Deborah R Whaley v. Michael J Astrue, No. 2:2012cv04888 - Document 19 (C.D. Cal. 2013)
Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal. IT IS ORDERED that judgment be entered REVERSING the decision of the Commissioner and REMANDING this matter for reevaluation of Plantiff's disability onset date, consistent with this decision. (See document for further details). (mr)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 DEBORAH R. WHALEY, ) ) Plaintiff, ) ) v. ) ) CAROLYN W. COLVIN, ) Acting Commissioner of the ) Social Security Administration, ) ) Defendant. ) ) NO. CV 12-04888 SS MEMORANDUM DECISION AND ORDER 17 18 I. 19 INTRODUCTION 20 21 Deborah Whaley ( Plaintiff ) brings this action seeking to overturn 22 the decision of the Commissioner of the Social Security Administration 23 (hereinafter the Commissioner or the Agency ) denying his application 24 for Supplemental Security Income benefits ( SSI ).1 The parties 25 1 The Court notes that Carolyn W. Colvin became the Acting Commissioner of the Social Security Administration on February 14, 2013. 27 Accordingly, pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, the Court orders the that the caption be amended to 28 substitute Carolyn W. Colvin for Michael J. Astrue as the defendant in this action. 26 1 consented, pursuant to 28 U.S.C. § 636(c), to the jurisdiction of the 2 undersigned United States Magistrate Judge. 3 below, the decision of the Agency is REVERSED and the matter REMANDED. For the reasons stated 4 5 II. 6 PROCEDURAL HISTORY 7 8 9 Plaintiff filed an application for SSI on January 29, 2007. (Administrative Record ( AR ) 22). Plaintiff contended that she was 10 disabled due to cervical stenosis and an inability to raise her 11 dominant, left arm. 12 date of May 1, 2006. 13 application on May 30, 2007. 14 hearing before an Administrative Law Judge ( ALJ ). (AR 78). On 15 December 11, 2008, a hearing was held before ALJ Robert S. Eisman. (AR 16 32-68). Plaintiff was represented by counsel and testified at the 17 hearing. (AR 34-57). 18 57-67). (AR 123). (Id.). Plaintiff alleged a disability onset The Agency initially denied Plaintiff s (AR 73-77). Plaintiff then requested a A vocational expert ( VE ) also testified. (AR 19 20 On December 24, 2008, the ALJ issued a decision denying benefits. 21 (AR 22-29). On February 9, 2009, Plaintiff sought review of this 22 decision before the Appeals Council. 23 Appeals Council denied review. 24 action, which resulted in a Memorandum Decision and Order reversing the 25 ALJ s determination and remanding the action for further proceedings. 26 (AR 505-31). 27 testimony and the Dictionary of Occupational Titles ( DOT ) description (AR 5). (AR 1). On January 14, 2010, the Plaintiff then filed a civil The Court concluded that deviation between the VE s 28 2 1 of work the VE determined Plaintiff could perform created an unresolved 2 inconsistency 3 proceedings. 4 failed to explain deviations from the DOT in the VE s testimony and 5 failed to elicit testimony from the VE regarding the deviation. 6 517-24). that required (AR 516). remand for further administrative Specifically, the Court found that the ALJ (AR 7 8 The Court instructed the ALJ that, on remand, he must determine 9 whether Plaintiff can actually perform the requirements of the positions 10 identified given the limitations imposed by her left upper extremity, 11 or must elicit further testimony from a VE on this topic, or must 12 otherwise reevaluate his decision. (AR 524). 13 14 Pursuant to this Court s remand, the Appeals Council vacated the 15 ALJ s decision on November 13, 2010. 16 second hearing was held before the ALJ. 17 testified at the hearing. 18 testified. 19 of July 7, 2009 but that prior to that date, Plaintiff was capable of 20 performing her past relevant work. 21 [b]eginning on July 7, 2009, [Plaintiff s] residual functional capacity 22 has prevented [Plaintiff] from being able to perform past relevant 23 work. 24 considering [Plaintiff s] age, education, work experience, and residual 25 functional capacity, there are no jobs that exist in significant numbers 26 in the national economy that [Plaintiff] can perform. 27 ALJ concluded that [Plaintiff] was not disabled prior to July 7, 2009, (AR 430-41). (AR 377). (AR 534). (AR 422-36). On April 27, 2011, a (AR 420-43). Plaintiff A vocational expert also The ALJ found that Plaintiff was disabled as (AR 376). According to the ALJ, The ALJ also found that [a]s of July 7, 2009, 28 3 (AR 378). The 1 . . . but became disabled on that date and has continued to be disabled 2 through the date of [the ALJ s decision], and the ALJ awarded benefits 3 beginning on that date. 4 review by filing the instant action on June 19, 2012. (AR 378-79). Plaintiff requested judicial 5 6 III. 7 FACTUAL BACKGROUND 8 9 Plaintiff, who was fifty-five at the time of the second ALJ 10 hearing, has an eleventh-grade education and is able to communicate in 11 English. 12 In the past, Plaintiff worked as a counter person at a cheese shop, 13 cutting and wrapping cheese, stocking shelves, washing dishes, and 14 manning the cash register. 15 manicurist, telemarketer, and a chef without formal training. 16 432, 434, 435). 17 Plaintiff stated that she had not worked or sought work since May of 18 2006. 19 had not worked since the first hearing. (AR 36-37, 424). (AR 39). Plaintiff does not have a GED. (AR 37). (AR 449). Plaintiff also worked as a (AR 38, During the first hearing, in December of 2008, During the second hearing, Plaintiff stated that she (AR 429). 20 21 During the second hearing, Plaintiff also stated that her cervical 22 stenosis and inability to raise her dominant, left arm had not improved. 23 (AR 425). 24 better, in some regards they re the same, and in some they re worse. 25 (Id.). 26 and that her index and ring fingers sometimes turn white for several 27 hours, like there s no circulation at all there. According to Plaintiff, they definitely have not gotten Plaintiff stated that her arm shakes more, it locks up more 28 4 (Id.). Plaintiff 1 also stated that she has continued pain management treatment, has not 2 received any kind of occupational therapy, and has continued physical 3 therapy exercises although she is no longer under the care of a physical 4 therapist. (AR 429). 