196 (9th Cir. 2004) (citing Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 9 1999)). 10 The court must consider the record as a whole, weighing both the evidence that 11 supports and detracts from the ALJ’s conclusions. Derosiers v. Secretary of Health & 12 Human Servs., 846 F.2d 573, 576 (9th Cir. 1988) (citing Jones v. Heckler, 760 F.2d 993, 13 995 (9th Cir.1985)). If the evidence is nonconclusive, “questions of credibility and 14 resolution of conflicts in the testimony are functions solely of the Secretary.” Sample v. 15 Schweiker, 694 F.2d 639, 642 (9th Cir. 1982) (quoting Waters v. Gardner, 452 F.2d 855, 16 858 n.7 (9th Cir. 1971)). 17 DISCUSSION 18 For purposes of the Social Security Act, a claimant is disabled if he is unable “to 19 engage in any substantial gainful activity by reason of any medically determinable 20 physical or mental impairment which can be expected to result in death or which has 21 lasted or can be expected to last for a continuous period of not less than 12 months.” 42 22 U.S.C. § 423(d)(1)(A). The claimant carries the initial burden of proving disability. 42 23 U.S.C. § 423(d)(5); Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989). Here, the 24 ALJ found that Plaintiff was not disabled. AR 30. Plaintiff challenges that finding on 25 three bases: (1) the ALJ failed to reconcile his mental findings in the ‘B’ criteria at steps 26 two and three of the sequential evaluation process with the limits he assessed in the RFC 27 determination; (2) the ALJ failed to properly evaluate the opinion of psychological 28 consultive examiner, J.J. Durr, Ph.D.; and (3) the ALJ failed to provide sufficient reasons 1 for rejecting Plaintiff’s subjective symptom allegations. ECF No. 15 at 4. 2 A. The ALJ’s Improperly Evaluated Plaintiff’s Mild Mental Limitations in 3 the RFC Determination. 4 In assessing residual functional capacity, the ALJ is obligated to consider “all of 5 [the claimant’s] medically determinable impairments of which [the ALJ is] aware, 6 including [the claimant’s] medically determinable impairments that are not ‘severe.’” 7 Bentley v. Saul, 817 Fed. Appx. 424, 427 (9th Cir. 2020) (quoting 20 C.F.R. § 8 404.1545(a)(2)). 9 Plaintiff contends that the ALJ erred by failing to reconcile his mental findings in 10 the “B” criteria at step two with the limitations he assessed in the RFC determination. 11 ECF No. 15 at 6. Specifically, Plaintiff argues that the ALJ offered no explanation for his 12 reliance on an RFC with no mental limitations. ECF No. 20 at 5. Defendant disagrees, 13 maintaining that because Plaintiff had no more than mild mental limitations in any area of 14 functioning, the ALJ appropriately did not include mental limitations in his RFC finding. 15 ECF No. 29 at 2. 16 In making his arguments, Plaintiff heavily relies on the unpublished Ninth Circuit 17 opinion of Hutton v. Astrue, 491 Fed. Appx. 850 (9th Cir. 2012) and the numerous 18 district court cases that cite to the opinion. In Hutton, the Ninth Circuit reversed the ALJ 19 for failure to consider the effect of mild PTSD when determining the RFC and in his 20 hypotheticals to the VE. 491 Fed. Appx. 850, 850 (9th Cir. 2012). Following this 21 decision, multiple district courts within the Ninth Circuit have remanded social security 22 cases due to ALJs’ failure to adequately address mild mental impairment limitations in 23 formulating RFCs. See Frary v. Comm'r of Soc. Sec., No. 1:20-CV-00260-SAB, 2021 24 WL 5401495, at *7-14 (E.D. Cal. Nov. 18, 2021) (collecting cases). 25 The Commissioner, however, argues that the Ninth Circuit's opinion in Woods v. 26 Kijakazi confirmed that mild limitations resulting in a non-severe mental impairment do 27 28 4 Page numbers are based on the CM/ECF pagination. 1 not require express findings in the RFC. ECF No. 18 at 4; Woods v. Kijakazi, 32 F.4th 2 785 (9th Cir. 2022). In Woods, the ALJ assessed the plaintiff's mental limitations at Step 3 Four by addressing and rejecting a medical opinion containing certain mental limitations. 