Riach v. Kijakazi

• Court: District Court, E.D. Washington
• Decided: August 9, 2022
• Docket: 1:20-cv-03220
• Status: Unknown

Opinion

1 EASTERUN. SD.I SDTIRSITCRTI COTF CWOAUSRHTI NGTON Aug 09, 2022 2 3 SEAN F. MCAVOY, CLERK 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF WASHINGTON

7 AARON R., No. 1:20-cv-03220-SMJ

8 Plaintiff, ORDER GRANTING IN PART 9 PLAINTIFF’S MOTION FOR 10 v. SUMMARY JUDGMENT AND REMANDING FOR ADDITIONAL 11 KILOLO KIJAKAZI, PROCEEDINGS 12 ACTING COMMISSIONER OF SOCIAL SECURITY,1 13

14 Defendant.

15 16 Before the Court are the parties’ cross-motions for summary judgment, ECF 17 Nos. 17, 18. Attorney D. James Tree represents Aaron R. (Plaintiff); Special 18 19 Assistant United States Attorney Frederick Fripps represents the Commissioner of 20 Social Security (Defendant). After reviewing the administrative record and the briefs 21 filed by the parties, the Court grants in part Plaintiff’s Motion for Summary 22 23 24

25 1 Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9, 26 2021. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Kilolo 27 Kijakazi is substituted for Andrew M. Saul as the defendant in this suit. No further 28 action need be taken to continue this suit. See 42 U.S.C. § 405(g). Judgment, denies Defendant’s Motion for Summary Judgment, and remands this 1 2 matter to the Commissioner for additional proceedings pursuant to 42 U.S.C. § 3 405(g). 4 5 JURISDICTION 6 Plaintiff filed an application for Supplemental Security Income on August 11, 7 2017, alleging disability since July 1, 2014, due to colitis, fracture of the lower spine 8 9 affecting the legs, depression, and anemia. Tr. 100. The application was denied 10 initially and upon reconsideration. Tr. 133-36, 142-44. An Administrative Law 11 12 Judge (ALJ) held a hearing on January 9, 2020, Tr. 30-98, and issued an unfavorable 13 decision on January 23, 2020. Tr. 15-24. Plaintiff requested review of the ALJ’s 14 decision by the Appeals Council and the Appeals Council denied the request for 15 16 review on October 2, 2020. Tr. 1-5. The ALJ’s January 2020 decision is the final 17 decision of the Commissioner, which is appealable to the district court pursuant to 18 19 42 U.S.C. § 405(g). Plaintiff filed this action for judicial review on November 30, 20 2020. ECF No. 1. 21 STATEMENT OF FACTS 22 23 Plaintiff was born in 1973 and was 44 years old as of his protected filing date. 24 Tr. 23. He has a tenth-grade education and has not obtained a GED. Tr. 77, 736-37. 25 26 His work history has consisted primarily of working at his family’s golf course and 27 some temporary jobs as a kitchen helper and merchandise deliverer. Tr. 86, 419, 28 736-37. He testified he is primarily limited by his colitis and his inability to be away 1 2 from a restroom for long without losing control of his bowels. Tr. 80, 85. 3 STANDARD OF REVIEW 4 5 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 ALJ’s determinations of law are reviewed de novo, with 8 9 deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel, 10 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed only 11 12 if it is not supported by substantial evidence or if it is based on legal error. Tackett 13 v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as 14 being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put 15 16 another way, substantial evidence is such relevant evidence as a reasonable mind 17 might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 18 19 389, 401 (1971). If the evidence is susceptible to more than one rational 20 interpretation, the Court may not substitute its judgment for that of the ALJ. Tackett, 21 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 169 F.3d 595, 22 23 599 (9th Cir. 1999). If substantial evidence supports the administrative findings, or 24 if conflicting evidence supports a finding of either disability or non-disability, the 25 26 ALJ’s determination is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-1230 27 (9th Cir. 1987). Nevertheless, a decision supported by substantial evidence will be 28 set aside if the proper legal standards were not applied in weighing the evidence and 1 2 making the decision. Brawner v. Secretary of Health and Human Services, 839 F.2d 3 432, 433 (9th Cir. 1988). 4 5 SEQUENTIAL EVALUATION PROCESS 6 The Commissioner has established a five-step sequential evaluation process 7 for determining whether a person is disabled. 