5 6 A. Plaintiff s Medical History 7 8 1. Physical Examinations 9 10 Plaintiff asserts that her health problems began in 2005 with a 11 pain in her back and radiating pain in her left arm. 12 According to Plaintiff, her condition steadily worsened until April 13 2006, when it became so severe that she had no feeling in her left arm 14 and could not move it. 15 Harbor-UCLA Medical Center ( Harbor ), where she was diagnosed with 16 disk osteophyte complex [with] severe NF [neural foraminal] stenosis 17 on the left [at] both C4-5 and C5-6 disc spaces. 18 underwent an anterior cervical discectomy and fusion that same month, 19 after which she reported the pain got better and saw some improvement 20 in her bicep strength. 21 Plaintiff still reported continuing pain in her back shoulder. 22 Later that same year, Plaintiff began physical therapy. 23 December 2006, a Harbor physician noted that Plaintiff s left hand 24 strength 25 continued disability status due to Plaintiff s nonfunctional left 26 upper arm. 27 although Plaintiff can move her fingers, her hand is weak and she showed (Id.). (AR 185). In May 2006, Plaintiff was referred to (AR 158, 192). significant (AR 43). (AR 195). Plaintiff Nonetheless, in August 2006, improvement, but still (Id.). (AR 190). In recommended In April 2007, a Harbor physician noted that 28 5 1 cannot hold things. Her [left] arm is so weak she cannot lift anything. 2 [Plaintiff] has had [occupational therapy] for exercises but has not had 3 improvement in function. She is very depressed . . . . (AR 178). 4 5 In May 2007, consultative state orthopedist Dr. Dorsey examined 6 Plaintiff, finding her to be a reliable historian. 7 Dr. Dorsey reported that following surgery, Plaintiff experienced a 8 fifty percent improvement. (AR 158). Plaintiff complained that she had 9 no sensation in her left thumb, a lesser degree of numbness in the other 10 fingers on her left hand, and sharp pain at night that would wake her 11 up, which she would attempt to treat by massaging her hand. (Id.). Dr. 12 Dorsey noted that there was no evidence of paravertebral spasm in 13 Plaintiff s cervical spine and that the range of motion of the cervical 14 spine was grossly normal. 15 no evidence of splinting or spasm, and again, the range of motion was 16 grossly normal. 17 showed decreased sensation to all fingers, but no significant swelling 18 or tenderness, and had the full range of normal motion. 19 Additionally, Plaintiff had a grossly normal range of motion in her 20 shoulders, elbows, wrists, hips, knees and ankles, and her gait was 21 normal. (Id.). (AR 159). (AR 158). Plaintiff s lumbar spine showed Dr. Dorsey reported that Plaintiff s left hand (Id.). (AR 159-60). 22 23 In his radiographic examination, Dr. Dorsey noted that Plaintiff s 24 C4-C5 disc space was markedly decreased and the C5-C6 disc space was 25 moderately decreased. 26 Plaintiff s vertebral heights were within normal limits, and all of the 27 remaining intervertebral disc spaces were normal, with no evidence of (AR 160). However, Dr. Dorsey found that all of 28 6 1 osteophyte formation or soft tissue swelling, fracture, or dislocation. 2 (AR 160). 3 result from her May 2006 operation and suffered from carpal tunnel 4 syndrome in her left hand. Dr. Dorsey determined that Plaintiff had a poor clinical (Id.). 5 6 Dr. Dorsey concluded, based on his examination and review of the 7 medical records, that Plaintiff could push, pull, lift and carry twenty 8 pounds occasionally and ten pounds frequently, and that she should be 9 able to stand six hours out of an eight-hour day. (AR 161). Dr. Dorsey 10 further determined that Plaintiff could bend and stoop occasionally, 11 finger frequently, and grip and grasp on a frequent, but not continuous, 12 basis. 13 feeling activities with her left upper extremity, but could not do any 14 overhead activities with the left upper extremity. According to Dr. Dorsey, Plaintiff could occasionally engage in (Id.). 15 16 On May 24, 2007, Dr. P.V. Matsuura, a non-examining physician, 17 completed a Physical Residual Functional Capacity Assessment. (AR 163- 18 69). Dr. Matsuura referred to Dr. Dorsey s report and reached the same 19 conclusions regarding Plaintiff s physical abilities and limitations. 20 (AR 163-65, 169). 21 22 On June 17, 2008, Dr. Mariam Kazemzadeh, who had treated Plaintiff 23 on several occasions at Harbor (see, e.g., AR 227-28, 235, 238), 24 completed 25 concerning Plaintiff. (AR 353-56). Dr. Kazemzadeh diagnosed Plaintiff 26 with C5-C6 27 determined that Plaintiff was permanently, totally disabled. a Physical paralysis Residual and, Functional referring 28 7 to a Capacity Questionnaire colleague s evaluation, (AR 1 353). According to Dr. Kazemzadeh, Plaintiff s MRI revealed that 2 [r]esolution of the prior disc protrusion at C4-C5 multilevel disc 3 osteophyte complex [was] causing mild left neural foraminal stenosis 4 [at] several levels. 5 Plaintiff could not lift or carry weight with her left arm, and that she 6 had limitations in reaching, handling and fingering with the same arm. 7 (AR 355). 8 ladders only rarely, she also reported that Plaintiff could twist, 9 stoop, (AR 353). Dr. Kazemzadeh determined that While Dr. Kazemzadeh stated that Plaintiff could climb bend, crouch and climb stairs frequently. (AR 355). 10 Dr. Kazemzadeh concluded that Plaintiff would likely miss four or more 11 workdays per month due to her condition. (AR 356). 12 13 In October 2008, Plaintiff began therapy with Rio Hondo Mental 14 Health ( Rio Hondo ) to address her depression. 15 reflected in her Rio Hondo initial assessment report, Plaintiff reported 16 that she felt hopeless and depressed; experienced crying spells, mood 17 swings, and racing thoughts; and had difficulty sleeping and suicidal 18 thoughts. 19 Seroquel (AR 50, 327, 329) and the antidepressant Remeron. 20 At the December 11, 2008 hearing, Plaintiff reported that she went to 21 therapy at Rio Hondo every couple of weeks. 2 (AR 331). (AR 331-37). As Plaintiff was prescribed the antipsychotic (AR 328). (AR 48). 22 23 \\ 24 \\ 25 2 At the first hearing, Plaintiff testified that in addition to depression, she also currently experienced pain in her back, left 27 shoulder, left arm, and neck and numbness in her left arm and hand. (AR 44-48). 28 8 26 1 On June 22, 2009, Dr. Rocely Ella Tamayo, M.D., conducted an 2 internal medicine consultative examination at the request of the Agency. 3 (AR 763). Dr. Tamayo reported that Plaintiff was restricted in pushing, 4 pulling, lifting, and carrying to about twenty pounds occasionally and 5 about ten pounds frequently with the right hand. 6 also reported that Plaintiff s ability to sit was unrestricted, while 7 standing and walking should be limited to six hours in an eight-hour 8 workday with normal breaks. 