Sampedro v. Kijakazi

• Court: District Court, S.D. California
• Decided: February 15, 2023
• Docket: 3:21-cv-01043
• Status: Unknown

Opinion

2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SLOANE S.,1 Case No.: 21cv1043-MMA(MSB)

12 Plaintiff, REPORT AND RECOMMENDATION 13 v. REGARDING JOINT MOTION FOR JUDICIAL REVIEW [ECF NO. 16] 14 KILOLO KIJAKAZI, Acting Commissioner of Social Security,2 15 Defendant. 16 17 18 This Report and Recommendation is submitted to the Honorable Michael M. 19 Anello, United States District Judge, pursuant to 28 U.S.C. § 636(b)(1) and Civil Local 20 Rule 72.1(c) of the United States District Court for the Southern District of California. On 21 June 1, 2021, Plaintiff Sloane S. filed a Complaint pursuant to 42 U.S.C. § 405(g) and 42 22 U.S.C. § 1383(c)(3) seeking judicial review of a decision by the Commissioner of Social 23 Security (“Commissioner”) denying her application for a period of disability and 24 disability insurance benefits. (See Compl., ECF No. 1.) 25 26 1 Under Civil Local Rule 7.1(e)(6)(b), “[o]pinions by the court in [Social Security cases under 42 U.S.C. § 27 405(g)] will refer to any non-government parties by using only their first name and last initial.” 2 the Final Decision of the Commissioner of Social Security” (“Joint Motion”). (See ECF 3 No. 16 (“J. Mot.”).) For the reasons set forth below, the Court RECOMMENDS that the 4 Commissioner’s decision be REVERSED and this matter be REMANDED for further 5 administrative proceedings consistent with this Report and Recommendation. 6 I. PROCEDURAL BACKGROUND 7 On July 24, 2018, Plaintiff filed an application for a period of disability and 8 disability insurance benefits under Title II of the Social Security Act, alleging disability 9 beginning on the same date. (See Certified Admin. R., ECF No. 8 (“AR”) at 220–21.) Her 10 application was denied initially on October 11, 2018, and upon reconsideration on 11 March 18, 2019. (AR 96–99, 102–06). On May 28, 2019, Plaintiff requested a hearing 12 before an administrative law judge (“ALJ”). (AR 108–09.) 13 On July 28, 2020, ALJ James Delphey held a telephonic administrative hearing, 14 during which Plaintiff was represented by counsel. (AR 37–71.) Both Plaintiff and an 15 impartial vocational expert testified. (Id.) In a written decision dated September 28, 16 2020, the ALJ denied Plaintiff’s application, concluding that Plaintiff had not been under 17 a disability from July 24, 2018, through the date of the decision. (AR 18–36.) 18 On December 1, 2020, Plaintiff requested that the Appeals Council review the 19 ALJ’s decision. (AR 218–19.) The Appeals Council denied the request for review on May 20 5, 2021, resulting in the ALJ’s decision becoming the final decision of the Commissioner. 21 (AR 1–6); see also 42 U.S.C. § 405(g). On June 1, 2021, Plaintiff timely filed the instant 22 civil action. (ECF No. 1.) Pursuant to the Court’s briefing schedule, the parties timely 23 filed their Joint Motion for Judicial Review on September 23, 2022. (ECF No. 16.) 24 II. SUMMARY OF THE ALJ’S FINDINGS 25 In rendering his decision, the ALJ followed the Commissioner’s five-step 26 sequential evaluation process. See 20 C.F.R. § 404.1520. At step one, the ALJ found

27 Plaintiff had not engaged in substantial gainful activity since July 24, 2018, the alleged 2 bilateral shoulder pain (greater right than left), status post remote shoulder arthroscopy with rotator cuff repair; incipient spondylosis and degenerative 3 disc disease of the cervical spine; and generalized pain syndrome. (Id.) 4 Notably, the ALJ found that Plaintiff’s alleged fibromyalgia was not a severe impairment 5 and that Plaintiff “has not shown that her other above-noted severe impairments, 6 particularly chronic pain syndrome and degenerative disc disease, do not in themselves 7 cause her reported pain and other symptoms.” (AR 24.) Furthermore, the ALJ 8 determined Plaintiff’s “adjustment disorder with mixed depression and anxiety” was a 9 non-severe mental impairment because it did not significantly limit Plaintiff’s ability to 10 perform basic mental work activities. (Id.) 11 At step three, the ALJ found Plaintiff did not have an impairment or combination 12 of impairments that met or medically equaled the severity of one of the impairments 13 listed in the Commissioner’s Listing of Impairments. (AR 25.) The ALJ considered the 14 following listed impairments: 1.02 major dysfunction of a joint; 1.03 reconstructive 15 surgery or surgical arthrodesis of a major weight-bearing joint; and 1.04 disorders of the 16 spine. (Id.) Based on his evaluation of the medical and opinion evidence in the record, 17 the ALJ determined Plaintiff had the residual functional capacity (“RFC”) to perform light 18 work, subject to the following limitations: 19 [She can] perform light work as defined in 20 CFR 404.1567(b), except she is 20 further limited to: occasional over the shoulder reaching bilaterally; 21 frequent other direction reaching bilaterally; occasional pushing and pulling bilaterally; occasional climbing ramps or stairs; no climbing ladders, ropes 22 or scaffolding; occasional balancing, stooping, kneeling, crouching or 23 crawling; crawling; and no work at unprotected heights or adjacent to dangerous moving machinery. 24 (Id.) The ALJ found that Plaintiff’s medically determinable impairments could 25 reasonably be expected to cause the alleged symptoms; however, he noted 26 “inconsistency between subjective complaints of pain and limitations . . . and the 27 objective medical evidence and examination findings.” (AR 29.) The ALJ concluded a 2 At step four, the ALJ found that Plaintiff could perform her past relevant work as a 3 Secretary, Receptionist, and Cocktail Waitress. (AR 29.) Although Plaintiff performed 4 the first two jobs as composite jobs, the vocational expert (“VE”) testified that a 5 hypothetical individual with Plaintiff’s vocational experience could perform both as 6 freestanding jobs. (Id.) Finally, the ALJ proceeded to step five of the sequential 7 evaluation process. The ALJ noted the VE’s testimony that a hypothetical person with 8 Plaintiff’s vocational profile and RFC could perform the requirements of other 9 occupations that exist in significant numbers in the national economy, such as 10 Housekeeping Cleaner and Assembler. (AR 31.) These occupations require the ability to 11 perform light work. (Id.) Based on the foregoing, the ALJ concluded Plaintiff had not 12 been under a disability as defined by the Social Security Act from July 24, 2018, through 13 the date of the decision. (Id.) 14 III. DISPUTED ISSUES 15 The parties have briefed two issues in their Joint Motion, which Plaintiff asserts 16 are grounds for reversal: 17 1. Whether the ALJ considered all of Plaintiff’s impairments. (J. Mot. at 4–14.) 18 2. Whether the ALJ properly considered Plaintiff’s subjective symptom 19 testimony. (J. Mot. at 14–24.) 20 IV. STANDARD OF REVIEW 21 Section 405(g) of the Social Security Act allows unsuccessful applicants to seek 22 judicial review of the Commissioner’s final decision. See 42 U.S.C. § 405(g). The scope 23 of judicial review is limited, and the denial of benefits will only be disturbed if it is not 24 supported by substantial evidence or contains a legal error. Luther v. Berryhill, 891 F.3d 25 872, 875 (9th Cir. 2018). “Substantial evidence” is a “‘term of art used throughout 26 administrative law to describe how courts are to review agency factfinding.’” Biestek v.

