Soto v. Kijakazi

• Court: District Court, S.D. California
• Decided: November 24, 2023
• Docket: 3:22-cv-01880
• Status: Unknown

Opinion

2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SILVIA S.,1 Case No.: 22cv1880-MSB

12 Plaintiff, ORDER REVERSING DECISION OF 13 v. COMMISSIONER AND REMANDING FOR FURTHER ADMINISTRATIVE 14 KILOLO KIJAKAZI, Acting Commissioner of PROCEEDINGS [ECF NO. 17] Social Security, 15 Defendant. 16 17 18 On November 29, 2022, Silvia S. (“Plaintiff”) filed a Complaint pursuant to 42 19 U.S.C.A. § 405(g), seeking judicial review of a decision by the Commissioner of Social 20 Security (“Defendant” or “the Commissioner”) denying Plaintiff’s application for 21 disability insurance benefits. (ECF No. 1.) Based on all parties’ consent, (see ECF Nos. 3, 22 5), this case is before the undersigned as presiding judge for all purposes, including 23 entry of final judgment. See 28 U.S.C. § 636(c). 24 Now pending before the Court is Plaintiff’s Opening Brief, claiming error by the 25 Administrative Law Judge (“ALJ”) who conducted the administrative hearing and issued 26

27 2 Complaint [ECF No. 1], the Certified Administrative Record (“AR”) [ECF No. 12], Plaintiff’s 3 Opening Brief [ECF No. 17], and Defendant’s Responsive Brief [ECF No. 22]. For the 4 reasons set forth below, the Court ORDERS that judgment be entered REVERSING the 5 decision of the Commissioner and REMANDING this matter for further administrative 6 proceedings. 7 I. PROCEDURAL BACKGROUND 8 On May 5, 2020, Plaintiff filed an application for disability insurance benefits 9 under Title II of the Social Security Act, alleging an inability to work since July 3, 2017. 10 (AR 282–83.) After her application was denied initially and upon reconsideration, (AR 11 156, 160–61), Plaintiff requested an administrative hearing, (AR 170–71). ALJ Andrew 12 Verne held a telephonic hearing on December 14, 2021. (AR 84–106.) Plaintiff 13 appeared at the hearing with counsel, and both Plaintiff and a vocational expert (“VE”) 14 testified. (Id.) 15 As reflected in the January 18, 2022 hearing decision, the ALJ found Plaintiff had 16 not been disabled as defined in the Social Security Act from December 13, 2021, the 17 amended alleged onset date,2 through the date of the ALJ’s decision. (AR 26–27.) The 18 Appeals Council denied Plaintiff’s request for review on October 28, 2022, rendering the 19 ALJ’s decision the Commissioner’s final decision. (AR 1.); 42 U.S.C. § 405(h). On 20 November 29, 2022, Plaintiff timely filed the instant civil action. (See ECF No. 1.) 21 II. SUMMARY OF THE ALJ’S FINDINGS 22 In rendering his decision, the ALJ followed the Commissioner’s five-step 23 sequential evaluation process. See 20 C.F.R. § 404.1520. At step one, the ALJ found 24 Plaintiff had not engaged in substantial gainful activity since July 3, 2017, the initial 25 alleged onset date. (AR 19.) At step two, the ALJ found Plaintiff had “the following 26

27 2 cuff repair, degenerative joint disease of the left shoulder, and obesity.” (Id.) At step 3 three, the ALJ found Plaintiff did not have an impairment or combination of 4 impairments that met or medically equaled the severity of one of the impairments listed 5 in the Commissioner’s Listing of Impairments. (Id.) 6 Next, the ALJ determined that Plaintiff had the residual functional capacity 7 (“RFC”) to do the following: 8 [P]erform light work as defined in 20 C.F.R. § 404.1567(b) and the following limitations: lift, carry, push, pull 20 pounds occasionally and up to 10 pounds 9 frequently; stand and/or walk six hours and sit six hours in an eight-hour 10 workday with normal breaks; occasionally climb ramps and stairs, ropes, ladders, or scaffolds, and frequently balance, stoop, kneel, crouch, and crawl; 11 should avoid concentrated exposure to extreme cold, vibration, hazards, 12 including unprotected heights and dangerous, moving machinery; and can frequently reach overhead bilaterally. 13