9 Plaintiff was unable to perform heavy lifting or repetitive work with 10 (Id.). (AR 767). Dr. Tamayo Finally, Dr. Tamayo concluded that her left hand and could not raise her left upper extremity. (AR 768). 11 2. Psychological Examinations 12 13 14 On June 23, 2009, Plaintiff was evaluated by Barbara Gayle, Ph.D., 15 at the Agency s request. (AR 763). Dr. Gayle concluded that although 16 Plaintiff would have mild cognitive limitations in her ability to work 17 because her overall intellectual capabilities fell in the borderline to 18 low average range, Plaintiff would be able to interact appropriately 19 with others and implement simple three-part tasks without supervision. 20 (See AR 374; see also AR 763-73). However, Dr. Gayle also reported that 21 [Plaintiff] cannot raise her left arm. 22 . . 23 shampoo her hair. She cannot pick up things . . She has to raise her left arm with her right hand to be able to (AR 764). 24 25 On July 7, 2009, Dr. R. Tashjian, M.D., evaluated Plaintiff s 26 medical record at the request of the Agency. 27 found that Plaintiff was moderately limited in her ability to understand 28 9 (AR 774). Dr. Tashjian 1 and remember detailed instructions, carry out detailed instructions, and 2 interact appropriately with the general public. 3 Tashjian also found that Plaintiff was not significantly limited in her 4 ability to remember locations and work-like procedures, understand and 5 remember very short and simple instructions, carry out very short and 6 simple instructions, maintain attention and concentration for extended 7 periods, 8 attendance, be punctual within customary tolerances, sustain an ordinary 9 routine without special supervision, work in coordination with or 10 proximity to others without being distracted by them, make simple work- 11 related decisions, complete a normal workday and workweek without 12 interruptions from psychologically based symptoms and to perform at a 13 consistent pace without an unreasonable number and length of rest 14 periods, ask simple questions or request assistance, accept instructions 15 and respond appropriately to criticism from supervisors, get along with 16 coworkers or peers without distracting them or exhibiting behavioral 17 extremes, maintain socially appropriate behavior and to adhere to basic 18 standards of neatness and cleanliness, respond appropriately to changes 19 in the work setting, be aware of normal hazards and take appropriate 20 precautions, travel in unfamiliar places or use public transportation, 21 and set realistic goals or make plans independently of others. 22 775). perform activities within a schedule, (AR 774-75). maintain Dr. regular (AR 23 24 B. Vocational Expert s Testimony 25 26 27 A vocational expert testified at Plaintiff s first hearing. 57-68). (AR The expert testified that Plaintiff worked as a sales clerk, 28 10 1 telephone solicitor, professional manicurist, and appointment clerk. 2 (AR 60-61). 3 of Plaintiff s vocational profile and RFC would not be able to perform 4 Plaintiff s past relevant work. 5 expert testified that such a person would be able to work as a parking 6 lot booth attendant. 7 that adding a requirement that such person would miss four days of work 8 per month due to pain, complications of depression would preclude 9 performance of any job existing in the national economy. The expert also testified that a hypothetical individual (Id.). (AR 65). However, the vocational Finally, the vocational expert testified (AR 715). 10 11 C. Lay Witness Testimony 12 13 On April 21, 2009, Rudy Carvajal, Plaintiff s friend, submitted a 14 third party function report. 15 at that time, he lived in the same house as Plaintiff and occasionally 16 shopped with Plaintiff. 17 time Plaintiff wakes up to the time Plaintiff goes to bed, Plaintiff 18 reads, watches television, sometimes attends therapy, and does laundry 19 as needed. 20 disabled, Plaintiff was able to cook. 21 that Plaintiff was more social before becoming disabled. 22 Carvajal further stated that Plaintiff now wakes with pain, has trouble 23 dressing herself due to arm pain, and cannot care for her hair without 24 propping her left arm on the wall. 25 meals, although she usually eats frozen meals and is not able to use 26 pots and pans. 27 laundry, but she does not have the strength to help with household (Id.). (AR 618-33). (AR 618). Mr. Carvajal reported that According to Mr. Carvajal, from the Mr. Carvajal also reported that before becoming (AR 620). (AR 619). (Id.). Mr. Carvajal stated (Id.). Mr. Plaintiff prepares her own Plaintiff makes her own bed and does her own 28 11 1 chores. (AR 620-21). According to Mr. Carvajal, Plaintiff is able to 2 drive, walk, and shop for food. 3 shopping two to three times a week, for thirty minutes at a time. 4 621). 5 handle a savings account, and use a checkbook and make money orders. 6 (Id.). 7 depressed, has become very withdrawn, and attends two one-hour 8 therapy sessions a week. (AR 622-23). 9 Plaintiff lifting, (AR 621). Plaintiff goes grocery (AR Additionally, Plaintiff is able to pay bills, count change, However, Mr. Carvajal reported that Plaintiff is always has trouble Mr. Carvajal reported that reaching, tasks, 10 concentrating, and using her hands. 11 lift up to five pounds but cannot lift her left arm above her head and 12 cannot complete tasks due to pain, loses concentration easily, and 13 suffers from numbness in hands. 14 of a mile before needing to rest, requires at least a ten minute walk 15 before beginning to walk again, can only pay attention for twenty 16 minutes at a time, and cannot follow written or spoken instructions 17 well. 18 handling stress and changes in routine. (Id.). (AR 623). completing (Id.). Plaintiff is able to Plaintiff can walk a quarter Mr. Carvajal also reported that Plaintiff has difficulty (AR 624). 19 20 Mr. Carvajal completed another third-party function report on May 21 13, 2009. In that report, Mr. Carvajal added that Plaintiff often cries 22 when faced with stressful situations. 23 reported that Plaintiff no longer likes to be around other people. 24 (Id.). 25 26 \\ 27 28 12 (AR 640). Mr. Carvajal also 1 D. Plaintiff s Testimony 2 3 At the first hearing, held in 2008, Plaintiff testified that her 4 health problems began in 2005, with a pain in her back and radiating 5 pain in her left arm. 6 steadily worsened until April 2006, when it became so severe that she 7 had no feeling in and could not move her left arm. 8 hearing Plaintiff also testified that she had not worked since 2006. 