Gewalt v. Commissioner of Social Security, No. 2:2018cv00164 - Document 19 (E.D. Wash. 2019)
Court Description: ORDER Granting 16 Plaintiff's Motion for Summary Judgment; denying 17 Defendant's Motion for Summary Judgment. Signed by Magistrate Judge John T. Rodgers. (PL, Case Administrator)
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Gewalt v. Commissioner of Social Security Doc. 19 1 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 2 3 Apr 23, 2019 4 SEAN F. MCAVOY, CLERK 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 8 9 MICHAEL G., No. 2:18-CV-00164-JTR Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 10 11 12 13 14 v. COMMISSIONER OF SOCIAL SECURITY, Defendant. 15 16 17 BEFORE THE COURT are cross-motions for summary judgment. ECF 18 Nos. 16, 17. Attorney Cory J. Brandt represents Michael G. (Plaintiff); Special 19 Assistant United States Attorney Justin Lane Martin represents the Commissioner 20 of Social Security (Defendant). The parties have consented to proceed before a 21 magistrate judge. ECF No. 4. 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), 1383(c). 26 JURISDICTION 27 Plaintiff filed applications for Supplemental Security Income (SSI) and 28 Disability Insurance Benefits (DIB) on October 28, 2014, Tr. 76-77, alleging ORDER GRANTING PLAINTIFF’S MOTION - 1 Dockets.Justia.com 1 disability since June 30, 2008, Tr. 154, 161, due to a back injury in 2008 followed 2 by surgery, right leg sciatica, and nerve damage at L5-S1. Tr. 188. The 3 applications were denied initially and upon reconsideration. Tr. 92-94, 97-101. 4 Administrative Law Judge (ALJ) Jesse Shumway held a hearing on January 24, 5 2017 and heard testimony from Plaintiff, medical expert Lynn Jahnke, M.D. and 6 vocational expert Daniel McKinney. Tr. 34-65. The ALJ issued an unfavorable 7 decision on March 9, 2017. Tr. 15-27. The Appeals Council denied review on 8 March 13, 2018. Tr. 1-6. The ALJ’s March 9, 2017 decision became the final 9 decision of the Commissioner, which is appealable to the district court pursuant to 10 42 U.S.C. §§ 405(g), 1383(c). Plaintiff initiated this action for judicial review on 11 May 18, 2018. ECF Nos. 1, 7. STATEMENT OF FACTS 12 The facts of the case are set forth in the administrative hearing transcript, the 13 14 ALJ’s decision, and the briefs of the parties. They are only briefly summarized 15 here. 16 Plaintiff was 32 years old at the alleged date of onset. Tr. 154. At 17 application, he reported that he completed two years of college in 2006. Tr. 189. 18 His reported work history includes being an apprentice repair technician at a heavy 19 equipment dealership, a day laborer, and a production supervisor in the food 20 industry. Id. When applying for benefits Plaintiff reported that he stopped 21 working on October 31, 2013 because of his conditions, but he had also made 22 changes in his work activity as early as February 20, 2008. Tr. 188. At the 23 hearing, Plaintiff clarified that in 2001 he worked as a cabinetmaker for three 24 months, from 2003 and 2004 he worked building custom doors, from 2004 to 2005 25 he worked in woodworking at night while he attended school, and from 2006 to 26 2008 he worked as an entry level mechanic for heavy equipment. Tr. 47-51. 27 28 Plaintiff was injured on February 20, 2008 and underwent a lumbar discectomy on July 3, 2008. Tr. 797, 862. Following surgery, Plaintiff worked for ORDER GRANTING PLAINTIFF’S MOTION - 2 1 Vista Utilities in 2012 inspecting gas meters and at Manpower in 2013 as a forklift 2 driver. Tr. 40-41. He also attended school in 2011 and 2012 to learn how to repair 3 hospital equipment. Tr. 41, 59. 