Timothy Leary v. Kilolo Kijakazi

• Court: District Court, C.D. California
• Decided: August 16, 2023
• Docket: 5:23-cv-00270
• Status: Unknown

Opinion

1 2

4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8

9 10 TIMOTHY L.,1 Case No. 5:23-cv-270-MAR 11 Plaintiff, MEMORANDUM AND ORDER 12 v.

13 KILOLO KIJAKAZI, Acting Commissioner of Social Security, 14 15 Defendant.

16 17 18 Plaintiff Timothy L. (“Plaintiff”) seeks review of the final decision of the 19 Commissioner of the Social Security Administration (“Commissioner” or “Agency”) 20 denying his application for Title XIV Supplemental Security Income (“SSI”). The 21 parties have consented to the jurisdiction of the undersigned United States Magistrate 22 Judge pursuant to 28 U.S.C. § 636(c). ECF Docket Nos. (“Dkts.”) 8–9. 23 For the reasons stated below, the Commissioner’s decision is REVERSED 24 and this action is REMANDED for further proceedings consistent with this 25 Memorandum and Order. 26

27 1 Partially redacted in compliance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the 1 I. 2 PROCEDURAL HISTORY 3 On January 27, 2021, Plaintiff protectively filed his application for SSI, alleging 4 a disability onset beginning April 10, 2020. Administrative Record (“AR”) at 15, 236– 5 53. After the application was denied initially and upon reconsideration, Plaintiff 6 requested a hearing before an Administrative Law Judge (“ALJ”). Id. at 67, 82, 105– 7 08, 142–44. On February 15, 2022, an administrative hearing was held before the 8 assigned ALJ in San Bernardino, California. Id. at 28–52. Plaintiff, represented by 9 counsel, appeared and testified telephonically. Id. at 33–47. A vocational expert also 10 testified telephonically. Id. at 48–51. On March 28, 2022, the ALJ issued a decision 11 denying the application. Id. at 15–27. Plaintiff filed a request with the Agency’s 12 Appeals Council to review the ALJ’s decision, which the Council denied on 13 December 29, 2022. Id. at 1–5, 213–14. 14 On February 17, 2023, Plaintiff filed the instant action. Dkt. 1. This matter is 15 before the Court on Plaintiff’s Opening Brief (“Pl’s Brief”), filed on May 24, 2023, the 16 Commissioner’s Motion for Summary Judgment (“Def’s Motion”), filed on June 21, 17 2023, and Plaintiff’s Reply Brief (“Pl’s Reply”), filed on July 5, 2023. Dkts. 12, 15–16. 18 II. 19 PLAINTIFF’S BACKGROUND 20 Plaintiff was 40 years old on the alleged disability onset date and 42 years old at 21 the time of the administrative hearing. AR at 30, 247. He is single and lives with his 22 two children in a house. Id. at 33, 237, 248, 304. He graduated from high school and 23 worked as a maintenance worker and as a manager and/or grill person at fast food 24 restaurants. Id. at 34–38, 268–69, 287–89, 297. He last worked in 2017; he stopped 25 working because he was incarcerated or had transportation issues. Id. at 38–41. He 26 was involved in a dirt bicycle accident in March 2020. Id. at 41. He alleges disability 27 based on: (1) right shoulder surgery complication; (2) broken ankle pain; (3) left hip 1 reconstruction complication; (4) broken left knee pain; (5) stomach issues; (6) high 2 blood pressure; (7) depression; and (8) anxiety. Id. at 41, 43–44, 46, 265, 296, 336. 3 III. 4 STANDARD FOR EVALUATING DISABILITY 5 To qualify for benefits, a claimant must demonstrate a medically determinable 6 physical or mental impairment that prevents him or her from engaging in substantial 7 gainful activity, and that is expected to result in death or to last for a continuous 8 period of at least 12 months. 42 U.S.C. § 423 (d)(1)(a); Reddick v. Chater, 157 F.3d 9 715, 721 (9th Cir. 1998). The impairment must render the claimant incapable of 10 performing the work he or she previously performed and incapable of performing any 11 other substantial gainful employment that exists in the national economy. 42 U.S.C. 12 § 423(d)(2)(A); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). 13 To decide if a claimant is disabled, and therefore entitled to benefits, an ALJ 14 conducts a five-step inquiry. Ford v. Saul, 950 F.3d 1141, 1148–49 (9th Cir. 2020); 20 15 C.F.R. § 416.920(a)(1)-(2). The steps are: 16 (1) Is the claimant presently engaged in substantial gainful activity? If so, 17 the claimant is found not disabled. If not, proceed to step two. 18 (2) Is the claimant’s impairment severe? If not, the claimant is found not 19 disabled. If so, proceed to step three. 20 (3) Does the claimant’s impairment meet or equal one of the specific 21 impairments described in 20 C.F.R. Part 404, Subpart P, Appendix 1? 22 If so, the claimant is found disabled. If not, proceed to step four.2 23 (4) Is the claimant capable of performing work she has done in the past? 24 If so, the claimant is found not disabled. If not, proceed to step five. 25

