1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LUPE ELIZABETH ANDERSON, Case No. 1:21-cv-00710-JLT-HBK 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO GRANT PLAINTIFF’S MOTION FOR 13 v. SUMMARY JUDGMENT, DENY DEFENDANT’S CROSS-MOTION FOR 14 MARTIN O’MALLEY, SUMMARY JUDGMENT, AND REMAND COMMISSIONER OF SOCIAL CASE TO THE COMMISSIONER OF 15 SECURITY,1 SOCIAL SECURITY2 16 Defendant. (Doc. Nos. 20, 23) 17 FOURTEEN-DAY OBJECTION DEADLINE
18 19 Lupe Elizabeth Anderson (“Plaintiff”), seeks judicial review of a final decision of the 20 Commissioner of Social Security (“Commissioner” or “Defendant”) denying her application for 21 supplemental security income under the Social Security Act. (Doc. No. 1). The matter is 22 currently before the undersigned on the parties’ briefs, which were submitted without oral 23 argument. (Doc. Nos. 20, 23). For the reasons stated, the undersigned RECOMMENDS granting 24 Plaintiff’s motion for summary judgment, denying the Commissioner’s construed cross-motion 25 for summary judgment, and remanding for further administrative proceedings. 26 1 The Court has substituted Martin O’Malley, who has been appointed the Acting Commissioner of Social 27 Security, as the defendant in this suit. See Fed. R. Civ. P. 25(d). 2 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 28 302(c)(15) (E.D. Cal. 2022). 1 I. JURISDICTION 2 Plaintiff filed for supplemental security income on October 30, 2018, alleging a disability 3 onset date of November 11, 2016. (AR 233-36). At the hearing, she amended the alleged onset 4 date to October 30, 2018. (AR 40). Benefits were denied initially (AR 102-14, 140-45), and 5 upon reconsideration (AR 116-32, 149-54). A telephonic hearing was conducted before an 6 Administrative Law Judge (“ALJ”) on September 14, 2020. (AR 30-62). Plaintiff was 7 represented by counsel and testified at the hearing. (Id.). On October 29, 2020, the ALJ issued 8 an unfavorable decision (AR 13-29) and on March 2, 2021, the Appeals Council denied review. 9 (AR 1-6). The matter is before the Court under 42 U.S.C. § 1383(c)(3). 10 II. BACKGROUND 11 The facts of the case are set forth in the administrative hearing and transcripts, the ALJ’s 12 decision, and the briefs of Plaintiff and Commissioner. Only the most pertinent facts are 13 summarized here. 14 Plaintiff was 49 years old at the time of the hearing. (AR 41). She completed twelfth 15 grade and was in special education classes. (AR 45, 47-48). Plaintiff testified that had been 16 living with her mom, but moved in with her sister a few days before the hearing. (AR 42-43). 17 She has no relevant work history. (AR 58). Plaintiff testified that she was fired from her first 18 “job” because she could not follow instructions. (AR 49). She reported her mental health issues 19 are “the most problematic” of her conditions. (AR 51). She has difficulties with anger problems, 20 needs to have things repeated, needs assistance to fill out paperwork and get to her doctor’s 21 appointments, and requires reminders to take medication. (AR 51-53). Plaintiff testified she has 22 thoughts of self-harm every two to three weeks, but has only made a physical attempt to hurt 23 herself on one occasion. (AR 53-54). She reported difficulty concentrating and pain in her back 24 and knee. (AR 54-55). Plaintiff testified she can stand for about 30 minutes before she has to sit, 25 cannot walk for more than 30 minutes at a time, can sit for 10 to 15 minutes before she has to lay 26 down, and can lift and carry two gallons of milk. (AR 55). 27 III. STANDARD OF REVIEW 28 A district court’s review of a final decision of the Commissioner of Social Security is 1 governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is limited; the 2 Commissioner’s decision will be disturbed “only if it is not supported by substantial evidence or 3 is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). “Substantial 4 evidence” means “relevant evidence that a reasonable mind might accept as adequate to support a 5 conclusion.” Id. at 1159 (quotation and citation omitted). Stated differently, substantial evidence 6 equates to “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 7 citation omitted). In determining whether the standard has been satisfied, a reviewing court must 8 consider the entire record as a whole rather than searching for supporting evidence in isolation. 