(SS) Rios v. Commissioner of Social Security

— 1 — — 2 — — 3 — — 4 — — 5 — 6 UNITED STATES DISTRICT COURT — 7 — EASTERN DISTRICT OF CALIFORNIA — 8 — 9 ADRIAN RIOS, Case No. 1:21-cv-00293-SKO 10 Plaintiff, ORDER ON PLAINTIFF’S SOCIAL 11 v. S ECURITY COMPLAINT — 12 — KILOLO KIJAKAZI, (Doc. 1) 13 Acting Commissioner of Social Security, 14 Defendant. _____________________________________/ — 15 — — 16 — 17 I. INTRODUCTION 18 On March 1, 2021, Plaintiff Adrian Rios (“Plaintiff”) filed a complaint under 42 U.S.C. §§ 19 405(g) and 1383(c) seeking judicial review of a final decision of the Commissioner of Social 20 Security (the “Commissioner” or “Defendant”) denying his application for Supplemental Security 21 Income (“SSI”) under Title XVI of the Social Security Act (the “Act”). (Doc. 1.) The matter is 22 currently before the Court on the parties’ briefs, which were submitted, without oral argument, to 23 the Honorable Sheila K. Oberto, United States Magistrate Judge.1 24 II. BACKGROUND 25 Plaintiff’s parent protectively filed an application for SSI payment on Plaintiff’s behalf on 26 August 23, 2017, as Plaintiff was still a minor as of that date, alleging that Plaintiff became disabled — 27 — 28 1 The parties consented to the jurisdiction of a U.S. Magistrate Judge. (Docs. 7, 9.) 1 on August 23, 2017, due to blindness in his left eye. (Administrative Record (“AR”) 21, 192, 210.) 2 Plaintiff was born on July 26, 2000, and was 17 years old as of the alleged onset date. (AR 25, 206.) 3 During the relevant period, Plaintiff was considered a child for SSI purposes until July 25, 2018 (the 4 day before his eighteenth birthday) and an adult thereafter. He graduated high school and has no 5 relevant past work experience. (AR 30, 34.) 6 A. Administrative Proceedings 7 The Commissioner initially denied Plaintiff’s application for SSI benefits on October 10, 8 2017, and again on reconsideration on November 29, 2017. (AR 102, 112.) Consequently, Plaintiff 9 requested a hearing before an Administrative Law Judge (“ALJ”). (AR 118.) At the hearing on 10 August 14, 2019, Plaintiff appeared with counsel and testified before an ALJ as to his alleged 11 disabling conditions. (AR 46–66.) 12 Plaintiff testified that he became blind in his left eye when one of his friends shot him 13 with a BB gun in junior high school. (AR 47, 56.) Six to eight months after the incident, Plaintiff 14 received a prosthetic eye. (AR 50.) Plaintiff graduated high school and was pursuing an Associate 15 of Arts degree in administration of justice. (AR 52.) Half of his classes are online, which allows 16 him to take breaks as needed. (AR 60, 61.) When Plaintiff attends classes in person, the school 17 provides him with special accommodations, such as giving him voice recorders or a seat at the 18 front of the class. (AR 61.) He has a driver’s license, but when he drives, he tries to stay in the 19 same lane and avoid lane changes. (AR 60.) He drives himself to school, which is about five 20 minutes away. (AR 65.) Plaintiff indicated that he also helps with chores around the house, such 21 as taking out the trash, feedings the dogs, and putting his clothes away. (AR 65.) According to 22 Plaintiff, he has difficulties seeing. (AR 59.) He also gets headaches a couple times a week as a 23 result of eyestrain. (AR 62.) When Plaintiff gets a headache, he sometimes takes an Advil and 24 then takes a break for about 30 to 40 minutes. (AR 63.) If he has two hours of work for his classes, 25 he needs to take “two breaks 30 minutes in between 40 minutes.” (AR 63–64.) 26 B. The ALJ’s Decision 27 In a decision dated September 24, 2019, the ALJ found that Plaintiff was not disabled, as 28 defined by the Act. (AR 21–36.) The ALJ conducted the five-step disability analysis set forth in — 1 — 20 C.F.R. § 416.920 . (AR 25–36.) The ALJ determined that Plaintiff had not engaged in substantial 2 gainful activity since August 23, 2017, the application date (step one). (AR 26.) At step two, the 3 ALJ found Plaintiff’s following impairments to be severe, before Plaintiff attained age 18: exogenic 4 obesity; left eye blindness; possible neurodevelopmental disorder; left eye prosthesis, “status post 5 injury, corrected visual