26 2 “Between steps three and four, the ALJ must, as an intermediate step, assess the claimant’s 27 [residual functional capacity],” or ability to work after accounting for her verifiable impairments. Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1222–23 (9th Cir. 2009) (citing 20 C.F.R. 1 (5) Is the claimant able to do any other work? If not, the claimant is found 2 disabled. If so, the claimant is found not disabled. 3 See Tackett, 180 F.3d at 1098-99; Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th 4 Cir. 2001); 20 C.F.R. § 416.920(a)(4)(i)-(v); see also 20 C.F.R. 416.920(b)–(g)(1); 5 Woods v. Kijakazi, 32 F.4th 785, 788 n.1 (9th Cir. 2022) (summarizing the steps and 6 noting that “[t]he recent [2017] changes to the Social Security regulations did not 7 affect the familiar ‘five-step sequential evaluation process.’”). 8 The claimant has the burden of proof at steps one through four, and the 9 Commissioner has the burden of proof at step five. Ford, 950 F.3d at 1148. If, at 10 step four, the claimant meets her burden of establishing an inability to perform past 11 work, the Commissioner must show that the claimant can perform some other work 12 that exists in “significant numbers” in the national economy, taking into account the 13 claimant’s residual functional capacity (“RFC”), age, education, and work experience. 14 20 C.F.R. § 416.920(g)(1); Tackett, 180 F.3d at 1098–99, 1100; Reddick, 157 F.3d at 15 721. 16 IV. 17 THE ALJ’S DECISION 18 A. STEP ONE 19 At step one, the ALJ found Plaintiff had not “engaged in substantial gainful 20 activity since January 27, 2021, the application date[.]” AR at 17. 21 B. STEP TWO 22 At step two, the ALJ found Plaintiff had “the following severe impairments: 23 status post fracture of the right shoulder proximal humerus with fixation hardware; 24 status post open reduction internal fixation (ORIF) of the right ankle; and status post 25 left knee and left hip surgery[.]” AR at 17.3 26 27 1 C. STEP THREE 2 At step three, the ALJ found Plaintiff did not “have an impairment or 3 combination of impairments that meets or medically equals the severity of one of the 4 listed impairments in 20 CFR Part 404, Subpart P, Appendix 1[.]” AR at 18. 5 D. RFC DETERMINATION 6 The ALJ found Plaintiff had the RFC to perform light work4 except: 7 [Plaintiff] is limited to lifting or carrying no more than 20 pounds 8 occasionally and 10 pounds frequently; standing or walking for six hours each in an eight-hour workday; and sitting for six hours in an eight hour 9 workday. [Plaintiff] is able to frequently climb ramps and stairs, but is 10 never able to climb ladders, ropes, or scaffolds; and frequently balance, stoop, kneel, crouch, and crawl. [Plaintiff] is limited to no overheard 11 reaching with the right upper extremity. [Plaintiff] must avoid 12 concentrated exposure to hazards. 13 AR at 18. 14 E. STEP FOUR 15 At step four, the ALJ found Plaintiff was unable to perform any past relevant 16 work as a kitchen helper, manager of fast food services, and fast food worker. AR at 17 21. 18 F. STEP FIVE 19 At step five, the ALJ found that “[c]onsidering [Plaintiff]’s age, education, work 20 experience, and [RFC], there are jobs that exist in significant numbers in the national 21 economy that [Plaintiff] can perform.” AR at 22. With the assistance of the 22