14 (AR 20.) 15 At step four, the ALJ compared Plaintiff’s RFC to the physical and mental demands 16 of her past relevant work and found that Plaintiff was capable of performing her past 17 relevant work as a fast-food services manager. (AR 25–26.) The ALJ concluded that 18 because Plaintiff could perform her past relevant work as a fast-food services manager 19 as generally performed in the national economy, she was not disabled. (Id.) The ALJ 20 ended the evaluation process at step four. (AR 26.) 21 III. DISPUTED ISSUE 22 As reflected in Plaintiff’s Opening Brief, Plaintiff raises one issue to support 23 reversal and remand: that the ALJ improperly rejected her subjective symptom 24 testimony without providing clear and convincing reasons. (ECF No. 17 at 4.) 25 IV. STANDARD OF REVIEW 26 Section 405(g) of the Social Security Act allows unsuccessful applicants to seek 27 judicial review of the Commissioner’s final decision. 42 U.S.C. § 405(g). The scope of 2 v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012) superseded on other grounds by 20 C.F.R. 3 § 404.1502(a). 4 “Substantial evidence means more than a mere scintilla, but less than a 5 preponderance. It means such relevant evidence as a reasonable mind might accept as 6 adequate to support a conclusion.” Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) 7 (quoting Desrosiers v. Sec’y of Health & Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988)); 8 see also Richardson v. Perales, 402 U.S. 389, 401 (1971). Where the evidence is 9 susceptible to more than one rational interpretation, an ALJ’s decision must be upheld. 10 Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). 11 The ALJ’s resolution of conflicts and ambiguities in medical evidence is entitled to 12 deference. See Lewis v. Apfel, 236 F.3d 503, 509 (9th Cir. 2001). However, even if the 13 reviewing court finds that substantial evidence supports an ALJ’s conclusions, the court 14 must set aside the decision if the ALJ failed to apply the proper legal standards in 15 weighing the evidence and reaching his or her decision. See Batson v. Comm’r of Soc. 16 Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). 17 V. DISCUSSION 18 A. The ALJ Did Not Properly Explain his Rejection of Plaintiff’s Subjective Symptom 19 Testimony 20 Plaintiff argues that despite finding no evidence of malingering, the ALJ failed to 21 offer specific, clear, and convincing reasons for rejecting Plaintiff's statements regarding 22 the severity of her pain and symptoms. (ECF No. 17 at 5–6.) Specifically, Plaintiff asserts 23 that the ALJ merely recited the medical evidence and did not perform a subjective pain 24 analysis considering her specific pain and symptom testimony. (Id.) Plaintiff further 25 claims the ALJ merely found that the medical record failed to support her claims, which 26 alone is insufficient to satisfy the clear and convincing standard. (Id. at 6.) Finally, 27 Plaintiff preemptively argues that any new justifications the Commissioner may raise 2 written decision. (Id. at 5-7.) 3 Defendant contends that the ALJ's findings regarding Plaintiff's subjective 4 symptom statements are supported by substantial evidence and are sufficiently specific 5 to determine that the ALJ rejected Plaintiff's statements on permissible grounds. (ECF 6 No. 22 at 3.) Specifically, Defendant argues that the ALJ reasonably weighed Plaintiff’s 7 pain and symptom testimony against her medical history, and his rejection was 8 supported by her conservative treatment and contradictory medical records. (Id. at 5- 9 9.) Defendant also argues the ALJ did indeed perform a subjective pain analysis in 10 determining Plaintiff’s RFC, and that Plaintiff fails to prove her RFC should be any more 11 limited than the ALJ found. (Id. at 5–6.) 