acuity in the right eye is 20/30”; and migraine headache. (Id.) Before 6 attaining age 18, Plaintiff did not have an impairment or combination of impairments that met or 7 medically equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“the 8 Listings”) (step three). (AR 26–27.) Therefore, the ALJ determined that Plaintiff was not disabled 9 prior to attaining age 18. (AR 33.) The ALJ then determined that, since attaining age 18, Plaintiff 10 continued to have severe impairments but had not developed any new impairments. (AR 33.) Nor 11 did Plaintiff have an impairment or combination of impairments that met or medically equaled one 12 of the listed impairments in the Listings since attaining age 18. (AR 34.) 13 Next, the ALJ assessed Plaintiff’s RFC since attaining age 18 and applied the RFC 14 assessment at steps four and five. See 20 C.F.R. § 416.920 (a)(4) (“Before we go from step three to 15 step four, we assess your residual functional capacity . . . . We use this residual functional capacity 16 assessment at both step four and step five when we evaluate your claim at these steps.”). The ALJ 17 determined that Plaintiff had the RFC: 18 to perform medium work as defined in 20 CFR [§] 416.967(c) except that he can lift and carry 50 pounds occasionally and 25 pounds frequently, stand six hours, walk 19 six hours, and sit six hours in an eight-hour workday with normal breaks. [Plaintiff] can perform frequent climbing ramps and stairs, balancing, stooping, kneeling, 20 crouching crawling, but no climbing ladders, ropes, or scaffolds. [Plaintiff] cannot perform work requiring binocular vision, and must avoid concentrated exposure to 21 very bright lights and dangerous and unprotected workplace hazards. 22 (AR 34.) Although the ALJ recognized that Plaintiff’s impairments “could reasonably be expected 23 to cause the alleged symptoms[,]” he rejected Plaintiff’s subjective testimony as “not entirely 24 consistent with the medical evidence and other evidence in the record[.]” (AR 28.) 25 The ALJ determined that Plaintiff had no past relevant work (step four). (AR 33.) The ALJ 26 ultimately concluded that, given his RFC, Plaintiff was not disabled because he could perform a 27 significant number of other jobs in the national economy, specifically dining room attendant, 28 Dictionary of Occupational Titles (“DOT”) code 311.677-018, counter supply worker, DOT code 1 319.687-010; and kitchen helper, DOT code 318.687-010, all unskilled and medium work with a 2 specific vocational preparation (“SVP”) 2 of 2 (step five). (AR 35.) 3 On October 10, 2019, Plaintiff sought review of the ALJ’s decision before the Appeals 4 Council, which denied review on June 4, 2020. (AR 713.) Therefore, the ALJ’s decision became 5 the final decision of the Commissioner. 20 C.F.R. § 416.1481 . 6 III. LEGAL STANDARDS 7 A. Applicable Law 8 An individual is considered “disabled” for purposes of disability benefits if he or she is 9 unable “to engage in any substantial gainful activity by reason of any medically determinable 10 physical or mental impairment which can be expected to result in death or which has lasted or can 11 be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 1382c(a)(3)(A). 12 However, “[a]n individual shall be determined to be under a disability only if his physical or mental 13 impairment or impairments are of such severity that he is not only unable to do his previous work 14 but cannot, considering his age, education, and work experience, engage in any other kind of 15 substantial gainful work which exists in the national economy.” Id. at § 1382c(a)(3)(B). 