Johnson v. Kijakazi

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JAMES J.,1 Case No.: 23-CV-481 JLS (AHG)

12 Plaintiff, ORDER: 13 v. (1) ADOPTING REPORT & 14 FRANK BISIGNANO, Commissioner of RECOMMENDATION; Social Security,2 15 Defendants. (2) OVERRULING PLAINTIFF’S 16 OBJECTIONS; 17 (3) DENYING PLAINTIFF’S 18 REQUEST FOR JUDICIAL NOTICE; 19 (4) GRANTING DEFENDANT’S 20 MOTION TO REMAND; 21 (5) DENYING PLAINTIFF’S 22 MOTION TO BIFURCATE; AND 23 24 25 1 Pursuant to Civil Local Rule 7.1(e)(6)(b), “[o]pinions by the Court in [Social Security cases arising under 42 U.S.C. § 405(g)] will refer to any non-government parties by using only their first name and last initial.” 26 2 Frank Bisignano became the Acting Commissioner of Social Security in May 2025. Although Plaintiff 27 originally brought this action against Former Commissioner Kilolo Kijakazi, pursuant to Rule 25(d) of 28 the Federal Rules of Civil Procedure, Frank Bisignano is substituted as Defendant in this suit 1 (M6)O DTEIONYNI FNOGR P SLAANINCTTIIFOFN’SS 2

3 (ECF Nos. 61, 63, 87, 103, 106, 107, 108, 4 109, 112) 5 6

7 Presently before the Court are Defendant Frank Bisignano’s (“Defendant” or 8 “Commissioner”) Motion to Remand (“Remand Mot.,” ECF No. 61), Plaintiff James J.’s 9 (“Plaintiff”) Motion to Bifurcate (“Bifurcate Mot.,” ECF No. 63), and Plaintiff’s Motion 10 for Sanctions (“Sanctions Mot.,” ECF No. 87). Magistrate Judge Allison H. Goddard 11 submitted a Report and Recommendation (“R&R,” ECF No. 103) recommending the Court 12 grant Defendant’s Motion to Remand, deny Plaintiff’s Motion to Bifurcate as moot, and 13 deny Plaintiff’s Motion for Sanctions. Plaintiff then filed three Objections to the R&R 14 (“Remand Objs.,” ECF No. 106) (“Bifurcate Objs.,” ECF No. 107) (“Sanctions Objs.,” 15 ECF No. 108). Defendant subsequently filed a Response to Plaintiff’s Objections. ECF 16 No. 110. Then, Plaintiff filed Amended Objections to the R&R (“Amended Objs,” ECF 17 No. 112). 18 BACKGROUND 19 Plaintiff, proceeding pro se, initiated this action against the Commissioner of the 20 Social Security Administration (the “SSA” or “Agency”), on March 16, 2023. See ECF 21 No. 1. Plaintiff moved for leave to proceed in forma pauperis (“IFP”) and for the 22 appointment of counsel the same day. See ECF Nos. 2, 3. Though Plaintiff styled his suit 23 as a social security matter brought under 42 U.S.C. § 405(g), he also asserted several other 24 causes of action. See ECF Nos. 1, 1-2. Plaintiff then filed a myriad of additional motions. 25 See ECF Nos. 4, 6, 13, 14, 17, 20, 22, 26. 26 On May 31, 2023, Plaintiff filed his First Amended Complaint (“FAC,” ECF 27 No. 23). Before the FAC could be screened—or any pending motions could be ruled on— 28 this case was low-numbered to the undersigned in accordance with Civil Local Rule 40.1.g 1 due to commonalities between this matter and a previously filed case: Johnson v. Saul, 20- 2 CV-747 JLS (AHG). See ECF No. 31. 3 On September 7, 2023, this Court granted Plaintiff’s Motion to Proceed IFP but 4 dismissed the FAC without prejudice pursuant to 28 U.S.C. § 1915(e)(2) for failure to 5 comply with Federal Rule of Civil Procedure 8. See generally ECF No. 32. The Court 6 explained that the 1,148-page pleading was so unwieldly that “further screening of 7 Plaintiff’s FAC on the merits would be a waste of judicial resources.” Id. at 20. The Court 8 granted Plaintiff sixty days in which to file a second amended complaint, but also cautioned 9 Plaintiff against refiling “a similarly opaque and overlong amended complaint” in the 10 future. Id. at 20–21. 11 After twice requesting—and receiving—extensions of time, see ECF Nos. 40, 41, 12 43, 45, Plaintiff filed his Second Amended Complaint on March 11, 2024 (“SAC,” ECF 13 No. 46). The SAC, among other things, brought a § 405(g) claim challenging the ALJ’s 14 September 28, 2022 dismissal of Plaintiff’s hearing request for failure to appear, as made 15 binding when the Appeals Council denied review in a notice dated January 11, 2023. See 16 SAC ¶¶ 216, 218. The Court subsequently dismissed without prejudice and without leave 17 to amend all claims for relief in the SAC for lack of subject matter jurisdiction pursuant to 18 28 U.S.C. §§ 1915(e)(2)(B)(i) and (iii) except for Plaintiff’s 42 U.S.C. § 405(g) action for 19 judicial review of the Commissioner’s final decision declining to excuse Plaintiff’s failure 20 to appear at the August 9, 2022 hearing. ECF No. 51 (“SAC Order”) at 24. The case was 21 then referred to Magistrate Judge Goddard for Report and Recommendation pursuant to 22 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.1. ECF No. 52. 