12 1. Applicable law 13 When evaluating a claimant’s allegations regarding subjective symptoms such as 14 pain, the ALJ must engage in a two-step analysis. See Smolen v. Chater, 80 F.3d 1273, 15 1281 (9th Cir. 1996), superseded, in part, on other grounds by 20 C.F.R. §§ 16 404.1529(c)(3), 416.929(c)(3); see also Social Security Ruling (“SSR”) 16-3p,3 2016 WL 17 1119029 (Mar. 16, 2016). First, the ALJ must determine whether there is objective 18 medical evidence of an underlying impairment that “could reasonably be expected to 19 produce the pain or other symptoms alleged.” Trevizo v. Berryhill, 871 F.3d 664, 678 20 (9th Cir. 2017) (quoting Garrison v. Colvin, 759 F.3d 995, 1014–15 (9th Cir. 2014)). The 21 claimant is not required to show that an underlying impairment could reasonably be 22 expected to cause the severity of the pain alleged, but only that it could have reasonably 23 24 25 3 SSR 16-3p, which went into effect before the ALJ’s decision, rescinded and superseded SSR 96-7p and 26 the former “credibility” language. The Ninth Circuit noted that the SSR 16-3p “makes clear what [the] precedent already required: that assessments of an individual’s testimony by an ALJ are designed to 27 ‘evaluate the intensity and persistence of symptoms’ . . . and not to delve into wide-ranging scrutiny of 2 (citing Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007)). 3 Second, if the first step has been satisfied and there is no evidence of malingering, 4 then the ALJ may reject the claimant’s statements about the severity of her symptoms 5 “only by offering specific, clear and convincing reasons for doing so.” Trevizo, 871 F.3d 6 at 678 (quoting Garrison, 759 F.3d at 1014–15). “The clear and convincing standard is 7 the most demanding required in Social Security cases.” Revels, 874 F.3d at 648 (quoting 8 Garrison, 759 F.3d at 1014–15). General findings are insufficient, and the ALJ must 9 identify which specific pain and symptom statements are being discounted and what 10 evidence undermines those claims. See Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 11 2020) (citing Treichler v. Comm’r Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014)); 12 Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005). An ALJ’s failure to identify specific 13 statements and explain why they are not credible precludes meaningful review because 14 the reviewing court cannot determine if the ALJ’s decision was supported by substantial 15 evidence, and it therefore constitutes reversible error. Brown-Hunter v. Colvin, 806 F.3d 16 487, 489 (9th Cir. 2015); see also SSR 16-3p. 17 “[B]ecause symptoms, such as pain, are subjective and difficult to quantify,” the 18 ALJ considers “all of the evidence presented,” including information about the 19 claimant’s prior work record, statements about their symptoms, evidence submitted by 20 the claimant’s medical sources, and observations by the Agency’s employees and other 21 persons. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3); SSR 16-3p. Factors the ALJ may 22 consider, in addition to objective medical evidence, include an applicant’s daily 23 activities; the location, duration, frequency, and intensity of the complained of pain or 24 other symptoms; precipitating and aggravating factors; the type, dosage, effectiveness, 25 and side effects of any medication taken to alleviate pain; treatment; and any other 26 measures used to relieve pain. See 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3); SSR 16- 27 3p. The ALJ may also consider inconsistencies between an applicant’s statements 2 SSR 16-3p. 3 2. Plaintiff’s testimony and ALJ’s treatment thereof 4 In his written opinion, the ALJ summarized the Plaintiff’s symptom testimony as 5 follows: 6 The claimant alleges she is disabled and unable to work as of July 3, 2017 (amended alleged onset date (AAOD) of December 13, 2021), due to the 7 following: left elbow issues and arthritis, osteoarthritis of the left and right 8 hand and both shoulders, as well as osteoarthritis of the hips and lower back issues, including pain. At the hearing, the claimant testified she has 9 problems with her hands, noting that when she goes to the doctors when 10 she fills out paperwork that her arms gets [sic] worse and her fingers get numb. She also stated that she has difficulty using a computer key board. 11 The claimant also stated that she can only sit or stand for an hour at a time. 12 She also noted that it is the same thing for her shoulders when she is doing dishes, not more than an hour and her back hurts and shoulders hurt more 13 and she has to lay down to relax her shoulders and low back. The claimant 14 also stated that in a given day she needs to lay down because of her back [] two to three times a day and also because of her shoulders (e.g., Exs. 1A/2, 15 3A/2, 1D/1, 2E/2, 1-7, 6E/2-3, 1-7, 7E/2, 1-8, 10E/4, 1-7, Testimony). 