Moncrief v. Commissioner Social Security Administration

Filing 16

Opinion and Order - The Court REVERSES the Commissioner's decision that Plaintiff was not disabled and REMANDS for further proceedings consistent with this Opinion and Order. Signed on 3/10/2025 by Judge Michael H. Simon. (mja)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

REBEKAH M.1,
Plaintiff,

Case No. 6:23-cv-1741-SI
OPINION AND ORDER

v.
LELAND DUDEK, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

Katherine L. Eitenmiller and Brent Wells, WELLS, MANNING, EITENMILLER & TAYLOR, PC,
474 Willamette Street, Eugene, OR 97401. Of Attorneys for Plaintiff.
William Narus, Acting United States Attorney, and Kevin C. Danielson, Executive Assistant
United States Attorney, UNITED STATES ATTORNEY’S OFFICE, 1000 SW Third Avenue,
Suite 600, Portland, OR 97204; John Drenning, Special Assistant United States Attorney, OFFICE
OF THE GENERAL COUNSEL, Social Security Administration, 6401 Security Boulevard, Baltimore,
MD 21235. Of Attorneys for Defendant.

1

In the interest of privacy, this Opinion and Order uses only the first name and the initial
of the last name of the non-governmental party in this case. When applicable, this Opinion and
Order uses the same designation for a non-governmental party’s immediate family member.

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Michael H. Simon, District Judge.
Plaintiff Rebekah M. seeks judicial review of the final decision of the Commissioner of
the Social Security Administration (“Commissioner”) denying Plaintiff’s application for
Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act (“Act”). For
the reasons stated below, the Court reverses the decision of the Commissioner and remands the
case for further proceedings.
STANDARD OF REVIEW
The decision of the administrative law judge (“ALJ”) is the final decision of the
Commissioner in this case. The district court must affirm the ALJ’s decision if it is based on the
proper legal standards and the findings are supported by substantial evidence. 42 U.S.C.
§ 405(g); see also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). “Substantial
evidence” means “more than a mere scintilla” and requires only “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 587
U.S. 97, 103 (2019) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); see also
Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009).
When the evidence is susceptible to more than one rational interpretation, the Court must
uphold the ALJ’s conclusion. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). Variable
interpretations of the evidence are insignificant if the ALJ’s interpretation is a rational reading of
the record, and this Court may not substitute its judgment for that of the ALJ. See Batson v.
Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193, 1196 (9th Cir. 2004). “[A] reviewing court
must consider the entire record as a whole and may not affirm simply by isolating a ‘specific
quantum of supporting evidence.’” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (quoting
Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). A reviewing court, however,

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may not affirm the ALJ on a ground upon which the ALJ did not rely. Id.; see also Bray, 554
F.3d at 1225-26.
BACKGROUND
A. Plaintiff’s Application
Plaintiff filed an application for a period of disability and disability insurance benefits
(“DIB”) under Title II of the Act on May 13, 2021, alleging disability beginning on
December 31, 2008. Administrative Record (“AR”) 252-58. Plaintiff also filed an application for
SSI on May 13, 2021, again alleging disability beginning on December 31, 2008. AR 259-68.
The agency denied her claims both initially and upon reconsideration. See AR 161-65, 172-179.
Plaintiff requested a hearing before an ALJ. AR 180-81. Plaintiff’s written request for a hearing
amended the alleged onset date to May 13, 2021, effectively withdrawing her application for
DIB. See AR 286. Plaintiff acknowledged that she withdrew her DIB claim at the hearing.
AR 41.
Plaintiff’s date of birth is January 6, 1972, and she was 49 years old as of the amended
alleged disability onset date. AR 93. Plaintiff appeared for a telephone hearing before an ALJ in
October 2022. AR 36-37. On November 2, 2022, the ALJ issued a decision denying Plaintiff’s
claim for benefits. AR 15-35. Plaintiff requested the Appeals Council to review the ALJ’s
decision. AR 250-51. On September 26, 2023, the Appeals Council denied Plaintiff’s request for
review. AR 1-5. Accordingly, the ALJ’s decision became the final agency decision from which
Plaintiff now seeks review.
B. The Sequential Analysis
A claimant is disabled if he or she is unable to “engage in any substantial gainful activity
by reason of any medically determinable physical or mental impairment which . . . has lasted or
can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C.
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§ 423(d)(1)(A). “Social Security Regulations set out a five-step sequential process for
determining whether an applicant is disabled within the meaning of the Social Security Act.”
Keyser v. Comm’r Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011). Those five steps are:
(1) Is the claimant presently working in a substantially gainful
activity? (2) Is the claimant’s impairment severe? (3) Does the
impairment meet or equal one of a list of specific impairments
described in the regulations? (4) Is the claimant able to perform
any work that he or she has done in the past? and (5) Are there
significant numbers of jobs in the national economy that the
claimant can perform?
Id. at 724-25. Each step is potentially dispositive. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). If
the analysis continues beyond step three, the ALJ must evaluate medical and other relevant
evidence to assess and determine the claimant’s “residual functional capacity” (“RFC”).
The claimant bears the burden of proof at steps one through four. Bustamante v.
Massanari, 262 F.3d 949, 953 (9th Cir. 2001); see also Tackett v. Apfel, 180 F.3d 1094, 1098
(9th Cir. 1999). The Commissioner bears the burden of proof at step five. Tackett, 180 F.3d
at 1100. At step five, the Commissioner must show that the claimant can perform other work that
exists in significant numbers in the national economy, “taking into consideration the claimant’s
residual functional capacity, age, education, and work experience.” Id.; see also 20 C.F.R.
§§ 404.1566, 416.966 (describing “work which exists in the national economy”). If the
Commissioner fails to meet this burden, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v),
416.920(a)(4)(v). If, however, the Commissioner proves that the claimant is able to perform
other work existing in significant numbers in the national economy, the claimant is not disabled.
See Tackett, 180 F.3d at 1099; Bustamante, 262 F.3d at 954.
C. The ALJ’s Decision
At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity
since May 13, 2021. AR 21. At step two, the ALJ determined that Plaintiff had the following
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severe impairments: degenerative disc disease of the cervical and lumbar spine, bilateral carpal
tunnel syndrome, osteopenia, fibromyalgia, obesity, post-traumatic stress disorder (“PTSD”),
panic/anxiety disorder, and depressive disorder. Id. At step three, the ALJ determined that
Plaintiff does not have an impairment or combination of impairments that meets or medically
equals the severity of any impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id.
The ALJ next determined Plaintiff’s RFC, concluding Plaintiff’s limitations were as
follows:
lift/carry 20 pounds occasionally and 10 pounds frequently; sit for
six hours in an eight hour workday; stand and/or walk for six hours
in an eight hour workday; occasional climbing of ramps or stairs
but no climbing of ladders, ropes, or scaffolds; frequent balancing;
occasional stooping, kneeling, and crouching; no crawling;
frequent forward, lateral and overhead reaching; frequent handling
and fingering; must avoid concentrated exposure to vibration; no
exposure to hazardous machinery or unprotected heights; able to
understand, remember, and carry out simple tasks while
maintaining attention and concentration for two hours at a time
before requiring a regularly scheduled break; low stress work
defined as having only occasional decision-making and only
occasional changes in the work setting; occasional interaction with
coworker[s] and supervisors; and no interaction with the public.
AR 23.
At step four, the ALJ found that Plaintiff has no past relevant work. AR 29. At step five,
the ALJ found that considering Plaintiff’s age, education, work experience, and RFC, Plaintiff
could perform jobs that exist in significant numbers in the national economy, such as Marker,
DOT #209.587-034 (84,000 jobs in the national economy); Electronics Worker, DOT #726.687010 (169,000 jobs in the national economy); and Garment Sorter, DOT #222.687-014 (40,000
jobs in the national economy). AR 29-30. Thus, the ALJ found that Plaintiff was not disabled
under the Act from May 13, 2021, through the date of the ALJ’s decision. AR 30.

