Mena v. Colvin, No. 1:2015cv03129 - Document 20 (E.D. Wash. 2016)

Court Description: ORDER granting 12 Plaintiff's Motion for Summary Judgment. Defendant's 17 Motion for Summary Judgment is denied. The matter is remanded to the Commissioner for additional proceedings. Signed by Magistrate Judge John T. Rodgers. (KW, Case Administrator)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 10 BENJILEI MENA, No. 1:15-CV-03129-JTR Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 11 12 13 14 15 v. CAROLYN W. COLVIN, Commissioner of Social Security, Defendant. 16 17 BEFORE THE COURT are cross-Motions for Summary Judgment. ECF 18 No. 12, 17. Attorney D. James Tree represents Benjilei Estelle Mena (Plaintiff); 19 Special Assistant United States Attorney Daphne Banay represents the 20 Commissioner of Social Security (Defendant). The parties have consented to 21 proceed before a magistrate judge. ECF No. 4. After reviewing the administrative 22 record and the briefs filed by the parties, the Court GRANTS, in part, Plaintiff’s 23 Motion for Summary Judgment; DENIES Defendant’s Motion for Summary 24 Judgment; and REMANDS the matter to the Commissioner for additional 25 proceedings pursuant to 42 U.S.C. § 405(g). 26 JURISDICTION 27 Plaintiff filed an application for Disability Insurance Benefits (DIB) on 28 September 8, 2011, alleging disability since March 2, 2005, due to a back injury, ORDER GRANTING PLAINTIFF’S MOTION . . . - 1 1 neck injury, posttraumatic stress disorder (PTSD), ankle injury, depression, 2 agoraphobia, and memory loss. Tr. 206-212, 254, 258. The application was 3 denied initially and upon reconsideration. Tr. 125-127, 134-138. Administrative 4 Law Judge (ALJ) Larry Kennedy held a hearing on October 30, 2013, and heard 5 testimony from Plaintiff and vocational expert Kimberly Mullinax. Tr. 42-91. At 6 the hearing, Plaintiff was represented by counsel and requested that her onset date 7 be amended to June 20, 2011. Tr. 47-48. The ALJ issued an unfavorable decision 8 on November 22, 2013. Tr. 71-36. The Appeals Council denied review on May 9 22, 2015. Tr. 1-6. The ALJ’s November 22, 2013, decision became the final 10 decision of the Commissioner, which is appealable to the district court pursuant to 11 42 U.S.C. § 405(g). Plaintiff filed this action for judicial review on July 21, 2015. 12 ECF No. 1. 13 STATEMENT OF FACTS 14 The facts of the case are set forth in the administrative hearing transcript, the 15 ALJ’s decision, and the briefs of the parties. They are only briefly summarized 16 here. 17 Plaintiff was 45 years old at the amended date of onset. Tr. 206. Plaintiff 18 completed her GED in 1984 and was trained as a certified nursing assistant. Tr. 19 259, 462. Plaintiff’s work history included home/personal health care and 20 cashiering. Tr. 276-287. Plaintiff reported that she stopped working in October of 21 2007 because of her condition. Tr. 258. 22 23 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 24 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 25 1039 (9th Cir. 1995). The Court reviews the ALJ’s determinations of law de novo, 26 deferring to a reasonable interpretation of the statutes. McNatt v. Apfel, 201 F.3d 27 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed only if it is 28 not supported by substantial evidence or if it is based on legal error. Tackett v. ORDER GRANTING PLAINTIFF’S MOTION . . . - 2 1 Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as 2 being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put 3 another way, substantial evidence is such relevant evidence as a reasonable mind 4 might accept as adequate to support a conclusion. Richardson v. Perales, 402 5 U.S. 389, 401 (1971). If the evidence is susceptible to more than one rational 6 interpretation, the court may not substitute its judgment for that of the ALJ. 7 Tackett, 180 F.3d at 1097. Nevertheless, a decision supported by substantial 8 evidence will be set aside if the proper legal standards were not applied in 9 weighing the evidence and making the decision. Brawner v. Secretary of Health 10 and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). If substantial evidence 11 supports the administrative findings, or if conflicting evidence supports a finding 12 of either disability or non-disability, the ALJ’s determination is conclusive. 