Arizona Cases February 21, 2023: Frey v. Kijakazi

Case Description

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REPORT AND RECOMMENDATION

ERIC J. MARKOVICH, UNITED STATES MAGISTRATE JUDGE

Currently pending before the Court is Plaintiff Kevin Frey's Opening Brief Filed Pursuant to LRCiv 16.1 (“Opening Brief”) (Doc. 19). Defendant filed her Answering Brief (“Response”) (Doc. 22), and Plaintiff replied (“Reply”) (Doc. 23). Plaintiff brings this cause of action for review of the final decision of the Commissioner for Social Security pursuant to 42 U.S.C. § 405(g). Compl. (Doc. 1).

Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure, this matter was referred to Magistrate Judge Markovich for Report and Recommendation. Based upon the pleadings of the parties and the administrative record submitted to the Court, the Magistrate Judge recommends that the District Judge grant Plaintiff's Opening Brief (Doc. 19).

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I. BACKGROUND

A. Procedural History

On February 12, 2020, Plaintiff protectively filed a Title II application for Social Security Disability Insurance Benefits (“DIB”) alleging disability as of November 1, 2019, due to chronic back pain post-surgery 01/2018; cannot stand or sit for a long time; counter top height is bad for him, he has to bend lower; and bilateral carpal tunnel syndrome-left worse than right (right handed). See Administrative Record (“AR”) at 13, 33, 35, 56, 58, 62-63, 70-71, 75, 83, 186, 220, 230, 266, 292, 294. The Social Security Administration (“SSA”) denied this application on April 7, 2020. Id. at 13, 56-69, 85-88. On July 8, 2020, SSA denied Plaintiff's application upon reconsideration. Id. at 13, 70-84, 89-92. On July 8, 2020, Plaintiff filed his request for hearing. Id. at 13, 100-101. On October 14, 2020, a telephonic hearing was held before Administrative Law Judge (“ALJ”) Laura Speck Havens. AR at 13, 29-55, 298-328. On November 2, 2020, the ALJ issued an unfavorable decision. Id. at 10-20. On December 18, 2020, Plaintiff requested review of the ALJ's decision by the Appeals Council, and on June 15, 2021, review was denied. Id. at 1-9, 277-87. On July 29, 2021, Plaintiff filed this cause of action. Compl. (Doc. 1).

B. Factual History

Plaintiff was fifty-three (53) years old at the time of the alleged onset of his disability and fifty-four (54) years old at the time of the administrative hearing. AR at 13, 20, 32-33, 56, 58-59, 62, 70-71, 75, 83, 123, 186, 220, 230, 294. Plaintiff is a high school graduate. Id. at 20, 56, 63, 81, 83, 191. Prior to his alleged disability, Plaintiff worked as a car wash manager and an Uber/Lyft driver. Id. at 20, 33-35, 81, 151-59, 178-80, 191, 208-11, 252-53.

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1. Plaintiff's Testimony

a. Administrative Hearing

At the administrative hearing, Plaintiff testified that in January of 2018 he had back surgery due to ongoing pain. AR at 33. Plaintiff described that post-surgery and recovery, he attempted to return to work at the car wash, but every day ended with excruciating pain. Id . Plaintiff further testified that he left that job and began driving for Uber and Lyft due to his financial obligations. Id. at 33-34. Plaintiff indicated that he began to have midback pain while driving, which required him to take frequent breaks. Id. at 34, 48-49. Plaintiff also noted that the mid-back pain was new and different from the lower back pain for which he had surgery. Id. at 34. Plaintiff testified that he stopped driving for Uber and Lyft in March of 2020 due to the pandemic, and has not driven since then. AR at 34, 50.

Plaintiff confirmed that he had a high school education and his previous employment included working as a car wash manager, as well as driving for Uber and Lyft. Id. at 33-36. Plaintiff further confirmed that he suffered from degenerative disc disease, carpal tunnel syndrome, and obesity. Id. at 35. Plaintiff testified that he currently rents a home with a roommate. Id . at 36. Plaintiff described that he typically wakes up between 8:00 and 8:30 AM and tries to do some stretching for his back. Id. at 36, 38-39. Plaintiff indicated that he is able to dress and bathe without help, as well as help with chores in the home. AR at 36. Plaintiff is able to cook microwave type meals, but cannot cook more extensively without pain. Id. at 36-37. Plaintiff reported that he can rinse dishes and put them in the dishwasher; perform light sweeping but no mopping; do his own laundry but larger loads require multiple trips to the washing machine; grocery shop while leaning on the cart; and occasionally pick up dog feces in the yard but requires frequent breaks. Id. at 37, 42-43, 45-46. Plaintiff reported his daily activities to include teaching himself how to play the guitar from short YouTube videos, watching television, and using the internet on his cellular phone. Id. at 37-38. Plaintiff described that he lays down for the bulk of these activities. Id. at 43. Plaintiff testified that he is able to drive a car, but requires to get out and walk or bend every thirty (30) to forty (40) minutes. AR at 39. Plaintiff indicated that

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he has problems sleeping due to pain several nights per week, and generally sleeps five (5) to six (6) hours per night. Id . at 39, 43-45.

Plaintiff testified that he sees his weight loss doctor every two (2) weeks and his primary care physician every four (4) to six (6) months. Id. at 40. Plaintiff noted that he has dry mouth due to one of his medications. Id. at 39-40. Plaintiff estimated that he can stand for approximately fifteen (15) minutes before his needs to sit or lay down, and walk for approximately a half of a block before he has to bend at a 45 degree angle. Id. at 40. Plaintiff reported that he has trouble lifting a ten (10) to fifteen (15) pound bag of groceries. AR at 40. Plaintiff described pain in his lower back near the surgical site if he is standing or walking, and at the bottom of his two (2) lowest ribs while sitting. Id. at 40-42. Plaintiff further described his pain as consistent, except while laying down or floating in a pool. Id. Plaintiff estimated that his pain averaged a six (6) or seven (7) on a scale from one (1) to ten (10). Id. at 41. Plaintiff indicated that his doctor had prescribed wrist braces to treat his carpal tunnel syndrome, which gave him some relief. Id. at 41-42. Plaintiff denied having carpal tunnel release surgery. AR at 42.

