the court “cannot affirm the decision of an agency on a 26 ground that the agency did not invoke in making its decision”
How later courts described this case
- the court “cannot affirm the decision of an agency on a 26 ground that the agency did not invoke in making its decision”
- “[T]he decision of 3 whether to remand for further proceedings turns upon the likely 4 utility of such proceedings.”
- court is 23 constrained to review only the reasons the ALJ specifically 24 identified
Written by the judges who cited it.
The opinion
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
CENTRAL DISTRICT OF CALIFORNIA – EASTERN DIVISION
10
11 DANNY A. N.,1 Case No. EDCV 25-00576-AS
12
Plaintiff,
MEMORANDUM OPINION
13
v.
AND ORDER OF REMAND
14
FRANK BISIGNANO, Commissioner
of Social Security,2
15
Defendant.
16
17
18
For the reasons discussed below, IT IS HEREBY ORDERED that,
19
pursuant to Sentence Four of 42 U.S.C. § 405(g), this matter is
20
remanded for further administrative action consistent with this
21
Opinion.
22
23
24 1 Plaintiff’s name is partly redacted in accordance with
Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation
25 of the Committee on Court Administration and Case Management of
the Judicial Conference of the United States.
26
2 Pursuant to Rule 25(d) of the Federal Rules of Civil
27 Procedure, Frank Bisignano, Commissioner of Social Security, is
hereby substituted as the Defendant in this action.
28
1 PROCEEDINGS
2
3 On March 5, 2025, Plaintiff filed a Complaint seeking review
4 of the Commissioner’s denial of Plaintiff’s applications for
5 disability insurance benefits and supplemental security income
6 under Titles II and XVI of the Social Security Act, respectively.
7 (Dkt. No. 1). On May 5, 2025, Defendant filed an Answer consisting
8 of the Administrative Record (“AR”). (Dkt. No. 10). The parties
9 subsequently filed opposing briefs setting forth their respective
10 positions regarding Plaintiff’s claims (“Pl. Brief,” “Def. Brief,”
11 and “Pl. Reply”). (Dkt Nos. 11-13). The parties have consented to
12 proceed before a United States Magistrate Judge. (Dkt. Nos. 6, 8).
13
14 The Court has taken this matter under submission without oral
15 argument. See C.D. Cal. C. R. 7-15.
16
17 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION
18
19 On or about April 1, 2022, Plaintiff filed applications for
20 disability insurance benefits and supplemental security income
21 alleging disability since June 5, 2018, (AR 17, 253-62), alleging
22 disability based on a back injury, diabetes, depression, vertigo,
23 high blood pressure, and neuropathy. (AR 276).
24
25 Plaintiff’s applications were denied, initially on September
26 22, 2022, and on reconsideration on March 2, 2023. (AR 142-46, 149-
27 54). On December 1, 2023, Plaintiff, who was represented by
28 counsel, testified at a video hearing before Administrative Law
1 Judge (“ALJ”) MaryAnn Lundeman. (AR 35-59). The ALJ also heard
2 testimony from vocational expert (“VE”) Tracy Remas. (AR 53-58).
3 On April 12, 2024, the ALJ denied Plaintiff’s applications. (AR
4 17-29).
5
6 The ALJ applied the requisite five-step process to evaluate
7 Plaintiff’s case. (AR 18-28). At step one, the ALJ found that
8 Plaintiff had not engaged in substantial gainful activity since
9 the June 5, 2018, alleged onset date. (AR 19). At step two, the
10 ALJ found that Plaintiff has the following severe impairments:
11 cervical degenerative disc disease, diabetes, neuropathy, and
12 vertigo. (AR 20-22). At step three, the ALJ determined that
13 Plaintiff’s impairments did not meet or equal a listing found in
14 20 C.F.R. Part 404, Subpart P, Appendix 1. (AR 22-23).
15
16 Next the ALJ found the Plaintiff has a residual functional
17 capacity (“RFC”)3 for light work as defined in 20 C.F.R. §§
18 404.1567(b) and 416.967(b), limited to: (1) occasional postural
19 activities (i.e., balancing, stooping, kneeling, crouching, and
20 crawling); and (2) no climbing ladders, ropes, or scaffolds, or
21 working on uneven terrain or at or around unprotected heights and
22 hazards, such as moving machinery. See AR 23-26 (adopting a
23 functional capacity more restrictive than the consultative
24 examiners and state agency physicians found, and finding these
25 medical opinions were “somewhat persuasive”). The ALJ rejected ALJ
26 Plaintiff’s testimony and statements suggesting greater limits than
27
3 A residual functional capacity is what a claimant can still
do despite existing exertional and nonexertional limitations. See
28
1 the ALJ found to exist. (AR 23-26).
2
3 At step four, the ALJ found that Plaintiff was unable to
4 perform any past relevant work. (AR 26). At step five, based on
5 Plaintiff’s age, education, work experience, RFC, and the VE’s
6 testimony, the ALJ determined that Plaintiff could perform certain
7 light and sedentary jobs. (AR 27-28 (adopting VE’s testimony at AR
8 54-58)). The ALJ concluded that Plaintiff had not been disabled
9 since the June 5, 2018, alleged onset date. (AR 28).
10
11 On January 27, 2025, the Appeals Council denied Plaintiff’s
12 request to review the ALJ’s decision. (AR 1-3). Plaintiff now seeks
13 judicial review of the ALJ’s decision, which stands as the final
14 decision of the Commissioner. See 42 U.S.C. § 405(g).
15
16 STANDARD OF REVIEW
17
18 This Court reviews the Commissioner’s decision to determine
19 if it is free of legal error and supported by substantial evidence.
20 See Brewes v. Comm’r, 682 F.3d 1157, 1161 (9th Cir. 2012).
21 “Substantial evidence” is more than a mere scintilla, but less than
22 a preponderance. Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir.
23 2014). “It means such relevant evidence as a reasonable mind might
24 accept as adequate to support a conclusion.” Revels v. Berryhill,
25 874 F.3d 648, 654 (9th Cir. 2017) (citation and internal quotation
26 omitted).
27
28
1 To determine whether substantial evidence supports a finding,
2 “a court must consider the record as a whole, weighing both evidence
3 that supports and evidence that detracts from the [Commissioner’s]
4 conclusion.” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir.