13 Sprague v. Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). 14 SEQUENTIAL EVALUATION PROCESS 15 The Commissioner has established a five-step sequential evaluation process 16 for determining whether a person is disabled. 20 C.F.R. § 404.1520(a); see Bowen 17 v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through four, the burden of 18 proof rests upon the claimant to establish a prima facie case of entitlement to 19 disability benefits. Tackett, 180 F.3d at 1098-1099. This burden is met once the 20 claimant establishes that physical or mental impairments prevent her from 21 engaging in her previous occupations. 20 C.F.R. § 404.1520(a)(4). If the claimant 22 cannot do her past relevant work, the ALJ proceeds to step five, and the burden 23 shifts to the Commissioner to show that (1) the claimant can make an adjustment to 24 other work, and (2) specific jobs exist in the national economy which the claimant 25 can perform. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193-1194 26 (2004). If the claimant cannot make an adjustment to other work in the national 27 economy, a finding of “disabled” is made. 20 C.F.R. § 404.1520(a)(4)(v). 28 ORDER GRANTING PLAINTIFF’S MOTION . . . - 3 1 2 3 ADMINISTRATIVE DECISION On November 22, 2015, the ALJ issued a decision finding Plaintiff was not disabled as defined in the Social Security Act. 4 At step one, the ALJ found Plaintiff had not engaged in substantial gainful 5 activity from the originally alleged onset date of March 2, 2005, through her date 6 last insured of June 30, 2012. Tr. 19. 7 At step two, the ALJ determined Plaintiff had the following severe 8 impairments: lumbar spine degenerative disc disease with radiculopathy, cervical 9 spine degenerative disc disease, obesity, anxiety disorder with symptoms of panic 10 and PTSD, and depressive disorder. Tr. 19. 11 At step three, the ALJ found Plaintiff did not have an impairment or 12 combination of impairments that met or medically equaled the severity of one of 13 the listed impairments. Tr. 22. 14 At step four, the ALJ assessed Plaintiff’s residual function capacity and 15 determined she could perform a range of light work with the following limitations: 16 The claimant can lift up to twenty pounds occasionally and lift and/or carry up to ten pounds frequently; stand and/or walk about six hours in an eight-hour day with normal breaks; and sit for about six hours in an eight-hour day with normal breaks. She can occasionally balance, stoop, kneel, and crouch, and cannot crawl or climb ramps, stairs, ladders, ropes, or scaffolds. The claimant must avoid concentrated exposure to vibrations and hazards. The claimant can perform simple, routine tasks and follow short, simple instructions, she can perform work that needs little or no judgment, and perform simple duties that can be learned on the job in a short period. The claimant has average ability to perform sustained work activities (i.e. can maintain attention and concentration; persistence and pace) in an ordinary work setting on a regular and continuing basis (i.e. eight hours a day, for five days a week, or an equivalent work schedule) within the customary tolerances of employers rules regarding sick leave and absence. She needs a work environment that is predictable and with infrequent work setting changes. The claimant also needs a work environment with minimal supervisor contact. (Minimal contact does not preclude all contact, 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING PLAINTIFF’S MOTION . . . - 4 rather it means contact does not occur regularly. Minimal contact also does not preclude simple and superficial exchanges and does not preclude being in proximity to the supervisor). She can work in proximity to a few co-workers but not in a cooperative or team effort. She needs a work environment that requires minimal interactions with a few co-workers. The claimant would not deal with the general public as in a sales position or where the general public is frequently encountered as an essential element of the work process. Incidental contact of a superficial nature with the general public is not precluded. 