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DISCUSSION
Plaintiff argues that the ALJ committed two errors. First, Plaintiff argues that the ALJ
failed to identify clear and convincing reasons supported by substantial evidence in the record to
reject Plaintiff’s symptom testimony. Second, Plaintiff argues that the ALJ erred in finding
unpersuasive the medical opinion of Scott Alvord, PsyD. The Court addresses each alleged error
in turn.
A. Plaintiff’s Testimony
1. Standards
A claimant “may make statements about the intensity, persistence, and limiting effects of
his or her symptoms.” SSR 16-3p, 2017 WL 5180304, at *6 (Oct. 25, 2017).2 There is a two-step
process for evaluating a claimant’s testimony about the severity and limiting effect of the
claimant’s symptoms. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). “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.’” Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (quoting Bunnell v.
Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). When doing so, “the claimant need not
show that her impairment could reasonably be expected to cause the severity of the symptom she
has alleged; she need only show that it could reasonably have caused some degree of the
symptom.” Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996).

2

Effective March 28, 2016, Social Security Ruling (SSR) 96-7p was superseded by
SSR 16-3p, which eliminates the term “credibility” from the agency’s sub-regulatory policy.
SSR 16-3p; Titles II and XVI: Evaluation of Symptoms in Disability Claims, 81 Fed. Reg. 14166
(Mar. 16, 2016). Because, however, case law references the term “credibility,” it may be used in
this Opinion and Order.

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“Second, if the claimant meets this first test, 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.’” Lingenfelter, 504 F.3d at 1036 (quoting
Smolen, 80 F.3d at 1281). It is “not sufficient for the ALJ to make only general findings; he must
state which pain testimony is not credible and what evidence suggests the complaints are not
credible.” Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). Those reasons must be
“sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily
discredit the claimant’s testimony.” Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (citing
Bunnell, 947 F.2d at 345-46).
Consideration of subjective symptom testimony “is not an examination of an individual’s
character,” and requires the ALJ to consider all the evidence in an individual’s record when
evaluating the intensity and persistence of symptoms. SSR 16-3p, 2017 WL 5180304, at *2. The
Commissioner recommends that the ALJ examine “the entire case record, including the objective
medical evidence; an individual’s statements about the intensity, persistence, and limiting effects
of symptoms; statements and other information provided by medical sources and other persons;
and any other relevant evidence in the individual’s case record.” Id. at *4. The Commissioner
further recommends assessing: (1) the claimant’s statements made to the Commissioner, medical
providers, and others regarding the claimant’s location, frequency and duration of symptoms, the
impact of the symptoms on daily living activities, factors that precipitate and aggravate
symptoms, medications and treatments used, and other methods used to alleviate symptoms;
(2) medical source opinions, statements, and medical reports regarding the claimant’s history,
treatment, responses to treatment, prior work record, efforts to work, daily activities, and other
information concerning the intensity, persistence, and limiting effects of an individual’s