27 Berryhill, 139 S. Ct. 1148, 1154 (2019) (quoting T-Mobile South, LLC v. Roswell, 574 U.S. 2 adequate to support a conclusion.” Id. (quoting Consol. Edison Co. v. NLRB, 305 U.S. 3 197, 229 (1938)). The Ninth Circuit explains that substantial evidence is “more than a 4 mere scintilla but less than a preponderance.” Revels v. Berryhill, 874 F.3d 648, 654 (9th 5 Cir. 2017) (quoting Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 573, 576 (9th 6 Cir. 1988). 7 Where the evidence is susceptible to more than one rational interpretation, the 8 ALJ’s decision must be upheld. See Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 9 2008). This includes deferring to the ALJ’s credibility determinations and resolutions of 10 evidentiary conflicts. See Lewis v. Apfel, 236 F.3d 503, 509 (9th Cir. 2001). Even if the 11 reviewing court finds that substantial evidence supports the ALJ’s conclusions, the court 12 must set aside the decision if the ALJ failed to apply the proper legal standards in 13 weighing the evidence and reaching his or her decision. See Batson v. Comm’r Soc. Sec. 14 Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). The reviewing court may enter a 15 “judgment affirming, modifying, or reversing” the Commissioner’s decision. 42 U.S.C. § 16 405(g). The reviewing court may also remand the case to the Social Security 17 Administration for further proceedings. Id. However, the reviewing court “may not 18 reverse an ALJ’s decision on account of an error that was harmless.” Molina v. Astrue, 19 674 F.3d 1104, 1111 (9th Cir. 2012). 20 V. DISCUSSION 21 A. Whether the ALJ Considered All of Plaintiff’s Impairments 22 1. Summary of the parties’ arguments 23 Plaintiff argues the ALJ erred by not considering her “cubital tunnel syndrome” 24 when determining her RFC, thereby violating 20 C.F.R. § 404.1545(e). (J. Mot. at 4–7.) 25 Plaintiff contends the ALJ must consider all medically determinable impairments, 26 including non-severe impairments, in the RFC assessment. (Id. at 5.) However, the ALJ

27 did not mention or consider Plaintiff’s cubital tunnel syndrome and associated 2 impairments.” (Id. at 6.) Plaintiff contends the medical evidence plainly establishes 3 limitations in her hands and fingers. First, Dr. Ansari observed Plaintiff has “lancinating 4 pain into her right fourth and fifth fingers. Both hands are very painful much of the 5 time.” (J. Mot. at 6; AR 351.) Second, Dr. Jeswani noted that Plaintiff’s pain “radiates 6 down the medial aspect of her arm and into the medial aspect of her forearm into the 7 fourth and fifth digits of her right hand.” (J. Mot. at 7; AR 452.) Thus, Plaintiff argues 8 she is unable to perform the Secretary, Receptionist, and Cocktail Waitress jobs, which 9 each require the use of hands. (J. Mot. at 7.) 10 In response, the Commissioner contends that the ALJ “properly assessed 11 Plaintiff’s severe medically determinable conditions” and found Plaintiff had the RFC to 12 perform light work with certain limitations. (Id. at 7–12.) Although Plaintiff complained 13 of generalized hand pain, the Commissioner said she “never alleged disability due to 14 cubital tunnel syndrome.” (Id. at 8.) Further, the Commissioner argues two records that 15 Plaintiff points to regarding her cubital tunnel syndrome do not indicate any 16 manipulative limitations and pre-date her alleged disability onset date of July 24, 2018. 17 (J. Mot. at 8–9; AR 354, 451.) The Commissioner says the only record dealing with the 18 relevant disability period—a February 5, 2020, questionnaire filled out by Dr. Ansari— 19 was a “check-the-box form” the ALJ properly found was “not persuasive” under the 20 agency’s revised regulations. (J. Mot. at 9–11; AR 542–45.) The ALJ reasoned that Dr. 21 Ansari’s opinion was not supported by the record and noted the following: (1) while 22 Plaintiff complained of pain, medication helped her symptoms; (2) Plaintiff had normal 23 motor strength in her bilateral upper extremities; and (3) Plaintiff walked her dog for up 24 to two miles a day. (J. Mot. at 11–12.) Thus, the Commissioner argues the ALJ properly 25 precluded cubital tunnel syndrome from the medically determinable severe 26 impairments and RFC. (Id. at 12.)