16 (AR 20–21.) The ALJ did not describe Plaintiff’s additional hearing testimony that she 17 had difficulty lifting her arms for activities like doing her hair and showering, and 18 difficulty with her shoulders when pushing or pulling. (Compare id. (written opinion) 19 with AR 98 (hearing testimony).) 20 After providing this summary and reciting the standard for evaluating such 21 testimony,4 the ALJ explained his two-step credibility analysis in one sentence, writing: 22 After careful consideration of the evidence, the claimant’s medically 23 determinable impairments could reasonably be expected to cause the 24 alleged symptoms; however, the claimant’s statements concerning the 25

26 4 The Court notes that while he ALJ described the two-step process for evaluating Plaintiff’s pain and 27 symptom testimony described in the “Applicable Law” section, supra, he did not identify the 2 cthoen sriesatesonnt sw eitxhp ltahinee md eind itchails edveicdiesinocne. and other evidence in the record for 3 (AR 21.) 4 The ALJ then summarized the medical records reflecting the status of Plaintiff’s 5 medical conditions, including degenerative disc disease of the back, left upper extremity 6 rotator cuff repair, degenerative joint disease of the left shoulder, and obesity. (AR 21.) 7 Following this, the ALJ described how the medical record included many “normal and 8 mild physical clinical exam findings, including neurological.” (AR 21-23.) He also noted 9 that the record reflected “little, if any” treatment for Plaintiff’s hips, and after a July 10 2021 lidocaine injection, her shoulders. (AR 23.) He then concluded that “[t]hese many 11 normal and mild physical clinical exam findings also evidence inconsistencies with 12 claimant’s statements about the intensity, persistence, and limiting effects of her 13 symptoms.” (AR 23.) The remainder of the section includes the ALJ’s evaluation of the 14 medical opinion evidence, before concluding that the RFC “is supported by the medical 15 record.” (AR 23-25.) 16 3. Analysis 17 Neither party contests the ALJ’s determination that Plaintiff has the following 18 severe impairments: “degenerative disc disease of the back, left upper extremity rotator 19 cuff repair, degenerative joint disease of the left shoulder, and obesity.” (See AR 19; 20 ECF No. 17 at 2–3; ECF No. 22 at 2.) Because the ALJ determined that Plaintiff's 21 “medically determinable impairments could reasonably be expected to cause the 22 alleged symptoms,” the first prong of the ALJ's inquiry regarding Plaintiff's subjective 23 symptom testimony is satisfied. (See AR 21.) Furthermore, neither party alleges that 24 the ALJ found evidence of Plaintiff malingering. (See ECF No. 17 at 5; ECF No. 22 (not 25 discussing malingering).) As a result, the Court must determine whether the ALJ 26 specifically identified which of Plaintiff's statements regarding pain and physical 27 2 1014–15. 3 While the ALJ summarized Plaintiff’s testimony and medical history and resolved 4 step-one in favor of Plaintiff, he failed to identify which of Plaintiff’s specific statements 5 he found not credible. (See AR 20–25.) Following his summary of Plaintiff’s testimony, 6 the ALJ concluded that “the claimant’s statements concerning the intensity, persistence 7 and limiting effects of these symptoms are not entirely consistent with the medical 8 evidence and other evidence in the record for the reasons explained in this decision.” 