BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISIONS

17 18 On May 21, 2018, Plaintiff, formerly employed as a housekeeping 19 cleaner, a machine packager, and a taxi dispatcher (see AR 41, 51-53, 20 192-202), filed an application for disability insurance benefits 21 alleging a disability onset date of November 9, 2015. (See AR 22, 153- 22 56). Plaintiff’s application was denied, initially on August 24, 2018, 23 and on reconsideration on December 20, 2018. (See AR 81-84, 86-90). 24 25 On December 13, 2019, Administrative Law Judge Josephine Arno 26 (“ALJ”) heard testimony from Plaintiff, who was represented by counsel. 27 (See AR 41-49, 51-53). The ALJ also heard testimony from vocational 28 expert David Rinehart (“VE”). (See AR 50-57). On February 6, 2020, the 2 Case 5:20-cv-01986-AS Document 28 Filed 03/31/22 Page 3 of 11 Page ID #:623

1 ALJ issued a decision denying Plaintiff’s request for benefits. (See AR 2 22-33). 3

4 Applying the five-step sequential process, the ALJ found at step 5 one that Plaintiff had not engaged in substantial gainful activity since 6 November 9, 2015, the alleged onset disability onset date. (AR 24). At 7 step two, the ALJ determined that Plaintiff had the following severe 8 impairments: “obesity; lumbar spine degenerative disc disease; 9 fibromyalgia; right knee degenerative joint disease; alcohol dependence; 10 arthralgia; and left shoulder tendinosis and degenerative changes.” (AR 11 24).3 At step three, the ALJ determined that Plaintiff did not have an 12 impairment or combination of impairments that met or medically equaled 13 the severity of any of the listed impairments in the regulations. (AR 14 26).4 15 16 The ALJ then assessed Plaintiff’s residual functional capacity 17 (“RFC”)5 and found that Plaintiff could perform light work6 with the 18 following limitations: 19 20 21 3 The ALJ found Plaintiff’s mental impairments of depression and 22 anxiety to be nonsevere. (AR 24-26). 23 4 The ALJ specifically considered Listings 1.02 (major dysfunction of a joint(s)) and 1.04 (disorders of the spine), and Social 24 Security Rulings 19-2p (“Evaluating Cases Involving Obesity”) and 12-2p (“Evaluation of Fibromyalgia”). (See AR 26). 25 5 A Residual Functional Capacity is what a claimant can still do 26 despite existing exertional and nonexertional limitations. See 20 C.F.R. § 404.1545(a)(1). 27 6 “Light work involves lifting no more than 20 pounds at a time 28 with frequent lifting or carrying of objects weighing up to 10 pounds.” 20 C.F.R. § 404.1567(b). 3 Case 5:20-cv-01986-AS Document 28 Filed 03/31/22 Page 4 of 11 Page ID #:624

1 [She] is never able to climb ladders, ropes, or scaffolds; she may climb ladders, ropes, or scaffolds[7]; she may 2 occasionally balance, stoop, kneel, crouch, or crawl; she may occasionally reach overhead with the left upper extremity; and 3 she may have no exposure to unprotected heights and moving or heavy machinery. 4 (AR 26-32, bracketed footnote added). 5 6 At step four, the ALJ found that Plaintiff was able to perform her 7 past relevant work as a housekeeping cleaner as actually performed and 8 as a taxi starter as actually performed and as generally performed. (AR 9 32-33). Accordingly, the ALJ found that Plaintiff had not been under a 10 disability, as defined in the Social Security Act, from November 9, 2015 11 through February 6, 2020, the date of the decision. (AR 33). 12 13 The Appeals Council denied Plaintiff’s request for review of the 14 ALJ decision on August 6, 2020. (See AR 182-87). 15 16 Plaintiff now seeks judicial review of the ALJ’s decision, which 17 stands as the final decision of the Commissioner. See 42 U.S.C. §§ 18 405(g), 1383(c). 19 20

