Byrne v. Kijakazi

• Court: District Court, E.D. Washington
• Decided: April 23, 2021
• Docket: 4:20-cv-05080
• Status: Unknown

Opinion

1 FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON

2 Apr 23, 2021

3 SEAN F. MCAVOY, CLERK

4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6

7 MARLENE B.,1 No. 4:20-CV-5080-EFS

8 Plaintiff, ORDER GRANTING PLAINTIFF’S 9 v. SUMMARY-JUDGMENT MOTION AND DENYING DEFENDANT’S 10 ANDREW M. SAUL, the Commissioner SUMMARY-JUDGMENT MOTION of Social Security, 11 Defendant. 12 13 Before the Court are the parties’ cross summary-judgment motions.2 14 Plaintiff Marlene B. appeals the denial of benefits by the Administrative Law 15 Judge (ALJ). She alleges the ALJ erred by 1) failing to find a severe impairment at 16 step two, 2) discounting her symptom reports, and 3) failing to consider step three 17 and the remaining steps. In contrast, Defendant Commissioner of Social Security 18 asks the Court to affirm the ALJ’s decision finding Plaintiff not disabled. After 19

20 1 To protect the privacy of the social-security Plaintiff, the Court refers to her by 21 first name and last initial or by “Plaintiff.” See LCivR 5.2(c). 22 2 ECF Nos. 16 & 17. 23 1 reviewing the record and relevant authority, the Court finds the ALJ’s failure to 2 receive evidence from a medical expert as to the onset date of Plaintiff’s progressive 3 spinal condition consequentially impacted the denial of benefits. The Court grants 4 Plaintiff’s Motion for Summary Judgment, ECF No. 16, and denies the 5 Commissioner’s Motion for Summary Judgment, ECF No. 17. 6 I. Five-Step Disability Determination 7 A five-step sequential evaluation process is used to determine whether an 8 adult claimant is disabled.3 Step one assesses whether the claimant is currently 9 engaged in substantial gainful activity.4 If the claimant is engaged in substantial 10 gainful activity, benefits are denied.5 If not, the disability-evaluation proceeds to 11 step two.6 12 Step two assesses whether the claimant has a medically severe impairment, 13 or combination of impairments, which significantly limits the claimant’s physical 14 15 16 17 18

19 3 20 C.F.R. § 404.1520(a). 20 4 Id. § 404.1520(a)(4)(i). 21 5 Id. § 404.1520(b). 22 6 Id. 23 1 or mental ability to do basic work activities.7 If the claimant does not, benefits are 2 denied. 8 If the claimant does, the disability-evaluation proceeds to step three.9 3 Step three compares the claimant’s impairments to several recognized by the 4 Commissioner to be so severe as to preclude substantial gainful activity.10 If an 5 impairment meets or equals one of the listed impairments, the claimant is 6 conclusively presumed to be disabled.11 If an impairment does not, the disability- 7 evaluation proceeds to step four. 8 Step four assesses whether an impairment prevents the claimant from 9 performing work she performed in the past by determining the claimant’s residual 10 functional capacity (RFC).12 If the claimant is able to perform prior work, benefits 11 are denied.13 If the claimant cannot perform prior work, the disability-evaluation 12 proceeds to step five. 13 Step five, the final step, assesses whether the claimant can perform other 14 substantial gainful work—work that exists in significant numbers in the national 15

16 7 20 C.F.R. § 404.1520(a)(4)(ii). 17 8 Id. § 404.1520(c). 18 9 Id. 19 10 Id. § 404.1520(a)(4)(iii). 20 11 Id. § 404.1520(d). 21 12 Id. § 404.1520(a)(4)(iv). 22 13 Id. 23 1 economy—considering the claimant’s RFC, age, education, and work experience.14 2 If so, benefits are denied. If not, benefits are granted.15 3 The claimant has the initial burden of establishing entitlement to disability 4 benefits under steps one through four.16 At step five, the burden shifts to the 5 Commissioner to show that the claimant is not entitled to benefits.17 6 II. Factual and Procedural Summary 7 Plaintiff filed a Title II application, alleging an amended disability onset 8 date of April 1, 2013.18 Her claim was denied initially and upon reconsideration.19 9 A video administrative hearing was held before Administrative Law Judge Jesse 10 Shumway.20 11 In denying Plaintiff’s disability claim, the ALJ made the following findings: 12 • Plaintiff met the insured status requirements through March 31, 13 2016; 14 15