5 2001) (internal quotation omitted). As a result, “[i]f the evidence
6 can support either affirming or reversing the ALJ’s conclusion, [a
7 court] may not substitute [its] judgment for that of the ALJ.”
8 Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006).
9
10 DISCUSSION
11
12 Plaintiff contends in part that the ALJ failed to provide
13 adequate reasons for rejecting his testimony and statements
14 regarding his physical limitations. (Pl. Brief at 2-10; Pl. Reply
15 at 1-5). After consideration of the record as a whole, the Court
16 agrees. Remand for further consideration of Plaintiff’s testimony
17 and statements is warranted.
18
19 A. Summary of the Relevant Medical Record4
20
21 The available treatment record dates back to the alleged onset
22 date and consists mostly of primary care treatment notes, some
23 specialist consultations, a hospital stay for treatment following
24
25
4 Because Plaintiff challenges only the ALJ’s
26 consideration of his testimony and statements concerning his
physical impairments, the Court summarizes the medical evidence
27 and Plaintiff’s testimony and statements concerning Plaintiff’s
physical impairments.
28
1 a car accident in 2019, and monthly pain management treatment after
2 the accident. The Court summarizes each below.
3
4 1. Primary Care, Specialist, and Hospital Treatment Notes
5
6 On June 4, 2018, Plaintiff saw a doctor at Kaiser Permanente
7 to discuss disability and was advised to see his primary care
8 doctor. (AR 379). The next day Plaintiff saw his primary care
9 doctor complaining of numbness in his feet and ongoing moderate to
10 severe hand cramps and numbness which was worsening for the past
11 two months. (AR 380). He told his doctor that he was not sure if
12 he was taking his medications right—his hemoglobin A1c was up.
13 (Id.). He had foot or leg pain which is a symptom of hyperglycemia.
14 (AR 383). Plaintiff asked to be off work. (AR 380).
15
16 The limited physical examination at the time noted no
17 abnormalities. (AR 380-81). Plaintiff was assessed with obesity
18 and diabetes with peripheral neuropathy which would be treated with
19 Hydrocodone-Acetaminophen (Norco) and lifestyle modifications, he
20 was to work with a diabetic educator, and he was given a temporary
21 off work order for two weeks. (AR 381). His diabetic management
22 plan was to not go more than five hours between meals, check his
23 blood sugar four times a day, and report back with his readings
24 for possible medication adjustment. (AR 383).5 Plaintiff stated
25
26 5 Plaintiff did not follow this plan. He reported blood
sugar readings the next week for mostly one or two checks per day.
27 (A.R. 384). He did not respond to follow up requests for two
diabetic check-ins. (AR 387-89).
28
1 that he could not eat while working, it was not possible, and
2 declined suggestions for how to manage his eating. (Id.).
3
4 In August 2018, Plaintiff saw a new primary care doctor. (AR
5 389). He reported tingling in both legs for years. (AR 390). On
6 examination, he had moderate monofilament sensory loss. (Id.). He
7 was noncompliant with his medication regimen. (AR 392). His doctor
8 explained the risks of uncontrolled diabetes and ordered a diabetic
9 foot examination and hemoglobin A1c monitoring. (Id.).
10
11 The next reported visit is in May 2019,6 when Plaintiff
12 requested medication refills including Norco. (AR 392-93). It was
13 noted that he was exercising 300 minutes per week at a moderate to
14 strenuous level, (AR 393), and noncompliant with his medication
15 regimen. (AR 394). Plaintiff’s physical examination was normal,
16 and Plaintiff refused to have a diabetic case manager consultation
17 for his uncontrolled hemoglobin A1c. (Id.). His provider ordered
18 hemoglobin A1c monitoring and told Plaintiff to make an appointment
19 with his primary care doctor. (AR 394-95).
20
21 Plaintiff returned in July 2019, complaining of right wrist
22 pain from accidentally striking his wrist against metal four days
23 earlier for which he was given a Toradol injection. (AR 395-96).
24 He had no tenderness and full sensation/range of motion. (AR 395).
25
26
6 During a visit in October 2019, Plaintiff explained that
27 he treated at Kaiser Permanente a year earlier and had no medical
insurance then. (AR 716).
28
1 Plaintiff was hospitalized in August 2019, after having a roll
2 over car accident in which his car caught fire. (AR 399-452, 457-
3 550, 555-91). Plaintiff had multiple right rib fractures, thoracic
4 spine transverse process fractures, a pneumothorax and small
5 effusion in his lungs, a nasal bone fracture, a zygomatic arch
6 fracture, and some contusions, lacerations, abrasions, and second
7 degree burns to his right upper arm, left shoulder, and right lower
8 leg. (AR 400, 411-13, 418-20, 458, 464, 473). It was noted that he
9 was intoxicated, his blood glucose was 578 consistent with diabetic
10 ketoacidosis with hyperkalemia, and he had been noncompliant with
11 his home insulin medication. (AR 461-62, 464, 473). An internal
12 medicine consultation reported normal gait and speech, and 5/5
13 strength in his extremities. (AR 556). Occupational therapy testing
14 during his hospital stay showed grip strength of 4/5 in both hands.
15 (AR 547), and noted to have a normal gait without an assistive
16 device during physical therapy. (AR 545). After two weeks,
17 Plaintiff was discharged in stable condition, ambulating,
18 tolerating his diet, eager to go home, and able to resume normal
19 activity. (AR 471). It was noted that would need a shower chair
20 for safety at home, but it is not apparent that Plaintiff was
21 discharged with a cane or other assistive device. (AR 470-72, 545,
22 548).
23
24 In September 2019, Plaintiff requested pain medication for
25 low back and right-sided rib pain from his car accident. (AR 634).
26 He had been discharged from the hospital after the accident with
27 no pain medication. (AR 634). He was then ambulatory with no mention
28 of a cane. (AR 634-35). Later in September, Plaintiff went to the
1 hospital for a right foot ulcer and was again noted to be
2 ambulatory with no mention of a cane. (AR 631-33).
3
4 Plaintiff began seeing primary care doctor, Dr. Hemanshu
5 Patel, in October 2019. (AR 716). Plaintiff reported that he had
6 been in a car accident and that no “etoh” (alcohol) was involved
7 as he remembered, but he did not remember the accident. (AR 716).
