Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOSE EDUARDO M., Case No.: 3:25-cv-01039-AHG 12 Plaintiff, ORDER RESOLVING JOINT MOTION FOR JUDICIAL REVIEW 13 v. AND REVERSING DECISION OF 14 FRANK BISIGNANO, Commissioner of COMMISSIONER Social Security,1 15 [ECF No. 14] Defendant. 16 17 18 19 Before the Court is Jose Eduardo M. (“Plaintiff”) and Frank Bisignano’s 20 (“Commissioner” or “Defendant”) Joint Motion for Judicial Review of Final Decision of 21 the Commissioner of Social Security (“Joint Motion”) pursuant to 42 U.S.C. § 405(g), 22 regarding Plaintiff’s request for judicial review of a decision by the Commissioner denying 23 Plaintiff’s application for supplemental security income benefits. ECF No. 14. 24 25 26 1 Frank Bisignano became the Commissioner of the Social Security Administration on 27 May 7, 2025. Although Plaintiff originally brought this action against Former Acting Commissioner Lee Dudek, this case may properly proceed against Frank Bisignano 28 1 After a thorough review of the parties’ submissions, the administrative record, and 2 applicable law, the Court resolves the Joint Motion in Plaintiff’s favor, REVERSES the 3 Commissioner’s final decision, and REMANDS this action for the calculation and award 4 of benefits. 5 I. BACKGROUND 6 Plaintiff was born in 2001, making him a “younger individual.” ECF No. 9, Certified 7 Administrative Record (“AR”) 28. He has no past relevant work. AR 28. Plaintiff filed an 8 application for supplemental security income benefits pursuant to Title XVI of the Social 9 Security Act on January 18, 2022, alleging a disability onset date of August 19, 2020. 10 AR 210. The Commissioner denied Plaintiff’s claims for benefits upon initial review on 11 May 9, 2022, and again upon reconsideration on August 16, 2022. AR 18, 104. Plaintiff 12 requested a hearing before an Administrative Law Judge (“ALJ”), which took place via 13 videoconference on March 19, 2024. AR 35–61, 129, 138. On May 20, 2024, the ALJ 14 issued an unfavorable decision denying Plaintiff’s application. AR 15–33. 15 On May 30, 2024, Plaintiff requested review of the ALJ’s decision by the Appeals 16 Council. AR 8, 10. When the Appeals Council denied Plaintiff’s request for review on 17 April 2, 2025, the ALJ’s decision became the final decision of the Commissioner. 18 AR 1–6; 42 U.S.C. § 405(h). On April 24, 2025, Plaintiff timely commenced this appeal, 19 seeking judicial review of the Commissioner’s final decision pursuant to 42 U.S.C. § 20 405(g). ECF No. 1. The Commissioner filed the Administrative Record on July 21, 2025. 21 ECF No. 9. Pursuant to the Court’s briefing schedule, (see ECF Nos. 10, 13), the parties 22 timely filed their Joint Motion on January 30, 2026. ECF No. 14. This order follows. 23 II. STANDARD OF REVIEW 24 Pursuant to 42 U.S.C. § 405(g), this Court has authority2 to review the 25 Commissioner’s decision to deny benefits. The Commissioner’s decision will be disturbed 26 27 2 The parties consented to proceed before a Magistrate Judge on April 28, 2025. ECF No. 3; 28 1 only if it is not supported by substantial evidence or if it is based upon the application of 2 improper legal standards. Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010). 3 Substantial evidence means “such relevant evidence as a reasonable mind might 4 accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 5 (2019) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). The 6 standard requires “more than a mere scintilla” of evidence, “but less than a preponderance.” 7 Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) (citation omitted). The standard is 8 “highly deferential.” Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 9 2009). Thus, “‘[w]here evidence is susceptible to more than one rational interpretation,’ 10 the ALJ’s decision should be upheld.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) 11 (quoting Burch v. Barnhart, 400 F.3d at 676, 679 (9th Cir. 2005)). However, the Court 12 “must consider the entire record as a whole, weighing both the evidence that supports and 13 the evidence that detracts from the Commissioner’s conclusion, and may not affirm simply 14 by isolating a specific quantum of supporting evidence.” Garrison v. Colvin, 759 F.3d 995, 15 1009 (9th Cir. 2014) (internal quotation marks omitted)). The ALJ is responsible for 16 determining credibility and resolving conflicts in medical testimony and is also responsible 17 for resolving any ambiguities in the record. Magallanes v. Bowen, 881 F.2d 747, 750 (9th 18 Cir. 1989). The Court will “review only the reasons provided by the ALJ in the disability 19 determination and may not affirm the ALJ on a ground upon which he did not rely.” Id.; 20 see also SEC v. Chenery Corp., 318 U.S. 80, 87 (1943) (“The grounds upon which an 21 administrative order must be judged are those upon which the record discloses that its 22 action was based.”). 23 The Court may also overturn the Commissioner’s denial of benefits if the denial is 24 based on legal error. Garcia v. Comm’r of Soc. Sec., 768 F.3d 925, 929 (9th Cir. 2014). 25 However, even if the Court finds the decision was based on legal error, a court may not 26 reverse an ALJ’s decision if the error is harmless, “which exists when it is clear from the 27 record that the ALJ’s error was inconsequential to the ultimate nondisability 28 / / 1 determination.” Id. at 932 (internal quotations and citation omitted); see also Burch, 400 2 F.3d at 679 (citation omitted). 3 III. SUMMARY OF ALJ’S FINDINGS 4 A. The Five-Step Evaluation Process 5 The ALJ follows a five-step sequential evaluation process in assessing whether a 6 claimant is disabled. 20 C.F.R. § 416.920;3 Tackett v. Apfel, 180 F.3d 1094, 1098–99 (9th 7 Cir. 1999). In the first step, the Commissioner must determine whether the claimant is 8 currently engaged in substantial gainful activity; if so, the claimant is not disabled, and the 9 claim is denied. 20 C.F.R.§ 416.920(a)(i). 10 If the claimant is not currently engaged in substantial gainful activity, the second 11 step requires the ALJ to determine whether the claimant has a “severe” impairment or 12 combination of impairments significantly limiting his ability to do basic work activities, 13 and which has lasted or is expected to last for a continuous period of at least 12 months; if 14 not, a finding of nondisability is made and the claim is denied. 