23 Thereafter, Plaintiff filed more ex parte motions. ECF Nos. 50, 53, 55, 59, 60. 24 Defendant subsequently filed the Administrative Record (“AR”). ECF Nos. 57, 58. On 25 July 8, 2024, Defendant filed its Motion for Voluntary Remand Pursuant to Sentence Four 26 of 42 U.S.C. § 405(g). See Remand Mot. Plaintiff then filed a Motion to Bifurcate Claims. 27 See Bifurcate Mot. Plaintiff next filed his Opposition to Defendant’s Motion (“Remand 28 Opp’n,” ECF No. 75), and a flurry of other ex parte motions, see ECF Nos. 66, 80, 81, 85, 1 86. On August 28, 2024, Plaintiff filed a Motion for Sanctions, see Sanctions Mot., 2 followed by more ex parte motions, see ECF Nos. 96, 97, 100. Defendant filed an 3 Opposition to Plaintiff’s Motion for Sanctions, see ECF No. 93, to which Plaintiff filed a 4 Reply, see ECF No. 95. 5 Magistrate Judge Goddard issued her Report and Recommendation on February 14, 6 2025. See R&R. Plaintiff subsequently filed an Ex Parte Motion to Delay Proceedings to 7 allow him time to file objections, see ECF No. 104, which the Court construed as a request 8 for an extension of time, and granted Plaintiff sixty (60) days to file his objections, see ECF 9 No. 105. Apparently not receiving or reviewing the Court’s Order in time, Plaintiff filed 10 his Objections the next day, see ECF Nos. 106, 107, 108, along with a Request for Judicial 11 Notice, see ECF No. 109. Defendant filed a Reply on March 3, 2025, and on May 1, 2025, 12 Plaintiff filed Amended Objections to the R&R (“Amend Objs.,” ECF No. 112). 13 LEGAL STANDARD 14 Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district 15 court’s duties in connection with a magistrate judge’s R&R. The district court must “make 16 a de novo determination of those portions of the report or specified proposed findings or 17 recommendations to which objection is made,” and “may accept, reject, or modify, in 18 whole or in part, the findings or recommendations made by the magistrate judge.” 19 28 U.S.C. § 636(b)(1); see also United States v. Raddatz, 447 U.S. 667, 673–76 (1980). In 20 the absence of a timely objection, however, the Court “need only satisfy itself that there is 21 no clear error on the face of the record in order to accept the recommendation.” Fed. R. 22 Civ. P. 72 advisory committee’s note (citing Campbell v. U.S. Dist. Ct., 501 F.2d 196, 206 23 (9th Cir. 1974)). 24 ANALYSIS 25 I. Motion to Remand 26 In the Motion to Remand, Defendant voluntarily requests that the Court enter 27 judgment in favor of Plaintiff and against Defendant, reversing the final decision of the 28 Commissioner and remanding this action for further administrative proceedings. 1 Specifically, the Commissioner states that, because “it is not evident from the record that 2 the ALJ considered Plaintiff’s June 22, 2022 request to change the time and place of the 3 hearing,” the Court should order a new hearing and decision by an administrative law judge 4 under sentence four of Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g). 5 Remand Mot. at 3–4. Plaintiff opposes the Motion to Remand, arguing it was “filed for 6 improper purposes,” including to cause delay and perpetrate fraud. Remand Opp’n at 4. 7 Plaintiff argues the Court should instead reach the merits of his Title II disability 8 application rather than remanding for further proceedings. Id. at 20–21. 9 Magistrate Judge Goddard recommends granting Defendant’s Motion to Remand as 10 the scope of Plaintiff’s § 405(g) claim on appeal is limited to the question of whether the 11 Commissioner erred by dismissing Plaintiff’s request for a hearing, and such question has 12 been rendered moot by the Commissioner’s request to reverse its own decision and remand 13 the case to provide Plaintiff the hearing he was previously denied. R&R at 3. 