4 5 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 6 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 7 1039 (9th Cir. 1995). The Court reviews the ALJ’s determinations of law de novo, 8 deferring to a reasonable interpretation of the statutes. McNatt v. Apfel, 201 F.3d 9 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed only if it is 10 not supported by substantial evidence or if it is based on legal error. Tackett v. 11 Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as 12 being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put 13 another way, substantial evidence is such relevant evidence as a reasonable mind 14 might accept as adequate to support a conclusion. Richardson v. Perales, 402 15 U.S. 389, 401 (1971). If the evidence is susceptible to more than one rational 16 interpretation, the court may not substitute its judgment for that of the ALJ. 17 Tackett, 180 F.3d at 1097. If substantial evidence supports the administrative 18 findings, or if conflicting evidence supports a finding of either disability or non- 19 disability, the ALJ’s determination is conclusive. Sprague v. Bowen, 812 F.2d 20 1226, 1229-30 (9th Cir. 1987). Nevertheless, a decision supported by substantial 21 evidence will be set aside if the proper legal standards were not applied in 22 weighing the evidence and making the decision. Brawner v. Secretary of Health 23 and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). 24 25 SEQUENTIAL EVALUATION PROCESS The Commissioner has established a five-step sequential evaluation process 26 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 27 416.920(a); see Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). In steps one 28 through four, the burden of proof rests upon the claimant to establish a prima facie ORDER GRANTING PLAINTIFF’S MOTION - 3 1 case of entitlement to disability benefits. Tackett, 180 F.3d at 1098-99. This 2 burden is met once the claimant establishes that physical or mental impairments 3 prevent him from engaging in his previous occupations. 20 C.F.R. §§ 404.1520(a), 4 416.920(a)(4). If the claimant cannot do his past relevant work, the ALJ proceeds 5 to step five, and the burden shifts to the Commissioner to show that (1) the 6 claimant can make an adjustment to other work, and (2) the claimant can perform 7 specific jobs which exist in the national economy. Batson v. Comm’r of Soc. Sec. 8 Admin., 359 F.3d 1190, 1193-94 (9th Cir. 2004). If the claimant cannot make an 9 adjustment to other work in the national economy, a finding of “disabled” is made. 10 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 11 ADMINISTRATIVE DECISION 12 On March 9, 2017, the ALJ issued a decision finding Plaintiff was not 13 disabled as defined in the Social Security Act from June 30, 2008 through the date 14 of the decision. 15 16 17 18 19 At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since June 30, 2008, the alleged date of onset. Tr. 17. At step two, the ALJ determined that Plaintiff had the following severe impairment: degenerative disc disease of the lumbar spine. Tr. 17. At step three, the ALJ found that Plaintiff did not have an impairment or 20 combination of impairments that met or medically equaled the severity of one of 21 the listed impairments. Tr. 19. 22 23 24 25 26 27 28 At step four, the ALJ assessed Plaintiff’s residual function capacity and determined he could perform a range of light work with the following limitations: the claimant requires a sit/stand option at will; he can stand and walk in combination only two hours total in an eight-hour day, thirty minutes at a time; he can frequently reach; he cannot climb ladders, ropes, or scaffolds, and can perform all other postural activities only occasionally; he can have no concentrated exposure to extreme cold or vibration; he cannot be exposed to hazards, such as unprotected heights ORDER GRANTING PLAINTIFF’S MOTION - 4 or moving mechanical parts; and he cannot operate a motor vehicle. 1 2 Tr. 19. The ALJ identified Plaintiff’s past relevant work as heavy equipment 3 mechanic and door maker and found that he could not perform this past relevant 4 work. Tr. 25. At step five, the ALJ determined that, considering Plaintiff’s age, education, 5 6 work experience and residual functional capacity, and based on the testimony of 7 the vocational expert, there were other jobs that exist in significant numbers in the 8 national economy Plaintiff could perform, including the jobs of production 9 assembler, electronics worker, and mail sorter. Tr. 25-26. The ALJ concluded 10 Plaintiff was not under a disability within the meaning of the Social Security Act 11 from June 30, 2008, through the date of the ALJ’s decision. Tr. 27. 