16 14 Id. § 404.1520(a)(4)(v); Kail v. Heckler, 722 F.2d 1496, 1497-98 (9th Cir. 1984). 17 15 20 C.F.R. § 404.1520(g). 18 16 Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). 19 17 Id. 20 18 AR 151-57. 21 19 AR 86-88 & 90-92. 22 20 AR 36-64. 23 1 • Step one: Plaintiff had not engaged in substantial gainful activity 2 since April 1, 2013, the alleged onset date, through her date last 3 insured of March 31, 2016; and 4 • Step two: Plaintiff had no severe impairments and the following non- 5 severe medically determinable impairments: cervical and lumbar 6 degenerative disk disease, history of GERD, history of 7 hypothyroidism, history of pinworm, vision changes, and obesity.21 8 When assessing the medical-opinion evidence, the ALJ gave great weight to 9 the non-examining opinion of James Irwin, M.D.22 10 The ALJ also found that Plaintiff’s medically determinable impairments 11 could reasonably be expected to cause some of the alleged symptoms, but that her 12 statements concerning the intensity, persistence, and limiting effects of those 13 14 15

16 21 AR 13-27. 17 22 AR 21. The ALJ also stated that he gave some weight to the opinions of the 18 “physicians employed by the State Disability Determination Services,” who found 19 Plaintiff was not disabled because she did not have a severe medical impairment. 20 However, the only physician offering an opinion was Dr. Irwin. Neither Robert 21 Holt-Mathews, Laura Christiansen, nor Victoria Byington listed medical 22 credentials. AR 21, 68, 73, & 82. 23 1 symptoms were not entirely consistent with the medical evidence and other 2 evidence in the record.23 3 Plaintiff requested review of the ALJ’s decision by the Appeals Council, 4 which denied review.24 Plaintiff timely appealed to this Court. 5 III. Standard of Review 6 A district court’s review of the Commissioner’s final decision is limited.25 The 7 Commissioner’s decision is set aside “only if it is not supported by substantial 8 evidence or is based on legal error.”26 Substantial evidence is “more than a mere 9 scintilla but less than a preponderance; it is such relevant evidence as a reasonable 10 mind might accept as adequate to support a conclusion.”27 Moreover, because it is 11 the role of the ALJ and not the Court to weigh conflicting evidence, the Court 12 upholds the ALJ’s findings “if they are supported by inferences reasonably drawn 13 from the record.”28 The Court considers the entire record as a whole.29 14

15 23 AR 20-22. 16 24 AR 1-6. 17 25 42 U.S.C. § 405(g). 18 26 Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). 19 27 Id. at 1159 (quoting Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997)). 20 28 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). 21 29 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (The court “must 22 consider the entire record as a whole, weighing both the evidence that supports and 23 1 Further, the Court may not reverse an ALJ decision due to a harmless 2 error.30 An error is harmless “where it is inconsequential to the [ALJ’s] ultimate 3 nondisability determination.”31 The party appealing the ALJ’s decision generally 4 bears the burden of establishing harm.32 5 IV. Analysis 6 A. Step Two: Plaintiff establishes consequential error. 7 At step two of the sequential process, the ALJ must determine whether the 8 claimant suffers from a “severe” impairment, i.e., one that significantly limits her 9 physical or mental ability to do basic work activities.33 To establish a severe 10 impairment, the claimant must first demonstrate that the impairment results from 11 anatomical, physiological, or psychological abnormalities that can be shown by 12 medically acceptable clinical or laboratory diagnostic techniques.34 In other words, 13

