1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 RONALD DEAN YOUNG, Case No.: 3:21-cv-00244-CSD

4 Plaintiff Order

5 v. Re: ECF Nos. 17, 20

6 KILOLO KIJAKAZI, Acting Commissioner of Social 7 Security Administration,

8 Defendant

9 10 Before the court is Plaintiff's Motion for Reversal and/or Remand. (ECF No. 17.) The 11 Acting Commissioner filed a Cross-Motion to Affirm and Opposition to Plaintiff's motion. 12 (ECF Nos. 20, 21.) Plaintiff filed a reply. (ECF No. 22) 13 For the reasons set forth below, Plaintiff’s motion is granted; the Acting Commissioner’s 14 cross-motion is denied; and this matter is remanded for further proceedings consistent with this 15 Order. 16 I. BACKGROUND 17 On March 22, 2018, Plaintiff completed applications for disability insurance benefits 18 (DIB) under Title II of the Social Security Act and for supplemental security income (SSI) under 19 Title XVI of the Social Security Act, alleging disability beginning on November 1, 2017. 20 (Administrative Record (AR) 243-250.) The applications were denied initially and on 21 reconsideration. (AR 173-177, 178-185.) 22 Plaintiff requested a hearing before an administrative law judge (ALJ). ALJ William 23 Kurlander held a hearing on September 30, 2020. (AR 75-.102) Plaintiff, who was represented 1 by counsel, appeared, and testified on his own behalf at the hearing. Testimony was also taken 2 from a vocational expert (VE). On October 22, 2020, the ALJ issued a decision finding Plaintiff 3 not disabled. (AR 26-40.) Plaintiff requested review, and the Appeals Council denied the request, 4 making the ALJ's decision the final decision of the Commissioner. (AR 1-7.)

5 Plaintiff then commenced this action for judicial review under

(g). 6 II. STANDARDS 7 A. Five-Step Evaluation of Disability 8 Under the Social Security Act, "disability" is the inability to engage "in any substantial 9 gainful activity by reason of any medically determinable physical or mental impairment which 10 can be expected to result in death or which has lasted or can be expected to last for a continuous 11 period of not less than 12 months." 42 U.S.C. § 1382c(a)(3)(A). A claimant is disabled if his or 12 her physical or mental impairment(s) are so severe as to preclude the claimant from doing not 13 only his or her previous work but also, any other work which exists in the national economy, 14 considering his age, education and work experience. 42 U.S.C. § 1382c(a)(3)(B).

15 The Commissioner has established a five-step sequential process for determining whether 16 a person is disabled.

and § 416.920; see also Bowen v. Yuckert,

137, 140-41 (1987). In the first step, the Commissioner determines whether the claimant is 18 engaged in "substantial gainful activity"; if so, a finding of nondisability is made and the claim is 19 denied.

(a)(4)(i), (b); § 416.920(a)(4)(i); Yuckert, 482 U.S. at 140. If the 20 claimant is not engaged in substantial gainful activity, the Commissioner proceeds to step two. 21 The second step requires the Commissioner to determine whether the claimant's 22 impairment or combination of impairments are "severe."

(a)(4)(ii), (c) and 23 § 416.920(a)(4)(ii), (c); Yuckert, 482 U.S. at 140-41. An impairment is severe if it significantly 1 limits the claimant's physical or mental ability to do basic work activities. Id. If the claimant has 2 an impairment(s) that is severe, the Commissioner proceeds to step three. 3 In the third step, the Commissioner looks at a number of specific impairments listed in 4 20 C.F.R. Part 404, Subpart P, Appendix 1 (Listed Impairments) and determines whether the

5 claimant's impairment(s) meets or is the equivalent of one of the Listed Impairments. 20 C.F.R. 6 § 404.1520(a)(4)(iii), (d) and § 416.920(a)(4)(iii), (d). The Commissioner presumes the Listed 7 Impairments are severe enough to preclude any gainful activity, regardless of age, education or 8 work experience.