23 4 “Light work” is defined as: 24 [L]ifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is 25 in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be 26 considered capable of performing a full or wide range of light work, [a claimant] must have the ability to do substantially all of these activities. 27 20 C.F.R. § 416.967(b); see also Aide R. v. Saul, 2020 WL 7773896, *2 n.6 (C.D. Cal. Dec. 30, 2020). 1 vocational expert’s testimony, the ALJ found that Plaintiff would be able to perform 2 the representative occupations of hand packager (Dictionary of Occupational Titles 3 [“DOT”] 559.687-074), assembler, electrical accessories (DOT 729.687-010), and 4 small products assembler (DOT 706.684-022). Id. at 22–23. Accordingly, the ALJ 5 concluded Plaintiff “has not been under a disability, as defined in the Social Security, 6 since January 27, 2021, the date the application was filed[.]” Id. at 23. 7 V. 8 PLAINTIFF’S CLAIMS 9 Plaintiff presents the following two disputed issues: (1) the ALJ failed to 10 provide specific, clear, and convincing reasons for discounting Plaintiff’s allegations of 11 right upper extremity pain and dysfunction; and (2) the ALJ’s determination that 12 Plaintiff could engage in unlimited reaching with his right upper extremity, other than 13 overhead reaching, was not supported by substantial evidence. See Pl’s Brief at 2–12; 14 Pl’s Reply at 2–5.5 15 VI. 16 STANDARD OF REVIEW 17 Pursuant to 42 U.S.C. § 405(g), a district court may review the Commissioner’s 18 decision to deny benefits. The ALJ’s findings and decision should be upheld if they 19 are free of legal error and supported by substantial evidence based on the record as a 20 whole. Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. Astrue, 481 F.3d 742, 21 746 (9th Cir. 2007). 22 “Substantial evidence” is evidence that a reasonable person might accept as 23 adequate to support a conclusion. Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th 24 Cir. 2007) (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). It 25 is more than a scintilla but less than a preponderance. Id. To determine whether 26 substantial evidence supports a finding, the reviewing court “must review the 27 1 administrative record as a whole, weighing both the evidence that supports and the 2 evidence that detracts from the Commissioner’s conclusion.” Reddick, 157 F.3d at 3 720; see also Hill v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012) (“[A] reviewing court 4 . . . may not affirm simply by isolating a ‘specific quantum of supporting evidence.’”) 5 (quoting Robbins, 466 F.3d at 882). “If the evidence can reasonably support either 6 affirming or reversing,” the reviewing court “may not substitute its judgment” for that 7 of the Commissioner. Reddick, 157 F.3d at 720–21; see also Molina v. Astrue, 674 8 F.3d 1104, 1111 (9th Cir. 2012) (“Even when the evidence is susceptible to more than 9 one rational interpretation, we must uphold the ALJ’s findings if they are supported 10 by inferences reasonably drawn from the record.”), superseded by regulation on other 11 grounds as stated in Smith v. Kijakazi, 14 F.4th 1108, 1111 (9th Cir. 2021). 12 The reviewing court may review only the reasons stated by the ALJ in her 13 decision “and may not affirm the ALJ on a ground upon which [s]he did not rely.” 14 Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). If the ALJ erred, the error may only 15 be considered harmless if it is “clear from the record” that the error was 16 “inconsequential to the ultimate nondisability determination.” Robbins, 466 F.3d at 17 885 (citation omitted). 18 VII. 19 DISCUSSION 20 A. THE ALJ FAILED TO PROVIDE SUFFICIENT REASONS FOR 21 DISCOUNTING PLAINTIFF’S SUBJECTIVE COMPLAINTS6 22 1. Plaintiff’s subjective complaints 23 (a) Exertional Questionnaire 24 On March 6, 2021, in support of his claim for disability, Plaintiff submitted a 3- 25 page Exertional Questionnaire. AR at 304–06. He stated that constant pain in his 26