12 ISSUES The question presented is whether substantial evidence supports the ALJ’s 13 14 decision denying benefits and, if so, whether that decision is based on proper legal 15 standards. Plaintiff contends the ALJ erred by (1) failing to find Plaintiff’s 16 depression and anxiety as medically determinable at step two, (2) failing to 17 properly address the medical opinions in the file, (3) failing to properly address 18 Plaintiff’s symptom statements, and (4) failing to make a proper step five 19 determination. DISCUSSION1 20 21 22 23 24 1. Step Two Plaintiff argues that the ALJ erred at step two by failing to find his anxiety and depression medically determinable. ECF No. 16 at 11-13. At step two of the sequential process, the ALJ must determine whether a 25 26 27 28 1 In Lucia v. S.E.C., 138 S.Ct. 2044 (2018), the Supreme Court recently held that ALJs of the Securities and Exchange Commission are “Officers of the United ORDER GRANTING PLAINTIFF’S MOTION - 5 1 claimant suffers from a “severe” impairment. 20 C.F.R. §§ 404.1520(c), 2 416.920(c). To show a severe impairment, the claimant must first establish the 3 existence of a medically determinable impairment by providing medical evidence 4 consisting of signs, symptoms, and laboratory findings; the claimant’s own 5 “statement of symptoms, a diagnosis, or a medical opinion is not sufficient to 6 establish the existence of an impairment.” 20 C.F.R. §§ 404.1521, 416.921.2 7 “[O]nce a claimant has shown that he suffers from a medically determinable 8 impairment, he next has the burden of proving that these impairments and their 9 symptoms affect his ability to perform basic work activities.” Edlund v. 10 Massanari, 253 F.3d 1152, 1159-60 (9th Cir. 2001). If the claimant fulfills this 11 burden, the ALJ must find the impairment “severe.” Id. 12 13 14 15 16 17 18 19 20 Here, the ALJ found that Plaintiff’s anxiety and depression were not medically determinable impairments: Here, the claimant’s anxiety and depression are merely subjective complaints without evidence supporting such impairments. The record contains multiple examples of normal mental status examinations. (Exhibits 6F, 9F, 11F, 15F 17F/7/22/35/49, 18F/60, 19F/33). Further, the claimant denied depression and thoughts of self-harm on multiple occasions. (see e.g., 13F). As well, the claimant declined to use any medication. Indeed, any anxiety or depression appears secondary to his physical condition. (Exhibit 17F/50/71). He does not have a psychological medically-determinable impairment. 21 22 States” and thus subject to the Appointments Clause. To the extent Lucia applies 23 to Social Security ALJs, the parties have forfeited the issue by failing to raise it in 24 their briefing. See Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1161 25 n.2 (9th Cir. 2008) (the Court will not consider matters on appeal that were not 26 specifically addressed in an appellant’s opening brief). 27 28 2 Prior to March 17, 2017, these requirements were set forth in 20 C.F.R. §§ 404.1508, 404.1528, 416.908, 416.928 (2016). ORDER GRANTING PLAINTIFF’S MOTION - 6 1 2 Tr. 18. The ALJ’s first finding, that the record contains multiple examples of 3 normal mental status examinations (MSE), is not supported by substantial 4 evidence. The ALJ points to several locations in the record that demonstrate 5 normal MSEs. Tr. 18. However, several of these citations show abnormal 6 findings: Exhibit 6F includes an October 5, 2015 exam by David Anderson, PA 7 that found Plaintiff’s judgment intact, orientation intact, memory intact, and mood 8 appropriate. Tr. 297. Exhibit 9F includes a May 23, 2016 exam showing 9 depressed, but not anxious affect. Tr. 311. It also includes a July 26, 2016 MSE 10 showing depressed mood and affect. Tr. 308. Exhibit 11F is from Spokane Ear, 11 Nose, and Throat Clinic and does not include a single MSE. Tr. 324-34. Exhibit 12 15F includes a September 2, 2009 evaluation showing Plaintiff to be anxious and 13 mildly unhappy. Tr. 515. It also includes a July 23, 2010 evaluation showing 14 “some very mild anxiety,” and a September 7, 2010 evaluation showing mild 15 anxiety and flat affect. Tr. 499, 501. It includes exams from November 10, 2010, 16 May 6, 