20 C.F.R. § 416.909 (setting 15 forth the 12-month duration requirement); § 416.920(a)(4)(ii). 16 At the third step, the Commissioner considers the medical severity of a claimant’s 17 impairments. 20 C.F.R. § 416.920(a)(4)(iii). If the claimant has a “severe” impairment or 18 combination of impairments, the third step requires the ALJ to determine whether the 19 impairment or combination of impairments meets or equals an impairment in the Listing 20 of Impairments (“Listing”) set forth at 20 C.F.R. § 404, subpart P, appendix 1; if so, 21 22 23 3 Unless otherwise noted, all references to the agency regulations herein are to the regulations in effect at the time of the ALJ’s decision. See, e.g., SSR 16-3p, 2017 WL 24 5180304, at *13 n.27 (Oct. 25, 2017) (“When a Federal court reviews our final decision in 25 a claim, we expect the court will review the final decision using the rules that were in effect at the time we issued the decision under review.”); Anne B. v. Comm’r of Soc. Sec., No. 26 1:18-cv-02146-HZ, 2019 WL 6976034, at *8 (D. Or. Dec. 20, 2019) (collecting cases for 27 the proposition that “[t]he applicable regulations are those in effect at the time the ALJ issued his decision”). The regulations governing Title XVI supplemental security income 28 1 disability is conclusively presumed, and benefits are awarded. Lounsburry v. Barnhart, 468 2 F.3d 1111, 1114 (9th Cir. 2006). 3 If the claimant’s impairment or combination of impairments does not meet or equal 4 an impairment in the Listing, the ALJ proceeds to the fourth step of the disability evaluation 5 process. The fourth step requires the ALJ to determine whether the claimant has sufficient 6 residual functional capacity (“RFC”) to perform his past work. 20 C.F.R. 7 § 416.920(a)(4)(iv). Therefore, the ALJ must determine the claimant’s RFC before moving 8 to step four. 9 An RFC is “an assessment of an individual’s ability to do sustained work-related 10 physical and mental activities in a work setting on a regular and continuing basis.” SSR 11 96-9p, 1996 WL 374184, at *1 (July 2, 1996). It reflects the most a claimant can do despite 12 his limitations. 20 C.F.R. § 416.945(a)(1); Smolen v. Chater, 80 F.3d 1273, 1291 (9th Cir. 13 1996). An RFC assessment must include an individual’s functional limitations or 14 restrictions as a result of all of his impairments—even those that are not severe (see 20 15 C.F.R. § 416.945(a)(2))—and must assess his “work-related abilities on a function-by- 16 function basis.” SSR 96-9p, 1996 WL 374184, at *1; see also Valentine, 574 F.3d at 690 17 (“an RFC that fails to take into account a claimant’s limitations is defective”). An ALJ errs 18 when he provides an incomplete RFC that ignores or discounts “significant and probative 19 evidence” favorable to a claimant’s position. Hill v. Astrue, 698 F.3d 1153, 1161–62 (9th 20 Cir. 2012). 21 An RFC assessment is ultimately an administrative finding reserved to the ALJ. 22 20 C.F.R. § 416.946(c). However, an RFC determination must be based on all of the 23 relevant evidence, including the diagnoses, treatment, observations, and opinions of 24 medical sources, such as treating and examining physicians. 20 C.F.R. § 416.945(a)(3). A 25 court must uphold an ALJ’s RFC assessment when the ALJ has applied the proper legal 26 standards and substantial evidence in the record as a whole supports the decision. See 27 Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). 28 1 At step four of the disability analysis, if the ALJ determines a claimant has sufficient 2 RFC to perform past relevant work, the claimant is not disabled, and the claim is denied. 3 20 C.F.R. § 416.920(a)(4)(iv); see also Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 4 1992). The claimant has the burden of proving that he is unable to perform past relevant 5 work at step four. Drouin, 966 F.2d at 1257. If the claimant meets this burden, a prima 6 facie case of disability is established. Id. 7 At step five, the burden then shifts to the ALJ to establish that the claimant is not 8 disabled because there is other work existing in “significant numbers” in the national or 9 regional economy the claimant can do, taking into account the claimant’s RFC, age, 10 education, and work experience. 20 C.F.R. § 416.920(a)(4)(v). The ALJ usually meets this 11 burden either (1) by the testimony of a vocational expert who assesses the employment 12 potential of a hypothetical individual with all of the claimant’s physical and mental 13 limitations that are supported by the record, or (2) by reference to the Medical-Vocational 14 Guidelines at 20 C.F.R. part 404, subpart P, appendix 2. Lounsburry, 468 F.3d at 1114–15; 15 Hill, 698 F.3d at 1162. The determination of this issue comprises the fifth and final step in 16 the sequential analysis. Id.; Tackett, 180 F.3d at 1099. 17 B. The ALJ’s Application of the Five-Step Process in This Case 18 At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful 19 activity since his alleged disability onset date of August 19, 2020. AR 20. At step two, the 20 ALJ determined that Plaintiff has the severe impairment of mild aortic 21 stenosis/cardiomyopathy. AR 20. The ALJ found that this impairment significantly limits 22 Plaintiff’s ability to perform basic work activities. AR 20. The ALJ determined, due to a 23 lack of objective findings, that Plaintiff has the following non-severe medically 24 determinable impairments: migraine headaches, sinusitis, asthma, hypertension, and 25 optometric papilledema. AR 20–21. The ALJ found that Plaintiff’s hypertension was well 26 controlled with medication. AR 21. Likewise, the ALJ found that Plaintiff’s asthma was 27 mild and intermittent. AR 21. Regarding Plaintiff’s optometric papilledema, the ALJ found 28 no vision-related issues arising from the diagnosis. AR 21. The ALJ also concluded that 1 the record did not reflect, due to his new medications, that Plaintiff’s increased migraine 2 headaches were expected to last 12 months or longer. AR 21. The ALJ found that Plaintiff 3 has an anxiety disorder, but concluded that it was a non-severe medically determinable 4 mental impairment which “did not cause more than minimal limitation in the claimant’s 5 ability to perform basic mental work activities.” AR 21–23. The ALJ also concluded that 6 autism was solely an allegation and not a medically determinable impairment, because 7 Plaintiff’s symptoms cannot be the basis for finding an impairment without any medical 8 evidence or results from diagnostic testing. AR 23. 