Luera Hernandez v. Kijakazi

• Court: District Court, E.D. Washington
• Decided: September 27, 2023
• Docket: 1:22-cv-03043
• Status: Unknown

Opinion

1 FILED IN THE 2 EASTERU N. S D. I SD TI RS IT CR TI C OT F C WO AU SR HT I NGTON 3 Sep 27, 2023 4 SEAN F. MCAVOY, CLERK 5 6 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 7

8 JUAN H., No. 1:22-CV-3043-JAG 9 Plaintiff, ORDER GRANTING 10 PLAINTIFF’S MOTION 11 v. FOR SUMMARY JUDGMENT AND REMANDING FOR A 12 KILOLO KIJAKAZI, FINDING OF DISABILITY 13 ACTING COMMISSIONER OF SOCIAL SECURITY, 14 ECF Nos. 12, 13 15 Defendant. 16 17 BEFORE THE COURT are cross-motions for summary judgment. 18 ECF Nos. 12, 13. Attorney James Tree represents Juan H. (Plaintiff); Special 19 Assistant United States Attorney Benjamin Groebner represents the Commissioner 20 of Social Security (Defendant). The parties have consented to proceed before a 21 magistrate judge by operation of Local Magistrate Judge Rule (LMJR) 2(b)(2) as 22 no party returned a Declination of Consent Form to the Clerk’s Office by the 23 established deadline. ECF No. 16. After reviewing the administrative record and 24 the briefs filed by the parties, the Court GRANTS Plaintiff’s Motion for Summary 25 Judgment and DENIES Defendant’s Motion for Summary Judgment and 26 REMANDS the matter for a finding of disability under sentence four of 42 U.S.C. 27 § 405(g). 28 I. JURISDICTION 1 2 Plaintiff filed applications for benefits on October 6, 2011, alleging 3 disability since June 1, 2008.1 Tr. 180-87. The applications were denied initially 4 and upon reconsideration. Administrative Law Judge (ALJ) Timothy Mangrum 5 held a hearing on December 4, 2013, and issued an unfavorable decision on May 7, 6 2014. Tr. 20-29. This Court subsequently remanded the matter. Tr. 925-33. ALJ 7 Mangrum held a hearing on October 15, 2018, and issued an unfavorable decision 8 on January 30, 2019. Tr. 681-92. On appeal, this Court again remanded the matter 9 based on the stipulation of the parties. Tr. 1651-59. ALJ C. Howard Prinsloo held 10 a third hearing on December 16, 2021, and issued an unfavorable decision on 11 January 19, 2022. Tr. 1586-97. Plaintiff appealed this final decision of the 12 Commissioner on March 26, 2022. ECF No. 1. 13 II. STANDARD OF REVIEW 14 The ALJ is responsible for determining credibility, resolving conflicts in 15 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 16 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with 17 deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel, 18 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 19 only if it is not supported by substantial evidence or if it is based on legal error. 20 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 21 defined as being more than a mere scintilla, but less than a preponderance. Id. at 22 23 1098. Put another way, substantial evidence is such relevant evidence as a 24 reasonable mind might accept as adequate to support a conclusion. Richardson v. 25 26 27 1 Plaintiff subsequently amended his alleged onset date to February 6, 2011. See 28 Tr. 20. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 1 2 U.S. 197, 229 (1938)). 3 If the evidence is susceptible to more than one rational interpretation, the 4 Court may not substitute its judgment for that of the ALJ. Tackett, 180 F.3d at 5 1098; Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). 6 If substantial evidence supports the administrative findings, or if conflicting 7 evidence supports a finding of either disability or non-disability, the ALJ’s 8 determination is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-1230 (9th 9 Cir. 1987). Nevertheless, a decision supported by substantial evidence will be set 10 aside if the proper legal standards were not applied in weighing the evidence and 11 making the decision. Brawner v. Sec’y of Health and Human Services, 839 F.2d 12 432, 433 (9th Cir. 1988). 13 III. SEQUENTIAL EVALUATION PROCESS 14 The Commissioner has established a five-step sequential evaluation process 15 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 16 416.920(a); Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). In steps one through 17 four, the claimant bears the burden of establishing a prima facie case of disability. 