4 32 F.4th at 794. The court found that the ALJ properly rejected the medical opinion, and 5 after properly rejecting the medical opinion relating to plaintiff's mental limitations, the 6 ALJ considered the record and determined that there were no significant mental 7 limitations left to include in the RFC. Id. In essence, “[t]he ALJ does not necessarily need 8 to incorporate non-severe limitations into the RFC, but the ALJ must consider those 9 limitations in the analysis underlying the formulation of the RFC.” Anna C. v. O'Malley, 10 734 F. Supp. 3d 1123, 1131 (D. Or. 2024); Ruben A. v. SSA Comm'r, No. 24-CV-07137- 11 TSH, 2025 WL 2899226, at *9 (N.D. Cal. Oct. 10, 2025); Radford v. Comm'r of Soc. 12 Sec., No. 1:25-CV-00828-GSA, 2025 WL 3280781, at *9 (E.D. Cal. Nov. 25, 2025). 13 Here, the facts of the instant case are distinguishable from Woods. First and as 14 detailed in the following section, the ALJ erred in evaluating Dr. Durr’s medical opinion 15 and thus erred as to the RFC assessment to the extent it did not properly account for Dr. 16 Durr’s opinion. See K.F. v. Kijakazi, No. 20-cv-08629-LB, 2022 WL 207661, at *12 17 (N.D. Cal. Jan. 24, 2022) (“Because the court remands for reconsideration of the medical- 18 opinion evidence, and because the RFC was based partly on the medical record, the court 19 remands on this ground too.”). Second, while the ALJ considered the non-severe 20 limitations in its Step Two findings, AR 20-21, the ALJ did not explain why the RFC 21 contains no mental restrictions, id. at 23-29. This is in error because mild mental 22 impairments should be addressed when formulating the RFCs. Kitty S. v. Kijakazi, No. 23 EDCV 21-00390-JEM, 2022 WL 2117160, at *6 (C.D. Cal. June 13, 2022). The ALJ 24 should also provide reasons for not including the non-severe impairment. See Hutton v. 25 Astrue, 491 F. App'x 850, 850-51 (9th Cir. 2012); Gates v. Berryhill, No. 16-CV-00049- 26 AFM, 2017 WL 2174401, at *3 (C.D. Cal. May 16, 2017). “On the present record, it 27 cannot be determined what would have happened had the ALJ considered Plaintiff's mild 28 social functioning limitation when assessing the RFC…” Gates, 2017 WL 2174401, at 1 *3. Accordingly, the ALJ’s examination of Plaintiff’s mental limitations in formulating 2 the RFC was in error. 3 B. The ALJ Did Not Reasonably Consider the Opinion of Psychological 4 Consultative Examiner, J.J. Durr, Ph. D. 5 When considering medical opinions and prior administrative findings, an ALJ will 6 consider the supportability of the opinion, consistency of the opinion, relationship with 7 the claimant, specialization of the medical source, and other factors. 20 C.F.R. § 8 404.1520c(c)(1)-(5). The most important factors for consideration are supportability and 9 consistency. 20 C.F.R. § 404.1520c(b)(2). An ALJ’s “decision to discredit any medical 10 opinion [] must simply be supported by substantial evidence. Woods v. Kijakazi, 32 F.4th 11 785, 787 (9th Cir. 2022). Here, the ALJ acknowledged Dr. Durr’s opinion that Plaintiff 12 has a mild inability to follow the normal rules of the workplace and is at risk of calling in 13 sick, not showing up, or needing to leave early. AR 28. The ALJ further notes Dr. 14 Durr’s opinion states that Plaintiff has a mild inability to interact appropriately with 15 supervisors, coworkers, and peers. Id. The ALJ found this opinion unpersuasive, as it is 16 “not consistent with the overall record.” Id. To support this determination, the ALJ 17 points to a lack of treatment from a mental health care provider and normal 18 psychiatric/neurologic examinations throughout the record. Id. 19 “[A]n ALJ cannot reject an examining or treating doctor’s opinion as unsupported 20 or inconsistent without providing an explanation supported by substantial evidence.” 21 Woods, 32 F.4th at 792. “[T]he ALJ must articulate how he considered the most 22 important factors of supportability and consistency.” Kramer v. Kijakazi, No. 20-cv- 23 2065-GPC-AHG, 2022 WL 873630 at *9 (S.D. Cal. Mar. 24, 2022). While the ALJ 24 pointed to other facts within the record, including the Plaintiff’s lack of treatment from a 25 mental health provider, the ALJ fails to adequately explain his reasoning, specifically 26 how he “considered the supportability and consistency of the opinion.” Kathleen G. v. 27 Comm’r of Soc. Sec., No. C20-461 RSM, 2020 WL 6581012 at *3 (W.D. Wash. Nov 10, 28 2020). Here, the ALJ stated that the opinion is not persuasive because it is not 1 “consistent with the overall medical record” but fails to explain how the additional facts 2 in the record are inconsistent with Dr. Durr’s opinion. AR 28. For example, the ALJ 3 points to the record’s support of mild limitations in the ‘B’ criteria of the listings as 4 inconsistent to Dr. Durr’s testimony but fails to explain how the mild limitations found 5 do not support or are not consistent with Plaintiff’s mild inability to follow normal rules 6 of the workplace. Id. Since the ALJ did not provide an adequate explanation for 7 rejecting Dr. Durr’s medical opinions, the rejection of such was erroneous. 