Cortez v. Bisignano

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PATRICIA H. C.,1 Case No.: 3:25-cv-01980-JES-VET 12 Plaintiff, REPORT AND 13 v. RECOMMENDATION ON MOTION FOR SUMMARY JUDGMENT 14 FRANK BISIGNANO, Commissioner of Social Security, 15 [ECF No. 15] Defendant. 16 17 18 This Report and Recommendation is submitted to United States District Judge James 19 E. Simmons pursuant to 28 U.S.C. § 636(b)(1) and Civil Local Rule 72.1(c)(1). 20 On August 1, 2025, Plaintiff Patricia H. C. filed a complaint challenging Defendant 21 Commissioner of Social Security Bisignano’s (“Commissioner”) denial of her application 22 for disability insurance benefits. ECF No. 1. Before the Court is Plaintiff’s Motion for 23 Summary Judgment pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3). ECF No. 15. Having 24 considered the parties’ arguments, applicable law, and the record before it, and for the 25 26 27 28 1 reasons discussed below, the undersigned RECOMMENDS VACATING the 2 Commissioner’s final decision and REMANDING for further proceedings. 3 I. BACKGROUND 4 A. Procedural History 5 On June 7, 2022, Plaintiff applied for disability insurance benefits pursuant to the 6 Social Security Act, alleging disability commencing on November 17, 2021. 7 Administrative Record (“AR”) 209.2 The Agency denied the application initially and upon 8 reconsideration. AR 207–36. 9 Plaintiff timely requested a hearing before an Administrative Law Judge (“ALJ”) 10 and, on July 11, 2024, the ALJ held a hearing (“Administrative Hearing”). AR 178–206, 11 247–48. On September 26, 2024, the ALJ found that Plaintiff was not disabled. AR 158– 12 77. Plaintiff timely appealed, and the Appeals Council declined review on June 24, 2025, 13 rendering the ALJ’s decision the final decision of the Commissioner. AR 1–6. On August 14 1, 2025, Plaintiff initiated this action seeking judicial review of the ALJ’s decision. ECF 15 No. 1. 16 B. Summary of the ALJ’s Decision 17 The ALJ followed the Agency’s five-step sequential evaluation process to determine 18 whether Plaintiff was disabled. See 20 C.F.R. § 404.1520(a)(4). At step one, the ALJ 19 determined that Plaintiff had “not engaged in substantial gainful activity since November 20 17, 2021, the alleged onset date.” AR 164. At step two, the ALJ found that Plaintiff had 21 the following severe impairments: “systemic lupus erythematosus (“SLE”), 22 hypothyroidism, fibromyalgia, and migraines with aura.” Id. The ALJ found that Plaintiff’s 23 medically determinable impairments of Sjogren’s syndrome, menorrhagia, cholecystitis 24 status-post surgery, gastroesophageal reflux disease, anemia, obesity, adjustment disorder, 25 and depression were non-severe. AR 164–66. At step three, the ALJ concluded that 26 27 28 1 Plaintiff did not have an impairment or combination of impairments that meets or medically 2 equals the Commissioner’s listed impairments. AR 166–67. Before proceeding to step four, 3 the ALJ assessed Plaintiff’s Residual Functional Capacity (“RFC”) as follows: 4 [T]he claimant has the residual functional capacity to perform light work . . . except the individual can frequently climb ramps and stairs; occasionally 5 climb ladders, ropes, and scaffolds; frequently balance, stoop, kneel, crouch, 6 and crawl; frequently handle and finger with the bilateral upper extremities; frequently push and pull with the bilateral upper extremities; and the 7 individual must avoid concentrated exposure to bright light, loud noise, and 8 hazards such as operational control of moving machinery and unprotected heights. 9 10 AR 167. In considering Plaintiff’s symptoms, the ALJ determined that Plaintiff’s 11 “medically determinable impairments could reasonably be expected to cause the alleged 12 symptoms.” Id. at 169. However, the ALJ further concluded that Plaintiff’s statements 13 regarding the intensity, persistence, and limiting effects of those symptoms were not 14 entirely consistent with the medical evidence and other evidence in the record. AR 170. 