Alisa J. K. v. Andrew Saul

1

2

3

4

5

6

7

8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

10

11 ALISA J. K.,1 Case No. 8:20-cv-00715-AFM

12 Plaintiff,

MEMORANDUM OPINION AND

13 v. ORDER REVERSING AND

14 REMANDING DECISION OF

ANDREW M. SAUL,

THE COMMISSIONER

15 Commissioner of Social Security,

16 Defendant.

17

Plaintiff filed this action seeking review of the Commissioner’s final decision

18

denying her application for disability insurance benefits. In accordance with the

19

Court’s case management order, the parties have filed memorandum briefs

20

addressing the merits of the disputed issues. The matter is now ready for decision.

21

BACKGROUND

22

In August 2016, Plaintiff applied for disability insurance benefits, alleging that

23

she became disabled on July 22, 2015. (Administrative Record [“AR”] 173, 178.)

24

Plaintiff’s application was denied initially and on review. (AR 96-100, 102-106.) On

25

26

1 Plaintiff’s name has been partially redacted in accordance with Federal Rule of Civil Procedure

27

5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case

28 Management of the Judicial Conference of the United States.

1 February 4, 2019, a hearing took place before an Administrative Law Judge (“ALJ”).

2 Plaintiff, who was represented by counsel, and a vocational expert (“VE”) testified

3 at the hearing. (AR 29-63.)

4 In a decision dated March 12, 2019, the ALJ found that Plaintiff suffered from

5 the medically determinable impairments of trigeminal neuralgia, hyperacusis,

6 migraines, and high frequency sensorineural hearing loss. (AR 17.) However, the

7 ALJ found that none of Plaintiff’s impairments alone or in combination significantly

8 limited her ability to perform basic work-related activities and, therefore, she did not

9 have any severe impairment. (AR 17.) As a result, the ALJ found Plaintiff not

10 disabled. (AR 20.)

11 The Appeals Council subsequently denied Plaintiff’s request for review (AR

12 1-6), rendering the ALJ’s decision the final decision of the Commissioner.

13 DISPUTED ISSUES

14 1. Whether the ALJ erred in finding that Plaintiff did not suffer from a severe

15 medical impairment at Step Two of the sequential evaluation process.

16 2. Whether the ALJ properly rejected Plaintiff’s subjective complaints.

17 STANDARD OF REVIEW

18 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to

19 determine whether the Commissioner’s findings are supported by substantial

20 evidence and whether the proper legal standards were applied. See Treichler v.

21 Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014). Under the

22 substantial-evidence standard, this Court asks whether the administrative record

23 contains sufficient evidence to support the Commissioner’s factual determinations.

24 Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019). As the Supreme Court observed

25 in Biestek, “whatever the meaning of “substantial” in other contexts, the threshold

26 for such evidentiary sufficiency is not high.” Id. It means “more than a mere scintilla”

27 but less than a preponderance and is “such relevant evidence as a reasonable mind

28 might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S.

1 389, 401 (1971). This Court must review the record as a whole, weighing both the

2 evidence that supports and the evidence that detracts from the Commissioner’s

3 conclusion. Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). Where

4 evidence is susceptible of more than one rational interpretation, the Commissioner’s

5 decision must be upheld. See Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007).

6 DISCUSSION

7 Plaintiff contends that the ALJ erred in determining she does not have any

8 severe impairments at Step Two of the sequential evaluation process. In particular,

9 Plaintiff points to the medical evidence establishing severe impairments and argues

10 that the ALJ cherry-picked the evidence to support his decision. Plaintiff also argues

11 that the ALJ improperly rejected the opinions of every physician who examined

12 Plaintiff as well as the State agency reviewing physicians. (ECF No. 18 at 3-7.) The

13 Commissioner argues that the ALJ properly assessed the medical evidence at Step

14 Two and that Plaintiff failed to meet her burden to show that she suffered from

15 impairments that significantly limited her ability to perform basic work activities.

16 (ECF No. 19 at 5-8.)