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symptoms; and (3) non-medical source statements, considering how consistent those statements
are with the claimant’s statements about his or her symptoms and other evidence in the file. See
id. at *7-8.
The ALJ’s decision relating to a claimant’s subjective testimony may be upheld overall
even if not all the ALJ’s reasons for discounting the claimant’s testimony are upheld. See
Batson, 359 F.3d at 1197. The ALJ may not, however, discount testimony “solely because” the
claimant’s symptom testimony “is not substantiated affirmatively by objective medical
evidence.” Robbins, 466 F.3d at 883.
2. Analysis
The ALJ concluded that Plaintiff’s medically determinable impairments could reasonably
be expected to cause the alleged symptoms, satisfying step one of the framework. AR 26. At step
two, the ALJ offered the boilerplate statement that Plaintiff’s statements about the intensity,
persistence, and limiting effects of her symptoms were “not entirely consistent with the medical
evidence and other evidence in the record for the reasons explained in this decision.” Id. Because
there was no evidence of malingering, the ALJ’s decision to discredit Plaintiff’s symptom
testimony will be upheld only if the ALJ identified clear and convincing reasons to do so. See
Lingenfelter, 504 F.3d at 1036. The ALJ discounted Plaintiff’s symptom testimony because it
was contradicted by her treatment history, inconsistent with her daily living activities, and
unsupported by the objective medical evidence. Plaintiff argues that these reasons as articulated
by the ALJ were not clear and convincing, and also asserts that the ALJ failed to articulate his
reasons with the required specificity.
a. Specificity
An ALJ must specifically identify what evidence contradicted what testimony. See
Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1103 (9th Cir. 2014) (stating that an
PAGE 8 – OPINION AND ORDER

ALJ may not vaguely conclude that “a claimant’s testimony is ‘not consistent with the objective
medical evidence,’ without any ‘specific findings in support’ of that conclusion” (quoting
Vasquez, 572 F.3d at 592)). A court “cannot review whether the ALJ provided specific, clear,
and convincing reasons for rejecting [a claimant’s] pain testimony where . . . the ALJ never
identified which testimony she found not credible, and never explained which evidence
contradicted that testimony.” Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020) (emphasis in
original) (quoting Brown-Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015)). “[A]n ALJ does
not provide specific, clear, and convincing reasons for rejecting a claimant’s testimony by simply
reciting the medical evidence in support of his or her residual functional capacity determination”
but must “specify which testimony she finds not credible,” and the district court may not “comb
the administrative record to find specific conflicts.” Brown-Hunter, 806 F.3d at 489, 494
(quoting Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014)); see also id. (“[P]roviding a
summary of medical evidence . . . is not the same as providing clear and convincing reasons for
finding the claimant’s symptom testimony not credible.” (emphasis in original)); Treichler, 775
F.3d at 1103 (rejecting the argument that because the ALJ “set out his RFC and summarized the
evidence supporting his determination” the court could infer “that the ALJ rejected [plaintiff’s]
testimony to the extent it conflicted with that medical evidence”). Instead, the ALJ must
“identify the testimony she found not credible” and “link that testimony to the particular parts of
the record supporting her non-credibility determination.” Brown-Hunter, 806 F.3d at 494. Failure
to do so is legal error. Id.
Here, the ALJ summarized Plaintiff’s testimony. AR 23-24. The ALJ then found that
Plaintiff’s “statements about the intensity, persistence, and limiting effects of her symptoms . . .
are inconsistent with clinical observations, diagnostic testing, [Plaintiff’s] treatment history, and

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[Plaintiff’s] activities.” AR 26. To support his findings, the ALJ addressed each of Plaintiff’s
severe impairments and selectively summarized the treatment record to conclude that her
allegations were not supported. AR 26-27. “Although the ALJ did provide a relatively detailed
overview of [Plaintiff’s] medical history, providing a summary of medical evidence is not the
same as providing clear and convincing reasons for finding the claimant's symptom testimony
not credible.” See Lambert, 980 F.3d at 1278 (emphasis in original) (cleaned up).
The ALJ broadly rejected Plaintiff’s reports of chronic pain and symptoms related to
panic and anxiety disorder as inconsistent or unsupported by the record, but the ALJ never stated
which elements of Plaintiff’s testimony the ALJ found not credible and which evidence
contradicted that testimony. See id. at 1277. Indeed, after generally summarizing Plaintiff’s
testimony, the ALJ did not further mention any specific testimony by Plaintiff or any particular
limitation. Nor did the ALJ link any medical evidence to any testimony by Plaintiff when
discussing Plaintiff’s medical records. As a result, the ALJ’s opinion fails properly to evaluate
Plaintiff’s subjective symptom testimony.
As the Ninth Circuit has repeatedly instructed, without adequate specificity in the ALJ’s
opinion, the Court cannot evaluate whether the ALJ had specific, clear, and convincing reasons
supported by substantial evidence in the record to reject Plaintiff’s subjective symptom
testimony. The ALJ may not simply summarize Plaintiff’s testimony and then summarize the
medical record. This is reversible error. Even if the ALJ had identified which portions he found
not credible, however, the reasons provided for rejecting Plaintiff’s subjective symptom
testimony were legally insufficient, as the Court next explains.