(a), § 416.925(a). If the claimant's impairment meets or 9 equals one of the Listed Impairments, and is of sufficient duration, the claimant is conclusively 10 presumed disabled.

(a)(4)(iii), (d), § 416.920(a)(4)(iii), (d). If the claimant's 11 impairment is severe, but does not meet or equal one of the Listed Impairments, the 12 Commissioner proceeds to step four. Yuckert, 482 U.S. at 141. 13 At step four, the Commissioner determines whether the claimant can still perform "past 14 relevant work."

(a)(4)(iv), (e), (f) and § 416.920(a)(4)(iv), (e), (f). Past

15 relevant work is that which a claimant performed in the last 15 years, which lasted long enough 16 for him or her to learn to do it, and was substantial gainful activity.

(a) and 17 § 416.920(a). 18 In making this determination, the Commissioner assesses the claimant's residual 19 functional capacity (RFC) and the physical and mental demands of the work previously 20 performed. See id.;

(a)(4)(v), § 416.920(a)(4)(v); see also Berry v. Astrue, 21

(9th Cir. 2010). RFC is what the claimant can still do despite his or her 22 limitations.

and § 416.945. In determining the RFC, the Commissioner 23 must assess all evidence, including the claimant's and others' descriptions of the limitation(s), 1 and medical reports, to determine what capacity the claimant has for work despite his or her 2 impairments.

(a)(3) and 416.945(a)(3). 3 A claimant can return to previous work if he or she can perform the work as he or she 4 actually performed it, i.e., if he or she can perform the "actual functional demands and job duties

5 of a particular past relevant job," or as generally performed, i.e., "[t]he functional demands and 6 job duties of the [past] occupation as generally required by employers throughout the national 7 economy." Pinto v. Massanari,

(9th Cir. 2001) (internal quotation marks and 8 citation omitted). If the claimant can still do past relevant work, then he or she is not disabled. 9

(f) and § 416.920(f); see also Berry, 62 F.3d at 131. 10 If, however, the claimant cannot perform past relevant work, the burden shifts to the 11 Commissioner to establish at step five that the claimant can perform other work available in the 12 national economy.

(e), 416.920(e); see also Yuckert, 482 U.S. at 141-42, 13 144. This means "work which exists in significant numbers either in the region where such 14 individual lives or in several regions of the country." Gutierrez v. Comm'r of Soc. Sec. Admin.,

15

(9th Cir. 2014). The Commissioner must also consider the claimant's RFC, 16 age, education, and past work experience to determine whether the claimant can do other work. 17 Yuckert, 482 U.S. at 141-42. The Commissioner may meet this burden either through the 18 testimony of a VE or by reference to the Grids. Tackett v. Apfel,

(9th Cir. 19 1999). 20 If the Commissioner establishes at step five that the claimant can do other work which 21 exists in the national economy, then he or she is not disabled.

(b), 22 § 416.966(b). Conversely, if the Commissioner determines the claimant is unable to adjust to any 23 other work, the claimant will be found disabled.

(g), § 416.920(g); see also 1 Lockwood v. Comm'r Soc. Sec. Admin.,

, 1071 (9th Cir. 2010); Valentine v. 2 Comm'r of Soc. Sec. Admin.,

(9th Cir. 2009). 3 B. Judicial Review & Substantial Evidence 4 The court must affirm the ALJ's determination if it is based on proper legal standards and

5 the findings are supported by substantial evidence in the record. Gutierrez,

6 (citing

(g)). "Substantial evidence is 'more than a mere scintilla but less than a 7 preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to 8 support a conclusion."

at 523-24 (quoting Hill v. Astrue,

(9th Cir. 9 2012)). 10 To determine whether substantial evidence exists, the court must look at the record as a 11 whole, considering both evidence that supports and undermines the ALJ's decision. Gutierrez, 12

(citing Mayes v. Massanari,

(9th Cir. 2001)). The court "'may 13 not affirm simply by isolating a specific quantum of supporting evidence.'" Garrison v. Colvin, 14

(9th Cir. 2014) (quoting Lingenfelter v. Astrue,

(9th

15 Cir. 2007)). "'The ALJ is responsible for determining credibility, resolving conflicts in medical 16 testimony, and for resolving ambiguities.'"

