(SS) Nardone v. Commissioner of Social Security

• Court: District Court, E.D. California
• Decided: November 3, 2022
• Docket: 1:21-cv-01444
• Status: Unknown

Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8

9 GEORGINA NARDONE, on behalf of I.F. (a Case No. 1:21-cv-01444-JLT-SKO minor), 10 FINDINGS AND RECOMMENDATIONS Plaintiff, RECOMMENDING THAT PLAINTIFF’S 11 MOTION FOR SUMMARY JUDGMENT BE GRANTED, DEFENDANT’S CROSS- 12 MOTION FOR SUMMARY JUDGMENT v. BE DENIED, AND THE ACTION BE 13 REMANDED TO THE ACTING COMMISSIONER FOR FURTHER 14 KILOLO KIJAKAZI, P ROCEEDINGS 15 Acting Commissioner of Social Security,1 (Docs. 15 & 19)

Defendant. 16 14-DAY DEADLINE _____________________________________/ 17

18 I. INTRODUCTION 19 20 On September 28, 2021, Plaintiff Georgina Nardone (“Plaintiff”), on behalf of her minor 21 child I.F., filed a complaint under 42 U.S.C. § 1383(c) seeking judicial review of a final decision of 22 the Commissioner of Social Security (the “Commissioner” or “Defendant”) denying her application 23 for Supplemental Security Income (SSI) under the Social Security Act (the “Act”). (Doc. 1.) The 24 matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and 25 Local Rule 302. 26

27 1 On July 9, 2021, Kilolo Kijakazi was named Acting Commissioner of the Social Security Administration. See https://www.ssa.gov/history/commissioners.html. She is therefore substituted as the defendant in this action. See 42 28 U.S.C. § 405(g) (referring to the “Commissioner’s Answer”); 20 C.F.R. § 422.210(d) (“the person holding the Office 1 For the reasons set forth below, the undersigned recommends that Plaintiff’s motion for 2 summary judgment be granted, that Defendant’s motion for summary judgment be denied, and that 3 the action be remanded to the Acting Commissioner for further proceedings. 4 II. BACKGROUND 5 On March 30, 2020, an application for SSI was protectively filed by Plaintiff on behalf of 6 I.F., a child under the age of 18. (Administrative Record (“AR”) 41, 157, 177) (I.F. was born on 7 April 1, 2009).) The application alleged that I.F. became disabled on January 1, 2015, due to 8 dyslexia, attention deficit hyperactivity disorder (ADHD), anxiety disorder, “behind compared to 9 classmates,” difficulty speaking, and “difficulties with sleeping (hyperactive).” (AR 150–56.) 10 The Commissioner denied Plaintiff’s application for benefits initially on June 8, 2020, and 11 again on reconsideration on August 6, 2020. (AR 64–67; AR 75–79.) Consequently, Plaintiff 12 requested a hearing before an Administrative Law Judge (“ALJ”). (AR 80–95.) The ALJ conducted 13 a hearing on December 22, 2020. (AR 27–40.) Plaintiff appeared at the hearing with I.F. and her 14 counsel, and gave testimony. (AR 27–40.) I.F. did not testify. 15 In a decision dated January 15, 2021, the ALJ found that I.F. was not disabled. (AR 15–23.) 16 Plaintiff sought review of this decision before the Appeals Council, which denied review on August 17 3, 2021. (AR 1–6.) Therefore, the ALJ’s decision became the final decision of the Commissioner. 18 20 C.F.R. § 416.1481. 19 III. SCOPE OF REVIEW 20 The ALJ’s decision denying benefits “will be disturbed only if that decision is not supported 21 by substantial evidence or it is based upon legal error.” Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 22 1999). In reviewing the Commissioner’s decision, the Court may not substitute its judgment for that 23 of the Commissioner. Macri v. Chater, 93 F.3d 540, 543 (9th Cir. 1996). Instead, the Court must 24 determine whether the Commissioner applied the proper legal standards and whether substantial 25 evidence exists in the record to support the Commissioner’s findings. See Lewis v. Astrue, 498 F.3d 26 909, 911 (9th Cir. 2007). “Substantial evidence is more than a mere scintilla but less than a 27 preponderance.” Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). 28 “Substantial evidence” means “such relevant evidence as a reasonable mind might accept as 1 adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting 2 Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 229 (1938)). The Court “must consider the entire 3 record as a whole, weighing both the evidence that supports and the evidence that detracts from the 4 Commissioner’s conclusion, and may not affirm simply by isolating a specific quantum of 5 supporting evidence.