18 Tackett, 180 F.3d at 1098-99. This burden is met once a claimant establishes that a 19 physical or mental impairment prevents the claimant from engaging in past 20 relevant work. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). If a claimant cannot 21 perform past relevant work, the ALJ proceeds to step five, and the burden shifts to 22 23 the Commissioner to show: (1) the claimant can make an adjustment to other work; 24 and (2) the claimant can perform other work that exists in significant numbers in 25 the national economy. Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). If a 26 claimant cannot make an adjustment to other work in the national economy, the 27 claimant will be found disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 28 IV. ADMINISTRATIVE FINDINGS 1 2 On January 19, 2022, the ALJ issued a decision finding Plaintiff was not 3 disabled as defined in the Social Security Act. 4 At step one, the ALJ found Plaintiff had not engaged in substantial gainful 5 activity since February 6, 2011, the alleged onset date. Tr. 1588. 6 At step two, the ALJ determined Plaintiff had the following severe 7 impairments: degenerative disc disease; bilateral knee degenerative joint disease; 8 sleep apnea; and carpal tunnel symptom. Tr. 1589. 9 At step three, the ALJ found these impairments did not meet or equal the 10 requirements of a listed impairment. Tr. 1590. 11 The ALJ assessed Plaintiff’s Residual Functional Capacity (RFC) and 12 determined Plaintiff could perform light work subject to the following limitations: 13 he can occasionally stoop, kneel, crouch, and climb ramps/stairs; can never climb 14 ladders, ropes, or scaffolds; can frequently reach, handle, and finger bilateral; and 15 should avoid exposure to extreme heat, vibrations, and hazards. Tr. 1591. 16 At step four, the ALJ found Plaintiff is unable to perform past relevant 17 work. Tr. 1595. 18 At step five, the ALJ found there are jobs that exist in significant numbers in 19 the national economy that Plaintiff can perform, including the jobs of routing clerk, 20 marker, and housekeeping cleaner. Tr. 1596. 21 The ALJ thus concluded Plaintiff was not disabled from May 4, 2017. 22 23 Tr. 1597. 24 V. ISSUES 25 The question presented is whether substantial evidence supports the ALJ’s 26 decision denying benefits and, if so, whether that decision is based on proper legal 27 standards. 28 Plaintiff raises the following issues for review: (A) whether the ALJ 1 2 properly evaluated the medical opinion evidence; (B) whether the ALJ properly 3 evaluated Plaintiff’s subjective complaints; (C) whether the ALJ reversibly erred at 4 step two by finding Plaintiff’s mental impairments were non-severe. ECF No. 12 5 at 2. Plaintiff further argues the asserted errors in this case warrant remand for an 6 immediate award of benefits. Id. 7 VI. DISCUSSION 8 A. Medical Opinions. 9 Because Plaintiff filed his applications before March 27, 2017, the ALJ was 10 required to generally give a treating doctor’s opinion greater weight than an 11 examining doctor’s opinion, and an examining doctor’s opinion greater weight 12 than a non-examining doctor’s opinion. Garrison v. Colvin, 759 F.3d 995, 1012 13 (9th Cir. 2014). Under this standard, an ALJ may only reject the contradicted 14 opinion of a treating or examining doctor by giving “specific and legitimate” 15 reasons. Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017). “Only physicians 16 and certain other qualified specialists are considered ‘[a]cceptable medical 17 sources.’” Ghanim v. Colvin, 763 F.3d 1154, 1161 (9th Cir. 2014) (alteration in 18 original). 19 Plaintiff argues the ALJ misevaluated three sets of medical opinions. ECF 20 No. 12 at 11-17. The Court discusses the ALJ’s treatment of each in turn. 21 1. David Morgan, Ph.D. 22 23 Dr. Morgan examined Plaintiff on June 18, 2021, conducted a clinical 24 interview, and assessed Plaintiff’s mental impairments would, among other things, 25 markedly impair his ability to perform activities within a schedule, maintain 26 regular attendance, be punctual within customary tolerances without special 27 supervision, adapt to changes in a routine work setting, and complete a normal 28 work day and work week without interruptions from psychologically based 1 2 symptoms. Tr. 2641-43. 