8 C. The ALJ Improperly Rejected Plaintiff’s Subjective Symptom Testimony. 9 In deciding whether to accept a claimant’s subjective pain or symptom testimony, 10 an ALJ must perform a two-step analysis. Smolen v. Chater, 80 F.3d 1273, 1281 (9th 11 Cir. 1996). First, the ALJ must assess “whether the claimant has presented objective 12 medical evidence of an underlying impairment ‘which could reasonably be expected to 13 produce the pain or other symptoms alleged.’” Lingenfelter v. Astrue, 504 F.3d 1028, 14 1036 (9th Cir. 2007) (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991)). 15 Second, if the first test is met and there is no evidence of malingering, “the ALJ can 16 reject the claimant’s testimony about the severity of [his] symptoms only by offering 17 specific, clear and convincing reasons for doing so.” Smolen, 80 F.3d at 1281. 18 The ALJ “determine[s] credibility, resolve[s] conflicts in the testimony, and 19 resolve[s] ambiguities in the record.” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 20 1090, 1098 (9th Cir. 2014). “General findings are insufficient; rather the ALJ must 21 identify what testimony is not credible and what evidence undermines the claimant’s 22 complaints.” Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (quoting 23 Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998)). The decision “must contain 24 specific reasons for the finding on credibility, supported by the evidence in the case 25 record, and must be sufficiently specific to make clear to…any subsequent reviews the 26 weight the adjudicator gave to the individual’s statements and the reasons for that 27 weight.” Id. (emphasis in original) (quotations omitted). The ALJ “may consider a range 28 of factors in assessing credibility, including (1) ‘ordinary techniques of credibility 1 evaluation, such as the claimant’s reputation for lying, prior inconsistent statements 2 concerning the symptoms, and other testimony by the claimant that appears less than 3 candid; (2) unexplained or inadequately explained failure to seek treatment or to follow a 4 prescribed course of treatment; and (3) the claimant’s daily activities.’” Ghanim v. 5 Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (quoting Smolen, 80 F.3d at 1284). While 6 “an ALJ may not reject a claimant’s subjective complaints based solely on a lack of 7 medical evidence to fully corroborate the alleged severity of pain…it is a factor that the 8 ALJ can consider in his credibility analysis.” Burch, 400 F.3d at 680-81. 9 Here, the ALJ found that the record established that “the claimant’s medically 10 determinable impairments could reasonably be expected to cause the alleged symptoms,” 11 thus satisfying the first step. AR 29; see also Lingenfelter, 504 F.3d at 1036. However, 12 the ALJ rejected Plaintiff’s subjective symptom testimony, concluding that “the 13 claimant’s statements concerning the intensity, persistence, and limiting effects of these 14 symptoms are not entirely consistent with the medical evidence and other evidence in the 15 record.” AR 29. Therefore, the Court must determine whether the ALJ supplied clear, 16 specific, and convincing reasons for disregarding Plaintiff’s subjective symptom 17 testimony. See Lingenfelter, 504 F.3d at 1036. 18 In his step two analysis, the ALJ appears to reject Plaintiff’s subjective symptom 19 testimony for two reasons: (1) the objective evidence “does not corroborate the 20 claimant’s allegations” and (2) Plaintiff testified that he could participate in daily 21 activities “that contradict his allegations.” AR 29. 