William G. Raymond v. Nancy A. Berryhill, No. 5:2017cv01112 - Document 26 (C.D. Cal. 2018)
Court Description: OPINION AND ORDER by Magistrate Judge Shashi H. Kewalramani. Because the Commissioner's decision is not supported by substantial evidence, IT IS HEREBY ORDERED that the Commissioner's decision is REVERSED and this case is REMANDED for further administrative proceedings under sentence four of 42 U.S.C. § 405(g). (see document for further information) (hr)
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William G. Raymond v. Nancy A. Berryhill Doc. 26 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 Plaintiff, 13 14 15 Case No. 5:17-CV-01112-SHK WILLIAM G. RAYMOND, v. OPINION AND ORDER NANCY A. BERRYHILL, Acting Commissioner of Social Security, 16 Defendant. 17 18 19 Plaintiff William G. Raymond (“Plaintiff”) seeks judicial review of the final 20 decision of the Commissioner of the Social Security Administration 21 (“Commissioner” or the “Agency”) denying his application for disability 22 insurance benefits (“DIB”), under Title II of the Social Security Act (the “Act”). 23 This Court has jurisdiction, under 42 U.S.C. § 405(g), and, pursuant to 28 U.S.C. 24 § 636(c), the parties have consented to the jurisdiction of the undersigned United 25 States Magistrate Judge. For the reasons stated below, the Commissioner’s 26 decision is REVERSED and this action is REMANDED for further proceedings 27 consistent with this Order. 28 /// Dockets.Justia.com 1 I. 2 BACKGROUND Plaintiff filed an application for DIB on January 23, 2014, alleging disability 3 beginning on October 27, 2010. Transcript (“Tr.”) 172-75.1 Following a denial of 4 benefits, Plaintiff requested a hearing before an administrative law judge (“ALJ”) 5 and, on March 16, 2016, ALJ Dante M. Alegre determined that Plaintiff was not 6 disabled. Tr. 15-38. Plaintiff sought review of the ALJ’s decision with the Appeals 7 Council, however, review was denied on April 17, 2017. Tr. 1-5. This appeal 8 followed. 9 II. 10 STANDARD OF REVIEW The reviewing court shall affirm the Commissioner’s decision if the decision 11 is based on correct legal standards and the legal findings are supported by 12 substantial evidence in the record. 42 U.S.C. § 405(g); Batson v. Comm’r Soc. 13 Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). Substantial evidence is “more 14 than a mere scintilla. It means such relevant evidence as a reasonable mind might 15 accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 16 401 (1971) (citation and internal quotation marks omitted). In reviewing the 17 Commissioner’s alleged errors, this Court must weigh “both the evidence that 18 supports and detracts from the [Commissioner’s] conclusions.” Martinez v. 19 Heckler, 807 F.2d 771, 772 (9th Cir. 1986). 20 “‘When evidence reasonably supports either confirming or reversing the 21 ALJ’s decision, [the Court] may not substitute [its] judgment for that of the ALJ.’” 22 Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (quoting Batson, 359 F.3d at 23 1196)); see also Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (“If the 24 ALJ’s credibility finding is supported by substantial evidence in the record, [the 25 Court] may not engage in second-guessing.” (citation omitted)). A reviewing 26 27 28 1 A certified copy of the Administrative Record was filed on November 7, 2017. Electronic Case Filing Number (“ECF No.”) 20. Citations will be made to the Administrative Record or Transcript page number rather than the ECF page number. 2 1 court, however, “cannot affirm the decision of an agency on a ground that the 2 agency did not invoke in making its decision.” Stout v. Comm’r Soc. Sec. Admin., 3 454 F.3d 1050, 1054 (9th Cir. 2006) (citation omitted). Finally, a court may not 4 reverse an ALJ’s decision if the error is harmless. Burch v. Barnhart, 400 F.3d 676, 5 679 (9th Cir. 2005) (citation omitted). “[T]he burden of showing that an error is 6 harmful normally falls upon the party attacking the agency’s determination.” 7 Shinseki v. Sanders, 556 U.S. 396, 409 (2009). 