27 6 Because Plaintiff is challenging the ALJ’s discounting of Plaintiff’s subjective complaints regarding 1 shoulder and the lack of range of motion in his arm prevents him from carrying out 2 his normal workday. Id. at 304, 306. He is able to lift only “small things.” Id. at 305. 3 He is able to shower and clean but feels weak. Id. at 304. He cleans his own home. 4 Id. at 305. He does not grocery shop, drive, or do yard work. Id. He was able to do 5 these chores before he became disabled. Id. at 306. He stays at home and does not 6 go out unless he has an appointment. Id. at 304. He sleeps 6 to 8 hours, and requires 7 rest periods or naps during the day. Id. at 306. He takes Benadryl for sleep and 8 Norco for pain. Id. He uses a brace when his arm is sore. Id. 9 (b) February 15, 2022 administrative hearing 10 At the hearing, Plaintiff testified that he lives in a house with his two children 11 ages 15 and 13. Id. at 33. He does not have, and has never had, a driver’s license. Id. 12 at 33–34. Although he has applied for work since his March 2020 bicycle accident, he 13 has not been able to work because of his injuries (“there’s nothing I can do”). Id. at 14 41, 47. He cannot lift his right arm over his chest. Id. at 41. His right hand has a 15 tingly sensation. Id. He can do a dead lift with his right hand, but he cannot carry or 16 move anything around with his right hand due to an absence of range. Id. at 42–43. 17 On a typical day, he gets up, eats, showers, and does as much as he can. Id. at 18 44. He does not have any mobility on his right side. Id. at 44, 47. When asked if he 19 has talked to his doctor about his lack of mobility, he said he has “appointments 20 coming up.” Id. at 47. He can shower (maybe once a week) and get dressed 21 (including socks) on his own, but it is time consuming because he only can use one 22 hand. Id. at 44, 47. He is able to cook meals in in a microwave. Id. at 44. He does 23 laundry once a week. Id. Other than mild dusting, he is not able to do much cleaning 24 around the house. Id. He cannot reach things in high places. Id. He is not able to 25 mow the lawn. Id. He does not grocery shop or take out the groceries; his children 26 have to do everything for him. Id. at 45, 47. 27 For pain, he takes ibuprofen, Tylenol, Aleve (once a day), and “whatever [he] 1 discontinued. Id. at 45. He takes non-prescribed substances, including marijuana and 2 PCP (once a month). Id. at 45–46. 3 2. The ALJ ‘s decision 4 The ALJ’s summary of Plaintiff’s subjective complaints related to his right 5 upper extremity is as follows:

6 The claimant alleged that he is disabled due to the resulting 7 symptoms of his impairments. Based on his disability report, he alleged to having right shoulder surgery complication (wrong hardware installed), 8 severe pain due to broken ankle, left hip reconstruction complication, 9 causing constant pain, pain due to broken left knee, stomach issues, and high blood pressure ([AR at 265 and 296]; see also [AR at 336]). 10

11 At the hearing, the claimant testified that [he] did not look for work after his accident due to his loss of range of motion in the right arm 12 beyond chest level and tingling in his right hand. . . . The claimant noted 13 that he is able to lift with his left arm “ok” but is unable to do much with his right arm. . . . The claimant indicated that on a typical day, he manages 14 his personal care and takes a long time showering with one hand since his 15 mobility is limited. The claimant noted that he is able to do very little household chores, prepare microwave meals, and do laundry once a week, 16 while his family does the grocery shopping for him. The claimant stated 17 that he uses marijuana and sometimes PCP, namely once a month, but otherwise takes Tylenol or Aleve for his pain, further noting that he is not 18 longer allowed to take Norco (Hearing Testimony). 19