STANDARD OF REVIEW

21 22 This Court reviews the Commissioner’s decision to determine if it 23 is free of legal error and supported by substantial evidence. See 24 25 7 It appears the ALJ inadvertently included the limitation that 26 Plaintiff “may climb ladders, ropes, and/or scaffolds.” Based on the ALJ’s statement that there should be the limitation of occasional 27 climbing of ramps and stairs (AR 31) as well as on ALJ’s hypothetical question to the VE (see AR 54-55), this statement was mistakenly 28 included in the RFC determination as the ALJ apparently meant to include the limitation that Plaintiff may “occasionally” climb ramps and stairs. 4 Case 5:20-cv-01986-AS Document 28 Filed 03/31/22 Page 5 of 11 Page ID #:625

1 Brewes v. Comm’r, 682 F.3d 1157, 1161 (9th Cir. 2012). “Substantial 2 evidence” is more than a mere scintilla, but less than a preponderance. 3 Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). “It means such 4 relevant evidence as a reasonable mind might accept as adequate to 5 support a conclusion.” Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 6 2017). To determine whether substantial evidence supports a finding, 7 “a court must consider the record as a whole, weighing both evidence 8 that supports and evidence that detracts from the [Commissioner’s] 9 conclusion.” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 10 2001)(internal quotation omitted). As a result, “[i]f the evidence can 11 support either affirming or reversing the ALJ’s conclusion, [a court] 12 may not substitute [its] judgment for that of the ALJ.” Robbins v. Soc. 13 Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006).8 14 15

PLAINTIFF’S CONTENTION

16 17 Plaintiff contends that the ALJ erred in making a determination 18 about Plaintiff’s RFC that was not supported by substantial evidence in 19 the record. (See Joint Stip. at 4-8, 14-16). 20 21 22 23 24 25 26 8 The harmless error rule applies to the review of 27 administrative decisions regarding disability. See McLeod v. Astrue, 640 F.3d 881, 886-88 (9th Cir. 2011); Burch v. Barnhart, 400 F.3d 676, 28 679 (9th Cir. 2005)(An ALJ’s decision will not be reversed for errors that are harmless). 5 Case 5:20-cv-01986-AS Document 28 Filed 03/31/22 Page 6 of 11 Page ID #:626

1 DISCUSSION 2 3 After consideration of the record as a whole, the Court finds that 4 Plaintiff’s claim warrants a remand for further consideration. 5 6 A. The ALJ’s RFC Determination Was Not Supported by Substantial 7 Evidence 8 9 As discussed above, the ALJ determined that Plaintiff could perform 10 light work with the limitations she could occasionally balance, stoop, 11 kneel, crouch, crawl, reach overhead with the left upper extremity, and 12 climb ramps and stairs, she could not climb ladders, rapes or scaffolds, 13 and she could not have exposure to unprotected heights and moving or 14 heavy machinery. (AR 26). 15 16 As Plaintiff notes (see Joint Stip. at 5-6), the ALJ did not rely 17 on Plaintiff’s testimony in determining the RFC.9 In an Exertion 18 Questionnaire dated November 15, 2018, Plaintiff stated, inter alia, she 19 cannot lift more than 5 pounds, sit more than 30 minutes or bend, and 20 she can walk about a block. (AR 221-22). At the administrative 21 hearing, Plaintiff testified, inter alia, that she can lift a gallon of 22 milk with her right hand and can lift “light stuff” such as three loaves 23 of bread in a bag, that she can stand for approximately 10 minutes, that 24 she can walk down the street about four houses before she needs to 25 return home, that she can sit for about ten to fifteen minutes, and that 26 27 9 Plaintiff is not challenging the ALJ’s rejection of 28 Plaintiff’s subjective symptom testimony or the ALJ’s rejection of the medical opinion evidence. (See Joint Stip. at 5-6, 15). 6 Case 5:20-cv-01986-AS Document 28 Filed 03/31/22 Page 7 of 11 Page ID #:627