9 (AR 21 (emphasis added).) The Ninth Circuit has held this boilerplate introductory 10 language, after which “ALJs typically identify what parts of the claimant's testimony 11 were not credible and why,” is not a “specific, clear, and convincing” reason for 12 discounting a claimant’s subjective testimony. Treichler, 775 F.3d at 1103; Vasquez, 572 13 F.3d at 592 (finding that the “vague allegation that [Plaintiff’s claims] were ‘not 14 consistent with the objective medical evidence,’” was inadequate to reject Plaintiff’s 15 subjective testimony). In this case however, the ALJ failed to discuss the credibility of 16 any specific testimony in his analysis, falling short of his “responsibility to provide ‘a 17 discussion of the evidence’ and ‘the reason or reasons upon which’ his adverse 18 determination is based.” See Treichler, 775 F.3d at 1103. An ALJ's “‘vague allegation’ 19 that a claimant's testimony is ‘not consistent with the objective medical evidence,’ 20 without any ‘specific findings in support’ of that conclusion is insufficient for [the 21 court’s] review.” Id. (quoting Vasquez, 572 F.3d at 592). 22 Furthermore, by failing to identify the specific testimony he was discounting, the 23 ALJ did not directly tie any such testimony to a clear reason for rejecting it. (See AR 20– 24 25.) Consequently, the Court is unable to discern what specific testimony the ALJ found 25 inconsistent with the record. The Ninth Circuit has clearly held that “an ALJ does not 26 provide specific, clear, and convincing reasons for rejecting a claimant's testimony by 27 simply reciting the medical evidence in support of his or her residual functional capacity 2 symptoms,” (ECF No. 22 at 7), the ALJ did not juxtapose any medical records with any 3 specific testimony. 4 Although the ALJ’s conclusion appears to rely on his determination that the 5 normal and mild medical findings in the record contradicted Plaintiff’s pain testimony, 6 (see AR 21–25 (citing, e.g., AR 1663–70, 1673–74, 1986–87, 2000–01)), such a 7 contradiction is not evident. For example, an observation that Plaintiff had a normal 8 nerve sensation during a medical examination is not necessarily inconsistent with 9 Plaintiff’s claim that she experiences numbness in her hands and shoulders when typing, 10 writing, or using her phone. (Compare AR 21-23 with AR 97-98.) Thus, the Court cannot 11 find that these normal physical exam findings alone, constituted clear and convincing 12 evidence to discredit Plaintiff’s testimony. See Maria H. v. Kijakazi, No. 20cv2532-RBB, 13 2022 WL 2229426, at *4–5 (S.D. Cal. June 21, 2022); Teresa H. v. Kijakazi, No. 20cv2186- 14 RBB, 2022 WL 1812300, at *4 (S.D. Cal. June 2, 2022) (both finding the same). 15 Furthermore, because merely reciting the medical record without affirmatively 16 contrasting it to a plaintiff’s testimony does not constitute a clear and convincing 17 reason, the ALJ’s finding fails to meet the requisite standard. See Brown-Hunter, 806 18 F.3d at 489 (“[T]he ALJ simply stat[ing] her non-credibility conclusion and then 19 summariz[ing] the medical evidence supporting her RFC determination . . . is not the 20 sort of explanation or the kind of ‘specific reasons’ we must have in order to review the 21 ALJ's decision meaningfully.”); see also Vasquez, 572 F.3d at 592; Trevizo, 871 F.3d at 22 678. 23 There is a significant and important distinction between medical evidence that 24 contradicts, and medical evidence that fails to support, a plaintiff’s subjective testimony. 25 Defendant correctly asserts that medical records that contradict a plaintiff’s pain 26 testimony can be a clear and convincing reason to reject the testimony. (See ECF No. 22 27 at 7); Carmickle, 533 F.3d at 1161; Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995). 2 Robbins v. Soc. Sec. Admin., 466 F.3d 880, 884 (9th Cir. 2006) (finding an RFC 3 determination justified as being “not consistent with or supported by the overall 4 medical evidence of record” is “exactly the type [of justification] we have previously 5 recognized the regulations prohibit”). Though the ALJ discussed much of the medical 6 evidence in detail, nowhere did he demonstrate that the evidence contradicted 7 Plaintiff’s testimony, as opposed to not fully supporting it. (See AR 21.) 8 Referring to the ALJ’s brief observation that the medical record reflects little, if 9 any, treatment after July 2021 for Plaintiff’s shoulders and at any time for her hips, the 10 Commissioner argues the ALJ relied on this valid rationale.5 (ECF No. 22 at 4.) The Ninth 11 Circuit has long recognized that an “unexplained or inadequately explained failure to 12 seek treatment or to follow a prescribed course of treatment” can justify rejecting a 13 claimant’s symptom testimony. Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012) 14 (quoting Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) and Smolen, 80 F.3d 15 at 1284). Recognizing that “symptoms sometimes suggest a greater severity of 16 impairment than can be shown by objective medical evidence alone,” the agency 17 explains that when considering Plaintiff’s symptoms, it will consider, among other 18 things, effectiveness and side effects of medications and other treatment or measures 19 that are used to relieve pain. 20 C.F.R. § 404.1529(c)(3). Applying this standard, Courts 20 typically consider whether claimants have sought more than conservative treatment or 21 taken advantage of such available treatment, and any provided reasons for not 22 obtaining treatment. See, e.g., Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) 23 (approving ALJ’s reliance on claimant’s failure to request and doctor’s failure to 24 prescribe any serious treatment for claimant’s excruciating pain); Parra v. Astrue, 481 25

26 5 The Court is not persuaded by Defendant’s assertion that by failing to anticipate this argument, 27 Plaintiff has “waived her opportunity to challenge the ALJ’s full reasoning for discounting her 2 counter medication to reject pain testimony); Molina v. Astrue, 674 F.3d 1104, 1113-14 3 (9th Cir. 2012) (finding clear and convincing reason to reject symptom testimony where 4 claimant disregarded physician’s assistant’s advice to seek psychiatric treatment for 5 anxiety and her reasons for doing so were unrelated to her mental illness). 6 This argument must also fail based on the ALJ’s failure to identify which pain and 7 symptom testimony was undermined by his observed lack of treatment. Further, the 8 Court notes evidence in the record that contradicts the ALJ’s observation. In the first 9 place, from the end of 2020 into at least August of 2021, Plaintiff’s primary treating 10 physician, Dr. Pallia, advocated to get Worker’s Compensation to approve an additional 11 surgery for Plaintiff’s left shoulder and treatment of her right shoulder. (See, e.g., AR 12 1693, 1677, 1987, 2063.) Plaintiff wanted to proceed with both. (AR 1673-74, 1693.) 13 Dr. Pallia noted in December of 2020 that since March of 2020, Plaintiff had pursued a 14 course of available physical therapy and massage therapy, taken Naprosyn, received a 15 cortisone injection, and undergone an MRI. Which all left her frustrated that nothing 16 seemed to be helping. (AR 1678.) The lidocaine injection Plaintiff received in July of 17 2021 was to ascertain whether she was likely to benefit from further surgery. (AR 18 2063.) Based on how she responded to the lidocaine, her secondary treating physician 19 determined further surgery was not indicated at that time. (AR 2056.) This suggests 20 that while Plaintiff was willing to undergo surgery or other more aggressive treatment 21 after July of 2021 to relieve her pain, none was available to her at that time. 22 The Court also notes regarding Plaintiff’s low back and hip pain, that she 23 attempted physical therapy for her back, hip, and shoulder via video in October and 24 November of 2020, while people were still minimizing their exposure to COVID -19. (AR 25 2011-2016.) On October 29, 2020, Plaintiff reported that she had stopped doing 26 exercises after three days due to her pain symptoms. (AR 2013.) The physical therapist 27 noted that Plaintiff continued with bilateral knee, hip, back and shoulder pain on 2 26 and November 18, 2021, and the appointments appeared to be ongoing when the 3 records were printed. (AR 2083-2100.) The chiropractic treatment notes consistently 4 showed Plaintiff complained of issues with her low back and hips. (See, e.g., AR 2084 5 (“paresthesia into both lower extremities, increased with prolonged sitting and 6 standing”), 2086 (“paresthesia, both legs”), and 2100 (“numbness/tingling down both 7 legs R>L into her feet [w]ith sitting and standing for long periods – increased paresthesia 8 and weakness into her legs”).) During these visits, the chiropractor treated Plaintiff’s 9 hips and back. (See, e.g., AR 2087 (myofascial release to spinal areas, piriformis, and 10 hamstring, and bilateral hip articular joint dysfunction discovered and adjusted), 2097 11 (same), 2099 (same), 2100 (same).) The ALJ described these visits only as therapy for 12 Plaintiff’s neck and back and noted there were no neurological exam findings. (AR 23.) 