9 (AR 37). (AR 43). According to Plaintiff, her condition (Id.). At the first 10 11 At the second hearing, held in 2011, Plaintiff testified that her 12 condition had not improved. (AR 425). 13 her arm and fingers, Plaintiff stated that they definitely have not 14 gotten better, in some regards they re the same, and in some they re 15 worse. (Id.). Plaintiff also stated that the use of [her] arm is not 16 better, it shakes more, it locks up more and her index and ring fingers 17 turn[] white, like there s no circulation at al there, so [she doesn t] 18 know if . . . the nerve is pressed down on something that s causing that 19 but some . . . days [she] deal[s] with that for several hours. 20 425). 21 treatment for her condition, including for pain management, but had not 22 received any vocational training to help her reenter the workforce. (AR 23 428-29). \\ 26 \\ 27 (AR Further, Plaintiff testified that she was still receiving 24 25 Specifically, with respect to \\ 28 13 1 IV. 2 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 3 4 To qualify for disability benefits, a claimant must demonstrate a 5 medically determinable physical or mental impairment that prevents her 6 from engaging in substantial gainful activity3 and that is expected to 7 result in death or to last for a continuous period of at least twelve 8 months. 9 42 U.S.C. § 423(d)(1)(A)). Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998) (citing The impairment must render the claimant 10 incapable of performing the work she previously performed and incapable 11 of performing any other substantial gainful employment that exists in 12 the national economy. 13 1999) (citing 42 U.S.C. § 423(d)(2)(A)). Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 14 15 16 To decide if a claimant is entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. § 416.920. The steps are: 17 18 (1) Is the claimant presently engaged in substantial gainful 19 activity? 20 If not, proceed to step two. 21 (2) Is the If so, the claimant is found not disabled. claimant s impairment 22 claimant is found not disabled. 23 severe? If not, the three. 24 25 (3) Does the claimant s If so, proceed to step impairment meet or equal the requirements of any impairment listed at 20 C.F.R. Part 26 3 Substantial gainful activity means work that involves doing 27 significant and productive physical or mental duties and is done for pay or profit. 20 C.F.R. § 416.910. 28 14 1 404, Subpart P, Appendix 1? 2 found disabled. 3 (4) If so, the claimant is If not, proceed to step four. Is the claimant capable of performing h[er] past work? 4 If so, the claimant is found not disabled. 5 proceed to step five. 6 (5) Is the claimant able to do any other work? 7 claimant is found disabled. 8 If not, If not, the If so, the claimant is found not disabled. 9 10 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 262 F.3d 11 949, 953-54 (9th Cir. 2001); 20 C.F.R. § 416.920(b)-(g)(1). 12 13 The claimant has the burden of proof at steps one through four, and 14 the Commissioner has the burden of proof at step five. Bustamante, 262 15 F.3d at 953-54. 16 establishing an inability to perform the past work, the Commissioner 17 must show that the claimant can perform some other work that exists in 18 significant numbers in the national economy, taking into account the 19 claimant s RFC, age, education and work experience. 20 at 1100; 20 C.F.R. § 416.920(g)(1). 21 testimony of a vocational expert or by reference to the Medical- 22 Vocational Guidelines appearing in 20 C.F.R. Part 404, Subpart P, 23 Appendix 2 (commonly known as the Grids ). 24 F.3d 1157, 1162 (9th Cir. 2001). 25 (strength-related) 26 inapplicable and the ALJ must take the testimony of a vocational expert. 27 Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000). If, at step four, the claimant meets her burden of and Tackett, 180 F.3d The Commissioner may do so by the Osenbrock v. Apfel, 240 When a claimant has both exertional nonexertional 28 15 limitations, the Grids are 1 V. 2 THE ALJ S DECISION 3 4 Plaintiff filed an application for SSI on January 29, 2007. (AR 5 22). On December 24, 2008, the ALJ issued a decision denying benefits. 6 (AR 22-29). 7 denied Plaintiff s request for review, this Court reversed the ALJ s 8 decision and remanded the case for further administrative proceedings. 9 (AR 531). The Court explained that deviation between the VE s testimony 10 regarding the work Plaintiff could perform and the DOT descriptions of 11 that work created an unresolved inconsistency in the evidence. 12 516). 13 the deviation from the DOT and failed to elicit testimony from the VE 14 regarding that deviation. 15 that on remand, he must determine whether Plaintiff can actually 16 perform 17 limitations imposed by her left upper extremity, or must elicit further 18 testimony from a VE on this topic, or must otherwise reevaluate his 19 decision. However, on November 3, 2010, after the Appeals Council (AR Specifically, the Court concluded that the ALJ failed to explain the requirements (AR 517-24). of the The Court instructed the ALJ positions identified given the (AR 524). 20 21 Plaintiff appeared and testified at a second hearing on April 27, 22 2011. (AR 422-36). An impartial VE also testified at the hearing. (AR 23 430-41). 24 25 On remand, the ALJ correctly noted that the Appeals Council . . 26 . directed the [ALJ] to determine whether [Plaintiff] could actually 27 perform the requirements of the 28 16 positions identified, given the 1 limitations imposed by her left upper extremity, [and to] elicit further 2 testimony from a vocational expert on this topic, or . . . must 3 otherwise reevaluate his [d]ecision. (AR 366). The ALJ also correctly 4 noted that Plaintiff alleged a disability onset date of May 1, 2006. 5 (Id.). 6 7 The ALJ then employed the five-step sequential evaluation process 8 and concluded that Plaintiff was not disabled under the Social Security 9 Act prior to July 7, 2009 but was disabled as of that date. (AR 368- 10 78). At step one, the ALJ found that Plaintiff had not engaged in 11 substantial gainful activity since her alleged disability onset date of 12 May 1, 2006. 13 the severe impairments of neck/cervical spine pain disorder; left 14 trapezial area pain disorder; left thumb numbness and numbness in 15 fingers of the left hand; and depressive disorder, not otherwise 16 specified. 