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b. Conservative Treatment
The ALJ rejected Plaintiff’s symptom testimony in part because she received
conservative treatment.3 The amount of treatment is “an important indicator of the intensity and
persistence of [a claimant’s] symptoms.” 20 C.F.R. § 416.929(c)(3). Routine, conservative
treatment can be sufficient to discount a claimant’s subjective testimony regarding the limitations
caused by an impairment. Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007). Not seeking an
“aggressive treatment program” permits the inference that symptoms were not “as all-disabling”
as the claimant reported. Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). If, however,
the claimant has a good reason for not seeking more aggressive treatment, conservative treatment
is not a proper basis for rejecting the claimant’s subjective symptoms. Carmickle v. Comm’r,
Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008).
The ALJ portrayed cortisone wrist injections as a conservative treatment modality. Courts
generally “decline to consider a claimant’s sustained treatment of injections to be conservative.”
John, H. v. O’Malley, 2024 WL3534430, at *7 (D. Or. July 25, 2024) (quotation marks omitted);
see also Oldham v. Astrue, 2010 WL 2850770, at *9 (C.D. Cal. July 19, 2010) (finding that
steroid injections were not a form of conservative treatment when pursued over the course of

The Commissioner asserts in the response brief that the ALJ also argued that Plaintiff’s
treatment was effective. The ALJ mentioned once that “[b]racing was effective at relieving pain”
in discussing Plaintiff’s carpal tunnel. AR 26. The Court does not construe this passing comment
as the ALJ offering improvement with treatment as a reason for discounting Plaintiff’s subjective
testimony. Even if the ALJ intended this comment to be a reason, it is not supported by
substantial evidence in the record. The record citation offered by the ALJ is from
September 22, 2022, in which the provider reported that Plaintiff stated that wearing the brace
“feels good and helped to relieve her pain.” AR 1106. At this visit, however, Plaintiff was
following up from a visit one week earlier. She complained of increased pain. She had worn out
her brace and was getting fitted for a new brace. She was getting an evaluation for surgery. Her
comment that the brace helped in the same visit that she complained of increased pain does not
support that the brace improved her symptoms sufficiently to discount her subjective symptom
testimony.
3

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several months). In contrast, a single injection is generally considered to be a conservative
treatment. See Woods v. Kijakazi, 32 F.4th 785, 794 (9th Cir. 2022) (holding that the plaintiff
received conservative treatment when she treated her symptoms “mostly with medication alone
until she received a left knee injection”); De Magana v. Comm’r of Soc. Sec., 2024 WL 870821,
at *15 (E.D. Cal. Feb. 29, 2024) (“The Court agrees . . . that [the plaintiff’s] treatment was
conservative. [The Plaintiff] received a single Toradol injection.”).
The ALJ noted that Plaintiff “received a cortisone injection . . . for carpal tunnel” in
April 2021. AR 24 (citing AR 695-97). The Commissioner characterizes in the response brief
that “Plaintiff continued with injections and bracing” after the April 2021 injection. ECF 14 at 6
(emphasis added) (citing AR 1011, 1092, 1104-05).4 Although Plaintiff repeatedly discussed
having another injection, as noted by the ALJ (see AR 26, noting that Plaintiff elected limiting
injections and bracing as her treatment modalities), the record does not show that she actually
received another injection. Thus, Plaintiff received conservative treatment for her carpal tunnel.
The ALJ also explained that Plaintiff only treated her osteopenia with supplementation
and exercise. AR 26. The Court agrees that this was conservative treatment.
With respect to Plaintiff’s fibromyalgia, the ALJ simply explained that Plaintiff’s
“medication dosages were not regularly increased to deal with worsening symptoms.” AR 27.

The Commissioner’s brief refers to multiple injections but does not specify the total
number of injections that Plaintiff received during the relevant period. Plaintiff received a
cortisone injection in April 2021. AR 695-97. In August 2021, a medical provider noted that
Plaintiff reported worsening carpal tunnel symptoms, was “interested in repeat injection,” and
planned to follow up with “ortho hand.” AR 1011. In July 2022, a medical provider referenced a
“wrist injection 1 year ago x1 which improved symptoms for a few months” and “scheduling
glucocorticoid right wrist injection.” AR 1092. In September 2022, Plaintiff was seen for
occupational therapy, where a medical provider noted that Plaintiff had been wearing a wrist
brace, should continue wearing a wrist brace, and had an appointment “with hand surgery.”
AR 1102-1106.
4

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That reasoning is insufficient because “[a]ny evaluation of the aggressiveness of a treatment
regimen must take into account the condition being treated.” See Revels v. Berryhill, 874
F.3d 648, 667 (9th Cir. 2017) (finding that the ALJ erred in failing to explain why various
prescription medicines and injections in the plaintiff’s neck, back and hands constituted
conservative treatment for fibromyalgia); see also Benecke v. Barnhart, 379 F.3d 587, 590 (9th
Cir. 2004) (“Fibromyalgia’s cause is unknown, there is no cure, and it is poorly-understood
within much of the medical community.”). Fibromyalgia is a somewhat unique condition.
In Cindy F. v. Berryhill, the Court found that the ALJ erred in discounting the plaintiff’s
subjective symptom testimony when the ALJ found that the plaintiff’s doctors “prescribed pain
medications and recommended more activity, but . . . [did] not recommend[] any more
significant treatment for her fibromyalgia.” 367 F. Supp. 3d 1195, 1210 (D. Or. Feb. 13, 2019)
(quotation marks omitted). “Because the ALJ did not specify what ‘more aggressive treatment
options [were] appropriate or available,’ it would be illogical to discredit [the plaintiff] ‘for
failing to pursue non-conservative treatment options where none exist.’” Id. (quoting LapierreGutt v. Astrue, 382 F. App’x 662, 664 (9th Cir. 2010)). Here, it would be similarly illogical to
discredit Plaintiff because her doctors did not “regularly” increase the dosages of her
medications. The ALJ did not explain what, if any, dosage would be consistent with the symptom
testimony, nor did he acknowledge that fibromyalgia symptoms tend to “wax and wane.” See
SSR 12-2p, 2012 WL 3104869, at *6. Without more, the ALJ’s characterization of Plaintiff’s
fibromyalgia care as “conservative” is not supported by substantial evidence and does not suffice
as a clear and convincing reason to reject her symptom testimony. Further, the ALJ offered no
conservative treatment explanation for Plaintiff’s degenerative disc disease.