Plaintiff opined that his current pain levels would be prohibitive to a work environment. Id. at 46. Plaintiff explained that while driving for Uber or Lyft, passengers would frequently have luggage, but he generally did not lift it into his vehicle without help. Id. at 46-48. Plaintiff also clarified that the time that was reported for his previous rideshare employment was not indicative of the actual number of hours he spent driving, because some portion of the time was on-line not active drive time. Id. at 49-50.

b. Administrative Forms

i. Work Activity Report-Self Employment

On November 1, 2019, Plaintiff completed a Work Activity Report-Self Employment. AR at 151-77. Plaintiff listed his work as a driver with Uber and Lyft. Id. at 151. Plaintiff indicated that he was an independent contractor and worked approximately eighty (80) hours per month. Id. Plaintiff described working for Uber and Lyft simultaneously, including the process he utilized running both applications at the same

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time when waiting for a ride. Id. at 157. Plaintiff also described the back pain that led to his resignation from the car wash. Id. at 158. Plaintiff reported constant and severe back pain while sitting or working at a counter, and which resulted in his having to bend over for relief after walking half a block. AR at 159.

ii. Work History Report

a. Undated

Plaintiff completed an undated Work History Report. AR at 178-85. Plaintiff listed his prior employment to include car wash manager and Uber/Lyft driver. Id. at 178. Plaintiff described the car wash manager position as full time-ten (10) hours per day, five (5) days per week. Id. at 179. Plaintiff reported earning $1,300.00 per week, but did not provide any further information. Id. Plaintiff described his position as an Uber/Lyft driver as part time-3.5 hours, four (4) days per week. Id. at 180. Plaintiff reported earning $1,000.00 per week, without any further information. AR at 180.

b. March 15, 2020

On March 15, 2020, Plaintiff completed a Work History Report. AR at 208-11. Plaintiff listed his prior work to include driving for Uber/Lyft beginning in October 2018, and as a location manager for a full service carwash from 2002 through August 2018. Id. at 208. Plaintiff described his position for Uber and Lyft as part time, three (3) to five (5) hours per day, three (3) to five (5) days per week. Id. at 209. He was responsible for “[d]riving people from point A to point B.” Id. Plaintiff confirmed that he used machines, tools, or equipment-specifically a vehicle-for this position, but denied using technical knowledge or skills, or doing any writing, completing reports, or other similar duties. Id. Plaintiff described sitting for three (3) to five (5) hours per day; handling, grabbing, or grasping big objects for ten (10) minutes per day; and writing, typing, or handling small objects for one (1) hour per day. AR at 209. Plaintiff reported loading and unloading customer luggage, indicating that he frequently lifted twenty-five (25) pounds and 100 pounds was the heaviest weight he lifted. Id. Plaintiff denied supervising other people in this position. Id.

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Plaintiff described the carwash manager position was full time, 10.5 hours per day, 52.5 days per week. Id. at 210. Plaintiff reported earning $1,300.00 per week in that position. Id. Plaintiff detailed his extensive responsibilities at the carwash from opening to close of business, which included among other things, filling in for absent employees, cross-referencing the point of sale system, fixing equipment, and customer service. AR at 211. Plaintiff noted that at this job, he used machines, tools, or equipment; technical knowledge or skills; and wrote, completed reports, or performed other similar duties. Id. at 210. Plaintiff reported that he walked for four (4) hours per day; stood for two (2) hours per day; and sat, climbed, kneeled, crouched, crawled, stooped, reached, handled, grabbed or grasped big objects, and wrote, typed, or handled small objects, for approximately thirty (30) minutes each day. Id. Plaintiff indicated that he carried chemicals between ten (10) and fifty (50) feet, one (1) to four (4) times per day, and moved equipment a similar distance and frequency. Id. Plaintiff further reported that he frequently lifted twenty-five (25) to fifty (50) or more pounds, and the heaviest weight he lifted was 500 pounds. Id. Plaintiff supervised between twenty (20) and forty (40) people every day, was a lead worker, and was responsible for hiring and firing employees. AR at 210.

c. Undated-Incomplete

There is a second undated Job History report in the record; however, it is incomplete. AR at 252-53. Plaintiff listed his past work to include driving of Uber/Lyft and managing the car wash. Id. at 253. Plaintiff described his position at the car wash to include “wash and vacuum vehicles, fix equipment, fill chemicals, send in required paper work, and maintain building.” Id. at 252. Plaintiff reported that in this position he used machines, tool, or equipment; technical knowledge, or skills; and wrote, completed reports, or performed similar duties. Id. Plaintiff further reported walking, standing, sitting, climbing, stooping, kneeling, crouching, crawling, handling large objects, reaching, and writing, typing, or handling small objects all day. Id. Plaintiff described “lifting, moving, [and]

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pouring 5 gallon & 55 gallon pails and drums every day[,] [and] lifting, carrying, and working with tools (all kind) working on pumps, motors, etc. all day.” AR at 252. Plaintiff listed the heaviest weight that he lifted to be 100 pounds or more. Id. Plaintiff confirmed that he was a supervisor, responsible for hiring and firing and being a lead worker. Id.

iii. Function Report-Adult

On March 15, 2020, Plaintiff completed a Function Report-Adult. AR at 199207. Plaintiff reported that he lived in a house with a friend/roommate. Id. at 199. Plaintiff outlined the limitations of his medical conditions as follows:

I cannot (since L-4 L-5 fusion) walk ½ block without bending over to get relief. I cannot stand in one place or sit for more than about 15 minutes without extreme middle & lower back pain. Also anything counter top height causes severe low back pain after a short period. (3-5 minutes)

Id. Plaintiff described his usual day to include getting up, having something to eat, then going out for a few hours to drive for Uber and Lyft, after which he would come home and lay down for a couple of hours in an effort to relieve his back pain. Id. at 200. After resting, Plaintiff reported he would get up again, have some dinner, then watch some television or browse the internet before going to bed. Id. Plaintiff indicated that he cared for his parents, helping them pay bills and managing his father's medications. AR at 200. Plaintiff also noted that he fed his dog, although his friend/roommate would provide food and water sometimes. Id.

Plaintiff reported that he was able to walk, sit, stand, lift, bend, and stoop prior to his illness. Id. Plaintiff further reported that his back pain would wake him up sometimes, requiring him to reposition. Id. Plaintiff indicated that he was generally able to manage his personal hygiene, but noted that he had difficulty bending to put on his pants and socks, as well as bathing his lower extremities. Id. at 201. Plaintiff also noted difficulty using the toilet post-surgery. AR at 201. Plaintiff denied needing reminders for personal care or medications. Id. Plaintiff confirmed that he prepares his own meals, although they consisted primarily of frozen or microwaveable meals and sandwiches. Id. Plaintiff

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reiterated his inability to stand at a counter for longer than three (3) to five (5) minutes. Id. Plaintiff indicated that he is able to do laundry, take out the trash, and vacuum with resting. Id. at 202. Plaintiff denied needing help to perform these household chores. AR at 202.