17 impairments listed in step two and found that, through the last-insured 18 date, none of them met or medically equaled a listed impairment. 19 369). The ALJ then found that, prior to July 7, 2009, Plaintiff had the 20 following RFC: (AR 368). (Id.). At step two, the ALJ found that Plaintiff had At step three, the ALJ throughly considered the 21 22 [Plaintiff] has the residual functional capacity to perform 23 light work, as defined in 20 CFR 416.967(b), in that she can 24 exert up to 20 pounds of force occasionally and/or up to 10 25 pounds of force frequently and/or a negligible amount of 26 force constantly to move objects. 27 walk up to 6 hours and sit up to 6 hours in an 8-hour workday 28 17 [Plaintiff] can stand and (AR 1 with normal breaks. 2 require climbing ladders, ropes or scaffolds, or crawling, 3 and no more than frequent climbing of ramps or stairs, 4 stooping, kneeling or crouching. [Plaintiff] is left-hand 5 dominant and can frequently lift, reach, push and pull up to 6 10 7 occasionally with her left upper extremity, but not over 8 shoulder height. 9 left upper extremity, but not over shoulder height, and can pounds of She can perform work that does not force finger and/or up to 20 pounds of force She can frequently handle objects with her 10 frequently and 11 extremity. [Plaintiff] can perform work that does not require 12 concentrated 13 extreme vibration or require operation of machinery with her 14 left upper extremity. exposure feel to objects extreme with cold, her and left upper exposure to 15 16 (AR 370). The ALJ also found that [Plaintiff s] medically determinable 17 impairments could reasonably be expected to cause the alleged symptoms; 18 however, [Plaintiff s] statements concerning the intensity, persistence 19 and limiting effects of these symptoms are not credible prior to July 20 7, 2009, to 21 functional capacity assessment. the extent, they are inconsistent with the residual (Id.) 22 23 The ALJ next found that, beginning on July 7, 2009, Plaintiff s 24 work would be limited to the performance of simple, routine, repetitive 25 tasks in a job that does not require more than occasional interaction 26 with the public. (AR 373). The ALJ also found that beginning on July 27 7, 2009, [Plaintiff s] allegations 28 18 regarding her symptoms and 1 limitations are generally credible. (Id.). Ultimately, the ALJ 2 concluded that these changes rendered Plaintiff disabled. 3 4 Next, at step four, the ALJ found that prior to July 7, 2009, 5 Plaintiff could return to her past work as a telephone solicitor, (DOT 6 No. 299.357-014), sedentary work, semi-skilled SVP 3. 7 ALJ relied on the VE s testimony in coming to this conclusion. 8 The ALJ explained that [Plaintiff] is able to perform [her past work 9 as a telephone solicitor] as actually and generally performed. (AR 376). The (Id.). (Id.). 10 At step five, the ALJ found that although [Plaintiff] is capable of 11 performing past relevant work, there are other jobs existing in the 12 national economy that [Plaintiff] is also able to perform. (Id.). 13 14 However, at step four, the ALJ also concluded that [b]eginning on 15 July 7, 2009, [Plaintiff s] residual functional capacity has prevented 16 [Plaintiff] from being able to perform past relevant work. 17 Finally, at step five, the ALJ also concluded that [a]s of July 7, 18 2009, considering [Plaintiff s] age, education, work experience, and 19 residual 20 significant 21 perform. 22 who is limited to the performance of simple, routine, repetitive tasks 23 in a job that does not require more than occasional interaction with the 24 public could not perform any jobs that exist in the national economy. 25 (AR 441). Accordingly, the ALJ found that [Plaintiff] was not disabled 26 prior to July 7, 2009, but became disabled on that date and has 27 continued to be disabled through the date of [the ALJ decision]. (Id.) functional numbers (AR 378). capacity, in the there national are no economy jobs that that (AR 377). exist [Plaintiff] in can The ALJ relied on the VE s testimony that someone 28 19 1 VI. 2 STANDARD OF REVIEW 3 4 Under 42 U.S.C. § 405(g), a district court may review the 5 Commissioner s decision to deny benefits. The court may set aside the 6 Commissioner s decision when the ALJ s findings are based on legal error 7 or are not supported by substantial evidence in the record as a whole. 8 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Smolen v. 9 Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). Substantial evidence is 10 more than a scintilla, but less than a preponderance. Reddick, 157 11 F.3d at 720. 12 accept as adequate to support a conclusion. 13 substantial evidence supports a finding, the court must consider the 14 record as a whole, weighing both evidence that supports and evidence 15 that detracts from the [Commissioner s] conclusion. Aukland, 257 F.3d 16 at 1035 (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). 17 If the evidence can reasonably support either affirming or reversing 18 that conclusion, the court may not substitute its judgment for that of 19 the Commissioner. It is relevant evidence which a reasonable person might Id. To determine whether Reddick, 157 F.3d at 720-21. 20 21 VII. 22 DISCUSSION 23 24 Plaintiff contends the ALJ erred for two reasons. First, Plaintiff 25 contends that the ALJ improperly determined that Plaintiff was not 26 disabled prior to July 7, 2009, i.e., Plaintiff challenges the ALJ's 27 finding that Plaintiff's onset date was July 7, 2009. 28 20 (Compl. Mem. at 1 8). Specifically, Plaintiff argues that [t]he ALJ failed to assign an 2 onset date that has anything to do with the record beyond the date on 3 which a cold medical record review took place. The Court should reverse 4 and remand for the setting of an onset date that correlates [with] and 5 has an explanation for the date selected. 6 alleges that the ALJ improperly reassessed Plaintiff s RFC on remand. 7 (Compl. Mem. at 9-14). 8 instructed to determine whether Plaintiff can perform the requirements 9 of the positions identified by the VE given Plaintiff s RFC. (Id.). Second, Plaintiff Plaintiff contends that, on remand, the ALJ was (Id.). 10 Specifically, Plaintiff argues that [o]nce this Court affirmed the 11 residual functional capacity findings from the first ALJ decision, the 12 Commissioner lacked the discretion to change the residual functional 13 capacity finding on remand except in unusual circumstances. 