16 “The Social Security Regulations set out a five-step sequential process for determining 17 whether a claimant is disabled within the meaning of the Social Security Act.” Tackett v. Apfel, 180 18 F.3d 1094, 1098 (9th Cir. 1999) (citing 20 C.F.R. § 404.1520 ); see also 20 C.F.R. § 416.920 . The 19 Ninth Circuit has provided the following description of the sequential evaluation analysis: 20 In step one, the ALJ determines whether a claimant is currently engaged in substantial gainful activity. If so, the claimant is not disabled. If not, the ALJ proceeds to step 21 two and evaluates whether the claimant has a medically severe impairment or combination of impairments. If not, the claimant is not disabled. If so, the ALJ 22 proceeds to step three and considers whether the impairment or combination of impairments meets or equals a listed impairment under 20 C.F.R. pt. 404, subpt. P, 23 [a]pp. 1. If so, the claimant is automatically presumed disabled. If not, the ALJ proceeds to step four and assesses whether the claimant is capable of performing [his] 24 past relevant work. If so, the claimant is not disabled. If not, the ALJ proceeds to step five and examines whether the claimant has the [RFC] . . . to perform any other 25 substantial gainful activity in the national economy. If so, the claimant is not — 26 — 2 Specific vocational preparation, as defined in DOT, App. C, is the amount of lapsed time required by a typical worker 27 to learn the techniques, acquire the information, and develop the facility needed for average performance in a specific job-worker situation. DOT, Appendix C – Components of the Definition Trailer, 1991 WL 688702 (1991). Jobs in the 28 DOT are assigned SVP levels ranging from 1 (the lowest level – “short demonstration only”) to 9 (the highest level – — 1 — 2 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005); see also 20 C.F.R. § 416.920 (a)(4) (providing 3 the “five-step sequential evaluation process” for SSI claimants). “If a claimant is found to be 4 ‘disabled’ or ‘not disabled’ at any step in the sequence, there is no need to consider subsequent 5 steps.” Tackett, 180 F.3d at 1098 (citing 20 C.F.R. § 404.1520 ); 20 C.F.R. § 416.920 . 6 “The claimant carries the initial burden of proving a disability in steps one through four of 7 the analysis.” Burch, 400 F.3d at 679 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 8 1989)). “However, if a claimant establishes an inability to continue [his] past work, the burden 9 shifts to the Commissioner in step five to show that the claimant can perform other substantial 10 gainful work.” Id. (citing Swenson, 876 F.2d at 687 ). 11 B. Scope of Review 12 “This court may set aside the Commissioner’s denial of [social security] benefits [only] when 13 the ALJ’s findings are based on legal error or are not supported by substantial evidence in the record 14 as a whole.” Tackett, 180 F.3d at 1097 (citation omitted). “Substantial evidence” means “such 15 relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” 16 Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. of N.Y. v. NLRB, 305 17 U.S. 197, 229 (1938)). “Substantial evidence is more than a mere scintilla but less than a 18 preponderance.” Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). 19 “This is a highly deferential standard of review . . . .” Valentine v. Comm’r of Soc. Sec. 20 Admin., 574 F.3d 685, 690 (9th Cir. 2009). The ALJ’s decision denying benefits “will be disturbed 21 only if that decision is not supported by substantial evidence or it is based upon legal error.” Tidwell 22 v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999). Additionally, “[t]he court will uphold the ALJ’s 23 conclusion when the evidence is susceptible to more than one rational interpretation.” Id.; see, e.g., 24 Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (“If the evidence is susceptible to more 25 than one rational interpretation, the court may not substitute its judgment for that of the 26 Commissioner.” (citations omitted)). 27 In reviewing the Commissioner’s decision, the Court may not substitute its judgment for that 28 of the Commissioner. Macri v. Chater, 93 F.3d 540, 543 (9th Cir. 1996). Instead, the Court must 1 determine whether the Commissioner applied the proper legal standards and whether substantial 2 evidence exists in the record to support the Commissioner’s findings. See Lewis v. Astrue, 498 F.3d 3 909, 911 (9th Cir. 2007). Nonetheless, “the Commissioner’s decision ‘cannot be affirmed simply 4 by isolating a specific quantum of supporting evidence.’” Tackett, 180 F.3d at 1098 (quoting Sousa 5 v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998)). “Rather, a court must ‘consider the record as a 6 whole, weighing both evidence that supports and evidence that detracts from the [Commissioner’s] 7 conclusion.’” Id. (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). 