Plaintiff reported that he goes out daily and can drive a car. Id. Plaintiff denied needing someone to accompany him while out of the house. Id. Plaintiff confirmed that he can shop, in stores, for food and personal items. Id. Plaintiff estimated that he does so twice per month, although such outings require frequent breaks where he bends over to relieve his back pain. Id. Plaintiff indicated that he is able to pay bills, count change, handle a savings account, and use a checkbook/money orders. AR at 203. Plaintiff noted that his ability to handle his money has changed because of his reduced income. Id. Plaintiff listed his hobbies and interests to include watching television, which he does daily. Id. Plaintiff observed that he “used to be able to do anything but now I can't walk, stand, or sit for long periods without pain.” Id. Plaintiff reported that he spends time each day talking on the phone with his parents. Id. Plaintiff also noted that he goes to sporting events twice per year in addition to his bimonthly shopping trips. AR at 203. Plaintiff denied needing reminders or someone to accompany him. Id. Plaintiff reiterated that his activities are limited by his inability to walk, stand, or sit for “any length of time.” Id. at 204.

Plaintiff described his illness to affect his ability to lift, squat, bend, stand, walk, sit, and kneel. Id. Plaintiff explained that he is unable to do any of these activities without mid- and lower-back pain. Id. Plaintiff reported that he is right handed and can walk for approximately one-half a block without needing to stop and rest for three (3) to five (5) minutes. AR at 204. Plaintiff confirmed that he can pay attention as needed, is able to finish what he starts, and can follow written and spoken instructions without difficulty. Id. Plaintiff denied having any issues with authority figures, getting along with other people, stress, or changes in routine, and had not noticed any unusual behaviors or fears. Id. at 205.

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2. Plaintiff's Medical Records

a. Treatment records

On July 24, 2017, Plaintiff was evaluated by Richard V. Chua, M.D. at Northwest NeuroSpecialists. AR at 361-64. Plaintiff reported “midline lumbosacral pain going into both upper buttock[s,] [and] occasionally go[ing] down into the hamstrings.” Id. at 361. Plaintiff further reported failed physical therapy, and “steroid injection with only 2 to 3 weeks of significant improvement.” Id. Dr. Chua's review of Plaintiff's systems was unremarkable. Id. at 362. Plaintiff exhibited bilateral obstruction with external rotation during active range of motion. Id. at 363. Dr. Chua also noted that Plaintiff's balance and gait were pitched forward. AR at 363. Dr. Chua ordered further diagnostic imaging. Id. On July 31, 2017, Plaintiff had a comprehensive lumbar spine x-ray. Id. at 357. Wayne Vose, M.D. found interval worsening of L4 anterolisthesis on L5 to 7 mm, as well as a worsening to mild upper lumbar disk degeneration at L1/2. Id. Dr. Vose found Plaintiff's mild L4/5 disk degeneration to be similar to Plaintiff's prior study. Id. On the same date, Plaintiff had magnetic resonance imaging (“MRI”) without contrast of his lumbar spine. AR at 359-60. Kenneth Requard, M.D. noted moderate-severe central canal stenosis at L4/5 “due to bulging annulus and facet arthrosis, with 2 mm subluxation and bilateral moderate neuroforaminal narrowing” which was unchanged and without disc protrusion. Id. at 359.

On September 18, 2017, Plaintiff was again evaluated by Dr. Chua at Northwest NeuroSpecialists. Id. at 354-56. Plaintiff “complain[ed] of low back pain going into both hips, occasionally going down both legs.” Id. at 354. Dr. Chua's review of Plaintiff's systems, as well as his physical examination, were generally unremarkable. Id. at 354-55. Dr. Chua recommended surgery, as well as quitting smoking, losing weight, and better fitness to improve his chances for a successful outcome. AR at 356.

On January 8, 2018, Plaintiff saw Dr. Chua at Northwest NeuroSpecialists.

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Id. at 351-53. Dr. Chua noted that Plaintiff “has predominantly back and buttock pain, without much in the way of leg symptoms.” Id. at 351. Dr. Chua further noted that Plaintiff had failed conservative therapies. Id. Dr. Chua's review of Plaintiff's systems was unremarkable. Id. Dr. Chua's physical examination was similarly unremarkable. AR at 352. Dr. Chua recommended surgical intervention and ordered a back brace. Id . at 35253. On January 23, 2018, Plaintiff was admitted for an L4-5 transforaminal interbody fusion and decompression. Id. at 346-50. Plaintiff's surgery was generally unremarkable. Id. at 348-50. On January 24, 2018, Plaintiff was discharged to home without any intraoperative or immediate post-operative complications. Id. at 344-45.

On February 12, 2018, Plaintiff saw Dr. Chua for a postoperative evaluation. AR at 342-43. Plaintiff was wearing a back brace and reported some low back soreness, but no leg symptoms. Id. at 342. Plaintiff further reported that he had discontinued his oxycodone and muscle relaxant. Id. Dr. Chua's physical examination of Plaintiff was unremarkable. Id. Plaintiff was referred to physical therapy. Id. at 343. On February 23, 2018, Plaintiff attended physical therapy at Noonan Physical Therapy for postoperative rehabilitation. AR at 338-41. Plaintiff reported that he “was limited to walking 1 block due to pain from his back but feels he is not limited by back pain walking up to 1 mile at the time of evaluation.” Id. at 338. Plaintiff reported that his “job requirements include bending and lifting up to 30 pounds and would like to be able to return to golf for recreation if possible.” Id. Treatment notes that Plaintiff presented with pain, decreased range of motion, decreased strength, deconditioning, and postural dysfunction. Id. at 340. Plaintiff's rehabilitation potential/prognosis was noted as good. Id.

On April 9, 2018, Plaintiff attended physical therapy at Noonan Physical Therapy, and reported that he was “able to complete a full workday including moderate lifting with only residual soreness.” AR at 333-35. Andrew J. Noble, PT, DPT reported that Plaintiff was able to lift up to thirty (30) pounds with a minimal increase in lower back pain, and working toward being able to lift forty (40) pounds with pain less than or equal to two (2) out of ten (10). Id. at 333. Mr. Noble further noted that Plaintiff was able to stand for up

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to 120 minutes for work requirements with a minimal increase in lower back pain, and was working toward being able to stand for up to three (3) hours with pain less than or equal to three (3) out of ten (10). Id. Mr. Noble indicated that Plaintiff had reached his goals of slight pain, forward bending, focus on therapeutic outcome score of moderate impairment, and home exercise performance. Id. at 334. Mr. Noble's assessment noted that Plaintiff “reported moderate B paraspinal soreness with manual therapy, decreased point treatment[,] [and] . . . reviewed . . . mechanics for work related lifting with up to 40 pounds with proper form and no report of increased back pain.” Id. On the same date, Plaintiff returned to Dr. Chua for a post-operative visit. AR at 336-37. Dr. Chua noted that Plaintiff “describe[d] himself being 95% better.” Id. at 336. Dr. Chua further noted that Plaintiff was no longer taking any medications and denied leg symptoms, but continued to have “some mild intermittent low back discomfort, particularly after walking, and at the end of the workday.” Id. Dr. Chua indicated that he was “delighted to see how well Mr. Frey has done with his recent MIS L4-5 decompression and TLIF[,]” and noted that Plaintiff was “clinically doing quite well with a normal and stable neurological examination.” Id. On April 20, 2018, Mr. Noble updated Dr. Chua regarding Plaintiff's progress with physical therapy. Id. at 332. Mr. Noble reported that Plaintiff had attended twelve (12) visits and was progressing well at his last scheduled visit; however, he had not contacted him further and was discharging his case. AR at 332.