2011, August 5, 2011, November 9, 2011, February 2, 2012 which show 17 normal psychological evaluations. Tr. 472, 481, 484, 487, 504. However, it also 18 includes a January 22, 2016 exam showing depressed affect and mildly pressured 19 speech, Tr. 464, and an exam on February 1, 2016 showing depressed affect with 20 mild psychomotor retardation, Tr. 530. Exhibit 17F/7 includes a normal 21 psychological exam dated February 9, 2016. Tr. 586. Exhibit 7F/22 includes a 22 psychological evaluation with a depressed, but not anxious affect with mild 23 psychomotor retardation from March 23, 2016. Tr. 601. Exhibit 7F/34 (the ALJ 24 miscited this as 7F/35) includes a psychological evaluation with depressed affect 25 and mild pressured speech. Tr. 613. Exhibit 7F/49 includes a psychological 26 evaluation with depressed, but not anxious affect. Tr. 628. Exhibit 18F/60 27 includes a normal psychological evaluation dated January 22, 2009. Tr. 715. 28 Exhibit 19F/33 includes a normal psychological evaluation dated February 22, ORDER GRANTING PLAINTIFF’S MOTION - 7 1 2012. Tr. 787. While some of the ALJ’s citations did show normal psychological 2 evaluations, most showed some abnormality. Therefore, his assertions that these 3 citations represent normal MSEs is not supported by substantial evidence. 4 The ALJ’s second finding, that Plaintiff denied depression and thoughts of 5 self-harm on multiple occasions, is supported by substantial evidence but does not 6 fully represent the evidence the ALJ cites. See Tr. 18 citing Exhibit 13F. Exhibit 7 13F includes a December 24, 2015 evaluation in which Plaintiff denied depression, 8 suicidal ideation, and homicidal ideation. Tr. 376. However, it also includes a 9 February 14, 2016 evaluation in which Plaintiff reported being “quite stressed and 10 is highly anxious.” The objective observations by the provider noted Plaintiff to be 11 anxious and tearful. Id. A single citation of Plaintiff’s denial of depression does 12 not overcome the multiple evaluations showing depressed affect discussed above. 13 The Ninth Circuit has recognized that it is not abnormal for mental health 14 symptoms to wax and wane in the course of treatment. Garrison v. Colvin, 759 15 F.3d 995, 1017 (9th Cir. 2014). Therefore, Plaintiff denying symptoms at some 16 point during treatment is not sufficient to support a finding of no psychological 17 medically determinable impairments at step two. 18 The ALJ’s third finding, that Plaintiff declined the use of medication, 19 misstates the record and is not supported by substantial evidence. Plaintiff was 20 prescribed Celexa for his depression and declined to fill the prescription. Tr. 310. 21 However, Plaintiff was also prescribed Alprazolam (Xanax) for his anxiety, Id., 22 and had been since July 23, 2010, Tr. 745. Exhibit 17F/50 states that Plaintiff 23 reported that he wanted to deal with the symptoms of his anxiety and depression 24 without medications. Tr. 629. The ALJ’s second citation, Exhibit 17F/71, 25 includes a notation by the provider that Plaintiff “continues to decline use of 26 antidepressant for either diagnosis.” Tr. 650. However, both citations included a 27 current prescription on file for Alprazolam as needed for anxiety. Tr. 633, 650. 28 Therefore, the ALJ’s conclusion that Plaintiff refused medication is not an accurate ORDER GRANTING PLAINTIFF’S MOTION - 8 1 representation of the record. Plaintiff was resistant to any medication prior to 2 starting Xanax for his anxiety. Tr. 729, 742. However, once he started Xanax, 3 there is evidence Plaintiff was taking it regularly. On February 9, 2016, Plaintiff 4 was given a script for fifteen pills. Tr. 586. By March 23, 2016, Plaintiff 5 requested a refill and stated he was using three pills a week. Tr. 600. By April 25, 6 2016, Plaintiff reported the dosage of Xanax was not helping and the provider 7 prescribed twice the strength. Tr. 612. 8 Plaintiff did consistently decline additional medication for depression. Tr. 9 629, 650. However, the ALJ’s finding that Plaintiff refused medication misstates 10 the record because he was consistently taking medication for anxiety. Therefore, 11 the ALJ’s determination is not supported by substantial evidence. 