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (citation and 6 internal quotation marks omitted). 7 IV. APPLICABLE LAW 8 A child (defined as an individual under the age of eighteen) is considered disabled for 9 purposes of disability benefits if they are “unable to engage in substantial gainful activity due to a 10 medically determinable physical or mental impairment.” Bowen v. Yuckert, 482 U.S. 137, 140 11 (1987) (quoting 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A)); Lowe v. Berryhill, Case No. 1:17-cv- 12 00349-SKO, 2018 WL 2096264, at *7 (E.D. Cal. May 7, 2018). The impairment or impairments 13 must “result[] in marked and severe functional limitations, and which can be expected to result in 14 death or which has lasted or can be expected to last for a continuous period of not less than twelve 15 months.” Merrill ex rel. Merrill v. Apfel, 224 F.3d 1083, 1085 (9th Cir. 2000) (quoting 42 U.S.C. § 16 1382c(a)(3)(C)(i)). 17 The ALJ must undertake a three-step sequential analysis in the process of evaluating a child’s 18 disability. In the first step, the ALJ must determine whether the child is engaged in substantial 19 gainful activity. 20 C.F.R. § 416.924. If not, in the second step, the ALJ must determine whether 20 the child has a severe impairment or a combination of impairments causing marked functional 21 limitations. Id. If so, in the third step, the ALJ must determine whether the child has a severe 22 impairment or combination of impairments that meets or equals the requirements of the Listing of 23 Impairments (“Listing”), 20 C.F.R. 404, Subpart P, App. 1. Id. If so, the child is found to be 24 disabled, assuming the twelve-month duration requirement is also met. Id. 25 Step three encompasses two analytical steps. First, it must be determined whether the 26 claimant’s impairment meets or medically equals a Listing. Second, the impairment must also 27 satisfy all the criteria of the Listing. 20 C.F.R. § 416.925(d). The mere diagnosis of an impairment 28 in the Listing is insufficient, without more, to sustain a finding of disability. Young v. Sullivan, 911 1 F.2d 180, 183 (9th Cir.1990); Key v. Heckler, 754 F.2d 1545, 1549 (9th Cir.1985). If the claimant 2 does not meet or medically equal a Listing, he may still be considered disabled if an impairment 3 results in limitations that “functionally equal the listings.” 20 C.F.R. § 416.926a(a). 4 In determining whether the severe impairment functionally equals a Listing, the ALJ must 5 assess the claimant’s functioning in six “domains.” The “domains” are broad areas of functioning 6 that are “intended to capture all of what a child can and cannot do.” Id., § 416.924a(b)(1). The six 7 domains are: (1) acquiring and using information; (2) attending and completing tasks; (3) interacting 8 and relating with others; (4) moving about and manipulating objects; (5) caring himself; and (6) 9 health and physical well-being. 20 C.F.R. § 416.926a(b)(1). To “functionally equal” the listings, the 10 impairment must result in “marked” limitations in two domains or an “extreme” limitation in one 11 domain. Id., § 416.926a(a), (d). In making this assessment, the ALJ looks at “how appropriately, 12 effectively, and independently” the claimant preforms their activities “compared to the performance 13 of other children [the claimant’s] age who do not have impairments.” Id., § 416.926a(b). In each 14 domain, the regulations provide “age group descriptors” summarizing the typical functioning of 15 children in each group. The age groups include preschool children (age 3 to attainment of age 6), 16 school-age children (age 6 to attainment of age 12), and adolescents (age 12 to attainment of age 17 18). See, e.g., id., § 416.926a(h). 18 A minor has a “marked” limitation in a domain if their impairment “interferes seriously” 19 with their “ability to independently initiate, sustain, or complete activities.” 