17 A. Relevant Law

18 At Step Two of the sequential evaluation process, the claimant has the burden

19 to show that she has one or more “severe” medically determinable impairments. See

20 Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987); Webb v. Barnhart, 433 F.3d 683,

21 686 (9th Cir. 2005). An impairment is “not severe if it does not significantly limit [a

22 claimant’s] physical or mental ability to do basic work activities.” 20 C.F.R.

23 § 404.1522; see Webb, 433 F.3d at 686. Basic work activities means “the abilities

24 and aptitudes necessary to do most jobs,” including: (1) physical functions such as

25 walking, standing, sitting, lifting, pushing, pulling, reaching, carrying or handling;

26 (2) capacities for seeing, hearing, and speaking; (3) understanding, carrying out, and

27 remembering simple instructions; (4) use of judgment; (5) responding appropriately

28 to supervision, co-workers and usual work situations; and (6) dealing with changes

1 in a routine work setting. 20 C.F.R. §§ 404.1521(b) & 416.921(b).

2 The Step-Two inquiry is “a de minimis screening device to dispose of

3 groundless claims.” Webb, 433 F.3d at 687 (quoting Smolen v. Chater, 80 F.3d 1273,

4 1290 (9th Cir. 1996)); see also Edlund v. Massanari, 253 F.3d 1152, 1158-1159 (9th

5 Cir. 2001) (discussing this “de minimis standard”). An impairment or combination

6 of impairments can be found not severe “only if the evidence establishes a slight

7 abnormality that has no more than a minimal effect on an individual[’]s ability to

8 work.” Smolen, 80 F.3d at 1290 (internal quotation marks and citation omitted).

9 Further, at Step Two, “the ALJ must consider the combined effect of all of the

10 claimant’s impairments on her ability to function, without regard to whether each

11 alone was sufficiently severe.” Smolen, 80 F.3d at 1290 (citation omitted). The ALJ’s

12 determination that Plaintiff did not have a medically severe impairment or

13 combination of impairments must be “clearly established by medical evidence.”

14 Webb, 433 F.3d at 687 (Social Security Ruling (“SSR”) 85-28).

15 B. Medical Evidence

16 Plaintiff underwent surgery to repair a retinal tear in July 2015. (AR 1247,

17 1253-1262, 1332.) Following surgery, Plaintiff developed severe photophobia and

18 headaches. (AR 1174-1176, 1244, 1317-1318, 1374, 1377, 1425, 1437, 1446-1447,

19 1453, 1721.) Before and after surgery, Plaintiff suffered from vitreous floaters. (AR

20 1261-1262.) She was diagnosed with vitreous degeneration. (AR 1323.)

21 Over the next year, Plaintiff complained of migraine headaches, dizziness, and

22 difficulties with balance. (AR 716-718, 1052, 1174-1176, 1233, 1424, 1431, 1446.)

23 She was diagnosed with severe cerebellar degeneration/dysfunction2 and trigeminal

24 neuralgia.3 (AR 1475-1476.)

25

2 “Cerebellar degeneration is a process in which neurons (nerve cells) in the cerebellum - the area

26 of the brain that controls coordination and balance - deteriorate and die.”

https://www.ninds.nih.gov/disorders/All-Disorders/Cerebellar-Degeneration-Information-Page.

27 3 Trigeminal neuralgia is “a chronic pain condition that causes extreme, sporadic, sudden burning

or shock-like face pain. ... The attacks often worsen over time, with fewer and shorter pain-free

28

1 In October 2015, Plaintiff was diagnosed with “multiple retinal breaks of left

2 eye-New”; “vitreous degeneration of both eyes-New”; and “age-related nuclear

3 cataract of both eyes-New.” (AR 1437-1438.) Treatment notes from November 2015

4 indicate Plaintiff’s secondary trigeminal neuralgia and photophobia were

5 “progressively getting better over time.” (AR 1433-1435.)

6 Plaintiff underwent physical therapy for signs and symptoms of vestibular

7 hypofunction, affecting her gaze stability and balance. (AR 1371.)

8 In January 2016, Plaintiff appeared for a follow-up regarding secondary

9 trigeminal neuralgia and photosensitivity. She reported that her light sensitivity had

10 improved to the extent that she no longer required sunglasses at night when she is

11 driving. However, she continued to suffer migraines from looking at light and had

12 daily headaches. She also complained of vertigo. (AR 1429.) Examination was

13 essentially normal. Plaintiff’s photophobia and trigeminal pain were noted to be

14 improving. (AR 1430-1431.)