On July 25, 2018, Plaintiff had a lumbar spine CT scan. Id. at 379-80. Dr. Vose noted Plaintiff hardware at L4/5 and opined that “[t]here does seem to be mild bilateral L4/5 neural foraminal stenosis.” Id. at 379. Dr. Vose further noted a “[r]oughly 2 mm anterolisthesis of L4 on L5[,] . . . [and] [p]possible minimal retrolisthesis of L5 on S1.” Id. Plaintiff's CT scan was otherwise unremarkable. Id. On the same date, Plaintiff had x-rays of his lumbar spine. AR at 381. Dr. Vose's review of Plaintiff's x-rays was unremarkable. Id.

On August 27, 2018, Plaintiff returned to Dr. Chua at Northwest NeuroSpecialists. Id. at 330-31. Dr. Chua observed that Plaintiff was “about seven months out from an MIL

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L4-5 decompression and TLIF.” Id. at 330. Dr. Chua reported that Plaintiff's “preoperative symptoms have resolved[,]” although he reported “generalized soreness of my back.” Id. Plaintiff “readily admit[ted] he has not been able to lose weight, or stop smoking.” AR at 330. Dr. Chua's review of Plaintiff's systems was unremarkable. Id . Dr. Chua's impression included Plaintiff's continued “vague low back discomfort” that Dr. Chua opined “may be the best he will get, but it is not increasing.” Id. at 331. Dr. Chua also noted the lack of “any significant movement on [Plaintiff's] smoking history or his obesity, or physical fitness[,]” but opined that he did not believe pseudoarthrosis was an issue. Id. Dr. Chua's review of Plaintiff's July 25, 2018, CT scan and x-rays showed improvement and stability. Id.

On May 29, 2019, Plaintiff saw Stephanie Grasky, PA to establish care. AR at 440-42. PA Grasky's review of Plaintiff's systems was unremarkable, except for “ joint pain, but no back pain.” Id. at 441 (emphasis in original). On June 17, 2019, Plaintiff saw Bradley Barnett, M.D., having established care with PA Grasky. Id. at 450. Dr. Barnett's examination was unremarkable. Id. On August 26, 2019, Plaintiff was seen by Dr. Barnett regarding a variety of issues, including bilateral numbness in his arms. Id. at 449. Dr. Barnett noted that Plaintiff was “not doing great” with regard to Plaintiff's low back pain, although he was scheduled to follow up with Dr. Putty. AR at 449. On August 28, 2019, Plaintiff had a three (3) view x-ray of his cervical spine. Id. at 329, 369, 377. Dan Dwarka, M.D. interpreted the results, and found appropriate bone density, moderate degenerative disc disease at C6-7 which appeared to be new; no fracture or loss in vertebral body height, no subluxation, and prevertebral soft tissue were unremarkable. Id.

On October 7, 2019, Plaintiff saw Dr. Barnett for “pain in his upper lumbar spine . . . [and] to follow up on cervical radiculopathy.” Id. at 448. Plaintiff reported that “[h]e cannot do any walking because of the pain in his back and he gets almost no activity at all.” Id. Dr. Barnett noted that Plaintiff had “failed conservative management of his neck pain[,] [and] [h]is cervical spine x-ray show[ed] moderate to severe degenerative disc

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disease cervical spine.” AR at 448. Plaintiff was scheduled for a cervical spine MRI, and Dr. Barnett urged him to work on weight loss and exercise. Id. On October 15, 2019, Plaintiff had an MRI of his cervical spine without contrast. Id. at 366-67, 375-76. K.J. Tertell II, M.D. noted “[m]oderate discogenic narrowing degeneration; moderately significant circumferential annular disc bulge with resultant minor central spinal canal stenosis; [and] resultant moderate to severe bilateral neural foraminal stenosis” at C6/7. Id. at 366, 375. Dr. Tertell further noted “[m]oderate bilateral neural foraminal stenosis” at C5/6. Id. On the same date, Plaintiff underwent x-rays of his lumbar spine. AR at 368, 378. Dr. Tertell noted Plaintiff's L4/5 hardware and noted a lack of complication, as well as “[d]iscogenic narrowing/degeneration localized about the thoracolumbar junction.” Id. On October 21, 2019, Plaintiff saw Kurt A. Schroeder, M.D. regarding his low back pain. Id. at 412-14. Plaintiff reported only being able to “walk ½ block before he is in a lot of pain.” Id. at 412. Dr. Schroeder reviewed Plaintiff's surgical and work history. Id. Dr. Schroeder's physical examination of Plaintiff was unremarkable. AR at 413. Plaintiff “describe[d] pain below the lumbosacral junction and also up in the lower rib cage extending out.” Id. Dr. Schroeder's review of Plaintiff's systems was unremarkable. Id. at 413. Dr. Schroeder assessed lumbosacral spondylosis without myelopathy, thoracic spine pain, numbness, and bilateral carpal tunnel syndrome. Id. at 414. Dr. Schroeder ordered additional imaging and an electromyography (“EMG”) study. Id. On October 21, 2019, Plaintiff had an x-ray of his lumbar spine. AR at 415-16. Nicholas Fraley, M.D. noted Plaintiff's hardware and observed “[n]o acute osseous abnormality[,] . . . L4-L5 posterior decompression and mechanical fusion with intact hardware[,] [m]inor L4 anterolisthesis[,] [an] [i]nterbody spacer in place[,] [and] [t]horacolumbar degenerative changes.” Id. at 415. On October 22, 2019, Dr. Schroeder noted that Plaintiff's film did not show any instability. Id. at 411.

On November 7, 2019, Dr. Schroeder noted that Plaintiff “indeed does have significant carpal tunnels, left 7.1 and right 7.1.” Id. at 410. On November 14, 2019, Plaintiff had thoracic and lumbar spine MRIs without contrast. Id. at 385-90, 444, 446-47.