20 C.F.R. § 20 416.926a(e)(2)(i). The regulations also provide that “marked” limitations means a limitation that is 21 “more than moderate” but “less than extreme.” Id. A minor has an “extreme” limitation in a domain 22 if his impairment “interferes very seriously” with their “ability to independently initiate, sustain, or 23 complete activities.” 20 C.F.R. § 416.926a(e)(3)(i). The regulations also provide that an “extreme” 24 limitation also means a limitation that is “more than marked.” Id. However, “extreme” limitation 25 does not mean a “total lack or loss of ability to function.” Id. 26 The claimant bears the burden of establishing a prima facie case of disability. Roberts v. 27 Shalala, 66 F.3d 179, 182 (9th Cir. 1995); see 20 C.F.R. § 416.912(a) (“In general, you have to 28 prove to us that you are blind or disabled”); Bowen, 482 U.S. at 146 n.5. This burden requires a 1 showing that the minor has an impairment listed in the regulations, and that he has met the duration 2 requirement. See 20 C.F.R. § 416.924(a), 416.924(d)(2). 3 V. THE ALJ’S DECISION 4 The ALJ conducted the three-step childhood disability analysis set forth in 20 C.F.R. § 5 416.924. (AR 16–23.) The ALJ noted that I.F. was “a preschooler” on March 30, 2020, the date the 6 application was filed, is “currently a school-age child,” and that she had not engaged in substantial 7 gainful activity since the application date (step one). (AR 16.) At step two, the ALJ found that I.F. 8 had the severe impairments of anxiety; attention and concentration deficit disorder; adjustment 9 disorder; and dyslexia. (AR 16.) The ALJ further found that I.F. had no impairment or combination 10 of impairments that met, medically equaled, or functionally equaled the severity of the Listings, in 11 that they resulted in either marked limitations in two domains of functioning or extreme limitation 12 in one domain of functioning (step three). (AR 16–19.) In reaching this finding, the ALJ considered 13 the relevant medical evidence and opinions, function reports, Plaintiff’s hearing testimony, and 14 school records. (AR 18–23.) Although the ALJ recognized that I.F.’s impairments “could 15 reasonably be expected to produce the alleged symptoms[,]” they rejected the subjective testimony 16 in the record as “not entirely consistent with the medical evidence and other evidence in the record.” 17 (AR 21.) The ALJ also found the opinions of the state agency examiners “somewhat persuasive and 18 consistent with the medical evidence.” (AR 22.) The ALJ analyzed I.F’s functioning “in terms of 19 six functional equivalence domains,” including (1) acquiring and using information, (2) attending 20 and completing tasks, (3) interacting and relating with others, (4) moving about and manipulating 21 objects, (5) caring for herself, and (6) health and physical well-being. (AR 19–23.) The ALJ 22 concluded that I.F. was not disabled. (AR 23.) 23 VI. DISCUSSION 24 Plaintiff asserts that remand is required because (1) the ALJ erred at step three by applying 25 the “wrong age standard” to I.F. and (2) the ALJ and Appeals Council members were “not properly 26 appointed.” (See Docs. 15, 20.) The Commissioner responds that to the extent the ALJ incorrectly 27 identified I.F. as a “preschooler,” this error is harmless, as the opinion makes clear that the evidence 28 on which the ALJ relied demonstrated Plaintiff’s status as a school-aged child when they properly 1 found that Plaintiff did not functionally equal the severity of the Listings. (See Doc. 19.) The 2 Commissioner also asserts that the then-Acting Commissioner Nancy Berryhill’s ratification and 3 approval of the appointments of ALJs and Appeals Council members was valid. (See id.) 4 A. The ALJ’s Finding that Plaintiff Was a “Preschooler” on the Application Date is Harmful Error 5 6 A claimant’s “age is an important factor” in determining disability. 20 C.F.R. § 416.924b. 7 “When determining whether a child suffers from limitations, the ALJ must compare the child to 8 other children of the same age without impairments.” McGee o/b/o J.S.F. v. Kijakazi, No. 2:20-CV- 9 2172 DB, 2022 WL 4123980, at *2 (E.D. Cal. Sept. 9, 2022) (quoting Lawson ex rel. D.D.L. v. 10 Astrue, No. 4:08CV282 HEA, 2009 WL 2143754, at *8 (E.D. Mo. July 13, 2009). As set forth 11 above, applicable age group standards include preschool children age 3 to 6, school-age children age 12 6 to 12, and adolescents age 12 to 18. 