15 In February 2016, Plaintiff reported that photophobia and eye pain had

16 improved since she started vestibular therapy. She still experienced headaches, but

17 they were “not as bad.” Exposure to lights still caused headaches. Treatment notes

18 state that trigeminal neuralgia, photophobia and headache were all improving. (AR

19 1425-1428.)

20 In March 2016, Plaintiff’s physician, Brian T. Kim, M.D., recommended she

21 see a neruoophthalmologist. (RT 1313.)

22 In May 2016, Baruch Kuppermann, M.D., performed an ophthalmological

23 examination. Plaintiff again complained of severe photosensitivity, floaters, and

24 flashing lights. (AR 1416-1417.) Dr. Kupperman’s impression included secondary

25 trigeminal neuralgia-stable; photophobia of left eye-stable; headache-stable; multiple

26 defects of left retina without detachment-stable; and epiretinal membrane, left eye-

27

periods before they recur.” https://www.ninds.nih.gov/Disorders/All-Disorders/Trigeminal-

28

1 stable. (AR 1418-1419.) He recommended referral to an expert at UCLA because

2 Plaintiff’s condition was “complex” and “unusual.” (AR 1419.)

3 In June 2016, Plaintiff continued to complain of extreme photophobia.

4 Examination findings included epiretinal membrane with mild macular thickening

5 and mild lattice degeneration. (AR 1453-1455.)

6 In November 2016, Plaintiff underwent an orthopedic evaluation for

7 complaints of lower back pain. X-rays of Plaintiff’s lumbar spine showed mild to

8 moderate degenerative disc disease throughout with mild facet arthropathy. X-rays

9 of Plaintiff’s cervical spine showed moderate to severe degenerative disc disease at

10 C6-7, mild disc degeneration at C4-5 and C5-6, and scattered mild to moderate facet

11 arthropathy. Treatment notes indicated that Plaintiff’s headaches could be

12 cervicogenic in nature. (AR 1458-1461.)

13 In January 2017, Plaintiff underwent a retinal examination by Timothy T. You,

14 M.D. Dr. You diagnosed Plaintiff with multiple retinal defects without detachment

15 OS, lattice degeneration of retina OS, posterior vitreous detachment OU, and

16 epiretinal membrane OS. (AR 1227-1228.)

17 Medical Opinions

18 In November 2018, Plaintiff’s treating neurologist Joey Gee, M.D., completed

19 a functional assessment questionnaire. Dr. Gee diagnosed Plaintiff with migraines

20 and photosensitivity and stated that her symptoms included vertigo and visual

21 disturbances. He opined that she would need to take unscheduled breaks daily and

22 her condition would cause her to miss work more than four times a month. (AR

23 1201-1206.)

24 Mary Raleigh, D.O., diagnosed Plaintiff with migraines, headaches, vertigo,

25 trigeminal neuralgia, photophobia, PTSD, and visual disturbances. In Dr. Raleigh’s

26 opinion, many of Plaintiff’s symptoms were caused by noise and light. Dr. Raleigh

27 noted x-ray results showing spinal degeneration. In September 2018, Dr. Raleigh

28 completed functional capacity questionnaires in which she opined that Plaintiff

1 would miss work more than four times a month due to headaches. Dr. Raleigh also

2 opined that Plaintiff’s back and neck issues caused limitations in sitting, standing,

3 and walking for long periods of time. (AR 1190-1195, 1196-1200.)

4 April Spurling, O.D., diagnosed Plaintiff with photophobia, vertigo, trigeminal

5 neuralgia, headaches, and visual midline shift syndrome. In November 2018,

6 Dr. Spurling opined that Plaintiff can rarely engage in near acuity and depth

7 perception, and occasionally perform far acuity, color vision, and field of vision.

8 Dr. Spurling also opined that Plaintiff had limitations, including problems working

9 with small and large objects and walking up and down stairs. (AR 1207-1210.)

