1 2

3

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

9 10 JANET E. F.,1 Case No. 5:20-cv-1638-MAR 11 Plaintiff, 12 v. MEMORANDUM AND ORDER

13 ANDREW SAUL, Commissioner of Social Security, 14 15 Defendant.

16

17 Plaintiff Janet E. F. (“Plaintiff”) seeks review of the final decision of the 18 Commissioner of the Social Security Administration (“Commissioner” or “Agency”) 19 denying her applications for Title II Disability Insurance Benefits (“DIB”) and Title 20 XVI Supplemental Security Income Benefits (“SSI”). The parties have consented to 21 the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28

(c). 23 For the reasons stated below, the Commissioner’s decision is REVERSED, 24 and this action is REMANDED for further proceedings consistent with this Order. 25 /// 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 September 13, 2017, Plaintiff protectively filed her applications for DIB 4 and SSI, alleging a disability onset date of July 28, 2017. Administrative Record 5 (“AR”) at 15, 56, 190–97. Plaintiff’s applications were denied initially on November 6 27, 2017, and upon reconsideration on February 21, 2018.

at 78–79, 91–92. On 7 March 26, 2018, Plaintiff requested a hearing before an Administrative Law Judge 8 (“ALJ”).

. On October 23, 2019, Plaintiff appeared with counsel and 9 testified at a hearing before the assigned ALJ concerning her applications for DIB and 10 SSI.

, 33–47. A vocational expert also testified at the hearing.

at 46–51. 11 On November 6, 2019, the ALJ issued a decision denying the applications.

at 15– 12 26. Plaintiff filed a request with the Agency’s Appeals Council to review the ALJ’s 13 decision, which the Council denied on June 26, 2020.

at 1–6, 171–72. 14 On August 13, 2020, Plaintiff filed the instant action. ECF Docket No. 15 (“Dkt.”) 1. This matter is before the Court on the Parties’ Joint Stipulation (“JS”), 16 filed on June 7, 2021. Dkt. 22. 17 II. 18 PLAINTIFF’S BACKGROUND 19 Plaintiff was born on May 4, 1960. AR at 55, 190, 192. She was fifty-seven 20 (57) years old2 on the alleged disability onset date and fifty-nine (59) years old at the 21 time of the administrative hearing.

. Plaintiff has an eleventh- 22 grade education and work history as a merchandise packer, caregiver, babysitter, and 23 supervisor.

, 88–89, 101–02, 213–14, 225. She alleges disability based on: 24 (1) arthritis; (2) pain and swelling in her hands, legs, and knees; (3) low-back pain; 25 (4) stiffness, numbness; (5) difficulty sitting, standing, or walking for long periods of 26

27 2 As of the alleged onset date, Plaintiff was considered of “[a]dvanced age” by the Agency. AR 55, 1 time; and (6) sleep apnea.

. 59, 67, 70–71, 75, 81, 85, 94, 98, 212, 221, 2 236, 247. 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 her from engaging in substantial gainful 7 activity, and that is expected to result in death or to last for a continuous period of at 8 least twelve (12) months.

(d)(1)(a); Reddick v. Chater,

, 9 721 (9th Cir. 1998). The impairment must render the claimant incapable of 10 performing the work she previously performed and incapable of performing any other 11 substantial gainful employment that exists in the national economy. 42 U.S.C. 12 § 423(d)(2)(A); Tackett v. Apfel,

(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,

, 1148–49 (9th Cir. 2020); 20

, 416.920. The steps are: 16 (1) Is the claimant presently engaged in substantial gainful activity? If so, the 17 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? If so, 22 the claimant is found disabled. If not, proceed to step four.3 23 (4) Is the claimant capable of performing work she has done in the past? If so, 24 the claimant is found not disabled. If not, proceed to step five. 25

26 3 “Between steps three and four, the ALJ must, as an intermediate step, assess the claimant’s [residual 27 functional capacity],” or ability to work after accounting for her verifiable impairments. Bray v. Comm’r of Soc. Sec. Admin.,