12 Defendant argues that any error at step two would be harmless because 13 ultimately, the step two decision was found in Plaintiff’s favor. ECF No. 17 at 9- 14 10. In doing so, she cites Lewis v. Astrue, 498 F.3d 909 (9th Cir. 2007). ECF No. 15 17 at 9. However, in Lewis, the Ninth Court found any error to be harmless 16 because, while the ALJ did not consider plaintiff’s bursitis at step two, the ALJ did 17 discuss the impairment in step four and accounted for any resulting limitations. 18 498 F.3d at 911. Here, since the ALJ did not find the depression or anxiety 19 medically determinable, he did not consider any resulting limitations at step four. 20 See S.S.R. 96-8p (“In assessing [residual functional capacity], the adjudicator must 21 consider limitations and restrictions imposed by all of an individual’s impairments, 22 even those that are not ‘severe.’”). 23 Defendant also argues that any error would be harmless because Plaintiff 24 failed to point to any specific limitations arising from his depression or anxiety that 25 would have impacted the ALJ’s analysis at step three or in the residual functional 26 capacity assessment. ECF No. 17 at 9. The Ninth Circuit has found that failing to 27 address an impairment at step two is not a reversible error when the claimant fails 28 to establish that the impairment would result in meeting or equaling a listing or ORDER GRANTING PLAINTIFF’S MOTION - 9 1 fails to specify limitations or restrictions in the residual functional capacity 2 assessment caused by the impairment. Burch v. Barnhart, 400 F.3d 676, 682-83 3 (9th Cir. 2005). In this case, Plaintiff specifically challenged the ALJ’s rejection 4 of a treating provider’s opinion that Plaintiff had marked limitations in his ability 5 to complete a normal workday and workweek without interruption from 6 psychologically based symptoms due to anxiety and depression. ECF No. 16 at 7 14-15. Evaluating limitations due to Plaintiff's anxiety and depression at step two 8 may necessitate reconsideration of the residual functional capacity at step four. In conclusion, the ALJ erred in failing to find Plaintiff’s anxiety and 9 10 depression as medically determinable impairments at step two. The error was 11 harmful, and a remand is necessary for the ALJ to make a new step two 12 determination. 13 2. 14 Medical Opinions Plaintiff argues the ALJ failed to properly consider and weigh the medical 15 opinions expressed by Douglas Hammerstrom, M.D. and David Anderson, PA. 16 ECF No. 16 at 13-17. 17 In weighing medical source opinions, the ALJ should distinguish between 18 three different types of physicians: (1) treating physicians, who actually treat the 19 claimant; (2) examining physicians, who examine but do not treat the claimant; 20 and, (3) nonexamining physicians who neither treat nor examine the claimant. 21 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). The ALJ should give more 22 weight to the opinion of a treating physician than to the opinion of an examining 23 physician. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). Likewise, the ALJ 24 should give more weight to the opinion of an examining physician than to the 25 opinion of a nonexamining physician. Id. 26 A. 27 In July and September of 2016, Dr. Hammerstrom completed a 28 Douglas Hammerstrom, M.D. Psychological/Psychiatric Evaluation and a Physical Functional Evaluation for the ORDER GRANTING PLAINTIFF’S MOTION - 10 1 Washington State Department of Social and Health Services. Tr. 306-09, 313-17. 2 He opined that Plaintiff was unable to meet the demands of sedentary work due to 3 his herniated disc at L5-S1. Tr. 314-15. Additionally, he found that Plaintiff had a 4 marked limitation to complete a normal workday and workweek without 5 interruptions from psychologically based symptoms. Tr. 307. The ALJ assigned 6 little weight the physical limitations and the single marked psychological limitation 7 opined by Dr. Hammerstrom. Tr. 24. Additionally, Dr. Hammerstrom wrote a 8 letter on January 23, 2017 in which he stated Plaintiff “has certainly been disabled 9 for many months, but will not be ready for work for some time after surgery even 10 if successful.” Tr. 912. The ALJ also assigned little weight to this letter. Tr. 24- 11 25. Considering the case is remanded for the ALJ to properly address Plaintiff’s 12 13 psychological symptoms at step two and Dr. Hammerstrom’s opinion includes 14 psychological limitations, the ALJ will readdress the opinion in full on remand. 