14 pointed to no new and material evidence or change in the law that would 15 permit him to reassess residual functional capacity on remand. (Compl. 16 Mem. at 13). The ALJ 17 18 For the reasons discussed below, the Court finds that the ALJ 19 failed to adequately support his conclusion that Plaintiff was disabled 20 as of July 7, 2009 rather than as of an earlier date. 21 Court orders that judgment be entered reversing the decision of the 22 Commissioner and remanding this matter for a reevaluation of Plaintiff s 23 disability onset date, consistent with this decision. 24 25 \\ 26 \\ 27 \\ 28 \\ 21 Accordingly, the 1 2 A. The Disability Onset Date Was Not Supported By Substantial Evidence 3 4 According to Plaintiff, [t]he ALJ failed to assign an onset date 5 that has anything to do with the record beyond the date on which a cold 6 medical record review took place. 7 ALJ s decision should be reversed and remanded for the setting of an 8 onset date that correlates [to the record] and has an explanation for 9 the date selected. (Id.). (Id.). Plaintiff argues that the Defendant argues that with the assistance 10 of the examining psychologist and State agency psychiatrist, the ALJ was 11 able to confirm that Plaintiff s mental limitations existed as of July 12 7, 2009. 13 disability onset date was not supported by substantial evidence. (Ans. Mem. at 4). However, the Court finds that the 14 15 An ALJ s determination of a plaintiff s disability onset date must 16 be supported by substantial evidence. Swanson v. Secretary of Health 17 and Human Services, 763 F.2d 1061, 1064 (9th Cir. 1985). 18 the plaintiff challenged the ALJ s determination of an onset date as 19 unsupported by substantial evidence. 20 claim that an earlier date should have been set, stating: In Swanson, The Ninth Circuit rejected the 21 22 While the ALJ could have chosen an earlier onset date based 23 on 24 disorders, the question we face is whether the chosen onset 25 date is supported by substantial evidence, not whether an 26 earlier date could have been supported. the conflicting evidence 27 28 22 as to appellant s previous 1 Id. Accordingly, where a plaintiff alleges that her actual disability 2 onset date occurred earlier than that found by the ALJ, the ALJ s 3 determination will be upheld if it is supported by substantial evidence. 4 5 Further, under SSR 83 20, factors relevant to the determination of 6 the onset date include the individual s allegations, the work history, 7 and the medical evidence. These factors are to be considered together; 8 however, a plaintiff s allegations or the last date that the plaintiff 9 worked is significant in determining onset only if it is consistent 10 with the severity of the condition(s) shown by the medical evidence. 11 Id., 1983 WL 31249, at *1. 12 definite concerning the onset date and medical inferences need to be 13 made, SSR 83 20 requires the administrative law judge to call upon the 14 services of a medical advisor and to obtain all evidence which is 15 available to make the determination. Armstrong v. Comm r of Soc. Sec. 16 Admin., 160 F.3d 587, 590 (9th Cir. 1998) (remanding case to the ALJ 17 with instruction to call a medical expert to determine when [plaintiff] 18 became disabled where the record was unclear as to onset date); see 19 also Morgan v. Sullivan, 945 F.2d 1079, 1082-83 (9th Cir. 1991) 20 (reversing in part the ALJ s determination of an onset date because the 21 ALJ 22 Additionally, where medical testimony is unhelpful . . . , the ALJ 23 should explor[e] lay evidence including the testimony of family, 24 friends or former employers to determine the onset date. 25 160 F.3d at 590. failed to rely on However, [i]f the medical evidence is not the assistance of a medical expert). Armstrong, 26 27 Here, the ALJ considered four factors in determining Plaintiff s 28 disability onset date. Specifically, the ALJ considered Plaintiff s (1) 23 1 activities of daily living; (2) social functioning; (3) concentration, 2 persistence or pace; and (4) episodes of decompensation. 3 With respect to the first three factors, the ALJ found that there was 4 insufficient evidence to find that [Plaintiff] had any limitation in 5 these areas prior to July 07 [sic], 2009. 6 fourth, the 7 decompensation, which have been of extended duration. (Id.). However, 8 the ALJ also found that there is evidence that as of July 07 [sic], 9 2009, [Plaintiff] had moderate difficulties with social functioning and 10 concentration, persistence or pace. However, activities of daily living 11 were 12 decompensation that have been of extended duration. 13 also 14 disability onset date. 15 disability onset date was July 7, 2009 is not supported by substantial 16 evidence. found (Id.). (AR 369). With respect to the ALJ found that [Plaintiff] has experienced no episodes of to reviewed be none to Plaintiff s mild medical and there record were before no episodes (Id.). of The ALJ determining her However, the ALJ s conclusion that Plaintiff s 17 18 1. Plaintiff s Physical Condition 19 20 In concluding that Plaintiff was not disabled prior to July 7, 21 2009, the ALJ found that [o]bjective medical evidence does not fully 22 support [Plaintiff s] claims. 23 that while there was support for a disability onset date of July 7, 24 2009, the record did not support a disability onset date prior to July 25 7, 2009. (AR 371). Specifically, the ALJ found 26 27 28 The ALJ explained that Plaintiff underwent a consultative orthopedic evaluation by Dr. Thomas Dorsey, M.D., in May 2007, during 24 1 which a cervical spine examination revealed no evidence of paravertebral 2 spasm; grossly normal range of motion; and a scar on the left side 3 anteriorly. (Id.). 4 results an 5 decreased sensation to all fingers compared to the opposite side; 6 however, the thumb sensation was more markedly decreased, and the left 7 thumb versus small finger sensory test was positive. 8 also AR 9 [Plaintiff s] 10 [of 159). The ALJ emphasized that Dr. Dorsey found that examination of Additionally, neurological Plaintiff s as the ALJ examination noted, were [Plaintiff s] extremity range of motion. left hand] (See id.; see the normal, indicated results of as well as (See id.; see also AR 160. 11 12 The ALJ also observed that on December 27, 2006, Plaintiff s 13 physical therapist reported that Plaintiff was able to assume correct 14 sitting and standing posture after receiving treatment. 15 see also AR 183). 