9 Id. 10 In reviewing a denial of benefits, a district court may not substitute its judgment for that of 11 the Commissioner. “The court will uphold the ALJ’s conclusion when the evidence is susceptible 12 to more than one rational interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 13 2008). Further, a district court will not reverse an ALJ’s decision on account of an error that is 14 harmless. Id. An error is harmless where it is “inconsequential to the [ALJ’s] ultimate 15 nondisability determination.” Id. (quotation and citation omitted). The party appealing the ALJ’s 16 decision generally bears the burden of establishing that it was harmed. Shinseki v. Sanders, 556 17 U.S. 396, 409-10 (2009). 18 IV. FIVE-STEP SEQUENTIAL EVALUATION PROCESS 19 A claimant must satisfy two conditions to be considered “disabled” within the meaning of 20 the Social Security Act. First, the claimant must be “unable to engage in any substantial gainful 21 activity by reason of any medically determinable physical or mental impairment which can be 22 expected to result in death or which has lasted or can be expected to last for a continuous period 23 of not less than twelve months.” 42 U.S.C. § 1382c(a)(3)(A). Second, the claimant’s impairment 24 must be “of such severity that he is not only unable to do his previous work[,] but cannot, 25 considering his age, education, and work experience, engage in any other kind of substantial 26 gainful work which exists in the national economy.” 42 U.S.C. § 1382c(a)(3)(B). 27 The Commissioner has established a five-step sequential analysis to determine whether a 28 claimant satisfies the above criteria. See 20 C.F.R. § 416.920(a)(4)(i)-(v). At step one, the 1 Commissioner considers the claimant’s work activity. 20 C.F.R. § 416.920(a)(4)(i). If the 2 claimant is engaged in “substantial gainful activity,” the Commissioner must find that the 3 claimant is not disabled. 20 C.F.R. § 416.920(b). 4 If the claimant is not engaged in substantial gainful activity, the analysis proceeds to step 5 two. At this step, the Commissioner considers the severity of the claimant’s impairment. 20 6 C.F.R. § 416.920(a)(4)(ii). If the claimant suffers from “any impairment or combination of 7 impairments which significantly limits [his or her] physical or mental ability to do basic work 8 activities,” the analysis proceeds to step three. 20 C.F.R. § 416.920(c). If the claimant’s 9 impairment does not satisfy this severity threshold, however, the Commissioner must find that the 10 claimant is not disabled. 20 C.F.R. § 416.920(c). 11 At step three, the Commissioner compares the claimant’s impairment to severe 12 impairments recognized by the Commissioner to be so severe as to preclude a person from 13 engaging in substantial gainful activity. 20 C.F.R. § 416.920(a)(4)(iii). If the impairment is as 14 severe or more severe than one of the enumerated impairments, the Commissioner must find the 15 claimant disabled and award benefits. 20 C.F.R. § 416.920(d). 16 If the severity of the claimant’s impairment does not meet or exceed the severity of the 17 enumerated impairments, the Commissioner must pause to assess the claimant’s “residual 18 functional capacity.” Residual functional capacity (RFC), defined generally as the claimant’s 19 ability to perform physical and mental work activities on a sustained basis despite his or her 20 limitations, 20 C.F.R. § 416.945(a)(1), is relevant to both the fourth and fifth steps of the analysis. 21 At step four, the Commissioner considers whether, in view of the claimant’s RFC, the 22 claimant is capable of performing work that he or she has performed in the past (past relevant 23 work). 20 C.F.R. § 416.920(a)(4)(iv). If the claimant is capable of performing past relevant 24 work, the Commissioner must find that the claimant is not disabled. 20 C.F.R. § 416.920(f). If 25 the claimant is incapable of performing such work, the analysis proceeds to step five. 26 At step five, the Commissioner considers whether, in view of the claimant’s RFC, the 27 claimant is capable of performing other work in the national economy. 20 C.F.R. § 28 416.920(a)(4)(v). In making this determination, the Commissioner must also consider vocational 1 factors such as the claimant’s age, education, and past work experience. 20 C.F.R. § 2 416.920(a)(4)(v). If the claimant is capable of adjusting to other work, the Commissioner must 3 find that the claimant is not disabled. 