3 The ALJ erroneously did not weigh this opinion. See Tommasetti v. Astrue, 4 533 F.3d 1035, 1041 (9th Cir. 2008) (“The ALJ must consider all medical opinion 5 evidence.”). The Commissioner maintains any such error was harmless, averring 6 the “ALJ’s reasons for discounting Dr. Morgan’s 2020 opinion apply equally well 7 to his 2021 opinion.” ECF No. 13 at 8. The Court disagrees, for two reasons. 8 First, the Court reviews the ALJ’s decision “based on the reasoning and factual 9 findings offered by the ALJ—not post hoc rationalizations that attempt to intuit 10 what the adjudicator may have been thinking.” Bray v. Comm’r of Soc. Sec. 11 Admin., 554 F.3d 1219, 1225 (9th Cir. 2009) (citing, inter alia, Snell v. Apfel, 177 12 F.3d 128, 134 (2d Cir. 1999) (“The requirement of reason-giving exists, in part, to 13 let claimants understand the disposition of their cases…”)). Even so, the 14 Commissioner’s post hoc argument overlooks that Dr. Morgan assessed no marked 15 limitations in 2020 and three sets of marked limitations in 2021, suggesting an 16 opined worsening of Plaintiff’s mental impairments. Compare Tr. 2649 with Tr. 17 2643. Second, Dr. Morgan assessed marked limitations regarding Plaintiff’s 18 functioning that are inconsistent with the RFC. The Court therefore cannot 19 conclude the ALJ committed harmless error in failing to weigh Dr. Morgan’s 2021 20 opinion. See SSR 96-8p, 1996 WL 374184, at *7 (Jul. 2, 1996) (“If the RFC 21 assessment conflicts with an opinion from a medical source, the adjudicator must 22 23 explain why the opinion was not adopted.”). 24 The ALJ accordingly erred by failing to weigh Dr. Morgan’s 2021 opinion. 25 2. N.K. Marks, Ph.D and Aaron Burdge, Ph.D. 26 Dr. Marks first examined Plaintiff on September 15, 2017, and opined, as 27 relevant here, Plaintiff was markedly limited in asking simple questions or 28 requesting assistance, communicating and performing effectively in a work setting, completing a normal work day and work week without interruptions from 1 2 psychologically based symptoms, and setting realistic goals and planning 3 independently. Tr. 1299. Dr. Burdge reviewed and endorsed these assessed 4 marked limitations. Tr. 1305. 5 The ALJ gave these opinions “little weight.” Tr. 1595. The ALJ first 6 discounted the opinions as inconsistent with Dr. Marks’ “own evaluation noting 7 low average perceptual reasoning and working memory, average verbal 8 comprehension and processing speed, and a low full-scale IQ[.]” Tr. 1595. 9 Substantial evidence does not support this finding, as it is entirely unclear how 10 these test results are inconsistent with the doctors’ assessed limitations, particularly 11 with respect to completing a normal work day and work week without 12 interruptions from psychologically based symptoms. See Reddick v. Chater, 157 13 F.3d 715, 725 (9th Cir. 1998) (rather than merely stating his conclusions, an ALJ 14 “must set forth his own interpretations and explain why they, rather than the 15 doctors’, are correct”) (citing Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 16 1988)). 17 The ALJ also discounted these opinions as inconsistent with unspecified 18 “good results with mental health treatment and generally unremarkable mental 19 status exams[.]” Tr. 1595. In support, the ALJ notes only “see generally 29F- 20 30F,” two exhibits that total 360 pages. This was error. An ALJ’s rejection of a 21 clinician’s opinion on the ground that it is contrary to unspecified evidence in the 22 23 record is “broad and vague,” and fails “to specify why the ALJ felt the [clinician’s] 24 opinion was flawed.” McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989). It 25 is not the job of the reviewing court to comb the administrative record to find 26 specific conflicts. Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014). 