8 III. 9 A. 10 11 DISCUSSION Establishing Disability Under The Act To establish whether a claimant is disabled under the Act, it must be shown that: 12 (a) the claimant suffers from a medically determinable physical or 13 mental impairment that can be expected to result in death or that has 14 lasted or can be expected to last for a continuous period of not less than 15 twelve months; and 16 (b) the impairment renders the claimant incapable of performing the 17 work that the claimant previously performed and incapable of 18 performing any other substantial gainful employment that exists in the 19 national economy. 20 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. 21 § 423(d)(2)(A)). “If a claimant meets both requirements, he or she is ‘disabled.’” 22 Id. 23 The ALJ employs a five-step sequential evaluation process to determine 24 whether a claimant is disabled within the meaning of the Act. Bowen v. Yuckert, 25 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1520(a). Each step is potentially 26 dispositive and “if a claimant is found to be ‘disabled’ or ‘not-disabled’ at any step 27 in the sequence, there is no need to consider subsequent steps.” Tackett, 180 F.3d 28 at 1098; 20 C.F.R. § 404.1520. The claimant carries the burden of proof at steps 3 1 one through four, and the Commissioner carries the burden of proof at step five. 2 Tackett, 180 F.3d at 1098. 3 The five steps are: 4 Step 1. Is the claimant presently working in a substantially gainful 5 activity [(“SGA”)]? If so, then the claimant is “not disabled” within 6 the meaning of the [] Act and is not entitled to [DIB]. If the claimant is 7 not working in a [SGA], then the claimant’s case cannot be resolved at 8 step one and the evaluation proceeds to step two. See 20 C.F.R. 9 § 404.1520(b). 10 Step 2. Is the claimant’s impairment severe? If not, then the 11 claimant is “not disabled” and is not entitled to [DIB]. If the claimant’s 12 impairment is severe, then the claimant’s case cannot be resolved at 13 step two and the evaluation proceeds to step three. See 20 C.F.R. 14 § 404.1520(c). 15 Step 3. Does the impairment “meet or equal” one of a list of 16 specific impairments described in the regulations? If so, the claimant is 17 “disabled” and therefore entitled to [DIB]. 18 impairment neither meets nor equals one of the impairments listed in 19 the regulations, then the claimant’s case cannot be resolved at step 20 three and the evaluation proceeds to step four. 21 § 404.1520(d). If the claimant’s See 20 C.F.R. 22 Step 4. Is the claimant able to do any work that he or she has 23 done in the past? If so, then the claimant is “not disabled” and is not 24 entitled to [DIB]. If the claimant cannot do any work he or she did in 25 the past, then the claimant’s case cannot be resolved at step four and 26 the evaluation proceeds to the fifth and final step. See 20 C.F.R. 27 § 404.1520(e). 28 4 1 Step 5. Is the claimant able to do any other work? If not, then 2 the claimant is “disabled” and therefore entitled to [DIB]. See 20 3 C.F.R. § 404.1520(f)(1). If the claimant is able to do other work, then 4 the Commissioner must establish that there are a significant number of 5 jobs in the national economy that claimant can do. There are two ways 6 for the Commissioner to meet the burden of showing that there is other 7 work in “significant numbers” in the national economy that claimant 8 can do: (1) by the testimony of a vocational expert [(“VE”)], or (2) by 9 reference to the Medical-Vocational Guidelines at 20 C.F.R. pt. 404, 10 subpt. P, app. 2 [(“the Listings”)]. If the Commissioner meets this 11 burden, the claimant is “not disabled” and therefore not entitled to 12 [DIB]. See 20 C.F.R. §§ 404.1520(f), 404.1562. If the Commissioner 13 cannot meet this burden, then the claimant is “disabled” and therefore 14 entitled to [DIB]. See id. 15 Id. at 1098-99. 16 B. 17 The ALJ determined that “[Plaintiff] meets the insured status requirements Summary Of ALJ And Agency’s Findings 18 of the . . . Act through December 31, 2016.” Tr. 20. The ALJ then found at step 19 one, that “[Plaintiff] has not engaged in [SGA] since October 27, 2010, the alleged 20 onset date (20 C.F.R. 404.1520(b) and 404.1571 et seq.).” Id. 21 At step two, the ALJ found that “[Plaintiff] has the following severe 22 impairments: alcohol dependence; alcohol withdrawal with seizures; poly distal 23 neuropathy from alcohol abuse; alcoholic liver cirrhosis; asthma; anxiety disorder; 24 mood disorder; personality disorder; borderline intellectual functioning (20 CFR 25 404.1520(c)).” Tr. 21. 