8 Although he had diabetes since age 17, he admitted that he did not
9 check his blood sugars. (Id.). Plaintiff was using a cane, limping,
10 and had a slow, cautious, and stiff gait. (AR 717). He had thoracic
11 tenderness on examination. (Id.). Dr. Patel diagnosed rib fractures
12 and uncontrolled diabetes, and prescribed Lidocaine patches, Mobic,
13 and Acetaminophen. (AR 718).
14
15 Later, in October 2019, a physical therapist messaged Dr.
16 Patel requesting a hospital bed, standard wheelchair, and a pain
17 management referral for Plaintiff. (AR 664).7 Plaintiff had
18 complained of severe pain and had difficulty moving from sitting
19 to standing or from supine to sitting. (AR 665). Plaintiff reported
20 severe guarding and severe pain to mild palpation. (AR 666). He
21 was nervous about movement, not yet ready for physical therapy,
22 and it was noted that he might require additional time for healing
23 his injuries. (AR 665-66). His gait was guarded secondary to pain,
24 and he was using a cane. (AR 668).
25
26
7 As detailed below, Plaintiff underwent monthly pain
27 management treatments after his initial pain management evaluation
in November 2019. (AR 935).
28
1 In November 2019, Plaintiff went to the hospital complaining
2 of dizziness and stayed overnight for evaluation. (AR 598, 601).
3 He reported that he had been more active recently and was
4 experiencing positional dizziness for 5-10 seconds upon standing
5 or turning in bed. (AR 611). At the time, his gait was abnormal,
6 and he required the use of a cane. (AR 602). His dizziness resolved
7 with Meclizine. (AR 598). He was discharged in stable condition
8 with stable gait, intact sensation and 5/5 strength in his
9 extremities, (AR 598, 613-14), with likely positional dizziness
10 due to post-concussion syndrome and chronic low back pain since
11 his car accident. (AR 599, 615). He had no activity restrictions,
12 and his “functional status” reported no assistive devices. (AR
13 731).
14
15 Plaintiff followed up with Dr. Patel’s physician’s assistant
16 after his hospital visit, complaining of uncontrolled pain
17 everywhere due to healing fractures from his car accident. (AR
18 712). He reported that he was unable to work, used a wheelchair
19 most of the time, had to move in with his mother after his accident,
20 and needed transportation assistance. (Id.). He was using a
21 wheelchair at the appointment. (AR 713). He had not received
22 diabetes supplies to test his blood sugar, had hypertension when
23 he was discharged from the hospital, and reported continued
24 dizziness. (AR 714). Plaintiff was referred to neurology,
25 cardiology, and given an order for a blood pressure machine,
26 glucometer and testing supplies, home health, and transportation
27 assistance. (Id.).
28
1 In January 2020, Plaintiff had a cardiology consultation with
2 a nurse practitioner. (AR 695). He complained of nausea, dizziness,
3 and imbalance issues, shoulder pain and weakness making him unable
4 to lift objects, and was observed to have an unsteady gait for
5 which he needed a cane. (AR 695-96). He had decreased range of
6 motion in his neck and shoulders and mid and upper back pain. (AR
7 696). The nurse practitioner ordered shoulder MRIs, approval for a
8 head trauma program for concussion syndrome, referred Plaintiff
9 for occupational therapy, and sought approval for a wheelchair rack
10 for Plaintiff’s car. (Id.). Plaintiff’s partner was told to inquire
11 about getting in-home health authorization for her to care for
12 Plaintiff. (Id.).
13
14 In March 2020, Plaintiff underwent a neurology consultation
15 for his dizziness. (AR 724). Plaintiff reportedly had slow
16 mentation and stuttering, was unable to lift his upper extremities
17 above shoulder level, had 3/5 strength in his upper extremities,
18 was using a cane for ambulation, and it was noted that he was
19 unsteady and at risk for falling down. (AR 724-25). Shoulder MRIs
20 showed labral tears, tendinosis, and mild to moderate
21 acromioclavicular joint arthropathy in both shoulders, and bursitis
22 in the right shoulder. (AR 724). The neurologist diagnosed memory
23 loss, posttraumatic headache, a tear of the left supraspinatus
24 tendon, and right shoulder labral tear, ordered a brain MRI and
25 EEG, and referred Plaintiff to an orthopedic surgeon. (AR 724-25).
26 The brain MRI showed signal abnormality in the frontal white
27 matter, and it is noted that Plaintiff’s chronic balance problems
28
1 resulting in falls and gait abnormalities were from a combination
2 of his head injury and local trauma. (AR 1203).8
3
4 Later, in March 2020, Plaintiff followed up with Dr. Patel to
5 discuss his consultations. (AR 708). It was noted that he had been
6 non-adherent to most medical recommendations. (Id.). Plaintiff
7 complained of severe vertigo with nausea, ongoing weakness in his
8 hands causing him to be unable to get a proper grip and to drop
9 things easily, and difficulty forming sentences to express what he
10 is thinking. (Id.). He reported having a hard time using pen needles
11 for insulin, was upset about his diabetes status, and indicated
12 his neuropathy was starting to flare and cause significant pain.
13 (Id.). He stated that was no longer was drinking alcohol and was
14 unable to hold a job. (Id.). On examination, Plaintiff was using a
15 wheelchair and was stiff and unsteady, he had decreased range of
16 motion and tenderness in his neck, his hand strength was 4/5, he
17 had thoracic tenderness, and he was angry and agitated. (AR 709).
18 Dr. Patel diagnosed post syncope injury possibly related to a
19 concussion, an “obvious” balance disorder, uncontrolled diabetes
20
8 It is not clear if Plaintiff ever had an EEG study. The
21 only orthopedic visit in the record is from July 2021, when
Plaintiff presented to an orthopedist complaining of right arm pain
22 and numbness following a recent fall. (AR 1010). He reported
balance issues, was unemployed, and felt deconditioned and unable
23 to do his activities of daily living. (AR 1010). On examination,
he had positive O’Brien and speed tests, limited range of motion
24
and strength of 3/5 abduction and 4/5 flexion. (AR 1010). A MRI
25 showed a labral tear. (AR 1010). The orthopedist ordered physical
therapy, noting that surgery would be considered if Plaintiff’s
26 condition did not improve. (AR 1009, 1011). When Plaintiff followed
up in September 2021, it was noted that he also had cervicalgia.