20 C.F.R. § 416.920(g)(1). If the claimant is not capable of 4 adjusting to other work, analysis concludes with a finding that the claimant is disabled and is 5 therefore entitled to benefits. 20 C.F.R. § 416.920(g)(1). 6 The claimant bears the burden of proof at steps one through four above. Tackett v. Apfel, 7 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to step five, the burden shifts to the 8 Commissioner to establish that (1) the claimant is capable of performing other work; and (2) such 9 work “exists in significant numbers in the national economy.” 20 C.F.R. § 416.960(c)(2); Beltran 10 v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). 11 V. ALJ’S FINDINGS 12 At step one, the ALJ found that Plaintiff has not engaged in substantial gainful activity 13 since October 30, 2018, the application date. (AR 18). At step two, the ALJ found that Plaintiff 14 has the following severe impairments: bipolar disorder and lumbar spine degenerative disc 15 disease. (AR 18). At step three, the ALJ found that Plaintiff does not have an impairment or 16 combination of impairments that meets or medically equals the severity of a listed impairment. 17 (AR 19). The ALJ then found that Plaintiff has the RFC to 18 perform medium work as defined in 20 CFR 416.967(c) with frequent postural activities; work uncomplicated enough it could be 19 learned in 30 days. No hourly quotas or conveyer belt work. No tandem tasks or teamwork where one production step is dependent 20 upon a prior step. The claimant can manage occasional simple workplace changes and have occasional interaction with coworkers, 21 supervisors, and the public. 22 (AR 20). At step four, the ALJ found that Plaintiff has no past relevant work. (AR 23). At step 23 five, the ALJ found that considering Plaintiff’s age, education, work experience, and RFC, there 24 are jobs that exist in significant numbers in the national economy that Plaintiff can perform, 25 including janitor, order filler, and laundry worker. (AR 23-24). On that basis, the ALJ concluded 26 that Plaintiff has not been under a disability, as defined in the Social Security Act, since October 27 30, 2018, the date the application was filed. (AR 24). 28 //// 1 VI. ISSUES 2 Plaintiff seeks judicial review of the Commissioner’s final decision denying her 3 supplemental security income benefits under Title XVI of the Social Security Act. (Doc. No. 1). 4 Plaintiff raises the following issue for this Court’s review: whether the ALJ properly considered 5 Plaintiff’s subjective complaints, and therefore incorporated all of Plaintiff’s work-related 6 limitations into the RFC consistent with the nature and intensity of Plaintiff’s limitations. (Doc. 7 No. 20 at 10-15). 8 VII. DISCUSSION 9 A claimant’s RFC is “the most [the claimant] can still do despite [his or her] limitations.” 10 20 C.F.R. § 404.1545(a); 20 C.F .R. § 416.945(a). The RFC assessment is an administrative 11 finding based on all relevant evidence in the record, not just medical evidence. Bayliss v. 12 Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). In determining the RFC, the ALJ must consider 13 all limitations, severe and non-severe, that are credible and supported by substantial evidence in 14 the record. (Id.) (RFC determination will be affirmed if supported by substantial evidence). 15 However, an ALJ’s RFC findings need only be consistent with relevant assessed limitations and 16 not identical to them. Turner v. Comm'r of Soc. Sec., 613 F.3d 1217, 1222-23 (9th Cir. 2010). 17 Ultimately, a claimant’s RFC is a matter for the ALJ to determine. See Vertigan v. Halter, 260 18 F.3d 1044, 1049 (9th Cir. 2001) (“It is clear that it is the responsibility of the ALJ ... to determine 19 residual functional capacity.”). 20 Plaintiff argues the ALJ erred in assessing her RFC largely because he failed to offer clear 21 and convincing reasons for rejecting her subjective complaints.3 (Doc. No. 20 at 10-15). An ALJ 22 engages in a two-step analysis when evaluating a claimant’s testimony regarding subjective pain 23 or symptoms. Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). The ALJ first 24 must determine whether there is “objective medical evidence of an underlying impairment which 25