26 At step three, the ALJ found that “[Plaintiff] does not have an impairment or 27 combination of impairments that meets or medically equals one of the listed 28 impairments in [the Listings].” Id. 5 1 2 In preparation for step four, the ALJ found that Plaintiff has the residual functional capacity (“RFC”) to: 3 perform sedentary work as defined in 20 CFR 404.1567(a) except he 4 can lift and carry 20 pounds occasionally and 10 pounds frequently; 5 stand and walk for one hour out of an eight-hour workday; and sit for 6 two hours out of an eight-hour workday. He can frequently balance[,] 7 stoop, kneel, crouch, and crawl. He can also frequently climb, but he 8 can never climb ladders, ropes, or scaffolds. He should further avoid 9 hazards. The claimant is able to perform unskilled work with limited 10 11 12 13 14 coworker contact and no public contact. Tr. 23. At step four, the ALJ found that “[Plaintiff] is unable to perform any past relevant work (20 CFR 404.1565).” Tr. 25. At step five, the ALJ found that “[c]onsidering [Plaintiff’s] age, education, 15 work experience, and [RFC] based on all of the impairments, including the 16 substance use disorders, there are no jobs that exist in significant numbers in the 17 national economy that [Plaintiff] can perform (20 CFR 404.1560(c) and 404.1566). 18 Tr. 26. However, the ALJ found that “[i]f [Plaintiff] stopped the substance use, 19 considering [Plaintiff’s] age, education, work experience, and [RFC], there would 20 be a significant number of jobs in the national economy that [Plaintiff] could 21 perform (20 CFR 404.1560(c) and 404.1566). Tr. 33. Specifically, the ALJ found 22 that Plaintiff could perform the “medium, unskilled” occupations of “linen room 23 attendant, [Dictionary of Occupational Titles (“DOT”)] 222.387-030” and “hand 24 packager, DOT 920.587-018.” Id. The ALJ based his decision that Plaintiff could 25 perform the aforementioned occupations “on the [VE’s] testimony” from the 26 administrative hearing, after “determin[ing] that the [VE’s] testimony [wa]s 27 consistent with the information contained in the [DOT].” Tr. 33-34. 28 6 1 After finding that “[Plaintiff] would be capable of making a successful 2 adjustment to work that exists in significant numbers in the national economy” if 3 Plaintiff “stopped the substance use” at step five, the ALJ concluded that “[a] 4 finding of not disabled is . . . appropriate under the framework of 203.29.” Tr. 34. 5 (internal quotation marks omitted). The ALJ, therefore, found that “[b]ecause the 6 substance use disorder is a contributing factor material to the determination of 7 disability, [Plaintiff] has not been disabled within the meaning of the . . . Act at any 8 time from the alleged onset date through the date of th[e] decision.” Id. 9 10 C. Summary Of Plaintiff’s Arguments In this appeal, Plaintiff raises two issues, including whether the ALJ erred in 11 assessing Plaintiff’s RFC by: (1) failing to properly consider “relevant medical 12 evidence of record”; and (2) failing to properly consider “Plaintiff’s subjective 13 statements of record.” ECF No. 25, Joint Stipulation at 4. 14 15 16 D. Court’s Consideration Of Plaintiff’s Arguments 1. Plaintiff’s Challenge To ALJ’s Consideration Of Relevant Medical Evidence 17 Plaintiff argues that the ALJ erred by “fail[ing] to properly consider relevant 18 medical evidence of record which is supportive of his claim of disability in assessing 19 [his RFC].” Id. at 5. Specifically, Plaintiff argues that the ALJ failed to properly 20 consider Plaintiff’s moderate limitations “in his ability to maintain consistent 21 attendance and to perform routine work duties” as set forth by the psychological 22 consultative examiner (“CE”), Dr. Zhang, in the RFC assessment, and by rejecting 23 his low IQ score as assessed by Dr. Zhang. Id. at 7. 