20 Id. at 19. 21 The ALJ found that, although Plaintiff’s medically determinable impairments 22 could reasonably be expected to cause the alleged symptoms, his statements 23 “concerning the intensity, persistence[,] and limiting effects of [the] symptoms” were 24 “not entirely consistent with the medical evidence and other evidence in the record 25 for the reasons explained in this decision.” Id. The ALJ then stated that “despite his 26 allegations of pain and limited functioning, the objective medical findings in the 27 record revealed largely unremarkable findings and symptoms that were otherwise 1 Id. at 20. The ALJ, therefore, discounted Plaintiff’s subjective complaints for two 2 reasons: (1) lack of supporting medical evidence; and (2) conservative treatment. Id.7 3 2. Applicable law8 4 When a claimant produces objective medical evidence of an impairment that 5 could reasonably be expected to produce the pain or other symptoms alleged, absent 6 evidence of malingering, “the ALJ may reject the claimant’s testimony about the 7 severity of those symptoms only by providing specific, clear, and convincing reasons 8 for doing so.” Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020) (citations and 9 internal quotation marks omitted); Garrison v. Colvin, 759 F.3d 995, 1014-15 (9th Cir. 10 2014); Berry v. Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010). “The ALJ must state 11 specifically which symptom testimony is [discounted] and what facts in the record 12 lead to that conclusion.” Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996); see 13 also Brown-Hunter v. Colvin, 806 F.3d 487, 489 (9th Cir. 2015) (“A finding that a 14 claimant’s testimony is not credible ‘must be sufficiently specific to allow a reviewing 15 court to conclude the adjudicator rejected the claimant’s testimony on permissible 16 7 The Commissioner posits one more reason purportedly supporting the ALJ’s discounting of 17 Plaintiff’s subjective complaints, namely, his failure to follow the proscribed post-surgery treatment of physical therapy. Def’s Motion at 4–5. While the ALJ noted Plaintiff’s admission in November 18 2020 that he did not go to physical therapy after his April 2020 right shoulder surgery (AR at 20, citing id. at 383) as well as Plaintiff’s referral to physical therapy in October 2021 to improve his 19 right shoulder range of motion (id. at 20, citing id. at 505), the ALJ did not specifically reject Plaintiff’s testimony about the limiting effects of his right upper extremity impairment based on his 20 failure to go to physical therapy. See id. at 20. Therefore, the Court will not review that reason. See Burrell, 775 F.3d at 1138; Orn, 495 F.3d at 630. 21 8 Before the ALJ’s decision, Social Security Ruling (“SSR”) 16-3p went into effect. See SSR 16-3p, 22 2017 WL 5180304. SSR 16-3p provides that “we are eliminating the use of the term ‘credibility’ from our sub-regulatory policy, as our regulations do not use this term.” Id. at *2. Moreover, “[i]n 23 doing so, we clarify that subjective symptom evaluation is not an examination of an individual’s character” and requires that the ALJ consider all of the evidence in an individual’s record when 24 evaluating the intensity and persistence of symptoms. Id.; see also Trevizo v. Berryhill, 871 F.3d 664, 678 n.5 (9th Cir. 2017) (as amended). Thus, the adjudicator “will not assess an individual’s 25 overall character or truthfulness in the manner typically used during an adversarial court litigation. The focus of the evaluation of an individual’s symptoms should not be to determine whether he or 26 she is a truthful person.” SSR 16-3p, 2017 WL 5180304, at *11. SSR 16-3p’s elimination of the word “credibility” from the Agency’s subjective-symptom evaluation “does not, however, alter the 27 standards by which courts will evaluate an ALJ’s reasons for discounting a claimant’s testimony.” Elizabeth B. v. Comm’r Soc. Sec., 2020 WL 1041498, at *3 (W.D. Wash. Mar. 4, 2020); see also R.P. 1 grounds and did not arbitrarily discredit a claimant’s testimony regarding pain.’”) 2 (quoting Bunnell v. Sullivan, 947 F.2d 341, 345-46 (9th Cir. 1991). 