, 1222–23 (9th Cir. 2009) (citing

(e)). 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; see also

(b)–(g)(1), 4 416.920(b)–(g)(1); Bustamante v. Massanari,

, 953–54 (9th Cir. 2001). 5 The claimant has the burden of proof at steps one through four, and the 6 Commissioner has the burden of proof at step five. Ford,

; 7 Bustamante, 262 F.3d at 953–54. Additionally, the ALJ has an affirmative duty to 8 assist the claimant in developing the record at every step of the inquiry. Id. at 954. If, 9 at step four, the claimant meets her burden of establishing an inability to perform past 10 work, the Commissioner must show that the claimant can perform some other work 11 that exists in “significant numbers” in the national economy, taking into account the 12 claimant’s residual functional capacity (“RFC”), age, education, and work experience. 13

(g)(1), 416.920(g)(1); Tackett, 180 F.3d at 1098–99, 1100; 14 Reddick,

. 15 IV. 16 THE ALJ’S DECISION 17 A. STEP ONE 18 At step one, the ALJ found Plaintiff had not “engaged in substantial gainful 19 activity since July 28, 2017, the alleged onset date.” AR at 17. 20 B. STEP TWO 21 At step two, the ALJ found Plaintiff had “the following severe impairments: 22 obesity[,] degenerative joint disease (of the bilateral knees), degenerative disc disease 23 (of the thoracic and lumbar spine), sleep apnea, and facet syndrome (lumbar and 24 thoracic)[.]” Id. at 18. 25 C. STEP THREE 26 At step three, the ALJ found Plaintiff did not “have an impairment or 27 combination of impairments that meets or medically equals the severity of one of the 1 D. RFC DETERMINATION 2 The ALJ found Plaintiff had the RFC to perform light work4 with the following 3 limitations: [S]he can lift and carry 20 pounds occasionally and 10 pounds frequently; 4 she can stand, walk or sit six hours out of an eight-hour workday; she can 5 frequently climb ramps and stairs and occasionally climb ladders ropes and scaffolds; she can frequently balance and stoop, occasionally kneel 6 and crouch; she can frequently crawl; and she must avoid concentrated 7 exposure to extreme cold, wetness, hazardous machinery and unprotected heights. 8 Id. at 19. 9 E. STEP FOUR 10 At step four, the ALJ found Plaintiff was “capable of performing past relevant 11 work as a shoe packer.” Id. at 25–26. The ALJ, therefore, found Plaintiff was not 12 disabled. Id. at 26.

PLAINTIFF’S CLAIM 15 Plaintiff presents one (1) disputed issue: whether the ALJ properly discounted 16 her subjective symptom testimony.5 Dkt. 22 at 3. 17

18 4 “Light work” is defined as: 19 [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 20 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 21 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. 22

(b), 416.967(b); see also Aide R. v. Saul,

, *2 n.6 (C.D. Cal. 23 Dec. 30, 2020). 5 Plaintiff frames the issue as whether the ALJ properly discounted her subjective symptom 24 testimony “regarding her ability to stand/walk.” Dkt. 22 at 3. However, because an ALJ is not required to discuss every piece of evidence or explain why every subjective limitation has been 25 rejected, and because the parties in the remainder of the Joint Stipulation discuss other aspects of Plaintiff’s testimony and the ALJ’s respective findings, the Court reviews the broader issue of 26 whether the ALJ properly discounted the subjective testimony as a whole. See, e.g., Howard ex rel. 27 Wolff v. Barnhart,

(9th Cir. 2003) (an ALJ is not obligated to discuss “every piece of evidence” when interpreting the evidence and developing the record); Conn v. Colvin, 2015 1 VI. 2 STANDARD OF REVIEW 3 Pursuant to

(g), a district court may review the Commissioner’s 4 decision to deny benefits. The ALJ’s findings and decision should be upheld if they 5 are free of legal error and supported by substantial evidence based on the record as a 6 whole. Richardson v. Perales,

(1971); Parra v. Astrue,

, 7 746 (9th Cir. 2007). 8 “Substantial evidence” is evidence that a reasonable person might accept as 9 adequate to support a conclusion. Lingenfelter v. Astrue,

(9th 10 Cir. 2007) (citing Robbins v. Soc. Sec. Admin.,

(9th Cir. 2006)). It 11 is more than a scintilla but less than a preponderance.