8 Finally, courts “may not reverse an ALJ’s decision on account of an error that is harmless.” 9 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citing Stout v. Comm’r, Soc. Sec. Admin., — 10 — 454 F.3d 1050 , 1055–56 (9th Cir. 2006)). Harmless error “exists when it is clear from the record 11 that ‘the ALJ’s error was inconsequential to the ultimate nondisability determination.’” Tommasetti 12 v. Astrue, 533 F.3d 1035, 1038 (9th Circ. 2008) (quoting Robbins v. Social Sec. Admin., 466 F.3d 13 880, 885 (9th Cir. 2006)). “[T]he burden of showing that an error is harmful normally falls upon 14 the party attacking the agency’s determination.” Shinseki v. Sanders, 556 U.S. 396, 409 (2009) 15 (citations omitted). 16 IV. DISCUSSION 17 Plaintiff contends the ALJ erred: (1) by failing to develop the record and obtain opinions 18 from treating or examining sources when evaluating Plaintiff’s case; and (2) in discounting 19 Plaintiff’s testimony regarding his subjective complaints. (Doc. 5–9.) For the reasons explained 20 below, the Court finds that the ALJ erred in his evaluation of Plaintiff’s testimony, and that error 21 was not harmless. Because the Court will remand the matter on that basis, the Court will decline to 22 address Plaintiff's remaining assertion of error. 23 A. Legal Standard 24 In evaluating the credibility of a claimant’s testimony regarding their impairments, an ALJ 25 must engage in a two-step analysis. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). First, 26 the ALJ must determine whether the claimant has presented objective medical evidence of an 27 underlying impairment that could reasonably be expected to produce the symptoms alleged. Id. The 28 claimant is not required to show that [his] impairment “could reasonably be expected to cause the 1 severity of the symptom she has alleged; [he] need only show that it could reasonably have caused 2 some degree of the symptom.” Id. (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 3 2007)). If the claimant meets the first test and there is no evidence of malingering, the ALJ can only 4 reject the claimant’s testimony about the severity of the symptoms if they give “specific, clear and 5 convincing reasons” for the rejection. Id. As the Ninth Circuit has explained: 6 The ALJ may consider many factors in weighing a claimant’s credibility, including (1) ordinary techniques of credibility evaluation, such as the claimant’s reputation — 7 — for lying, prior inconsistent statements concerning the symptoms, and other 8 testimony by the claimant that appears less than candid; (2) unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of 9 treatment; and (3) the claimant’s daily activities. If the ALJ’s finding is supported by substantial evidence, the court may not engage in second-guessing. — 10 — 11 Tommasetti, 533 F.3d at 1039 (citations and internal quotation marks omitted); see also Bray v. 12 Comm’r of Soc. Sec. Admin., 554 F.3d 1219 , 1226–27 (9th Cir. 2009). Other factors the ALJ may 13 consider include a claimant’s work record and testimony from physicians and third parties 14 concerning the nature, severity, and effect of the symptoms of which he complains. Light v. Social 15 Sec. Admin., 119 F.3d 789 , 792 (9th Cir. 1997). 16 The clear and convincing standard is “not an easy requirement to meet,” as it is “‘the most 17 demanding required in Social Security cases.’” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 18 2014) (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). General 19 findings are not sufficient to satisfy this standard; the ALJ “‘must identify what testimony is not 20 credible and what evidence undermines the claimant’s complaints.’” Burrell v. Colvin, 775 F.3d 21 1133, 1138 (9th Cir. 2014) (quoting Lester v. Chater, 81 F.3d 821, 834 (1995)). 