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Kim Burroughs, M.D. found Plaintiff's thoracic spine MRI unremarkable. AR at 385, 388, 444. John Anthony Lee, M.D. reviewed Plaintiff's lumbar spine MRI, and noted his L4/5 hardware with “Grade 1 anterolisthesis . . . [and] [m]oderate left and mild right foraminal narrowing due to degenerative factors with central canal patent.” Id. at 386-87, 389-90, 447. Dr. Lee further noted “[m]ild disc bulge, eccentric to the right, at L5-S1 with facet degeneration[,] [n]o canal stenosis at this level[,] [and] [m]ild-to-moderate bilateral proximal foraminal narrowing.” Id. at 387, 390, 447. On November 16, 2019, Dr. Schroeder wrote an office note indicating that Plaintiff “does have carpal tunnels in the 7s, but his MRI of his thoracic and lumbar spine shows that there is not much there.” Id. at 409. On November 21, 2019, Plaintiff saw Dr. Barnett for a follow-up regarding his “morbid obesity and spinal stenosis/radiculopathy[.]” Id. at 443. Dr. Barnett reported that he reviewed Plaintiff's scans with him in great detail. AR at 443. Dr. Barnett opined it was likely not surgical. Id. Dr. Barnett further opined that “[w]ithout any question [Plaintiff's] weight is a factor” and noted that he and Plaintiff “talked about that extensively.” Id.

On December 4, 2019, Plaintiff saw Dr. Schroeder for a follow-up visit. Id. at 406407. Dr. Schroeder observed that “an MRI of [Plaintiff's] thoracic and lumbar spine[] [showed] [t]hings really look open enough and plain films do not show any instability.” Id. at 406. Dr. Schroeder also noted Plaintiff's bilateral carpal tunnel syndrome. AR at 406. Dr. Schroeder indicated that Plaintiff was “very frustrated about his back but there is not a surgical indication[,]” because Plaintiff did not have instability and had an open canal. Id. Dr. Schroeder contemplated Plaintiff's need to lose weight which would result in significant improvement in his back pain. Id. Dr. Schroeder recommended nighttime splints for Plaintiff's carpal tunnel. Id. Dr. Schroeder's review of Plaintiff's systems was unremarkable. Id. On December 18, 2019, Plaintiff saw Richard Chase, M.D. for a consultation and assessment regarding his back pain. AR at 401-405. Plaintiff reported “chronic lower back pain that has worsened the last 2 years.” Id. at 403. Plaintiff further reported that “[s]urgery did not help his pain[,] [and] [h]e can only walk about a block or

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[sic] without having to sit down because of severe back pain.” Id. Dr. Chase's review of Plaintiff's systems was unremarkable. Id. Dr. Chase's general examination was generally unremarkable, but noted an antalgic gait and lumbar facet loading maneuvers positive with extension. Id. at 403-404. Dr. Chase assessed lumbosacral spondylosis without myelopathy. AR at 404. Dr. Chase indicated that Plaintiff was informed about transforaminal epidural injections at L4/5 and other available options. Id. at 401. Dr. Chase reported that “[t]he procedure occurred without complication and was tolerated quite well.” Id.

On January 17, 2020, Plaintiff again saw Dr. Schroeder for a follow-up. Id. at 399-400. Plaintiff reported that “[h]e still ha[d] some low back pain and cannot walk as far as he would like.” Id. at 399. Dr. Schroeder confirmed that Plaintiff had carpal tunnel syndrome bilaterally. AR at 399-400. Dr. Schroeder noted Plaintiff had good strength, but mild median nerve hypesthesia. Id. at 399. Dr. Schroeder prescribed splints for two months. Id. Dr. Schroeder's review of Plaintiff's systems was unremarkable. Id. On January 29, 2020, Plaintiff saw Dr. Chase for his second targeted lumbar injections. Id. at 397-98. Plaintiff reported “having noted a quite significant and meaningful degree of all around symptom improvement.” AR at 397. Dr. Chase performed the procedure without complication and reported that it was well tolerated. Id.

On March 11, 2020, Plaintiff again saw Dr. Chase for targeted lumbar transforaminal injection therapy. Id. at 395-96. Dr. Chase performed the procedure without complication. Id. at 396. On March 16, 2020, Plaintiff saw Dr. Schroeder for a follow-up. Id. at 393. Dr. Schroeder noted Plaintiff's prior back issues and surgery, remarking that Plaintiff had never returned to work. AR at 393. Dr. Schroeder further noted that Plaintiff hands had been bothering him due to bilateral carpal tunnel disease; however, Plaintiff had been wearing splints at night and reported that “things [we]re a lot better.” Id. Dr. Schroeder reported that Plaintiff was pleased and doing well. Id. Dr. Schroeder's review of Plaintiff's systems was unremarkable. Id.

On April 16, 2020, Plaintiff saw Dr. Chase regarding his low back pain. Id. at 455-56.

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Dr. Chase performed a lumbar medial branch block at L2-L5 bilaterally. AR at 455-56. “The procedure occurred without complication.” Id. On April 30, 2020, Plaintiff returned to Dr. Chase requesting a “second lumbar diagnostic medial branch block[].” Id. at 453-54. Plaintiff reported “a very definite meaningful degree of all around symptom improvement.” Id . at 453. Dr. Chase noted that “it is difficult to put an exact percentage on that.” Id. Dr. Chase performed the injection procedure without complication. AR at 453.

On May 19, 2020, Plaintiff again saw Dr. Chase regarding his continued back pain. Id. at 290-91. Plaintiff reported that epidural steroid injections provided minimal relief; medial branch blocks did not help his lower back pain; he does not like taking pain medications; and physical therapy had not been helpful. Id. at 290. Plaintiff denied pain radiating down his legs. Id. Dr. Chase's review of Plaintiff's system was unremarkable. Id. Dr. Chase assessed lumbosacral spondylosis without myelopathy and postlaminectomy syndrome. AR at 291. Dr. Chase opined that Plaintiff “should be an ideal candidate for trial of neuromodulation via spinal cord stimulation therapy.” Id. at 291.

On July 23, 2020, Plaintiff was seen by Dr. Barnett “for CPE and follow up of a number of active ongoing medical problems[.]” Id. at 487-88. Plaintiff reported that he was having “2 different back pains.” Id. at 487. Dr. Barnett noted one was in Plaintiff's low lumbar around L4-5 which Plaintiff reported hurt when he walked, and the other near the bottom of Plaintiff's rib cage which Plaintiff reported hurt while sitting. Id. Dr. Barnett also noted Plaintiff's numbness and tingling in his hands. AR at 487. Dr. Barnett's examination of Plaintiff was unremarkable. Id. Dr. Barnett noted that Plaintiff asked if he could help with his disability claim. Id. Dr. Barnett reported that he “explained that [Plaintiff] has seen 2 different neurosurgeons and in an attempt to get disability undoubtably there may be other neurologists or neurosurgeons who evaluate him and [Dr. Barnett] would defer to them with regard to his neurologic deficits but [Dr. Barnett] can certainly speak to his pain and his other health issues.” Id.