(quoting Andrews v. Shalala,

, 1039 17 (9th Cir. 1995)). "If the evidence can reasonably support either affirming or reversing, 'the 18 reviewing court may not substitute its judgment' for that of the Commissioner." Gutierrez, 740 19 F.3d at 524 (quoting Reddick v. Chater,

, 720-21 (9th Cir. 1996)). That being said, 20 "a decision supported by substantial evidence will still be set aside if the ALJ did not apply 21 proper legal standards." Id. (citing Bray v. Comm'r of Soc. Sec. Admin.,

(9th 22 Cir. 2009); Benton v. Barnhart,

(9th Cir. 2003)). In addition, the court will 23 "review only the reasons provided by the ALJ in the disability determination and may not affirm 1 the ALJ on a ground upon which he did not rely." Garrison,

(citing Connett v. 2 Barnhart,

(9th Cir. 2003)). 3 III. DISCUSSION 4 A. ALJ's Findings in this Case

5 At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since 6 the alleged onset date of November 1, 2017. (AR 31-32.) 7 At step two, the ALJ concluded Plaintiff had the following severe impairments: knee 8 disorder, neck disorder, shoulder disorder, seizure disorder, chronic pain syndrome, migraine 9 headaches, and substance use disorder. (AR 32.) 10 At step three, the ALJ determined that even with his substance use, Plaintiff did not have 11 an impairment or combination of impairments that met or medically equaled the severity of one 12 of the Listed Impairments. (AR 32.) 13 At step four, the ALJ assessed Plaintiff as having the RFC to perform light work except 14 he could occasionally climb ramps and stairs, but never climb ladders, ropes or scaffolds; he can

15 occasionally balance, stoop, kneel, crouch and crawl and reach overhead; he could occasionally 16 be exposed to atmospheric irritants such as dusts, odors, gases, and fumes; he could frequently 17 work around moving machinery and never work at exposed heights; and he would be off task 15 18 percent of the workday due to substance use. (AR 33.) 19 The ALJ then concluded Plaintiff was unable to perform any past relevant work. (AR 36.) 20 At step five, the ALJ determined that considering Plaintiff's age, education, work 21 experience and RFC, including his substance use disorder, there were no jobs that exist in 22 significant numbers in the national economy that Plaintiff could perform while he used 23 substances. (AR 36.) 1 If, however, Plaintiff stopped using substances, he would have the same RFC, but he 2 would be off task five percent of the workday due to symptomology instead of 15 percent with 3 substance use. (AR 38.) Not using substances, Plaintiff would still be unable to perform his past 4 relevant work. However, considering the claimant’s age, education, work experience and RFC,

5 the ALJ concluded there are jobs that exist in significant numbers in the national economy that 6 Plaintiff can perform, including: Material Distributor, Cashier II, and Assembler. (AR 39.) 7 As such, the ALJ found that Plaintiff was not disabled if he stopped the substance use. 8 (AR 40.) 9 B. Medical Evidence & Plaintiff’s RFC 10 Plaintiff argues the ALJ failed to properly evaluate the medical evidence in assessing his 11 RFC. Plaintiff contends these opinions cannot constitute substantial evidence to support the 12 ALJ’s RFC assessment because these physicians did not have the opportunity to review the 13 entire medical record. The State agency last reviewed the evidence on May 1, 2019, but later 14 records demonstrate Plaintiff would have greater functional limitations due to his physical