1 she needs to rotate positions (sit/stand) all day. (AR 46-47). The ALJ 2 rejected such testimony and did not include these limitations in the 3 RFC determination. (See AR 30-31). 4 5 As Plaintiff also notes (see Joint Stip. at 5), the ALJ did not 6 rely on any medical opinion evidence in determining the RFC. After 7 noting that Herman Schoene, M.D. the orthopedic consultative examiner, 8 and Fulvio Franyutti, M.D. and G. Dale, M.D., the State Agency 9 physicians, all determined that Plaintiff was able to do medium work 10 (see AR 31, citing AR 306 [Dr. Schoene report dated August 9, 2018: 11 Plaintiff can lift/carry 50 pounds occasionally and 25 pounds 12 frequently, stand/walk and sit 6 hours out of an 8-hour workday, 13 push/pull on an unlimited basis, and no postural, manipulative, visual, 14 communicative or environmental limitations], 59-67 [Dr. Franyutti report 15 dated August 22, 2018: same functional capacity assessment), and 69-79 16 [Dr. Dale report dated November 30, 2018: same functional capacity 17 assessment]), the ALJ found these medical opinions “unpersuasive because 18 they are unsupported by and inconsistent with the medical records as a 19 whole, which shows diagnostic evidence of degenerative disc disease of 20 the lumbar spine, degenerative joint disease in the right knee, left 21 shoulder impairment, and diagnosis of fibromyalgia causing period 22 arthralgia symptoms.” (AR 31). In addition, the ALJ found that while 23 Dr. Schoene’s opinion was consistent with his physical examination 24 findings, Dr. Schoene’s opinion was unpersuasive because “Dr. Schoene 25 did not have access to the medical records that show periodic flare-ups 26 of symptoms and periodic physical examination findings that support 27 additional limitations.” (AR 32). Accordingly, the ALJ’s RFC 28 determination was not based on the medical opinions. 7 Case 5:20-cv-01986-AS Document 28 Filed 03/31/22 Page 8 of 11 Page ID #:628

1 In assessing Plaintiff’s RFC, the ALJ stated that “[t]he positive 2 objective clinical and diagnostic findings since the alleged onset date 3 detailed below do not support more restrictive functional limitations 4 than those assessed herein.” (AR 27). As set forth below, this 5 conclusory statement, without more, does not provide the evidence that 6 the ALJ relied on when determining that Plaintiff had the RFC to perform 7 light work with the limitations that she could occasionally balance, 8 stoop, kneel, crouch, crawl, reach overhead with the left upper 9 extremity, and climb ramps and stairs. 10 11 The ALJ found that the medical opinions were unsupported by and 12 inconsistent with the “diagnostic evidence of degenerative disc disease 13 of the lumbar spine, degenerative joint disease in the right knee, left 14 shoulder impairment, and diagnosis of fibromyalgia causing period 15 arthralgia symptoms.” (AR 31, underlining added). Immediately 16 thereafter, the ALJ wrote, “These impairments warrant a limitation to 17 light work with occasional climbing of ramps and stairs, balancing, 18 stooping, kneeling, crouching, and crawling to avoid exacerbation of 19 pain symptoms in various joints.” (Id.). 20 21 When summarizing the medical record, the ALJ referenced various 22 diagnostic evidence of degenerative disc disease in the lumbar spine, 23 degenerative joint disease in the right knee, left shoulder impairment 24 (tendinosis) and fibromyalgia, including a February 18, 2016 MRI of 25 Plaintiff’s lumbar spine (AR 526), a June 1, 2017 MRI of the left 26 shoulder (id.), a November 26, 2018 MRI of the right knee (AR 526, 416), 27 December 13, 2018 x-rays of the right knee (AR 323), and a June 27, 2019 28 fibromyalgia diagnosis (AR 370-71). (See AR 29-30). However, it is 8 Case 5:20-cv-01986-AS Document 28 Filed 03/31/22 Page 9 of 11 Page ID #:629