22 1. Objective Medical Evidence 23 “An ALJ’s vague allegation that a claimant’s testimony is not consistent with the 24 objective medical evidence, without any specific findings in support of that conclusion, is 25 insufficient…” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1103 (9th Cir. 26 2014) (internal quotation marks omitted). “The ALJ must identify the testimony that 27 was not credible, and specify what evidence undermines the claimant’s complaints.” Id. 28 (citing Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998)) (internal quotation marks 1 omitted). Furthermore, the ALJ’s findings “must be sufficiently specific to allow a 2 reviewing court to conclude the adjudicator rejected the claimant’s testimony on 3 permissible grounds and did not arbitrarily discredit a claimant’s testimony regarding 4 pain.” Meneses v. Berryhill, No. ED CV 16-1061-PLA, 2017 WL 598759, at *4 (C.D. 5 Cal. Feb. 14, 2017) (citing Brown-Hunter, 806 F.3d at 493). If the ALJ’s credibility 6 finding is supported by the record, the reviewing court may not second guess that finding. 7 Dominguez v. Colvin, 927 F. Supp. 2d 846, 865 (C.D. Cal. 2013). 8 In the ALJ’s opinion, the ALJ found the Plaintiff’s statements to be “inconsistent 9 because the objective medical evidence does not show that the [Plaintiff’s] symptoms are 10 as limiting” as alleged. AR 26. The ALJ noted that Plaintiff’s back pain was treated 11 conservatively and that Plaintiff used his Tramadol sparingly. Id. 12 While the ALJ attempted to provide specific reasons for rejecting Plaintiff’s 13 subjective symptom testimony, the ALJ only highlights medical findings that do not 14 provide strong support to Plaintiff’s testimony. The fact that Plaintiff’s back pain was 15 treated conservatively and that certain medicines were used sparingly does not provide 16 clear and convincing reasons for rejecting Plaintiff’s testimony. See Lambert v. Saul, 980 17 F.3d 1266, 1278 (9th Cir. 2020) (“Providing a summary of medical evidence…is not the 18 same as providing clear and convincing reasons for finding a claimant’s symptom 19 testimony not credible.”); see also Brown-Hunter, 806 F.3d at 494 (“Because the ALJ 20 failed to identify the testimony she found not credible, she did not link that testimony to 21 the particular parts of the record supporting her non-credibility determination. This was 22 legal error.”). Given the ALJ’s failure to identify specific statements in Plaintiff’s 23 testimony as not credible, the ALJ’s reasoning here is legally insufficient to discount 24 Plaintiff’s credibility. Stone v. Saul, No. 2:18-cv-02862-CKD, 2020 WL 1332946, at *6 25 (E.D. Cal. Mar. 23, 2020). 26 2. Daily Activities 27 An ALJ may consider Plaintiff’s daily activities in order to make a credibility 28 determination. See e.g., Diedrich v. Berryhill, 874 F.3d 634, 648 (9th Cir. 2017); Thomas 1 v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002) (quoting Light v. Soc. Sec. Admin., 119 2 F.3d 789, 792 (9th Cir. 1997), as amended on reh'g (Sept. 17, 1997)); see also 20 C.F.R. 3 § 404.1529(c)(3)(i) (listing daily activities as a factor the ALJ considers in determining 4 the nature and severity of claimant’s symptoms). However, “the mere fact that a plaintiff 5 has carried on certain daily activities, such as grocery shopping, driving a car, or limited 6 walking for exercise, does not in any way detract from [his] credibility as to [his] overall 7 disability.” Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001). “One does not need 8 to be ‘utterly incapacitated’ in order to be disabled.” Id. (quoting Fair v. Bowen, 885 9 F.2d 597, 603 (9th Cir. 1989)). The Ninth Circuit has stated that “if a claimant is able to 10 spend a substantial part of his day engaged in pursuits involving the performance of 11 physical functions that are transferable to a work setting,” the ALJ may be justified in 12 disregarding the claimant’s symptom testimony. Fair, 885 F.2d at 603. In other words, 13 the ALJ may only disregard the Plaintiff’s subjective symptom testimony if the level of 14 Plaintiff’s daily activities is inconsistent with his claimed limitations. Reddick v. Chater, 15 157 F.3d 715, 722 (9th Cir. 1998). 