27 (AR 1006). There appear to be no treatment notes for any physical
therapy for Plaintiff’s shoulders.
28
1 with neuropathy, and alcoholism in remission, and prescribed
2 Gabapentin for the neuropathy. (AR 710).
3
4 In May 2020, Plaintiff followed up complaining of depression
5 and memory problems for which Dr. Patel prescribed Amitriptyline.
6 (AR 994). It was noted that Plaintiff was not completing labs for
7 his diabetes as instructed. (Id.). In August 2020, Plaintiff
8 returned for diabetic foot care. (AR 986-87, 991-92). At another
9 visit in August 2020, Plaintiff reported no improvement in his
10 walking which was not straight because he felt like the room was
11 spinning, agitation, frustration, and worsening memory issues. (AR
12 988). He had a gait and station with normal posture but was using
13 an assistive device and was unsteady. (AR 989).
14
15 In July 2021, Plaintiff reported that his balance and thinking
16 had only slightly improved since his last visit, and he recently
17 had a fall and injured his left shoulder. (AR 973). He had a gait
18 and station with normal posture but was using an assistive device
19 and had a slow, cautious, stiff, and unsteady gait. (AR 975).
20
21 In February 2022, Plaintiff complained of right arm numbness
22 and weakness from a herniated disc in his neck. (AR 965). He had a
23 gait and station with normal posture but it was noted that he was
24 using an assistive device, with a slow, cautious, stiff and
25 unsteady gait. (AR 966). Dr. Patel prescribed Mobic for bursitis,
26 Wellbutrin for depression, and discussed taking fall precautions
27 due to recent falls. (AR 967).
28
1 Diabetes management visits in March and June 2022, noted that
2 Plaintiff’s diabetes continued to be uncontrolled. (AR 956-64).
3 The next note, from April 2023, reported a telephone visit during
4 which Plaintiff complained of shortness of breath, snoring, and
5 fatigue for the last seven months, and back and neck pain. (AR
6 1157). He was prescribed Albuterol, referred to pulmonology, and
7 told to follow up with his primary care doctor in a week. (AR
8 1158).
9
10 In June, August, and November 2023, and in February 2024,
11 Plaintiff followed up to discuss lab results, and his diabetes
12 remained uncontrolled. (AR 1148-55, 1174-77, 1179-81). At the June
13 2023 visit, he reported normal gait, station, and posture, and was
14 not using an assistive device. (AR 1154). At the November 2023
15 visit, his diabetes remained uncontrolled but it was noted that he
16 was “doing so much better” with “big improvement” and had changed
17 his diet. (AR 1180). At the February 2024 visit, he reported that
18 he has pain and tingling in this hands from neuropathy when he
19 “tries to grab a sup or drive.” (AR 1174).9
20
21 2. Pain Management
22
23 Plaintiff saw a pain management doctor monthly from November
24 2019, through at least September 2023, for mid-back and chest wall
25 pain from his multiple rib and thoracic spine fractures, lumbar
26
27 9 It is not clear whether the reference to “sup” refers to
a stand up paddle for paddleboarding or something else. (AR 1174).
28
1 and cervical radiculopathy, cervical myelopathy, and shoulder pain.
2 (AR 746-946, 1043-1132). At his initial evaluation in November
3 2019, Plaintiff reported that his pain severely limited his
4 functioning. (AR 935). On examination, he was able to transition
5 from seated to standing position and to the examination table with
6 mild to moderate difficulty, he had tenderness in his ribs,
7 decreased range of motion and tenderness to the thoracic spine,
8 5/5 strength in all extremities and intact sensation, and his gait
9 was antalgic with no mention of an assistive device. (AR 937-38).
10 His doctor prescribed Norco three times a day. (AR 939).
11
12 In December 2019, Plaintiff reported 50 percent benefit from
13 Norco, but that each pill only lasted about four hours. (AR 929).
14 He was able to perform activities of daily living including
15 preparing meals with the assistance of his medication. (Id.). His
16 examination findings were the same as the prior visit. (AR 931).
17 Plaintiff’s Norco was increased to four times a day. (AR 933).
18
19 In January 2020, Plaintiff complained of bilateral shoulder
20 pain and reported 50 percent benefit from taking Norco. (AR 923).
21 His examination findings were unchanged. (AR 925). His doctor
22 continued Plaintiff’s Norco, prescribed Naloxone nasal spray, and
23 ordered bilateral shoulder MRIs. (AR 926-27; see also AR 913-16
24 (MRI studies showing tendinosis, labral tears, mild osteoarthritis,
25 mild to moderate acromioclavicular joint arthropathy, and right
26 partial tearing of tendons)).
27
28
1 In February 2020, Plaintiff reported that his pain was worse
2 after a fall earlier that month, he was having more falls and was
3 seeing a neurologist who wanted Plaintiff to use his wheelchair
4 more often. (AR 917). He was walking with a cane at his visit.
5 (Id.). He reported 30-40 percent benefit from taking Norco. (Id.).
6 His examination findings were unchanged from prior visits except
7 for the notation that he was using a cane and reported using a
8 wheelchair in the community. (AR 919). His Norco was continued.
9 (AR 921).
10
11 In March 2020, Plaintiff reported 50 percent benefit from
12 taking Norco. (AR 908). He reported that he was still able to
13 perform activities of daily living with his medications. (Id.).
14 Examination findings were unchanged from the prior visit with a
15 note that he then was using a cane. (AR 910). His Norco was
16 continued. (AR 911).