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The ALJ also found that Plaintiff received only conservative treatment for mental
impairments because she did not receive “significant or repeated emergency or inpatient
treatment . . . for psychological or psychiatric distress.” AR 27. The Court disagrees that such
treatment is required for a mental impairment to be disabling. “Indeed, the Ninth Circuit has
criticized the use of lack of treatment to reject mental complaints, both because mental illness is
notoriously under-reported and because it is a questionable practice to chastise one with a mental
impairment for the exercise of poor judgment in seeking rehabilitation.” Matthews v.
Astrue, 2012 WL 1144423, at *9 (C.D. Cal. April 4, 2012) (citing Regennitter v. Comm’r of Soc.
Sec. Admin., 166 F.3d 1294, 1299-1300 (9th Cir. 1999)); see also id. at *9 (“Claimant does not
have to undergo inpatient hospitalization to be disabled.”); Joseph S. v. O’Malley, 2024
WL 418632, at *14 (S.D. Cal. Feb. 5, 2024) (“The ALJ erred by suggesting or implying that
emergency or inpatient psychiatric treatment is required to constitute non-conservative
treatment.”). Moreover, prescription of psychiatric medications generally is not considered a
conservative treatment for a mental impairment. Drawn v. Berryhill, 728 F. App’x 637, 642 (9th
Cir. 2018) (“[T]he ALJ improperly characterized [the plaintiff’s] treatment as ‘limited and
conservative’ given that she was prescribed a number of psychiatric medications); Powers v.
Kijakazi, 2021 WL 5154115, at *10 (D. Nev. Nov. 4, 2021) (holding that the prescription of
psychiatric medications Alprazolam, Bupropion, Clonazepam, Risperidone, Sertraline, and
Trazodone was not conservative treatment).
Plaintiff participated in counseling sessions and took multiple prescribed psychiatric
medications, including Clonazepam, Trazodone, and Duloxetine, during the relevant period. See,
e.g., AR 689-91, 1036, 1047-48, 1057. Plaintiff also took Propranolol for anxiety, and a medical
provider increased her Propranolol dose in February 2022 after Plaintiff reported that her anxiety

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was getting worse. AR 1047. As such, the ALJ’s reliance on Plaintiff’s conservative care for her
mental impairments was not a clear and convincing reason to discredit Plaintiff’s symptom
testimony.
Although the ALJ properly found that Plaintiff received conservative treatment as to her
bilateral carpal tunnel syndrome and osteopenia, the ALJ failed to provide legitimate reasons in
support of his finding that Plaintiff’s other severe impairments were treated conservatively. Thus,
the ALJ’s reliance on conservative treatment is not a clear and convincing reason to reject
Plaintiff’s testimony and does not support that Plaintiff is able to engage in substantial gainful
activity.
c. Activities of Daily Living
The ALJ rejected Plaintiff’s symptom testimony in part because it conflicted with her
activities of daily living. Daily living activities may provide a basis for discounting subjective
symptoms if the plaintiff’s activities either contradict his or her testimony or meet the threshold
for transferable work skills. See Molina v. Astrue, 674 F.3d 1104, 1112-13 (9th Cir. 2012),
superseded on other grounds by 20 C.F.R. § 404.1502(a); Orn, 495 F.3d at 639. “Engaging in
daily activities that are incompatible with the severity of symptoms alleged can support an
adverse credibility determination.” Ghanim v. Colvin, 763 F.3d 1154, 1165 (9th Cir. 2014). A
claimant, however, need not be utterly incapacitated to receive disability benefits, and
completion of certain routine activities is insufficient to discount subjective symptom testimony.
See Molina, 674 F.3d at 1112-13 (noting that a “claimant need not vegetate in a dark room in
order to be eligible for benefits” (quotation marks omitted)); Vertigan v. Halter, 260 F.3d 1044,
1050 (9th Cir. 2001) (“One does not need to be utterly incapacitated in order to be disabled.”
(quotation marks omitted)). The Ninth Circuit “has repeatedly asserted that the mere fact that a
plaintiff has carried on certain daily activities, such as grocery shopping, driving a car, or limited
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walking for exercise, does not in any way detract from her credibility as to her overall
disability.” Vertigan, 260 F.3d at 1050; see also Reddick v. Chater, 157 F.3d 715, 722 (9th
Cir. 1998) (requiring the level of activity be inconsistent with the plaintiff’s claimed limitations
to be relevant to his or her credibility and noting that “disability claimants should not be
penalized for attempting to lead normal lives in the face of their limitations”). Moreover,
particularly with certain conditions, cycles of improvement may be a common occurrence, and it
is error for an ALJ to pick out a few isolated instances of improvement over a period of months
or years and to treat them as a basis for concluding that a plaintiff is capable of working. See
Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014).
With respect to a plaintiff with an impairment of fibromyalgia, daily activities that
include household chores such as doing laundry, washing dishes, mopping, and vacuuming do
not conflict with pain testimony if the plaintiff had “repeatedly and consistently” noted severe
limitations in completing those tasks. See Revels, 874 F.3d at 668 (concluding that the plaintiff’s
report that she could complete household chores, albeit with severe limitations due to her
fibromyalgia, did not contradict with her symptom testimony of pain); see also Stramol-Spirz v.
Saul, 848 F. App’x 715, 717 (9th Cir. 2021) (concluding that the plaintiff’s symptom testimony
related to fibromyalgia did not conflict with her performance of household chores because she
described her limitations in her function report and at the hearing). A plaintiff’s ability to
complete household chores does conflict with symptom testimony related to fibromyalgia,
however, if the plaintiff has not qualified his or her ability to complete those tasks or is
“equivocal” in his or her ability to “keep up with” those activities. See Rollins v. Massanari, 261
F.3d 853, 857 (9th Cir. 2001) (concluding that the ALJ did not err by discounting the plaintiff’s
symptom testimony related to fibromyalgia because it conflicted with her daily activities, which

