1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ISAAC ST. JOHN, Case No. 1:25-cv-00069-JLT-HBK 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO

REMAND CASE TO THE COMMISSIONER

13 v. OF SOCIAL SECURITY1 14 COMMISSIONER OF SOCIAL FOURTEEN-DAY OBJECTION PERIOD

SECURITY,

15 (Doc. No. 10, 13) Defendant. 16 17 18 19 Isaac St. John (“Plaintiff”) seeks judicial review of a final decision of the Commissioner 20 of Social Security (“Commissioner” or “Defendant”) denying his application for disability 21 insurance benefits under the Social Security Act. (Doc. No. 1). The matter is currently before the 22 Court on the parties’ briefs, which were submitted without oral argument. (Doc. Nos. 10, 13-14). 23 For the reasons stated below, the undersigned recommends granting Plaintiff’s motion for 24 summary judgment, denying the Commissioner’s cross-motion for summary judgment, and 25 remanding for further administrative proceedings. 26 ////

27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 (E.D. Cal. 2022). 28 1 I. JURISDICTION 2 Plaintiff protectively filed for disability insurance benefits on August 4, 2022, alleging an 3 onset date of August 1, 2020. (AR 227-30). Benefits were denied initially (AR 67-87, 111-16), 4 and upon reconsideration (AR 88-104, 117-22). Plaintiff appeared at a telephonic hearing before 5 an Administrative Law Judge (“ALJ”) on March 26, 2024. (AR 42-66). Plaintiff was represented 6 by counsel and testified at the hearing. (Id.). On April 17, 2024, the ALJ issued an unfavorable 7 decision (AR 14-41), and the Appeals Council denied review (AR 1-6). The matter is now before 8 this Court pursuant to 42 U.S.C. § 1383(c)(3). 9 II. BACKGROUND 10 The facts of the case are set forth in the administrative hearing and transcripts, the 11 Appeals Council and ALJ decisions, and the briefs of Plaintiff and Commissioner. Only the most 12 pertinent facts are summarized here. 13 Plaintiff was 41 years old at the time of the hearing. (See AR 263). He completed high 14 school. (AR 268). Plaintiff lives in a condominium with his girlfriend. (AR 50). Plaintiff has 15 work history as a building maintenance repairer, stock clerk, and housekeeping cleaner. (AR 47- 16 49, 59-60). Plaintiff testified that he has weakness, tingling, weakness, and pain in both elbows 17 and hands. (AR 52). He gets tingling and numbness starting at the elbows, if he doesn’t change 18 position he loses feeling completely, and then pain “starts to build.” (AR 52). Plaintiff reported 19 that he could lift “maybe” 10 pounds but not repetitively throughout the day, he can use his upper 20 extremities for 30 minutes before he has to take a break, he uses his upper extremities for a 21 maximum of 2 to 3 hours in an 8-hour workday, and he lays down due to pain about 2 hours a 22 day. (AR 52-54). Plaintiff testified he has pain in his neck almost every day. (AR 55). 23 III. STANDARD OF REVIEW 24 A district court’s review of a final decision of the Commissioner of Social Security is 25 governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is limited; the 26 Commissioner’s decision will be disturbed “only if it is not supported by substantial evidence or 27 is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). “Substantial 28 evidence” means “relevant evidence that a reasonable mind might accept as adequate to support a 1 conclusion.” Id. at 1159 (quotation and citation omitted). Stated differently, substantial evidence 2 equates to “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 3 citation omitted). In determining whether the standard has been satisfied, a reviewing court must 4 consider the entire record as a whole rather than searching for supporting evidence in isolation. 5 Id. 6 In reviewing a denial of benefits, a district court may not substitute its judgment for that of 7 the Commissioner. “The court will uphold the ALJ's conclusion when the evidence is susceptible 8 to more than one rational interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 9 2008). Further, a district court will not reverse an ALJ’s decision on account of an error that is 10 harmless. Id. An error is harmless where it is “inconsequential to the [ALJ’s] ultimate 11 nondisability determination.” Id. (quotation and citation omitted). The party appealing the ALJ’s 12 decision generally bears the burden of establishing that it was harmed. Shinseki v. Sanders, 556 13 U.S. 396, 409-10 (2009). 