16 of [Plaintiff s] cervical spine, obtained in August 2006, illustrated 17 resolution of the prior disc protrusion at C4-5 and multi-level disc 18 osteophyte complex causing only mild left neural foraminal stenosis at 19 several levels. 20 observed that [a] follow up magnetic resonance imaging of [Plaintiff s] 21 cervical 22 worsening when compared to the prior exam. 23 802-03). 24 improved with therapy, she voluntarily stopped receiving treatment in 25 January of 2009. 26 ALJ, Plaintiff s failure to follow through on her therapist s advice to 27 continue treatment does not suggest an individual willing to attempt 28 any treatment modality to relieve pain. spine (See AR 371; The ALJ also noted that magnetic resonance imaging (See AR 371; see also AR 257, 278). done on August 10, 2009 Further, the ALJ demonstrated only slight (See AR 371; see also AR The ALJ also reasoned that although Plaintiff s condition (See AR 372; see also AR 798-99). 25 (AR 372). According to the 1 Finally, the ALJ gave considerable weight to the opinion of Dr. 2 Rocely Ella 3 consultative examination at the request of the Agency on June 22, 2009. 4 (See AR 375; see also AR 763). 5 that Plaintiff was restricted in pushing, pulling, lifting, and carrying 6 about twenty pounds occasionally and about ten pounds frequently with 7 the right hand. 8 reported 9 standing and walking should be limited to six hours in an eight-hour that Tamayo, M.D., who conducted an internal As the ALJ noted, Dr. Tamayo reported (See AR 375; see also AR 767). Plaintiff s medicine ability to (AR 375). sit was Dr. Tamayo also unrestricted, while 10 workday with normal breaks. Finally, as the ALJ observed, 11 Dr. Tamayo concluded that Plaintiff was unable to perform heavy lifting 12 or repetitive work with her left hand and could not raise her left upper 13 extremity. (See AR 375; see also AR 768). 14 15 2. Plaintiff s Psychological Condition 16 17 As for Plaintiff s psychological condition, the ALJ accurately 18 noted that on June 23, 2009, Plaintiff was evaluated by Barbara Gayle, 19 Ph.D., at the Agency s request. 20 emphasized Dr. Gayle s report that Plaintiff s IQ fell in the borderline 21 to low average range and would be able to interact appropriately with 22 others and implement simple three-part tasks without supervision. (AR 23 374; see also AR 763-773). 24 Gayle also reported that [Plaintiff] cannot raise her left arm. 25 cannot pick up things. . . . 26 right hand to be able to shampoo her hair. (See AR 374; see also AR 774). The ALJ However, the ALJ failed to note that Dr. She She has to raise her left arm with her 27 28 26 (AR 764). 1 Finally, in setting Plaintiff s disability onset date, the ALJ gave 2 the most weight to the opinion of non-examining consultant Dr. R. 3 Tashjian, M.D., who evaluated Plaintiff s record on July 7, 2009. (AR 4 374). 5 opinion with respect to [Plaintiff s] functional limitations is pivotal 6 in 7 therefore, her subsequent ability to perform past relevant work or other 8 work pursuant to the Vocational Expert s testimony. 9 ALJ noted, Dr. Tashjian found that Plaintiff was moderately limited in 10 her ability to understand and remember detailed instructions, carry out 11 detailed instructions, and interact appropriately with the general 12 public. 13 significant weight to any evaluations conducted after July 7, 2009. 14 (See AR 375). Indeed, the ALJ opined that [a]pplication of Dr. Tashjian s determining [Plaintiff s] residual functional (See id.; see also AR 774-776). capacity (AR 375). and, As the The ALJ did not give 15 16 3. Analysis 17 18 The Swanson decision controls the outcome here. As discussed 19 above, the plaintiff in Swanson alleged that his actual disability onset 20 date was earlier than the onset date found by the ALJ. 21 Circuit explained that an ALJ s determination of a disability onset date 22 will be upheld if it is supported by substantial evidence. Swanson, 763 23 F.2d at 1064. The Ninth Circuit then rejected the claim that an earlier 24 date should have been set, stating that [w]hile the ALJ could have 25 chosen an earlier onset date based on the conflicting evidence as to 26 appellant s previous disorders, the question we face is whether the 27 28 27 The Ninth 1 chosen onset date is supported by substantial evidence, not whether an 2 earlier date could have been supported. 4 Id. 3 4 Here, however, the disability onset date of July 7, 2009 is not 5 supported by substantial evidence. The Court finds that the ALJ relied 6 upon medical evidence that is not definitive concerning the onset date. 7 Armstrong, 160 F.3d at 590. 8 9 Even if the ALJ s summary of the record is accurate, it does not 10 support a disability onset date of July 7, 2009 instead of an earlier 11 date. 12 date by surveying medical exams that occurred at several dates prior to 13 July 7, 2009 and concluding that Plaintiff was not disabled at the time 14 of those exams. 15 on July 7, 2009 because that is when a non-examining physician reported 16 that Plaintiff would have moderate difficulty appropriately interacting 17 with others. 18 empathized that on June 23, 2009, an examining doctor concluded that 19 Plaintiff would be able to interact appropriately with others. 20 374; see also AR 763-773). 21 that Plaintiff s overall RFC did not change as of July 7, 2009, except 22 that Plaintiff could no longer perform tasks that require more than 23 occasional interaction with the public. As discussed above, the ALJ arrived at the July 7, 2009 onset Notably, the ALJ found that Plaintiff became disabled (See AR 375; see also AR 774-776). The ALJ also (See AR Further, as discussed above, the ALJ found (AR 373). 24 25 Although the ALJ relied upon the non-examining physician s report 26 that Plaintiff was unable to interact with others on July 7, 2009, there 27 4 The Swanson court also noted that the onset date is not necessarily the same as the date of diagnosis. Id. at 1065. 28 28 1 is a lack of evidence to support the conclusion that Plaintiff was 2 unable to interact with the public as of July 7, 2009 but not June 23, 3 2009. 4 onset date. 5 [Plaintiff] is able to interact appropriately with others. 6 (emphasis added). 7 Absent evidence of a triggering event or some other explanation of 8 deteriorating mental health between June 23, 2009 and July 7, 2009, the 9 record does not demonstrate that Plaintiff was disabled on July 7, 2009 10 Indeed, the June 23, 2009 report is not definite concerning the The report merely states that [o]bservation suggests (AR 773) No other medical reports arrive at this conclusion. but not a few weeks prior to that. 11 12 Additionally, given the above, it is clear that the ALJ inferred 13 Plaintiff s disability onset date. However, SSR 83-20 provides that 14 [a]t the hearing, the administrative law judge . . . should call on the 15 services of a medical advisor when onset must be inferred. 