14 Plaintiff’s Objections largely rehash the arguments in his original Opposition to 15 Defendant’s Motion, that his case should not be remanded to the agency because of alleged 16 bad faith on Defendant’s part, the length of the delay, and the impact of such delay on the 17 availability of witnesses and evidence.3 See generally Remand Objs.; see also Amended 18 Objs. at 12–18. He also includes exhibits labeled “WeThePeople Are Sovereign Supreme,” 19 which provides that “WeThePeople are the supreme sovereign of USA, not the 20 governments,” as well as his own Declaration, and purported reports of SSA claims 21 processing. See Amended Objs. 22 Plaintiff’s Objections additionally challenge the Court’s prior Order dismissing the 23 24 25 3 The Court notes one of Plaintiff’s repeated objections is to the R&R’s referencing of Former Commissioner Carolyn Colvin as Defendant in one instance. See e.g., Remand Objs. at 6–7; Amended 26 Objs. at 6. Plaintiff appears to suggest, based on the foregoing, that Judge Goddard reviewed the wrong Motion to Remand for the purposes of her Report and Recommendation. The Court finds it clear Judge 27 Goddard reviewed and formed her Recommendation on the proper Motion (ECF No. 61), despite the 28 change in Commissioners between such Motion and the issuance of the R&R. Accordingly, the Court 1 other claims in his SAC. See Remand Objs. at 8–12, 28–29, 32–42; Amended Objs. 2 at 6–11, 21–29. However, Plaintiff has already moved for, and was denied, reconsideration 3 of the Court’s May 6, 2024 Order screening his SAC, see ECF Nos. 55, 56, thus these 4 challenges are not proper objections to the present R&R. See ECF No. 56 at 10 (“The 5 Court will entertain no further motions from Plaintiff concerning the May 6, 2024 Order.”). 6 Additionally, after a de novo review of the R&R’s reasoning, the Parties’ briefing, 7 the record evidence, and applicable legal authorities, the Court agrees with Magistrate 8 Judge Goddard’s Recommendation. As Judge Goddard explained, the Court’s review is 9 limited to the procedural decision made by the ALJ to dismiss Plaintiff’s hearing request 10 based on the ALJ’s finding that Plaintiff did not show good cause for failing to attend the 11 second hearing on his application. R&R at 3 (citing SAC Order at 18–20). That question 12 is now moot as the Commissioner has moved to reverse his own decision and remand the 13 case to provide Plaintiff the hearing he was previously denied. 14 Moreover, to the extent Plaintiff seeks an immediate award of benefits, the Court 15 cannot remand a case for the immediate award of benefits unless—among other 16 requirements—“the record has been fully developed and further administrative 17 proceedings would serve no useful purpose[.]” Garrison v. Colvin, 759 F.3d 995, 1020 18 (9th Cir. 2014); see also Taylor v. Comm’r of Soc. Sec. Admin., 659 F.3d 1228, 1235 (9th 19 Cir. 2011) (“Remand for further proceedings is appropriate where there are outstanding 20 issues that must be resolved before a disability determination can be made, and it is not 21 clear from the record that the ALJ would be required to find the claimant disabled if all the 22 evidence were properly evaluated.” (citation omitted)). Here, Plaintiff himself argues, even 23 in his Objections, that the record is not fully developed. See Remand Objs. at 22 (“The 24 ALJ and Agency violated due process Rights by denial of full record development[.]”), 25 25 (“Yes, the Plaintiff complained about the record not being fully developed due to criminal 26 acts of personnel. However, the die is cast now; the record can no longer be more fully 27 developed.”). 28 Nor have the merits of Plaintiff’s disability application been finally decided by the 1 agency. Because the Appeals Council vacated the ALJ’s first decision and ordered a new 2 hearing, the ALJ’s dismissal of Plaintiff’s hearing request due to Plaintiff’s failure to 3 appear at the second hearing reinstalled the denial of Plaintiff’s disability application at the 4 reconsideration level—it did not reinstall the ALJ’s unfavorable decision that had been 5 vacated by the Appeals Council. See AR 13 (the ALJ’s September 28, 2022 decision, 6 which became the Commissioner’s final decision on appeal to this Court, stating that 7 Plaintiff’s “request for hearing dated December 5, 2014 is dismissed and the determination 8 dated October 9, 2014 remains in effect”). And the Court “should restrict its review to the 9 procedural ground that was the basis for the Appeals Council dismissal and (if necessary) 10 allow the agency to address any residual substantive questions in the first instance.” Smith 11 v. Berryhill, 587 U.S. 471, 488 (2019). 