17
18 Subsequent appointments were by telephone due to the Covid-19
19 pandemic. At monthly appointments from April 2020, until September
20 2023, Plaintiff’s Norco was continued, and he also was given trials
21 of Medrol for increasing back pain twice, and Narcan spray. (AR
22 746-907, 1043-1132). In December 2020, Plaintiff reported
23 improvement in his range of motion and activities of daily living
24 with his medication regimen without side effects, and mild
25 limitation in functioning due to pain. (AR 857). In January,
26 February, March, April, May, and June 2021, Plaintiff continued to
27 report pain relief and functional improvement. (AR 824, 830, 835,
28 841, 844, 847, 852). In July 2021, he reported “significant relief”
1 in pain symptoms and increased activity level, despite a recent
2 fall due to vertigo. (AR 818; but see AR 815-16 (noting his pain
3 was moderate to severe with his current regimen but relieved
4 significantly to 7/10); AR 810, 813 (August 2021 note reporting
5 significant relief and increased activity but that Plaintiff’s pain
6 had gotten much worse in the past month); AR 802, 807 (September
7 and October 2021 notes reporting Plaintiff had significant relief
8 from symptoms and increased activity)). In May 2022, it was noted
9 that Plaintiff “display[ed]” improvement in his activities of daily
10 living. (AR 747). In August, September, and October 2022, Plaintiff
11 was reported to be functional and independent with activities of
12 daily living with pain medication. (AR 1097, 1105, 1113). The
13 October 2022 note reported that Plaintiff uses a cane for
14 ambulation. (AR 1098). His doctor requested an EMG for Plaintiff’s
15 lower extremity weakness and a history of falls. (AR 1098). The
16 EMG study reportedly showed diabetic neuropathy. (AR 980). At
17 Plaintiff’s appointments in December 2022, and February and April
18 2023, Plaintiff reported that he was doing well with his
19 medications and was able to perform his activities of daily living.
20 (AR 1070-71, 1077-78, 1092).
21
22 3. The Opinion Evidence
23
24 Consultative examiner, Dr. David Hunt, prepared an internal
25 medicine consultation dated August 5, 2022. (AR 1019-22). Dr. Hunt
26 reviewed no medical records. (AR 1021). Dr. Hunt did review a
27 cervical spine x-ray showing minimal degenerative disease, and a
28 limited lumbar spine x-ray that was normal. (AR 1018). Plaintiff
1 complained of neck and back pain and diabetic polyneuropathy. (AR
2 1019). On examination, he was able to generate only 20 pounds of
3 force with his right hand and zero pounds of force with his left,
4 he had normal gait and balance and did not require an assistive
5 device for ambulation, he had minimal back tenderness and some
6 limited range of motion, his sensation was intact, and he had
7 normal muscle bulk and tone and strength of 5/5 in his extremities.
8 (AR 1020-21). Dr. Hunt diagnosed, inter alia, diabetic
9 polyneuropathy and cervical and lumbar disc disease, and opined
10 that Plaintiff would be capable of medium work with frequent
11 pushing and pulling, frequent postural movements and activities
12 requiring agility, and no manipulative limitations or need for an
13 assistive device. (AR 1022).
14
15 State agency physicians reviewed the record in September of
16 2022, and February 2023, and found Plaintiff capable of a range of
17 medium work with frequent climbing of ramps and stairs, frequent
18 stooping, kneeling, crouching and crawling, occasional climbing of
19 ladders ropes and scaffolds, and no concentrated exposure to
20 hazards. (AR 60-141). The state agency physicians expressly
21 considered Plaintiff’s shoulder MRIs showing mild to moderate
22 issues, and Plaintiff’s reduced grip strength noted in Dr. Hunt’s
23 consultative examination, but found that Plaintiff would have no
24 manipulative limitations. (AR 66-67, 74, 85-87, 92, 107-08, 113-
25 14, 127-28, 133-34). They reasoned that Plaintiff’s decreased grip
26 strength was likely secondary to poor effort (not noted by Dr.
27 Hunt). (AR 75, 94, 115, 135). The state agency physician noted, on
28 reconsideration review that, there was no evidence of myopathy,
1 radiculopathy, or sensory polyneuropathy, no evidence of isolated
2 nerve injury, and Plaintiff’s light sensation was intact at his
3 consultative examination. (AR 108, 128). The state agency
4 physicians also noted that Plaintiff had an antalgic gait and was
5 using a cane at one appointment in February 2020 (and did not
6 mention any other appointments), but did not find that Plaintiff
7 would not need an assistive device. (AR 68, 72-75, 86, 91-94, 107,
8 112-15, 127, 132-35).
9
10 B. The ALJ Failed to Provide Legally Sufficient Reasons for
11 Discounting Plaintiff’s Testimony and Statements About His
12 Physical Limitations
13
14 Plaintiff argues that the ALJ erred in determining his RFC by
15 failing to provide legally sufficient reasons for discounting his
16 testimony and statements suggesting greater limitations from
17 physical impairments. Specifically, Plaintiff argues that the ALJ
18 relied solely on a lack of supporting objective medical findings
19 to support greater RFC restrictions, and relied on only a small
20 portion of the medical evidence in so finding. See Pl. Brief at 2-
21 10; Pl. Reply at 1-5. The Court agrees.
22
23 1. Plaintiff’s Statements
24
25 Plaintiff testified that he lived with his mother, and his
26 two children who were then between 9 and 13 years old. (AR 41). He
27 said he stopped working in 2018 because he developed diabetic
28 neuropathy and his hands started cramping severely which made it
1 hard to use them. (AR 43, 51). He would drop things. (AR 52). He
2 said he was unable to work because he is in a lot of pain in his
3 neck, back, shoulders, legs and ankles, it is hard for him to move
4 around, and he gets dizzy because he cannot control his diabetes.
5 (AR 46, 48). Plaintiff said he could not drive because it is hard
6 for him to move his neck to change lanes and it is hard to sit in
7 a car. (AR 41-42). He spent about 16 hours a day in bed, tried to
8 talk to his kids and help them with their homework, dressed himself,
9 and cared for his personal needs. (AR 48-49). His mother did all
10 the housework. (AR 48-49).
11
12 Plaintiff said he could lift only one pound due to his neck
13 injury, spasms in his right arm, and lack of strength in his hands.
14 (AR 49-50). He could sit for 10 minutes, walk for 55 feet, and
15 needed to use a cane - which was prescribed by his primary doctor
16 when he had his 2019 car accident - while walking for balance. (AR
17 46, 50-51).