22 B. Analysis 23 The ALJ found that Plaintiff’s “medically determinable impairments could reasonably be 24 expected to cause the alleged symptoms.” (AR 28.) The ALJ also found that “[Plaintiff’s] 25 statements concerning the intensity, persistence and limiting effects of these symptoms are not 26 entirely consistent with the medical evidence and other evidence in the record for the reasons 27 explained in this decision.” (Id.) Since the ALJ found that Plaintiff’s “medically determinable 28 impairments could reasonably be expected to cause the alleged symptoms,” the only remaining issue 1 is whether the ALJ provided “specific, clear and convincing reasons” for Plaintiff’s adverse 2 credibility finding. See Vasquez, 572 F.3d at 591 . 3 The ALJ gave only one specific reason as to why Plaintiff's testimony about the effects of 4 his symptoms was less than credible: the testimony was inconsistent with the objective medical 5 evidence. (AR 28.) The Court finds this is not a specific, clear and convincing reason to discount 6 Plaintiff’s testimony because the ALJ may not reject a claimant’s subjective statements for the sole 7 reason that the testimony is inconsistent with the objective evidence. See Burch, 400 F.3d at 681 ; 8 Rollins v. Massanari, 261 F.3d 853 , 856–57 (9th Cir. 2001). Therefore, even if the ALJ’s 9 assessment of the objective medical evidence was fair, any inconsistency between the medical 10 evidence and Plaintiff's testimony, alone, would not be a proper basis for rejecting his subjective 11 complaints. 12 In addressing Plaintiff’s testimony, the ALJ simply summarized the testimony and some of 13 the medical evidence. (See AR 27–28.) The ALJ failed to specify which statements he found to be 14 less than credible and the reasons for the lack of credibility. Without such specification, the Court 15 is left to speculate as to which statements the ALJ intended to discount and how they are undermined 16 by the evidence—which the Court may not do. Brown-Hunter v. Colvin, 806 F.3d 487 , 494–95 (9th 17 Cir. 2015) (“We cannot review whether the ALJ provided specific, clear and convincing reasons for 18 rejecting [the claimant]’s pain testimony where, as here, the ALJ never identified which testimony 19 she found not credible, and never explained which evidence contradicted that testimony . . . . In sum, 20 we cannot substitute our conclusions for the ALJ’s, or speculate as to the grounds for the ALJ’s 21 conclusions.”). 22 The Court also notes that the ALJ’s proffered reason for discounting Plaintiff’s testimony— 23 that Plaintiff’s “statements concerning the intensity, persistence and limiting effects of these 24 symptoms are not entirely consistent with the medical evidence and other evidence in the record for 25 the reasons explained in this decision”—has been criticized by courts, including the Ninth Circuit, 26 as “boilerplate language.” See, e.g., Laborin v. Berryhill, 867 F.3d 1151, 1154 (9th Cir. 2017) 27 (citing Filus v. Astrue, 694 F.3d 863, 868 (7th Cir. 2012)). The Ninth Circuit found this kind of 28 language to be “problematic,” as it “subverts the way an RFC must be determined relying on credible 1 evidence, including testimony.” Id. “[I]nclusion of [the] flawed boilerplate language” “does not . . 2 . add anything to the ALJ’s determination.” Id. Because the ALJ included only the boilerplate 3 language and did not specifically identify “the reasons explained in the decision,” his analysis of 4 Plaintiff’s subjective complaints was flawed. 5 In an effort to salvage the adverse credibility determination, the Commissioner, noting that 6 “the ALJ’s reasoning was sometimes separate into the different portions of the decision, such as 7 discounting Plaintiff’s mother’s statements,” contends that the ALJ discredited Plaintiff on the 8 additional bases that he received limited treatment and that his activities undermined his testimony. 9 (See Doc. 16 at 8–9.) These, however, were not reasons expressly articulated by the ALJ in 10 connection with Plaintiff’s adverse credibility determination. See Gonzalez v. Sullivan, 914 F.2d 11 1197 , 1201–02 (9th Cir. 1990) (rejecting link between ALJ’s finding of possibly adverse evidence 12 and adverse credibility determination in other portion of decision where ALJ did not “specifically 13 link” the evidence to his conclusion that claimant’s excess pain testimony lacked credibility); see 14 also Orn, 495 F.3d at 630 (“We review only the reasons provided by the ALJ in the disability 15 determination and may not affirm on a ground upon