14 IV. FIVE-STEP SEQUENTIAL EVALUATION PROCESS 15 A claimant must satisfy two conditions to be considered “disabled” within the meaning of 16 the Social Security Act. First, the claimant must be “unable to engage in any substantial gainful 17 activity by reason of any medically determinable physical or mental impairment which can be 18 expected to result in death or which has lasted or can be expected to last for a continuous period 19 of not less than twelve months.” 42 U.S.C. § 423(d)(1)(A). Second, the claimant’s impairment 20 must be “of such severity that he is not only unable to do his previous work[,] but cannot, 21 considering his age, education, and work experience, engage in any other kind of substantial 22 gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A). 23 The Commissioner has established a five-step sequential analysis to determine whether a 24 claimant satisfies the above criteria. See 20 C.F.R. § 404.1520(a)(4)(i)-(v). At step one, the 25 Commissioner considers the claimant’s work activity. 20 C.F.R. § 404.1520(a)(4)(i). If the 26 claimant is engaged in “substantial gainful activity,” the Commissioner must find that the 27 claimant is not disabled. 20 C.F.R. § 404.1520(b). 28 If the claimant is not engaged in substantial gainful activity, the analysis proceeds to step 1 two. At this step, the Commissioner considers the severity of the claimant’s impairment. 20 2 C.F.R. § 404.1520(a)(4)(ii). If the claimant suffers from “any impairment or combination of 3 impairments which significantly limits [his or her] physical or mental ability to do basic work 4 activities,” the analysis proceeds to step three. 20 C.F.R. § 404.1520(c). If the claimant’s 5 impairment does not satisfy this severity threshold, however, the Commissioner must find that the 6 claimant is not disabled. 20 C.F.R. § 404.1520(c). 7 At step three, the Commissioner compares the claimant’s impairment to severe 8 impairments recognized by the Commissioner to be so severe as to preclude a person from 9 engaging in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(iii). If the impairment is as 10 severe or more severe than one of the enumerated impairments, the Commissioner must find the 11 claimant disabled and award benefits. 20 C.F.R. § 404.1520(d). 12 If the severity of the claimant’s impairment does not meet or exceed the severity of the 13 enumerated impairments, the Commissioner must pause to assess the claimant’s “residual 14 functional capacity.” Residual functional capacity (RFC), defined generally as the claimant’s 15 ability to perform physical and mental work activities on a sustained basis despite his or her 16 limitations, 20 C.F.R. § 404.1545(a)(1), is relevant to both the fourth and fifth steps of the 17 analysis. 18 At step four, the Commissioner considers whether, in view of the claimant’s RFC, the 19 claimant is capable of performing work that he or she has performed in the past (past relevant 20 work). 20 C.F.R. § 404.1520(a)(4)(iv). If the claimant is capable of performing past relevant 21 work, the Commissioner must find that the claimant is not disabled. 20 C.F.R. § 404.1520(f). If 22 the claimant is incapable of performing such work, the analysis proceeds to step five. 23 At step five, the Commissioner considers whether, in view of the claimant’s RFC, the 24 claimant is capable of performing other work in the national economy. 20 C.F.R. § 25 404.1520(a)(4)(v). In making this determination, the Commissioner must also consider 26 vocational factors such as the claimant’s age, education, and past work experience. 20 C.F.R. § 27 404.1520(a)(4)(v). If the claimant is capable of adjusting to other work, the Commissioner must 28 find that the claimant is not disabled. 20 C.F.R. § 404.1520(g)(1). If the claimant is not capable 1 of adjusting to other work, analysis concludes with a finding that the claimant is disabled and is 2 therefore entitled to benefits. 20 C.F.R. § 404.1520(g)(1). 3 The claimant bears the burden of proof at steps one through four above. Tackett v. Apfel, 4 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to step five, the burden shifts to the 5 Commissioner to establish that (1) the claimant is capable of performing other work; and (2) such 6 work “exists in significant numbers in the national economy.” 20 C.F.R. § 404.1560(c)(2); 7 Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). 