27 In reply, Plaintiff argues the Commissioner improperly attempts to make a “post 2 reiterates that cubital tunnel syndrome affects the hands and fingers; therefore, the ALJ 3 should have considered records mentioning pain in these areas. (Id. at 13.) Although 4 Plaintiff concedes that some records precede the disability onset date, she says the 5 agency must consider an individual’s “complete medical history,” meaning medical 6 records “covering at least the 12 months preceding the month in which you file your 7 application.” (Id. (citing 20 C.F.R. § 404.1512 (b)(2).) Further, Plaintiff asserts that 8 several medical records continue to note pain in her hands and fingers after her onset 9 date. (Id.) For example, Dr. Sabourin reported Plaintiff’s pain is “excruciating 10 intermittently in her hands and feet” and Plaintiff’s initial Disability Report stated her 11 ability to work was affected by “severe hand and foot pain elbow.” (J. Mot. at 13; AR 12 426, 264). In conclusion, because the record clearly reflects Plaintiff experiences pain in 13 her hands and fingers, she argues the ALJ was required to address these limitations in 14 the RFC analysis. (J. Mot. at 14.) 15 2. Applicable law 16 At step two, the ALJ determines whether a claimant has a severe impairment or 17 combination of impairments that is severe. See 20 C.F.R. § 404.1520(a)(4)(ii). The step 18 two analysis is meant to be a threshold determination to “screen out weak claims.” 19 Buck v. Berryhill, 869 F.3d 1040, 1048 (9th Cir. 2017) (citing Bowen v. Yuckert, 482 U.S. 20 137, 146–47 (1987)). It is not meant to determine which impairments should be 21 considered when assessing a claimant’s RFC, or how the ALJ should evaluate the 22 impairments. Id. at 1048–49. An ALJ’s failure to consider an impairment as severe in 23 step two is typically not prejudicial, so long as the ALJ considers all limitations in the RFC 24 analysis. See, e.g., Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007) (holding that the 25 ALJ’s failure to discuss Plaintiff’s bursitis at step two was harmless because he 26 “extensively discussed” it at step four).

27 RFC, or residual functional capacity, is a claimant’s ability to do work-related 2 maximum amount of work a claimant can perform based on all relevant evidence. (Id.) 3 In making this finding, the ALJ must consider all of the claimant’s impairments, including 4 those that are non-severe. See 20 C.F.R. § 404.1520(e); see also Buck, 869 F.3d at 1048– 5 49 (quoting SSR 96-8P, 1996 WL 374184, at *5). “The RFC therefore should be exactly 6 the same regardless of whether certain impairments are considered ‘severe’ or not.” 7 Buck, 869 F.3d at 1048. Additionally, the agency must consider the claimant’s testimony 8 regarding their capabilities and consider all relevant evidence, including medical 9 records, lay evidence, and pain. See Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th 10 Cir. 2006); SSR 96-8P, 1996 WL 374184, at *5. The Ninth Circuit has generally held that 11 “an RFC that fails to take into account a claimant’s limitations is defective.” Valentine v. 12 Comm’r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009); Samples v. Comm’r Soc. Sec. 13 Admin, 466 Fed. App’x 584, 586 (9th Cir. 2012). 14 Plaintiff applied for disability benefits after March 27, 2017. (AR 220.) Therefore, 15 the Social Security Administration’s revised regulations for considering medical opinions 16 and prior administrative medical findings apply. See 20 C.F.R. § 404.1520c (2017). 17 Under the revised regulations, the ALJ must evaluate the persuasiveness of any medical 18 opinions and articulate his or her assessment as to each. Id. In evaluating 19 persuasiveness, the ALJ must consider the medical opinion’s supportability and 20 consistency. See 20 C.F.R. § 404.1520c(b)(2). The ALJ may also consider the relationship 21 between the source and the claimant, the source’s specialization, and “other factors 22 that tend to support or contradict a medical opinion or prior administrative medical 23 finding.” See 20 C.F.R. § 404.1520c(1)–(5). Under the revised regulations, “an ALJ's 24 decision, including the decision to discredit any medical opinion, must simply be 25 supported by substantial evidence.” Woods v. Kijakazi, 32 F. 4th 785, 787 (9th Cir. 26 2022); see also Julie R.M. v. Kijakazi, No. 20cv1608-GPC-MDD, 2021 WL 4993034, at *3

27 (S.D. Cal. Oct. 26, 2021). 2 a. Dr. Ansari 3 Plaintiff contends three doctors substantiate her cubital tunnel syndrome and 4 vocationally-relevant limitations in her hands and fingers. (J. Mot. at 4–7, 12–14.) On 5 November 6, 2017, Dr. Rashad Ansari noted that Plaintiff experiences “pain down her 6 right arm with lancinating pain into her right fourth and fifth fingers. Both hands are 7 very painful much of the time.” (AR 351.) Upon physical examination, Dr. Ansari found 8 that “[a]ny pressure over the medial epicondylar area causes patient to withdraw with 9 lancinating pains into her right fourth and fifth fingers.” (AR 353). Accordingly, Dr. 10 Ansari said Plaintiff “appears to have a significant right cubital tunnel syndrome.” (AR 11 354.) In a subsequent visit on November 17, 2017, Dr. Ansari recorded Plaintiff has 12 “difficulty with weakness in her hands.” (AR 355.) Additionally on February 5, 2020, Dr. 13 Ansari observed that Plaintiff has “significant limitations” with reaching, handling, and 14 fingering; he found she had the ability to grasp, turn, and twist objects twenty percent 15 of an eight-hour workday and perform fine manipulations with fingers twenty percent 16 of an eight-hour workday. (AR 545.) 17 In his written decision, the ALJ noted that Dr. Ansari assessed a “less than 18 sedentary exertional level” with certain limitations. (AR 28.) However, the ALJ found 19 Dr. Ansari’s opinion was “not persuasive and not supported by and consistent with the 20 record,” citing Plaintiff’s daily activities and other evidence showing “normal and mild 21 findings.” (Id.) Although Plaintiff complained of pain, the ALJ noted that medication 22 helped her pain symptoms. (Id.) Further, the ALJ stated that in November 2019 Plaintiff 23 “reported walking her dog for 2 miles a day” and “physical examinations showed normal 24 motor strength in the bilateral upper and lower extremities.” (Id.) The ALJ did not 25 discuss Dr. Ansari’s findings related to Plaintiff’s cubital tunnel syndrome or limitations 26 in her hands and fingers. (Id.)