which he did not rely.”). Because this Court’s 16 review is limited to the rationale provided by the ALJ, the post-hoc rationalization advanced by the 17 Commissioner cannot justify the ALJ’s rejection of Plaintiff’s subjective testimony. See Bray, 554 18 F.3d at 1225 (“Long-standing principles of administrative law require [the court] to review the 19 ALJ’s decision based on the reasoning and factual findings offered by the ALJ—not post hoc 20 rationalizations that attempt to intuit what the adjudicator may have been thinking.”); Ceguerra v. 21 Sec’y of Health & Human Servs., 933 F.2d 735, 738 (9th Cir. 1991) (“A reviewing court can evaluate 22 an agency’s decision only on the grounds articulated by the agency.”). 23 C. The ALJ’s Error Was Not Harmless 24 The Court now turns to the analysis of whether this error by the ALJ was harmless. The 25 Ninth Circuit “ha[s] long recognized that harmless error principles apply in the Social Security Act 26 context.” Molina, 674 F.3d at 1115 (citing Stout, 454 F.3d at 1054 ); see also Garcia v. Comm’r of 27 Soc. Sec., 768 F.3d 925 , 932 n.10 (9th Cir. 2014) (stating that the harmless error analysis applies 28 where the ALJ errs by not discharging their duty to develop the record). As such, “the court will 1 not reverse an ALJ’s decision for harmless error.” Tommasetti, 533 F.3d at 1038 (citing Robbins, — 2 — 466 F.3d at 885 ). 3 An error is harmless “where it is inconsequential to the ultimate nondisability 4 determination.” Molina, 674 F.3d at 1115 (citations omitted); see also Treichler v. Comm’r of Soc. 5 Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014) (stating that an error is also harmless “‘if the 6 agency’s path may reasonably be discerned,’ even if the agency ‘explains its decision with less than 7 ideal clarity’” (quoting Alaska Dep’t of Envtl. Conservation v. EPA, 540 U.S. 461, 497 (2004)). “In 8 other words, in each case [courts] look at the record as a whole to determine whether the error alters 9 the outcome of the case.” Molina, 674 F.3d at 1115 . “[T]he nature of [the] application” of the 10 “harmless error analysis to social security cases” is “fact-intensive―‘no presumptions operate’ and 11 ‘[courts] must analyze harmlessness in light of the circumstances of the case.’” March v. Colvin, — 12 — 792 F.3d 1170, 1172 (9th Cir. 2015) (quoting Molina, 674 F.3d at 1121 ). “[T]he burden of showing 13 that an error is harmful normally falls upon the party attacking the agency’s determination.” 14 Shinseki, 556 U.S. at 409 (citations omitted). 15 The Commissioner does not contend that any error by the ALJ in evaluating Plaintiff’s 16 credibility was harmless (see Doc. 16), and the record establishes that the ALJ’s error was not 17 harmless. If the ALJ had credited Plaintiff’s testimony regarding certain functional abilities and 18 included appropriate limitations in the RFC, that may have changed the disability determination. 19 For example, Plaintiff testified that, for every two hours of work for his classes, he would need to 20 take two breaks of 30 or 40 minutes each. (See AR 63–64.) Therefore, the error was not 21 “inconsequential to the ultimate nondisability determination,” Molina, 674 F.3d at 1115 , and 22 therefore not harmless. 23 D. The ALJ’s Error Warrants Remand for Further Proceedings 24 Where the ALJ commits an error and that error is not harmless, the “ordinary . . . rule” is “to 25 remand to the agency for additional investigation or explanation.” Treichler, 775 F.3d at 1099 26 (citations omitted). The Ninth Circuit recognized a limited exception to this typical course where 27 courts “remand[] for an award of benefits instead of further proceedings.” Id. at 1100–01 (citations 28 omitted); see also id. at 1100 (noting that this exception is “sometimes referred to as the ‘credit-as1 true’ rule”). In determining whether to apply this exception to the “ordinary remand rule,” the court 2 must determine, in part, whether (1) “the record has been fully developed;” (2) “there are 3 outstanding issues that must be resolved before a determination of disability can be made;” and (3) 4 “further administrative proceedings would be useful.” Id. at 1101 (citations omitted). As to the last 5 inquiry, additional “[a]dministrative proceedings are generally useful where the record has not been 6 fully developed, there is a need to resolve conflicts and ambiguities, or the presentation of further 7 evidence . . . may well prove enlightening in light of the passage of time.” Id. (citations omitted). 