3 “If the ALJ’s . . . finding is supported by substantial evidence, [a court] may not 4 engage in second-guessing.” Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002); 5 see also Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). However, an ALJ’s 6 failure to give specific, clear, and convincing reasons to reject the claimant’s testimony 7 regarding the severity of the symptoms is not harmless, because it precludes the Court 8 from conducting a meaningful review of the ALJ’s reasoning. Brown-Hunter, 806 9 F.3d at 489. Moreover, as mentioned, a court must “review only the reasons provided 10 by the ALJ in the disability determination and may not affirm the ALJ on a ground 11 upon which he did not rely.” Orn, 495 F.3d at 630. Courts, therefore, may not 12 speculate as to the basis for unexplained conclusions but, rather, must only consider 13 the reasoning actually given by the ALJ. See Burrell v. Colvin, 775 F.3d 1133, 1138 14 (9th Cir. 2014) (“We are constrained to review the reasons the ALJ asserts . . . [and] 15 may not take a general finding . . . and comb the [AR] to find specific conflicts.”) 16 (citation omitted). 17 Finally, even if an ALJ errs in assessing subjective complaints, the decision will 18 be affirmed where such error is harmless, that is, if it is “inconsequential to the 19 ultimate nondisability determination,” or if “the agency’s path may reasonably be 20 discerned, even if the agency explains its decision with less than ideal clarity.” Brown- 21 Hunter, 806 F.3d at 492 (citation omitted); Smith, 14 F.4th at 1111 (even where the 22 “modest burden” of the substantial evidence standard is not met, “we will not reverse 23 an ALJ’s decision where the error was harmless”). In that regard, the ALJ’s finding 24 may be upheld even if not all the ALJ’s reasons for rejecting the claimant’s testimony 25 are valid. See Bray v. Comm’r Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009); 26 Batson v. Comm’r Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004). 27 /// 1 3. Analysis 2 (a) Conservative treatment 3 The ALJ discounted Plaintiff’s subjective testimony in part because his 4 “symptoms that were otherwise reasonably controlled with conservative treatment 5 modalities.” AR at 20. 6 As the ALJ noted, on November 17, 2020, Plaintiff admitted that he did not go 7 to physical therapy after his April 10, 2020 right shoulder surgery (open reduction 8 internal fixation right proximal humerus fracture with the placement of hardware, id. 9 at 366, 418–20). Id. at 384; see also id. at 375, 380 (treatment notes dated September 10 22, 2020 and November 6, 2020 indicate that Plaintiff was “not going to his physical 11 therapy appointments”). The ALJ further noted that, in October 2021, Plaintiff was 12 recommended only physical therapy to improve his right shoulder range of motion. 13 Id. at 505. 14 Although evidence of conservative treatment may be used as a basis to 15 discount a claimant’s symptom testimony, see Parra v. Astrue, 481 F.3d 742, 751 (9th 16 Cir. 2007) (“[E]vidence of conservative treatment’ is sufficient to discount a claimant’s 17 testimony regarding severity of an impairment.”) (citing Johnson v. Shalala, 60 F.3d 18 1428, 1434 (9th Cir. 1995)); see also Jiminez v. Colvin, 2013 WL 3200523, at *5 (C.D. 19 Cal. June 24, 2013) (“Infrequent, conservative treatment is not indicative of a 20 disabling impairment.”), here, the record does not reflect that Plaintiff received 21 conservative treatment for his symptoms post-right shoulder surgery or that 22 conservative treatment “reasonably controlled” Plaintiff’s symptoms post-right 23 shoulder surgery. 