10 State agency consultants reviewed Plaintiff’s medical record and concluded

11 that she suffered from two severe medially determinable impairments – namely,

12 disorders of the nervous system and visual impairment. The medical consultants

13 opined that Plaintiff was limited to light work. (AR 72-94.)

14 C. The ALJ’s decision

15 In finding Plaintiff’s impairments were not severe, the ALJ characterized the

16 medical evidence as “benign.” (AR 19.) The ALJ then briefly discussed the medical

17 evidence. While the ALJ noted Plaintiff’s eye surgery, he cited a page of the record

18 in which Plaintiff reported that her symptoms were progressively getting better. He

19 also cited numerous pages showing Plaintiff’s visual acuity was 20/20. (AR at 19.)

20 According to the ALJ, Plaintiff “began complaining of trigeminal neuralgia and

21 photosensitivity.” However, the ALJ apparently discounted those diagnoses because

22 a brain MRI showed no abnormalities. (AR 19.) Last, the ALJ addressed the

23 diagnosis of hyperacusis possibly related to migraines, but discounted it, citing

24 routine office visits which documented “unremarkable physical examination,” such

25 as normal gait, good range of motion, and normal neurological examination. (AR 19.)

26 The ALJ then briefly addressed and rejected all of the medical opinions. First,

27 the ALJ noted a letter in which Dr. Gee stated that Plaintiff was under his care and

28 she was being placed on medical disability “due to a pain disorder that is severe and

1 interferes with her normal function.” (AR 19, citing AR 1463.) The ALJ rejected

2 Dr. Gee’s opinion “since the issue of disability is reserved to the Commissioner.”

3 (AR 19.)

4 With respect to the functional limitations contained in the opinions of

5 Drs. Gee, Spurling, and Raleigh, the ALJ concluded they were entitled to little weight

6 because they were not consistent with “the treating notes as a whole.” (AR 20.)

7 Similarly, the ALJ noted that three State agency consultants had opined that Plaintiff

8 is limited to light work. He rejected these assessments finding them “not consistent

9 with unremarkable physical examination.” (AR 20.)

10 D. Analysis

11 The ALJ found that Plaintiff did not have a medically severe impairment

12 despite objective medical evidence demonstrating trigeminal neuralgia, severe

13 photophobia, migraine headaches, visual disturbances, and disc disease. In reaching

14 this conclusion, the ALJ erroneously focused exclusively on a subset of the medical

15 evidence showing that certain diagnostic tests were within normal limits and

16 Plaintiff’s intermittent reports that her symptoms had improved. The ALJ’s selective

17 recitation of the evidence fails to account for the record as a whole and instead

18 amounts to improper “cherry-picking” of the record to cite evidence supporting an

19 adverse determination. See Ghanim v. Colvin, 763 F.3d 1154, 1164 (9th Cir. 2014);

20 Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001). Further, evidence that

21 Plaintiff’s “complex” chronic conditions were either stable or sometimes

22 “improving,” without more, does not necessarily mean that those impairments are no

23 more than a “slight abnormality,” as required to terminate the sequential evaluation

24 procedure at Step two. See Smolen, 80 F.3d at 1289-1290.

25 Substantial evidence does not support the ALJ’s finding that the medical

26 evidence clearly established an absence of any medically severe impairment or

27 combination of impairments. To the contrary, as set forth in above, the medical

28 evidence documenting Plaintiff’s treatment for trigeminal neuralgia, severe

1 photophobia, migraine headaches, visual disturbances, and disc disease is sufficient

2 to pass the de minimis threshold of Step Two. See Webb, 433 F.3d at 687-688 (the

3 record before the ALJ “includes evidence of problems sufficient to pass the

4 de minimis threshold of step two” and is distinguishable from cases in which there

5 was a “total absence of objective evidence of [a] severe impairment”); Ortiz v.

6 Comm’r of Soc. Sec., 425 Fed. Appx. 653, 655 (9th Cir. 2011) (“This is not the total

7 absence of objective evidence of severe medical impairment that would permit us to

8 affirm a finding of no disability at step two.”); cf. Ukolov v. Barnhart, 420 F.3d 1002,

9 1006 (9th Cir. 2005) (claimant failed to satisfy the Step Two burden where “none of

10 the medical opinions included a finding of impairment, a diagnosis, or objective test

11 results.”).

