Demoss v. Commissioner of Social Security, No. 2:2018cv00018 - Document 17 (E.D. Wash. 2019)

Court Description: ORDER GRANTING, IN PART, PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR ADDITIONAL PROCEEDINGS; granting in part ECF No. 14 Plaintiff's Motion for Summary Judgment; denying ECF No. 15 Defendant's Motion for Summary Judgment. FILE CLOSED. Signed by Magistrate Judge John T. Rodgers. (TR, Case Administrator)

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Demoss v. Commissioner of Social Security Doc. 17 1 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 2 3 Mar 04, 2019 4 SEAN F. MCAVOY, CLERK 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 10 TABITHA D., No. 2:18-CV-0018-JTR Plaintiff, 11 12 13 14 15 v. COMMISSIONER OF SOCIAL SECURITY, ORDER GRANTING, IN PART, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR ADDITIONAL PROCEEDINGS Defendant. 16 17 BEFORE THE COURT are cross-motions for summary judgment. ECF 18 No. 14, 15. Attorney Dana C. Madsen represents Tabitha D. (Plaintiff); Special 19 Assistant United States Attorney Leisa A. Wolf represents the Commissioner of 20 Social Security (Defendant). The parties have consented to proceed before a 21 magistrate judge. ECF No. 13. After reviewing the administrative record and the 22 briefs filed by the parties, the Court GRANTS, IN PART, Plaintiff’s Motion for 23 Summary Judgment; DENIES Defendant’s Motion for Summary Judgment; and 24 REMANDS the matter to the Commissioner for additional proceedings pursuant to 25 42 U.S.C. § 405(g). 26 27 28 JURISDICTION Plaintiff filed applications for Disability Insurance Benefits and Supplemental Security Income on August 5, 2014, alleging disability since March ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 1 Dockets.Justia.com 1 1, 2014, due to issues with her ankles, thyroid and back; depression; migraines; 2 sleep apnea; pre-diabetic condition; poor memory; constant dizziness; stomach 3 pain; and kidney stones. Tr. 241, 243, 281. The applications were denied initially 4 and upon reconsideration. Administrative Law Judge (ALJ) Stewart Stallings held 5 a hearing on August 16, 2016, Tr. 41-77, and issued an unfavorable decision on 6 October 3, 2016, Tr. 20-32. The Appeals Council denied Plaintiff’s request for 7 review on November 17, 2017. Tr. 1-6. The ALJ’s October 2016 decision thus 8 became the final decision of the Commissioner, which is appealable to the district 9 court pursuant to 42 U.S.C. § 405(g). Plaintiff filed this action for judicial review 10 on January 16, 2018. ECF No. 1, 4. STATEMENT OF FACTS 11 12 Plaintiff was born on August 26, 1980, and was 33 years old on the alleged 13 onset date, March 1, 2014. Tr. 241. Plaintiff earned a GED and has completed 14 some college. Tr. 47, 282, 787. Plaintiff testified at the administrative hearing on 15 August 16, 2016, that she last worked at a hotel call center in 2014. Tr. 47. That 16 year and a half position ended when she began having black out spells at her desk 17 and her doctor put her on medical leave. Tr. 48, 58. Plaintiff’s disability report 18 indicates she stopped working on February 28, 2014, because of her conditions. 19 Tr. 281. 20 Plaintiff testified she has black out spells a couple of times a month and 21 experiences migraine headaches about five times a month. Tr. 49, 55-56. She 22 stated she attended counseling for depression, Post-Traumatic Stress Disorder 23 (PTSD), and anxiety. Tr. 50. Plaintiff reported other issues as well including her 24 ankles roll; she gets dizzy; she has pain in her back, neck, shoulders, abdomen, and 25 knees; her legs and feet go numb; she has diabetes and hyperthyroidism; and she 26 experiences blurred vision three or four times a week. Tr. 51-52, 56-57. She also 27 has been diagnosed with sleep apnea and is only able to sleep one or two hours at 28 night. Tr. 53-54. Plaintiff indicated she could walk no farther than half a block in ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 2 1 one stretch, stand about ten minutes, sit about 30 minutes, and lift and carry five to 2 10 pounds. Tr. 51, 53, 57-58. She testified she did not do housework, vacuuming, 3 or laundry. Tr. 55. She stated her mother, children, and boyfriend help with her 4 household chores. Tr. 55. 