20 C.F.R. § 416.920(a); Bowen v. 8 9 Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through four, the claimant bears 10 the burden of establishing a prima facie case of disability. Tackett, 180 F.3d at 1098- 11 12 1099. This burden is met once a claimant establishes that a physical or mental 13 impairment prevents the claimant from engaging in past relevant work. 20 C.F.R. § 14 416.920(a)(4). If a claimant cannot perform past relevant work, the ALJ proceeds to 15 16 step five, and the burden shifts to the Commissioner to show (1) the claimant can 17 make an adjustment to other work; and (2) the claimant can perform specific jobs 18 19 that exist in the national economy. Batson v. Commissioner of Social Sec. Admin., 20 359 F.3d 1190, 1193-1194 (9th Cir. 2004). If a claimant cannot make an adjustment 21 to other work in the national economy, the claimant will be found disabled. 20 C.F.R. 22 23 § 416.920(a)(4)(v). 24 ADMINISTRATIVE FINDINGS 25 26 On January 23, 2020, the ALJ issued a decision finding Plaintiff was not 27 disabled as defined in the Social Security Act. Tr. 15-24. 28 At step one, the ALJ found Plaintiff had engaged in substantial gainful activity 1 2 since December 2019, but that there was a continuous period of more than 12 months 3 during which he did not engage in substantial gainful activity. Tr. 17. 4 5 At step two, the ALJ determined Plaintiff had the following severe 6 impairments: lumbar degenerative disc disease, irritable bowel syndrome/ ulcerative 7 colitis, bilateral shoulder disorder, anxiety disorder, depressive disorder, attention 8 9 deficit disorder, and substance addiction disorder in remission. Id. 10 At step three, the ALJ found Plaintiff did not have an impairment or 11 12 combination of impairments that met or medically equaled the severity of one of the 13 listed impairments. Tr. 18. 14 The ALJ assessed Plaintiff’s Residual Functional Capacity (RFC) and found 15 16 he could perform light work, with the following limitations: 17 he could occasionally reach overhead, frequently reach at or 18 below shoulder level, and occasionally perform all postural 19 movements (stoop, crouch, crawl, kneel, and climb stairs/ramps) 20 except for no climbing of ladders, ropes, or scaffolds; he needed 21 direct access to a bathroom in the workplace; he needed to avoid vibrations in the workplace; he could engage in unskilled, 22 repetitive, routine tasks in 2-hour increments; he would be absent 23 from work 6 times per year; he would be 10% less productive 24 than the average worker in the workplace; and his pace of work 25 needed to be substantially at the direction of the employee while maintaining minimally acceptable production levels. 26

27 28 Tr. 19. At step four, the ALJ found Plaintiff was unable to perform his past relevant 1 2 work as a kitchen helper and merchandise deliverer. Tr. 23. 3 At step five the ALJ found that, considering Plaintiff’s age, education, work 4 5 experience and residual functional capacity, Plaintiff could perform jobs that existed 6 in significant numbers in the national economy, specifically identifying the 7 representative occupations of storage rental clerk, marker, deli cutter, and 8 9 housekeeper. Tr. 23-24. 10 The ALJ thus concluded Plaintiff was not under a disability within the 11 12 meaning of the Social Security Act at any time from the date the application was 13 filed through the date of the decision. Tr. 24. 14 ISSUES 15 16 The question presented is whether substantial evidence supports the ALJ’s 17 decision denying benefits and, if so, whether that decision is based on proper legal 18 19 standards. 20 Plaintiff contends the Commissioner erred by (1) improperly rejecting 21 Plaintiff’s symptom testimony; and (2) improperly rejecting the medical opinion 22 23 evidence. 24 // 25 26 // 27 // 28 DISCUSSION 1 2 1. Plaintiff’s Subjective Statements 3 Plaintiff contends the ALJ erred by improperly rejecting his subjective 4 5 complaints. ECF No. 17 at 8-11. 6 It is the province of the ALJ to make determinations regarding a claimant’s 7 subjective statements. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). 8 9 However, the ALJ’s findings must be supported by specific, cogent reasons. Rashad 10 v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Once the claimant produces 11 12 medical evidence of an underlying medical impairment, the ALJ may not discredit 13 testimony as to the severity of an impairment merely because it is unsupported by 14 medical evidence. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). Absent 15 16 affirmative evidence of malingering, the ALJ’s reasons for rejecting the claimant’s 17 testimony must be “specific, clear and convincing.” Smolen v. Chater, 80 F.3d 1273, 18 19 1281 (9th Cir. 1996); Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1996). “General 20 findings are insufficient: rather the ALJ must identify what testimony is not credible 21 and what evidence undermines the claimant’s complaints.” Lester, 81 F.3d at 834; 22 23 Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). 24 The ALJ concluded Plaintiff’s medically determinable impairments could 25 26 reasonably be expected to produce the alleged symptoms; however, Plaintiff’s 27 statements concerning the intensity, persistence and limiting effects of those 28 symptoms were not entirely consistent with the medical evidence and other evidence 1 2 in the record. Tr. 20. The ALJ found Plaintiff’s complaints were unsupported by the 3 opinion evidence and were undermined by evidence that he had had minimal and 4 5 conservative treatment for his back and shoulders, that his IBS was controllable with 6 medication and treatment, that his conditions were exacerbated by substance abuse 7 and situational stressors, and that his activities undermined his allegations. Tr. 20- 8 9 22. 10 Plaintiff argues the ALJ’s rationale is incorrect, as the record documents 11 12 ongoing problems with IBS, even with sobriety and a more stable living 13 environment, and that the activities and abilities the ALJ noted were not inconsistent 14 with Plaintiff’s testimony and allegations of the need for frequent and long bathroom 15 16 breaks. ECF No. 17 at 8-11. Defendant argues the ALJ reasonably found Plaintiff’s 17 symptoms improved with treatment and sobriety and that his activities showed 18 19 greater abilities than alleged. ECF No. 18 at 3-6. 20 The Court finds the ALJ failed to offer clear and convincing reasons for 21 discounting Plaintiff’s reports. A claimant’s daily activities may support an adverse 22 23 credibility finding if the claimant’s activities contradict their other testimony. Orn v. 24 Astrue, 495 F.3d 625, 639 (9th Cir. 2007). However, the ALJ failed to identify any 25 26 activities that were inconsistent with Plaintiff’s reports. He noted Plaintiff’s ability 27 to work his then-current delivery job as long as he had access to a bathroom, and 28 that he was able to maintain social interactions, and obtain custody of his son, after 1 2 achieving sobriety. Tr. 22. However, Plaintiff has maintained that his primary barrier 3 to working is his need for frequent and extended restroom breaks. None of the 4 5 identified activities are inconsistent with Plaintiff’s testimony regarding the amount 6 of time he spends in the restroom or the frequency of needed restroom breaks. The 7 Ninth Circuit has repeatedly found that the ability to perform minimal daily activities 8 9 is not inconsistent with the inability to work: 10 We have repeatedly warned that ALJs must be especially cautious in 11 concluding that daily activities are inconsistent with testimony about 12 pain, because impairments that would unquestionably preclude work and all the pressures of a workplace environment will often be 13 consistent with doing more than merely resting in bed all day. 14 Garrison v. Colvin, 759 F.3d 995, 1016 (9th Cir. 2014); Fair v. Bowen, 885 F.2d 15 16 597, 603 (9th Cir. 1989) (“[M]any home activities are not easily transferable to what 17 may be the more grueling environment of the workplace, where it might be 18 19 impossible to periodically rest or take medication.”). Plaintiff testified at length 20 about the accommodated nature of his current job, where he is able to use the 21 restroom at the churches he makes deliveries to, and that he carries a spare change 22 23 of clothing with him in case he soils himself. Tr. 48-49, 64, 67. The record reflects 24 Plaintiff has made ongoing adjustments to his lifestyle, closely associated with when 25 26 and where he can use the restroom, at times rarely venturing far from home due to 27 the need for proximity to the restroom. Tr. 67, 84, 419-20, 1074, 1091. 28 Because the ALJ did not identify any activities that are inconsistent with Plaintiff’s 1 2 allegations, this is not a clear and convincing basis for discounting his subjective 3 reports. 