8 V. ALJ’S FINDINGS 9 At step one, the ALJ found that Plaintiff has not engaged in substantial gainful activity 10 since August 1, 2020, the alleged onset date. (AR 19). At step two, the ALJ found that Plaintiff 11 has the following severe impairments: thoracolumbar degenerative disc disease with lumbar 12 scoliosis; cervical degenerative disc disease; bilateral carpal tunnel syndrome; bilateral cubital 13 tunnel syndrome; and chronic obstructive pulmonary disease. (AR 20). At step three, the ALJ 14 found that Plaintiff does not have an impairment or combination of impairments that meets or 15 medically equals the severity of one of the listed impairments. (AR 22). The ALJ then found that 16 Plaintiff had the RFC to 17 perform light work as defined in 20 CFR 404.1567(b) except could only occasionally climb, stoop, kneel, crouch and crawl; could 18 occasionally engage in balance on uneven surfaces; could have occasional exposure to concentrated airborne irritants such as fumes, 19 odors, dusts, gases and poorly ventilated areas; and, with the bilateral upper extremities, could frequently reach, handle and finger objects. 20 21 (AR 23). At step four, the ALJ found that Plaintiff is unable to perform any past relevant work. 22 (AR 34). At step five, the ALJ found that, considering Plaintiff’s age, education, work 23 experience, and RFC, there are jobs that exist in significant numbers in the national economy that 24 Plaintiff can perform, including garment sorter, gate attendant, and office helper. (AR 34-35). 25 On that basis, the ALJ concluded that Plaintiff has not been under a disability, as defined in the 26 Social Security Act, from August 1, 2020, through the date of the decision. (AR 35). 27 VI. ISSUES 28 Plaintiff seeks judicial review of the Commissioner’s final decision denying his disability 1 insurance benefits under Title II of the Social Security Act. (Doc. No. 1). Plaintiff raises the 2 following issues for this Court’s review: 3 1. Whether the RFC was supported by substantial evidence in light of the ALJ’s 4 consideration of the medical opinion of Randi A. Galli, M.D., FACS; and 5 2. Whether the ALJ properly considered Plaintiff’s symptom claims regarding repetitive, 6 prolonged use of his upper extremities/elbows. 7 (Doc. No. 10 at 3-16). 8 VII. DISCUSSION 9 A. RFC/Medical Opinion 10 For claims filed on or after March 27, 2017, new regulations apply that change the 11 framework for how an ALJ must evaluate medical opinion evidence. Revisions to Rules 12 Regarding the Evaluation of Medical Evidence, 2017 WL 168819, 82 Fed. Reg. 5844-01 (Jan. 18, 13 2017); 20 C.F.R. §§ 404.1520c, 416.920c. The new regulations provide that the ALJ will no 14 longer “give any specific evidentiary weight…to any medical opinion(s)…” Revisions to Rules, 15 2017 WL 168819, 82 Fed. Reg. 5844, at 5867-68; see 20 C.F.R. §§ 404.1520c(a), 416.920c(a). 16 Instead, an ALJ must consider and evaluate the persuasiveness of all medical opinions or prior 17 administrative medical findings from medical sources. 20 C.F.R. §§ 404.1520c(a) and (b), 18 416.920c(a) and (b). The factors for evaluating the persuasiveness of medical opinions and prior 19 administrative medical findings include supportability, consistency, relationship with the claimant 20 (including length of the treatment, frequency of examinations, purpose of the treatment, extent of 21 the treatment, and the existence of an examination), specialization, and “other factors that tend to 22 support or contradict a medical opinion or prior administrative medical finding” (including, but 23 not limited to, “evidence showing a medical source has familiarity with the other evidence in the 24 claim or an understanding of our disability program’s policies and evidentiary requirements”). 20 25 C.F.R. §§ 404.1520c(c)(1)-(5), 416.920c(c)(1)-(5). 26 Supportability and consistency are the most important factors, and therefore the ALJ is 27 required to explain how both factors were considered. 20 C.F.R. §§ 404.1520c(b)(2), 28 416.920c(b)(2). Supportability and consistency are explained in the regulations: 1 (1) Supportability. The more relevant the objective medical evidence and supporting explanations presented by a medical source are to 2 support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior 3 administrative medical finding(s) will be. 4 (2) Consistency. The more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other 5 medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical 6 finding(s) will be. 7 20 C.F.R. §§ 404.1520c(c)(1)-(2), 416.920c(c)(1)-(2). The ALJ may, but is not required to, 8 explain how the other factors were considered. 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2). 