12 Though the Court recognizes Plaintiff’s frustration with the long delay in the 13 resolution of his benefits application, the Court finds the proper remedy here is to remand 14 for further administrative proceedings and analysis. Accordingly, the Court ADOPTS 15 Judge Goddard’s Recommendation, OVERRULES Plaintiff’s Objections, and GRANTS 16 Defendant’s Motion to Remand.4 17 II. Motion to Bifurcate 18 Next, Plaintiff asks the Court to bifurcate the claims brought in “Part A” of his SAC, 19 that is, his disability claims arising under 42 U.S.C. § 405(g), from the claims raised in 20 “Parts B–E” of the SAC, which the Court dismissed without leave to amend in its screening 21 order for lack of subject matter jurisdiction pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i) and 22 (iii). See SAC Order at 24. Plaintiff explains that he seeks to bifurcate his claims so that 23 24 25 4 Plaintiff also asks the Court to take “Mandatory Judicial Notice” of various cases, laws, and procedural rules. See generally Request for Judicial Notice (“RJN”), ECF No. 109. The Court finds this request 26 inappropriate as it is not targeted towards specific adjudicative facts properly subject to judicial notice. See Fed. R. Evid. 201(b). Thus, Plaintiff’s Request for Judicial Notice (ECF No. 109) is DENIED. 27 However, “[t]he law is the law regardless of whether the Court takes judicial notice of it.” Harner v. 28 USAA Gen. Indem. Co., No. 18CV01993-LL-MDD, 2022 WL 1271136, at *3 (S.D. Cal. Apr. 28, 2022). 1 he can immediately appeal the Court’s dismissal of Parts B–E, without waiting for a 2 decision on the Motion to Remand concerning the § 405(g) claims. Bifurcate Mot. at 5–7. 3 After filing the Motion to Bifurcate, Plaintiff appealed the SAC screening order on 4 August 5, 2024. ECF No. 74. On August 29, 2024, the Court of Appeals found that it 5 lacked jurisdiction over the appeal because the order challenged was not final or 6 appealable. ECF No. 89 (first citing Fed. R. Civ. P. 54(b); and then citing Chacon v. 7 Babcock, 640 F.2d 221, 222 (9th Cir. 1981) (order disposing of fewer than all claims 8 against all parties not immediately appealable unless district court directs entry of judgment 9 pursuant to Fed. R. Civ. P. 54(b))). 10 Magistrate Judge Goddard recommends denying Plaintiff’s Motion to Bifurcate. 11 Judge Goddard first construes Plaintiff’s Motion to Bifurcate as a request to certify 12 Plaintiff’s claims in Parts B–E of the SAC as immediately appealable under Rule 54(b), in 13 light of the rationale underlying the request. R&R at 10. So construed, Judge Goddard 14 recommends denying the Motion to Bifurcate as moot on the basis that all claims in the 15 SAC will become immediately appealable upon the Court’s entry of a final judgment 16 remanding Plaintiff’s disability claims to the agency for further proceedings. Id. And, in 17 any event, Judge Goddard finds that certifying Plaintiff’s dismissed claims in Parts B–E of 18 the SAC for immediate appeal is not in the interest of sound judicial administration. Id. 19 at 11–12. 20 Plaintiff first objects on the basis that Judge Goddard’s analysis is made under the 21 faulty assumption that the Court will grant Defendant’s Motion to Remand. Bifurcate Objs. 22 at 5. As the Court will grant Defendant’s Motion to Remand, as explained above, the Court 23 accordingly OVERRULES Plaintiff’s Objection. 24 Plaintiff also argues bifurcation should not be denied as this will delay his receipt of 25 Title II benefits, and delay the appeal of Parts B–E. Amend. Objs. at 30. The Court, in its 26 de novo review, agrees with Judge Goddard’s conclusions. To the extent Plaintiff is 27 requesting the Court certify Parts B–E for appeal under Rule 54(b) while Plaintiff pursues 28 his § 405(g) claim on remand without appealing the Court’s order remanding that claim, 1 there is no clear mechanism under the Federal Rules to bifurcate Plaintiff’s claims this way, 2 outside of Rule 54(b). 