On August 12, 2020, Dr. Barnett gave a recorded statement regarding Plaintiff.

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Id. at 494-96. Dr. Barnett described Plaintiff's main medical problems to be low back pain, mid-back pain, paresthesia in his hands, and obesity. Id. at 494. Dr. Barnett confirmed that Plaintiff had reported issues with standing, sitting, and walking. AR at 494. Plaintiff's counsel gave Dr. Barnett the definition of light work, and Dr. Barnett opined that Plaintiff would not be able to perform such work because of his pain. Id. at 495. Dr. Barnett indicated that Plaintiff had reported being unable to sit for six (6) hours out of an eight (8) hour work day without having significant pain. Id. Dr. Barnett noted that he believed Plaintiff's statements regarding pin. Id. Dr. Barnett observed that Plaintiff's weight and its control was a key component to his overall health and specifically his back pain. Id. Dr. Barnett opined that his conditions would be expected to last more than twelve (12) months. AR at 496.

3. Vocational Expert Thomas M. Mitchell's Testimony

Dr. Mitchell testified as a vocational expert at the administrative hearing. AR at 13, 51-54. Dr. Mitchell described Plaintiff's past relevant work at the car wash, as Dictionary of Occupational Titles (“DOT”) number 185.167-046, as having a Specific Vocational Preparation (“SVP”) of 7, and exertional level of light. Id. at 51. Dr. Mitchell acknowledged that Plaintiff performed this job at a very heavy exertional level. Id.

The ALJ asked Dr. Mitchell to consider a hypothetical individual of Plaintiff's age, education, and work history; who could sit six (6) hours out of an eight (8) hour day; stand six (6) hours out of an eight (8) hour work day; occasionally lift and carry twenty (20) pounds; frequently lift and carry ten (10) pounds; was limited in pushing and pulling with the lower and upper extremities to frequent only; could occasionally climb, balance, stoop, kneel, crouch, and crawl; had manipulative limitations of fine feeling and fingering to frequently bilaterally; and could withstand occasional exposure to heights and moving machinery. Id. at 51-52. The ALJ defined occasional as very little to one-third of the time, and frequent as one-third to two-thirds of the time. Id. at 52. Dr. Mitchell opined that Plaintiff's past work as a car wash manager could be performed as it is typically performed, but not as Plaintiff performed it. AR at 52. Dr. Mitchell further opined that such an

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individual would be employable at the light exertional level, in a position such as office clerk, DOT number 209.667-014, light exertional level, unskilled, with an SVP of 2, and of which there are approximately 200,000 jobs in the national economy. Id. Dr. Mitchell also opined that such an individual would be employable as an information clerk, DOT number 237.367-018, light exertional level, unskilled, with an S VP of 2, and of which there are approximately 86,000 jobs in the national economy. Id. at 52-53. Dr. Mitchell finally opined that such an individual would be employable as a hand packager, DOT number 559.687-074, light exertional level, unskilled, with an SVP of 2, and of which there are approximately 315,000 jobs in the national economy. Id. at 53. Dr. Mitchell confirmed that his opinions were consistent with the DOT. Id.

Dr. Mitchell further testified that if the hypothetical individual were limited to sedentary work, that individual would not be able to perform Plaintiff's past relevant work of car wash manager, nor would they have transferrable skills to other sedentary work. AR at 53. Dr. Mitchell also confirmed that if the individual were limited to less than sedentary work, they would be unable to perform Plaintiff's past relevant work and there would not be any other work existing in significant numbers in the national economy. Id. at 54. Dr. Mitchell also acknowledged that DOT No. 185.167-046, that he relied on to describe the kind of work Plaintiff previously performed, did not address a car wash, but rather considered someone managing a retail store engaged in selling a specific line of merchandise such as groceries, meat, liquor, apparel, jewelry, or furniture.” Id.

4. Lay Witness Testimony

a. Carol Frey

On March 16, 2020, Plaintiff's mother, Carol Frey, completed a Function Report- Adult-Third Party. AR at 212-19. Ms. Frey indicated that they spent two (2) to three (3) hours per week together having lunch. Id. at 212. Ms. Frey reported that Plaintiff lived in a house with a roommate. Id. Ms. Frey did not know what Plaintiff's day was like, but indicated that he did care for a dog and was responsible for feeding it. Id. at 213. Ms. Frey noted that Plaintiff's roommate also helped with pet care. Id. Ms. Frey observed that

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Plaintiff is no longer able to “[w]alk any distance, stand for long period, sit for long time[.]” AR at 213. Ms. Frey noted that Plaintiff had difficulty bending while dressing and bathing, as well as trouble with the toilet. Id. Ms. Frey reported that Plaintiff prepared his own meals, such as sandwiches or frozen dinners, daily. Id. at 214. Ms. Frey indicated that Plaintiff was able to do laundry and vacuum, and did not need encouragement for these activities. Id. Ms. Frey further reported that Plaintiff was able to go outside daily either driving or riding in a car, and could do so without assistance. Id. at 215. Ms. Frey also reported that Plaintiff shopped for groceries, as needed. AR at 215. Ms. Frey confirmed that Plaintiff was able to pay bills, count change, handle a savings account, and use a checkbook/money orders. Id. Ms. Frey described Plaintiff's hobbies to include watching television daily. Id. at 216. Ms. Frey confirmed that Plaintiff spends time with others, but did not know where he went or how often. Id. Ms. Frey denied that Plaintiff needed reminders or someone to accompany him on outings. Id. Ms. Frey reported that Plaintiff's illness affected his ability to lift, squat, bend, stand, walk, sit, and kneel. AR at 217. Ms. Frey noted that Plaintiff suffers back pain and finds it hard to bend. Id. Ms. Frey indicated that Plaintiff is right handed and can walk 1/2 block, and then required three (3) to four (4) minutes of rest. Id. Ms. Frey further indicated that Plaintiff is able to finish what they start, follow spoken instructions, get along with authority figures, and manage his stress. Id. at 217-18. Ms. Frey did not report any unusual behaviors or fears in Plaintiff. Id. at 218.