12 Moreover, the ALJ’s conclusion is contrary to all the medical opinions,

13 including those of the State agency physicians, who found Plaintiff’s impairments to

14 be severe and opined that those impairments cause various functional limitations on

15 Plaintiff’s ability to perform work-related activity. With respect to the functional

16 limitations contained in the opinions of Drs. Gee, Spurling, and Raleigh, the ALJ

17 concluded they were entitled to little weight because they were not consistent with

18 “the treating notes as a whole.” (AR 20.) To support of this conclusion, the ALJ cites

19 a single page of the record in which Plaintiff “reported she felt well and had no

20 headaches” (AR 20, citing AR 967) and refers to evidence that “physical examination

21 was within normal [limits] as documented above.” (AR 20.) An ALJ may discredit

22 treating physician’s opinion that is unsupported by the record as a whole or by

23 objective medical findings. See Batson v. Comm’r of Soc. Sec., 359 F.3d 1190, 1195

24 (9th Cir. 2004). However, simply stating that a medical opinion is inconsistent with

25 the overall evidence in the record “is not a specific reason for rejecting the opinion;

26 it is nothing more than boilerplate.” Carmona v. Berryhill, 2017 WL 3614425, at *4

27 (C.D. Cal. Aug. 22, 2017). Furthermore, as mentioned above, the physical

28 examinations that the ALJ “documented” consist of a selected subset of the medical

1 evidence supporting his conclusion. The same is true regarding the opinions of the

2 State agency physicians: He rejected them as not consistent with “unremarkable

3 physical examination.” (AR 20, citing AR 734, 737, 741, 807, 936-937, 983, 997,

4 1053, 1060,4 1145, 1151, 1156, 1460, 1469,5 1475, 1501, 1511, 1971, 2131.) Most

5 of the pages cited by the ALJ document Plaintiff’s respiratory, cardiovascular,

6 gastrointestinal, musculoskeletal, psychiatric, skin, or neurological conditions are

7 unrelated to the medical impairments upon which most physician’s opinions relied –

8 that is, Plaintiff’s retinal issues, including photophobia. (See, e.g., AR 983, 997,

9 1053, 1145, 1151, 1460, 1475, 1501, 1511, 1971, 2131.) Finally, the Court notes that

10 the ALJ failed to explain how some of the evidence he relied upon is inconsistent

11 with the medical opinions, and it is not evident to the Court that it is. For example,

12 the ALJ emphasized evidence showing that Plaintiff visual acuity was 20/20. It is not

13 clear how 20/20 vision undermines functional limitations imposed based on

14 diagnoses of photophobia, migraine headaches, or trigeminal neuralgia.

15 In defending the ALJ’s determination that Plaintiff's physical impairments

16 were non-severe, the Commissioner makes arguments and cites portions of the record

17 not relied upon by the ALJ. (ECF No. at 19 at 5-8.) The Court’s review, however, is

18 limited to the reasons the ALJ actually articulated in his decision. See Bray v. Comm’r

19 of Soc. Sec. Admin., 554 F.3d 1219, 1225-1226 (9th Cir. 2009); Orn, 495 F.3d at 630;

20 see also Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) (“We are constrained

21 to review the reasons the ALJ asserts.”).

22 Accordingly, “[t]he ALJ should have continued the sequential analysis beyond

23 Step Two because there was not substantial evidence to show that [Plaintiff]’s claim

24

4 The ALJ cites Ex. 22F/10. (AR 20.) That page (AR 1060) contains no physical examination

25 results. The physical examination findings from that office visit are found on the prior page, and

include (among other things), intact heel/toe walking; limited range of motion in the lumbar spine;

26 mild neck and trapezium pain on extension; positive Spurling’s maneuver. (AR 1059.)