18
19 In a Function Report form dated June 9, 2022, Plaintiff
20 reported that he has a hard time standing, walking, bending, and
21 lifting for long periods of time. (AR 318). He spent his days
22 checking his blood sugar, eating breakfast, reading books, watching
23 television for 10 hours, and showering. (AR 319, 322). He could
24 manage his personal care but could not move fast bending to dress
25 himself because he gets dizzy. (AR 319). He did no household work
26 apart from making his bed with help. (AR 320). He stated that “it
27 hurts [him] to move.” (Id.). He could go outside every day for
28 sunshine and fresh air and ride in a car, but he could not go out
1 alone due to anxiety, dizziness, difficulty walking, communicating,
2 and standing. (AR 321-22). He did not drive because he was scared
3 after his 2019 car accident. (AR 321). He reported that he could
4 not stand people—he only put up with his immediate family. (AR
5 322). He could not lift, squat, bend, stand, reach, walk kneel, or
6 use his hands for a long period of time due to dizziness. (AR 323).
7 He also had a hard time seeing, talking, and understanding. (Id.).
8 He estimated that he could walk twenty feet before needing to rest
9 for three minutes, pay attention for two minutes, and that he did
10 not finish what he started, did not follow instructions well, did
11 not handle change well, and is paranoid being around people. (AR
12 323-24). He used a cane, wheelchair, and glasses daily. (AR 324).
13 His medications caused him to be disoriented, confused, dizzy,
14 drowsy, have blurred vision, mood changes, trouble concentrating,
15 trouble sleeping, anxiety, headaches, weakness, anger, and
16 aggression. (AR 325).10
17
18
10 In a third-party Function Report form dated May 31, 2022,
19 Plaintiff’s significant other reported that she helped Plaintiff
take his medications, and prepared his meals. (AR 285-92). She
20
stated that Plaintiff had burns to his arms that caused a lot of
21 nerve damage, severe dizzy spells that cause him to lose his balance
“alot,” and diabetes, shoulder and back injuries. (AR 285). She
22 reported the same daily activities reported by Plaintiff, but
noted that Plaintiff watches his children while they are home from
23 school, and drives but not “much often due to his illness.” (AR
286-89). She reported that: (1) Plaintiff has difficulty lifting
24
due to pain in his arms; (2) squatting, bending and standing cause
25 dizziness; (3) reaching affects his shoulders; (4) walking causes
dizziness; (5) diabetes affects his vision; and (6) he had a hard
26 time completing tasks or understanding. (AR 290). She estimated
that Plaintiff could walk less than half a mile before needing to
27 rest for up to an hour. (Id.). She indicated that Plaintiff uses a
walker, cane, brace/splint, and glasses, but did not indicate that
28
1 In Disability Report – Appeal forms, Plaintiff reported that
2 his mobility and fatigue had worsened, and that if he sits or
3 stands for long periods of time, his legs feel numb and start
4 shaking, and that he could walk about 25 feet before running out
5 of air and having pain. (AR 328-35, 347-54). He reported that he
6 had stopped doing activities with his children. (AR 352).
7
8 2. Applicable Law
9
10 An RFC assessment requires the ALJ to consider a claimant’s
11 impairments and any related symptoms that may “cause physical and
12 mental limitations that affect what [he] can do in a work setting.”
13 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). In determining a
14 claimant’s RFC, the ALJ considers all relevant evidence, including
15 a claimant’s statements and residual functional capacity
16 assessments made by consultative examiners, state agency
17 physicians, and medical experts. 20 C.F.R. §§ 404.1513,
18 404.1545(a)(3), 416.913, 416.945(a)(3).
19
20 When assessing a claimant’s credibility regarding subjective
21 pain or intensity of symptoms, the ALJ must engage in a two-step
22 analysis. Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017).
23 First, the ALJ must determine if there is medical evidence of an
24 impairment that could reasonably produce the symptoms alleged.
25 Garrison, 759 F.3d at 1014. “In this analysis, the claimant is not
26
he uses a wheelchair. (AR 291). She reported that his medications
27 cause him to be dizzy, anxious, drowsy, and have mood swings. (AR
292).
28
1 required to show that her impairment could reasonably be expected
2 to cause the severity of the symptom she has alleged; she need only
3 show that it could reasonably have caused some degree of the
4 symptom.” Id. (emphasis in original) (citation omitted). “Nor must
5 a claimant produce objective medical evidence of the pain or
6 fatigue itself, or the severity thereof.” Id. (citation omitted).
7
8 If the claimant satisfies this first step, and there is no
9 evidence of malingering, the ALJ must provide specific, clear and
10 convincing reasons for rejecting the claimant’s testimony about
11 the symptom severity. Id. at 1014-15; see also Robbins, 466 F.3d
12 at 883 (“[U]nless an ALJ makes a finding of malingering based on
13 affirmative evidence thereof, he or she may only find an applicant
14 not credible by making specific findings as to credibility and
15 stating clear and convincing reasons for each.”). “This is not an
16 easy requirement to meet: The clear and convincing standard is the
17 most demanding required in Social Security cases.” Garrison, 759
18 F.3d at 1015 (citation omitted). The ALJ must evaluate “the
19 intensity and persistence of those symptoms to determine the extent
20 to which the symptoms limit [the claimant’s] ability to perform
21 work-related activities for an adult.” Soc. Sec. Ruling (“SSR”)
22 16-3p, 2017 WL 5180304, at *3.
23
24 While the ALJ cannot “delve into wide-ranging scrutiny of the
25 claimant’s character and apparent truthfulness,” Trevizo, 871 F.3d
26 at 678 n.5, the ALJ may consider “prior inconsistent statements
27 concerning the symptoms, and other testimony by the claimant that
28 appears less than candid; unexplained or inadequately explained
1 failure to seek treatment or to follow a prescribed course of
2 treatment; and the claimant’s daily activities.” Ghanim v. Colvin,
3 763 F.3d 1154, 1163 (9th Cir. 2014) (citation omitted).
4 Inconsistencies between a claimant’s testimony and conduct, or
5 internal contradictions in the claimant’s testimony, also may be
6 relevant. Burrell v. Colvin, 775 F.3d 1133, 1137 (9th Cir. 2014).
7
8 In addition, the ALJ may consider the observations of treating
9 and examining physicians regarding, among other matters, the
10 functional restrictions caused by the claimant’s symptoms. Smolen
11 v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996); accord Burrell, 775
12 F.3d at 1137. However, it is improper for an ALJ to reject
13 subjective testimony based “solely on a lack of objective medical
14 evidence to fully corroborate the claimant’s allegations.” Bray v.