20 C.F.R. § 416.926a(g)). An ALJ’s comparison of a child 13 to the wrong age group renders the decision “fundamentally flawed.” McGee o/b/o J.S.F., 2022 WL 14 4123980, at *2 (quoting Tisdale ex rel. B.O.H. v. Astrue, No. 8:07-CV-862-T-TGW, 2008 WL 15 4145838, at *3 (M.D. Fla. Sept. 8, 2008)). 16 I.F. “was born on April 1, 2009.” (AR 16.) The ALJ was therefore correct that she was 17 “currently a school-age child” at the time of the decision. Id.; see 20 C.F.R. § 416.926a(g)(2)(iv) 18 (defining school-age child as age 6 to attainment of age 12). But, contrary to the ALJ’s decision, 19 I.F. was not a “preschooler” on March 30, 2020, the date the application was filed. (AR 16.) 20 Defendant concedes this error, stating “the ALJ incorrectly identified Plaintiff as a 21 preschooler in the first half of his first finding at AR 16.” (Doc. 19 at 6.) The Commissioner asserts 22 that the ALJ’s error did not impact the ALJ’s decision, and therefore harmless, as it is evident from 23 “face of the decision” that the ALJ used the proper age group standards to compare Plaintiff’s 24 performance to other children her age without impairments. (Doc. 19 at 6.) The undersigned 25 disagrees. 26 “Federal district courts have consistently held that this legal error warrants reversal and 27 remand.” McGee o/b/o J.S.F., 2022 WL 4123980, at *2 (quoting Ebony J. on behalf of O.C.J. v. 28 Saul, Civil Action No. 4:18-cv-0032, 2019 WL 9075875, at *9 (W.D. Va. Sept. 6, 2019)). See id. 1 at *2–3 (granting summary judgment to the plaintiff where the ALJ incorrectly found the plaintiff 2 was “currently a school-age child” at the time of the decision); Yaws on behalf of B.D.H. v. Berryhill, 3 No. 4:15-CV-0961-Y-BL, 2017 WL 1026231, at *10 (N.D. Tex. Feb. 23, 2017) (“A failure to clearly 4 consider the applicable age category may materially affect an ALJ’s analysis and requires remand.”); 5 Bucha v. Commissioner of Social Security, Case No. 1:15-cv-1174, 2016 WL 5340271, at *4 (W.D. 6 Mich. Sept. 23, 2016) (“It remains patent the ALJ mistakenly believed H.M. was a school-age child 7 through the date of the decision, and it is equally clear that in arriving at her decision the ALJ relied, 8 at least in part, on comparing H.M.’s adolescent activities to those typical of a younger, school-age 9 individual.”); Artis v. Colvin, No. 5:15-CV-119-FL, 2016 WL 937703, at *6 (E.D.N.C. Feb. 25, 10 2016) (“Although the ALJ cited evidence from Claimant’s kindergarten and first grade teachers in 11 her analysis it is far from clear whether she considered this evidence in light of the appropriate 12 functioning of a school-age child listed in 20 C.F.R. § 416.926a(g)(2)(iv). Therefore, the ALJ’s 13 error may have materially affected the analysis and, thus, requires remand.”); Kline ex rel. J.H.-K. 14 v. Colvin, No. 11 C 50376, 2014 WL 69953, at *16 (N.D. Ill. Jan. 9, 2014) (“The ALJ erred by 15 applying the wrong age category in reaching her finding when the correct age category would require 16 considerations that the ALJ failed to address. Accordingly, the decision of the Commissioner is not 17 supported by substantial evidence.”). 18 Here, the undersigned cannot determine, from a review of the ALJ’s decision, which age 19 group category the ALJ applied to evaluate Plaintiff’s functioning and, if they applied the wrong age 20 group category, whether the analysis would have changed had they applied the correct one. 21 Accordingly, the undersigned finds that remand is appropriate. See Tisdale ex rel. B.O.H., 2008 WL 22 4145838, at *3 (finding “unpersuasive” Commissioner’s argument that ALJ’s error in comparing 23 the plaintiff’s functioning to children of a younger age group was harmless because “[i]f, in making 24 [his] determination, the law judge compared the child to the wrong age group, the determination 25 would be fundamentally flawed.”); Butler ex rel. J.B. v. Colvin, No. CA 12-0382-C, 2013 WL 26 1007717, at *3 (S.D. Ala. Mar. 13, 2013) (finding that the ALJ misidentification of the claimant as 27 a school-age child at the time of the decision, when he had in fact reached adolescence, was 28 “certainly error requiring remand of [the] case,” and noting that “if the age descriptors meant 1 nothing, the regulations would not make any age distinctions”). 