24 Two weeks after the surgery, Plaintiff’s pain was only “mildly improved” and 25 Plaintiff was prescribed Norco, an opioid. Id. at 371–72. In September 2020: (1) 26 Plaintiff reported that he had “constant dull pain” (rated 8 out of 10) and “loss of 27 range of motion” in his right shoulder, that he could not perform certain daily 1 examination revealed right shoulder tenderness and decreased range of motion; and 2 (3) an X-ray showed “one screw beyond the cortex into the glenohumeral joint.” Id. 3 at 375–77. On November 6, 2020: (1) Plaintiff reported that he had “constant dull 4 pain” (rated 9 out of 10) and “loss of range of motion” in his right shoulder; (2) 5 examination revealed decreased range of motion; (3) a CT scan showed that “2 screw 6 tips appear to enter glenohumeral joint”; and (4) the examiner noted that Motrin, 7 Norco, and Aleve had not helped Plaintiff’s pain and that Plaintiff was being referred 8 to pain management. Id. at 379–81. On November 17, 2020: (1) Plaintiff reported 9 that he had a “constant dull pain” (rated 8 out of 10) and “loss of range of motion” in 10 his right shoulder; (2) examination revealed that Plaintiff experienced pain with right 11 shoulder movement (abduction, extension, adduction, internal rotation, and external 12 rotation); and (3) the examiner noted that hardware removal was discussed with 13 Plaintiff, but there was no guarantee the procedure would resolve all of his pain. Id. 14 at 383–85. On January 5, 2021: (1) Plaintiff reported that he had “significant” 15 stiffness and pain (rated 8 out of 10) in his right shoulder; (2) examination revealed 16 “[m]inimal active motion of the [right] shoulder due to pain and stiffness”; and (3) the 17 examiner noted that “postoperatively he developed avascular necrosis of the humeral 18 head and now has collapse with intra-articular hardware,” that Plaintiff was interested 19 in the surgery (hardware removal), that “X-rays and CT scans of the right shoulder 20 show intact proximal humerus hardware with collapse of the humeral head and cut 21 out of the screws,” and that Plaintiff was told the procedure may not relieve all his 22 pain, “it is possible that there are nonhealed fragments which may be free after 23 removal of the hardware,” and “further surgeries down the line for shoulder arthritis” 24 would be likely. Id. at 365–67. Although surgery was scheduled for early January, the 25 surgery could not take place due to Plaintiff’s positive drug screen test (PCP and 26 THC) and his being “late” for surgery. Id. at 354, 388. 27 On January 29, 2021: (1) Plaintiff reported he was “continuing to have pain and 1 (2) examination revealed reduced range of motion and pain with movement in the 2 right shoulder; and (3) Plaintiff received a steroid injection in the right shoulder. Id. at 3 387–90. On March 6, 2021: (1) Plaintiff reported he was having continuing pain 4 (rated 9 out of 10) and limited mobility in his right shoulder and requested the 5 rescheduling of his surgery; (2) examination revealed reduced range of motion and 6 pain with movement in the right shoulder; and (3) the examiner that Plaintiff would 7 be rescheduled for surgery if he has two negative drug screen tests one month apart. 8 Id. at 353–56. On October 28, 2021, Plaintiff reported he had pain and “limited 9 range of motion due to hardware,” and requested “to be referred back to orthopedics 10 for removal”; the examiner also noted that Plaintiff was “[a]greeable to starting 11 physical therapy in the interim” and that he would benefit from physical therapy for 12 improvement in range of motion. Id. at 502-05.9 13 Here, while Plaintiff did not go to physical therapy after his April 2020 right 14 shoulder surgery, and while Plaintiff in October 2021 was recommended physical 15 therapy for improvement in his right shoulder range of motion, that does not mean 16 his treatment was conservative. Plaintiff not only had surgery on his right shoulder 17 but Plaintiff also: (1) was prescribed narcotic pain medication (Norco); (2) was 18 scheduled to have another surgery for the hardware removal (a surgery that might not 19 relieve all his pain); (3) received a steroid injection; and (4) was told about “likely” 20 later surgeries for his shoulder arthritis. AR at 366-67, 371–72, 390, 418–20. 21 Moreover, the more recently recommended physical therapy was an attempt to help 22 him while he awaited a referral back to orthopedics for the hardware removal. Id. at 23 503, 505. Reviewing Plaintiff’s treatment as a whole, it appears that Plaintiff’s 24 treatment for his right shoulder injury was not conservative. See, e.g., Alexander C. v. 25 Saul, 2020 WL 6321765, at *4 (C.D. Cal. Oct. 2, 2020) (spinal surgery, epidural 26