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included “attending to the needs of her two young children, cooking, housekeeping, laundry,
shopping, attending therapy and various other meetings every week”); see also Roberts v.
Berryhill, 734 F. App’x 489, 491 (9th Cir. 2018) (“A claimant’s completion of certain household
tasks can provide a valid reason for discounting her inconsistent symptom allegations, even in
the specific context of fibromyalgia pain.”); Revels, 874 F.3d at 668 (distinguishing Rollins, 261
F.3d 853).
With respect to Plaintiff’s fibromyalgia, the ALJ noted that “[d]espite reports of ongoing
widespread pain, . . . [Plaintiff] continued to engage in a wide range of activities. [Plaintiff]
sought to increase her exercise and activity level and engaged in regular swimming for a time.”
AR 27. The record shows, however, that Dr. Rachel Elsasser suggested “swimming and aqua
aerobics . . . for fibromyalgia pain and cardiovascular health” during an office visit in
December 2021. AR 1049-50 (emphasis added). It is illogical to fault a claimant for following
her doctor’s pain management recommendations. Further, at the hearing, Plaintiff testified that
she had stopped swimming due to pain. AR 58.
The ALJ also listed the following examples of “activities which demonstrate significant
retained functionality[:]”
[Plaintiff] completed her personal care, served as the primary
caregiver to a teenage child, attended appointments for herself and
others regularly, regularly met with and interacted with family,
lived amicably with others, went to the park and store, prepared
meals, completed household chores, travelled across the country,
volunteered, used a computer, used a smartphone, engaged in arts
and crafts, regularly exercised, and spent time listening to music,
and reading.
AR 27.
As discussed, a claimant’s ability to complete household chores does not conflict with
pain testimony if the claimant has fibromyalgia and has “repeatedly and consistently” noted

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severe limitations in completing those household tasks. See Revels, 874 F.3d at 668. Here,
Plaintiff testified that “[d]oing household chores is very, very hard on [her] back.” AR 49. She
does chores “very slow[ly], and . . . take[s] a break between each chore.” Id. Plaintiff explained
that she is “not able to get down on [her] hands and knees to clean” and that it is “hard . . . to
bend over and get things up off the floor because of [her] lower back.” Id. With respect to her
personal care, Plaintiff has trouble gripping or holding items such as a blow dryer and showering
is “very difficult.” AR 51-52, 299.
Plaintiff further testified that she experiences daily panic attacks in public and at home.
AR 44-45. She described having panic attacks at the grocery store “many times,” during which
Plaintiff left behind a full grocery cart and exited the store, eventually returning when she was
calm enough to resume shopping. AR 45. In an effort to “face her anxiety,” Plaintiff volunteered
with the transitional housing authority where she lived twice a week, where the staff allowed her
“to take breaks when anxious.” AR 693. After four months, Plaintiff stopped volunteering due to
anxiety. AR 57. Although Plaintiff and her daughter travelled to New York City to visit
Plaintiff’s brother on one occasion, Plaintiff described the experience as the “scariest thing [she
has] done in [her] life.” AR 53. Plaintiff testified that she experienced panic attacks throughout
the trip. AR 53-55. She “felt like [the trip] was a once in a lifetime chance” to see her brother for
the first time in six years but she could not imagine making the trip again. AR 54.
The relevance of Plaintiff’s enjoyment of listening to music is not immediately clear. As
discussed, Plaintiff “need not vegetate . . . in order to be eligible for benefits.” See Molina, 674
F.3d at 1112-13 (quotation marks omitted). Plaintiff reported that she “tries” arts and crafts one
time per week. AR 302. Although Plaintiff’s reading and her use of a smartphone and computer
may potentially conflict with her alleged symptoms relating to her ability to use her hands, the

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ALJ did not obtain further information about how extensively she engages in those activities.
Her function report simply states that she shops in store or by computer. AR 301. It also states
that she reads daily, but not for how long. AR 302. She reports that her activities of arts and
crafts and reading are hard on her hands and that she tires easily. AR 302. It is the ALJ’s
responsibility to develop the record, and the ALJ did not get clarification about these issues at
the hearing. Thus, there is insufficient evidence to conclude on a clear and convincing standard
that these activities conflict with Plaintiff’s claimed limitations.
Plaintiff repeatedly and consistently described severe limitations in her ability to
complete many of the activities of daily living identified by the ALJ. At least one of the activities
was recommended by a treating physician as a pain management tool. Other activities were
undeveloped or appear irrelevant on their face. Accordingly, the ALJ’s reliance on Plaintiff’s
activities of daily living was not a clear and convincing reason to discredit Plaintiff’s symptom
allegations.
d. Objective Medical Record
An ALJ may consider the lack of corroborating objective medical evidence as a “relevant
factor in determining the severity of the claimant’s” alleged symptoms. Rollins, 261 F.3d at 857.
The ALJ may not, however, “discredit the claimant’s testimony as to subjective symptoms
merely because they are unsupported by objective evidence.” Berry v. Astrue, 622 F.3d 1228,
1234 (9th Cir. 2010) (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)); see also
Robbins, 466 F.3d at 883; 20 C.F.R. § 416.929(c)(2) (noting that the Commissioner “will not
reject your statements about the intensity and persistence of your pain or other symptoms or
about the effect your symptoms have on your ability to work . . . solely because the available
objective medical evidence does not substantiate your statements”).