13 On November 18, 2021, the chiropractor noted that Plaintiff had also started doing 14 physical therapy twice a week. (AR 2100.) 15 Finally, medical records show that Plaintiff’s primary care doctor ordered MRIs of 16 her brain and cervical spine in early 2022, to see if a cause could be found for the 17 numbness in her hands and feet. (AR 34-37.) An MRI of Plaintiff’s right shoulder was 18 also performed to address Plaintiff’s right shoulder impingement, which revealed a 19 “[s]mall focal intrasubstance tear at the medical aspect of the supraspinatus tendon 20 footprint,” with “[d]iffuse mild to moderate rotator cuff tendinopathy which is greatest 21 at the infraspinatus tendon” and “mild subacromial/subdeltoid bursitis.” (AR 41.) These 22 suggest that into 2002, doctors continued to look for a solution to Plaintiff’s pain. Based 23 on the foregoing, the Court cannot find Plaintiff’s failure to take advantage of available 24 treatment was a clear and convincing reason to reject her pain testimony. 25 In this case, it appears Plaintiff underwent surgery, injections, physical therapy, 26 and chiropractic therapy, and expressed a desire for further treatment, but no further 27 treatments were availing. On this record, the Court cannot conclude that Plaintiff’s 2 Or. Mar. 22, 2022) (“It does not appear that the ALJ considered Plaintiff's injections, 3 chiropractic treatment, TENS therapy, and physical therapy when concluding that 4 Plaintiff receive ‘very conservative’ treatment.”). 5 VI. CONCLUSION 6 The reviewing court may enter a “judgment affirming, modifying, or reversing” 7 the Commissioner’s decision. 42 U.S.C. § 405(g). The reviewing court may also remand 8 the case to the Social Security Administration for further proceedings. Id. Whether to 9 remand for further proceedings or award benefits is within the discretion of the Court. 10 See Salvador v. Sullivan, 917 F.2d 13, 15 (9th Cir. 1990); McAllister v. Sullivan, 888 F.2d 11 599, 603 (9th Cir. 1989). Remand for further proceedings is warranted where additional 12 administrative proceedings could remedy defects in the decision. See Kail v. Heckler, 13 722 F.2d 1496, 1497 (9th Cir. 1984). Remand for the payment of benefits is appropriate 14 where no useful purpose would be served by further administrative proceedings, where 15 the record has been fully developed, or where remand would unnecessarily delay the 16 receipt of benefits to which the disabled plaintiff is entitled. See Hoffman v. Heckler, 17 785 F.2d 1423, 1425 (9th Cir. 1986); Bilby v. Schweiker, 762 F.2d 716, 719 (9th Cir. 18 1985); Kornock v. Harris, 648 F.2d 525, 527 (9th Cir. 1980). 19 In this case, Plaintiff requests this Court to reverse the ALJ’s decision and award 20 her benefits, or in the alternative, remand the matter to cure the legal error. (ECF No. 21 17 at 7.) Defendant asks the Court to uphold the decision, or in the alternative, remand 22 for further proceedings. (ECF No. 22 at 9.) The Court concludes that remand for further 23 proceedings is warranted because additional administrative proceedings could remedy 24 the defects in the ALJ's decision. Specifically, the Court REMANDS so that the ALJ may 25 reexamine Plaintiff's subjective pain and symptom testimony and the applicable clear 26 and convincing standard, in a manner consistent with this Order. 27 1 For the foregoing reasons, the Court ORDERS that judgment be entered 2 || REVERSING the ALJ’s decision and REMANDING this matter for further administrative 3 || proceedings pursuant to sentence four of 42 U.S.C. § 405(g). 4 IT IS SO ORDERED. 5 Dated: November 24, 2023 _ -

_ 2 FZ Honorable Michael S. Berg United States Magistrate Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28