15 At step four, in reliance on Plaintiff’s documented vocational background and the 16 opinion of a vocational expert (“VE”), the ALJ found Plaintiff “capable of performing past 17 relevant work as an insurance clerk.” AR 171. At step five, based on the VE’s opinion, the 18 ALJ concluded that Plaintiff could also perform other work existing in significant numbers 19 in the national economy. AR 172. Given Plaintiff’s age, education, work experience, and 20 RFC, the VE opined that Plaintiff could engage in various occupations, including office 21 helper, price marker, and burrito maker. AR 172–73. 22 Accordingly, the ALJ found that Plaintiff was not disabled, as defined by the Social 23 Security Act, since November 17, 2021. AR 173. 24 C. Summary of the Plaintiff’s Testimony 25 During the Administrative Hearing, Plaintiff testified that she had diagnoses of both 26 lupus and fibromyalgia. AR 186. Plaintiff stated that she stopped working in November 27 2021 due to chronic pain from her impairments and difficulty concentrating on her work. 28 AR 185. And, prior to resigning, Plaintiff’s pain caused her to miss work. AR 205. Plaintiff 1 described being in pain for most of each day. AR 186. The pain is widespread throughout 2 her body, impacts her sleep, and she is sensitive to touch. Id. Dr. Steiner, whom she sees 3 every month, treats Plaintiff’s chronic plain and prescribes all of Plaintiff’s pain 4 medication. AR 187. Plaintiff testified that none of the treatments prescribed by Dr. Steiner 5 are effective at reducing her pain. Id. She also sees Dr. Steiner for Botox treatment for her 6 migraines, which has been effective. AR 187–88. While Plaintiff used to have more than 7 fifteen migraines per month, they are now infrequent. AR 188. Bright lights and stress can 8 trigger Plaintiff’s migraines. AR 188–89. 9 Walking for more than a minute is difficult for Plaintiff and requires a break 10 afterwards. AR 193. Walking also causes pain in her back. Id. She started wearing a back 11 brace one month before the Administrative Hearing. Id. She can stand and sit for a while 12 but needs a break or movement after long durations due to pain. AR 194. The maximum 13 she can carry is a gallon of milk. Id. 14 Plaintiff testified that her pain is located primarily in her lower and middle back. AR 15 194–95. Plaintiff has not discussed back pain with her primary physician. AR 195. She has 16 not had surgery on her back, but received X-Ray imaging on her back, chest, hands, and 17 wrists with Dr. Steiner. Id. 18 Plaintiff also testified that she feels depressed every day because of her physical 19 condition but does not take medication for depression. AR 196–97. She suffers from 20 memory loss, does not socialize anymore, and has lost her overall motivation for most 21 activities, including hygiene, chores, errands, and eating. Id. She lives with her son in an 22 apartment and relies on him and others for driving her around and doing most household 23 tasks. AR 198. She has no hobbies, is not part of any groups, and does not exercise. Id. 24 II. STANDARD OF REVIEW 25 A court may set aside the Commissioner’s denial of benefits “only if the ALJ’s 26 decision was not supported by substantial evidence in the record as a whole or if the ALJ 27 applied the wrong legal standard.” Coleman v. Saul, 979 F.3d 751, 755 (9th Cir. 2020); see 28 42 U.S.C. § 405(g). Substantial evidence is “more than a mere scintilla,” and “means only 1 . . . such relevant evidence as a reasonable mind might accept as adequate to support a 2 conclusion.” Biestek v. Berryhill, 587 U.S. 97, 103 (2019) (quoting Consolidated Edison 3 Co. v. NLRB, 305 U.S. 197, 229 (1938)); see Lingenfelter v. Astrue, 504 F.3d 1028, 1035 4 (9th Cir. 2007) (substantial evidence is “more than a mere scintilla, but less than a 5 preponderance”). A court “must review the administrative record as a whole, weighing 6 both the evidence that supports and the evidence that detracts from the Commissioner’s 7 conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). 