To determine whether 12 substantial evidence supports a finding, the reviewing court “must review the 13 administrative record as a whole, weighing both the evidence that supports and the 14 evidence that detracts from the Commissioner’s conclusion.” Reddick,

720; see also Hill v. Astrue,

(9th Cir. 2012) (“[A] reviewing court 16 . . . may not affirm simply by isolating a ‘specific quantum of supporting evidence’” 17 (quoting Robbins,

)). “If the evidence can reasonably support either 18 affirming or reversing,” the reviewing court “may not substitute its judgment” for that 19 of the Commissioner. Reddick, 157 F.3d at 720–21; see also Molina v. Astrue, 674

, 1111 (9th Cir. 2012) (“Even when the evidence is susceptible to more than 21 one rational interpretation, we must uphold the ALJ’s findings if they are supported 22 by inferences reasonably drawn from the record.”), superseded by regulation on other 23 grounds as stated in Thomas v. Saul,

, 198 (9th Cir. 2020). 24 The reviewing court may review only the reasons stated by the ALJ in her 25 decision “and may not affirm the ALJ on a ground upon which [s]he did not rely.” 26 Orn v. Astrue,

(9th Cir. 2007). If the ALJ erred, the error may only 27 1 be considered harmless if it is “clear from the record” that the error was 2 “inconsequential to the ultimate nondisability determination.” Robbins,

885 (citation omitted). 4 VII. 5 DISCUSSION 6 A. THE ALJ FAILED TO PROVIDE SUFFICIENT REASONS FOR 7 REJECTING PLAINTIFF’S SUBJECTIVE COMPLAINTS 8 1. Relevant facts 9 a. Plaintiff’s subjective complaints 10 At the October 2019 hearing before the ALJ, Plaintiff testified that she last 11 worked from 2016 to July 2017 warehousing. AR 34. That job entailed packing, 12 shipping, receiving, “a little bit of everything.”

She lifted up to forty (40) pounds 13 and mostly stood, which became unbearable, so she eventually quit.

at 34–35, 37. 14 Before that, in 2010, she worked for Schneider Logistics, third-party 15 warehousing for Wal-Mart. Id. at 35. She also served as a supervisor for Schneider, 16 but only for a few months, and she still performed the same physical work as the 17 other employees. Id. at 36. In 2005 and 2006, she worked for Commodity Logistics, 18 shipping and receiving. Id. at 35. Finally, Plaintiff also earned money at various times 19 babysitting, but it never reached a level of substantial gainful activity. Id. at 36. 20 Currently, for income, Plaintiff’s children take care of her. Id. at 37. She lives 21 in an apartment with her daughter, her daughter’s two children, and her youngest son. 22 Id. The apartment has stairs, which she climbs “[v]ery slowly,” using the handrails. 23 Id. at 37–38. She tries to help with her grandchildren, but there is little she can do. 24 Id. at 38. She attempts to cook, but it is difficult because that involves standing. Id. 25 at 38. Plaintiff can drive, but only locally, such as to doctors’ appointments. AR 38. 26 If she has to go somewhere else, her daughter will usually drive her. Id. at 38–39, 42. 27 Plaintiff can’t drive long distances because her medication makes her sleepy. Id. at 38. 1 she won’t become drowsy. Id. If she goes other places, she needs a cart or basket to 2 lean on. Id. at 40. If there is no basket or cart, she usually won’t go. Id. 3 When she sits or stands, her back and leg hurt. For example, if she tries to 4 cook, she’ll have to take a break and sit down. Id. She has the same problem doing 5 dishes; she can start, but she can’t finish due to the pain. Id. She can stand for about 6 five (5) or ten (10) minutes before she must sit down. Id. If Plaintiff experiences a 7 lot of pain, she will use her cane, which she brought to her hearing, to ambulate 8 around the house. Id. However, she doesn’t move around much at home. Id. at 41. 9 Plaintiff used to be able to carry groceries, but she can’t anymore because she 10 will lose her balance. Id. at 41. She used to be able to carry a 10-pound bag of 11 potatoes, but not anymore. Id. at 42. She can lift a gallon of milk, but not a case of 12 water. Id. at 41–42. She has to go to the grocery store with her daughter or 13 granddaughter; she can never go by herself. Id. at 42. 14 Plaintiff can’t bend down and pick things up because doing so will hurt her 15 back. Id. at 41. She cannot squat due to knee pain. Id. She can shower, but she no 16 longer bathes because she can’t get in and out of the tub. Id. at 42–43. Sometimes 17 she’s “a little wobbly” in the shower and must grab the towel rack to steady herself. 18 Id. at 43. Plaintiff does not help with the cleaning, such as vacuuming, sweeping, or 19 mopping, because she can’t bend, and it hurts her back and leg. Id. 20 She experiences pain mainly in her lower back and knees. Id. Her left knee is 21 worse than her right. Id. It feels like “bones going together.” Id. at 44. The pain in 22 her back burns such that it causes headaches, which she wakes up to every morning. 23 Id. at 43–44. If her pain is bad, she will lay in her bed, flat on her back. Id. at 45. She 24 also sits on the couch and puts her leg up on a foot stool to relieve pain. Id. 25 b. ALJ’s decision 26 The ALJ rejected Plaintiff’s subjective complaints for two (2) reasons: 27 Plaintiff’s testimony was inconsistent with (1) her sporadic and conservative 1 2. Applicable law6 2 When a claimant produces objective medical evidence of an impairment that 3 could reasonably be expected to produce the pain or other symptoms alleged, absent 4 evidence of malingering, “the ALJ may reject the claimant’s testimony about the 5 severity of those symptoms only by providing specific, clear, and convincing reasons 6 for doing so.” Lambert v. Saul,