15 Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009)
16 (citation omitted); see also Smartt v. Kijakazi, 53 F.4th 489, 498
17 (9th Cir. 2022) (reaffirming same but observing that inconsistency
18 with the medical evidence is a factor that can be considered; “When
19 objective medical evidence in the record is inconsistent with the
20 claimant’s subjective testimony, the ALJ may indeed weigh it as
21 undercutting such testimony.”) (emphasis original); SSR 16-3p, 2017
22 WL 5180304, at *5 (“Objective medical evidence is a useful
23 indicator to help make reasonable conclusions about the intensity
24 and persistence of symptoms, including the effects those symptoms
25 may have on the ability to perform work-related activities. . .”).
26
27 The ALJ must make a credibility determination with findings
28 that are “sufficiently specific to permit the court to conclude
1 that the ALJ did not arbitrarily discredit claimant’s testimony.”
2 Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (citation
3 omitted); see Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir.
4 2015) (“A finding that a claimant’s testimony is not credible must
5 be sufficiently specific to allow a reviewing court to conclude
6 the adjudicator rejected the claimant’s testimony on permissible
7 grounds and did not arbitrarily discredit a claimant’s testimony
8 regarding pain.” (citation omitted). Although an ALJ’s
9 interpretation of a claimant’s testimony may not be the only
10 reasonable one, if it is supported by substantial evidence, “it is
11 not [the court’s] role to second-guess it.” Rollins v. Massanari,
12 261 F.3d 853, 857 (9th Cir. 2001).
13
14 3. The ALJ’s Evaluation of the Subjective Statements
15
16 In determining Plaintiff’s RFC, the ALJ summarized Plaintiff’s
17 subjective statements and testimony, and found that Plaintiff’s
18 “medically determinable impairments reasonably might be expected
19 to cause the alleged symptoms[,]” but his “statements concerning
20 the intensity, persistence and limiting effects of these symptoms”
21 were “not entirely consistent with the medical evidence and other
22 evidence in the record.” (AR 23-24).
23
24 The ALJ then discussed the medical record as follows:
25 Plaintiff had a visit on the June 5, 2018, alleged onset date,
26 where he complained of cramping and numbness in the hands and feet,
27 but had only obesity noted on examination. (AR 24 (citing AR 380)).
28 There was little evidence of medical care after this visit until
1 Plaintiff’s car accident in August 2019, when he was hospitalized
2 for two weeks to treat his injuries. (Id. (citing AR 562)). After
3 the accident, Plaintiff began complaining of dizziness, imbalance,
4 headaches, nausea, and difficulty lifting objects, reporting
5 frequent use of a cane, but his problems improved with fewer
6 residual symptoms being reported over time. See Id. (citing AR 695
7 (January 2020 note for cardiology consultation, where Plaintiff
8 was observed to have an unsteady gait for which he needed a cane,
9 and was not yet eligible for physical therapy due to thoracic and
10 lumbar fractures from his accident); AR 708 (March 2020 note
11 reporting multiple symptoms since Plaintiff’s car accident, where
12 Plaintiff was using a wheelchair and was stiff and unsteady); AR
13 973 (July 2021 note for follow up after shoulder MRI where Plaintiff
14 reported his balance had only slightly improved since the last year
15 and that he had a recent fall due to his balance issues)). The ALJ
16 found that Plaintiff had a ”reduced need for ongoing care”
17 throughout 2022, and spine “imaging” revealed “minimal”
18 degenerative disc disease at C5-C6, and a normal lumbar spine. See
19 Id.(citing AR 1018 (August 2022 spine x-rays Dr. Hunt reviewed)).
20 The ALJ noted that Dr. Hunt reported that Plaintiff had normal gait
21 and balance without the use of an assistive device, and normal
22 muscle strength except in the left hand. Id. (citing AR 1021
23 (reporting normal strength except for grip strength)). While
24 Plaintiff recently complained of shortness of breath, feeling
25 winded after talking too much, and wheezing, his examination at
26 the time of the visit reported no evidence of audible wheezing and
27 that Plaintiff was able to speak in clear full sentences. See Id.
28 (citing AR 1191-92 (April 2023 note for telephone visit reporting
1 that it was difficult to diagnose the cause of Plaintiff’s symptoms
2 via a phone visit, and referring Plaintiff to a pulmonologist)).
3 The ALJ noted that the most recent evidence reported “very minimal”
4 ground glass interstitial changes in the middle lobe, and
5 subjective complaints of neuropathy and numbness in Plaintiff’s
6 hands, but physical examination findings remained normal, and the
7 record confirmed that Plaintiff was able to drive. See AR 24-25
8 (citing AR 1174-75 (February 2024 note for lab test follow up visit
9 reflecting the same except Plaintiff reported that he has pain and
10 tingling when he “tries to” drive) (emphasis added)).
11
12 The ALJ adopted a more limited RFC than all the medical
13 opinions in the record had found, explaining:
14
15 Ultimately, considering the established physical
16 impairments and the consistent complaints of the claimant
17 I find these in combination warrant limiting assigned
18 work to the exertional level of light with additional
19 nonexertional postural limitations which accommodate the
20 mild degenerative changes in the spine and then
21 considering the exacerbating effects of obesity, the
22 assigned work should not involve working around
23 unprotected heights and considering the reports of
24 dizziness due to vertigo there should be no assigned work
25 around hazards and moving dangerous machinery.
26
27 * * *
28
1 Based on the foregoing, I find the residual functional
2 capacity as assessed for the Claimant in this decision
3 is supported by the totality of the evidence. While the
4 Claimant alleged significant limitations affecting a
5 wide range of functioning and considering the claimant’s
6 clinical presentation and the minimal findings on upon
7 examination, I find the reported pain and symptoms not
8 entirely consistent with the claimant’s subjective
9 complaints and reports of pain and symptoms. The
10 Claimant’s complaints and reports of pain and symptoms
11 throughout this record are consistent and when these are
12 considered in combination with the limitations resulting
13 from the established impairments, the Claimant certainly
14 would not be able to return to their past relevant work.