1 2 3 4 5 6 7 8 Tr. 24-25. The ALJ identified Plaintiff’s past relevant work as a nurse assistant 9 and concluded that Plaintiff was not able to perform this work. Tr. 34. At step five, the ALJ determined that, considering Plaintiff’s age, education, 10 11 work experience and residual functional capacity, and based on the testimony of 12 the vocational expert, there were other jobs that exist in significant numbers in the 13 national economy Plaintiff could perform, including the jobs of cleaner 14 housekeeping, hand packager, and mail clerk. Tr. 35. The ALJ concluded Plaintiff 15 was not under a disability within the meaning of the Social Security Act at any 16 time from March 2, 2005, the originally alleged date of onset, through June 30, 17 2012, the date Plaintiff was last insured for DIB. Tr. 36. 18 ISSUES The question presented is whether substantial evidence supports the ALJ’s 19 20 decision denying benefits and, if so, whether that decision is based on proper legal 21 standards. Plaintiff contends the ALJ erred by (1) failing to consider Plaintiff’s left 22 ankle injury as a severe impairment; (2) failing to properly consider Plaintiff’s 23 credibility; and (3) failing to properly consider and weigh medical source opinions. 24 DISCUSSION 25 26 27 28 A. Left Ankle Injury Plaintiff asserts that the ALJ erred by failing to discuss Plaintiff’s left ankle injury and failing to find it severe at step two. ECF No. 12 at 18-20. Step two is “a de minimis screening device [used] to dispose of groundless ORDER GRANTING PLAINTIFF’S MOTION . . . - 5 1 claims.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). An impairment is 2 “not severe” if it does not “significantly limit” the ability to conduct “basic work 3 activities.” 20 C.F.R. § 404.1521(a). “An impairment or combination of 4 impairments can be found not severe only if the evidence establishes a slight 5 abnormality that has no more than a minimal effect on an individual’s ability to 6 work.” Smolen, 80 F.3d at 1279. “[T]he ALJ must consider the combined effect 7 of all of the claimant’s impairments on her ability to function without regard to 8 whether each alone was sufficiently severe.” Id. at 1290. 9 Here, Plaintiff alleged a left ankle injury as one of the physical conditions 10 that limited her ability to work. Tr. 258. Despite this allegation, the ALJ did not 11 consider Plaintiff’s ankle injury anywhere in his step two determination. Tr. 19- 12 22. In fact, the ALJ’s only mention of Plaintiff’s ankle throughout his decision is 13 in his summary of her testimony at the October 30, 2013, hearing. Tr. 25. This 14 testimony was rejected as less than fully credible. Id. 15 The medical evidence shows that Plaintiff twisted her left ankle on January 16 13, 2003. Tr. 459. At the time, Plaintiff was diagnosed with a grade 2 sprain of 17 the left ankle and x-rays were reported as normal. Id. An MRI showed a “[s]mall 18 abnormal fluid collection adjacent to palpable painful lump along lateral ankle, 19 possibly related to calcaneofibular ligament disruption or peroneal reticulum tear.” 20 Id. In April of 2003, Plaintiff was diagnosed with chronic ligament laxity in her 21 left ankle and surgical repair was recommended. Id. Plaintiff’s first surgery was 22 done in May of 2003. Id. In April of 2004, after continued complaints of left 23 ankle pain, Plaintiff was diagnosed with scarring in the Achilles tendon and was 24 told her pain could be repaired with surgery. Id. In May 2004, Plaintiff was 25 diagnosed with a sural nerve entrapment and given injections, which provided her 26 “excellent pain relief for about six hours.” Id. Plaintiff underwent her second 27 ankle surgery on August 16, 2004, and reported that the position of her foot 28 improved allowing her to walk straight, but she did not experience significant pain ORDER GRANTING PLAINTIFF’S MOTION . . . - 6 1 relief. Tr. 460. She then received an additional injection, which provided some 2 relief for about two months. Id. Plaintiff returned to work in September of 2004 3 and continued to receive injections. Id. 4 In a physical evaluation on December 2, 2005, Plaintiff had a limited range 5 of motion in all four directions in the left ankle,1 the ligaments were stable to 6 anterior drawer and talar tilt stress tests, there was mild tenderness at the plantar 7 heel pad, and no tenderness along the plantar fascial insertion. Tr. 463. Strength 8 testing was normal except for some lateral deviation with weakness of the lateral 9 ankle area estimated at 