26 3 Plaintiff additionally argues the RFC is unsupported by substantial evidence because (1) the ALJ found the state agency reviewing opinions finding no severe mental health impairments were unpersuasive, and 27 (2) the ALJ failed to discuss third party statements regarding Plaintiff’s limitations. (Doc. No. 20 at 10- 11). In light of the need to remand for reconsideration of Plaintiff’s mental health symptom claims and to 28 reassess the RFC, as discussed supra, the Court declines to consider these arguments. 1 could reasonably be expected to produce the pain or other symptoms alleged.” Id. (internal 2 quotation marks omitted). “The claimant is not required to show that his impairment could 3 reasonably be expected to cause the severity of the symptom he has alleged; he need only show 4 that it could reasonably have caused some degree of the symptom.” Vasquez v. Astrue, 572 F.3d 5 586, 591 (9th Cir. 2009) (internal quotation marks omitted). 6 Second, “[i]f the claimant meets the first test and there is no evidence of malingering, the 7 ALJ can only reject the claimant’s testimony about the severity of the symptoms if [the ALJ] 8 gives ‘specific, clear and convincing reasons’ for the rejection.” Ghanim v. Colvin, 763 F.3d 9 1154, 1163 (9th Cir. 2014) (internal citations and quotations omitted). “General findings are 10 insufficient; rather, the ALJ must identify what testimony is not credible and what evidence 11 undermines the claimant’s complaints.” Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 12 1995)); Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (“[T]he ALJ must make a 13 credibility determination with findings sufficiently specific to permit the court to conclude that 14 the ALJ did not arbitrarily discredit claimant’s testimony.”). “The clear and convincing 15 [evidence] standard is the most demanding required in Social Security cases.” Garrison v. 16 Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 17 F.3d 920, 924 (9th Cir. 2002)). 18 Here, the ALJ found that Plaintiff’s medically determinable impairments could reasonably 19 be expected to cause some of the alleged symptoms; however, Plaintiff’s “statements concerning 20 the intensity, persistence, and limiting effects of these symptoms are not entirely consistent with 21 the medical evidence and other evidence in the record” for two reasons: (1) they are unsupported 22 by the objective evidence of record including improvement with medication, and (2) they are 23 inconsistent with Plaintiff’s activities. (AR 22). 24 First, the ALJ’s entire finding regarding Plaintiff’s activities consists of the following: 25 “That the claimant was able to move into a more stable housing environment as well as engage in 26 housecleaning indicates a greater function and insight; these records do not indicate a need for 27 functional limitations greater than those already set forth within the RFC; limiting the claimant to 28 work uncomplicated enough it could be learned in 30 days and precluding production-type jobs 1 accounts for any deficits in concentration, persistence, and pace.” (Id.). Plaintiff argues this was 2 not a clear and convincing reason to discount her mental health and cognitive symptom claims. 3 (Doc. No. 20 at 15). The Court agrees. The ALJ may consider a claimant’s activities that 4 undermine reported symptoms. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). 5 However, the Ninth Circuit has “repeatedly warned that ALJs must be especially cautious in 6 concluding that daily activities are inconsistent with testimony about pain, because impairments 7 that would unquestionably preclude work and all the pressures of a workplace environment will 8 often be consistent with doing more than merely resting in bed all day.” Garrison, 759 F.3d at 9 1016; Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) (“This court has repeatedly 10 asserted that the mere fact that a plaintiff has carried on certain daily activities, such as grocery 11 shopping, driving a car, or limited walking for exercise, does not in any way detract from her 12 [testimony] as to her overall disability.”). 