5 6 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 7 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 8 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with 9 deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel, 10 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 11 only if it is not supported by substantial evidence or if it is based on legal error. 12 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 13 defined as being more than a mere scintilla, but less than a preponderance. Id. at 14 1098. Put another way, substantial evidence is such relevant evidence as a 15 reasonable mind might accept as adequate to support a conclusion. Richardson v. 16 Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one 17 rational interpretation, the Court may not substitute its judgment for that of the 18 ALJ. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 19 169 F.3d 595, 599 (9th Cir. 1999). If substantial evidence supports the 20 administrative findings, or if conflicting evidence supports a finding of either 21 disability or non-disability, the ALJ’s determination is conclusive. Sprague v. 22 Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). Nevertheless, a decision 23 supported by substantial evidence will be set aside if the proper legal standards 24 were not applied in weighing the evidence and making the decision. Brawner v. 25 Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). 26 27 28 SEQUENTIAL EVALUATION PROCESS The Commissioner has established a five-step sequential evaluation process for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 3 1 416.920(a); Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through 2 four, the burden of proof rests upon the claimant to establish a prima facie case of 3 entitlement to disability benefits. Tackett, 180 F.3d at 1098-1099. This burden is 4 met once a claimant establishes that a physical or mental impairment prevents the 5 claimant from engaging in past relevant work. 20 C.F.R. §§ 404.1520(a)(4), 6 416.920(a)(4). If a claimant cannot perform past relevant work, the ALJ proceeds 7 to step five, and the burden shifts to the Commissioner to show that (1) the 8 claimant can make an adjustment to other work; and (2) specific jobs which the 9 claimant can perform exist in the national economy. Batson v. Commissioner of 10 Social Sec. Admin., 359 F.3d 1190, 1193-1194 (2004). If a claimant cannot make 11 an adjustment to other work in the national economy, a finding of “disabled” is 12 made. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 13 ADMINISTRATIVE DECISION 14 On October 3, 2016, the ALJ issued a decision finding Plaintiff was not 15 16 17 disabled as defined in the Social Security Act. At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since March 1, 2014, the alleged onset date. Tr. 22. 18 At step two, the ALJ determined Plaintiff had the following severe 19 impairments: morbid obesity, migraines, blackouts, neuropathy, diabetes, sleep 20 apnea, hypothyroidism, joint dysfunction of the knees and ankles, anxiety, 21 depression, and personality disorder. Tr. 22. 22 At step three, the ALJ found Plaintiff did not have an impairment or 23 combination of impairments that meets or medically equals the severity of one of 24 the listed impairments. Tr. 23. 25 The ALJ assessed Plaintiff’s Residual Functional Capacity (RFC) and found 26 Plaintiff could perform sedentary exertion level work with the following 27 limitations: she could lift and carry up to 10 pounds occasionally; she could stand 28 and walk two hours in an eight-hour workday and sit for six hours total in an eight- ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 4 1 hour workday with normal breaks; she could rarely crouch, kneel, and crawl; she 2 must avoid all exposure to extreme cold, extreme heat, wetness, humidity, and 3 vibration; she would be limited to only occasional exposure to pulmonary irritants 4 and would need to avoid moving machinery and dangerous unprotected heights; 5 she would be limited to no more than frequent exposure to bright sunshine and 6 flashing lights; she would need work that requires no more