9 However, when two or more medical opinions or prior administrative findings “about the same 10 issue are both equally well-supported ... and consistent with the record ... but are not exactly the 11 same,” the ALJ is required to explain how “the other most persuasive factors in paragraphs (c)(3) 12 through (c)(5)” were considered. 20 C.F.R. §§ 404.1520c(b)(3), 416.920c(b)(3). 13 The Ninth Circuit has additionally held that the new regulatory framework displaces the 14 longstanding case law requiring an ALJ to provide “specific and legitimate” or “clear and 15 convincing” reasons for rejecting a treating or examining doctor’s opinion. Woods v. Kijakazi, 32 16 F.4th 785, 787 (9th Cir. 2022). Nonetheless, in rejecting an examining or treating doctor’s 17 opinion as unsupported or inconsistent, an ALJ must still provide an explanation supported by 18 substantial evidence. Id. at 792. This means that the ALJ “must ‘articulate ... how persuasive’ 19 [he or she] finds ‘all of the medical opinions’ from each doctor or other source ... and ‘explain 20 how [he or she] considered the supportability and consistency factors’ in reaching these findings.” 21 Id. (citing 20 C.F.R. §§ 404.1520c(b), 404.1520(b)(2)). 22 Here, Plaintiff argues the ALJ failed to properly evaluate Dr. Galli’s opinion as to 23 Plaintiff’s upper extremity limitations. (Doc. No. 10 at 3-12). In March 2023, Plaintiff’s treating 24 specialist Randi A. Galli, M.D., FACS, opined that Plaintiff was limited to “no prolonged 25 repetitive motion (rotation, flexion, extension, etc….) bilateral elbows.” (AR 2928). The ALJ 26 “ultimately” found “the evidence as a whole inconsistent with the elbow limit endorsed by Dr. 27 Galli. Thus, the opinion is unpersuasive.” (AR 33). 28 First, as to the supportability factor, “the more relevant the objective medical evidence and 1 supporting explanations presented by a medical source are to support” the medical opinion, the 2 more persuasive the medical opinion will be. 20 C.F.R. § 416.920c(c)(1) (emphasis added). 3 Here, presumably as to the supportability factor, the ALJ cites to a single March 2023 treatment 4 visit with Dr. Galli with the notation that the “exhibit” containing Dr. Galli’s opinion also 5 included “exam notes as attempted support.” (AR 33 (citing AR 2946-51)). The ALJ 6 acknowledged that Plaintiff endorsed pain in his elbows and numbness in his fingers, and “there 7 were signs of bilateral cubital tunnel”; “yet” there was no atrophy or abnormal 2-point 8 discrimination, grip strength “appeared rather decent,” and “even though the claimant prefers to 9 avoid surgery, exam findings were fairly decent.” (AR 33). Plaintiff argues these findings “lack 10 any specificity or explanation” and the ALJ’s reference to “signs of cubital tunnel syndrome as a 11 reason to reject Dr. Galli’s limitations is ambiguous and unclear at best, given that Dr. Galli 12 documented multiple objective testing findings and provided extensive explanation, confirming 13 the diagnosis of Cubital Tunnel Syndrome.” (Doc. No. 10 at 5). The Court agrees. 14 When considering the medical opinion evidence, the ALJ must do more than state a 15 conclusion; rather, the ALJ must “set forth his own interpretations and explain why they, rather 16 than the doctors’, are correct.” Reddick, 157 F.3d at 725 (“This can be done by setting out a 17 detailed and thorough summary of the facts and conflicting clinical evidence, stating his 18 interpretation thereof, and making findings.”); Brown-Hunter v. Colvin, 806 F.3d 487, 495 (9th 19 Cir. 2015) (a court “cannot substitute [the court's] conclusions for the ALJ’s, or speculate as to 20 the grounds for the ALJ's conclusions. Although the ALJ’s analysis need not be extensive, the 21 ALJ must provide some reasoning in order for [the court] to meaningfully determine whether the 22 ALJ’s conclusions were supported by substantial evidence.”). As noted above, the Ninth Circuit 23 further clarified that under the new regulations for considering medical evidence, “an ALJ cannot 24 reject an examining or treating doctor's opinion as unsupported or inconsistent without providing 25 an explanation supported by substantial evidence. The agency must ‘articulate ... how persuasive’ 26 it finds ‘all of the medical opinions’ from each doctor or other source, and ‘explain how [it] 27 considered the supportability and consistency factors’ in reaching these findings.” Woods, 32 28 F.4th at 792 (internal citations omitted). 