15 impairments. Specifically, Plaintiff had three surgeries after the State agency physicians 16 reviewed Plaintiff’s records: 1) cervical spine surgery on September 12, 2019; 2) another 17 cervical spine surgery on December 16, 2019; and 3) left knee surgery on June 18, 2020. 18 Plaintiff further argues that the ALJ improperly discounted the opinions of his treating 19 physician, Dr. Amanda Magrini, who was the only medical source to address Plaintiff’s physical 20 limitations after May 1, 2019. Plaintiff asserts Dr. Magrini’s opinions are consistent and 21 supported by the treatment record, and Dr. Magrini has a long-time treatment relationship with 22 Plaintiff. Considering Dr. Magrini’s opinions, Plaintiff maintains he has an RFC for no more 23 than sedentary exertion, which results in a finding of disability. 1 The Acting Commissioner argues that the ALJ properly evaluated the medical opinion 2 evidence under the new regulations. The Acting Commissioner contends that even if time lapsed 3 between the State agency review and the ALJ’s decision, the ALJ’s conclusions remained 4 consistent with subsequent evidence. Plaintiff had ongoing complains of neck pain and stiffness,

5 and the ALJ accounted for that in the limit for overhead reaching. In addition, the Acting 6 Commissioner asserts that after the second cervical spine surgery, Plaintiff reported that his 7 radicular symptoms were “basically gone.” With respect to the left knee, the Acting 8 Commissioner states that treatment records in 2018 showed normal range of motion and strength, 9 intact neurological functioning and normal gait, and subsequent evidence portrayed similar 10 findings. 11 In his reply, Plaintiff argues these are post hoc rationalizations for the ALJ’s error. 12 1. State Agency Physicians 13 At the initial level, Chris Nurre, M.D., concluded there was insufficient functional 14 information to make a determination regarding Plaintiff’s RFC. (AR 109, 119-120.) On

15 reconsideration, E. Christian, M.D., assigned Plaintiff a light RFC with an additional limitation 16 to occasional overhead reaching. (AR 135, 140-141.) 17 The ALJ adopted this RFC, with the added limitation that Plaintiff would be off task 15 18 percent of the time with substance use, and five percent of the time without substance use. (AR 19 33, 38.) 20 After Dr. Christian completed his review of Plaintiff’s records and issued his opinions 21 (which are dated February 13, 2019), Plaintiff underwent two additional cervical spine surgeries 22 in September and December of 2019, as well as left knee surgery in June of 2020. (AR 1037, 23 1797, 1808.) The issue is whether there is substantial evidence to support the ALJ’s RFC given 1 that Dr. Christian’s opinions, on which the RFC is based, do not account for the subsequent 2 medical evidence. 3 In Stone v. Heckler,

(9th Cir. 1985), the claimant had progressive 4 degenerative neuropathic joint disease. In considering the claimant’s RFC, the ALJ relied on

5 medical reports from July and August of 1980, and the agency doctors’ conclusions were based 6 on those and earlier reports. Subsequent records indicated further degenerative changes.

at 7 432. The Ninth Circuit held that the earlier reports did not constitute substantial evidence to rebut 8 the conclusions in the subsequent records, and the agency doctors’ conclusions, “made without 9 examining [the claimant] or reviewing the [most recent] reports [were] entitled to even less 10 weight.”

11 Here, Plaintiff’s condition, both with respect to his cervical spine and left knee, 12 deteriorated after Dr. Christian completed his review of the medical records. The Acting 13 Commissioner argues that the cervical spine findings after the 2019 surgeries are consistent with 14 the records Dr. Christian reviewed. However, the only record after the latest surgery in

15 December of 2019 is from roughly one month after the surgery and contains very minimal 16 findings. 17 With respect to the left knee, the Acting Commissioner argues that Plaintiff had greater 18 functional limitations because he was unable to find a surgeon willing to perform the surgery, 19 and not because of a worsening of his symptoms. The medical evidence, however, demonstrates 20 there was a worsening in his condition. In 2020 alone, Plaintiff’s pain level increased. 21 The ALJ did not order a consultative examination or request a medical expert review the 22 record to determine the extent of Plaintiff’s functional impairments with respect to his cervical 23 spine and left knee following his surgeries in 2019 and 2020. As will be discussed below, Dr. 1 Magrini had the benefit of reviewing the subsequent evidence, and she opined Plaintiff was more 2 limited than Dr. Christian opined. The question remains whether the subsequent medical 3 evidence may change Dr. Christian’s findings. As it stands, the court finds the ALJ’s RFC 4 assessment is not based on substantial evidence, and this matter should be remanded for