16 information in the file indicating that additional medical evidence 17 concerning onset is available, such evidence should be secured before 18 inferences are made. 19 160 F.3d at 589-90. 20 should means must. 21 concerning the onset date and medical inferences need to be made, SSR 22 83-20 requires the administrative law judge to call upon the services 23 of a medical advisor to obtain all evidence which is available to make 24 the determination. 25 marks and citations omitted); 26 841, 848 (9th Cir. 1991) ( In the event that the medical evidence is not 27 definite concerning the onset date and medical inferences need to be 28 made, SSR 83 20 requires the administrative law judge to call upon the If there is Id., 1983 WL 31249, at *1; see also Armstrong, The Ninth Circuit has held that in this context If the medical evidence is not definite Armstrong, 160 F.3d at 590 (internal quotation see also DeLorme v. Sullivan, 924 F.2d 29 1 services of a medical advisor and to obtain all evidence which is 2 available to make the determination. 3 available, then lay evidence may be obtained. ). 4 not call on the services of a medical advisor at the hearing. If medical evidence is not However, the ALJ did 5 6 As discussed above, the ALJ improperly determined that Plaintiff s 7 disability onset date was July 7, 2009. The Court therefore remands for 8 a reevaluation of Plaintiff s disability onset date consistent with this 9 decision.5 See also Nolen v. Sullivan, 939 F.2d 516, 520 (7th Cir. 10 1991) (where Secretary failed 11 determination of date 12 redetermination of onset date). onset to adequate disability, of provide case reason for remanded for 13 14 B. The ALJ Appropriately Reevaluated Plaintiff s RFC 15 16 Plaintiff also contends that, on remand, the ALJ was instructed to 17 determine 18 positions identified by the VE given Plaintiff s RFC. 19 9-14). Specifically, Plaintiff argues that [o]nce this Court affirmed 20 the residual functional capacity findings from the first ALJ decision, 21 the 22 functional capacity finding on remand except in unusual circumstances. 23 The ALJ pointed to no new and material evidence or change in the law 24 that would permit him to reassess residual functional capacity on 25 remand. 26 whether Commissioner Plaintiff lacked the (Compl. Mem. at 13). can perform discretion the to requirements change of (Compl. Mem. at the residual However, Plaintiff s claim fails. 5 the This The Court observes that, on remand, the ALJ may solicit the 27 opinion of a medical expert to obtain all evidence which is available to make the determination of Plaintiff s disability onset date. See 28 SSR 83-20, 1983 WL 31249, at *1; see also Armstrong, 160 F.3d at 590. 30 1 Court s prior order required that the ALJ must, [o]n remand, . . . 2 determine whether Plaintiff can actually perform the requirements of the 3 positions identified given the limitations imposed by her left upper 4 extremity, or must elicit further testimony from a VE on this topic, or 5 must otherwise re-evaluate his decision. 6 Thus, the Court did not preclude the ALJ from reassessing Plaintiff s 7 RFC on remand. (AR 412) (emphasis added). 8 9 Finally, Plaintiff claims that the law of the case doctrine 10 prohibits reevaluation of an RFC on remand. 11 Plaintiff, a court is precluded from reconsidering issues that have 12 already been decided by the same court or a higher court in the same 13 case. 14 not an inexorable command. 15 803, 813 (9th Cir. 2009). 16 explained, [a] court may depart from the law of the case if . . . the 17 first decision was clearly erroneous. 18 189 F.3d 825, 827 (9th Cir. 1999). 19 the case where there are changed circumstances or the evidence on remand 20 is substantially different. 21 876 (9th Cir. 1997). (Compl. Mem. at 12). Specifically, according to However, the law of the case doctrine is United States v. Van Alstyne, 584 F.3d As the Ninth Circuit has consistently See United States v. Scrivner, A court may depart from the law of United States v. Alexander, 106 F.3d 874, 22 23 Here, there was significantly more medical evidence on remand, 24 including mental health treatment records, a psychological evaluation, 25 an orthopedic evaluation, and an internal medicine evaluation. 26 347-352, 755-773, 873-877). 27 proposition that when a case is remanded due to an error at step five 28 of the five step evaluation process, an ALJ cannot change a finding he (AR Plaintiff cites Ischay v. Barnhart for the 31 1 made at step one through four. (See Compl. Mem. at 12) (citing Ischay 2 v. Barnhart, 383 F. Supp. 2d 1199, 1218-19 (C.D. Cal. 2005)). 3 Ischay involved a remand order so narrow as to only permit reevaluation 4 of step five. 5 was solely for purposes of permitting the ALJ to re-determine whether 6 Plaintiff was disabled at step five ) (emphasis in original). As 7 discussed above, this Court s remand order was much broader. 8 412) (allowing ALJ to otherwise re-evaluate his decision on remand). 9 Therefore, the law of the case doctrine would not prohibit the ALJ from Id. at 1219 (noting that it was clear that the remand 10 reconsidering 11 appropriate for the ALJ to reassess Plaintiff s RFC. 12 F.3d at 876. Plaintiff s RFC on \\ 15 \\ 16 \\ 17 \\ 18 \\ 19 \\ 20 \\ 21 \\ 22 \\ 23 \\ 24 \\ 25 \\ 26 \\ 27 \\ 28 remand. Plaintiff s second claim fails. 13 14 However, \\ 32 Accordingly, (See AR it was Alexander, 106 1 VIII. 2 CONCLUSION 3 4 Consistent with the foregoing, IT IS ORDERED that judgment be 5 entered REVERSING the decision of the Commissioner and REMANDING this 6 matter for reevaluation of Plantiff s disability onset date, consistent 7 with this decision. 8 serve copies of this Order and the Judgment on counsel for both parties. IT IS FURTHER ORDERED that the Clerk of the Court 9 10 11 12 DATED: April 30, 2013. 13 /S/ ______________________________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 14 15 16 17 THIS MEMORANDUM IS NOT INTENDED FOR PUBLICATION NOR IS IT INTENDED TO BE INCLUDED IN OR SUBMITTED TO ANY ONLINE SERVICE SUCH AS WESTLAW OR LEXIS. 18 19 20 21 22 23 24 25 26 27 28 33
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