(9th Cir. 2020) (citations and 7 internal quotation marks omitted); Moisa v. Barnhart,

(9th Cir. 8 2004). “The ALJ must state specifically which symptom testimony is [discounted] and 9 what facts in the record lead to that conclusion.” Smolen v. Chater,

, 10 1288 (9th Cir. 1996); see also Brown-Hunter v. Colvin,

(9th Cir. 11 2015) (holding “an ALJ does not provide specific, clear, and convincing reasons for 12 rejecting a claimant’s testimony by simply reciting the medical evidence in support of 13 his or her [RFC]”). 14 “If the ALJ’s . . . finding is supported by substantial evidence, [a court] may not 15 engage in second-guessing.” Thomas v. Barnhart,

(9th Cir. 2002). 16 However, an ALJ’s failure to give specific, clear, and convincing reasons to reject the 17 claimant’s testimony regarding the severity of the symptoms is not harmless, because 18 it precludes the Court from conducting a meaningful review of the ALJ’s reasoning. 19 Brown-Hunter,

. Moreover, as mentioned, a court must “review only 20 6 Before the ALJ’s decision, Social Security Ruling (“SSR”) 16-3p went into effect. See SSR 16-3p, 21

(Mar. 16, 2016). 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.”

Moreover, 22 “[i]n doing so, we clarify that subjective symptom evaluation is not an examination of an individual’s 23 character” and requires that the ALJ consider all of the evidence in an individual’s record when evaluating the intensity and persistence of symptoms. Id.; see also Trevizo v. Berryhill,

, 678 n.5 (9th Cir. 2017) (as amended). Thus, the adjudicator “will not assess an individual’s overall character or truthfulness in the manner typically used during an adversarial court litigation. 25 The focus of the evaluation of an individual’s symptoms should not be to determine whether he or she is a truthful person.” SSR 16-3p,

, at *10. SSR 16-3p’s elimination of the 26 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.,

, *3 (W.D. Wash. Mar. 4, 2020); see also R.P. v. 1 the reasons provided by the ALJ in the disability determination and may not affirm 2 the ALJ on a ground upon which [s]he did not rely.” Orn,

. Courts, 3 therefore, may not speculate as to the basis for unexplained conclusions but, rather, 4 must only consider the reasoning actually given by the ALJ. See Burrell v. Colvin, 775