5 consideration of the subsequent medical evidence, and if necessary, a consultative examination 6 to determine the extent of Plaintiff’s functional limitations. 7 2. Dr. Magrini 8 Dr. Magrini filled out a treating physician questionnaire. She stated that Plaintiff has 9 osteoarthritis in multiple joints which makes working difficult. He also suffers from severe 10 spasms in the left shoulder at the neck. She opined Plaintiff would need a job that requires 11 shifting positions at will from sitting to standing or walking. In addition, Plaintiff would need to 12 take unscheduled breaks once an hour. She concluded that he could sit, stand, or walk for less 13 than 2 hours in a workday. He could occasionally lift less than 10 pounds. His impairments are 14 likely to produce good days and bad days, and she estimated that Plaintiff would be absent more

15 than four days per month. (AR 2084-2086.) 16 The ALJ found Dr. Magrini’s opinions unpersuasive because: (1) Dr. Magrini did not 17 address Plaintiff’s substance abuse and its effects on his RFC, and (2) Dr. Magrini did not 18 provide sufficient citations to objective findings to support such severe physical limitations. (AR 19 38.) 20 New regulations were adopted for evaluating medical evidence in social security cases 21 that apply to claims filed on or after March 27, 2017. See 20 C.F.R. pts. 404, 416. Prior to the 22 adoption of these regulations, there was a hierarchy applied to evaluate medical opinions with 23 treating physicians given substantial weight, examining physicians were given greater weight 1 than non-examining physicians, and physicians who only review the record were given less 2 weight than treating or examining physicians. See Woods v. Kijakazi,

(9th Cir. 3 2022). “To reject either a treating or examining physician’s opinion, an ALJ [had to] provide 4 ‘clear and convincing reasons,’ if the opinion is uncontradicted by other evidence, or ‘specific

5 and legitimate reasons’ otherwise, and the reasons must be supported by substantial evidence.” 6

(citing Revels v. Berryhill,

(9th Cir. 2017)). The opinion of a non- 7 examining or reviewing physician could not “‘by itself constitute substantial evidence that 8 justifies the rejection of the opinion of either an examining physician or a treating physician.’” 9

(quoting Lester v. Chater,

(9th Cir. 1995)). 10 Under the new regulations, “there is not an inherent persuasiveness to evidence from 11 [government consultants] over a [a claimant’s] own medical source(s), and vice versa.”

at 791 12 (quotation marks and citation omitted). “‘The most important factors’ that the agency considers 13 when evaluating the persuasiveness of medical opinions are ‘supportability’ and ‘consistency’.” 14

(citing

.1520c(a)). “Supportability means the extent to which a medical

15 source supports the medical opinion by explaining the ‘relevant … objective medical evidence.’” 16

at 791-92 (citing

.1520c(c)(1)). “Consistency means the extent to which a 17 medical opinion is ‘consistent … with the evidence from other medical sources and nonmedical 18 sources in the claim.’”

at 792 (citing

.1520c(c)(2)). 19 One of the reasons given by the ALJ for finding Dr. Magrini’s opinions unpersuasive is 20 supportability: Dr. Magrini did not sufficiently cite objective findings to support such severe 21 physical findings. The court agrees. The ALJ did not, however, discuss whether Dr. Magrini’s 22 opinions were consistent or inconsistent with the other medical evidence in the record. In failing 23 to do this, the ALJ erred because “[t]he agency must ‘articulate … how persuasive’ it finds ‘all 1 of the medical opinions’ from each doctor or other source …, and ‘explain how [it] considered 2 the supportability and consistency factors’ in reaching these findings[.]”