3 But “Rule 54(b) applies where the district court has entered a final judgment as to 4 particular claims or parties, yet that judgment is not immediately appealable because other 5 issues in the case remain unresolved. Pursuant to Rule 54(b), the district court may sever 6 this partial judgment for immediate appeal whenever it determines that there is no just 7 reason for delay.” James v. Price Stern Sloan, Inc., 283 F.3d 1064, 1067 n.6 (9th Cir. 8 2002). Here, as noted above, Plaintiff will be able to appeal both the Court’s Order 9 remanding his § 405(g) claims and its order dismissing his other claims immediately upon 10 the Court’s remand and entry of judgment, thus certification of his claims for immediate 11 appeal is unnecessary. See Melkonyan v. Sullivan, 501 U.S. 89, 101–02 (1991) (explaining 12 that a remand order under sentence four of § 405(g) must be accompanied by a “final 13 judgment” triggering the beginning of the appeal period). 14 In any event, Rule 54(b) instructs the Court that it may direct entry of a final 15 judgment as to “one or more, but fewer than all, claims” in a case “only if the court 16 expressly determines that there is no just reason for delay.” Fed. R. Civ. P. 54(b). In 17 making that determination, “a district court must take into account judicial administrative 18 interests as well as the equities involved.” Curtiss-Wright Corp. v. Gen. Elec. Co., 446 19 U.S. 1, 8 (1980). The decision whether to certify is left to the sound judicial discretion of 20 the district court, and the discretion must be exercised “in the interest of sound judicial 21 administration.” Id. (quoting Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 437 (1956)). 22 Some of the relevant factors a court may consider in reaching this determination include 23 (1) whether certification would result in unnecessary appellate review; (2) whether the 24 claims finally adjudicated are separate, distinct, and independent of any of the other claims 25 or counterclaims involved; (3) whether review of the adjudicated claims would be mooted 26 by any future developments in the case; and (4) whether the nature of the claims is such 27 that no appellate court would have to decide the same issues more than once even if there 28 were subsequent appeals. Curtiss-Wright, 446 U.S. at 5–6. 1 Even if Parts B–E were not immediately appealable upon this Court’s remand and 2 entry of judgment, and/or the Court could separately certify Parts B–E for appeal under 3 Rule 54(b) while Plaintiff pursues his § 405(g) claim on remand without appealing the 4 Court’s order remanding that claim, certification of such claims is not in the interest of 5 sound judicial administration. Rather, as many of the dismissed claims he seeks to appeal 6 are connected to his pursuit of social security benefits and the SSA’s handling of his 7 application for benefits, the Court finds certification would result in unnecessary or 8 piecemeal appellate review that would not advance the overall case or ultimate appellate 9 disposition. And Plaintiff has not established any other legal basis to bifurcate his claims. 10 Accordingly, the Court also finds certification under Rule 54(b) would not be warranted, 11 were it even applicable, as the relevant factors weigh against certification. 12 Therefore, the Court ADOPTS Judge Goddard’s Recommendation, OVERRULES 13 Plaintiff’s Objections, and DENIES Plaintiff’s Motion to Bifurcate. 14 III. Motion for Sanctions 15 Finally, Plaintiff has also filed a separate Motion for Sanctions against the 16 Commissioner under Federal Rule of Civil Procedure 11 and Civil Local Rule 83.1 in 17 response to Defendant’s Motion to Remand. See Sanctions Mot. Plaintiff argues 18 Defendant filed the Motion to Remand for an improper purpose—namely, abuse, delay, 19 and to increase costs—and without evidentiary or legal support, in violation of Rule 11. 20 Id. at 15–18. Additionally, Plaintiff contends that key evidence such as witness testimony 21 from his physicians has now been “spoiled” due to the passage of time, and presents a 22 separate spoliation argument under Federal Rule of Civil Procedure 37 and related caselaw. 23 Id. at 9–15. 