8 The Court may not impose its own reasoning to affirm the ALJ’s decision. Garrison 9 v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014). “If the evidence is susceptible to more than 10 one rational interpretation, it is the ALJ’s conclusion that must be upheld.” Ford v. Saul, 11 950 F.3d 1141, 1154 (9th Cir. 2020) (internal quotations omitted). Thus, “review of an 12 ALJ’s fact-finding for substantial evidence is deferential, and the threshold for such 13 evidentiary sufficiency is not high.” Id. at 1159 (internal quotations omitted) (quoting 14 Biestek, 587 U.S. at 103); see also Kitchen v. Kijakazi, 82 F.4th 732, 738 (9th Cir. 2023) 15 (“Overall, the standard of review is highly deferential.”). 16 Lastly, the Court will not reverse for harmless error. Marsh v. Colvin, 792 F.3d 1170, 17 1173 (9th Cir. 2015). “An error is harmless only if it is inconsequential to the ultimate 18 nondisability determination.” Lambert v. Saul, 980 F.3d 1266, 1278 (9th Cir. 2020) 19 (internal quotations omitted). 20 III. DISCUSSION 21 The single issue raised by Plaintiff is whether the ALJ provided clear and convincing 22 reasons for rejecting Plaintiff’s subjective symptom testimony concerning the intensity, 23 persistence, and limiting effects of her symptoms. ECF No. 15 at 2. Plaintiff argues that 24 the ALJ erred by failing to provide the requisite clear and convincing reasons for rejecting 25 Plaintiff’s less-than-sedentary symptomology testimony and allegations of disabling pain 26 and fatigue due to SLE and fibromyalgia. ECF No. 15 at 2. Defendant contends that the 27 ALJ correctly “found [] that the objective medical and other evidence was not consistent 28 with Plaintiff’s allegations of disabling symptoms and limitations.” ECF No. 18 at 5. For 1 the reasons discussed below, the Court finds that the ALJ’s assessment of Plaintiff’s 2 testimony was not supported by clear and convincing evidence. 3 A. Legal Standards Regarding Subjective Testimony 4 The ALJ is solely responsible for “determin[ing] credibility, resolv[ing] conflicts in 5 the testimony, and resolv[ing] ambiguities in the record.” Treichler v. Comm’r of Soc. Sec. 6 Admin., 775 F.3d 1090, 1098 (9th Cir. 2014) (quoting Andrews v. Shalala, 53 F.3d 1035, 7 1039 (9th Cir. 1995)); see Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006) 8 (“questions of credibility and resolutions of conflicts in the testimony are functions solely 9 of the Secretary”). Determining whether a claimant’s subjective symptom testimony is 10 credible involves a two-step analysis. Lingenfelter, 504 F.3d. at 1035–36. “First, the ALJ 11 must determine whether the claimant has presented objective medical evidence of an 12 underlying impairment which could reasonably be expected to produce the pain or other 13 symptoms alleged.” Ferguson v. O’Malley, 95 F.4th 1194, 1199 (9th Cir. 2024) (quoting 14 Garrison, 759 F.3d at 1014). As part of this analysis, “the claimant is not required to show 15 that her impairment could reasonably be expected to cause the severity of the symptom she 16 has alleged; she need only show that it could reasonably have caused some degree of the 17 symptom.” Garrison, 759 F.3d at 1014 (citation and internal quotations omitted). “Nor 18 must a claimant produce objective medical evidence of the [symptom] itself, or the severity 19 thereof.” Id. (citation and internal quotations omitted). “If the claimant satisfies the first 20 step of this analysis, and there is no evidence of malingering, the ALJ can reject the 21 claimant’s testimony about the severity of her symptoms only by offering specific, clear 22 and convincing reasons for doing so.” Id. at 1014–15 (citation omitted). 