27 / / / 2 On January 11, 2017, Dr. Sunil Jeswani noted that Plaintiff has significant right 3 arm pain that “seems to originate from the right aspect of her neck and shoulder and 4 then radiates down the medial aspect of her arm and into the medial aspect of her 5 forearm into the fourth and fifth digits of her right hand.” (AR 450). He evaluated the 6 following: “Phalen and Tinel’s signs are significantly positive in the right cubital tunnel.” 7 (AR 451.) In his written decision, the ALJ did not reference Dr. Jeswani by name, nor did 8 he discuss Dr. Jeswani’s determinations related to Plaintiff’s pain in her hands and 9 fingers. (AR 18–36.) The ALJ did not explain whether he found Dr. Jeswani’s opinion 10 persuasive or not. (Id.) However, he briefly mentioned the MRI and nerve conduction 11 studies that Dr. Jeswani reviewed, suggesting he may have looked at Dr. Jeswani’s 12 notes. (AR 26–28.) 13 c. Dr. Sabourin 14 On December 12, 2019, Dr. Thomas Sabourin performed an orthopedic 15 consultation and recorded pain in Plaintiff’s “neck, shoulders, wrists, hands, lower back, 16 and feet.” (AR 426.) He noted the pain originated in her shoulder or scapula, then 17 “started being excruciating intermittently in the hands and feet.” (Id.) Dr. Sabourin 18 diagnosed Plaintiff with “generalized pain syndrome, etiology undetermined” and “right 19 shoulder internal derangement, status post right shoulder arthroscopy.” (AR 430.) He 20 stated that while Plaintiff had significant tenderness, he could not find any “true 21 orthopedic problems.” (AR 431.) Accordingly, he assessed a medium exertional level, 22 finding Plaintiff could lift or carry fifty pounds occasionally and twenty-five pounds 23 frequently. (Id.) In his written decision, the ALJ found Dr. Sabourin’s opinion to be 24 “somewhat persuasive,” determining it was generally supported and consistent with the 25 record. (AR 28.) However, he found the Department of Developmental Services (“DDS”) 26 medical consultants’ opinions better addressed Plaintiff’s subjective complaints and

27 therefore were more persuasive. (Id.) The ALJ did not mention Dr. Sabourin’s 2 During the administrative hearing on July 28, 2020, Plaintiff testified that she 3 experiences “constant excruciating, debilitating pain” that emanates from her 4 shoulders. (AR 55.) She said the pain is most significant in her scapular area, but she 5 experiences “flareups in my hands, and my wrists, and my feet” that can range from two 6 days to one week. (AR 58.) Plaintiff testified her daily living has decreased since she 7 stopped working in July 2018. (AR 46.) For example, she said “I don’t take care of things 8 as much as I used to when I was at full capacity, so the house is dirty.” (Id.) Aside from 9 walking her dog once a day, Plaintiff said she is not involved in any activity groups or 10 hobbies. (AR 54.) When asked about returning to one of her previous jobs, Plaintiff 11 explained it would be impossible because of the excruciating pain she experiences. (AR 12 55.) She said her “quality of life is working at 2%.” (AR 56.) Further, Plaintiff stated that 13 after fifteen minutes of sitting in a regular, straight back chair, the pain becomes 14 “excruciating” and she needs to get up, move, and prop up her arm. (AR 58.) Plaintiff 15 testified that she used to exercise everyday but has not done so for years and can now 16 lift only five to ten pounds. (AR 59.) 17 5. Analysis 18 After reviewing the record and the parties’ arguments, the Court finds the ALJ 19 erred by not considering, or making clear that he considered, Plaintiff’s cubital tunnel 20 syndrome and associated limitations. At step two of the five-step process, the ALJ must 21 determine the medical severity of the individual’s impairments. See 20 C.F.R. § 22 404.1520(a)(4)(ii). Here, the ALJ concluded Plaintiff had several severe impairments 23 including bilateral shoulder pain, degenerative disc disease, and generalized pain 24 syndrome. (AR 23.) The ALJ also identified two non-severe impairments: fibromyalgia 25 and adjustment disorder with mixed depression and anxiety. (AR 24.) However, the ALJ 26 did not mention cubital tunnel syndrome or pain in Plaintiff’s hands and fingers. (Id. at