9 At step three, the ALJ determined that Plaintiff did not have an impairment that met 10 or medically equaled the severity of one of the impairments in the Listing, noting in 11 particular that he had considered Listings 4.04, 4.04A, 4.04B, and 4.04C. AR 23. The ALJ 12 determined that the medical evidence did not include a stress test or angiography to 13 demonstrate qualifying manifestations, nor that three ischemic episodes had occurred. 14 AR 23. 15 Between steps three and four, the ALJ determined that Plaintiff had the residual 16 functional capacity (“RFC”) to perform medium work as defined in 20 CFR 416.967(c) 17 with the following modifications: 18 The claimant can lift, carry, push and/or pull 25 pounds frequently and 50 pounds occasionally. The claimant can sit for 6 hours in an 8-hour workday. 19 The claimant can stand and/or walk for 6 hours in an 8-hour workday. The 20 claimant can frequently climb ramps, stairs, ladders, ropes and scaffolds. The claimant can frequently balance, stoop, kneel, crouch and crawl. 21 AR 24. 22 At step four, the ALJ found that Plaintiff has no relevant past work. AR 27. At step 23 five, the ALJ considered that Plaintiff was a “younger individual” as of the alleged 24 disability onset date and has at least a high school education. AR 27. The vocational expert 25 testified that Plaintiff could perform the medium exertion jobs of Packager, Cleaner, and 26 Day Worker. AR 27–28. Though not included in his RFC, the ALJ noted that these jobs 27 would still exist even if Plaintiff had the following limitations: 28 1 the claimant could only understand, remember and carry out simple, routine repetitive tasks with normal breaks every 2 hours; could have no interaction 2 with the general public; occasional work-related, nonpersonal, non-social 3 interaction with coworkers and supervisors involving no more a brief exchange or hand off of work product; could not perform highly time- 4 pressured tasks such as the claimant would be limited to goal-oriented work, 5 not time sensitive strict, production quotas, that is production-rate pace work with strict by-the-minute or by-the-hour production quotas that are frequently 6 and/or constantly monitored by supervisors or that are fast-paced; and could 7 only work in a low stress environment where there are few workplace changes, for example, the claimant would not have to switch from task-to-task 8 regularly, and would only have minimal decision making capabilities, for 9 example, they would be unable to exercise substantial discretion in carrying out those work activities. 10 11 AR 28. Based on the vocational expert’s testimony, the ALJ concluded that Plaintiff was 12 “capable of making a successful adjustment to other work that exists in significant numbers 13 in the national economy,” so therefore Plaintiff was not disabled. AR 28. 14 IV. DISCUSSION 15 Plaintiff brings one claim of error in the Joint Motion, that the ALJ erred in failing 16 to evaluate the vocational impact of Plaintiff’s migraine headaches. ECF No. 14 at 2–5. 17 A. Whether the ALJ Erred at Step Two 18 At step two, the ALJ considers the severity of the claimant’s impairment. 20 C.F.R. 19 § 416.920(a)(4)(ii). “[T]he step-two inquiry is a de minimis screening device to dispose of 20 groundless claims.” Smolen, 80 F.3d at 1290; see also Hoopai v. Astrue, 499 F.3d 1071, 21 1076 (9th Cir. 2007) (the step two finding is “merely a threshold determination” that “only 22 raises a prima facie case of a disability”). “An impairment or combination of impairments 23 can be found not severe only if the evidence establishes a slight abnormality that has no 24 more than a minimal effect on an individual’s ability to work.” Smolen, 80 F.3d at 1296 25 (citation and quotation marks omitted); see Winchester v. O'Malley, No. 23-cv-06239- 26 WHO, 2025 WL 79869, at *8 (N.D. Cal. Jan. 13, 2025) (“That treatment record for 27 migraines—showing persistent complaints, changes in medication, and general adherence 28 1 to medication with ongoing complaints—is substantial evidence that the migraines have a 2 more than a ‘minimal effect’ on her ability to work”). 3 Here, at step two, the ALJ found migraines to be a medically determinable, but 4 non-severe, impairment, reasoning that: 5 There is also evidence and testimony the claimant contends with other impairments such as migraine headaches, …. However, there were no 6 significant objective medical findings in the record to support more than 7 minimal limitations on the claimant’s ability to perform work activities arising from these claimed impairments…. [T]he claimant has been diagnosed with 8 migraine headaches. That said, as of July 2022, the claimant reported that the 9 frequency of his headaches was one per month on prescribed Maxalt. Similarly, in February 2023, the claimant reported that his headaches 10 improved and occurred less frequent (monthly); and in October 2023, the 11 claimant indicated that his migraines occurred only every 1 to 2 months. In fact, it was not until December 2023 that the claimant reported that his 12 headaches occurred 4 to 5 times per month. At that time the doctor prescribed 13 Ubrelvy and Ondansetron for claimant. With said new medications, the record does not reflect that the claimant’s increased headaches were expected to last 14 12 months or longer. 