(9th Cir. 2014) (“We are constrained to review the reasons the ALJ 6 asserts . . . [and] may not take a general finding . . . and comb the [AR] to find specific 7 conflicts.” (citation omitted)). 8 3. Analysis 9 As discussed below, none of the ALJ’s purported reasons constitute “specific, 10 clear and convincing reasons” for rejecting Plaintiff’s subjective complaints. 11 a. Treatment 12 The ALJ discounted Plaintiff’s subjective testimony in light of her “somewhat 13 sporadic treatment, with symptom management with conservative treatment.” AR 21. 14 This is insufficient for two (2) main reasons. 15 First, a claimant’s sporadic treatment—also referred to in court decisions as 16 treatment “gaps”—may serve as a valid reason for discounting testimony, provided 17 the ALJ also explores any reason for failing to seek treatment. See Marsh v. Colvin, 18

, 1173 n.2 (9th Cir. 2015) (ALJ may consider treatment gap in assessing 19 claimant’s symptoms); Claire G. v. Berryhill,

, *10 (D. Or. May 28, 20 2019) (ALJ erred by “fail[ing] to explore why [the claimant] had only sporadic mental 21 health treatment”). However, here, the ALJ did not explain what she meant by 22 “sporadic” or otherwise identify the specific periods Plaintiff failed to seek treatment, 23 leaving Plaintiff unable to respond, and this aspect of the ALJ’s reasoning 24 unreviewable. See Brown-Hunter,

(federal courts “demand that the 25 agency set forth the reasoning behind its decisions in a way that allows for meaningful 26 review”); Blakes v. Barnhart,

(7th Cir. 2003) (“We require the ALJ 27 to build an accurate and logical bridge from the evidence to her conclusions so that 1 Moreover, from a review of the record it appears Plaintiff sought treatment for her 2 allegedly disabling conditions throughout the relevant period. AR 262–559. 3 Second, while some of Plaintiff’s treatment, such as over-the-counter 4 medication of aspirin or ibuprofen, and physical therapy, may call into question the 5 severity of her subjective complaints, as Plaintiff’s condition progressed, she did not 6 respond to conservative treatment and it became more aggressive. Id. at 216, 237, 7 240, 248, 264, 317, 412, 416. For example, Plaintiff initially had a positive response to 8 physical therapy, but later records show it no longer helped. Id. at 296–98, 300–09, 9 310 (9/8/17 unable to perform some exercises due to pain), 311, 312 (9/18/17 10 unable to perform some exercises due to pain), 313–15, 319–20, 332 (10/26/17 back 11 pain “failed NSAIDS, muscle relaxant[,] and physical therapy”) 343–47, 348 12 (12/27/17 unable to complete stretch due to low back pain), 352 (10/27/17 13 continues to have pain in left knee; some days “she has a lot of pain”), 356 (2/5/18 14 Plaintiff “has regressed with pain levels, [range of motion], strength, and functional 15 activity tolerance”), 366 (5/15/19 physical therapy “made no difference for pain 16 control”), 372 (4/16/19 same), 381 (2/19/19 physical therapy “was done without 17 enough help in the past”), 385–88 (1/18/19 same; Plaintiff “has failed [physical 18 therapy] series”), 390 (12/18/18 “physical therapy . . . is helping some but not 19 enough”), 403 (8/28/18 “physical therapy was done without help”), 407 (8/3/18 20 same), 412 (7/6/18 same), 440 (7/1/19 “lower back pain . . . failed NSAIDS, muscle 21 relaxant[,] and physical therapy”), 473–74 (2/5/19 Plaintiff “regressed her progress”). 22 Moreover, Plaintiff was also prescribed stronger medications, including Gabapentin7, 23 Tramadol8, and Baclofen.9 Id. at 240, 262, 265, 269, 331, 333, 362, 365–66, 370, 375, 24 7 “Gabapentin is a medication that was originally developed to treat seizure disorders such as 25 epilepsy. It is also used to treat neuropathic pain. Neuropathic pain is pain from inflamed or damaged nerves.” Escobar v. Smith,

, *5 (E.D. Cal. Dec. 6, 2013). 26 8 “Tramadol is a narcotic used to relieve moderate to moderately severe pain.” Trejo v. Berryhill, 27