4 5 The ALJ found Plaintiff’s IBS was controllable with medication and treatment 6 follow throughs, to the extent that he could work. Tr. 22. In support, the ALJ noted 7 a record from July 2016 (citing Tr. 394) which was prior to Plaintiff’s significant 8 9 flares of IBS in the following years. See e.g., Tr. 580, 595-604, 1071, 1091, 1296- 10 1305, 1311-14. The ALJ also cited a record from just before the hearing (Tr. 1119), 11 12 at which point Plaintiff had started a different treatment that was finally bringing 13 him some relief. Tr. 1288. While ALJs must rely on examples to demonstrate their 14 findings, “the data points they choose must in fact constitute examples of a broader 15 16 development to satisfy the applicable ‘clear and convincing’ standard.” Garrison v. 17 Colvin, 759 F.3d 995, 1018 (9th Cir. 2014). The record as a whole does not support 18 19 a finding of any significant improvement or control of Plaintiff’s IBS until the 20 summer of 2019 when Plaintiff began receiving IV infusions. Tr. 736, 740, 1049, 21 1288. This improvement came approximately five years after Plaintiff’s alleged 22 23 disability onset date. Further, Plaintiff testified at the hearing that the new treatment 24 had provided him the best relief he had had in years, but that he continued to have 25 26 symptoms that limited his abilities. Tr. 63, 81-82. The Court finds the ALJ’s 27 conclusion that Plaintiff’s IBS was controllable with treatment is not supported by 28 substantial evidence, at least not prior to beginning the infusion treatment. On 1 2 remand, the ALJ must specifically account for the period of time between Plaintiff’s 3 alleged onset date and the date he began IV treatments. 4 5 The ALJ further found Plaintiff’s IBS and mental health were exacerbated by 6 his substance abuse and situational stressors. The Court finds this was not a relevant 7 basis upon which to disregard Plaintiff’s allegations. If the ALJ felt Plaintiff’s more 8 9 severe symptoms were caused by his substance use, then the ALJ should have 10 engaged in a Drug Abuse and Alcoholism materiality analysis under Social Security 11 12 Ruling (SSR) 13-2p, to assess whether Plaintiff’s conditions (including drug abuse) 13 were disabling in their entirety, and then evaluated what symptoms and limitations 14 would remain in the absence of substance use. SSR 13-2p. With respect to situational 15 16 stressors, while the ALJ identified some evidence of Plaintiff’s conditions worsening 17 in the face of such stressors, the record does not indicate that Plaintiff’s conditions 18 19 entirely resolved when stress was reduced. The correlation between increased stress 20 and increased symptoms does not prove causation. 21 On remand, the ALJ shall reconsider Plaintiff’s subjective testimony. 22 23 2. Medical Opinions 24 Plaintiff argues the ALJ erred in evaluating the medical opinion evidence from 25 26 Dr. Walsh and Dr. Bowes. ECF No. 17 at 11-17. 27 28 For claims filed on or after March 27, 2017, new regulations apply that change 1 2 the framework for how an ALJ must weigh medical opinion evidence. Revisions to 3 Rules Regarding the Evaluation of Medical Evidence, 2017 WL 168819, 82 Fed. 4 5 Reg. 5844 (Jan. 18, 2017); 20 C.F.R. § 416.920c. The new regulations provide the 6 ALJ will no longer give any specific evidentiary weight to medical opinions or prior 7 administrative medical findings, including those from treating medical sources. 20 8 9 C.F.R. § 416.920c(a). Instead, the ALJ will consider the persuasiveness of each 10 medical opinion and prior administrative medical finding, regardless of whether the 11 12 medical source is an Acceptable Medical Source. 20 C.F.R. § 416.920c(c). The ALJ 13 is required to consider multiple factors, including supportability, consistency, the 14 source’s relationship with the claimant, any specialization of the source, and other 15 16 factors (such as the source’s familiarity with other evidence in the file or an 17 understanding of Social Security’s disability program). Id. The regulations make 18 19 clear that the supportability and consistency of the opinion are the most important 20 factors, and the ALJ must articulate how they considered those factors in 21 determining the persuasiveness of each medical opinion or prior administrative 22 23 medical finding. 20 C.F.R. § 416.920c(b). The ALJ may explain how they 24 considered the other factors, but is not required to do so, except in cases where two 25 26 or more opinions are equally well-supported and consistent with the record. Id. 27 Supportability and consistency are further explained in the regulations: 28 1 2 (1) Supportability. The more relevant the objective medical evidence 3 and supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical 4 finding(s), the more persuasive the medical opinions or prior 5 administrative medical finding(s) will be.