27 Moreover, a review of the record indicates the ALJ failed to take account of, as the 28 Ninth Circuit requires, the waxing-and-waning nature of Plaintiff’s mental impairments. See, e.g., Tr. 2089 (February 22, 2021, treatment note indicating 1 2 “22/27 on the PHQ-9 scale,” i.e., severe depression); Tr. 2109 (April 21, 2021, 3 treatment note indicating “8/27 on the PHQ-9 scale,” i.e., mild depression); 4 Tr. 2162 (July 7, 2021, treatment note indicating “PHQ=20,” i.e., severe 5 depression, and “GAD=19,” i.e., severe anxiety); see Garrison, 759 F.3d at 1017 6 (“Cycles of improvement and debilitating symptoms are a common occurrence, 7 and in such circumstances it is error for an ALJ to pick out a few isolated instances 8 of improvement over a period of months or years and to treat them as a basis for 9 concluding a claimant is capable of working. Reports of ‘improvement’ in the 10 context of mental health issues must be interpreted with an understanding of the 11 patient’s overall well-being and the nature of her symptoms. They must also be 12 interpreted with an awareness that improved functioning while being treated and 13 while limiting environmental stressors does not always mean that a claimant can 14 function effectively in a workplace.”) (cleaned up); Holohan v. Massanari, 246 15 F.3d 1195, 1205 (9th Cir. 2001) (“That a person who suffers from severe panic 16 attacks, anxiety, and depression makes some improvement does not mean that the 17 person’s impairments no longer seriously affect her ability to function in a 18 workplace.”). The ALJ accordingly erred by discounting the opinions on this 19 ground. 20 Dr. Marks again assessed Plaintiff on September 12, 2018,2 and assessed 21 twelve sets of marked limitations. Tr. 2449. The ALJ discounted this opinion on 22 23 the same two grounds used to discount the 2017 opinion. Tr. 1595. For the 24 reasons stated above, the ALJ necessarily erred. Tr. 1595. The ALJ also 25 discounted the opinion as inconsistent with Plaintiff’s “ability to cook, clean, and 26 shop for himself, as well as use a computer[.]” Tr. 1595. Plaintiff’s minimal 27

28 2 The ALJ erroneously noted this opinion was rendered in 2020. Tr. 1595. activities are neither inconsistent with nor a valid reason to discount the doctor’s 1 2 opinion. See Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) (“This court 3 has repeatedly asserted that the mere fact that a plaintiff has carried on certain 4 daily activities, such as grocery shopping, driving a car, or limited walking for 5 exercise, does not in any way detract from her credibility as to her overall 6 disability. One does not need to be ‘utterly incapacitated’ in order to be disabled.”) 7 (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)); Reddick, 157 F.3d at 8 722 (“Several courts, including this one, have recognized that disability claimants 9 should not be penalized for attempting to lead normal lives in the face of their 10 limitations.”); Cooper v. Bowen, 815 F.2d 557, 561 (9th Cir. 1987) (noting that a 11 disability claimant need not “vegetate in a dark room” in order to be deemed 12 eligible for benefits). Similarly, Plaintiff’s minimal activities do not “meet the 13 threshold for transferable work skills.” Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 14 2007) (citing Fair, 885 F.2d at 603); see Diedrich v. Berryhill, 874 F.3d 634, 643 15 (9th Cir. 2017) (“House chores, cooking simple meals, self-grooming, paying bills, 16 writing checks, and caring for a cat in one’s own home, as well as occasional 17 shopping outside the home, are not similar to typical work responsibilities.”). The 18 ALJ accordingly erred by discounting the 2018 opinion. 19 The ALJ accordingly erred by discounting the doctors’ opinions. 