1 Here, the ALJ does not identify with specificity or explain how the described “rather 2 decent” grip strength and “fairly decent” examination findings fail to support Dr. Galli’s opined 3 limitations on Plaintiff’s ability to use his upper extremities. More notably, as argued by 4 Plaintiff, the ALJ fails to consider extensive objective findings and supporting explanations by 5 Dr. Galli in the cited March 2023 treatment note, including left and right ulnar “neuropathy 6 localized to the cubital tunnel, chronic, with frequent numbness and paresthesias” involving the 7 ring and little fingers, “nearly always during a period of elbow flexion, diagnosed previously in 8 the QME evaluation by Donald Pompan, M.D. QME and supported by the electrodiagnostic study 9 by Sanjay Deshmukh, M.D. on 10/18/2021 … demonstrating a significant slowing of the motor 10 conduction velocity across the level of the [right and left] elbow, symptomatic, presently 11 appearing to have findings consistent with a neuropraxia injury presently still very symptomatic 12 despite nocturnal use of the elbow splint greater than three months.” (AR 2949-50; see also AR 13 1457-58, 1509-21). Similarly, the ALJ does not consider an earlier treatment note from October 14 2022, wherein Dr. Galli conducted a thorough review of Plaintiff’s medical records; diagnosed 15 Plaintiff with lesion of the ulnar nerve in the right and left upper limb and carpal tunnel of the 16 right and left upper limb; and prescribed an elbow splint for three months on the left elbow, 17 followed by three months on the right elbow. (AR 2930-37). 18 Finally, Plaintiff argues the ALJ “erroneously ‘cherry picked’ findings out of context with 19 Dr. Galli’s complete notation” in finding “while there were signs of bilateral cubital tunnel, there 20 was no atrophy or 2-point discrimination.” (Doc. No. 10 at 9). As noted by Plaintiff, “a review 21 of the actual treatment record in its entirety reveals that this sentence was in reference to the 22 documentation of a detailed discussion Dr. Galli had with [Plaintiff] regarding the benefits and 23 drawbacks of the undergoing surgery …. [T]here is no indication that Dr. Galli was citing these 24 objective findings as reasons to increase [Plaintiff’s] RFC capacity but rather explaining why he 25 agreed with [Plaintiff’s] decision to hold off on surgery for the time being.” (Id.). Moreover, the 26 ALJ does not appear to consider Dr. Galli’s extensive discussion of “future medical care” which 27 further explains that while Plaintiff is a candidate for surgery, about 30% of those who undergo 28 the surgery do not experience long-term relief, and as particularly relevant to the limitations 1 assessed here, “[f]or patients that have to perform prolonged elbow flexion or highly repetitive 2 elbow flexion and extension as part of their work, [the surgery] is often insufficient. The ulnar 3 nerve is still subject to the same stretch and forces as it was prior to surgery. Hence, their 4 symptoms return.” (AR 2950). Based on the foregoing, the ALJ failed to provide the requisite 5 explanation for how Dr. Galli’s opined limitation as to Plaintiff’s upper extremities is 6 unsupported by the objective findings and explanations in Dr. Galli’s own treatment notes. 7 The Court notes that Defendant offers no argument specifically as to the ALJ’s 8 supportability analysis; instead, the Commissioner generally argues that the “Ninth Circuit has 9 clearly stated that an ALJ may find an opinion unpersuasive because either it was unsupported by 10 evidence from the medical source or inconsistent with other evidence.” (Doc. No. 13 at 7 (citing 11 Woods, 32 F.4th 793)). Defendant has arguably waived any argument that this reason was legally 12 sufficient by failing to respond to Plaintiff’s specific arguments regarding the supportability 13 factor. See, e.g., Jeffrey C. v. Kijakazi, 2023 WL 4760603, at *3 (D. Or. July 26, 2023) 14 (collecting cases) (“The Government’s failure to defend Plaintiff’s allegations of error, … is a 15 concession of those alleged errors.”). Regardless, the Court notes that, aside from Woods, the 16 only case law offered in support of Defendant’s argument that the ALJ properly considered the 17 Dr. Galli’s opinion is a recent Ninth Circuit case affirming an ALJ’s finding that an opinion was 18 unpersuasive because “while the opinion was supported by examination notes, it was ‘not 19 consistent with the longitudinal evidence of record.’” (Doc. No. 13 at 8 (citing Allen v. Kijakazi, 20 2023 WL 2728857, at *1 (9th Cir. Mar. 31, 2023). The instant case is distinguishable from Allen 21 because the ALJ in that case found the opinion was supported by examination notes but still 22 found it unpersuasive because it was not consistent with the longitudinal record, whereas here, as 23 discussed in detail above, the ALJ finding as to the supportability factor was not supported by 24 substantial evidence. (See AR 33). 