2 Specifically, the ALJ found that I.F. had “less than a marked limitation” in the domains of 3 (1) acquiring and using information and (2) attending and completing tasks. (AR 20.) In the domain 4 of acquiring and using information, the regulations state that the ALJ should consider how well the 5 child acquires or learns information, and how well the child uses the information they have learned. 6 20 C.F.R. § 416.926a(g). 7 For a preschool child, the regulations provide: 8 When you are old enough to go to preschool or kindergarten, you should begin to learn and use the skills that will help you to read and write and do arithmetic when 9 you are older. For example, listening to stories, rhyming words, and matching letters are skills needed for learning to read. Counting, sorting shapes, and building 10 with blocks are skills needed to learn math. Painting, coloring, copying shapes, and using scissors are some of the skills needed in learning to write. Using words to 11 ask questions, give answers, follow directions, describe things, explain what you 12 mean, and tell stories allows you to acquire and share knowledge and experience of the world around you. All of these are called “readiness skills,” and you should 13 have them by the time you begin first grade. 14 Id. § 416.926a(g)(2)(iii). 15 For a school-age child, the regulations provide: 16 When you are old enough to go to elementary and middle school, you should be able to learn to read, write, and do math, and discuss history and science. You will 17 need to use these skills in academic situations to demonstrate what you have learned; e.g., by reading about various subjects and producing oral and written 18 projects, solving mathematical problems, taking achievement tests, doing group 19 work, and entering into class discussions. You will also need to use these skills in daily living situations at home and in the community (e.g., reading street signs, 20 telling time, and making change). You should be able to use increasingly complex language (vocabulary and grammar) to share information and ideas with individuals 21 or groups, by asking questions and expressing your own ideas, and by 22 understanding and responding to the opinions of others. 23 Id. § 416.926a(g)(2)(iv). 24 The evidence of record indicates that I.F. cannot spell most 3-4 letter words, write a simple 25 story with 6-7 sentences, or understand money to make correct change. (AR 165.) Her reading and 26 writing abilities were assessed in February 2019 (age 9) at “minimally developed/beginner” and 27 “somewhat/moderately developed,” respectively. (AR 213.) She “continues to need prompts and 28 support with her written expression.” (AR 213.) Plaintiff testified at the hearing that I.F. has severe 1 dyslexia and that her reading level is between first and second grade. (AR 35. See also AR 352 2 (dyslexia diagnosis).) According to school records dated November 2019 (age 10), I.F. is “weak in 3 the areas of writing, math facts, [] reading fluency, and writing,” and she “has auditory processing 4 disorder that interferes with her ability to access grade level curriculum without special education 5 supports and services.” (AR 213.) 6 In the domain of attending and completing tasks, the regulations state that the ALJ should 7 consider how well the child is able to focus and maintain their attention, and how well the child 8 begins, carries through, and finishes the activities, including the pace at which they perform activities 9 and the ease with which the child changes them. 20 C.F.R. § 416.926a(h). 10 For a preschool child, the regulations provide: 11 As a preschooler, you should be able to pay attention when you are spoken to directly, sustain attention to your play and learning activities, and concentrate on 12 activities like putting puzzles together or completing art projects. You should also 13 be able to focus long enough to do many more things by yourself, such as getting your clothes together and dressing yourself, feeding yourself, or putting away your 14 toys. You should usually be able to wait your turn and to change your activity when a caregiver or teacher says it is time to do something else. 15 16 Id. § 416.926a(h)(2)(iii). 