4/5. Tr. 464. Sensation testing revealed decreased 10 sensation to pinprick in the forefoot beginning at the ankle and involving the sole 11 and dorsum of the foot and toes. Tr. 464-465. She had normal sensation in the 12 heel region and along the Achilles tendon. Tr. 465. Her deep tendon reflexes were 13 normal with some reported discomfort on the left with the Achilles tendon 14 assessment. Id. Routine and tandem ambulation was performed in “an adequate 15 fashion,” with a mild decreased stance phase during routine ambulation, but not 16 during tandem walking. Id. Following the evaluation, it was determined that the 17 lateral ligaments had been adequately stabilized, there was some residual 18 tenderness of the ligaments, there was evidence of tendinitis in the posterior tibial 19 and peroneal tendons, and mild Achilles tendinitis was present. Id. Additionally, 20 Plaintiff was determined to have morton’s neuroma in the left 2nd web space and 21 planar heel-pad inflammation that was unrelated to the original left ankle injury. 22 Id. It was determined that Plaintiff’s left foot was fixed and stable and Plaintiff 23 had reached maximum medical improvement as of the December 5, 2005, 24 25 1 See 1 DAVID A. MORTON, III, M.D., SOCIAL SECURITY DISABILITY MEDICAL 26 TESTS 59-60 (1st ed. 2015) (the Court relied on this section to compare the 27 December 2, 2005, range of motion results with the section’s “normal” range of 28 motion results to determine that Plaintiff exhibited a reduced range of motion). ORDER GRANTING PLAINTIFF’S MOTION . . . - 7 1 evaluation. Tr. 468. It was determined that Plaintiff had a 9% impairment of the 2 left lower extremity due to the left ankle injury. Tr. 469-470. 3 On October 2, 2006, Plaintiff presented to Roy Gondo, M.D., with 4 complaints of left ankle pain. Tr. 429. A physical examination revealed that the 5 ankle was tender to the touch, but no greater laxity in the ankle was noted. Tr. 430. 6 On February 13, 2007, Plaintiff returned to Dr. Gondo with complaints of left 7 ankle pain and difficulty walking. Tr. 422. Dr. Gondo noted that Plaintiff was 8 limping. Id. On March 23, 2007, Plaintiff again presented to Dr. Gondo with 9 complaints of left ankle pain and reported that she occasionally used crutches when 10 her ankle pain worsened. Tr. 421. Dr. Gondo’s physical evaluation did not 11 include any mention of Plaintiff’s gait or ankle testing. Id. On March 26, 2007, 12 Plaintiff again returned to Dr. Gondo with complaints of left ankle pain. Tr. 420. 13 Plaintiff was unable to walk for her physical examination. Id. On April 12, 2007, 14 Plaintiff presented to Dr. Gondo with complaints of left ankle pain, and reported 15 she was doing TENS type treatment. Tr. 419. Dr. Gondo noted that her gait was 16 antalgic favoring her left side. Id. 17 On June 23, 2008, a physical evaluation revealed a gait cycle favoring the 18 left foot. Tr. 529. Plaintiff was unable to walk on hells and toes. Tr. 531. 19 Plaintiff was only able to perform a partial squat due to pull on the left Achilles. 20 Tr. 529. Plaintiff had weakness with inversion of the left ankle, there was no 21 breakaway weakness, and eversion on the left was equal to the right. Tr. 530. 22 There was little motion in the left ankle in the way of inversion and eversion. Id. 23 Plaintiff’s circumference of the left calf and ankle were less than one centimeter 24 smaller on the left compared to the right. Id. A neurological examination was 25 normal expect for a slight decrease in sensation anterior to the left lateral malleolus 26 in the area of the past surgical incision. Id. Plaintiff was diagnosed with a left 27 ankle sprain and chronic ligament laxity. Tr. 531. 28 A September 16, 2009, physical evaluation revealed a slight antalgic gait on ORDER GRANTING PLAINTIFF’S MOTION . . . - 8 1 the left side. Tr. 502. Plaintiff did not want to try to walk on her heels or toes and 2 was able to perform a somewhat faltering tandem gait. Id. Her deep tendon 3 reflexes were normal. Id. Sensory testing revealed a slight global reduction on the 4 left side and nothing over the dorsum of the left foot. Tr. 503. Motor examination 5 showed a give-way quality to the effect in the ankle, dorsiflexion and inversion, 6 and in all major muscle groups. Id. The evaluators, Barry L. Lichter, M.D., and 7 Richard E. Hall, M.D., opined that Plaintiff was “capable of working in some 8 sedentary capacity where she would be seated at a desk due to the alleged pain that 9 she is having in her left lower leg.” Tr. 533. 