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The parties point to different aspects of the medical record with respect to Plaintiff’s
fibromyalgia, neck and back pain, and limitation from her psychological conditions. The Court,
however, has rejected all other reasons proffered by the ALJ to discount Plaintiff’s testimony.
Thus, the ALJ may not rely solely on a lack of support in the objective medical evidence.
B. Dr. Scott Alvord’s Medical Opinion
1. Standards
Plaintiff filed her application for benefits on May 13, 2021. For claims filed on or after
March 27, 2017, Federal Regulation 20 C.F.R. § 416.920c governs how an ALJ must evaluate
medical opinion evidence. See Revisions to Rules Regarding the Evaluation of Medical
Evidence, 82 Fed. Reg. 5844 (Jan. 18, 2017). Under these new regulations, ALJs no longer
“weigh” medical opinions, but rather determine which are most “persuasive.” 20 C.F.R.
§ 416.920c(a)-(b). The new regulations eliminate the hierarchy of medical opinions and state that
the agency does not defer to any particular medical opinions, even those from treating sources.
Id.; see also Woods, 32 F.4th at 792 (“The revised social security regulations are clearly
irreconcilable with our caselaw according special deference to the opinions of treating and
examining physicians on account of their relationship with the claimant.”). Under the new
regulations, the ALJ primarily considers the “supportability” and “consistency” of the opinions
in determining whether an opinion is persuasive. 20 C.F.R. § 416.920c(c). Supportability is
determined by whether the medical source presents explanations and objective medical evidence
to support his or her opinion. 20 C.F.R. § 416.920c(c)(1). Consistency is determined by how
consistent the opinion is with evidence from other medical and nonmedical sources. 20 C.F.R.
§ 416.920c(c)(2).
An ALJ may also consider a medical source’s relationship with the claimant by looking
to factors such as the length of the treatment relationship, the frequency of the claimant’s
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examinations, the purpose of the treatment relationship, the extent of the treatment relationship,
and whether there is an examining relationship. 20 C.F.R. § 416.920c(c)(3). An ALJ is not,
however, required to explain how he or she considered these secondary medical factors, unless
he or she finds that two or more medical opinions about the same issue are equally wellsupported and consistent with the record but not identical. 20 C.F.R. § 416.920c(b)(2)-(3).
The regulations require ALJs to “articulate . . . how persuasive [they] find all of the
medical opinions” and “explain how [they] considered the supportability and consistency
factors.” 20 C.F.R. § 416.920c(b). The Court must, moreover, continue to consider whether the
ALJ’s analysis has the support of substantial evidence. See 42 U.S.C. § 405(g); see also
Woods, 32 F.4th at 792 (“Our requirement that ALJs provide ‘specific and legitimate reasons’ for
rejecting a treating or examining doctor’s opinion, which stems from the special weight given to
such opinions is likewise incompatible with the revised regulations. . . . Even under the new
regulations, an ALJ cannot reject an examining or treating doctor’s opinion as unsupported or
inconsistent without providing an explanation supported by substantial evidence.” (citation
omitted)).
2. Analysis
Dr. Alvord conducted a psychodiagnostic evaluation of Plaintiff in September 2022 and
based his opinion on a clinical interview, mental status examination, and a review of available
medical records. Dr. Alvord’s report includes findings regarding Plaintiff’s general appearance,
mood and affect, psychomotor movements, thought content, stream of mental activity,
orientation, memory, attention and concentration, abstract thinking, insight and judgment, fund
of general information, and intellectual functioning. AR 1109-10. Plaintiff’s affect was
“anxious” and she described her mood as “depressed.” AR 1109. She successfully completed
some of the tasks in the “Attention/Concentration” category but struggled with others. Id. Her
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thought processes were “intact” and her speech “was within normal limits.” Id. Her intellectual
ability was “judged to fall in the low average IQ range based on fluid tasks, fund of general
information, vocabulary usage, and education/occupation history.” AR 1110.
Dr. Alvord diagnosed Plaintiff with PTSD, depressive disorder NOS, and panic disorder
without agoraphobia. AR 1110. Dr. Alvord assessed that Plaintiff would have “moderate to
marked difficulty understanding, carrying out, and remembering instructions (both complex and
one-two step)”; “moderate difficulty sustaining concentration and persisting in work related
activity at a reasonable pace”; “mild to moderate difficulty maintain[ing] effective social
interaction on a consistent and independent basis with supervisors, co-workers, and in the
public”; and “moderate difficulty dealing with normal pressures in a competitive work setting.”
AR 1110.
The ALJ found Dr. Alvord’s opinion unpersuasive because it “is based on a single one
time examination and evaluation of the claimant and the marked to moderate limitations
indicated are not consistent with Dr. Alvord’s own observations which showed claimant to have
intact memory, attention, concentration, abstract reasoning, fund of knowledge, and average
intellect.” AR 28. The ALJ explained that the degree of limitation alleged in the report “is also
not consistent with clinical observations throughout the treatment record which were generally
unremarkable . . . or [Plaintiff’s] performance of a wide range of activities.” Id.
Plaintiff argues that the ALJ erred in finding unpersuasive the medical opinion of
Dr. Alvord because his clinical findings do support the “marked to moderate” limitations noted
in his report. Only one of Plaintiff’s citations to the record in support of this argument, however,
refers to Dr. Alvord’s examination. Plaintiff points out that “Dr. Alvord observed an anxious
affect and some difficulty in attention and concentration during testing,” but the simple fact that