24 Judge Goddard recommends that Plaintiff’s Motion for Sanctions be denied, as 25 remand for a new hearing before a new ALJ is the best remedy available to Plaintiff in this 26 Court and there is no basis to find that Defendant’s request for a new hearing is frivolous 27 or done for an improper purpose, as required to justify Rule 11 sanctions. R&R at 16. 28 Judge Goddard additionally finds that Plaintiff has failed to meet his burden to obtain 1 spoliation sanctions under Rule 37 as he has not shown discovery misconduct on the part 2 of Defendant justifying the imposition of spoliation sanctions. Id. at 16–18. 3 Plaintiff objects to Judge Goddard’s recommendation, arguing that Defendant acted 4 with bad faith. See generally Sanctions Objs.; see also Remand Objs. at 18–19; Amended 5 Objs. at 11, 31. The Court disagrees, finding that the R&R sufficiently evaluated the 6 Motion and properly found that Rule 11 sanctions and spoliation sanctions were 7 unwarranted. 8 Rule 11(b)(1) authorizes the court to impose sanctions for a pleading, written 9 motion, or other paper presented for an “improper purpose, such as to harass, cause 10 unnecessary delay, or needlessly increase the cost of litigation[.]” Fed. R. Civ. P. 11(b)(1). 11 If a court finds that a motion or paper, other than a complaint, is filed in the context of a 12 persistent pattern of clearly abusive litigation activity, it will be deemed to have been filed 13 for an improper purpose and sanctionable. Aetna Life Ins. Co. v. Alla Medical Services, 14 Inc., 855 F.2d 1470, 1476 (9th Cir. 1988). 15 Spoliation sanctions are governed by Rule 37(e) of the Federal Rules of Civil 16 Procedure, which provides as follows: 17 If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost 18 because a party failed to take reasonable steps to preserve it, and 19 it cannot be restored or replaced through additional discovery, the court: 20 (1) upon finding prejudice to another party from loss of the 21 information, may order measures no greater than necessary to cure the prejudice; or 22 (2) only upon finding that the party acted with the intent 23 to deprive another party of the information’s use in the litigation may: 24 (A) presume that the lost information was unfavorable to 25 the party; (B) instruct the jury that it may or must presume the 26 information was unfavorable to the party; or 27 (C) dismiss the action or enter a default judgment.

28 A party moving for spoliation sanctions bears “the burden of establishing spoliation by 1 demonstrating that [the non-moving party] destroyed documents and had some notice that 2 the documents were potentially relevant to the litigation before they were destroyed.” 3 Harfouche v. Wehbe, 705 F. App’x 589, 590 (9th Cir. 2017) (quoting Ryan v. Editions Ltd. 4 W., Inc., 786 F.3d 754, 766 (9th Cir. 2015)); see also United States v. Kitsap Physicians 5 Serv., 314 F.3d 995, 1001 (9th Cir. 2002). 6 If the moving party cannot show that the non-moving party acted with “intent to 7 deprive” another party of the information but otherwise establishes that the evidence was 8 lost because the non-moving party failed to take reasonable steps to preserve it, the 9 subparagraph applies only “upon finding prejudice” to another party from the loss of 10 information. Fed. R. Civ. P. 37(e)(1). “The Court has the discretion to determine whether 11 the loss of the information is prejudicial; neither party carries a burden of proving or 12 disproving prejudice.” Hernandez v. Tulare Cnty. Corr. Ctr., No. 116CV00413EPGPC, 13 2018 WL 784287, at *4 (E.D. Cal. Feb. 8, 2018) (quoting Fed. R. Civ. P. 37(e) advisory 14 committee’s note to 2015 amendment). The Court’s evaluation of whether the loss of the 15 information was prejudicial depends in part on the importance of the information to the 16 case. Id. Further, upon a finding of prejudice, the Court may issue a sanction “no greater 17 than necessary to cure the prejudice.” Fed. R. Civ. P. 37(e) advisory committee’s note to 18 2015 amendment. 19 Here, the Court finds that Plaintiff has not shown Rule 11 sanctions are warranted. 20 Although Plaintiff outlines years’ worth of grievances regarding how his case was handled 21 at the agency level, he has not demonstrated that Defendant’s request for a new hearing is 22 frivolous or done for an improper purpose, as required to justify Rule 11 sanctions. 