15 However, the objective findings upon examination
16 throughout this record fully support finding the claimant
17 retains sufficient residual functional capacity to
18 engage in less demanding work at the light exertional
19 level with additional nonexertional limitations as
20 incorporated into the residual functional capacity in
21 this decision. The residual functional capacity as
22 assessed for the Claimant in this decision fully
23 accommodates both for the limitations resulting from the
24 established impairment and the Claimant’s reported pain
25 and symptoms and the residual functional capacity as
26 assessed in this decision incorporated specific
27 protections to address symptoms due to vertigo.
28
1 (AR 25).
2
3 4. Analysis
4
5 The ALJ’s reasoning in this case is not sufficiently specific
6 for the Court to conclude that the ALJ rejected Plaintiff’s
7 testimony and statements suggesting greater physical limitations
8 on permissible grounds. Brown-Hunter v. Colvin, 806 F.3d at 493.
9 The ALJ appears to have relied solely on a lack of supporting
10 medical evidence which the ALJ could not do, Smartt, 53 F.4th at
11 498; Bray, 554 F.3d at 1227, and the ALJ’s characterization of the
12 evidence does not include significant findings in the record. In
13 particular, the ALJ did not acknowledge the observations in the
14 record (discussed above) that Plaintiff had ongoing balance issues
15 and was a fall risk, or that Plaintiff had any shoulder impairments.
16
17 Defendant asserts that the ALJ also relied on asserted
18 inconsistencies between what Plaintiff reported and the medical
19 record, and a lack of consistent treatment commensurate with
20 Plaintiff’s complaints. See Def. Brief at 4-5. This Court is
21 constrained to consider only the reasoning the ALJ actually
22 provided. See Brown-Hunter v. Colvin, 806 F.3d at 494 (court is
23 constrained to review only the reasons the ALJ specifically
24 identified); cf. Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir.
25 2001) (the court “cannot affirm the decision of an agency on a
26 ground that the agency did not invoke in making its decision”);
27 see also Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003)
28 (reversing district court’s decision where the district court had
1 affirmed on the basis of reasons supported by the record but
2 unstated by the ALJ). Although the ALJ did not cite specifically a
3 lack of consistent treatment commensurate with Plaintiff’s
4 complaints as a reason to discount his statements, this would not
5 have been particularly convincing, given the ALJ’s failure to cite
6 or discuss Plaintiff’s consistent monthly pain management treatment
7 for almost a four-year period during which he was prescribed Norco
8 for his pain.
9
10 While the ALJ generally (and confusingly) referred Plaintiff’s
11 “reported pain and symptoms” as “not entirely consistent with
12 [Plaintiff’s] subjective complaints and reports of pain and
13 symptoms” (see AR 26), the ALJ did not identify any specific
14 inconsistencies on which to discount Plaintiff’s statements and
15 testimony. (AR 23-26). The only possible inconsistency between
16 Plaintiff’s testimony and statements about his limitations and the
17 evidence that the ALJ mentioned with any specificity was
18 Plaintiff’s reported normal gait and balance at his consultative
19 examination without the use of an assistive device, and Plaintiff’s
20 testimony that he must use a cane to walk due to balance issues.
21 See AR 24 (citing AR 1021). However, this reference, alone, is not
22 a clear and convincing reason for rejecting Plaintiff’s testimony
23 in its entirety, especially in light of the record suggesting that,
24 whether or not Plaintiff may require the use of an assistive device,
25 he has ongoing balance issues and other limitations with varying
26 degrees of support in the record.
27
28
1 The Court notes that Plaintiff’s argument that the ALJ erred
2 by failing to consider a purported “medical opinion” from nurse
3 practitioner Ashley Morello is not well taken. See Pl. Brief at
4 10-12; Pl. Reply at 5-6. Ms. Morello provided an “Application for
5 Disabled Person Placard or Plates” for Plaintiff dated November
6 17, 2023, indicating that Plaintiff was eligible for a temporary
7 placard for six months (until May 17, 2024), based on: (1) “A
8 diagnosed disease or disorder which substantially impairs or
9 interferes with mobility,” and (2) “A significant limitation in
10 the use of lower extremities,” due to “cervical cord compression
11 with myelopathy[,] and lumbar radiculopathy causing severe pain
12 when walking.” (AR 360-61). Under applicable regulations, such an
13 indication is not a “medical opinion” the ALJ was required
14 expressly to consider. See 20 C.F.R. §§ 404.1513(a)(2),
15 416.913(a)(2) (defining a “medical opinion” as a statement about
16 what a claimant can still do despite impairments).
17
For the foregoing reasons, the Court finds the ALJ failed to
18
adequately consider Plaintiff’s subjective testimony and
19
complaints regarding his physical impairments.
20
21
C. Remand Is Warranted
22
23
The decision whether to remand for further proceedings or
24
order an immediate award of benefits is within the district court's
25
discretion. Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir.
26
2000). Where no useful purpose would be served by further
27
administrative proceedings, or where the record has been fully
28
1 developed, it is appropriate to exercise this discretion to direct
2 an immediate award of benefits. Id. at 1179 (“[T]he decision of
3 whether to remand for further proceedings turns upon the likely
4 utility of such proceedings.”). However, where, as here, the
5 circumstances of the case suggest that further administrative
6 review could remedy the Commissioner's errors, remand is
7 appropriate. McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011);
8 Harman, 211 F.3d at 1179-81.
9
10 Since the ALJ failed to properly assess Plaintiff’s testimony
11 and statements regarding his physical impairments in the context
12 of the medical record as a whole, remand is appropriate.
13
14 //
15
16 //
17
18 //
19
20
21
22
23
24
25
26
27
28
1 ORDER
2
3 For the foregoing reasons,11 the decision of the Commissioner
4 is reversed, and the matter is remanded for further proceedings
5 pursuant to Sentence 4 of 42 U.S.C. § 405(g).
6
7 LET JUDGMENT BE ENTERED ACCORDINGLY.
8
9
Dated: November 21, 2025
10
11 _____________/s/______________
ALKA SAGAR
12 UNITED STATES MAGISTRATE JUDGE
13
14
15
16
17
18
19
20
21
22
23
24
25 11 The Court has not reached any other issue raised by
Plaintiff except to determine that reversal with a directive for
26 the immediate payment of benefits would not be appropriate at this
time.
27
28