13 Here, in support of this finding, the ALJ first cites Plaintiff’s report that she moved from 14 her mother’s house to her sister’s house, where “she is doing well.” (AR 22, 43, 1058). Plaintiff 15 argues the ALJ failed to consider consistent evidence throughout the record that Plaintiff required 16 frequent re-direction and assistance for ordinary activities of daily living such as bathing, 17 preparing meals, taking medication, and transportation. (Doc. No. 20 at 15 (citing AR 413-14, 18 774, 924-25, 927, 930, 937, 940, 942 (noting mother has to prompt Plaintiff to do activities of 19 daily living), 948-49, 951. Moreover, while not considered by the ALJ in the decision, Plaintiff 20 testified at the hearing that she moved in with her sister only a few days prior to the hearing, and 21 she had a caregiver to help her manage and drive to appointments, fill out paperwork, handle 22 money, and help with cooking. (AR 43-45). The only other evidence cited by the ALJ in support 23 of this finding is Plaintiff’s report to a mental health provider that she “cleans houses for 24 additional money when she is able,” and her subsequent denial at the hearing that she “continued 25 to clean houses for money.” (AR 22, 56, 1062, 1080). However, these same medical records 26 indicate she worked “variable” hours, and Plaintiff testified she cleaned for family members and 27 “they didn’t let [her] do a lot.” (AR 56). The ALJ cited no evidence suggesting that the sporadic 28 activities cited in the decision were performed by Plaintiff in a manner transferable to a work 1 setting, particularly with regard to Plaintiff’s alleged difficulty with concentration and her need 2 for daily reminders, nor did the ALJ describe activities that contradict these reported symptom 3 claims. Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). Thus, to the extent the ALJ’s found 4 Plaintiff’s activities were inconsistent with her claimed limitations, this was not a clear and 5 convincing reason, supported by substantial evidence, to discount her symptom claims. 6 Second, the ALJ found Plaintiff’s “subjective comments are not supported by the records 7 that routinely show normal cognition and memory with some impaired concentration at times and 8 occasional labile affect (although this had improved with proper medication dosing).” (AR 22). 9 Medical evidence is a relevant factor in determining the severity of a claimant's pain and its 10 disabling effects. Rollins, 261 F.3d at 857 (an ALJ may not discredit a claimant's pain testimony 11 and deny benefits solely because the degree of pain is not supported by objective medical 12 evidence). Moreover, a favorable response to treatment can undermine a claimant's complaints of 13 debilitating pain or other severe limitations. See Tommasetti, 533 F.3d at 1040; Warre v. Comm'r 14 of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (conditions effectively controlled with 15 medication are not disabling for purposes of determining eligibility for benefits). Here, as part of 16 his summary of the medical evidence, the ALJ generally noted mental status examination results 17 finding Plaintiff was personable, cooperative, collaborative, had good eye contact, had “intact 18 memory, attention, and concentration,” and had euthymic mood and congruent affect; and the 19 ALJ noted medication adjustments in the record and a handful of Plaintiff’s reports that she was 20 “doing better” and “doing well.” (AR 21-22 (citing AR 839-924, 962-71, 1058-1103)). The ALJ 21 also acknowledged ongoing findings of pressured speech, anxious and irritable mood, labile 22 affect, impaired concentration, and one instance of “self-harm” resulting in a hospital admission. 23 (Id.). 24 As an initial matter, aside from a single reference that Plaintiff was sleeping better after 25 her medication was increased upon discharge from her hospitalization, the ALJ fails to identify 26 any specific and consistent improvement in Plaintiff’s claims of impaired concentration and need 27 for reminders due to medication. Brown-Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015) 28 (noting the ALJ did not specifically identify any inconsistencies between the claimant’s testimony 1 and the record; rather, “she simply stated her non-credibility conclusion and then summarized the 2 medical evidence supporting her RFC determination.”); Holohan v. Massanari, 246 F.3d 1195, 3 1208 (9th Cir. 2001) (in considering Plaintiff’s symptom claims, “the ALJ must specifically 4 identify the statements he or she finds not to be credible and must explain what evidence 5 undermines the testimony”). Rather, a review of the treatment records cited by the ALJ in 6 support of this finding