23 Moreover, as Judge Goddard explains, “although Plaintiff does not view it as such, a 24 remand is not only a ruling in his favor but constitutes the best possible outcome for him 25 given the posture of the case and the limits of this Court’s jurisdiction.” R&R at 16. 26 The Court further agrees Plaintiff has failed to meet his burden to obtain spoliation 27 sanctions under Rule 37. First, he has not shown Defendant acted with the intent to deprive 28 him of any evidence and does not point to any specific evidence that was either destroyed, 1 or that the agency had in its custody and control but failed to preserve. To the extent he 2 argues the passage of time has resulted in the loss of testimony of state agency witnesses 3 regarding the decisions they made on his disability application—assuming loss of such 4 evidence could even form the basis of a spoliation claim—both Parties bear some 5 responsibility for the delay here. For example, following the Appeals Council’s order 6 vacating the ALJ’s decision and ordering a new hearing, Plaintiff requested that the hearing 7 be rescheduled or postponed no less than five times and repeatedly objected to the hearing 8 notices throughout 2021 and 2022, initially on the basis that he refused to attend a 9 telephonic hearing and later because he refused to appear in front of the specific ALJ and 10 in the specific venue that he accused of bias and criminal conspiracy against him. See AR 11 222; 225–26, 232–33, 243–44; 279; 403; 494; 35–50; 1248–49; 1250; 1260–65; 1275–76; 12 1280–89. In any event, the Court finds that the existence of treatment records and other 13 written evidence from Plaintiff’s treating physicians mitigates any loss of live in-person 14 testimony from his physicians. For instance, Plaintiff still has the Consultative Exam 15 Report compiled by his treating physician that preserves the evidence from the relevant 16 time period during which Plaintiff alleges disability. Thus, the Court finds Plaintiff has 17 failed to show Defendant acted with the intent to deprive him of any evidence, and the 18 passage of time in this case has not resulted in a loss of evidence in a way that otherwise 19 prejudices Plaintiff. 20 Accordingly, the Court OVERRULES Plaintiff’s Objections, ADOPTS Judge 21 Goddard’s Recommendation, and DENIES Plaintiff’s Motion for Sanctions.5 22 / / / 23

24 5 The Court notes Plaintiff’s Amended Objections include a request for an additional thirty (30) days to 25 make “small adds, clarity and reference upgrades,” as he only had three weeks to work on his response due to medical issues, and he was not able to ensure proper citations to the record. Amended Objs. at 2. 26 He indicates that, in “the meantime, most of the objections here could still be worked on by the court why [sic] amending occurred.” Id. The Court notes Plaintiff already filed Objections, see ECF Nos. 107, 108, 27 109, and was given a 60-day extension, see ECF Nos. 105. Thus, the Court does not find good cause 28 exists for a further extension, nor is additional amendment necessary for the Court to make its ruling. 1 CONCLUSION 2 After reviewing the R&R and conducting a de novo review of those portions to 3 || which Plaintiff objected, the Court ORDERS as follows: 4 1. Plaintiff's Objections (ECF Nos. 106, 107, 108, 112) are OVERRULED. 5 2. The Courts ADOPTS the R&R in its entirety (ECF No. 103) as set forth in this 6 Order. 7 3. Defendant’s Motion to Remand to the Social Security Administration (ECF 8 No. 61) is GRANTED. 9 4. Plaintiffs Motion to Bifurcate (ECF No. 63) is DENIED. 10 5. Plaintiff's Motion for Sanctions (ECF No. 87) is DENIED. 11 This case is thus REMANDED for a new hearing before a new ALJ under sentence 12 ||four of Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), and the Court 13 || ENTERS a final judgment in favor of Plaintiff and against Defendant, reversing the final 14 || decision of the Commissioner. As this concludes the litigation in this matter the Clerk of 15 |}Court SHALL close the case. 16 IT IS SO ORDERED. 17 Dated: June 26, 2025 tt 18 pen Janis L. Sammartino 19 United States District Judge

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