15 AR 20–21 (citing AR 514, 700, 704, 736). The medical records cited by the ALJ, however, 16 do not fully support his conclusion. For example, the ALJ cited treatment notes from 17 December 20, 2023, for the proposition that Plaintiff was experiencing migraines “4 to 5 18 times per month.” AR 21 (emphasis added); see also AR 26 (ALJ contended that 19 Dr. Silva’s and Dr. Padron-Spence’s opinions were unpersuasive because “daily headaches 20 … lacks support from the medical record. … it was not until December 2023 that the 21 claimant reported that his headaches were occurring 4 to 5 times per month, which is still 22 far less than daily”) (emphasis added). However, those December 20, 2023, treatment 23 notes actually stated that Plaintiff experienced migraines 4 to 5 times per week. AR 704. 24 Further, the treatment notes go on to detail that each headache lasted over 8 hours and 25 caused Plaintiff “lost time from activities of daily living.” AR 704. The migraines were 26 categorized as “chronic daily.” AR 704. Though the ALJ was correct in noting that Plaintiff 27 was prescribed Ubrelvy and Ondansetron, the ALJ did not address treatment notes after the 28 1 December 2023 visit that showed that the medications were not working. At Plaintiff’s 2 follow-up appointment on January 18, 2024, no changes in the frequency of his migraines 3 were noted, though he had been taking the new medications for approximately one month. 4 AR 708 (Plaintiff still experiencing migraines 4 to 5 times per week). Similarly, Dr. Silva 5 and Dr. Padron-Spence completed questionnaires on January 9, 2024, and 6 February 14, 2024, respectively, that Plaintiff was “continu[ing] to suffer headaches 7 despite prescribed medication.” AR 720 (as of January 2024, several weeks after starting 8 new medication, Plaintiff experienced headaches “12 times per month”); AR 718 (as of 9 February 2024, two months after starting new medication, Plaintiff had headaches “daily 10 or almost every day”); see also AR 47 (during the March 19, 2024, hearing before the ALJ, 11 Plaintiff’s mother observed that the medication prescribed to treat or prevent Plaintiff’s 12 migraines was “not working”). As such, the ALJ’s conclusion that, “[w]ith said new 13 medications, the record does not reflect that the claimant’s increased headaches were 14 expected to last 12 months or longer,” is not supported by the record.4 See SSR 19-4p, 2019 15 WL 4169635, at *6 (Aug. 26, 2019) (“When evidence in the file from an AMS [acceptable 16 medical source] documents ongoing headaches that persist despite treatment, such findings 17 may constitute medical signs that help to establish the presence of an MDI [medically 18 determinable impairment].”). 19 Thus, the Court finds that the ALJ’s characterization of Plaintiff’s migraines as 20 non-severe is unsupported by substantial evidence. See Bonnie O. v. Comm’r of Soc. Sec., 21 No. 2:24-cv-101-RMP, 2024 WL 4579907, at *4–*5 (E.D. Wash., Oct. 25, 2024) (ALJ’s 22 23 24 4 The Court notes that the ALJ’s statement is also problematic because “[i]t is well-settled 25 that an ALJ may not render their own medical opinion and is not empowered to independently assess clinical findings.” Copeland v. Bisignano, No. 23-cv-378-CKO, 2026 26 WL 1243431, at *5 (E.D. Cal. May 5, 2026); see, e.g., Banks v. Barnhart, 434 F. Supp. 2d 27 800, 805 (C.D. Cal. 2006) (“An ALJ cannot arbitrarily substitute his own judgment for competent medical opinion, and he must not succumb to the temptation to play doctor and 28 1 finding of claimant’s migraines as non-severe at step two was error, when ALJ did not 2 address medical records that showed continuing debilitating headaches despite 3 improvement with medication, concluding that the “evidence does not show that Plaintiff's 4 headaches do not significantly inhibit Plaintiff’s ability to engage in basic work activities”); 5 Kathryn F. v. O’Malley, No. 5:22-cv-02090-SP, 2024 U.S. Dist. LEXIS 56622, at *17 6 (C.D. Cal. Mar. 27, 2024) (“the record reflects that plaintiff still gets either sporadic or 7 weekly migraine headaches. This was sufficient to pass the de minimis threshold of step 8 two. Therefore, the ALJ erred at step two”); see also Winchester, 2025 WL 79869, at *9 9 (“the record shows Winchester consistently complaining about her history of migraines, 10 current descriptions about the frequency and duration of the migraines, and consistent 11 provision of medicines to attempt to treat the migraines. The ALJ erred in not finding 12 Winchester’s migraines severe at Step Two”). 13 It follows that a failure at step two to characterize Plaintiff’s migraines as severe 14 would result in a failure at step three to consider whether Plaintiff’s migraines were 15 equivalent to the severity of one of the impairments in the Listing. Here, having found 16 Plaintiff’s migraines to be non-severe, the ALJ did not discuss migraines at all in step three. 17 AR 23–24. “An ALJ errs in failing to address equivalency of a claimant’s migraines with 18 listing 11.025 after finding migraines to be a severe impairment at step two.” Bonnie O., 19 2024 WL 4579907, at *4–*5 (finding error at step two when ALJ found migraines non- 20 21 5 Though migraines are not a specifically listed impairment, “[t]he Social Security 22 Administration identifies Listing 11.02 (Epilepsy) as the most closely analogous to primary 23 headache disorders.” Valarie T. v. Comm’r of Soc. Sec., No. 24-cv-00191-DKG, 2025 WL 894654, at *3 (D. Idaho Mar. 24, 2025); see Social Security Administration’s Program 24 Operations Manual System (POMS) DI 24505.015(B)(7)(b), Example 2 (describing 25 example of migraines medically equaling Listing 11.02). “To equal Listing 11.02(B), a claimant must have headache events ‘at least once a week for at least 3 consecutive months 26 despite adherence to prescribed treatment.’ [] To equal Listing 11.02(D), a claimant must 27 have headache events ‘at least once every 2 weeks for at least 3 consecutive months despite adherence to prescribed treatment, and marked limitation in one area of functioning.’” 28 1 severe and thus did not discuss migraines at step three); Rader v. Comm’r of Soc. Sec., No. 2 17-cv-00131-CWD, 2018 WL 4087988, at *3–*4 (D. Idaho Aug. 27, 2018) (collecting 3 cases and SSRs, thoroughly summarizing applicable C.F.R. and POMS sections, and 4 concluding that “it is no surprise that an ALJ’s failure to specifically consider Listing 11.02 5 constitutes legal error when a claimant’s migraine headaches was found to be a severe 6 impairment at step two”). 