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a treating provider’s report notes some impairments does not support that an ALJ erred in finding
that those impairments do not support the degree of limitation indicated in the medical opinion.
The ALJ’s explanation that Dr. Alvord’s opinion is unpersuasive because it is
inconsistent with his own clinical findings is a reason supported by substantial evidence. The
ALJ identified several specific findings from Dr. Alvord’s examination that conflicted with the
“marked to moderate limitations indicated.” AR 28. Thus, the ALJ properly analyzed the
supportability of the medical opinion. See 20 C.F.R. § 416.920c(c)(1). Plaintiff also states that an
ALJ may not reject a medical opinion merely because it is based on a single examination; but
here, the ALJ did not err in considering, as a factor, the length of the treatment relationship.
See 20 C.F.R. § 416.920c(c)(3)(i) (“The length of time a medical source has treated you may
help demonstrate whether the medical source has a longitudinal understanding of your
impairment(s).”).
With regard to consistency, the ALJ’s finding that Dr. Alvord’s opinion is inconsistent
with clinical observations throughout the treatment record is a reason supported by substantial
evidence. For example, the record shows that some treating providers described Plaintiff’s
cognition as “normal” or “grossly intact,” her memory as “normal,” and her thought process as
“linear, logical and goal-oriented,” although she “at times lost [her] train of thought.” AR 701,
730, 799. These clinical observations do not support that Plaintiff would have “moderate to
marked difficulty understanding, carrying out, and remembering instructions” as indicated by
Dr. Alvord’s report. Plaintiff points to other medical records that may support Dr. Alvord’s
conclusions. But even if Plaintiff’s interpretation is a rational one, the ALJ’s interpretation also is
rational. When there are two competing rational interpretations of the evidence, the Court
follows the ALJ’s interpretation. See Burch, 400 F.3d at 679. Although the Court rejects the

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ALJ’s reliance on Plaintiff’s daily activities to discount Dr. Alvord’s opinion for the same
reasons the Court rejected Plaintiff’s activities to discount Plaintiff’s testimony, the ALJ
provided other valid reasons to discount Dr. Alvord’s opinion. Thus, the ALJ did not err in
finding unpersuasive Dr. Alvord’s medical opinion.
C. Remedy
Within the Court’s discretion under 42 U.S.C. § 405(g) is the “decision whether to
remand for further proceedings or for an award of benefits.” Holohan v. Massanari, 246
F.3d 1195, 1210 (9th Cir. 2001). Although a court should generally remand to the agency for
additional investigation or explanation, a court has discretion to remand for immediate payment
of benefits. Treichler, 775 F.3d at 1099. The issue turns on the utility of further proceedings. A
court may not award benefits punitively and must conduct a “credit-as-true” analysis on evidence
that has been improperly rejected by the ALJ to determine if a claimant is disabled under the
Social Security Act. Strauss v. Comm’r of the Soc. Sec. Admin., 635 F.3d 1135, 1138 (9th
Cir. 2011).
In the Ninth Circuit, the “credit-as-true” doctrine is “settled” and binding on this
Court. Garrison, 759 F.3d at 999. A court first determines whether the ALJ made a legal error
and then reviews the record as a whole to determine whether the record is fully developed, the
record is free from conflicts and ambiguities, and there is any useful purpose in further
proceedings. Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015). Only if the record has
been fully developed and there are no outstanding issues left to be resolved does the district court
consider whether the ALJ would be required to find the claimant disabled on remand if the
improperly discredited evidence were credited as true. Id. If so, the district court can exercise its
discretion to remand for an award of benefits. Id. The district court retains flexibility, however,

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and is not required to credit statements as true merely because the ALJ made a legal error. Id.
at 408.
The ALJ committed harmful error in evaluating Plaintiff’s testimony. The ALJ’s
boilerplate statement that Plaintiff’s testimony is “not entirely consistent with the medical
evidence and other evidence in the record for the reasons explained in this decision,” in
conjunction with the ALJ’s failure to identify which portions of Plaintiff’s testimony the ALJ
discounted, prevents the Court from meaningfully determining whether the ALJ’s conclusions
were clear and convincing reasons supported by substantial evidence. Further, even if the Court
attempts to discern the ALJ's reasoning, the reasons provided were not clear and convincing. On
this record, the Court cannot conclude that further proceedings would serve no useful purpose.
There are ambiguities regarding Plaintiff’s limitations and conflicts between Plaintiff’s testimony
and other evidence in the record. The ALJ should have the opportunity to properly evaluate
Plaintiff’s symptom allegations and resolve any ambiguities concerning Plaintiff’s physical and
mental limitations, including reformulating an appropriate RFC if necessary.
CONCLUSION
The Court REVERSES the Commissioner’s decision that Plaintiff was not disabled and
REMANDS for further proceedings consistent with this Opinion and Order.
IT IS SO ORDERED.
DATED this 10th day of March, 2025.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge

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