20 3. Flint Orr, M.D. 21 Dr. Orr, Plaintiff’s treating physician, offered seven medical opinions 22 23 concerning Plaintiff’s physical impairments from 2011 to 2017. In April 2011, 24 July 2012, and May 2013, Dr. Orr opined Plaintiff’s physical impairments would 25 impair his functioning for six months. Tr. 498, 453-54, 482-84. The ALJ 26 discounted these opinions on the ground they “fail[ed] to satisfy the agency’s 27 durational requirement” of at least twelve months. Tr. 1594. On this record, 28 however, the durational bar is not a valid reason to reject Dr. Orr’s opinions. The durational bar intends to preclude short-term impairments. The rationale behind 1 2 the durational bar would be applicable if, in fact, the severity of Plaintiff’s 3 impairments was limited to only six months. Here, however, the record shows 4 Plaintiff’s physical impairments far exceeded six months. The ALJ’s discounting 5 of Dr. Orr’s opinions based upon the durational bar is therefore not supported by 6 substantial evidence. See, e.g., Dukes v. Astrue, 2012 WL 4792924, at *6 (W.D. 7 Wash. Sept. 12, 2012), report and recommendation adopted, 2012 WL 4792970 8 (W.D. Wash. Oct. 9, 2012) (ALJ erred in rejecting opinion of doctor who 9 estimated limitation would last 6 months where record showed plaintiff’s 10 limitations exceeded 6 months). 11 As for Dr. Orr’s opinions where the doctor assessed Plaintiff’s physical 12 impairments would equal or exceed twelve months in duration, the ALJ discounted 13 them as “internally contradictory,” specifically noting a September 2014 opinion 14 limited Plaintiff to sedentary work and a September 2017 opinion limited Plaintiff 15 to light work. Tr. 1594. This finding is unsupported. Dr. Orr’s two opinions offer 16 his assessment as to Plaintiff’s functioning at the specific time each opinion was 17 rendered. The ALJ’s cursory finding fails to articulate how, if at all, the opinions 18 were inconsistent with the medical evidence and reconcile the differences between 19 the opinions in light of the record. Garrison, 759 F.3d at 1012-13 (“An ALJ can 20 satisfy the ‘substantial evidence’ requirement by ‘setting out a detailed and 21 thorough summary of the facts and conflicting evidence, stating his interpretation 22 23 thereof, and making findings.’”) (quoting Reddick, 157 F.3d at 725). The ALJ’s 24 finding is further undermined by the fact the opinions were issued three years 25 apart. Indeed, a review of the record indicates Plaintiff’s physical impairments 26 were not static during this period. The ALJ accordingly erred by discounting Dr. 27 Orr’s opinions on this ground. 28 The ALJ accordingly erred by discounting Dr. Orr’s opinions. B. Plaintiff’s Testimony. 1 2 Plaintiff contends the ALJ erred by discounting Plaintiff’s testimony. ECF 3 No. 12 at 17-20. Where, as here, the ALJ determines a claimant has presented 4 objective medical evidence establishing underlying impairments that could cause 5 the symptoms alleged, and there is no affirmative evidence of malingering, the 6 ALJ can only discount the claimant’s testimony as to symptom severity by 7 providing “specific, clear, and convincing” reasons supported by substantial 8 evidence. Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017). The Court 9 concludes the ALJ failed to offer clear and convincing reasons to discount 10 Plaintiff’s testimony. 11 The ALJ first discounted Plaintiff’s testimony as inconsistent with the 12 medical evidence. Tr. 1592-93. However, because the ALJ misevaluated the 13 medical opinion evidence and necessarily failed to properly evaluate the medical 14 evidence, as discussed above, this is not a valid ground to discount Plaintiff’s 15 testimony. 16 The ALJ next discounted Plaintiff’s testimony as inconsistent with his 17 activities. Tr. 1592-93. However, as discussed above, the minimal activities the 18 ALJ cites do not sufficiently undermine Plaintiff’s claims. The ALJ accordingly 19 erred by discounting Plaintiff’s testimony on this ground. 20 Finally, the ALJ discounted Plaintiff testimony on the ground Plaintiff’s 21 “status of employment can reasonably be attributed in part to legal history, which 22 23 is not a disability.” Tr. 1594. In making this finding, the ALJ noted Plaintiff “has 24 at least two felonies on his record, including one for residential burglary[.]” Tr. 25 1594. The ALJ erroneously discounted Plaintiff’s testimony on this ground for 26 two reasons. First, while an ALJ may use “ordinary techniques of credibility 27 evaluation, such as the claimant’s reputation for lying, prior inconsistent 28 statements concerning the symptoms, and other testimony by the claimant that appears less than candid,” Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996), 1 2 the record is devoid of any indication that Plaintiff committed crimes