7 B. Whether the ALJ Erred in Discrediting Plaintiff’s Headache-Related 8 Symptom Statements 9 An ALJ evaluating a claimant’s testimony regarding the extent of his symptoms and 10 impairments must follow a two-step inquiry. Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th 11 Cir. 2014). First, an ALJ must assess whether there is objective medical evidence to support 12 the testimony. Id. If that is the case, and there is no evidence of malingering, “the ALJ can 13 only reject the claimant’s testimony about the severity of the symptoms if he gives 14 ‘specific, clear and convincing reasons’ for the rejection.” Id. (quoting Vasquez v. Astrue, 15 572 F.3d 586, 591 (9th Cir. 2009)). 16 Next, an ALJ must “specifically identify the testimony she or he finds not to be 17 credible ... and explain what evidence undermines that testimony.” Lambert v. Saul, 980 18 F.3d 1266, 1277 (9th Cir. 2020) (quoting Treichler v. Comm’r of Soc. Sec. Admin., 775 19 F.3d 1090, 1102 (9th Cir. 2014)). An ALJ may not reject a claimant’s subjective complaints 20 based solely on a lack of corroborating medical evidence. Burch, 400 F.3d at 680; see also 21 20 C.F.R. § 416.929(c)(2) (“we will not reject your statements about the intensity and 22 persistence of your pain or other symptoms or about the effect your symptoms have on 23 your ability to work … solely because the available objective medical evidence does not 24 substantiate your statements”). Similarly, an ALJ cannot demand “positive objective 25 medical evidence fully corroborating every allegation within the subjective testimony” or 26 “rely on an absence of positive medical evidence to discredit a claimant’s subjective 27 symptom testimony.” Ferguson v. O’Malley, 95 F.4th 1194, 1200–01 (9th Cir. 2024) 28 (emphasis omitted). An ALJ’s decision must be “sufficiently specific to allow a reviewing 1 court to conclude the adjudicator rejected the claimant’s testimony on permissible grounds 2 and did not ‘arbitrarily discredit a claimant’s testimony.’” Bunnell v. Sullivan, 947 F.2d 3 341, 345–46 (9th Cir. 1991).6 If the ALJ fails to meet these requirements for specificity, 4 the Court is not free to fill in the gaps. Lambert, 980 F.3d at 1278. 5 Here, the ALJ made a boilerplate statement regarding Plaintiff’s testimony that is 6 commonly found in ALJ decisions: 7 After careful consideration of the evidence, the undersigned finds that the claimant’s medically determinable impairments could reasonably be expected 8 to cause the alleged symptoms; however, the claimant’s statements 9 concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the 10 record[.] 11 AR 24. Courts have found this same language to be too general and boilerplate to satisfy 12 the requirement that an ALJ identify the testimony of the claimant that should be 13 discredited. In Lambert, for example, the Ninth Circuit found that identical boilerplate 14 language was insufficient to meet the ALJ’s burden: 15 The ALJ’s decision does not meet the requirements set forth in our cases and 16 does not permit meaningful review. The ALJ noted generically that “the claimant’s statements concerning the intensity, persistence and limiting 17 effects of her symptoms are not entirely consistent with the objective medical 18 19 20 6 On March 28, 2016, the Social Security Administration issued new guidance regarding how to evaluate a claimant’s subjective symptom testimony. See SSR 16-3p, 2016 WL 21 1119029 (Mar. 16, 2016); 2017 WL 5180304 (Oct. 25, 2017) (clarifying SSR 16-3p). 22 Additionally, effective March 27, 2017, the Social Security Administration updated the relevant agency regulations regarding how a claimant’s symptoms are evaluated. See 20 23 C.F.R. § 404.1529. Although the ALJ’s opinion was issued after these changes, the 24 jurisprudence governing the applicable two-step inquiry remains good law. See, e.g., Campbell v. Saul, 848 F. App’x 718, 721 (9th Cir. 2021) (applying the two-step inquiry in 25 a recent case appealing an ALJ’s decision from 2018, in which the newer regulations were 26 applied); Vooge v. Saul, 840 F. App’x 253, 254 (9th Cir. 2021) (same, in case involving an ALJ’s opinion issued in January 2019); see also Trevizo v. Berryhill, 871 F.3d 664, 678 27 n.5 (9th Cir. 2017) (noting SSR 16-3p is consistent with existing Ninth Circuit precedent 28 regarding the ALJ’s assessments of an individual’s testimony). 1 and other evidence in the record for the reasons explained in the decision.” But this boilerplate statement by way of introductory remark, which is 2 routinely included in ALJ decisions denying benefits, did not identify what 3 parts of the claimant’s testimony were not credible and why. 4 980 F.3d at 1277 (brackets and some internal quotation marks omitted); Burrell v. Colvin, 5 775 F.3d 1133, 1138 (9th Cir. 2014) (general statement that testimony is “inconsistent in 6 some unspecified way” is insufficient); Treichler, 775 F.3d at 1103 (noting that identical 7 boilerplate statement was insufficient because the “ALJ must identify the testimony that 8 was not credible”). 9 The problem with this language is that the phrase “statements concerning the 10 intensity, persistence and limiting effects” is too general a description for the Court to 11 understand precisely what portions of Plaintiff’s testimony or statements are claimed to be 12 inconsistent with other evidence in the record.7 Isis A. v. Saul, No. 18-cv-01728-W-MSB, 13 2019 WL 3554969, at *4 (S.D. Cal. Aug. 5, 2019) (“When an ALJ fails to specify the 14 rejected testimony and how the evidence provides clear and convincing reasons to reject 15 it, the reviewing court cannot proceed without substituting its own conclusions for the 16 ALJ’s, or speculating as to the grounds for the ALJ’s decision”) (brackets and quotation 17 marks omitted). 