6 (2) Consistency. The more consistent a medical opinion(s) or prior 7 administrative medical finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more 8 persuasive the medical opinion(s) or prior administrative medical 9 finding(s) will be. 10 20 C.F.R. § 416.920c(c). The Ninth Circuit has also held that the new regulatory 11 12 framework displaces the longstanding case law requiring an ALJ to provide “specific 13 and legitimate” or “clear and convincing” reasons for rejecting a treating or 14 examining doctor’s opinion. Woods v. Kijakazi, 32 F.4th 785 (9th Cir. 2022). 15 16 a. Dr. Kevin Walsh 17 Plaintiff’s treating physician, Dr. Kevin Walsh, completed a DSHS WorkFirst 18 19 form in October 2017. Tr. 720-22. He noted Plaintiff’s symptoms included 20 abdominal pain and severe diarrhea several times per day, a 24-pound weight-loss 21 in six weeks, and weakness and dizziness. Tr. 720. Dr. Walsh assessed severe 22 23 limitations in all physical activities from Plaintiff’s ulcerative colitis, inflammatory 24 bowel, and anal fistula, noting he was unable to meet the demands of sedentary work 25 26 and estimating that Plaintiff would be so limited for three to four months with 27 available medical treatment. Tr. 721-22. 28 The ALJ stated: “this opinion is not material in this case because the duration 1 2 was limited to 3-4 months.” Tr. 20. 3 Plaintiff argues that the ALJ erred in rejecting this opinion as immaterial 4 5 because the record shows Plaintiff’s condition did not actually improve within three 6 to four months. ECF No. 17 at 12-13. Defendant argues the ALJ reasonably 7 considered that Dr. Walsh’s opinion was of little probative value and lacked support 8 9 beyond the window of time he noted, given evidence of Plaintiff’s conditions being 10 well managed with medication and sobriety. ECF No. 18 at 10-12. 11 12 The Court finds the ALJ’s analysis is insufficient. The ALJ failed to discuss 13 supportability and consistency, as required by the revised regulations. 20 C.F.R. § 14 416.920a(b). This alone is a sufficient basis for remand. But to be sure, Defendant’s 15 16 discussion of the supportability and consistency factors is post hoc rationalization 17 that this Court will not consider. See Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) 18 19 (The Court will “review only the reasons provided by the ALJ in the disability 20 determination and may not affirm the ALJ on a ground upon which he did not rely.”). 21 While the ALJ noted the limited duration on the opinion, that was a prediction on 22 23 Dr. Walsh’s part, the ALJ engaged in no discussion of whether Plaintiff’s condition 24 actually improved to the point of inconsistency with the opinion within the three to 25 26 four month timeframe, or whether any improvement was sustained. 27 28 On remand the ALJ will reconsider the persuasiveness of Dr. Walsh’s opinion, 1 2 specifically addressing the factors of supportability and consistency. 3 b. Dr. Tasmyn Bowes 4 5 Plaintiff attended a consultative psychological exam with Dr. Tasmyn Bowes 6 in October 2017. Tr. 418-23. Dr. Bowes diagnosed Plaintiff with generalized anxiety 7 disorder, panic disorder, unspecified somatic disorder, meth use disorder in early 8 9 remission, and rule out major depressive disorder. Tr. 421. She opined Plaintiff 10 would have no more than moderate limitations in any work-related functions, other 11 12 than having a marked impairment in his ability to perform activities within a 13 schedule, maintain regular attendance, and be punctual within customary tolerances. 