27 23–24.) Failing to discuss an impairment at step two is typically harmless if the ALJ 2 to mention obesity at step two was harmless because the ALJ addressed it at steps four 3 and five). Accordingly, the Court proceeds to the RFC analysis. 4 As argued by Plaintiff, the ALJ must consider both severe and non-severe 5 impairments when determining the RFC. See 20 C.F.R. § 404.1545(a)(2) (“We will 6 consider all of your medically determinable impairments of which we are aware, 7 including your medically determinable impairments that are not ‘severe’ . . . when 8 we assess your residual functional capacity.”) Here, the ALJ found Plaintiff had 9 the RFC to perform “light work,” with the following limitations: 10 occasional over the shoulder reaching bilaterally; frequent other direction reaching bilaterally; occasional pushing and pulling bilaterally; occasional 11 climbing ramps or stairs; no climbing ladders, ropes or scaffolding; 12 occasional balancing, stooping, kneeling, crouching or crawling; crawling; and no work at unprotected heights or adjacent to dangerous moving 13 machinery. (AR 25.) 14 In reaching this determination, the ALJ explained he considered “all symptoms and the 15 extent to which these symptoms can reasonably be accepted as consistent with the 16 objective medical evidence and other evidence,” as well as the medical opinions and 17 prior administrative medical findings. (Id.) He then described Plaintiff’s history of right 18 rotator cuff repair in 2014 and subsequent re-injury in 2015, before summarizing the 19 results of various medical examinations between 2016 and 2019. (AR 26–27.) The ALJ 20 emphasized that Plaintiff “lives independently, exercises, and is relatively active, taking 21 long walks and doing . . . various activities,” and asserted “[t]his range of activity is not 22 consistent with the subjective allegations of debilitating pain.” (AR 27.) Ultimately, the 23 ALJ found that a light work RFC was appropriate and supported by the opinions of DDS 24 consultants, Dr. Durr, and the medical evidence. (AR 29.) 25 Based on a review of the RFC analysis (AR 25–29), the Court concludes the ALJ did 26 not sufficiently address Plaintiff’s cubital tunnel syndrome and pain in her hands and 27 fingers when reaching his conclusion. The ALJ initially noted Plaintiff “reported she 2 hands to Dr. Sabourin. (AR 27.) Aside from these two instances, he did not engage in 3 any substantive discussion of Plaintiff’s cubital tunnel syndrome or limitations in her 4 hands and fingers. By contrast, the record reflects that at least three doctors noted 5 cubital tunnel issues and/or substantial pain in Plaintiff’s hands and fingers: (1) Dr. 6 Ansari noted “lancinating pain into her right fourth and fifth fingers” and said Plaintiff 7 had “significant right cubital tunnel syndrome” (AR 351, 354); (2) Dr. Jeswani recorded 8 pain radiating “into the fourth and fifth digits of her right hand” and observed “Phalen 9 and Tinel’s signs are significantly positive in the right cubital tunnel” (AR 450–51); and 10 (3) Dr. Sabourin wrote that Plaintiff’s pain is “excruciating intermittently in her hands 11 and feet.” (AR 426.) The ALJ provided no explanation for failing to incorporate the 12 above evidence. 13 While Defendant correctly points out that several of these records precede 14 Plaintiff’s disability onset date of July 24, 2018, descriptions of pain in Plaintiff’s hands 15 and fingers appear throughout the medical evidence and in notes dated after July 2018. 16 (See AR 264, 351, 353–54, 450–52, 545.) Additionally, the Social Security Administration 17 is required to consider the claimant’s “complete medical history,” including medical 18 records covering the twelve months preceding an application for disability benefits. See 19 20 C.F.R. § 404.1512 (b)(2).3 Plaintiff’s testimony also indicates pain in her hands. In her 20 initial application for disability benefits, Plaintiff said that “severe hand and foot pain” 21 affected her ability to work. (AR 264). Moreover, during the administrative hearing, 22 Plaintiff testified to “constant excruciating, debilitating pain” and “flareups in my hands, 23 and my wrists.” (AR 55, 58.) Here, the ALJ merely concluded Plaintiff’s complaints of 24 25 3 Dr. Ansari’s relevant examinations occurred on November 6, 2017 (260 days prior to onset) and November 17, 2017 (249 days prior to onset). (AR 351, 354.) Thus, they were both well within twelve 26 months of the relevant disability period. See 20 C.F.R. § 404.1512 (b)(2). Dr. Sabourin’s examination occurred on December 12, 2019, after the alleged onset date. (AR 426.) Only Dr. Jeswani’s 27 examination on January 11, 2017, occurred more than twelve months prior to the alleged onset date. 2 specific reasons why her general pain (and pain in her hands) should not be considered. 3 (AR 26.) The ALJ’s ambiguous allegation that Plaintiff’s testimony is “not consistent” 4 with the record is insufficient. See Treichler v. Comm’r Soc. Sec., 775 F.3d 1090, 1103 5 (9th Cir. 2014) (finding the use of boilerplate language falls short of the ALJ’s 6 responsibility to provide “a discussion of the evidence”). 7 Plaintiff’s cubital tunnel syndrome and associated limitations could significantly 8 impact her ability to perform sustained activities in a work setting and therefore are 9 relevant to the RFC determination. Indeed, using one’s hands seems to be an essential 10 component of the past relevant work at issue in this case—Secretary, Receptionist, and 11 Cocktail Waitress. Even if considered non-severe, Plaintiff’s cubital tunnel syndrome 12 and pain in her hands were well-documented. Thus, the ALJ was obligated to consider 13 these factors when making his RFC determination and provide “substantial evidence” 14 for any conclusions he reached. Buck, 869 F.3d at 1048–49 (holding the ALJ must 15 consider both severe and non-severe impairments in the RFC analysis); Woods, 32 F. 4th 16 at 787 (holding the ALJ’s conclusions must be supported by substantial evidence). 17 Nothing in the record, including the hypotheticals the ALJ posed to the VE (AR 64–70), 18 demonstrates he did so. The phrase “cubital tunnel syndrome” does not appear at all in 19 the ALJ’s written decision, and the ALJ mentions hand-pain only twice in passing. (AR 20 26–27.) Because an “RFC that fails to take into account a claimant’s limitations is 21 defective,” the Court concludes that the ALJ erred by failing to substantively consider 22 Plaintiff’s cubital tunnel syndrome. Valentine, 574 F.3d at 690; see also McCawley v. 23 Astrue, 423 Fed. App’x. 687, 689 (holding that RFC “may be the most critical finding 24 contributing to the final . . . decision about disability”). 25 B. Whether the ALJ Properly Considered Plaintiff’s Subjective Symptom Testimony 26 1. Summary of the parties’ arguments

27 Plaintiff next argues the ALJ erred by improperly evaluating her subjective 2 and a variety of opioid medications was “conservative.” (Id. at 14–17; AR 87, 367, 371, 3 401, 426, 450, 453, 464, 472.) She says that doctors were “at a loss” for how to treat 4 her persistent pain, and Dr. Ansari observed she “failed essentially all pharmacologic 5 and physical therapies.” (J. Mot. at 16; AR 373, 377, 410, 414, 566.) Moreover, Plaintiff 6 consulted with several surgical specialists but was never offered orthopedic surgery as a 7 viable option. (J. Mot. at 16–17; AR 401, 412, 475.) Plaintiff says she “has tried every 8 modality offered to her: physical therapy, pain medication, and injections,” to no avail. 9 (J. Mot. at 17.) 10 Second, Plaintiff argues the ALJ erred by using her daily activities to discredit her 11 complaints of debilitating pain. (Id. at 17–20.) She says that although she may be able 12 to complete tasks and activities of daily living (“ADLs”), she does so “while experiencing 13 severe pain.” (Id. at 18–19; AR 375, 416, 427, 489, 495.) Further, this pain specifically 14 affects a workday by preventing her from sitting for prolonged periods and interfering 15 with the concentration needed for “even simple work tasks.” (J. Mot. at 19; AR 416, 16 442, 543.) Plaintiff says when she is home, she can adjust her activities depending on if 17 she is having a “good” or “bad” pain day; however, the same is not possible in a work 18 environment. (J. Mot. at 19–20.) Accordingly, because the ALJ did not provide “specific, 19 clear, and convincing reasons” for dismissing her complaints of pain, Plaintiff argues the 20 ALJ committed a harmful error. (Id. at 24–25 (quoting Brown-Hunter v. Colvin, 806 F.3d 21 487, 488–89 (9th Cir. 2015)). 22 In response, the Commissioner argues the ALJ properly assessed Plaintiff’s 23 subjective symptom testimony and found inconsistencies with evidence in the record. 24 (Id. at 20–23.) For example, on the one hand Plaintiff testified to ongoing issues with 25 her shoulder, but on the other hand said she could “get by using Norco for her pain and 26 she could do her activities and exercise.” (Id. at 21; AR 26, 408.) Plaintiff also testified