1 unclear to the Court, and the ALJ failed to state, why such diagnostic 2 evidence supports the ALJ’s determination regarding Plaintiff’s ability 3 to perform light work with the limitations of occasional balancing, 4 stooping, kneeling, crouching, crawling, reaching overhead with the left 5 upper extremity, and climbing ramps and stairs. 6 7 Moreover, even if the ALJ’s RFC determination was bsed on 8 “positive objective clinical and diagnostic findings” in the record (AR 9 27), including in medical records generated after Dr. Schoene’s August 10 9, 2018 opinion (see AR 32 [the ALJ noted that “Dr. Schoene did not have 11 access to the medical records that show periodic flare-ups of symptoms 12 and periodic physical examinations findings that support additional 13 limitations”]), the ALJ failed to cite to this evidence or state why 14 such evidence supports the finding that Plaintiff was capable of 15 performing light work with the limitations of occasional balancing, 16 stooping, kneeling, crouching, crawling, reaching overhead with the left 17 upper extremity, and climbing ramps and stairs. See Tackett v. Apfel, 18 180 F.3d 1094, 1102 (9th Cir. 1999)(“The ALJ must set out in the record 19 his reasoning and the evidentiary support for his interpretation of the 20 medical evidence.”). Consequently, the Court is unable to find that 21 substantial evidence supports the ALJ’s RFC determination. See Flaten 22 v. Secretary of Health & Human Services, 44 F.3d 1453, 1457 (9th Cir. 23 1995)(“Substantial evidence is relevant evidence which, considering the 24 record as a whole, a reasonable person might accept as adequate to 25 support a conclusion.”); see also Nguyen v. Chater, 172 F.3d 31, 35 (1st 26 Cir. 1999)(stating that, in a case where the Commissioner argued that 27 the medical record supported the ALJ’s determination about the level of 28 work the claimant was capable of performing, “[a]s a lay person . . ., 9 Case 5:20-cv-01986-AS Document 28 Filed 03/31/22 Page 10 of 11 Page ID #:630

1 the ALJ was simply not qualified to interpret raw medical data in 2 functional terms”) (citations omitted). 3 4 B. Remand Is Warranted 5 6 The decision whether to remand for further proceedings or order an 7 immediate award of benefits is within the district court’s discretion. 8 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). Where no 9 useful purpose would be served by further administrative proceedings, 10 or where the record has been fully developed, it is appropriate to 11 exercise this discretion to direct an immediate award of benefits. Id. 12 at 1179 (“[T]he decision of whether to remand for further proceedings 13 turns upon the likely utility of such proceedings.”). However, where, 14 as here, the circumstances of the case suggest that further 15 administrative review could remedy the Commissioner’s error, remand is 16 appropriate. McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011); 17 Harman, 211 F.3d at 1179-81. 18 19 Since the ALJ’s determination about Plaintiff’s RFC was not 20 supported by substantial evidence, remand is appropriate. Because 21 outstanding issues must be resolved before a determination of disability 22 can be made, and “when the record as a whole creates serious doubt as 23 to whether the [Plaintiff] is, in fact, disabled within the meaning of 24 the Social Security Act,” further administrative proceedings would serve 25 a useful purpose and remedy defects. Burrell, 775 F.3d at 1141 26 (citations omitted). 27 28 10 Case 5:20-cv-01986-AS Document 28 Filed 03/31/22 Page 11 of 11 Page ID #:631

1

ORDER

2 3 For the foregoing reasons, the decision of the Commissioner is 4 reversed, and the matter is remanded for further proceedings pursuant 5 to Sentence 4 of 42 U.S.C. § 405(g). 6 7

LET JUDGMENT BE ENTERED ACCORDINGLY.

8 9 DATED: March 31, 2022 10 11 /s/

ALKA SAGAR

12

UNITED STATES MAGISTRATE JUDGE

13

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