than occasional 7 interaction with the public and no face-to-face interaction, but no limit in terms of 8 telephonic interaction; she would be capable of work around coworkers but with 9 only occasional interaction and not as part of a team; and she would not be able to 10 perform any work at a production pace or on an assembly line. Tr. 25. At step four, the ALJ found Plaintiff was able to perform her past relevant 11 12 work as a telephone solicitor. Tr. 30. At step five, the ALJ alternatively determined that, based on the testimony 13 14 of the vocational expert, and considering Plaintiff’s age, education, work 15 experience, and RFC, Plaintiff was capable of making a successful adjustment to 16 other work that exists in significant numbers in the national economy, including 17 the jobs of telephone information clerk and charge account clerk. Tr. 31-32. 18 The ALJ thus concluded Plaintiff was not under a disability within the 19 meaning of the Social Security Act at any time from March 1, 2014, the alleged 20 onset date, through the date of the ALJ’s decision, October 3, 2016. Tr. 32. ISSUES 21 The question presented is whether substantial evidence supports the ALJ’s 22 23 decision denying benefits and, if so, whether that decision is based on proper legal 24 standards. Plaintiff contends the ALJ erred by (1) improperly discrediting Plaintiff’s 25 26 symptom claims; and (2) failing to properly consider and weigh the medical source 27 opinion evidence. 28 /// ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 5 DISCUSSION1 1 2 3 A. Medical Opinion Evidence Plaintiff argues the ALJ erred by failing to properly consider the medical 4 opinion evidence of record. ECF No. 14 at 13-16. Plaintiff specifically asserts the 5 ALJ erred by according “little weight” to the opinions of examining medical 6 professional John B. Severinghaus, Ph.D., and treating sources Michele Herring, 7 ARNP, and Heather Brennan, M.D., and instead relying on the opinions of the 8 nonexamining medical expert, Margaret Moore, Ph.D. Id. 9 In a disability proceeding, the courts distinguish among the opinions of three 10 types of acceptable medical sources: treating physicians, physicians who examine 11 but do not treat the claimant (examining physicians) and those who neither 12 examine nor treat the claimant (nonexamining physicians). Lester v. Chater, 81 13 F.3d 821, 830 (9th Cir. 1996). A treating physician’s opinion carries more weight 14 than an examining physician’s opinion, and an examining physician’s opinion is 15 given more weight than that of a nonexamining physician. Benecke v. Barnhart, 16 379 F.3d 587, 592 (9th Cir. 2004); Lester, 81 F.3d at 830. The Ninth Circuit has 17 held that “[t]he opinion of a nonexamining physician cannot by itself constitute 18 substantial evidence that justifies the rejection of the opinion of either an 19 examining physician or a treating physician.” Lester, 81 F.3d at 830; Pitzer v. 20 Sullivan, 908 F.2d 502, 506 n.4 (9th Cir. 1990) (finding a nonexamining doctor’s 21 22 1 In Lucia v. S.E.C., 138 S.Ct. 2044 (2018), the Supreme Court recently held 23 that ALJs of the Securities and Exchange Commission are “Officers of the United 24 States” and thus subject to the Appointments Clause. To the extent Lucia applies 25 to Social Security ALJs, the parties have forfeited the issue by failing to raise it in 26 their briefing. See Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1161 27 n.2 (9th Cir. 2008) (the Court will not consider matters on appeal that were not 28 specifically addressed in an appellant’s opening brief). ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 6 1 opinion “with nothing more” does not constitute substantial evidence). In 2 weighing the medical opinion evidence of record, the ALJ must make findings 3 setting forth specific, legitimate reasons for doing so that are based on substantial 4 evidence in the record. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). 5 The ALJ must also set forth the reasoning behind his or her decisions in a way that 6 allows for meaningful review. Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th 7 Cir. 2015) (finding a clear statement of the agency’s reasoning is necessary 8 because the Court can affirm the ALJ’s decision to deny benefits only on the 9 grounds invoked by the ALJ). “Although the ALJ’s analysis need not be 10 extensive, the ALJ must provide some reasoning in order for us to meaningfully 11 determine whether the ALJ’s conclusions were supported by substantial evidence.” 12 Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1103 (9th Cir. 2014). 13 Nonexamining medical professional Margaret Moore, Ph.D., testified at the 14 August 16, 2016 administrative hearing. Tr. 58-66. Dr. Moore found that Plaintiff 15 suffered from “chronic low-grade” depressive focus and anxiety. Tr. 60. She 16 opined that Plaintiff’s primary issues were with dealing with personal boundaries 17 (setting limits with others in her life, reactive and reacting to situations) and a 18 tendency to engage in self-defeating behavior. Tr. 61. Dr. Moore assessed mild 19 limitations of activities of daily living, moderate limitations in social functioning, 20 and mild to moderate limitations in concentration, persistence and pace. Tr. 62-63. 21 She indicated Plaintiff would have no problem with simple, routine, repetitive 22 work activities and even complex tasks were within her reach; she could work with 23 the public, but only occasional face-to-face interaction; and she would work better 24 by not having to work as a cooperative team member but with normal supervision. 25 Tr. 64-65. 26 In 2010 and 2011, years prior to the alleged onset date (March 1, 2014), 27 treating physician Heather Brennan, M.D., opined that Plaintiff would be unable to 28 work due to her mental health, Tr. 804-808. See Fair v. Bowen, 885 F.2d 597, 600 ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 7 1 (9th Cir. 1989) (finding medical opinions that predate the alleged onset of 2 disability are of limited relevance). However, Dr. Brennan also marked that 3 Plaintiff’s condition was likely to limit her ability to work for no longer than six 4 months, Tr. 805, 807. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A) (an individual 5 shall be considered disabled if she has an impairment which can be expected to 6 result in death or which has lasted or can be expected to last for a continuous 7 period of not less than 12 months). 8 9 On October 29, 2014, John Severinghaus, Ph.D., examined Plaintiff and determined her interpersonal functioning was moderately to markedly reduced by 10 her health concerns and anxiety and depression. Tr. 791. Dr. Severinghaus opined 11 Plaintiff would have difficulty with coworkers and the public, her pace and 12 persistence were reduced by her concerns, and her daily effectiveness was reduced, 13 to some degree, by her concerns, psychic distress, and low IQ or learning 14 difficulties. Tr. 791. Dr. Severinghaus indicated that formal psychological testing, 15 such as for IQ and memory, might be considered, particularly to address her 16 intellectual and learning abilities, and that psychiatric consultation might be 17 helpful, in consultation/liaison psychiatry, to better understand her concerns and 18 functioning from a biopsychosocial standpoint. Tr. 791. Dr. Severinghaus’ 19 impression was “possible low IQ or some kind of learning difficulties contributing 20 to her difficulty coping with her physical concerns.” Tr. 791. 21 On November 16, 2015, Michele Herring, ARNP, a nurse at Plaintiff’s 22 treating physician’s office, completed a form indicating Plaintiff was severely 23 limited and permanently unable to perform work. Tr. 812-815. Nurse Herring is 24 considered an “other source.” See 20 C.F.R. § 404.1513(a)(4). The opinion of an 25 acceptable medical source is given more weight than that of an “other source.” 20 26 C.F.R. §§ 404.1527, 416.927; Gomez v. Chater, 74 F.3d 967, 970-71 (9th Cir. 27 1996). However, an ALJ is obligated to provide germane reasons for discounting 28 “other source” statements. Dodrill v. Shalala, 12 F.3d 915 (9th Cir. 1993). ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 8 1 In reaching his RFC determination, the ALJ accorded “little weight” to the 2 opinions of Dr. Severinghaus, indicating only that greater weight would be given 3 to medical expert Moore. Tr. 28. The ALJ also accorded “little weight” to the 4 opinions of Nurse Herring, finding her report inconsistent with the record as a 5 whole and Plaintiff’s admitted activities of daily living, and further indicated the 6 opinions of treating physician Brennan were not considered because they were 7 rendered prior to the alleged onset date. Tr. 28-29. 8 A review of the administrative hearing transcript reveals Dr. Moore 9 thoroughly and completely reviewed the record as it pertains to Plaintiff’s mental 10 health. Nevertheless, as noted above, “[t]he opinion of a nonexamining physician 11 cannot by itself constitute substantial evidence that justifies the rejection of the 12 opinion of either an examining physician or a treating physician.” Lester, 81 F.3d 13 at 830. The ALJ noted no other reason for rejecting Dr. Severinghaus’ report other 14 than Dr. Moore’s opinion was entitled to greater weight. Tr. 28. Accordingly, the 15 Court finds the ALJ erred by failing to provide cogent, specific, and legitimate 16 reasons for rejecting examiner Severinghaus’ opinion. A remand is required for 17 reconsideration of Dr. Severinghaus’ report and for further development of the 18 record.2 19 With regard to Nurse Herring, although the form report provides little 20 support for the opinions rendered, see Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 21 1996) (stating it is permissible for an ALJ to reject a check-off report that does not 22 contain an explanation for the conclusions rendered), the ALJ failed to describe 23 24 2 It is apparent Dr. Severinghaus believed additional psychological testing 25 would be helpful to garner a better understanding of Plaintiff’s mental health. Tr. 26 791. Consequently, the ALJ shall be directed to develop the record further in this 27 case by having Plaintiff undergo a new consultative psychological examination to 28 assist the ALJ in assessing Plaintiff’s condition. ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 9 1 what specific evidence contradicted Ms. Herring’s opinions, see Brown-Hunter, 2 806 F.3d at 492 (finding the agency must set forth reasoning behind its decisions in 3 a way that allows for meaningful review). If the ALJ fails to specify his rationale, 4 a reviewing court will be unable to review those reasons meaningfully without 5 improperly “substitut[ing] our conclusions for the ALJ’s, or speculat[ing] as to the 6 grounds for the ALJ’s conclusions.” Brown-Hunter, 806 F.3d at 492 quoting 7 Treichler, 775 F.3d at 1103. Because the ALJ failed to identify what specific 8 evidence contradicted the opinions of Nurse Herring, the Court finds the ALJ’s 9 rationale for discounting the report is not properly supported. The Court agrees with the ALJ that treating physician Brennan’s reports 10 11 greatly predate the relevant time period in this action and are thus of limited 12 relevance. Fair, 885 F.2d at 600. However, since this matter must be remanded 13 for additional proceedings to remedy the above noted errors, the ALJ shall also be 14 instructed to review the medical reports of Dr. Brennan and accord them 15 appropriate weight to the extent they are found to address Plaintiff’s condition 16 during the relevant period at issue in this matter. Plaintiff’s RFC is an administrative finding, dispositive of the case, which is 17 18 reserved to the Commissioner, and, by delegation of authority, to the ALJ. SSR 19 96-5p. It is thus the responsibility of the ALJ, not this Court, to make a RFC 20 determination. Accordingly, Plaintiff’s RFC must be redetermined, on remand, 21 taking into consideration the opinions of the medical professionals noted above, as 22 well as any additional or supplemental evidence relevant to Plaintiff’s claim for 23 disability benefits. 24 B. Plaintiff’s Subjective Complaints Plaintiff also contends the ALJ erred by improperly rejecting her subjective 25 26 complaints. ECF No. 14 at 11-13. 27 /// 28 /// ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 10 1 It is the province of the ALJ to make credibility determinations. Andrews, 2 53 F.3d at 1039. However, the ALJ’s findings must be supported by specific 3 cogent reasons. Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Once 4 the claimant produces medical evidence of an underlying medical impairment, the 5 ALJ may not discredit testimony as to the severity of an impairment because it is 6 unsupported by medical evidence. Reddick, 157 F.3d 715, 722 (9th Cir. 1998). 7 Absent affirmative evidence of malingering, the ALJ’s reasons for rejecting the 8 claimant’s testimony must be “specific, clear and convincing.” Smolen, 80 F.3d at 9 1281; Lester, 81 F.3d at 834. “General findings are insufficient: rather the ALJ 10 must identify what testimony is not credible and what evidence undermines the 11 claimant’s complaints.” Lester, 81 F.3d at 834; Dodrill v. Shalala, 12 F.3d 915, 12 918 (9th Cir. 1993). The ALJ concluded Plaintiff’s medically determinable impairments could 13 14 reasonably be expected to cause her alleged symptoms; however, Plaintiff’s 15 statements concerning the intensity, persistence and limiting effects of those 16 symptoms were not entirely consistent with the medical and other evidence of 17 record. Tr. 29. The ALJ listed the following reasons for finding Plaintiff’s 18 subjective complaints not persuasive in this case: (1) the objective medical 19 evidence did not support the level of impairment claimed; (2) Plaintiff poorly 20 complied with medical treatment advice; and (3) Plaintiff’s activities of daily 21 living, including being a full-time, stay-at-home mother to her four children, were 22 inconsistent with her allegations of disabling functional limitations. Tr. 26-30. While some of the reasons provided by the ALJ for discounting Plaintiff’s 23 24 testimony may be supported by the evidence of record, this matter must be 25 remanded for additional proceedings to remedy defects in light of the ALJ’s 26 erroneous determination regarding the medical opinion evidence of record. See 27 supra. Accordingly, on remand, the ALJ shall also reconsider Plaintiff’s 28 /// ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 11 1 statements and testimony and reassess what statements, if any, are not credible and, 2 if deemed not credible, what specific evidence undermines those statements. 3 CONCLUSION Plaintiff argues the ALJ’s decision should be reversed and remanded for the 4 5 payment of benefits. The Court has the discretion to remand the case for additional 6 evidence and findings or to award benefits. Smolen, 80 F.3d at 1292. The Court 7 may award benefits if the record is fully developed and further administrative 8 proceedings would serve no useful purpose. Id. Remand is appropriate when 9 additional administrative proceedings could remedy defects. Rodriguez v. Bowen, 10 876 F.2d 759, 763 (9th Cir. 1989). In this case, the Court finds that further 11 development is necessary for a proper determination to be made. The ALJ’s RFC determination is not supported by substantial evidence in 12 13 this case and must be reevaluated. On remand, the ALJ shall reassess the opinions 14 of Drs. Moore, Severinghause and Brennan, Nurse Herring, and all other medical 15 evidence of record relevant to Plaintiff’s claim for disability benefits. The ALJ 16 shall further develop the record by directing Plaintiff to undergo a new consultative 17 psychological examination. The ALJ shall reevaluate Plaintiff’s subjective 18 complaints, formulate a new RFC determination, obtain supplemental testimony 19 from a vocational expert, if necessary, and take into consideration any other 20 evidence or testimony relevant to Plaintiff’s disability claim. 21 Accordingly, IT IS ORDERED: 22 1. 23 GRANTED IN PART. 2. 24 25 Plaintiff’s Motion for Summary Judgment, ECF No. 14, is Defendant’s Motion for Summary Judgment, ECF No. 15, is DENIED. 3. 26 The matter is REMANDED to the Commissioner for additional 27 proceedings consistent with this Order. 28 /// ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 12 1 4. An application for attorney fees may be filed by separate motion. 2 The District Court Executive is directed to file this Order and provide a copy 3 to counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff and 4 the file shall be CLOSED. 5 DATED March 4, 2019. 6 7 8 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 13

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