, *8 (C.D. Cal. July 25, 2018). 9 “Baclofen is a skeletal muscle relaxant prescribed to treat pain and certain types of spasticity from 1 379, 381, 383, 385, 387, 390, 392, 395, 399, 411–12, 414, 416, 420, 437, 440, 443, 458, 2 460.10 3 Finally, although not entirely clear from the record because many treatment 4 notes are duplicate, it appears Plaintiff received at least twelve (12) injections to relieve 5 her various ailments.

at (8/21/17 plan for steroid injections in both wrists), 332 6 (10/26/17 injection in right wrist joint, plan for injections in both knees), 362, 364 7 (7/10/19 injection), 367 (5/15/19 injection), 374 (4/16/19 injection), 384 (2/19/19 8 injection), 388 (1/18/19 injection; series of three injections ordered), 393 (12/18/18 9 injection), 395, 398 (10/23/18 injection), 402 (9/25/18 injection), 415 (7/6/18 10 injection), 440, 443 (5/1/19 plan for injection), 547, 550 (9/18/18 injection), 559 11 (10/26/18 injection). Plaintiff’s injection regime, often monthly or less, is not 12 conservative treatment. See, e.g., Garrison v. Colvin,

, 1015 n.20 (9th 13 Cir. 2014) (expressing doubt that “shots to the neck and lower back qualify as 14 ‘conservative’ medical treatment”); Contreras v. Berryhill,

, *4 (N.D. 15 Cal. Feb. 10, 2020) (stating “[n]umerous courts have rejected the argument that 16 injections are ‘conservative’”). This is especially true when considered in conjunction 17 with Plaintiff’s strong medications, which included at least one narcotic. See, e.g., 18 Joyce A. A. v. Saul,

, *3 (C.D. Cal. Apr. 20, 2021) (ALJ’s 19 determination that claimant received conservative treatment not supported by 20 substantial evidence where treatment included physical therapy, “Gabapentin, 21 Baclofen, and Tramadol, a narcotic,” in conjunction with back injections); Christine 22 G. v. Saul,

, 926 (C.D. Cal. 2019) (“Many courts have previously 23 found that strong narcotic pain medications and spinal epidural injections are not 24 considered to be ‘conservative’ treatment.”). 25 26 27 10 In addition to these drugs, Plaintiff received, at various points, cocktails of numerous other medications, including Clonazepam, Escitalopram, Montelukast, Cymbalta, Lipoderm, Voltaren, 1 Therefore, the ALJ’s reasoning that Plaintiff’s subjective complaints were 2 inconsistent with her sporadic, conservative treatment does not constitute a “specific, 3 clear, and convincing reason” for rejecting her testimony. 4 b. Lack of objective medical support 5 The only other rationale offered by the ALJ was the inconsistency between the 6 objective findings and Plaintiff’s testimony.11 This alone is not a sufficient basis to 7 support the determination. See Burch v. Barnhart,

(9th Cir. 2005) 8 (lack of objective medical evidence to support subjective symptom allegations cannot 9 form the sole basis for discounting pain testimony); Rollins v. Massanari,

853, 856–57 (9th Cir. 2001); Dschaak v. Astrue,

, *1 (D. Or. Sept. 11 27, 2011) (“[O]nce the[] other bases for the ALJ’s decision were discarded as 12 erroneous, the ALJ’s [adverse subjective testimony] determination could not rely 13 solely on conflicts with the medical evidence.”). 14 As such, even if the ALJ’s construction of the medical record was fair, 15 inconsistency between the record and Plaintiff’s testimony, alone, would not be a 16 proper basis for rejecting her subjective complaints. Thus, the ALJ’s claim that 17 Plaintiff’s subjective complaints were inconsistent with the objective findings in the 18 medical record does not constitute a “specific, clear, and convincing reason” for 19 rejecting Plaintiff’s testimony. 20 /// 21 11 The ALJ also mentioned that Plaintiff “declined a physical therapy referral” (AR 21, citing

at 22 555), a factor that may, if inadequately explained by a claimant, support an ALJ’s assessment of 23 subjective complaints. See Molina, 674 F.3d at 1112 (“the ALJ may consider . . . unexplained or inadequately explained failure . . . to follow a prescribed course of treatment”); 20 C.F.R. 24 §§ 404.1530, 416.930 (claimants must “follow treatment prescribed by [their] medical source(s) if this treatment is expected to restore [their] ability to work”). Notably, the Commissioner does not 25 defend this as a reason supporting the finding, and the Court has therefore not treated it as a separate reason. Dkt. 22 at 7–11; see Kinley v. Astrue,