18 Though the ALJ addresses Dr. Silva’s and Dr. Padron-Spence’s opinions regarding 19 Plaintiff’s headaches, the ALJ does not address Plaintiff’s subjective statements nor the 20 testimony of his mother. The ALJ’s selective summary of Plaintiff’s medical history, and 21 22 7 Though Plaintiff’s aortic stenosis is not at issue in the instant motion, the Court notes that 23 the ALJ similarly provided boilerplate language regarding Plaintiff’s symptom testimony, 24 which bolsters the point. Though the ALJ stated that “he took into consideration the claimant’s statements along with the objective medical evidence” of Plaintiff’s aortic 25 stenosis/cardiomyopathy, the ALJ concluded with the following: “That said, the results of 26 physical examinations, the results of diagnostic testing, and the claimant’s response to medications, among other evidence is not entirely consistent with the claimant’s subjective 27 complaints.” AR 27. This statement is likewise too vague to be clear and convincing 28 reasons to discount Plaintiff’s symptom testimony. 1 brief aside that Plaintiff had difficulty answering questions at the hearing, does not rectify 2 the issue here. Senstad v. Comm’r of Soc. Sec. Admin., No. 2:23-cv-2930-DAD-DMC-SS, 3 2025 WL 1752290, at *3 (E.D. Cal. June 24, 2025) (finding that ALJ failed to provide clear 4 and convincing reasons when he summarized claimant’s medical history, noting that 5 “boilerplate language followed by a recitation of medical history is insufficient”); see 6 Campos v. O’Malley, No. 1:23-cv-00940-KJM-BAM, 2024 WL 4012015, at *4 (E.D. Cal. 7 Aug. 30, 2024) (“it is not evident from the ALJ’s decision if she intended to discount the 8 entirety of Plaintiff’s testimony or merely specific portions of that testimony”). This leaves 9 the Court to attempt to ascertain whether the evidence relied on by the ALJ is inconsistent 10 with any, or all, of these symptoms and effects. Torrez v. Comm’r of Soc. Sec. Admin., No. 11 1:21-cv-00671-CDB, 2025 WL 297774, at *8 (E.D. Cal. Jan. 24, 2025) (“While the Court 12 may be able to draw inferences about what testimony may be inconsistent, the ALJ must 13 identify those inconsistencies with specificity”). That alone is reversible error. Lambert, 14 980 F.3d at 1278. 15 Though Plaintiff was unsure why he was at the hearing before the ALJ, Plaintiff 16 testified that the reason for the hearing had “something to do with [his] migraines.” AR 17 43–44. Moreover, the medical records show Plaintiff’s consistent complaints of 18 debilitating, stress-induced migraines throughout his medical visits. See, e.g., AR 370 (on 19 April 28, 2021, Plaintiff reported that he continued to experience migraine headaches one 20 to two times per month and had a migraine during his echocardiogram that day, despite 21 taking medication daily. His headache “[t]riggers include stress, and he reports increased 22 stress since starting college classes (all online) in February”); AR 514 (on July 19, 2022, 23 Plaintiff reported that he had a migraine a few days prior, which he “thought to be stress 24 induced,” and experienced them once per month despite taking medication); AR 736 (on 25 February 1, 2023, Plaintiff reported that his migraines were stress-related and occurred 26 monthly); AR 700 (on October 30, 2023, Plaintiff reported that he continued to have 27 monthly migraines marked by severe nausea, vomiting, aura, and phonophobia, and that 28 Rizatriptan “dulls the pain but doesn’t resolve the headache”); AR 704 (on December 20, 1 2023, Plaintiff reported having stress-related and panic-attack-related, throbbing migraines 2 4 to 5 times a week, each lasting over 8 hours); AR 708 (on January 18, 2024, Plaintiff 3 reported having stress-related and panic-attack-related, throbbing migraines 4 to 5 times a 4 week, each lasting over 8 hours, despite being prescribed Ubrelvy and Ondansetron); 5 AR 727 (on February 21, 2024, Plaintiff “reports of having migraines twice a week due to 6 [social] anxiety”). 7 Treatment notes “reflecting some level in improvement does not justify the ALJ’s 8 failure to acknowledge the numerous medical records showing ongoing issues with severe 9 migraine headaches.” Hay v. Saul, No. 18-cv-1706-EFB, 2020 WL 2745715, at *9 (E.D. 10 Cal. May 27, 2020) (finding that ALJ erred in rejecting plaintiff’s testimony about his 11 headaches). Also, symptoms of chronic migraines can wax and wane, resulting in good 12 days and bad days. See Christina S. v. Comm’r of Soc. Sec., No. C18-5269-JPD, 2019 WL 13 13205552, at *6 (W.D. Wash. Feb. 21, 2019) (ALJ erred in finding that plaintiff’s 14 testimony was inconsistent when “the ALJ failed to adequately account for the waxing and 15 waning nature of plaintiff’s migraines”); Melissa J.R. N. v. Comm’r, No. 1:21-cv-01099- 16 AA, 2022 WL 17352561, at *4 (D. Or. Nov. 30, 2022) (“Chronic migraines are by nature 17 variable and unpredictable …. Therefore, it is inappropriate for the ALJ to rely on waxing 18 and waning symptoms … to support a conclusion that Plaintiff’s allegations are non- 19 persuasive”). Further, even if Plaintiff’s migraine symptoms had improved at certain times, 20 the record does not reflect that Plaintiff experienced migraines less than once or twice a 21 month.8 See Hahn v. Kijakazi, 725 F. Supp. 3d 994, 1015 (N.D. Cal. 2024) (“to the extent 22 the ALJ noted that Hahn ‘reported improvement of her headaches with medication 23 24 8 Q: [If] [t]his person missed two or more days on a consistent basis each and 25 every month, would there be any work for that person? 26 A: No, that’d be beyond most employers’ tolerance and preclude[s] full-time work if that’s normally occurring based on my experience. 27 28 AR 57 (testimony of vocational expert at hearing). 1 treatment’ and that Hahn’s headaches resolved with Meclizine, [] the ALJ did not specify 2 the corresponding effective date or explain why relief from medication is inconsistent with 3 Hahn’s migraine testimony”); see cf. Hay, 2020 WL 2745715, at *9 (finding ALJ erred in 4 finding that plaintiff was not credible because his symptoms had improved, when the 5 record reflected that, even with medication, plaintiff still had one or two headaches a week). 