15 B. David Anderson, PA 16 On October 5, 2015, Mr. Anderson opined that Plaintiff was limited to 17 sedentary work due to his lumbago. Tr. 301-02. He further opined that this 18 limitation would persist for twelve months with available medical treatment. Tr. 19 302. The ALJ assigned the opinion little weight. Tr. 24. Considering the case is being remanded, and the ALJ is instructed to make a 20 21 new step two determination and to address Dr. Hammerstrom’s opinion, the ALJ 22 will also readdress Dr. Anderson’s opinion. 23 3. 24 25 26 Plaintiff’s Symptom Statements Plaintiff contests the ALJ’s determination that Plaintiff’s symptom statements were unreliable. ECF No. 16 at 17-19. The ALJ found Plaintiff’s statements concerning the intensity, persistence, 27 and limiting effects of his symptoms to be “not entirely consistent with the medical 28 evidence and other evidence in the record.” Tr. 20. The evaluation of a claimant’s ORDER GRANTING PLAINTIFF’S MOTION - 11 1 symptom statements and their resulting limitations relies, in part, on the assessment 2 of the medical evidence. See 20 C.F.R. §§ 404.1529(c), 416.929(c); S.S.R. 16-3p. 3 Therefore, in light of the case being remanded for the ALJ to readdress the medical 4 source opinions in the file, a new assessment of Plaintiff’s subjective symptom 5 statements will be necessary. 6 4. Step Five 7 Plaintiff challenges the ALJ’s step five determination because it was based 8 on an incomplete hypothetical presented to the vocational expert. ECF No. 16 at 9 19-20. Because a new step two determination and a new residual functional 10 capacity determination is required on remand, the ALJ will also make a new step 11 five determination. 12 13 14 REMEDY Plaintiff urges the Court to apply the credit-as-true rule and remand this case for an immediate award of benefits. ECF No. 16 at 20. 15 The decision whether to remand for further proceedings or reverse and 16 award benefits is within the discretion of the district court. McAllister v. Sullivan, 17 888 F.2d 599, 603 (9th Cir. 1989). Under the credit-as-true rule, where (1) the 18 record has been fully developed and further administrative proceedings would 19 serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons 20 for rejecting evidence, whether claimant testimony or medical opinion; and (3) if 21 the improperly discredited evidence were credited as true, the ALJ would be 22 required to find the claimant disabled on remand, the Court remands for an award 23 of benefits. Revels v. Berryhill, 874 F.3d 648, 668 (9th Cir. 2017). Even when the 24 three prongs have been satisfied, the Court will not remand for immediate payment 25 of benefits if “the record as a whole creates serious doubt that a claimant is, in fact, 26 disabled.” Garrison, 759 F.3d at 1021. 27 Here, the ALJ’s error was in failing to identify Plaintiff’s medically 28 determinable impairments at step two. While this error results in the need for a ORDER GRANTING PLAINTIFF’S MOTION - 12 1 new residual functional capacity determination, it does not trigger the credit-as-true 2 rule. Therefore, remand for additional proceedings is the appropriate remedy in 3 this case. CONCLUSION 4 5 Accordingly, IT IS ORDERED: 6 1. 7 8 9 10 Defendant’s Motion for Summary Judgment, ECF No. 17, is DENIED. 2. Plaintiff’s Motion for Summary Judgment, ECF No. 16, is GRANTED, in part, and the matter is REMANDED for additional proceedings consistent with this order. 11 3. Application for attorney fees may be filed by separate motion. 12 The District Court Executive is directed to file this Order and provide a copy 13 to counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff 14 and the file shall be CLOSED. 15 DATED April 23, 2019. 16 17 18 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING PLAINTIFF’S MOTION - 13
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