indicates that mental status examinations routinely included findings of 7 labile affect, impaired concentration, pressured speech, tangential thought process, ruminative 8 thought content, anxious and irritable mood, psychomotor agitation, and impaired insight and 9 judgment, often with no reference to any changes, or lack thereof, in Plaintiff’s medication 10 dosage. (AR 21-22, 774-75, 851, 864, 858, 871, 878, 884, 890, 896, 903, 909, 915, 920, 924-25 11 (reporting better sleep after medication increase during hospitalization), 1064, 1075, 1082 12 (reporting “stable on medication” but mental status examination results include loud speech, 13 impaired concentration and attention, below average intelligence, and impaired insight and 14 judgment), 1096 (reporting recent increase in medication but mental status examination shows 15 rapid speech, impaired concentration, below average intelligence, and impaired insight and 16 judgment), 1097 (noting Plaintiff’s need for a higher level of care)). Moreover, regardless of 17 whether the ALJ erred in finding Plaintiff’s symptom claims were not corroborated by objective 18 evidence, it is well-settled in the Ninth Circuit that an ALJ may not discredit a claimant’s pain 19 testimony and deny benefits solely because the degree of pain alleged is not supported by 20 objective medical evidence. Rollins, 261 F.3d at 857 (emphasis added))); Bunnell v. Sullivan, 947 21 F.2d 341, 346-47 (9th Cir. 1991); Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989). As 22 discussed above, the additional reason given by the ALJ for discounting Plaintiff’s symptom 23 claims was not supported by substantial evidence. Thus, because lack of corroboration by the 24 objective evidence cannot stand alone as a basis for rejecting Plaintiff’s symptom claims, the 25 ALJ’s finding is inadequate. 26 The Court concludes that the ALJ did not provide clear and convincing reasons, supported 27 by substantial evidence, for rejecting Plaintiff’s symptom claims. On remand, the ALJ must 28 reconsider Plaintiff’s symptom claims and reassess the RFC as necessary. 1 VIII. REMEDY 2 Plaintiff contends that the proper remedy in this case is a remand for further 3 administrative proceedings. See Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1103- 4 04 (9th Cir. 2014) (remand for benefits is not appropriate when further administrative 5 proceedings would serve a useful purpose). The Court agrees. Here, the ALJ improperly 6 considered Plaintiff’s symptom claims, which calls into question whether the assessed RFC, and 7 resulting hypothetical propounded to the vocational expert, are supported by substantial evidence. 8 “Where,” as here, “there is conflicting evidence, and not all essential factual issues have been 9 resolved, a remand for an award of benefits is inappropriate.” Treichler, 775 F.3d at 1101. On 10 remand, the ALJ should reevaluate Plaintiff’s symptom claims. The ALJ should also conduct a 11 new sequential analysis, reassess Plaintiff’s RFC and, if necessary, take additional testimony from 12 a vocational expert to include all the limitations credited by the ALJ. 13 Accordingly, it is RECOMMENDED: 14 1. Plaintiff’s Motion for Summary Judgment (Doc. No. 20) be GRANTED. 15 2. Defendant’s construed Cross Motion for Summary Judgment (Doc. No. 23) be 16 DENIED. 17 3. Pursuant to sentence four of 42 U.S.C.§ 405(g), the Court REVERSE the 18 Commissioner’s decision and REMAND this case back to the Commissioner of 19 Social Security for further proceedings consistent with this Order. 20 4. The district court direct the Clerk to enter judgment in favor of the Plaintiff, 21 terminate any pending motions/deadlines, and close this case. 22 //// 23 //// 24 NOTICE TO PARTIES 25 These findings and recommendations will be submitted to the United States district judge 26 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 27 days after being served with these findings and recommendations, a party may file written 28 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 1 | Findings and Recommendations.” Parties are advised that failure to file objections within the 2 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 3 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 4 > | Dated: __Jamnary 5, 2024 Mile. Th. Doareh Zacks 6 HELENA M. BARCH-KUCHTA 4 UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12