27 5 The ALJ cites Ex. 46F/3. (AR 20.) That page (AR 1469) consists of Plaintiff’s visual symptom

questionnaire where she indicates she frequently suffers from numerous visual symptoms. It is not

28

1 was ‘“groundless.’” See Webb, 433 F.3d at 687-688 (citing Smolen, 80 F.3d at 1290);

2 see also Gurrola v. Colvin, 2014 WL 4810321, at *3-4 (C.D. Cal. Sept. 25, 2014)

3 (substantial evidence did not support ALJ’s finding that plaintiff’s physical

4 impairments were not severe, singly or in combination, and ALJ’s error also tainted

5 the ALJ’s evaluation of the credibility of plaintiff’s subjective complaints at Step

6 Two).

7 Finally, the Court cannot conclude that the ALJ’s error here was harmless. See

8 Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) (“We

9 recognize harmless error applies in the Social Security context.”). Because the ALJ

10 erroneously found that Plaintiff’s impairments were not severe, he did not proceed

11 beyond the de minimis threshold of Step Two and consequently failed to adequately

12 discuss those impairments later in the sequential evaluation. Robert R. v. Berryhill,

13 2019 WL 538994, at *4-5 (C.D. Cal. Feb. 11, 2019) (Step Two error not harmless

14 because the ALJ stopped analysis at Step Two and did not discuss impairments at

15 Step Four of the sequential evaluation); cf. Lewis v. Astrue, 498 F.3d 909, 911 (9th

16 Cir. 2007) (any Step Two error was harmless where “ALJ extensively discussed”

17 condition “at Step 4 of the analysis”).

18 REMEDY

19 The decision whether to remand for further proceedings or order an immediate

20 award of benefits is within the district court’s discretion. Harman v. Apfel, 211 F.3d

21 1172, 1175-1178 (9th Cir. 2000). “When the ALJ denies benefits and the court finds

22 error, the court ordinarily must remand to the agency for further proceedings before

23 directing an award of benefits.” Leon v. Berryhill, 880 F.3d 1041, 1045 (9th Cir.

24 2017). Indeed, Ninth Circuit case law “precludes a district court from remanding a

25 case for an award of benefits unless certain prerequisites are met.” Dominguez v.

26 Colvin, 808 F.3d 403, 407 (9th Cir. 2016) (citations omitted). “The district court must

27 first determine that the ALJ made a legal error, such as failing to provide legally

28 sufficient reasons for rejecting evidence. If the court finds such an error, it must next

1 || review the record as a whole and determine whether it is fully developed, is free from

2 || conflicts and ambiguities, and all essential factual issues have been resolved.”

3 || Dominguez, 808 F.3d at 407 (citation and internal quotation marks omitted).

4 Although the Court has found error as discussed above, the record is not fully

5 || developed, and factual issues remain outstanding. The issues concerning Plaintiff’s

6 || alleged disability “should be resolved through further proceedings on an open record

7 || before a proper disability determination can be made by the ALJ in the first instance.”

8 || See Brown-Hunter v. Colvin, 806 F.3d 487, 496 (9th Cir. 2015); see also Treichler,

9 || 775 F.3d at 1101 (remand for award of benefits is inappropriate where “there is

10 || conflicting evidence, and not all essential factual issues have been resolved”)

11 || (citation omitted); Strauss v. Comm’r of Soc. Sec. Admin., 635 F.3d 1135, 1138 (9th

12 || Cir. 2011) (same where the record does not clearly demonstrate the claimant is

13 || disabled within the meaning of the Social Security Act). Accordingly, the appropriate

14 || remedy is a remand for further administrative proceedings.°

15 ORDER

16 IT IS THEREFORE ORDERED that Judgment be entered reversing the

17 || decision of the Commissioner of Social Security and remanding this matter for

18 || further administrative proceedings consistent with this opinion.

19

20 || DATED: 11/24/2020 .

21 (Wy fe

22

53 ALEXANDER F. MacKINNON

UNITED STATES MAGISTRATE JUDGE

24

25

26 || — ee

° Tn light of this conclusion, the Court declines to resolve Plaintiff’s remaining claims. See Hiler v.

27 || Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012) (‘Because we remand the case to the ALJ for the

2g || Teasons stated, we decline to reach [plaintiffs] alternative ground for remand.’’). It is not the Court’ s

intent to limit the scope of the remand.

12