8 Ultimately, “[t]he decision whether to remand a case for additional evidence or simply to award 9 benefits is in [the court’s] discretion.” Swenson, 876 F.2d at 689 (citation omitted). 10 The Court finds that the “credit-as-true” exception to the “ordinary remand rule” is 11 inapplicable in this case because additional administrative proceedings would be useful. If the ALJ 12 changes his evaluation of Plaintiff’s subjective complaints, the ALJ should incorporate any 13 warranted additional limitations in the RFC. Conversely, there may be specific, clear and 14 convincing reasons the ALJ can offer for discounting the testimony. See Voisard v. Berryhill, No. 15 2:17–CV–1023-EFB, 2018 WL 4488474 , at *5 (E.D. Cal. Sept. 19, 2018) (“That the ALJ failed to 16 provide sufficient reasons for discounting plaintiff’s subjective testimony in this instance does not 17 compel a finding that he is unable to do so.”). 18 Even if the ALJ decides to credit as true some or all of Plaintiff’s symptom statements and 19 adjust the RFC determination for Plaintiff, the ALJ may still conclude that Plaintiff is not disabled 20 because he has the RFC to perform the requirements of other work that exists in significant numbers 21 in the national economy. The ALJ may also elect to further develop the record, if deemed necessary. 22 Further proceedings would therefore be useful to allow the ALJ to resolve this “outstanding 23 issue[ ]” before a proper disability determination can be made. See Varney v. Sec’y of Health & 24 Human Servs., 859 F.2d 1396, 1401 (9th Cir. 1988). Indeed, Plaintiff requests remand for further 25 proceedings in the event the Court finds harmful error. (See Doc. 14 at 10.) 26 On remand, the ALJ should reevaluate Plaintiff’s symptom testimony and address any 27 necessary changes to the RFC determination. If the ALJ again discounts Plaintiff’s subjective 28 symptoms, he can then provide an adequate discussion of the specific testimony he is discounting 1 and the specific evidence that contradicts that testimony. See Payan v. Colvin, 672 F. App’x 732 , 2 733 (9th Cir. 2016). The ALJ will also need to reevaluate his conclusions at Steps Four and Five of 3 the disability determination in light of any changes to Plaintiff’s RFC. 4 E. The Court Declines to Determine Plaintiff’s Remaining Assertion of Error 5 As the Court finds that remand is appropriate for the ALJ to re-assess Plaintiff’s RFC, the 6 Court does not reach Plaintiff’s additional assertion of error regarding the ALJ’s duty to develop the 7 record, which as noted above, the ALJ may choose to do on remand. See Hiler v. Astrue, 687 F.3d 8 1208, 1212 (9th Cir. 2012) (“Because we remand the case to the ALJ for the reasons stated, we 9 decline to reach [plaintiff’s] alternative ground for remand.”); see also Newton v. Colvin, No. 2:13– 10 cv–2458–GEB–EFB, 2015 WL 1136477 , at *6 n.4 (E.D. Cal. Mar. 12, 2015) (“As the matter must 11 be remanded for further consideration of the medical evidence, the court declines to address 12 plaintiff’s remaining arguments.”); Augustine ex rel. Ramirez v. Astrue, 536 F. Supp. 2d 1147 , 1153 13 n.7 (C.D. Cal. 2008) (“[The] Court need not address the other claims plaintiff raises, none of which 14 would provide plaintiff with any further relief than granted, and all of which can be addressed on 15 remand.”). 16 V. CONCLUSION AND ORDER 17 Based on the foregoing, the Court finds that the ALJ’s decision is not supported by 18 substantial evidence and is therefore VACATED, and the case is REMANDED to the ALJ for 19 further proceedings consistent with this Order. The Clerk of this Court is DIRECTED to enter 20 judgment in favor of Plaintiff Adrian Rios and against Defendant Kilolo Kijakazi, Acting 21 Commissioner of Social Security. — 22 — IT IS SO ORDERED. — 23 — 24 Dated: September 6, 2022 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE — 25 — — 26 — — 27 — — 28 —