17 For a school-age child, the regulations provide: 18 When you are of school age, you should be able to focus your attention in a variety of situations in order to follow directions, remember and organize your school 19 materials, and complete classroom and homework assignments. You should be able to concentrate on details and not make careless mistakes in your work (beyond 20 what would be expected in other children your age who do not have impairments). 21 You should be able to change your activities or routines without distracting yourself or others, and stay on task and in place when appropriate. You should be able to 22 sustain your attention well enough to participate in group sports, read by yourself, and complete family chores. You should also be able to complete a transition task 23 (e.g., be ready for the school bus, change clothes after gym, change classrooms) without extra reminders and accommodation. 24 25 Id. § 416.926a(h)(2)(iv). 26 I.F.’s school records dated November 2019 (age 10) indicate that she is “distracted” and that 27 her “on task time is below average.” (AR 213.) According to a medical record dated February 2019 28 (age 9), I.F. was disruptive by talking in class and unknowingly “hum[ming] loudly” when angry or 1 anxious. (AR 238.) She was diagnosed with anxiety. (AR 238.) In March 2019, a medical record 2 noted I.F. “has a hard time staying in her seat, needs consistent redirection, cannot [be told] more 3 than one instruction at the same time, and needs [repetition].” (AR 242.) I.F. was also diagnosed 4 with “adjustment disorder with anxiety” and “attention and concentration deficit disorder,” and was 5 prescribed Adderall. (AR 245.) I.F. was described by the treater in March 2019 (age 9) as: “May 6 have difficulty in sustaining attention. Seems to listen only when spoken to. Squirms a lot. Speech 7 not spontaneous. Fidgets with hands and squirms in seat. Thought processes show distractibility. 8 [M]anifests anxiety and restlessness.” (AR 285.) I.F. was noted by her treatment provider in March 9 2020 (age 10) to have “[s]ignificant impairment in social, academic, and occupational functioning.” 10 (AR 306.) Another treatment note dated October 2020 (age 11) observed that I.F. was under the 11 care of a provider for “concentration problems.” (AR 356.) At the hearing, Plaintiff testified I.F. 12 needs help to dress herself and to take a shower, and “doesn’t remember to pick things up.” (AR 13 33.) According to Plaintiff, I.F. needs reminders to put on socks, brush her hair, and to clean herself, 14 and that Plaintiff helps I.F. pack her things for school, shower, and perform personal cleaning. (AR 15 34.) Plaintiff testified that I.F. cannot do her homework on her own. (AR 35.) I.F. can only watch 16 television for a short period, before she starts “running around the house.” (AR 38, 39.) 17 Given the extensive evidence of record indicating I.F.’s significant problems with learning 18 and applying information, focus, and task completion, as described above, the undersigned questions 19 whether substantial evidence would support a finding of a less-than-marked limitations in those 20 areas, had the ALJ applied the correct age group standard (school-age). Because the undersigned 21 cannot tell whether they did so, the undersigned recommends that the action be remanded.2 22 B. The ALJ’s Error Warrants Remand for Further Proceedings 23 24 Where the ALJ commits an error and that error is not harmless, the “ordinary . . . rule” is “to 25