6 The Court notes that Defendant’s arguments to the contrary are unpersuasive. First, 7 Defendant contends that “the ALJ first appropriately considered that Plaintiff did not 8 pursue aggressive treatment for relief from his allegedly disabling symptoms.” ECF No. 14 9 at 6–7 (citing AR 25). However, the ALJ made no such statements9 and post hoc 10 rationalizations are insufficient. See Burrell, 775 F.3d at 1138 (“We are constrained to 11 review the reasons the ALJ asserts.”); see also Ferguson, 95 F.4th at 1204 (“because the 12 ALJ did not consider Ferguson’s conservative treatment when it discounted his subjective 13 symptom testimony, the district court erred when it affirmed the ALJ’s decision on that 14 ground”). Defendant also argues that “the ALJ considered that Plaintiff engaged in daily 15 activities that were inconsistent with his alleged impairments, including attending school 16 regularly and exercising at a Planet Fitness.” ECF No. 14 at 7 (citing AR 25). However, 17 upon review of the ALJ’s opinion, the ALJ’s references to attending school and Planet 18 Fitness were not addressing Plaintiff’s migraines, or his symptom statements about 19 migraines, they were in regard to his cardiac symptoms. AR 25; see Ferguson, 95 F.4th at 20 1200 (“the ALJ never expressly and specifically stated that Ferguson’s headache symptom 21 testimony was inconsistent with any particular record evidence, as it was required to do”) 22 (emphasis in original). Moreover, the sole notation in the record regarding Plaintiff joining 23 Planet Fitness is from February 2020, (see AR 317), and the record includes more recent 24 25 26 9 To the extent Defendant is referring to the ALJ’s notation that “the claimant has not 27 required any additional surgical intervention,” this statement references Plaintiff’s cardiac impairments, not his migraines. See AR 25. 28 1 examples of Plaintiff not exercising. See, e.g., AR 371 (April 28, 2021, migraines 2 continued, and “not much” exercise); AR 352 (November 17, 2021, ongoing issues with 3 migraines, not much exercise and is sedentary); AR 515 (July 19, 2022, continuing and 4 recent migraines, not much exercise aside from some walking around the house and 5 neighborhood). 6 C. Whether the ALJ Erred in Rejecting Plaintiff’s Mother’s Testimony 7 A lay witness’s testimony about a claimant’s symptoms or how an impairment 8 affects the claimant’s ability to work is competent evidence. Lewis v. Apfel, 236 F.3d 503, 9 511 (9th Cir. 2001). An ALJ may discount such evidence only by providing “reasons 10 germane to each witness.” Id.; see also Molina v. Astrue, 674 F.3d 1104, 1114 (9th Cir. 11 2012). The Ninth Circuit has not addressed whether the 2017 updates to the Social Security 12 regulations have impacted the standard. See Stephens v. Kijakazi, No. 22-35998, 2023 WL 13 6937296, at *2 (9th Cir. Oct. 20, 2023). It has, however, continued to apply the germane 14 reasons standard. Hahn, 725 F. Supp. 3d at 1016 (collecting Ninth Circuit cases); see 15 Joshua F. v. Comm’r, No. 24-cv-1767-YY, 2025 U.S. Dist. LEXIS 266508, at *19–*20 16 (D. Or. Dec. 29, 2025) (“Although the Ninth Circuit has not decided this issue, district 17 courts in this circuit have concluded that the new regulations have not eliminated the 18 requirement that ALJs must consider and address lay witness testimony”). 19 / / 20 / / 21 22 23 10 See Ignacio P. v. Kijakazi, No. 22cv1769-MSB, 2024 WL 211797, at *12 (S.D. Cal. Jan. 19, 2024) (finding that the ALJ did not “engage meaningfully” with the record and 24 plaintiff’s testimony, concluding that “the ALJ’s cherry-picking of certain inconsistencies 25 ignores the record as a whole and is not a clear, convincing, and specific reason for discrediting Plaintiff’s testimony”); see cf. Rachel B. v. Comm’r of Soc. Sec. Admin., No. 26 19cv1574-DWC, 2020 WL 1910410, at *5 (W.D. Wash. Apr. 20, 2020) (when ALJ cherry- 27 picked from the record, court found that the ALJ’s decision to discount Plaintiff’s testimony was not clear and convincing or supported by substantial evidence). 28 1 During the March 19, 2024, hearing before the ALJ, Plaintiff’s mother testified 2 that Plaintiff had such severe migraines, which were caused by stress, that she purposefully 3 withheld information from him—like the reason for the hearing or for attending a doctor’s 4 appointment—so that he would not become nervous or anxious and trigger migraines. AR 5 44; see AR 58 (“I actually feel uncomfortable [with] him listening to the way I spoke about 6 his situation, because I know once we leave it’s going to be a migraine”). She recalled that 7 Plaintiff vomited blood because his migraines were so severe. AR 47, 59. Other times, 8 Plaintiff would be debilitated for four or five hours, would curl up and try to sleep, 9 sometimes to no avail. AR 44; see also AR 59 (“he literally has to go to bed, and nobody 10 can talk … [for four hours,] the family freezes”). She explained that an in-person college 11 class caused Plaintiff to break out in a sweat, which then triggered a migraine; so, she 12 converted the majority of his courseload to online classes. AR 45. She also explained that 13 the night before the ALJ’s hearing, Plaintiff had to leave art class due to a migraine caused 14 because he struggled drawing a perfect circle. AR 46. She noted that the medication 15 prescribed to treat or prevent Plaintiff’s migraines was “not working.” AR 47. Ultimately, 16 she opined that obtaining employment would be extremely difficult for Plaintiff. AR 59 (“I 17 sincerely don’t feel he can work, because what’s going to happen is he’ll be on a jobsite, 18 anything can stress him, [such as] if he doesn’t do something right … and he’s going [to 19 have a] migraine”). 