10 11 On September 1, 2011, Plaintiff’s physical therapist noted a disturbed gait due to left foot and ankle pain. Tr. 630. 12 On March 13, 2012, Plaintiff underwent a physical capacity evaluation. Tr. 13 885-903. An evaluation of the ankle showed a limited range of motion in all four 14 directions in the left ankle. Tr. 883. The evaluator noted that based on these 15 results, Plaintiff would expect gait deviations and limitations in below waist 16 activities. Tr. 884. 17 Defendant argues that (1) the mere existence of an impairment is insufficient 18 proof of a disability, citing Matthews v. Shalala, 10F.3d 678, 680 (9th Cir. 1993), 19 and (2) the evidence supporting a step two severe impairment predates Plaintiff’s 20 amended onset date of June 20, 2011. ECF No. 17 at 18. The Court agrees that 21 the mere existence of an impairment is insufficient proof of a disability. However, 22 disability is not the question raised at step two. Step two simply establishes 23 whether or not Plaintiff has a severe impairment. There are severe impairments 24 that do not equate to disability. Additionally, even if the impairment was not 25 considered severe, the ALJ was required to consider the combined effect of all 26 Plaintiff’s impairments, without regard to whether each alone was sufficiently 27 severe in forming the residual functional capacity. See Smolen, 80 F.3d at 1290. 28 This Court finds that the ALJ’s mention of Plaintiff’s left ankle injury as a part of ORDER GRANTING PLAINTIFF’S MOTION . . . - 9 1 the summary of her testimony is not sufficient consideration of the impairment in 2 light of the medical records addressed above. 3 As for Defendant’s second argument, that the evidence predates Plaintiff’s 4 amended onset date, the ALJ’s decision makes the onset date unclear. On the first 5 page of the decision, the ALJ stated that “[w]hile the discussion below may refer to 6 evidence dated prior to the amended alleged onset date of disability, these 7 reference are merely used to establish the longitudinal picture of the claimant’s 8 medical history, and do not constitute an implied reopening of any previous 9 claim.” Tr. 17. This statement implies that the relevant time period spans from the 10 proposed amended date of onset, June 20, 2011, to the date Plaintiff was last 11 insured, June 30, 2012. However, in his findings, the ALJ consistently refers to the 12 relevant time period as March 2, 2005, the originally alleged date of onset, through 13 June 30, 2012, the date last insured. Tr. 19, 36. Therefore, while the ALJ may 14 have intended his decision control Plaintiff’s eligibility from June 20, 2011, to 15 June 30, 2012, he specifically addressed Plaintiff’s eligibility from March 2, 2005, 16 to June 30, 2012. By doing so, the ALJ placed the medical evidence predating 17 June 20, 2011, back on the table for consideration as relevant evidence. Therefore, 18 there is sufficient evidence for Plaintiff’s ankle impairment to be considered severe 19 at step two. 20 Even if the relevant time period was limited from June 20, 2011, to June 30, 21 2012, and the evidence prior to June 20, 2011, was viewed solely for the purpose 22 of a longitudinal picture, there is sufficient evidence that Plaintiff’s ankle injury 23 continued to cause more than a minimal effect on her functional abilities, 24 specifically walking and below the waist activities. 25 Therefore, the ALJ’s failure to discuss Plaintiff’s ankle injury at step two 26 was an error. The case is thereby remanded for additional proceedings in which 27 the ALJ will clearly define the relevant time period, both in the discussion text of 28 his decision and in his findings, and the ALJ will make a new step two ORDER GRANTING PLAINTIFF’S MOTION . . . - 10 1 determination addressing Plaintiff’s left ankle impairment. 