23 “The clear and convincing standard is the most demanding required in Social 24 Security cases.” Id. at 1015 (citation omitted). The ALJ’s findings “must be sufficiently 25 specific to allow a reviewing court to conclude the adjudicator rejected the claimant’s 26 testimony on permissible grounds and did not arbitrarily discredit a claimant’s testimony.” 27 Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (quoting Bunnell v. Sullivan, 28 947 F.2d 341, 345–46 (9th Cir. 1991) (en banc)). “The standard isn’t whether our court is 1 convinced, but instead whether the ALJ’s rationale is clear enough that it has the power to 2 convince.” Smartt v. Kijakazi, 53 F.4th 489, 499 (9th Cir. 2022). “Contradiction with the 3 medical record is a sufficient basis for rejecting the claimant’s subjective testimony.” Id. 4 (citation omitted). “Ultimately, the ‘clear and convincing’ standard requires an ALJ to 5 show his work.” Id.; see also Lambert, 980 F.3d at 1277–78 (the ALJ must “identify what 6 parts of the claimant’s testimony were not credible and why”). 7 “If the ALJ fails to provide specific, clear, and convincing reasons for discounting 8 the claimant’s subjective symptom testimony, then the ALJ’s determination is not 9 supported by substantial evidence.” Ferguson, 95 F.4th at 1199 (citation omitted). But 10 where the ALJ’s credibility determination is adequately supported, this Court “may not 11 engage in second-guessing.” Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). 12 “[T]he credibility determination is exclusively the ALJ’s to make, and [the Court’s] only 13 to review.” Brown-Hunter, 806 F.3d at 494. 14 B. Evaluation of Plaintiff’s Subjective Testimony 15 The ALJ found that Plaintiff’s “medically determinable impairments could 16 reasonably be expected to cause [her] alleged symptoms” but that Plaintiff’s “statements 17 concerning the intensity, persistence and limiting effects of [her] symptoms are not entirely 18 consistent with the” record evidence. AR 169. Because there was no evidence or finding 19 of malingering, the ALJ was required to identify clear and convincing reasons for reaching 20 this conclusion. Ferguson, 95 F.4th at 1199; see generally AR 167–69. The Court now 21 turns to evaluating the testimony at issue and the ALJ’s findings. 22 1. Conservative Treatment and Compliance with Treatment 23 The ALJ articulates two related reasons for finding Plaintiff’s subjective symptom 24 testimony not entirely consistent with the record. 25 First, the ALJ states that “the claimant has not generally received the type of medical 26 treatment one would expect for a totally disabled individual.” AR 169. He indicates that 27 “treatment for the claimant’s lupus, hypothyroidism, fibromyalgia, and migraines have 28 been essentially routine and conservative in nature” and the “lack of more aggressive 1 treatment, such as surgical intervention, suggests that the claimant’s symptoms and 2 limitations were not as severe as alleged.” Id. While a lack of more aggressive treatment 3 may be a reason to discredit a claimant’s subjective testimony, “a claimant cannot be 4 discredited for failing to pursue non-conservative treatment options where none exist.” 5 Lapeirre-Gutt v. Astrue, 382 F. App’x 662, 664 (9th Cir. 2010); see Social Security Ruling 6 (“SSR”) 16-3p, 2016 SSR LEXIS 4, at *23 (Mar. 16, 2026) (ALJ may not find testimony 7 inconsistent on basis of insufficiently aggressive treatment without considering possible 8 reasons more aggressive treatment was not available to claimant). Here, the ALJ offers no 9 evidence or explanation demonstrating that more aggressive treatment was recommended 10 or even available to Plaintiff and she declined it. AR 169. The ALJ mentions “surgical 11 intervention” as one alternative treatment, but points to no record evidence that surgery 12 was a viable treatment option for Plaintiff or, more importantly, that anyone offered 13 Plaintiff surgical invention and she elected to forego surgery. Id. In the absence of any 14 evidence that Plaintiff refused more aggressive treatment, it is not evident that Plaintiff’s 15 course of treatment was, in fact, “conservative” or even routine. See Lapeirre-Gutt, 382 F. 16 App’x at 664. 