20 21 22 11 The record is also replete with examples of Plaintiff’s mother making symptom 23 statements during Plaintiff’s medical appointments, as she would attend with him. See AR 500 (on October 20, 2022, Plaintiff’s mother told his doctor that Plaintiff had two migraines 24 in the past two weeks, attributing them to stress, noting that “[h]is migraines have been 25 coming back, however I think its due to the college courses he has been taking[,] … stressing him and that will trigger migraine”); see e.g., AR 381 (January 19, 2021, “the 26 history is provided by the patient and the mother”); AR 486–87 (April 15, 2022, 27 consultative examination, noting that “the source of information for this evaluation was the claimant and his mother,” and reiterating later that “this section contains self-reported 28 1 In his opinion, the ALJ did not provide any reasons for discounting—or crediting— 2 Plaintiff’s mother’s testimony. AR 24. As such, the ALJ erred. Nicole A.R. v. Comm’r of 3 Soc. Sec., No. C26-5299-BAT, 2026 WL 2727931, at *6 (W.D. Wash. Sept. 16, 2026) 4 (finding error when ALJ discounted the testimony of plaintiff’s mother, explaining that 5 “[t]he ALJ did not articulate how persuasive he found the lay statement but stated that it 6 reflected similar allegations as made by Plaintiff, which were inconsistent with the overall 7 record”); see Patrick F. v. Comm’r of Soc. Sec., No.C25-966-MLP, 2025 WL 3004607, at 8 *3 (W.D. Wash. Oct. 27, 2025) (finding error when “[t]he ALJ found Plaintiff’s mother’s 9 testimony inconsistent with the medical evidence, but did not specify which evidence or 10 how it was inconsistent”); Hahn, 725 F. Supp. 3d at 1017 (finding error when ALJ failed 11 to give reasons germane to each witness when she rejected the third-party function reports 12 of plaintiff’s mother and friends). 13 D. The ALJ’s Errors Were Not Harmless 14 The Court finds the ALJ erred at step two by both failing to find that Plaintiff’s 15 migraine headaches are severe and discounting Plaintiff’s symptom statements and 16 Plaintiff’s mother’s testimony in support of the severity of the migraine headaches. See 17 Sally W. v. Comm’r of Soc. Sec., No. C22-5896-BAT, 2023 WL 4073983, at *2 (W.D. 18 Wash. June 20, 2023) (finding harmful error at step two when the ALJ discounted 19 plaintiff’s testimony and found migraines were not severe). If an ALJ’s error is harmless, 20 his decision will not be reversed. Molina, 674 F.3d at 1115. An ALJ’s error is harmless 21 where it is “inconsequential to the ultimate nondisability determination.” Id. (quoting 22 Carmickle v. Comm’r, 533 F.3d 1155, 1162 (9th Cir. 2008)). Because the ALJ would have 23 had to consider equivalency with listing 11.02 at step three had he found Plaintiff’s 24 migraines severe at step two, may have formulated Plaintiff’s RFC differently, asked 25 different hypotheticals to the vocational expert, or reached a different conclusion on the 26 ultimate question of disability, the ALJ’s errors were not harmless. See Bonnie O., 2024 27 WL 4579907, at *5. The Court addresses the appropriate remedy below. 28 / / 1 IV. THE APPROPRIATE REMEDY 2 The Court applies the “credit-as-true” rule when determining whether a case should 3 be remanded for payment of benefits or for further proceedings. Trevizo, 871 F.3d at 682. 4 That test requires the court to assess three factors: (1) whether “the record has been fully 5 developed and further administrative proceedings would serve no useful purpose;” 6 (2) whether “the ALJ has failed to provide legally sufficient reasons for rejecting evidence, 7 whether claimant testimony or medical opinion;” and (3) whether “the ALJ would be 8 required to find the claimant disabled on remand” if the discredited evidence were treated 9 as true. Id. at 683 (quoting Garrison, 759 F.3d at 1020). If all three factors are present, a 10 court can remand the case for payment of benefits. Burrell, 775 F.3d at 1141. Each of these 11 factors weighs in favor of a remand for an award of benefits in this case. 12 The first factor weighs in favor of a remand for benefits. The record is sufficiently 13 developed and includes Plaintiff’s treatment records, administrative medical findings from 14 state agency consultants, and one consultative examination. The second factor weighs in 15 favor of a remand for benefits because, as discussed above, the ALJ failed to provide 16 legally sufficient reasons for finding Plaintiff’s migraines non-severe or rejecting 17 Plaintiff’s or Plaintiff’s mother’s testimony. The third factor also weighs in favor of a 18 remand for benefits because the vocational expert testified that there would be no work 19 available if Plaintiff’s symptom statements and Plaintiff’s mother’s testimony had been 20 credited fully. The record is replete with examples of the impacts of Plaintiff’s migraines, 21 namely that they are debilitating. See, e.g., AR 44–47, 370, 500, 514, 700, 704, 708, 727, 22 736. Dr. Silva and Dr. Padron-Spence also stated that a migraine would cause Plaintiff to 23 leave work for the remainder of the day. AR 718, 720; see AR 59 (Plaintiff’s mother noted 24 that, when Plaintiff had a migraine, all activities came to a halt and he would go to bed). 25 At the hearing, the vocational expert testified that two or more absences per month would 26 “preclude full-time work.” AR 57. Here, over the years, Plaintiff had migraines with 27 symptoms often lasting four to eight hours, occurring between twice a month to daily; 28 according to the testimony of the vocational expert, either scenario would preclude full- 1 ||time work. See Bonnie O., 2024 WL 4579907, at *5 (finding harmful error at step two 2 || when the vocation expert “testified that any absence beyond once per month is work 3 ||preclusive, [] and Plaintiffs migraine treatment records and testimony regarding her 4 ||migraine impairment could support greater absenteeism than one day per month”). 5 ||Remanding for further consideration “would create an unfair ‘heads we win; tails, let’s 6 || play again’” system of disability benefits adjudication” and is unwarranted in light of the 7 record that already exists with respect to Plaintiff's claim for benefits. Benecke v. Barnhart, 8 F.3d 587, 595 (9th Cir. 2004). This is particularly true here, where the ALJ seemed to 9 || cherry-pick portions of the medical record. 10 Therefore, weighing the applicable factors, the Court finds the appropriate remedy 11 is to reverse the Commissioner’s decision and remand for an immediate award of 12 || benefits. 13 Vv. CONCLUSION 14 Pursuant to sentence four of 42 U.S.C. § 405(g), IT IS HEREBY ORDERED that 15 Commissioner’s decision is REVERSED and this case is REMANDED for the 16 |/calculation and award of benefits. 17 The Clerk of Court shall enter judgment in Plaintiff's favor and close this case. 18 IT IS SO ORDERED. 19 Dated: September 28, 2026 00 _ArwiorwH. Xyolard Honorable Allison H. Goddard 21 United States Magistrate Judge 22 23 24 25 26 27 28