On August 27, 2020, Ms. Frey wrote a letter in support of Plaintiff. AR at 272. She opined that Plaintiff's back issues have worsened over time, and that he is unable to walk any distance without having to stop and bend at the waist. Id. Ms. Frey further observed that Plaintiff has difficulty sitting for any length of time without pain. Id. Ms. Frey also listed several medical procedures that Plaintiff had undergone without relief. Id.

b. Kris Reeves

On August 21, 2020, Plaintiff's former co-worker and current roommate, Kris Reeves, wrote a letter regarding Plaintiff. AR at 268-70. Mr. Reeves reported that

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Plaintiff's back issues had become progressively worse over the years. Id. at 268. Mr. Reeves described going for a walk with Plaintiff and the dog. Id. Mr. Reeves indicated that Plaintiff needed to stop and lean on a mailbox approximately halfway around the block due to back pain. Id. The following month, Plaintiff sold a big welder tool and asked Mr. Reeves to help the buyer load it, indicating that Plaintiff's bad back prevented him from lifting the tool. Id. Mr. Reeves also noted that toward the end of 2019, Plaintiff began coming home early from work due to back pain. AR at 268. Mr. Reeves observed that Plaintiff has to get up and move after sitting due to pain, and the pain continues even after standing. Id. at 269. Mr. Reeves noted that Plaintiff's physical abilities have diminished over time due to his back pain. Id. Mr. Reeves reported that he and Plaintiff were roommates both before and after Plaintiff's 2018 back surgery. Id. Mr. Reeves opined that Plaintiff's back issues have progressively worsened over time. Id.

c. Michael Ingram

On August 28, 2020, Plaintiff's friend Michael Ingram wrote a letter on Plaintiff's behalf. AR at 273. Mr. Ingram indicated that he had not seen Mr. Frey for months, but they had spoken the previous December when Plaintiff had called to offer a chair from his mother. Id. Mr. Ingram reported that Plaintiff was unable to assist him with bringing the chair into his apartment, and needed to sit down. Id. Mr. Ingram also noted that Plaintiff had repeatedly complained about severe back pain. Id.

II. STANDARD OF REVIEW

The factual findings of the Commissioner shall be conclusive so long as they are based upon substantial evidence and there is no legal error. 42 U.S.C. §§ 405(g), 1383(c)(3); Tommasetti v. Astrue , 533 F.3d 1035, 1038 (9th Cir. 2008). This Court may “set aside the Commissioner's denial of disability insurance benefits when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole.” Tackett v. Apfel , 180 F.3d 1094, 1097 (9th Cir. 1999) (citations omitted); see also Treichler v. Comm'r of Soc. Sec. Admin. , 775 F.3d 1090, 1098 (9th Cir. 2014).

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Substantial evidence is “‘more than a mere scintilla[,] but not necessarily a preponderance.'” Tommasetti , 533 F.3d at 1038 (quoting Connett v. Barnhart , 340 F.3d 871, 873 (9th Cir. 2003)); see also Garrison v. Colvin , 759 F.3d 995, 1009 (9th Cir. 2014). Further, substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Parra v. Astrue , 481 F.3d 742, 746 (9th Cir. 2007). Where “the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ.” Tackett , 180 F.3d at 1098 (citing Matney v. Sullivan , 981 F.2d 1016, 1019 (9th Cir. 1992)); see also Massachi v. Astrue , 486 F.3d 1149, 1152 (9th Cir. 2007). Moreover, the court may not focus on an isolated piece of supporting evidence, rather it must consider the entirety of the record weighing both evidence that supports as well as that which detracts from the Secretary's conclusion. Tackett , 180 F.3d at 1098 (citations omitted).

III. ANALYSIS

A. The Five-Step Evaluation

The Commissioner follows a five-step sequential evaluation process to assess whether a claimant is disabled. 20 C.F.R. § 404.1520(a)(4). This process is defined as follows: Step One asks is the claimant “doing substantial gainful activity[?]” 20 C.F.R. § 404.1520(a)(4)(i). If yes, the claimant is not disabled. Step Two considers if the claimant has a “severe medically determinable physical or mental impairment[.]” 20 C.F.R. § 404.1520(a)(4)(ii). If not, the claimant is not disabled. Step Three determines whether the claimant's impairments or combination thereof meet or equal an impairment listed in 20 C.F.R. Pt. 404, Subpt. P, App.1. 20 C.F.R. § 404.1520(a)(4)(iii). If not, the claimant is not disabled. Step Four considers the claimant's residual functional capacity and past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). If claimant can still do past relevant work, then he or she is not disabled. Step Five assesses the claimant's residual functional capacity, age, education, and work experience. 20 C.F.R. § 404.1520(a)(4)(v). If it is determined that the claimant can make an adjustment to other work, then he or she is not

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disabled. Id.

In the instant case, the ALJ found that Plaintiff had not engaged in substantial gainful activity since his alleged onset date of November 1, 2019. AR at 15. At step two of the sequential evaluation, the ALJ found that “[t]he claimant had the following severe impairments: degenerative disc disease, bilateral carpal tunnel syndrome and obesity. (20 CFR 404.1520(c)).” Id. At step three, the ALJ further found that “the claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d) and 404.1526).” Id. at 16. Prior to step four and “[a]fter careful consideration of the entire record,” the ALJ determined that “the claimant ha[d] the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) with the following limitations: Claimant can lift/carry 20 pounds occasionally and 10 pounds frequently[;] . . . sit for 6 hours out of an 8 hour day; stand for 6 hours out of an 8 hour day; or walk for 6 hours out of an 8 hour work [day;] . . . push/pull frequently only with all upper and lower extremities[;] . . . occasionally climb, balance, stoop, kneel, crouch or crawl[;] . . . frequently fine finger and fine feel bilaterally[;] . . . [and] have occasional exposure to moving machinery and unprotected heights.” Id. At step four, the ALJ found that “the claimant [wa]s unable to perform any past relevant work (20 CFR 404.1565).” Id. at 20. At step five, the ALJ found that after “[considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569 and 404.1569(a)).” Id. at 21. Accordingly, the ALJ determined that Plaintiff was not disabled. AR at 21.

B. Plaintiff's Symptom Testimony

Plaintiff asserts that the ALJ erred in evaluating “all of the available evidence from not only medical sources but also from non-medical ones to determine how [Plaintiff's] symptoms limited him.” Opening Br. (Doc. 19) at 11 (internal quotation marks omitted) (citing 20 C.F.R. § 404.1529(c)(1)). Defendant argues that the ALJ properly considered

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the objective medical evidence, treatment notes, the prior administrative findings of the state agency medical consultants, and Plaintiff's functional abilities. Response (Doc. 22) at 8. The Court agrees with Plaintiff and finds the ALJ failed to provide clear and convincing reasons for discounting Plaintiff's testimony.