17 Second, the ALJ concludes that Plaintiff “was encouraged to make lifestyle 18 modifications and participate in home exercises” but “the record shows very [few] if any 19 of those recommendations were attempted by the claimant.” AR 169. In support of this 20 conclusion, the ALJ refers to Plaintiff’s check-ups with Dr. Chitkara’s clinic on January 21 11, 2022 and May 2, 2022, respectively. AR 687, 692. At the first check-up, the healthcare 22 provider “reviewed lifestyle modification and relaxation techniques” with Plaintiff. AR 23 687. At the second check-up, the healthcare provider “encouraged” Plaintiff to make 24 “lifestyle modifications” and perform “home exercises.” AR 692. However, the records for 25 both visits show only that Plaintiff’s healthcare providers discussed lifestyle modifications 26 with Plaintiff; neither indicate Plaintiff failed to comply with the recommendations from 27 each visit or that she failed to perform home exercises following the second visit. See AR 28 687, 692. 1 Moreover, the ALJ had a duty to consider possible reasons for Plaintiff’s purported 2 failure to “attempt” lifestyle modifications and failed to do so. See Romero v. O’Malley, 3 No. 23-55292, 2024 U.S. App. LEXIS 30305, at *3 (9th Cir. Nov. 29, 2024); see also Orn 4 v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007); SSR 16-3p, 2016 SSR LEXIS 4, at *23 (Mar. 5 16, 2016) (The ALJ “will not find an individual’s symptoms inconsistent with the evidence 6 in the record on this basis without considering possible reasons why he or she may 7 not comply with treatment.”). Though not exhaustive, some possible reasons apparent from 8 Plaintiff’s testimony include pain that limits her physical activity and the impact of her 9 depression, which limits her ability to self-manage and self-motivate. AR 193, 197–98. 10 The Court draws no conclusion as to whether these reasons sufficiently explain any failure 11 to comply with treatment recommendations. But, in the absence of the ALJ’s discussion of 12 these or other reasons for Plaintiff’s supposed non-compliance, the Court cannot be sure 13 that the ALJ considered them. 14 In short, the Court finds that neither of the two reasons referenced by the ALJ for 15 rejecting Plaintiff’s testimony constitute specific, clear, and convincing reasons. As such, 16 the ALJ’s conclusion is not supported by substantial evidence. See Ferguson, 95 F.4th at 17 1199. 18 2. ALJ’s Discussion of Plaintiff’s Fibromyalgia and Lupus 19 Plaintiff suggests that the ALJ further erred in his assessment of Plaintiff’s subjective 20 symptom testimony relating to fibromyalgia and lupus. ECF No. 15 at 4–7. While 21 Plaintiff’s contentions on this point are not entirely clear, Plaintiff appears to argue that the 22 ALJ should have considered the “unique nature” of fibromyalgia and lupus and given 23 stronger weight to Plaintiff’s subjective claims of disabling limitations. Id. at 6–7. The 24 Court notes that an ALJ should give special consideration to a claimant’s testimony in the 25 context of fibromyalgia. See Benecke v. Barnhart, 379 F.3d 587, 590 (9th Cir. 2004) 26 (noting that fibromyalgia is “diagnosed entirely on the basis of patients’ reports of pain and 27 28 1 other symptoms”); Revels v. Berryhill, 874 F.3d 648, 656, 666 (9th Cir. 2017). But, here, 2 the ALJ did consider Plaintiff’s subjective complaints regarding fibromyalgia and SLE in 3 assessing her functional limitations. 