24 25 a. The CE’s Findings The CE’s report indicated that the evaluation of Plaintiff included a clinical 26 interview and a series of psychological tests. Tr. 504. One of the tests Plaintiff 27 took was the “Wechsler Adult Intelligence Scale” test, which measures “an 28 individual’s fund of general knowledge, psychomotor speed, visual organizational 7 1 skills, arithmetic reasoning, vocabulary, abstract reasoning, and visual spatial 2 skills.” Tr. 507. The results of this test “indicat[ed] that [Plaintiff] is functioning 3 in the extremely low range of intelligence with a Full Scale IQ score of 65.” Id. 4 The CE noted in the “[b]ehavior observations” portion of the report that Plaintiff 5 demonstrated “some exaggeration or manipulation” on the day of the examination, 6 but specifically found that Plaintiff’s IQ “scores appear to be [a] valid 7 representation of his current intellectual functioning and are consistent with his 8 mental status.” Tr. 506-08. The CE opined that Plaintiff was moderately impaired 9 in his ability to “understand, remember, and carry out detailed and complex 10 instructions”; “relate and interact appropriately with co-workers, supervisors, and 11 the public”; “maintain concentration, persistence and pace in common work 12 settings”; and “maintain consistent attendance and to perform routine work 13 duties.” Tr. 509-10. b. 14 15 ALJ’s Consideration Of The CE’s Findings The ALJ gave “significant weight” to the CE’s opinion, but nevertheless 16 gave less weight to portions of the CE’s opinion. Tr. 31. Specifically, the ALJ 17 determined that Plaintiff’s IQ score that the CE reported was not a valid 18 “reflect[ion] of [Plaintiff’s] true cognitive functioning” because the IQ score was 19 inconsistent with other evidence in the record. Tr. 28. The ALJ gave significant 20 weight to the limitations assessed by the CE, however, finding that the “[CE’s] 21 assessment [was] consistent with the findings from the consultative examination 22 showing [Plaintiff] had poor insight and difficulty with memory and 23 concentration,” and that “such limitations are consistent with [Plaintiff’s] history 24 of anxiety with psychomotor agitation.” Tr. 31-32. 25 The ALJ also gave “significant weight…to the opinion of the State agency 26 psychological consultant.” Id. (citation omitted). The State agency psychological 27 consultant (“State consultant”) report echoed the CE report in finding Plaintiff to 28 have “moderate difficulties in maintaining social functioning” and “moderate 8 1 difficulties in maintaining concentration, persistence, or pace.” Id. However, in 2 contrast to the CE’s report, the State consultant “found [Plaintiff] was able to 3 understand and remember simple routines; maintain adequate concentration, 4 persistence, and pace; sustain a regular schedule for simple routines on a consistent 5 basis; accept instructions from a supervisor in a setting with limited coworker 6 contact, and where public contact is not required; and respond to straightforward, 7 simple changes.” Id. The ALJ found “[the] assessment [was] supported by 8 [Plaintiff’s] anxiety disorder and treatment records, which showed he often 9 presented with anxiety and psychomotor agitation.” Id. 10 c. The Parties’ Specific Arguments 11 Plaintiff argues the ALJ failed to consider the CE’s determination that 12 Plaintiff is “moderately limited in his ability to maintain concentration, persistence, 13 and pace in common work settings and in his ability to maintain consistent 14 attendance and to perform routine work duties.” ECF No. 25, Joint Stipulation at 15 7. (citation omitted). Plaintiff asserts that the ALJ’s RFC assessment failed to 16 accommodate for these limitations without explanation, despite the ALJ’s 17 statement that he gave “significant weight” to the CE’s opinion. Id. at 6-7. 