(citing

404.1520c(b)(2)). 4 Plaintiff further argues the ALJ erred in not considering Dr. Magrini’s treating

5 relationship with Plaintiff. 6 The new regulations acknowledge “that a medical source’s relationship with the claimant 7 is still relevant when assessing the persuasiveness of the source’s opinion.”

(citing 20 C.F.R. 8 § 404.1520c(c)(3)). The ALJ is no longer required to make specific findings on this factor. Id. 9 (citing

.1520c(b)(2) (“We may, but are not required to, explain how we 10 considered the [relationship] factors … when we articulate how we consider medical opinions … 11 in your case record.”). 12 “A discussion of relationship factors may be appropriate when ‘two or more medical 13 opinions … about the same issue are … equally well-supported … and consistent with the record 14 … but are not exactly the same.’”

(citing

.1520c(b)(3)). This is not a case

15 where two or more medical opinions on the same issue are equally well-supported because, as 16 was pointed out above, Dr. Magrini’s opinions were not well supported. Nevertheless, it may be 17 appropriate on remand to consider the relationship factors in light of any new opinion evidence. 18 C. Substance Use 19 Plaintiff argues the ALJ failed to properly consider Plaintiff’s physical impairments and 20 substance use under Social Security Ruling (SSR) 13-2p. Plaintiff contends the ALJ did not cite 21 to any evidence that substance use exacerbated Plaintiff’s physical symptoms or that his physical 22 impairments would improve absent substance use. Instead, Plaintiff claims that the evidence 23 demonstrates he would still be disabled due to his physical impairments absent substance use. 1 The Acting Commissioner argues that the ALJ found, as a whole, that Plaintiff was more 2 capable than alleged, except when he was using methamphetamines. (AR 35.). In addition, the 3 Acting Commissioner points out the ALJ did not find that substance abuse exacerbated 4 Plaintiff’s physical symptoms or that his physical impairments would improve absent substance

5 abuse. Instead, the ALJ found substance abuse would lead Plaintiff to be off task 15% of the 6 workday and prevent him from working. 7 A1996 amendment to the Social Security Act provides that “[a]n individual shall not be 8 considered disabled … if alcoholism or drug addiction would … be a contributing factor material 9 to the Commissioner’s determination that the individual is disabled.” 42 U.S.C. 10 § 423(d)(2)(C). When this is relevant, an ALJ must conduct a drug and alcohol abuse (DAA) 11 analysis and determine whether the claimant’s disabling limitations remain in the absence of 12 drug and alcohol abuse.

, 416.935. This is a two-step process. See 13 Bustamonte v. Massanari,

(9th Cir. 2001). 14 First, the ALJ must conduct the sequential five-step inquiry used to evaluate disability

15 “without separating out the impact of alcoholism or drug addiction.”

. “If the ALJ finds 16 the claimant is not disabled under the [initial] five-step inquiry, then the claimant is not entitled 17 to benefits” and the ALJ need not proceed to the second step.

18 Second, if the ALJ finds the claimant disabled after the initial five-step inquiry and there 19 is medical evidence of drug addiction or alcoholism, the ALJ must conduct the five-step inquiry 20 again. However, this time the ALJ must separate out the impact of the drug addiction or 21 alcoholism, to determine whether drug addiction or alcoholism is a contributing factor material 22 to the disability determination.

“The key factor in determining whether drug addiction or 23 alcoholism is a contributing factor material to the determination of disability is whether an 1 individual would still be found disabled if [he or she] stopped using alcohol or drugs.” Sousa v. 2 Callahan,

(9th Cir. 1998); see also

, 416.935; SSR 3 13-2p,

. 4 The ALJ “will evaluate which of [the claimant’s] current physical and mental limitations

5 … would remain if [the claimant] stopped using drugs or alcohol and then determine whether 6 any or all of [the claimant’s] remaining limitations would be disabling.”