4 The ALJ discusses Plaintiff’s testimony that SLE and fibromyalgia, among other 5 symptoms, caused “widespread pain all over her body every day,” which limited her ability 6 to work and sleep. AR 167–68. The ALJ further noted her allegations of fatigue, sensitivity 7 to touch, pain in the lower back, and various neurological symptoms also related to these 8 conditions. AR 167. In discussing the objective medical evidence, the ALJ noted both 9 positive and negative findings, as Plaintiff admits, and did incorporate Plaintiff’s subjective 10 testimony relating to both SLE and fibromyalgia. AR 168–69; see ECF No. 15 at 6. In 11 assessing Plaintiff’s limitations due to SLE, the ALJ also compared objective medical 12 evidence and Plaintiff’s testimony and referenced multiple records showing, in relevant 13 part, normal range of motion in various areas, normal motor strength, and normal physical 14 examinations. AR 168. In the context of fibromyalgia, the ALJ compared Plaintiff’s 15 testimony regarding symptoms of joint pain, muscle pain, and fatigue with objective 16 medical evidence regarding Plaintiff’s actual range of motion in her joints.4 AR 169. Even 17 in the context of fibromyalgia, objective medical evidence can still be used to, for example, 18 “demonstrate a lack of functional limitations during clinical examination in considering 19 20 21 3 Plaintiff cites authority showing that some courts in this Circuit treat lupus similarly to the Ninth Circuit’s treatment of fibromyalgia. See ECF No. 15 at 6–7 (citing, e.g., 22 Garcia v. Colvin, No. CV 14-02528-GW (KS), 2015 U.S. Dist. LEXIS 159590, at *26 23 (C.D. Cal. Nov. 25, 2015)). 4 Plaintiff objects to the ALJ’s citation to a physical examination in which Dr. Chitkara 24 noted that her examination showed “full range of motion” for all joints and “no synovitis 25 . . . except MCP synovial thickening.” ECF No. 15 at 5; see AR 696 (examination). The ALJ references the finding of “no synovitis” but makes no reference to the finding of 26 “MCP synovial thickening.” AR 169. Plaintiff, relying on a medical source outside the 27 record, explains that MCP synovial thickening is “a common radiographic feature of synovitis.” ECF No. 15 at 5. The Court is not prepared to entertain arguments based on 28 1 credibility,” as the ALJ did here. See Melendez v. Astrue, No. CV 10-01930-JEM, 2011 2 U.S. Dist. LEXIS 146809, at *16 (C.D. Cal. Dec. 20, 2011). 3 In sum, the Court is satisfied that the ALJ properly weighed and considered 4 Plaintiff’s subjective symptom testimony in considering the limitations caused by 5 fibromyalgia and SLE. See AR 167–69. While the ALJ failed to provide clear and 6 convincing reasons in support of other conclusions, as described in the prior section, the 7 Court finds no error with the ALJ’s discussion of the objective medical evidence and 8 testimony related to these diagnoses. See Ferguson, 95 F.4th at 1199. 9 3. Commissioner’s Additional Arguments 10 The Commissioner argues that substantial evidence supports the ALJ’s decision to 11 reject Plaintiff’s testimony as not entirely consistent with the medical evidence. See ECF 12 No. 18 at 6–9. Specifically, the Commissioner suggests that the ALJ reached his conclusion 13 based on the following: (i) an assessment of the “objective medical findings,” 14 (ii) “inconsistencies between Plaintiff’s alleged limitations and statements she made to 15 [healthcare] providers,” and (iii) “conflicts between Plaintiff’s statements and those of the 16 medical sources.” Id. at 6, 8–9. In support of his contentions, the Commissioner does not 17 point to any statements in the ALJ’s decision, see id. at 6–9, and instead argues that these 18 factors are within the “logical framework” of the ALJ’s review of the record. Id. at 10. 19 According to the Commissioner, while “the ALJ is required to ‘discuss and evaluate 20 evidence that supports [] his conclusion,’” the ALJ “need not do so under a specific 21 heading.” Id. (quoting Kennedy v. Colvin, 738 F.3d 1172, 1178 (9th Cir. 2013)). 