18 Plaintiff also argues that the ALJ’s finding that the IQ scores were “invalid 19 because the [CE] had stated in his report that there was some evidence of 20 exaggeration of malingering” was “misguided, groundless, and nothing more than 21 a manipulation of the facts of this case” because the CE specifically found that 22 Plaintiff’s IQ score of 65 was “a valid test score.” Id. (internal quotation marks 23 and citations omitted). Based on this determination, Plaintiff argues that he should 24 have qualified for payment of benefits automatically, “since the ALJ limited 25 Plaintiff physically to light work activities which would fit the requirements of 26 Listing 112.05(c) given his full scale IQ of 65.” Id. 27 28 Defendant argues that “the Ninth Circuit has expressly held that a limitation to unskilled work captures moderate limitations in several areas, including a 9 1 moderate limitation in concentration, persistence, or pace.” Id. at 18. Further, 2 Defendant asserts that by “limit[ing] Plaintiff to unskilled work with limited 3 coworker contact and no public contact” the ALJ “properly translated Plaintiff’s 4 moderate limitations into concrete restrictions.” Id. at 18-19. Defendant also 5 argues that “it was not error for the ALJ to give greater weight to some portions of 6 [the CE’s] opinion over others or to reconcile any internal conflicts within [the 7 CE’s] report” because it is the role of the ALJ to resolve those conflicts. Id. 8 9 2. Standard To Review ALJ’s Analysis Of The CE’s Opinion The RFC is the maximum a claimant can do despite his limitations. 20 10 C.F.R. §§ 404.1545, 416.945. In determining the RFC, the ALJ must consider 11 limitations imposed by all of a claimant’s impairments, even those that are not 12 severe, and evaluate all of the relevant medical and other evidence, including the 13 claimant’s testimony. SSR 96-8p, available at 1996 WL 374184. The ALJ is 14 responsible for resolving conflicts in the medical testimony and translating the 15 claimant’s impairments into concrete functional limitations in the RFC. Stubbs- 16 Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008). 17 There are three types of medical opinions in Social Security cases: those 18 from treating physicians, examining physicians, and non-examining physicians. 19 Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 692 (9th Cir. 2009) (citation 20 omitted). “The medical opinion of a claimant’s treating physician is given 21 ‘controlling weight’ so long as it ‘is well-supported by medically acceptable clinical 22 and laboratory diagnostic techniques and is not inconsistent with the other 23 substantial evidence in [the claimant’s] case record.’” Trevizo v. Berryhill, 871 24 F.3d 664, 675 (9th Cir. 2017) (quoting 20 C.F.R. § 404.1527(c)(2)). 25 “‘To reject [the] uncontradicted opinion of a treating or examining doctor, 26 an ALJ must state clear and convincing reasons that are supported by substantial 27 evidence.’” Id. (quoting Ryan v. Comm’r Soc. Sec. Admin., 528 F.3d 1194, 1198 28 (9th Cir. 2008)). “This is not an easy requirement to meet: ‘the clear and 10 1 convincing standard is the most demanding required in Social Security cases.’” 2 Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v. Comm’r 3 Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). 4 “‘If a treating or examining doctor’s opinion is contradicted by another 5 doctor’s opinion, an ALJ may only reject it by providing specific and legitimate 6 reasons that are supported by substantial evidence.’” Trevizo, 871 F.3d at 675 7 (quoting Ryan, 528 F.3d at 1198). “This is so because, even when contradicted, a 8 treating or examining physician’s opinion is still owed deference and will often be 9 ‘entitled to the greatest weight . . . even if it does not meet the test for controlling 10 weight.’” Garrison, 759 F.3d at 1012 (quoting Orn v. Astrue, 495 F.3d 625, 633 11 (9th Cir. 2007)). “‘The ALJ can meet this burden by setting out a detailed and 12 thorough summary of the facts and conflicting clinical evidence, stating his 13 interpretation thereof, and making findings.’” Trevizo, 871 F.3d at 675 (quoting 14 Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). 