404.1535(b)(2), 416.935(b)(2). 8 Here, the ALJ found that Plaintiff would be off task 15 percent of the workday with 9 substance abuse, and he would be off task only 5 percent of the workday if he was not using 10 substances. (AR 33, 38.) While the burden is on the claimant to prove drug or alcohol addiction 11 is not a contributing factor to his or her disability, Parra v. Astrue,

, here, the 12 ALJ’s decision contains no explanation of how he arrived at his conclusion regarding the impact 13 of substance use on Plaintiff’s ability to work. In other words, the ALJ did not explain why 14 Plaintiff would be off task 15 percent of the time when he was using substances, and conversely,

15 why this would be reduced to 5 percent if Plaintiff was not using substances. This prevents the 16 court from determining whether this part of the ALJ’s analysis is supported by substantial 17 evidence. Therefore, remand is appropriate for the ALJ to articulate an explanation supported by 18 substantial evidence for these findings. 19 D. Remand 20 Plaintiff argues the court should reverse the ALJ’s decision and award benefits, or in the 21 alternative, remand for proper evaluation of the evidence. The Acting Commissioner, on the 22 other hand, contends that an award of benefits is improper. 23 1 “A district court may ‘revers[e] the decision of the Commissioner of Social Security, with 2 or without remanding the cause for a rehearing,’” “but ‘the proper course, except in rare 3 circumstances, is to remand to the agency for additional investigation or explanation.’” 4 Dominguez v. Colvin,

(9th Cir. 2015) (quoting Treichler v. Comm’r of Soc.

5 Sec. Admin.,

(9th Cir. 2014)). In order to remand for an award of benefits, 6 certain prerequisites must be met. Dominguez,

(citing Burell v. Colvin,

(9th Cir. 2014)). First, the court must “determine that the ALJ made a legal error, 8 such as failing to provide legally sufficient reasons for rejecting evidence.”

If it does, the 9 court “must next review the record as a whole and determine whether it is fully developed, is free 10 from conflicts and ambiguities, and ‘all essential factual issues have been resolved.’”

(quoting 11 Treichler, 775 F.3d at 1101). 12 If the court concludes the record is fully developed and there are no outstanding issues to 13 be resolved, it must consider whether “’the ALJ would be required to find the claimant disabled 14 on remand’ if the ‘improperly discredited evidence were credited as true.’” Id. If so, the court

15 may exercise its discretion to remand for an award of benefits. Id. The court is not required to 16 exercise such discretion. Id. (citing Connett v. Barnhart,

(9th Cir. 2003); 17 Harman v. Apfel,

(9th Cir. 2000)). The court may remand on an open 18 record for further proceedings when the record as a whole creates serious doubt as to whether the 19 claimant is in fact disabled.

at 408 (quoting Burell, 775 F.3d at 1141)). 20 Here, the ALJ made legal errors; however, not all essential factual issues have been 21 resolved. The newer medical evidence concerning Plaintiff’s 2019 and 2020 surgeries and any 22 subsequent treatment must be reviewed to determine the status of Plaintiff’s functional 23 limitations. The ALJ must also determine whether Dr. Magrini’s opinions are consistent or inconsistent with the other medical evidence in the record. Moreover, there is an open question regarding the impact Plaintiffs substance use has on his limitations. For these reasons, remand 3|| for further proceedings is proper. 4 IV. CONCLUSION 5 Plaintiff's motion for reversal and/or remand (ECF No. 17) is GRANTED. 6 The Commissioner’s cross-motion (ECF No. 20) is DENIED; 7 This matter is REMANDED for further proceedings consistent with this Order. 8 The Clerk shall enter JUDGMENT accordingly. 9 IT IS HEREBY ORDERED. 10|| Dated: August 17, 2022 1] Cc SS yx Craig S. Denney 12 United States Magistfate Judge 13 14 15 16 17 18 19 20 21 22 23

16