22 However, the issue is not the ALJ’s organization of the evidence but his failure to 23 link specific evidence to his rejection of Plaintiff’s testimony. See Lewis v. Apfel, 236 F.3d 24 503, 513 (9th Cir. 2001) (ALJ must discuss and evaluate evidence that supports his 25 conclusion even though he need not do so under particular heading); Smartt, 53 F.4th at 26 499 (ALJ must “show his work” in identifying specific, clear, and convincing reasons for 27 finding). The Commissioner’s post-hoc rationalization improperly attempts to craft clear 28 and convincing reasons for rejecting Plaintiff’s statements based on the ALJ’s summary of 1 medical evidence. See Brown-Hunter, 806 F.3d at 494; ECF No. 18 at 6–9. This is clear 2 because the Commissioner cites the administrative record, not the ALJ’s decision, in 3 support of these arguments. ECF No. 18 at 6–9. Further, the Court’s review of the ALJ’s 4 decision shows no indication that he relied on the evidence cited by the Commissioner in 5 assessing Plaintiff’s testimony. See AR 167–71. 6 This Court is “constrained to review the reasons the ALJ asserts,” Brown-Hunter, 7 806 F.3d at 494 (emphasis removed), and “may not affirm the ALJ on a ground upon which 8 he did not rely.” Orn, 495 F.3d at 630. Accordingly, the Commissioner’s arguments, 9 however persuasive, cannot provide the clear and convincing reasons necessary to support 10 the ALJ’s conclusions. 11 C. Harmless Error 12 The ALJ’s failure to provide specific, clear, and convincing reasons for rejecting 13 Plaintiff’s testimony based on his conclusions that Plaintiff’s treatment was conservative 14 and not aggressive, or that she failed to attempt or comply with treatment 15 recommendations, is not harmless. A failure to provide clear and convincing reasons for 16 rejecting claimant testimony is “usually not [] harmless” because the reviewing court 17 cannot review other unexplained reasons for the assessment without improperly 18 “substituting [its] conclusions for the ALJ’s or speculating as to the grounds for the ALJ's 19 conclusions.” Brown-Hunter, 806 F.3d at 492 (internal punctuation and citation omitted). 20 To affirm in this case would require the Court to improperly assess Plaintiff’s credibility. 21 See id. at 494. Because the Court may not do so, the ALJ’s error was not harmless and 22 requires remand. 23 D. Remedy 24 As a remedy, Plaintiff requests that the Court remand for an award of benefits or, 25 alternatively, for a new hearing. ECF No. 15 at 17. Because questions remain regarding the 26 Plaintiff’s credibility, the Court finds that further administrative proceedings are necessary. 27 See Treichler, 775 F.3d at 1105–06 (finding that appropriate remedy is remand for further 28 proceedings where questions exist concerning inconsistencies between the record and a 1 |}claimant’s testimony). Accordingly, the appropriate remedy is to remand for further 2 || administrative proceedings to evaluate the credibility of Plaintiff's testimony. 3 CONCLUSION 4 For the foregoing reasons, the Court. RECOMMENDS the Commissioner’s final 5 ||decision be VACATED and REMANDED to the Social Security Administration for 6 || further proceedings consistent with this Report and Recommendation. 7 IT IS HEREBY ORDERED that any written objection to this Report and 8 Recommendation must be filed and served on all parties by no later than August 14, 2026. 9 || The pleading should be captioned “Objections to Report and Recommendation.” 10 IT IS FURTHER ORDERED that any reply to the objections shall be filed with 11 Court and served on all parties by no later than August 28, 2026. The parties are advised 12 || that failure to file objections within the specified time may waive the right to raise those 13 || objections on appeal. See Martinez v. Yist, 951 F.2d 1153, 1156 (9th Cir. 1991). 14 IT IS SO ORDERED. 15 Dated: July 31, 2026 (Wrechy— 16 Honorable Valerie E. Torres 7 United States Magistrate Judge 18 19 20 21 22 23 24 25 26 27 28 13