27 9 There does not appear to be anything in the record, and the parties do not direct the Court to 1 injections and narcotic pain medications is “far from conservative” treatment); 2 Christine G. v. Saul, 402 F. Supp. 3d 913, 926 (C.D. Cal. 2019) (“Many courts have 3 previously found that strong narcotic pain medications and spinal epidural injections 4 are not considered to be ‘conservative’ treatment.”); Sanchez v. Colvin, 2013 WL 5 1319667, at *4 (C.D. Cal. Mar. 29, 2013) (“Surgery is not conservative treatment.”). 6 Moreover, the ALJ has failed to state how Plaintiff’s treatment, conservative or 7 otherwise, “reasonably controlled” Plaintiff’s symptoms post-right shoulder surgery. 8 As discussed above, after the surgery, Plaintiff repeatedly complained of pain and 9 limited range of movement in the right shoulder, and examination repeatedly revealed 10 reduced range of motion in the right shoulder. See AR at 353–56, 365–67, 371, 375– 11 77, 379–81, 383–85, 387–90, 502–04. The medical record simply does not reflect that 12 Plaintiff responded well to treatment after surgery. See Crane v. Shalala, 76 F.3d 251, 13 254 (9th Cir. 1996) (finding that “the evidence suggesting that [claimant] responds 14 well to treatment” supports an adverse credibility determination). 15 Therefore, the ALJ’s reasoning that Plaintiff’s subjective complaints were 16 “reasonably controlled with conservative treatment modalities” did not constitute a 17 “specific, clear, and convincing reason” for discounting his testimony. 18 (b) Lack of supporting objective medical evidence 19 Although the ALJ gave a detailed summary of the medical evidence, the ALJ 20 did not specifically identify the inconsistencies between Plaintiff’s subjective 21 complaints and the medical evidence. AR at 20. The ALJ stated that “the objective 22 medical findings in the record revealed largely unremarkable findings,” but the ALJ 23 left it to the reader to draw inferences about how the evidence interacted with 24 Plaintiff’s testimony. Id. Even if this court could reasonably infer inconsistencies 25 with Plaintiff’s testimony from the ALJ’s summary, such inferences cannot form the 26 basis for affirming the ALJ’s decision. See Brown-Hunter, 806 F.3d at 493-94 27 (“[I]nconsistencies identified independently by the district court cannot provide the 1 basis upon which we can affirm the ALJ’s decision even where they are “reasonable 2 inferences”). 3 Moreover, even if the ALJ had cited specific testimony and how the medical 4 evidence contradicted it, “lack of medical evidence cannot form the sole basis for 5 discounting pain testimony.” Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005); 6 Rollins, 261 F.3d at 856-57; Bunnell, 947 F.2d at 345. 7 Therefore, the ALJ’s conclusion that Plaintiff’s subjective complaints were not 8 entirely consistent with the objective medical evidence (see AR at 19–20) does not 9 constitute a “specific, clear, and convincing reason” for discounting Plaintiff’s 10 subjective complaints. 11 In sum, the ALJ failed to provide sufficient reasons for discounting Plaintiff’s 12 testimony about the limiting effects of his right upper extremity impairment. 13 4. Harmlessness 14 The ALJ’s error in rejecting Plaintiff’s subjective complaints is not harmless. A 15 decision of the ALJ will not be reversed for errors that are harmless. Stout v. Comm’r 16 of Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) (citing Burch, 400 F.3d at 17 679). However, a reviewing court cannot consider an error harmless “unless it can 18 confidently conclude that no reasonable ALJ . . . could have reached a different 19 disability determination.” Id. at 1056. In other words, legal errors are harmless only if 20 they are inconsequential to the non-disability decision. Id. at 1055. 21 Here, the ALJ’s determination that Plaintiff was not disabled necessarily relied 22 on the ALJ’s rejecting of Plaintiff’s allegations regarding the limiting effect of his 23 impairments. Therefore, the Court was precluded from conducting a meaningful 24 review of the ALJ’s reasoning, and the Court cannot conclude that the ALJ’s 25 improper analysis of Plaintiff’s subjective complaints was harmless error. See Brown- 26 Hunter, 806 F.3d at 492-93 (ALJ’s failure adequately to specify reasons for 27 discounting claimant testimony “will usually not be harmless”). 1 VIII. 2 RELIEF 3 A. APPLICABLE LAW 4 “When an ALJ’s denial of benefits is not supported by the record, ‘the proper 5 course, except in rare circumstances, is to remand to the agency for additional 6 investigation or explanation.’” Hill, 698 F.3d at 1162 (citation omitted). “We may 7 exercise our discretion and direct an award of benefits ‘where no useful purpose 8 would be served by further administrative proceedings and the record has been 9 thoroughly developed.’” Id. (citation omitted). “Remand for further proceedings is 10 appropriate where there are outstanding issues that must be resolved before a 11 determination can be made, and it is not clear from the record that the ALJ would be 12 required to find the claimant disabled if all the evidence were properly evaluated.” Id.; 13 see also Reddick, 157 F.3d at 729 (“We do not remand this case for further 14 proceedings because it is clear from the administrative record that Claimant is entitled 15 to benefits.”). 16 B. ANALYSIS 17 Here, Plaintiff does not request immediate award of benefits, but a remand for 18 further proceedings. Pl’s Brief at 10. Moreover, the ALJ’s assessment of Plaintiff’s 19 subjective complaints about his symptoms and limitations resulting from his right 20 shoulder impairment is intertwined with the consideration of medical evidence and 21 ultimately the fashioning of the RFC. Because it is unclear, considering these issues, 22 whether Plaintiff was in fact disabled, remand here is on an “open record.” See 23 Brown-Hunter, 806 F.3d at 495-46; Bunnell v. Barnhart, 336 F.3d 1112, 1115-16 (9th 24 Cir. 2003). 25 The parties may freely take up all issues raised in the parties’ pleadings, and any 26 other issues relevant to resolving Plaintiff’s claim of disability, before the ALJ. See 27 Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012) (“Because we remand the case to 1 | remand.”); Augustine ex rel. Ramirez v. Astrue, 536 F. Supp. 2d 1147, 1153 n.7 (C.D. 2 | Cal. 2008) (‘[The] Court need not address the other claims plaintiff raises, none of 3 | which would provide plaintiff with any further relief than granted, and all of which 4 | can be addressed on remand.’’). 5 IX. 6 CONCLUSION 7 For the foregoing reasons, IT IS ORDERED that judgment be entered 8 | REVERSING the decision of the Commissioner and REMANDING this action 9 | for further proceedings consistent with this Memorandum and Order. 10 11 | Dated: August 16, 2023 JAX le HONORABLE MARGO A, ROCCONI 13 United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28