27 that she lived by herself and independently handled her personal care, grocery 2 Plaintiff’s treatment—which consisted of predominantly pain management—was “fairly 3 conservative” compared to more aggressive treatments like orthopedic surgery. (J. Mot. 4 at 22; AR 27.) The Commissioner says the ALJ acknowledged Plaintiff’s pain, but merely 5 disputed its severity. (J. Mot. at 22.) Finally, the Commissioner states Plaintiff’s ability 6 to complete daily activities “simply suggest[s] that Plaintiff is capable of more than 7 alleged.” (J. Mot. at 23.) The Commissioner maintains that Plaintiff has failed to 8 demonstrate harmful, legal error regarding the ALJ’s evaluation of subjective testimony, 9 and thus the ALJ’s decision should be affirmed. (Id.) 10 2. Applicable law 11 When evaluating the credibility of a claimant’s allegations regarding subjective 12 symptoms such as pain, the ALJ must engage in a two-step analysis. See Johnson v. 13 Kijakazi, No. 19-17359, 2022 WL 1553259, at *1 (9th Cir. May 17, 2022); Vasquez v. 14 Astrue, 572 F.3d 586, 591 (9th Cir. 2009); Lingenfelter v. Astrue, 504 F.3d 1028, 1035–36 15 (9th Cir. 2007). First, the ALJ must determine whether there is objective medical 16 evidence of an underlying impairment that “could reasonably be expected to produce 17 the pain or other symptoms alleged.” Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 18 2017) (quoting Garrison v. Colvin, 759 F.3d 995, 1014–15 (9th Cir. 2014)). The claimant 19 is not required to show that an underlying impairment could reasonably be expected to 20 cause the severity of the pain alleged, but only that it could have reasonably caused 21 some degree of the pain. Vasquez, 572 F.3d at 591 (citing Lingenfelter, 504 F.3d at 22 1036). 23 Second, if the claimant meets the first step and there is no evidence of 24 malingering, then the ALJ may reject the claimant’s statements about the severity of his 25 symptoms “only by offering specific, clear and convincing reasons for doing so.” 26 Trevizo, 871 F.3d at 678 (quoting Garrison, 759 F.3d at 1014–15). “The clear and

27 convincing standard is the most demanding required in Social Security cases.” Revels v. 2 symptom statements are being discounted and what evidence undermines those claims. 3 See Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020) (citing Treichler, 775 F.3d at 4 1102; Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005). An ALJ’s failure to identify 5 specific statements and explain why they are not credible constitutes reversible error 6 because the reviewing court cannot determine if the ALJ’s decision was supported by 7 substantial evidence. See Brown-Hunter, 806 F.3d at 489; see also SSR 16-3p. 8 “[B]ecause symptoms, such as pain, are subjective and difficult to quantify,” the 9 ALJ considers “all of the evidence presented,” including information about the 10 claimant’s prior work record, statements about their symptoms, evidence submitted by 11 their medical sources, and observations by the Agency’s employees and other persons. 12 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3); SSR 16-3p. Factors the ALJ may consider, in 13 addition to objective medical evidence, include Plaintiff’s daily activities; the location, 14 duration, frequency, and intensity of their pain or other symptoms; precipitating and 15 aggravating factors; the type, dosage, effectiveness, and side effects of any medication 16 taken to alleviate pain; treatment; and any other measures used to relieve pain. See 20 17 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3); SSR 16-3p. The ALJ may also consider 18 inconsistencies between Plaintiff’s statements regarding pain and the medical evidence. 19 See 20 C.F.R. §§ 404.1529(c)(4), 416.929(c)(4); SSR 16-3p. 20 3. The ALJ’s findings 21 Before conducting the two-step credibility analysis of Plaintiff’s subjective 22 symptom testimony, the ALJ summarized Plaintiff’s pain in a single paragraph: 23 The claimant reported that she cannot work due to fibromyalgia, severe back, shoulder, hand, foot, and elbow pain, and severe headaches (Exhibit 24 2E). She reported pain despite physical therapy (Exhibit 4E). She reported 25 depression and anxiety. She testified to continued right shoulder and back pain, with limitations in lifting. 26 27 (AR at 26.) The ALJ then analyzed Plaintiff’s credibility in one generic sentence, 2 claimant’s medically determinable impairments could reasonably be expected to cause some of the alleged symptoms; however, the claimant’s 3 statements concerning the intensity, persistence and limiting effects of these symptoms were not entirely consistent with, or substantiated by, the 4 medical evidence and other evidence in the record for the reasons 5 explained in this decision. 6 (Id.); see Treichler, 775 F.3d at 1103 (discussing the ALJ’s statement that “the 7 claimant’s statements concerning the intensity, persistence, and limiting effects 8 of these symptoms are not credible to the extent they are inconsistent with the 9 above residual functional capacity assessment,” and noting that ALJs “routinely 10 include this [boilerplate] statement in their written findings as an introduction . . . 11 before [identifying] what parts of the claimant’s testimony were not credible and 12 why.”). 13 Next, the ALJ provided an approximately two-page summary of Plaintiff’s 14 medical history, from her right rotator cuff repair in 2014 to her current 15 condition. (AR at 26–27.) Finally, the ALJ discounted Plaintiff’s allegations of 16 widespread pain as follows: 17 As for the claimant’s statements about the intensity, persistence, and 18 limiting effects of her symptoms, the objective medical evidence generally does not support the alleged extent of loss of function. The claimant 19 reported chronic pain, with limitations to stand, walk, and lift (Exhibits 2E, 20 4E, Testimony). There is inconsistency between subjective complaints of pain and limitations, on one hand, and the objective medical evidence and 21 examination findings, on the other hand. Moreover, the claimant lives 22 independently, exercises, and is relatively active, taking long walks and doing the various activities as reported at Exhibits 7F/3 (independent in all 23 ADLs, drives, manages own money, watches television, listens to music, 24 cooks, washes dishes, cleans house, uses computer, exercises and walks dog), as amplified by 13F/14 (reports walking dog two miles daily). This 25 range of activity is not consistent with the subjective allegations of 26 debilitating pain. The undersigned finds that a reduced light exertional level and nonsevere mental findings (no B criteria greater than mild limits) are 27 well-supported considering the record as a whole. The claimant’s treatment 2 largely unremarkable (Exhibits 5F/18-19, 8F/7, 11F/9).