26 2 The Commissioner asks the Court to hold that, despite the ALJ’s misclassification of I.F.’s age, there is substantial evidence to support the conclusion that M.S. does not have an impairment or combination of impairments that 27 functionally equal the severity of one of the listed impairments based on I.F’s functioning. (See Doc 19 at 3–5.) To do so would require the Court to independently weigh the evidence, applying the correct standard, thereby substituting its 28 judgment for that of the ALJ. This it cannot do. Ahearn v. Saul, 988 F.3d 1111, 1115 (9th Cir. 2021) (“We may not 1 remand to the agency for additional investigation or explanation.” Treichler, 775 F.3d at 1099 2 (citations omitted). The Ninth Circuit recognized a limited exception to this typical course where 3 courts “remand[] for an award of benefits instead of further proceedings.” Id. at 1100–01 (citations 4 omitted); see also id. at 1100 (noting that this exception is “sometimes referred to as the ‘credit-as- 5 true’ rule”). In determining whether to apply this exception to the “ordinary remand rule,” the court 6 must determine, in part, whether (1) “the record has been fully developed;” (2) “there are outstanding 7 issues that must be resolved before a determination of disability can be made;” and (3) “further 8 administrative proceedings would be useful.” Id. at 1101 (citations omitted). As to the last inquiry, 9 additional “[a]dministrative proceedings are generally useful where the record has not been fully 10 developed, there is a need to resolve conflicts and ambiguities, or the presentation of further evidence 11 . . . may well prove enlightening in light of the passage of time.” Id. (citations omitted). Ultimately, 12 “[t]he decision whether to remand a case for additional evidence or simply to award benefits is in 13 [the court’s] discretion.” Swenson, 876 F.2d at 689 (citation omitted). 14 The undersigned finds that the “credit-as-true” exception to the “ordinary remand rule” is 15 inapplicable in this case because additional administrative proceedings would be useful.3 See, e.g., 16 McGee o/b/o J.S.F, 2022 WL 4123980, at *6 (remanding for further proceedings including a de novo 17 hearing and new decision). The undersigned takes no position on whether I.F. is entitled to disability 18 benefits for the relevant period. The ALJ is, upon remand, to consider all of the relevant medical 19 evidence in assessing I.F.’s functioning in all of the domains specified in the regulations and to apply 20 the correct age group standard(s) when doing so.4 21 VII. FINDINGS AND RECOMMENDATIONS 22 For the reasons explained herein, IT IS HEREBY RECOMMENDED that: 23 1. Plaintiff’s motion for summary judgment (Doc. 15) be GRANTED; 24 2. Defendant’s cross-motion for summary judgment (Doc. 19) be DENIED; 25 3 Plaintiff concedes that further administrative proceedings are appropriate in this case. (See Doc. 20 at 3.) 26 4 As the Court finds that remand for further proceedings is appropriate, the Court does not reach Plaintiff’s additional assertion of error regarding the invalidity of the appointments of the ALJ and the Appeals Council (see Doc. 15 at 8– 27 12; Doc. 20 at 3–8.) See Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012) (“Because we remand the case to the ALJ for the reasons stated, we decline to reach [plaintiff’s] alternative ground for remand.”); Augustine ex rel. Ramirez v. 28 Astrue, 536 F. Supp. 2d 1147, 1153 n.7 (C.D. Cal. 2008) (“[The] Court need not address the other claims plaintiff raises, 1 3. This matter be REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for 2 further proceedings consistent with this decision; and 3 4. The Clerk of the Court be DIRECTED to enter judgment in favor of Plaintiff 4 Georgina Nardone, on behalf of minor child I.F., and against Defendant Acting Commissioner of 5 Social Security, and to CLOSE this action. 6 These findings and recommendations are submitted to the District Judge assigned to this 7 action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within fourteen (14) 8 days of service of this recommendation, any party may file written objections to these findings and 9 recommendations with the Court and serve a copy on all parties. Such a document should be 10 captioned “Objections to Magistrate Judge’s Findings and Recommendations.” 11 The District Judge will review the Magistrate Judge’s findings and recommendations 12 pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within 13 the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 14 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 15 IT IS SO ORDERED. 16

17 Dated: November 2, 2022 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 18

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