25 Second, as to the consistency factor, the ALJ noted, without citation to the record or 26 supporting evidence, that “while subjective complaints have continued and there have been some 27 observed objective abnormalities, at times, many exams, even with only conservative treatment, 28 have reflected good upper extremity strength, full range of motion and normal sensation. 1 Ultimately, the undersigned finds the evidence as a whole inconsistent with the elbow limit 2 endorsed by Dr. Galli.” (AR 33). Plaintiff argues the ALJ does not adequately support this 3 finding. (Doc. No. 10 at 10-12). The Court agrees. 4 In support of this finding, the ALJ generally references “many exams” that “have reflected 5 good upper extremity strength, full range of motion and normal sensation,” without citation to 6 medical evidence from the record that is inconsistent with the precise limitations opined by Dr. 7 Galli, or explanation as to how the “many exams” are inconsistent with those limitations. (See 8 AR 33); see Woods, 32 F.4th at 792 (in rejecting an examining or treating doctor’s opinion as 9 unsupported or inconsistent under the new regulations, an ALJ must still provide an explanation 10 supported by substantial evidence). Defendant cites a portion of the ALJ’s summary of the 11 medical evidence that could arguably support a finding of that Dr. Galli’s opined limitations are 12 inconsistent with the “evidence as a whole,” including “normal gait good extremity strength and 13 range of motion, and full lumbar range of motion as well as some observations of modest upper 14 extremity weakness.” (Doc. No. 13 at 8 (citing AR 29, 593-94, 653 (visit only related to back 15 pain), 666-67, 686-87, 697, 1117, 1217 (upper extremity strength 4/5), 1221, 1357-58 (visit 16 related only to back pain), 1637-38, 1721 (visit related only to back pain), 1841, 1924, 1942, 17 1981, 1990, 2001, 2040, 2068, 2111, 2923-24)). 18 However, while the evidence cited by Defendant was included in the ALJ’s summary of 19 the medical evidence, it was not cited by the ALJ as evidence of inconsistency between Dr. 20 Galli’s opinion and the overall record. (See AR 33); Bray v. Comm'r of Soc. Sec. Admin., 554 21 F.3d 1219, 1226 (9th Cir. 2009) (the Court “review[s] the ALJ's decision based on the reasoning 22 and factual findings offered by the ALJ—not post hoc rationalizations that attempt to intuit what 23 the adjudicator may have been thinking.”). Moreover, as noted by Plaintiff and observed in a 24 number of the treatment notes cited by Defendant supra, while the longitudinal record contains 25 evidence of more benign examination findings particularly in 2020, the record also includes 26 ongoing evidence throughout the relevant adjudicatory period of pain and tenderness to palpation 27 in the bilateral upper extremities, decreased grip strength, positive Tinel and Phalen signs, 28 positive left cubital Tinel’s test, diagnosis of bilateral ulnar motor neuropathy across the elbow, 1 and diagnosed of bilateral cubital tunnel syndrome. (Doc. No. 10 at 10-12; AR 594, 643, 648, 2 664, 674, 686-88 (noting “presumed carpal tunnel syndrome” and prescribing wrist splints to 3 wear nightly), 692, 694-97, 1117, 1182, 1443-48 (examination findings confirming clinical 4 symptoms consistent with bilateral cubital tunnel syndrome), 1457-58 (“Abnormal [Nerve 5 Conduction Study] with findings of bilateral Ulnar motor neuropathy across the elbow”), 1501 6 (positive left cubical Tinel’s test), 1526 (same), 1536 (same), 1548 (same), 1561, 1915 (decreased 7 grip strength bilaterally), 1924, 1942, 1990, 2001, 2040, 2052, 2068, 2923-24, 2949-50, 3013-21 8 (noting surgery was recommended by Dr. Galli, “an upper extremity specialist”)). Thus, the 9 ALJ’s finding that Dr. Galli’s opinion was unpersuasive because it was inconsistent with the 10 “evidence as a whole,” was not supported by substantial evidence. 11 Based on the foregoing, the ALJ’s finding that Dr. Galli’s opinion was not persuasive is 12 not supported by substantial evidence. On remand, the ALJ should reconsider Dr. Galli’s medical 13 opinion, along with all relevant medical opinion evidence. 14 B. Additional Assignments of Error 15 Plaintiff also argues the ALJ failed to properly consider Plaintiff’s subjective complaints. 