14 the evidence that detracts from the Commissioner's conclusion,” not simply the 15 evidence cited by the ALJ or the parties.) (cleaned up); Black v. Apfel, 143 F.3d 383, 16 386 (8th Cir. 1998) (“An ALJ's failure to cite specific evidence does not indicate that 17 such evidence was not considered[.]”). 18 30 Molina, 674 F.3d at 1111. 19 31 Id. at 1115 (quotation and citation omitted). 20 32 Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009). 21 33 20 C.F.R. § 404.1505. 22 34 Id. § 404.1521. 23 1 the claimant must establish the existence of the physical or mental impairment 2 through objective medical evidence (i.e., signs, laboratory findings, or both) from an 3 acceptable medical source. The medical impairment cannot be established by the 4 claimant’s statement of symptoms, a diagnosis, or a medical opinion.35 5 The ALJ must assess and rate the “degree of functional limitation resulting 6 from [the claimant’s] impairments.”36 An impairment may be found to be not 7 severe when “medical evidence establishes only a slight abnormality or a 8 combination of slight abnormalities which would have no more than a minimal 9 effect on an individual’s ability to work.”37 Similarly, an impairment is not severe if 10 it does not significantly limit a claimant’s physical or mental ability to do basic 11 work activities, which include: walking, standing, sitting, lifting, pushing, pulling, 12 reaching, carrying, or handling; seeing, hearing, and speaking; understanding, 13 carrying out and remembering simple instructions; use of judgment, responding 14 appropriately to supervision, coworkers and usual work situations; and dealing 15 with changes in a routine work setting.38 16 17 18

19 35 Id. 20 36 20 C.F.R. § 404.1520a(b)(2)-(c)(4). 21 37 Social Security Ruling (SSR) 85-28 at *3. 22 38 Id.; 20 C.F.R. § 404.1522(a). 23 1 Step two is “a de minimus screening device [used] to dispose of groundless 2 claims.”39 “Thus, applying our normal standard of review to the requirements of 3 step two, [the Court] must determine whether the ALJ had substantial evidence to 4 find that the medical evidence clearly established that [Plaintiff] did not have a 5 medically severe impairment or combination of impairments.”40 6 Here, the ALJ found that Plaintiff had the following medically determinable 7 impairments: cervical and lumbar degenerative disk disease, history of GERD, 8 history of hypothyroidism, history of pinworm, vision changes, and obesity.41 9 However, the ALJ found Plaintiff’s impairments did not significantly limit her 10 ability to perform basic-work activities for twelve consecutive months and thus did 11 not qualify as severe at step two during the relevant period.42 The ALJ also found 12 that Plaintiff did not have a cognitive impairment or Alzheimer’s disease during 13 the relevant period. 14 After reviewing the record, the Court finds the ALJ neither sufficiently 15 considered the progressive nature of Plaintiff’s spinal condition nor recognized that 16 the only medical opinion of record considered an alleged disability period ending 17 18

19 39 Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). 20 40 Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005). 21 41 AR 19. 22 42 AR 19-22. 23 1 about six months too soon. The only medical opinion of record was Dr. Irwin’s 2 reviewing opinion.43 Dr. Irwin opined: 3 There is no objective medical evidence of record (MER) showing listing level severity for any medically determinable impairment (MDI). The 4 MER is insufficient evidence from alleged onset date through date last insured (DLI) to establish severity and functional limitations related 5 to alleged MDI’s. It could be stated that her spine condition was non- severe through DLI based on 2011 MER.44 6

The 2011 medical evidence included imaging of Plaintiff’s lumbar and cervical 7 spine, which revealed mild degenerative change of the lower lumbar spine at L1- 8 L2, L2-L3, and L3-L4, mild disc height loss and osteophytic spurring at T10-T11 9 and T11-12, and degenerative joint disease at C3-C4 with moderate disc space 10 narrowing.45 Dr. Irwin also reviewed a subsequent February 2017 MRI of the 11 lumbar spine. That MRI revealed: 12 • Lower lumbar spondylosis most prominent at L4-L5 and L5-S1 resulting 13 in varying degree of mild to moderate spinal canal narrowing secondary 14 to posterior disc osteophyte complex with superimposed annular tear 15 posterior centrally at L5-S1, and 16 17 18