1. Legal Standard

An ALJ must engage in a two-step analysis to evaluate a claimant's subjective symptom testimony. Lingenfelter v. Astrue , 504 F.3d 1028, 1035-36 (9th Cir. 2007). First, “a claimant who alleges disability based on subjective symptoms ‘must produce objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain or other symptoms alleged[.]'” Smolen v. Chater , 80 F.3d 1273, 128182 (9th Cir. 1996) (quoting Bunnell v. Sullivan , 947 F.2d 341, 344 (9th Cir. 1991) ( en banc ) (internal quotations omitted)); see also Ghanim v. Colvin , 763 F.3d 1154, 1163 (9th Cir. 2014). Further, “the claimant need not show that h[is] impairment could reasonably be expected to cause the severity of the symptom []he has alleged; []he need only show that it could reasonably have caused some degree of the symptom.” Smolen , 80 F.3d at 1282 (citations omitted); see also Trevizo v. Berryhill , 871 F.3d 664, 678 (9th Cir. 2017). “Nor must a claimant produce ‘objective medical evidence of the pain or fatigue itself, or the severity thereof.'” Garrison v. Colvin , 759 F.3d 995, 1014 (9th Cir. 2014) (quoting Smolen , 80 F.3d at 1282). “[I]f the claimant meets this first test, and there is no evidence of malingering, ‘the ALJ can reject the claimant's testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so.'” Lingenfelter , 504 F.3d at 1036 (quoting Smolen , 80 F.3d at 1281); see also Burrell v. Colvin , 775 F.3d 1133, 1137 (9th Cir. 2014) (rejecting the contention that the “clear and convincing” requirement had been excised by prior Ninth Circuit case law). “This is not an easy requirement to meet: ‘The clear and convincing standard is the most demanding required in Social Security cases.'” Garrison , 759 F.3d at 1015 (quoting Moore v. Comm 'r of Soc. Sec. Admin. , 278 F.3d 920, 924 (9th Cir. 2002)).

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2. Analysis

The ALJ acknowledged the two-step process for assessing Plaintiff's symptom testimony. AR at 16-17. Next, the ALJ recounted Plaintiff's hearing testimony and concluded that she “ha[d] also considered [Plaintiff's] statements in the file and f[ound] that the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms [we]re not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision.” Id. at 17. The ALJ went on to review Plaintiff's medical records and other evidence in the file. See id. at 18-20.

SSR 16-3p states, in relevant part:

We will not evaluate an individual's symptoms based solely on objective medical evidence unless that objective medical evidence supports a finding that the individual is disabled. We will evaluate an individual's symptoms based on the evidence in an individual's record as described below; however, not all of the types of evidence described below will be available or relevant in every case.

* * *

In evaluating an individual's symptoms, it is not sufficient for our adjudicators to make a single, conclusory statement that “the individual's statements about his or her symptoms have been considered” or that “the statements about the individual's symptoms are (or are not) supported or consistent.” It is also not enough for our adjudicators simply to recite the factors described in the regulations for evaluating symptoms. The determination or decision must contain specific reasons for the weight given to the individual's symptoms, be consistent with and supported by the evidence, and be clearly articulated so the individual and any subsequent reviewer can assess how the adjudicator evaluated the individual's symptoms.

SSR 16-3p, available at 2017 WL 5180304, at *5, 10 (October 25, 2017). “[T]he ALJ is not ‘required to believe every allegation of disabling pain, or else disability benefits would be available for the asking, a result plainly contrary to 42 U.S.C. § 423(d)(5)(A).'”

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Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012), superseded by regulation on other grounds (quoting Fair v. Bowen , 885 F.2d 597, 603 (9th Cir. 1989)). She must do more, however, than “simply to recite the factors described in the regulations for evaluating symptoms.” SSR 16-3p, 2017 WL 5180304, at *10. Here, the ALJ failed to provide any more than a recitation of the evidence. Without some sort of analysis, this court cannot “assess how the adjudicator evaluated the individual's symptoms.” SSR 16-3p, 2017 WL 5180304, at *10; see also Treichler v. Comm'r of Soc. Sec. Admin. , 775 F.3d 1090, 1103 (9th Cir. 2014) (“[T]he ALJ must provide some reasoning in order for us to meaningfully determine whether the ALJ's conclusions were supported by substantial evidence.”). As such, the Court finds the ALJ committed legal error in assessing Plaintiff's symptom testimony.

D. Remand

“‘[T]he decision whether to remand the case for additional evidence or simply to award benefits is within the discretion of the court.'” Rodriguez v. Bowen, 876 F.2d 759, 763 (9 Cir. 1989) ( quoting Stone v. Heckler, 761 F.2d 530, 533 (9 Cir. 1985)). “Remand for further administrative proceedings is appropriate if enhancement of the record would be useful.” Benecke v. Barnhart , 379 F.3d 587, 593 (9th Cir. 2004) ( citing Harman v. Apfel, 211 F.3d 1172, 1178 (9 Cir. 2000)). Conversely, remand for an award of benefits is appropriate where:

(1) the ALJ failed to provide legally sufficient reasons for rejecting the evidence; (2) there are no outstanding issues that must be resolved before a determination of disability can be made; and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited.

Benecke, 379 F.3d at 593 (citations omitted). Where the test is met, “we will not remand solely to allow the ALJ to make specific findings. . . . Rather, we take the relevant testimony to be established as true and remand for an award of benefits.” Id. (citations omitted); see also Lester v. Chater , 81 F.3d 821, 834 (9th Cir. 1995). “Even if those requirements are met, though, we retain ‘flexibility' in determining the appropriate remedy.” Burrell v. Colvin , 775 F.3d 1133, 1141 (9th Cir. 2014).

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Here, the ALJ committed legal error in assessing Plaintiff's symptom testimony. This analysis may require reconsideration of the lay witness testimony and medical opinion evidence. As such the Court recommends remand on an open record.

IV. CONCLUSION

Based on the foregoing, the Court finds the ALJ committed legal error in assessing Plaintiff's symptom testimony. Because this error alone requires reversal and remand, the Court declines to reach the issues of the ALJ's treatment of the lay witness testimony and the medical opinion evidence, but will direct reanalysis on an open record.

V. RECOMMENDATION

For the reasons delineated above, the Magistrate Judge recommends that the District Judge enter an order GRANTING Plaintiff's Opening Brief (Doc. 19) and REVERSING and REMANDING the Commissioner's decision for further consideration.

Pursuant to 28 U.S.C. § 636(b) and Rule 72(b)(2), Federal Rules of Civil Procedure, any party may serve and file written objections within fourteen (14) days after being served with a copy of this Report and Recommendation. A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). No replies shall be filed unless leave is granted from the District Judge. If objections are filed, the parties should use the following case number: CV-21-0301-TUC-SHR.

Failure to file timely objections to any factual or legal determination of the Magistrate Judge may result in waiver of the right of review.