16 (Doc. No. 10 at 12-16). In light of the finding, discussed in detail supra, that the RFC needs to be 17 reassessed due to improper consideration of Dr. Galli’s medical opinion and the relevant medical 18 evidence, the Court declines to consider this challenge in detail here. On remand, the ALJ is 19 instructed to reconsider the relevant medical opinion evidence and conduct a new sequential 20 analysis, including a reevaluation of Plaintiff’s symptom claims, and a reassessment of the RFC 21 and step five finding if necessary. 22 C. Remedy 23 Plaintiff asks the Court to remand for an immediate award of benefits. (Doc. No. 10 at 24 16). The decision whether to remand for further proceedings or reverse and award benefits is 25 within the discretion of the district court. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 26 1989). An immediate award of benefits is appropriate where “no useful purpose would be served 27 by further administrative proceedings, or where the record has been thoroughly developed,” 28 Varney v. Sec'y of Health & Human Servs., 859 F.2d 1396, 1399 (9th Cir. 1988), or when the 1 delay caused by remand would be “unduly burdensome[.]” Terry v. Sullivan, 903 F.2d 1273, 2 1280 (9th Cir. 1990); see also Garrison, 759 F.3d at 1021 (noting that a district court may abuse 3 its discretion not to remand for benefits when all of these conditions are met). This policy is 4 based on the “need to expedite disability claims.” Varney, 859 F.2d at 1401. But where there are 5 outstanding issues that must be resolved before a determination can be made, and it is not clear 6 from the record that the ALJ would be required to find a claimant disabled if all the evidence 7 were properly evaluated, remand is appropriate. See Benecke v. Barnhart, 379 F.3d 587, 595-96 8 (9th Cir. 2004); Harman v. Apfel, 211 F.3d 1172, 1179-80 (9th Cir. 2000). 9 The Court recommends that further administrative proceedings are appropriate. See 10 Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1103-04 (9th Cir. 2014) (remand for 11 benefits is not appropriate when further administrative proceedings would serve a useful 12 purpose). Here, the ALJ improperly considered Plaintiff’s the medical opinion evidence, which 13 calls into question whether the assessed RFC, and resulting hypothetical propounded to the 14 vocational expert, are supported by substantial evidence. “Where,” as here, “there is conflicting 15 evidence, and not all essential factual issues have been resolved, a remand for an award of 16 benefits is inappropriate.” Treichler, 775 F.3d at 1101. On remand, the ALJ should reevaluate all 17 relevant medical evidence, including medical opinions, as well as Plaintiff’s symptom claims 18 during the relevant adjudicatory period. The ALJ should order additional consultative 19 examinations and, if appropriate, take additional testimony from medical experts. The ALJ 20 should conduct a new sequential analysis, reassess Plaintiff’s RFC and, if necessary, take 21 additional testimony from a vocational expert which includes all of the limitations credited by the 22 ALJ. 23 Accordingly, it is RECOMMENDED: 24 1. Plaintiff’s Motion for Summary Judgment (Doc. No. 10) be GRANTED. 25 2. Defendant’s Cross Motion for Summary Judgment (Doc. No. 13) be DENIED. 26 3. Pursuant to sentence four of 42 U.S.C.§ 405(g), the Court REVERSE the 27 Commissioner’s decision and REMAND this case back to the Commissioner of 28 Social Security for further proceedings consistent with this Order. 1 4. The district court direct the Clerk to enter judgment in favor of the Plaintiff, 2 terminate any pending motions/deadlines, and close this case. 3 NOTICE TO PARTIES 4 These Findings and Recommendations will be submitted to the United States District 5 | Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days 6 | after being served with a copy of these Findings and Recommendations, a party may file written 7 | objections with the Court. Jd.; Local Rule 304(b). The document should be captioned, 8 | “Objections to Magistrate Judge’s Findings and Recommendations.” The assigned District Judge 9 | will review these Findings and Recommendations under 28 U.S.C. § 636(b)(1)(C). A party’s 10 | failure to file objections within the specified time may result in the waiver of certain rights on 11 appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014). 12 'S | Dated: _ September 8, 2025 Mihaw. Wh. foareh Zaskth 14 HELENA M. BARCH-KUCHTA

UNITED STATES MAGISTRATE JUDGE

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