involving 3 dishonesty or otherwise failed to be candid about his criminal history, see Hardisty 4 v. Astrue, 592 F.3d 1072, 1079-80 (9th Cir. 2010) (ALJ’s discounting of plaintiff’s 5 testimony was substantially justified because all of the inferences upon which it 6 rested, including inferences regarding prior convictions, had substance in the 7 record). Second, the ALJ’s finding directly contravened the Appeals Council’s 8 remand order, which stated: “[T]he decision also mentions that the claimant’s prior 9 felony convictions affect his ability to secure employment and that this is not 10 connected to disability. This finding does not bear on the evidentiary support for 11 the claimant’s subjective complaints, as per agency policy, nor is it clear how it 12 was considered in the decision.” Tr. 1663. Notwithstanding this unambiguous 13 mandate, the ALJ made a verbatim finding concerning Plaintiff’s criminal history. 14 Compare Tr. 1593 with Tr. 1630. The ALJ thus erred by discounting Plaintiff’s 15 testimony on this ground. 16 The ALJ accordingly erred by discounting Plaintiff’s testimony. 17 VII. SCOPE OF REMAND 18 This case must be remanded because the ALJ harmfully evaluated both the 19 medical evidence and Plaintiff’s testimony.3 Plaintiff contends the Court should 20 remand for an immediate award of benefits. ECF No. 12 at 21. 21 22 23 3 Further, because the ALJ failed to appropriately weigh medical opinions and 24 Plaintiff’s testimony relating to Plaintiff’s mental impairments, and in turn failed to 25 appropriately consider limitations stemming from these impairments in fashioning 26 27 the RFC, the Court concludes the ALJ harmfully erred at step two by finding 28 Plaintiff’s mental impairments non-severe. Before remanding a case for an award of benefits, three requirements must 1 2 be met. First, the ALJ must have “‘failed to provide legally sufficient reasons for 3 rejecting evidence, whether claimant testimony or medical opinion.’” Brown- 4 Hunter v. Colvin, 806 F.3d 487, 495 (9th Cir. 2015) (quoting Garrison, 759 F.3d at 5 1020). Second, the Court must conclude “‘the record has been fully developed and 6 further administrative proceedings would serve no useful purpose.’” Id. In so 7 doing, the Court considers the existence of “‘outstanding issues’” that must be 8 resolved before a disability determination can be made. Id. (quoting Treichler v. 9 Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1105 (9th Cir. 2014)). Third, the 10 Court must conclude that, “‘if the improperly discredited evidence were credited as 11 true, the ALJ would be required to find the claimant disabled on remand.’” Id. 12 (quoting Garrison, 759 F.3d at 1021). 13 The Court finds that the three requirements have been met. As discussed 14 above, the ALJ erroneously discounted four sets of medical opinions and 15 Plaintiff’s testimony. The Court finds that further proceedings would serve no 16 useful purpose and that if the erroneously discounted evidence were credited, 17 Plaintiff would be found disabled. The Court also has no serious doubts as to 18 whether Plaintiff is disabled, and finds that the significant delay, multiple remands 19 from this Court since Plaintiff applied for disability in 2011, and contravention of 20 the Appeals Council’s remand order also weigh in favor of a finding of disability. 21 Under these extraordinary circumstances, the Court exercises its discretion 22 23 to remand this matter for a finding of disability. 24 VIII. CONCLUSION 25 Having reviewed the record and the ALJ’s findings, the Commissioner’s 26 final decision is REVERSED and this case is REMANDED for a finding of 27 disability under sentence four of 42 U.S.C. § 405(g). 28 Therefore, IT IS HEREBY ORDERED: 1 1. Plaintiff's Motion for Summary Judgment, ECF No. 12, is 7 || GRANTED. 3 2. Defendant’s Motion for Summary Judgment, ECF No. 13, is DENIED. 5 3. The District Court Executive is directed to file this Order and provide 6 || a copy to counsel for Plaintiff and Defendant. Judgment shall be entered for 7 || Plaintiff and the file shall be CLOSED. 8 IT IS SO ORDERED. 9 DATED September 27, 2023.

12 nb UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28