3 As noted above, the record in places indicates an additional diagnosis of fibromyalgia, which the undersigned finds does not satisfy the required 4 criteria of SSR 12-2p, as the claimant’s medical records do not support a 5 finding that she has widespread pain throughout all quadrants of the body or have 11 positive tender points on physical examination (Exhibit 6 16F). The undersigned finds other medical conditions, as discussed herein, 7 provide correlation to her reports of pain symptoms and findings showing tenderness to palpation (Exhibits 6F, 16F, 17F). 8 (AR 27.) 9 4. Analysis 10 The Court now undertakes the two-step analysis to evaluate whether the ALJ 11 properly challenged Plaintiff’s subjective symptom testimony. See Vasquez, 572 F.3d at 12 591. Neither party contests the ALJ’s determination that Plaintiff has the following 13 severe impairments: “bilateral shoulder pain (greater right than left), status post 14 remote shoulder arthroscopy with rotator cuff repair; incipient spondylosis and 15 degenerative disc disease of the cervical spine; and generalized pain syndrome.” (AR at 16 23.) Because the ALJ determined that Plaintiff’s “medically determinable impairments 17 could reasonably be expected to cause the alleged symptoms,” the first prong of the 18 ALJ’s inquiry regarding Plaintiff’s subjective symptoms is satisfied. (AR at 28.) Further, 19 neither party alleges that the ALJ found that Plaintiff was malingering. (See ECF No. 16.) 20 As a result, the Court must determine whether the ALJ identified “specific, clear, and 21 convincing” reasons for rejecting Plaintiff’s testimony. See Brown-Hunter, 806 F.3d at 22 488–89; see also Leza v. Kijakazi, No. 21-16079, 2022 WL 819782, at *2 (9th. Cir. Mar. 23 17, 2022). In addition to giving clear and convincing reasons for rejecting Plaintiff’s 24 testimony, the ALJ “must specifically identify the testimony she or he finds not to be 25 credible and must explain what evidence undermines the testimony.” Holohan v. 26 Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001). General findings are insufficient; the ALJ 27 “must state which pain testimony is not credible and what evidence suggests the 2 discussed above, the Plaintiff argues the ALJ erred by (1) concluding her treatment was 3 conservative and (2) using her daily activities to discredit her complaints of debilitating 4 pain. (J. Mot. at 14–20; 24–25.) The Court considers each issue individually. 5 a. Conservative Treatment 6 The Ninth Circuit has held that conservative treatment can be a basis for 7 discounting a Plaintiff’s “testimony regarding severity of an impairment.” Parra v. 8 Astrue, 481 F.3d 742, 751 (9th Cir. 2007) (holding the use of solely over-the-counter 9 medication to treat pain was “conservative treatment” the ALJ could reasonably rely on 10 to discount Plaintiff’s subjective testimony). However, “[a]ny evaluation of the 11 aggressiveness of a treatment regime must take into account the condition being 12 treated.” Revels, 874 F.3d at 667. Here, the ALJ broadly asserted that Plaintiff’s 13 “treatment has been conservative with no surgery since the alleged onset date, despite 14 her complaints of shoulder and other pain.” (AR 27.) The ALJ used this as an example of 15 inconsistency between Plaintiff’s complaints about the “intensity, persistence, and 16 limiting effects of her symptoms” and “the objective medical evidence.” (Id.) He further 17 stated that pain medication has “allowed [Plaintiff] to function.” (AR 28.) 18 The Court finds that the ALJ’s conclusion that Plaintiff’s treatment was 19 “conservative” is not supported by “specific, clear and convincing reasons.” Trevizo, 871 20 F.3d at 678; Brown-Hunter, 806 F.3d at 489. The record reflects that Plaintiff has 21 attempted a wide array of treatments since her onset date, including many epidural and 22 other injections: 23 • October 5, 2016: “She does have some stenosis at the C5-6 level on the right hand side but she did not respond to epidural steroid injections at 24 this level.” (AR 453.) 25 • January 11, 2017: “She underwent a C6 epidural steroid injection which, she states, made her symptoms worse.” (AR 450.) 26 • February 14, 2017: “She has been evaluated for her cervical spine and has 27 undergone injections (epidural and nerve block) that have failed to provide 2 shoulder.” (AR 87.) • October 19, 2018: “She has tried multiple cervical spine injections, multiple 3 injections in the shoulder without any improvement.” (AR 401, 472.) • December 12, 2019: “She tried multiple medications with no relief. She 4 went to Pain Management. They did blocks, epidurals, and cortisone 5 injections all with no relief.” (AR 426.) 6 Ninth circuit courts have held that injections are not “conservative” treatment. See 7 Garrison, 759 F.3d at 1015 n. 20; Patricia O. v. Kijakazi, No. 21-cv-376-CAB-BGS, 2022 WL 8 17760387, at *10 (S.D. Cal. Dec. 19, 2022); Harvey v. Colvin, NO CV 13-5376=PLA, 2014 9 WL 3845088, at *9 (C.D. Cal. Aug. 5, 2014). Thus, Plaintiff’s epidural and shoulder 10 injections cannot be characterized as “conservative,” nor can they be used to dismiss 11 her subjective pain testimony. 12 In addition to injections, the record reflects that Plaintiff has taken a variety of 13 opioid pain medications—Duloxetine, Gabapentin, Savella, Norco, Lyrica—with limited 14 or no improvement to her widespread pain. (See AR 373, 377, 410, 414, 566). Dr. 15 Ansari observed that Plaintiff “feels terrible” and experiences “severe side effects of 16 somnolence and spaciness” from pain medication, in addition to continuing to complain 17 of excruciating pain. (AR 367.) On March 6, 2019, Dr. Ansari noted that Plaintiff “failed 18 essentially all pharmacologic and physical therapies. At this juncture we’ll recommend 19 watchful waiting.” (AR 410). The record further demonstrates that Plaintiff was never 20 advised to pursue surgery, despite consulting several surgical specialists. (AR 401, 412, 21 475.) Thus, because surgery was never a viable option, the fact that Plaintiff did not 22 have one cannot be used against her. See Lapeirre-Gutt v. Astrue, 382 Fed. App’x. 662, 23 664 (9th Cir. 2010) (“A claimant cannot be discredited for failing to pursue non- 24 conservative treatment options where none exist.”). 25 / / / 26 Here, the medical evidence demonstrates that the epidurals, shoulder injections, 27 and various pain pills did not provide effective relief for Plaintiff’s constant and 2 complaints; rather, they continued to adjust her pain pills, order new tests, and 3 recommend she seek additional opinions. The ALJ does not explain what specific 4 treatment he considers “conservative,” nor does he explain how any particular 5 treatment undermines Plaintiff’s allegations of widespread pain. (AR 26–28.) Instead, 6 he summarizes Plaintiff’s pain in a single paragraph, glosses over her treatments to date, 7 and faults Plaintiff for not pursuing surgery—even though it was never recommended. 8 (Id.) Because the ALJ fails to support his decision with “specific, clear, and convincing 9 reasons,” the Court finds harmful error. Brown-Hunter, 806 F.3d at 489. 10 b. Daily Activities 11 The Ninth Circuit has advised that “ALJs must be especially cautious in concluding 12 that daily activities are inconsistent with testimony about pain, because impairments 13 that would unquestionably preclude work and all the pressures of a workplace 14 environment will often be consistent with doing more than merely resting in bed all 15 day.” Garrison, 759 F.3d at 1016; see also Albertson v. Colvin, 659 Fed. App’x. 372, 374 16 (9th Cir. 2016) (holding the claimant’s ability to do basic household chores and 17 occasionally run errands was not enough to discredit her pain testimony). Further, 18 “disability claimants should not be penalized for attempting to lead normal lives in the 19 face of their limitations.” Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (citations 20 omitted). Here, the ALJ emphasized that Plaintiff “lives independently, exercises, and is 21 relatively active, taking long walks and doing the various activities as reported at 22 Exhibits 7F/3.” (AR 27.) He noted that she independently completes “ADLs, drives, 23 manages own money, watches television, listens to music, cooks, washes dishes, cleans 24 house, uses computer, exercises and walks dog.” (Id.) Based on the foregoing, the ALJ 25 concluded “[t]his range of activity is not consistent with the subjective allegations of 26 debilitating pain.” (Id.)