2 B. 3 4 Credibility Plaintiff contests the ALJ’s adverse credibility determination in this case. ECF No. 12 at 5-13. Considering a new step two determination is necessary to properly consider 5 6 the limitation involving Plaintiff’s left ankle and one of the reasons the ALJ 7 provided for finding Plaintiff less than fully credible was her reported need for an 8 assistance device while walking, the ALJ is instructed to make a new assessment 9 as to whether Plaintiff’s subjective symptom statements are consistent with the 10 record as a whole.2 11 C. 12 0F Medical Source Opinions Plaintiff argues the ALJ failed to properly consider and weigh the medical 13 opinion expressed by Sophie Gomez, M.D., and Paula Hemp, OTR/L, CWCE.3 14 ECF No. 12 at 13-18. 15 16 Considering a new step two determination is necessary, it is likely that once all of Plaintiff’s impairments are considered, a new residual functional capacity 17 18 2 On March 16, 2016, S.S.R. 16-3p, “Evaluation of Symptoms in Disability 19 Claims,” became effective, eliminating the term “credibility” from the Social 20 Security Administration’s policy, and clarifying “adjudicators will not assess an 21 individual’s overall character or truthfulness.” The ALJ’s November 2013 22 decision came more than two years before S.S.R. 16-3p. Therefore, he could not 23 have employed the new S.S.R. Nevertheless, upon remand, the ALJ should 24 address S.S.R. 16-3p as part of the review regarding Plaintiff’s alleged symptoms. 25 3 The Court notes that while the ALJ rejected Therapist Hemp’s opinion of 26 Plaintiff’s functional abilities, he did not question her objective test results, 27 specifically the range of motion testing that supports the remand for a new step two 28 determination. ORDER GRANTING PLAINTIFF’S MOTION . . . - 11 1 assessment will be necessary. In doing so, the ALJ is instructed to readdress the 2 medical source opinions in the record in light of all of Plaintiff’s impairments. 3 REMEDY 4 The decision whether to remand for further proceedings or reverse and 5 award benefits is within the discretion of the district court. McAllister v. Sullivan, 6 888 F.2d 599, 603 (9th Cir. 1989). An immediate award of benefits is appropriate 7 where “no useful purpose would be served by further administrative proceedings, 8 or where the record has been thoroughly developed,” Varney v. Secretary of Health 9 & Human Servs., 859 F.2d 1396, 1399 (9th Cir. 1988), or when the delay caused 10 by remand would be “unduly burdensome,” Terry v. Sullivan, 903 F.2d 1273, 1280 11 (9th Cir. 1990). See also Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir. 2014) 12 (noting that a district court may abuse its discretion not to remand for benefits 13 when all of these conditions are met). This policy is based on the “need to 14 expedite disability claims.” Varney, 859 F.2d at 1401. But where there are 15 outstanding issues that must be resolved before a determination can be made, and it 16 is not clear from the record that the ALJ would be required to find a claimant 17 disabled if all the evidence were properly evaluated, remand is appropriate. See 18 Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel, 211 19 F.3d 1172, 1179-80 (9th Cir. 2000). 20 In this case, it is not clear from the record that the ALJ would be required to 21 find Plaintiff disabled if all the evidence were properly evaluated. Further 22 proceedings are necessary for the ALJ to define the relevant time period and to 23 address Plaintiff’s left ankle injury at step two. Following a new step two 24 determination, the ALJ is instructed to determine whether Plaintiff’s subjective 25 symptom statements are consistent with the record as a whole and make a new 26 residual functional capacity determination considering all of Plaintiff’s 27 impairments. The ALJ will also need to supplement the record with any 28 outstanding medical evidence. ORDER GRANTING PLAINTIFF’S MOTION . . . - 12 1 CONCLUSION 2 Accordingly, IT IS ORDERED: 3 1. 4 5 Defendant’s Motion for Summary Judgment, ECF No. 17, is DENIED. 2. Plaintiff’s Motion for Summary Judgment, ECF No. 12, is 6 GRANTED, in part, and the matter is REMANDED to the Commissioner for 7 additional proceedings consistent with this Order. 8 3. Application for attorney fees may be filed by separate motion. 9 The District Court Executive is directed to file this Order and provide a copy 10 to counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff 11 and the file shall be CLOSED. 12 DATED August 8, 2016. 13 14 15 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING PLAINTIFF’S MOTION . . . - 13

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