19 43 Neither Mr. Holt-Mathews, Ms. Christiansen, nor Ms. Byington indicate they 20 have a medical degree. AR 65-83. 21 44 AR 80 (cleaned up). 22 45 AR 292-93. 23 1 • Moderate right inferior foraminal narrowing at L5-S1 with some 2 perceived impingement on the undersurface of the exiting right L5 nerve 3 root.46 4 Thus, the imaging indicated that Plaintiff’s degenerative disc disease had 5 progressed by February 2017 to what typically would be considered a severe 6 impairment as it involved moderate conditions with impingement. But Dr. Irwin 7 deemed the 2017 MRI “one year after DLI [date last insured]” was insufficient to 8 establish that Plaintiff’s spine condition was severe before the DLI of September 9 30, 2015, used by Dr. Irwin.47 10 The ALJ failed to mention that Dr. Irwin used an incorrect DLI. Dr. Irwin 11 used September 30, 2015, as the DLI. The correct DLI was six months later on 12 March 31, 2016.48 The Commissioner submits Dr. Irwin’s use of a September 30, 13 2015 DLI had no impact on the ALJ’s nondisability decision because the record 14 lacks evidence indicating that Plaintiff’s spinal condition was moderately limiting 15 by the correct DLI of March 31, 2016.49 In contrast, Plaintiff submits that because 16 the record reflects she had a progressive condition—degenerative disk disease— 17

18 46 AR 334-35. 19 47 AR 80. 20 48 See AR 79-81 (noting DLI used was September 30, 2015). 21 49 ECF No. 20. The Court asked for supplemental briefing on this issue as neither 22 party addressed Dr. Irwin’s incorrect DLI in their initial briefing. ECF No. 19. 23 1 dating back to at least 2011 and because she presented with numbness, tingling, 2 pain, and weakness of her lower extremities in January 2017, the ALJ erred by 3 failing to obtain a medical expert to interpret the February 2017 MRI in 4 conjunction with the correct DLI of March 31, 2016.50 5 The Court acknowledges that determining the onset date for progressive 6 conditions is challenging, and that the Court must defer to an ALJ’s evidentiarily 7 supported findings.51 However, an ALJ may not render his own medical opinion.52 8 Critically, there is no medical opinion as to whether the severe (moderate) spine 9 impairment seen on the February 2017 MRI was present by the correct DLI of 10 March 31, 2016—a date six months after the DLI considered by Dr. Irwin.53 On 11 this record, which reflects that Plaintiff suffered from a degenerative disc disease 12

13 50 ECF No. 21 (citing AR 292 & 322-23). 14 51 See Diedrich v. Berryhill, 874 F.3d 634, 639 (9th Cir. 2017); SSR 18-01p, at I.B.2 15 (highlighting that, if more information is needed beyond the then-current medical 16 record or evidence from non-medical sources, the ALJ can call a medical expert to 17 help determine whether the claimant with a progressive impairment met the 18 statutory definition of disability during the relevant period). 19 52 See Tackett v. Apfel, 180 F.3d 1094, 1102-03 (9th Cir. 1999). 20 53 See generally McBrayer v. Sec'y of Health & Human Servs., 712 F.2d 795, 799 21 (2d Cir. 1983); Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998); Lester v. 22 Chater, 81 F.3d 821, 830 (9th Cir. 1995). 23 1 since 2011, remand is required. The Court appreciates that “[e]ven with a medical 2 advisor, the date of onset of [a severe impairment] in this challenging case might . . 3 . remain[] somewhat debatable and mysterious. But with testimony from a medical 4 advisor, at least the ALJ [can] exercise an informed judgment based on medical 5 science.”54 Without more evidence and explanation, the ALJ’s step-two error was 6 consequential. 7 B. Plaintiff’s Reports: Plaintiff establishes consequential error. 8 Plaintiff argues the ALJ failed to provide valid reasons for rejecting her 9 symptom reports. When examining a claimant’s symptom reports, the ALJ must 10 make a two-step inquiry. “First, the ALJ must determine whether there is objective 11 medical evidence of an underlying impairment which could reasonably be expected 12 to produce the pain or other symptoms alleged.”55 Second, “[i]f the claimant meets 13 the first test and there is no evidence of malingering, the ALJ can only reject the 14 claimant’s testimony about the severity of the symptoms if [the ALJ] gives ‘specific, 15 clear and convincing reasons’ for the rejection.”56 Here, the ALJ found Plaintiff’s 16 statements concerning the intensity, persistence, and limiting effects of her 17 symptoms inconsistent with the residual functional assessments done at the state 18