16 Here, the ALJ referred to various specific activities of daily living, including 17 “clean[ing] and do[ing] laundry, . . . driv[ing] a car, shop[ing] in stores, and handl[ing] 18 money.” AR 26. The ALJ also noted that Plaintiff was “able to drive to Mexico and take 19 a twelve-day vacation . . .” and “has no problem with personal care other than difficulty 20 bending to put his pants and shoes on.” Id. 21 The ALJ did not offer specific, clear, and convincing reasons for disregarding 22 Plaintiff’s limitations in light of Plaintiff’s daily activities. For example, the ALJ noted 23 that Plaintiff can clean and do laundry, but the ALJ did not specify how this activity 24 contradicts Plaintiff’s testimony about the severity of his pain or his ability to complete 25 other activities. See Gonzalez v. Sullivan, 914 F.2d 1197, 1201 (9th Cir. 1990) 26 (“However, the ALJ did not specifically link the testimony about appellant’s daily 27 activity to a conclusion that appellant’s excess pain testimony lacked credibility.”); 28 Diedrich, 874 F.3d at 643 (“That Diedrich could participate in some daily activities does 1 not contradict the evidence of otherwise severe problems that she encountered in her 2 daily life during the relevant period.”). Additionally, the ALJ noted that Plaintiff can 3 “drive a car [and] shop in stores,” AR 26, but the ALJ does not provide any explanation 4 as to why these activities cannot coexist with Plaintiff’s testimony that he can “only stand 5 for thirty minutes with taking pain medication.” Id. Here, Plaintiff’s efforts to 6 participate in daily activities such as driving or cleaning, as described in his testimony, 7 are not signs that he is without a disability. Rather, such efforts show that he endeavors 8 to live a normal life in spite of his injuries. Thus, the ALJ did not provide specific, clear, 9 and convincing reasons to discount Plaintiff’s testimony based on his daily activities. 10 D. Harmless Error 11 The Court now turns to the analysis of whether the ALJ’s errors were harmless. 12 Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (citing Stout v. Comm’r Soc. Sec. 13 Admin., 454 F.3d 1050, 1054 (9th Cir. 2006)). If an ALJ’s error is harmless, his decision 14 will not be reversed. Carmickle v. Comm’r Soc. Sec., 533 F.3d 1155, 1162 (9th Cir. 15 2008). An error is harmless “where it is inconsequential to the ultimate nondisability 16 determination.” Molina, 674 F.3d at 1115 (citing Stout, 454 F.3d at 1054). In other 17 words, a court must determine whether the ALJ’s conclusion is supported by substantial 18 evidence despite the error. Blacksher v. Berryhill, 762 F. App’x 372, 376 (9th Cir. 2019) 19 (citing Carmickle, 533 F.3d at 1162). Courts look to the record as a whole to determine 20 whether the error alters the outcome of the case. Molina, 674 F.3d at 1115. 21 Plaintiff argues the improper consideration of Dr. Durr’s opinion and mild mental 22 limitations resulted in the vocational expert not being apprised of the mental restrictions 23 assessed by Dr. Durr. ECF No. 15 at 11, 18. However, the record shows that the VE was 24 presented with a hypothetical reflecting the findings of Dr. Durr and the mild mental 25 limitations identified in Step Two. AR 54. Specifically, the hypothetical included 26 mention of “no interaction with the general public” and “non-social interaction with 27 coworkers and supervisors involving no more than the brief exchange of information or 28 handoff of product.” Id. The hypothetical also included limiting understanding to 1 || “simple, routine, repetitive tasks ...” Jd. These hypotheticals mirror the mental 2 || limitations reported by Dr. Durr, including Plaintiffs “mild inability to interact 3 || appropriately with supervisors, coworkers, and peers.” AR 28. Thus, the error was 4 || “inconsequential to the ultimate nondisability determination” and cannot be ground for 5 || reversal. Molina, 674 F.3d at 1115 (citing Stout, 454 F.3d at 1054). 6 However, the record establishes that the ALJ’s reasons for their rejection of 7 || Plaintiff's subjective symptom testimony are insufficiently, “specific, clear, and 8 |}convincing.” Smolen, 80 F.3d at 1281. Consequently, the ALJ’s credibility assessment 9 lacks substantial evidence. This error was not harmless, because it impacted the RFC 10 || formulated by the ALJ. 1] SCOPE OF REMAND 12 Based upon the above analysis, the case is remanded for further administrative 13 || proceedings. On remand, the ALJ shall: (1) reasonably consider the opinion of Dr. J.J. 14 || Durr and properly evaluate the supportability and consistency of the opinion; (2) properly 15 || evaluate Plaintiff's mild mental limitations in the RFC determination; and (3) properly 16 |/ assess Plaintiff's subjective symptom testimony. 17 CONCLUSION 18 For the foregoing reasons, the Court REMANDS this matter to the ALJ for further 19 consideration consistent with this order. 20 Dated: August 24, 2026 (73 sats OS ) 21 Hon. Gonzalo P. Curiel 22 United States District Judge 23 24 25 26 27 28 18