, at *3 (S.D. Ind. Feb. 8, 26 2013) (“The Commissioner does not respond to this [aspect of claimant’s] argument, and it is 27 unclear whether this is a tacit admission by the Commissioner that the ALJ erred or whether it was an oversight. Either way, the Commissioner has waived any response.”). Even if the Commissioner 1 2. Harmlessness 2 Finally, the ALJ’s error in rejecting Plaintiff’s subjective complaints is not 3 harmless. A decision of the ALJ will not be reversed for errors that are harmless. 4 Stout v. Comm’r of Soc. Sec. Admin.,

(9th Cir. 2006) (citing 5 Burch,

). However, a reviewing court cannot consider an error 6 harmless “unless it can confidently conclude that no reasonable ALJ . . . could have 7 reached a different disability determination.” Id. at 1056. In other words, legal errors 8 are harmless only if they are inconsequential to the non-disability decision. Id. at 9 1055. 10 Here, the ALJ’s opinion that Plaintiff could perform her past work and was not 11 disabled necessarily relied on the ALJ’s rejection of Plaintiff’s allegations regarding the 12 limiting effect of her impairments. Therefore, the Court cannot find the ALJ’s 13 improper analysis of Plaintiff’s subjective complaints was harmless error. See Brown- 14 Hunter, 806 F.3d at 492–93 (ALJ’s failure adequately to specify reasons for 15 discounting claimant testimony “will usually not be harmless”). 16 VIII. 17 RELIEF 18 A. APPLICABLE LAW 19 “When an ALJ’s denial of benefits is not supported by the record, ‘the proper 20 course, except in rare circumstances, is to remand to the agency for additional 21 investigation or explanation.’” Hill,

(citation omitted). “We may 22 exercise our discretion and direct an award of benefits ‘where no useful purpose 23 would be served by further administrative proceedings and the record has been 24 thoroughly developed.’”

(citation omitted). “Remand for further proceedings is 25 appropriate where there are outstanding issues that must be resolved before a 26 determination can be made, and it is not clear from the record that the ALJ would be 27 required to find the claimant disabled if all the evidence were properly evaluated.” Id.; 1 | proceedings because it is clear from the administrative record that Claimant is entitled 2 | to benefits.’’). 3 |B. ANALYSIS 4 Here, the Court concludes remand for further proceedings is warranted. On 5 | this record, it is not entirely clear whether Plaintiff was actually disabled during the 6 | relevant period. See Bunnell v. Barnhart,

, 1115-16 Oth Cir. 2003). 7 | For example, if Plaintiff's treatment was sufficiently sporadic to warrant discounting 8 | her testimony, those gaps in treatment, along with Plaintiff's excuse for failing to seek 9 | consistent treatment, if any, were not explored at the hearing or in the decision. 10 | Accordingly, because it is unclear on this record whether Plaintiff was in fact disabled, 11 | remand here is on an “open record.” See Brown-Hunter,

; Bunnell, 12 |

; see also Alderman v. Colvin,

, *8—9 (E.D. 13 | Wash. Jan. 14, 2015) (remanding in light of interrelated nature of AL]’s decision to 14 | discount claimant’s testimony and give appropriate consideration to physician 15 | opinions, step-two findings, and step-five analysis). The parties may freely take up the 16 | issue raised in the Joint Stipulation, and any other issues relevant to resolving 17 | Plaintiffs claim of disability, before the AL]. 18 IX. 19 CONCLUSION 20 For the foregoing reasons, IT IS ORDERED that judgment be entered 21 | REVERSING the decision of the Commissioner and REMANDING this action 22 | for further proceedings consistent with this Order. IT IS FURTHER ORDERED 23 | that the Clerk of the Court serve copies of this Order and the Judgment on counsel 24 | for both parties. 25 26 | Dated: July 6, 2021 J Br 27 HONORABLE MARGO A. ROCCONI □ 08 United States Magistrate Judge

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