19 54 Diedrich, 874 F.3d at 639-40. 20 55 Molina, 674 F.3d at 1112. 21 56 Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (quoting Lingenfelter, 504 22 F.3d at 1036). 23 1 agency level, the lack of medical treatment from 2013 to 2017, Plaintiff’s high- 2 functioning activities during and after the relevant period, and the objective 3 medical evidence.57 4 First, the ALJ discounted Plaintiff’s reported severe symptoms because they 5 were inconsistent with the residual functional capacity assessments done by the 6 state agency. Those assessments indicate that Plaintiff had no severe impairments 7 before her date last insured. However, only one of these state-agency level 8 disability determinations was done by a medical professional, James Irwin, M.D.58 9 As explained above, the ALJ failed to discuss that Dr. Irwin considered an alleged 10 disability period ending about six months before the correct alleged relevant 11 disability period. Because of the progressive nature of Plaintiff’s spinal condition, 12 the ALJ’s finding that Plaintiff’s severe symptoms were inconsistent with Dr. 13 Irwin’s medical assessment based on a DLI that ended six months too soon was not 14 a clear and convincing reason supported by substantial evidence to discount 15 Plaintiff’s reported symptoms.59 16 17

18 57 AR 20-22. 19 58 Neither Mr. Holt-Mathews, Ms. Christiansen, nor Ms. Byington indicate they 20 have a medical degree. AR 65-83. 21 59 See generally Reddick, 157 F.3d at 725; Lester, 81 F.3d at 830; McBrayer, 712 22 F.2d at 799. 23 1 Second, the ALJ discounted the severity of Plaintiff’s reported symptoms 2 because Plaintiff offered no “coherent, persuasive explanation for her lack of 3 treatment during the relevant period from April 2013 to her date last insured in 4 March 2016,” thereby indicating that her impairments were not as severe as she 5 alleges.60 A claimant’s inadequately explained failure to seek treatment may 6 discredit a disability allegation.61 Moreover, the length of treatment and frequency 7 of examination are relevant factors for the ALJ to consider.62 Yet, the ALJ must 8 discuss whether the claimant’s articulated reasons for not seeking treatment 9 constitute good cause for not doing so.63 Here, the ALJ considered the testimony 10 from Plaintiff and her husband that Plaintiff did not receive medical treatment 11 from 2013 to 2017 because she did not have medical insurance and could not afford 12 to pay for it. They explained that they did not seek state health insurance for 13 Plaintiff until late 2016 because 1) in 2015 Plaintiff lived either in Brazil with 14 family or at her husband’s daughter’s house in New Jersey for several months 15 while her husband dealt with a significant health condition for over a year in New 16 Jersey, 2) Plaintiff and her husband returned to Washington in either late 2015 or 17 early 2016, 3) they did not understand that state insurance was available for 18

19 60 AR 22. 20 61 Fair v. Bowen, 885 F.2d 597, 603-04 (9th Cir. 1989). 21 62 See also 20 C.F.R. § 404.1527(d)(2)(i). 22 63 Fair, 885 F.2d at 603. 23 1 Plaintiff even though her husband had Medicare, 4) they received information and 2 assistance from the Veterans Administration (VA) during the summer of 2016 to 3 understand how to apply for the state health insurance in Washington, and 5) 4 Plaintiff relies on her husband to do the paperwork to obtain health insurance 5 because she speaks English as a second language, does not read English, and only 6 went to school until sixth grade in Brazil.64 With the assistance of her husband and 7 the VA’s guidance, Plaintiff obtained health insurance through the state, effective 8 2017. Thereafter, she began regularly receiving medical treatment. 9 The ALJ found these circumstances did not constitute good cause for failure 10 to seek regular medical treatment during the relevant period but the ALJ failed to 11 meaningfully explain and support this reason. The ALJ did not cite to evidence 12 contravening Plaintiff’s and her husband’s testimony that they did not know how to 13 navigate the health-care system without the VA’s guidance, or contravening 14 Plaintiff’s assertions that her English capabilities are limited. Moreover, the record 15 is consistent with the testimony that Plaintiff resided out of the country and in 16 New Jersey for a period of time.65 The record also reflects that, as soon as Plaintiff 17 obtained insurance in 2017, she routinely received treatment. Without a more 18 meaningful explanation or additional evidence, the ALJ’s finding that Plaintiff 19