27 The ALJ’s recitation of Plaintiff’s daily activities does not, without more, constitute 2 the record that demonstrates that, although Plaintiff completes certain daily activities, 3 she does so while experiencing excruciating pain. During the hearing, Plaintiff testified 4 that she spends her days sitting in bed, propping her arms up, and watching television. 5 (AR 52.) She said she no longer socializes and only drives short distances; she is not 6 involved in any group activities or hobbies. (AR 53–54.) Plaintiff testified she walks her 7 dog approximately fifteen minutes a day, but emphasized “a 15-minute walk is not an 8 eight-hour day.” (AR 55.) One doctor noted, “[s]he tries to walk about 2 miles a day, 9 but she states it is very painful. In general, she characterizes her pain as a sharp, 10 throbbing pain, especially with walking, but with any activities to some extent” (AR 427). 11 Another doctor observed Plaintiff “has difficulty with her right arm for any activity. Even 12 driving is painful.” (AR 416.) Similarly, a physical therapist noted “[p]ain is aggravated 13 with the following activities or positions: looking down, working on the computer, 14 cooking, gardening, lifting groceries.” (AR 489.) The medical evidence further 15 demonstrates that Plaintiff’s pain directly impacts an eight-hour workday; Plaintiff said 16 she “lost her job because she is unable to sit for prolonged periods of time because of 17 pain in her right shoulder girdle.” (AR 416.) 18 Based on review of the complete record, the Court finds that the ALJ did not 19 provide “specific, clear and convincing reasons” for dismissing Plaintiff’s pain testimony 20 based on inconsistency with her daily activities. Trevizo, 871 F.3d at 678; Brown-Hunter, 21 806 F.3d at 489. The ALJ merely concluded Plaintiff’s “range of activity is not consistent 22 with the subjective allegations of debilitating pain,” without explaining how these 23 activities contradict her testimony or symptom allegations. (AR 27.) The ALJ places 24 substantial weight on Plaintiff’s ability to complete daily activities, rather than 25 evaluating the full context of the activities and the pain she experiences while 26 performing them. Furthermore, the ALJ did not make any findings that Plaintiff’s

27 activities are transferable to a work setting for eight hours a day, five days a week. See 2 than the latter . . . and is not held to a minimum standard of performance”). Indeed, the 3 fact that Plaintiff can walk her dog for fifteen minutes does not mean she can function in 4 a work environment for an extended period of time. Vertigan v. Halter, 260 F.3d 1044, 5 1050 (9th Cir. 2001) (finding claimant’s ability to drive, grocery shop, or walk for exercise 6 did not discredit her overall disability). Because the ALJ has failed to explain how 7 Plaintiff’s activities were inconsistent with her testimony that she suffers from near- 8 constant pain, the Court finds reversible error. See Brown-Hunter, 806 F.3d at 489. 9 VI. CONCLUSION AND RECOMMENDATION 10 The reviewing court may enter a “judgment affirming, modifying, or reversing” 11 the Commissioner’s decision. 42 U.S.C. § 405(g). The reviewing court may also remand 12 the case to the Social Security Administration for further proceedings. Id. The reviewing 13 court has discretion in determining whether to remand for further proceedings or award 14 benefits. See Salvador v. Sullivan, 917 F.2d 13, 15 (9th Cir. 1990); McAllister v. Sullivan, 15 888 F.2d 599, 603 (9th Cir. 1989). Remand for further proceedings is warranted where 16 additional administrative proceedings could remedy defects in the decision. See Kail v. 17 Heckler, 722 F.2d 1496, 1497 (9th Cir. 1984). Remand for the payment of benefits is 18 appropriate where no useful purpose would be served by further administrative 19 proceedings, where the record has been fully developed, or where remand would 20 unnecessarily delay the receipt of benefits to which the disabled plaintiff is entitled. See 21 Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); Bilby v. Schweiker, 762 F.2d 22 716, 719 (9th Cir. 1985); Kornock v. Harris, 648 F.2d 525, 527 (9th Cir. 1980). 23 Here, Plaintiff requests the Court “remand for benefits,” or alternatively “for 24 further proceedings to present additional questions to the Vocational Expert regarding 25 [Plaintiff’s] limitations.” (J. Mot. at 26–27.) Defendant asks the Court to affirm the 26 Commissioner’s final decision, or if the Court finds the ALJ erred, to remand for further

27 administrative proceedings. (Id. at 27.) The Court has concluded that remand for 1 || remedy the defects in the AL’s decision. Specifically, the Court RECOMMENDS that, 2 || upon remand, Plaintiff's cubital tunnel syndrome and subjective pain testimony be 3 reexamined, consistent with this Report and Recommendation. 4 For the foregoing reasons, the Court RECOMMENDS that Judgment be entered 5 || REVERSING the decision of the Commissioner and REMANDING this matter for further 6 || administrative proceedings pursuant to 42 U.S.C. § 405(g). 7 IT IS ORDERED that no later than February 27, 2023, any party to this action may 8 || file written objections with the Court and serve a copy on all parties. The document 9 || should be captioned “Objections to Report and Recommendation.” 10 IT IS FURTHER ORDERED that any reply to the objections shall be filed with the 11 || Court and served on all parties no later than March 6, 2023. 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 of the Court’s order. See Turner v. Duncan, 158 F.3d 449, 455 (9th 14 || Cir. 1998); Martinez v. YIst, 951 F.2d 1153, 1157 (9th Cir. 1991). 15 IT IS SO ORDERED. 16 ||Dated: February 15, 2023 = _ 2 FF 18 Honorable Michael S. Berg United States Magistrate Judge 19 20 21 22 23 24 25 26 27 28