14 Tr. 421-22. She noted Plaintiff’s current impairments were not primarily the result 15 16 of substance use within the past 60 days and that Plaintiff needed a chemical 17 dependency evaluation and dual diagnosis treatment, stable housing, a financial 18 19 payee, and regular physical and mental health treatment. Tr. 422. 20 The ALJ found this opinion generally persuasive, but noted that Dr. Bowes 21 did not provide a specific explanation for the sole marked rating. Tr. 21. The ALJ 22 23 further found it was not clear that the marked rating related specifically to Plaintiff’s 24 mental impairments, noting his difficulty with sobriety, his lack of stable housing, 25 26 and various other situational stressors, which appeared to be factors in his inability 27 to work regularly. Id. 28 Plaintiff argues that the ALJ erred in finding one part of the opinion 1 2 unpersuasive due to lack of explanation, while simultaneously finding other portions 3 of the opinion persuasive, despite no additional explanation for the rest of the 4 5 opinion. ECF No. 17 at 14. He further asserts the ALJ’s assumption that the marked 6 limitation did not stem from Plaintiff’s mental impairment was speculative, 7 unsupported, and inconsistent with the objective findings and Dr. Bowes’ specific 8 9 statement that the limitations were not the result of substance use. Id. at 14-17. 10 Defendant argues the ALJ reasonably discussed the lack of explanation provided by 11 12 Dr. Bowes and the opinion’s consistency with the other evidence in the file. ECF 13 No. 18 at 12-13. 14 As this claim is being remanded for further consideration of Plaintiff’s 15 16 subjective reports and other medical evidence, the ALJ shall also reconsider Dr. 17 Bowes’ opinion. 18 19 CONCLUSION 20 Plaintiff argues the ALJ’s decision should be reversed and remanded for the 21 payment of benefits. The Court has the discretion to remand the case for additional 22 23 evidence and findings or to award benefits. Smolen v. Chater, 80 F.3d 1273, 1292 24 (9th Cir. 1996). The Court may award benefits if the record is fully developed and 25 26 further administrative proceedings would serve no useful purpose. Id. Remand is 27 appropriate when additional administrative proceedings could remedy defects. 28 Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir. 1989). In this case, the Court finds 1 2 that further development is necessary. 3 In sum, the ALJ’s decision is not supported by substantial evidence. On 4 5 remand, the ALJ shall reevaluate Plaintiff’s subjective statements and the medical 6 evidence of record, making findings on each of the five steps of the sequential 7 evaluation process, and takng into consideration any other evidence or testimony 8 9 relevant to Plaintiff’s disability claim. 10 Accordingly, IT IS ORDERED: 11 12 1. Plaintiff’s Motion for Summary Judgment, ECF No. 17, is 13 GRANTED IN PART. 14 2. Defendant’s Motion for Summary Judgment, ECF No. 18, is DENIED. 15 16 3. The matter is REMANDED to the Commissioner for additional 17 proceedings consistent with this Order. 18 19 4. An application for attorney fees may be filed by separate motion within 20 thirty (30) days of this Order. 21 5. The Clerk’s Office is directed to ENTER JUDGMENT and CLOSE 22 23 this file. 24 // 25 26 // 27 // 28 // 2 IT ISSO ORDERED. The Clerk’s Office shall enter this Order and provide 3 copies to all counsel. 4 ° DATED this 9" day of August 2022. 6 (ens nertege 7 oS 8 SALVADOR MENDOZAYIR. 9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28