20 64 AR 45-49 & 55-63. 21 65 AR 357 (noting that she received medical care in Brazil and New Jersey) & AR 22 347 (noting that she was moving back to Brazil). 23 1 failed to offer a coherent, persuasive explanation for her lack of treatment during 2 the relevant period is not a clear and convincing reason supported by substantial 3 evidence to discount Plaintiff’s reported symptoms.66 4 Third, the ALJ discounted Plaintiff’s reported symptoms because of her 5 high-functioning activities of daily living during and after the relevant period. If a 6 claimant can spend a substantial part of the day engaged in pursuits involving the 7 performance of exertional or non-exertional functions similar to those required for 8 work, the ALJ may find these activities inconsistent with the reported disabling 9 symptoms.67 The ALJ highlighted that, in January 2017 (after her date last 10 insured), Plaintiff cared for her ill husband, had no problems with personal care, 11 made complete meals, swept, vacuumed, did laundry, went outside daily, went out 12 alone, drove, shopped in stores, and managed financial accounts.68 In order for 13 Plaintiff’s cited activities to be high-functioning activities of daily living 14

15 66 See Shirey v. Astrue, No. 3:09-CV-312-J-JRK, 2010 WL 3190608, at *6 (M.D. Fla. 16 Aug. 11, 2010) (finding the ALJ erred by not addressing the claimant’s explanation 17 that she did not have money to visit the doctor on a more regular basis); Cf. 18 Hammond v. Apfel, 5 Fed. App’x 101, 104 (4th Cir. Feb. 1, 2001) (finding the 19 claimant failed to explain why he could not afford treatment during the four-year 20 period before his treatment). 21 67 Molina, 674 F.3d at 1113. 22 68 AR 22 (citing 212-19). 23 1 constituting a clear and convincing reason to discount Plaintiff’s symptoms, the 2 ALJ needed to more meaningfully articulate this finding. These cited activities, 3 which as Plaintiff described were done in small time increments, do not contradict 4 her claims of chronic headaches, spine pain, radiating arm and leg pain, and 5 memory problems that would limit her ability to sustain full-time work.69 6 Finally, as to the ALJ’s finding that Plaintiff’s symptom reports were 7 inconsistent with the objective medical evidence, symptom reports cannot be solely 8 discounted on the grounds that they were not fully corroborated by the objective 9 medical evidence.70 Because the ALJ’s other offered reasons for discounting 10 Plaintiff’s symptom reports are not supported by substantial evidence or 11 meaningful explanation, this sole reason cannot save the ALJ’s symptom-report 12 assessment.71 13 On remand, if the ALJ discounts Plaintiff’s symptom reports, the ALJ must 14 more meaningfully articulate the reasons for doing so with citation to supporting 15 evidence. 16 17 18

19 69 See Molina, 674 F.3d at 1112-13. 20 70 See Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). 21 71 3 Soc. Sec. Law & Prac. § 36:26, Consideration of objective medical evidence 22 (2019). 23 1 C. Remand for Further Proceedings 2 The decision whether to remand a case for additional evidence, or simply to 3 award benefits, is within the discretion of the court.”72 The Court finds that further 4 development is necessary for a proper disability determination.73 On remand, the 5 ALJ is to obtain medical expert testimony at the hearing to ascertain whether 6 Plaintiff’s spinal conditions became severe before the DLI. If Plaintiff had a severe 7 medical impairment before the DLI, the ALJ shall proceed with the remaining 8 disability-assessment steps as appropriate. 9 V. Conclusion 10 Accordingly, IT IS HEREBY ORDERED: 11 1. Plaintiff’s Motion for Summary Judgment, ECF No. 16, is 12 GRANTED. 13 2. The Commissioner’s Motion for Summary Judgment, ECF No. 17, is 14 DENIED. 15 3. The Clerk’s Office shall enter JUDGMENT in favor of Plaintiff 16 REVERSING and REMANDING the matter to the Commissioner of 17 18

19 72 Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987). 20 73 Leon v. Berryhill, 880 F.3d 1041, 1045 (9th Cir. 2017); Benecke v. Barnhart, 379 21 F.3d 587, 595 (9th Cir. 2004) (“[T]he proper course, except in rare circumstances, is 22 to remand to the agency for additional investigation or explanation”). 23 Social Security for further proceedings consistent with this recommendation pursuant to sentence four of 42 U.S.C. § 405(g). 4, The case shall be CLOSED. ITIS SO ORDERED. The Clerk’s Office is directed to file this Order and provide copies to all counsel. DATED this □□□ day of April 2021. Bed F Sew EDWARD F.SHEA Senior United States District Judge

ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 20