15 16 3. ALJ’s Decision Not Supported By Substantial Evidence The Court first addresses the ALJ’s analysis of the doctors’ opinions in 17 assessing Plaintiff’s RFC. Here, the ALJ assessed that Plaintiff has the RFC to, in 18 pertinent part, “perform unskilled work with limited coworker contact and no 19 public contact.” Tr. 23. This RFC does not properly accommodate for Plaintiff’s 20 moderate mental limitations as assessed by the CE. The CE and the State 21 consultant disagree as to Plaintiff’s “ability to maintain consistent attendance and 22 to perform routine work duties.” Tr. 31. The CE found Plaintiff to be 23 “moderately impaired in his ability to . . . maintain consistent attendance and to 24 perform routine work duties;” whereas, the State consultant found that Plaintiff 25 “was able to understand and remember simple routines; maintain adequate 26 concentration, persistence, and pace; [and] sustain a regular schedule for simple 27 routines on a consistent basis . . . .” Tr. 31, 32. If the ALJ intended to rely on the 28 assessment of the State consultant, and thereby reject the conflicting findings in the 11 1 CE report, the ALJ must have “provide[d] specific and legitimate reasons that are 2 supported by substantial evidence” for doing so. Trevizo, 871 F.3d at 675. 3 Because the ALJ did not provide any reasons for rejecting the limitations assessed 4 by the CE, the Court finds the ALJ’s assessment of Plaintiff’s RFC, which is 5 inconsistent with the CE’s assessment, was not supported by substantial evidence. 6 Defendant’s response that Plaintiff’s moderate mental limitations were 7 adequately captured by a restriction to unskilled work is unpersuasive. Although 8 the ALJ’s restriction for unskilled work may encompass Plaintiff’s moderate 9 limitations in concentration, persistence, and pace, the RFC does not sufficiently 10 account for Plaintiff’s moderate limitations in performing routine work duties and 11 maintaining consistent attendance in the workplace. See, e.g., Morinskey v. 12 Astrue, 458 Fed. Appx. 640, 641 (9th Cir. 2011) (finding that the ALJ erred by 13 failing to analyze or make findings setting forth specific, legitimate reasons for 14 rejecting the examining consultant’s opinion that the claimant was moderately 15 impaired in the ability to maintain regular attendance, sustain an ordinary routine, 16 and complete a normal work day or workweek without interruption from his bi- 17 polar disorder); Lewis v. Berryhill, No. 5:16-CV-01754-GJS, 2017 WL 1903103, at 18 *3 (C.D. Cal. May 9, 2017) (“Although the ALJ purportedly gave great weight to 19 [the consultative examiner’s] opinion, the ALJ failed to explain why he did not 20 include in the RFC assessment [the consultative examiner’s] findings that Plaintiff 21 has moderate limitations in the ability to perform routine work duties, maintain 22 consistent attendance in the workplace, and respond appropriately to usual work 23 situations.”). This error warrants reversal. 24 The Court reserves judgment on the other issues raised by Plaintiff; 25 however, the Court notes that there is a discrepancy between the CE’s note that 26 “there [was] some exaggeration or manipulation” during the subjective portion of 27 the examination, and the CE’s note that “the . . . scores appear to be [a] valid 28 representation of his current intellectual functioning and are consistent with his 12 1 mental status” during the objective testing resulting in Plaintiff’s IQ score of 65. 2 Tr. 506, 507-08. The ALJ observed only the former observation of the CE in his 3 unfavorable decision and ignored the latter observation. Thus, it is unclear 4 whether the ALJ considered the CE’s express finding that Plaintiff’s IQ score was 5 valid, apparently, despite Plaintiff’s noted exaggeration or manipulation. 6 Accordingly, this issue, and the potential effect it may have on whether Plaintiff 7 meets Listing 112.05(c), should be examined further upon remand. 8 IV. CONCLUSION 9 Because the Commissioner’s decision is not supported by substantial 10 evidence, IT IS HEREBY ORDERED that the Commissioner’s decision is 11 REVERSED and this case is REMANDED for further administrative proceedings 12 under sentence four of 42 U.S.C. § 405(g). See Garrison v. Colvin, 759 F.3d 995, 13 1009 (9th Cir. 2014) (holding that under sentence four of 42 U.S.C. § 405(g), 14 “[t]he court shall have power to enter . . . a judgment affirming, modifying, or 15 reversing the decision of the Commissioner . . . , with or without remanding the 16 cause for a rehearing.” (citation and internal quotation marks omitted)). 17 18 19 20 IT IS SO ORDERED. DATED: 8/2/2018 ________________________________ HONORABLE SHASHI H. KEWALRAMANI United States Magistrate Judge 21 22 23 24 25 26 27 28 13
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