(SS) Vanleeuwen v. Commissioner of Social Security

Opinion

1 2 3 4 5 6 7 10 11 KENT HENRY VANLEEUWEN, Case No. 1:21-cv-00963-ADA-HBK 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO GRANT PLAINTIFF’S MOTION FOR 13 v. SUMMARY JUDGMENT AND REMAND CASE TO COMMISSIONER1 COMMISSIONER OF SOCIAL FOURTEEN-DAY OBJECTION PERIOD (Doc. No. 13) 16 Defendant. 17 18 19 Kent Henry Vanleeuwen (“Plaintiff”) seeks judicial review of a final decision of the 20 Commissioner of Social Security (“Commissioner” or “Defendant”) denying his application for 21 supplemental security income under the Social Security Act. (Doc. No. 1). The matter is 22 currently before the Court on the parties’ briefs, which were submitted without oral argument. 23 (Doc. Nos. 13-15). For the reasons set forth more fully below, the undersigned recommends the 24 district court grant Plaintiff’s motion for summary judgment and remand for further 25 administrative proceedings. 26 /////

27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 (E.D. Cal. 2022). 28 2 Plaintiff filed for supplemental security income on July 31, 2017, alleging a disability 3 onset date of May 15, 2017. (AR 199-207). Benefits were denied initially (AR 101-05) and upon 4 reconsideration (AR 108-12). A hearing was conducted before Administrative Law Judge 5 Cynthia Hale (“ALJ”) on January 6, 2020, and a subsequent hearing was held on April 15, 2020. 6 (AR 47-75). Plaintiff was represented by counsel at the second hearing, and testified at the 7 hearing. (Id.). On September 17, 2020, the ALJ issued an unfavorable decision (AR 12-31), and 8 on April 29, 2021, the Appeals Council denied review. (AR 1-6). The matter is now before this 9 Court pursuant to 42 U.S.C. § 1383(c)(3). 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 53 years old at the time of the second hearing. (See AR 236). He completed 15 the eleventh grade and attended special education classes. (AR 230). Plaintiff has no past 16 relevant work history. (AR 24, 229). Plaintiff testified that he could no longer work because of 17 his medications. (AR 60). He reported fatigue from a heart condition, which required placement 18 of a pacemaker in 2018. (AR 61-62). Plaintiff testified that he naps for approximately three 19 hours per day, spread out throughout the day. (AR 63). He takes psychotropic medications, and 20 testified that they help control his anxiety and depression. (AR 64-65). Plaintiff reported that he 21 can sit for 20 minutes at a time, stand for 15-20 minutes before he needs to sit down, walk for 15 22 minutes before he gets tired, and lift 5 to 10 pounds occasionally. (AR 69-70). 24 A district court’s review of a final decision of the Commissioner of Social Security is 25 governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is limited; the 26 Commissioner’s decision will be disturbed “only if it is not supported by substantial evidence or 27 is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). “Substantial 28 evidence” means “relevant evidence that a reasonable mind might accept as adequate to support a 1 conclusion.” Id. at 1159 (quotation and citation omitted). Stated differently, substantial evidence 2 equates to “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 3 citation omitted). In determining whether the standard has been satisfied, a reviewing court must 4 consider the entire record as a whole rather than searching for supporting evidence in isolation. 5 Id. 6 In reviewing a denial of benefits, a district court may not substitute its judgment for that of 7 the Commissioner. “The court will uphold the ALJ's conclusion when the evidence is susceptible 8 to more than one rational interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 9 2008). Further, a district court will not reverse an ALJ’s decision on account of an error that is 10 harmless. Id. An error is harmless where it is “inconsequential to the [ALJ’s] ultimate 11 nondisability determination.” Id. (quotation and citation omitted). The party appealing the ALJ’s 12 decision generally bears the burden of establishing that it was harmed. Shinseki v. Sanders, 556 13 U.S. 396, 409-10 (2009). 15 A claimant must satisfy two conditions to be considered “disabled” within the meaning of 16 the Social Security Act. First, the claimant must be “unable to engage in any substantial gainful 17 activity by reason of any medically determinable physical or mental impairment which can be 18 expected to result in death or which has lasted or can be expected to last for a continuous period 19 of not less than twelve months.” 42 U.S.C. § 1382c(a)(3)(A). Second, the claimant’s impairment 20 must be “of such severity that he is not only unable to do his previous work[,] but cannot, 21 considering his age, education, and work experience, engage in any other kind of substantial 22 gainful work which exists in the national economy.” 42 U.S.C. § 1382c(a)(3)(B). 23 The Commissioner has established a five-step sequential analysis to determine whether a 24 claimant satisfies the above criteria. See 20 C.F.R. § 416.920(a)(4)(i)-(v). At step one, the 25 Commissioner considers the claimant’s work activity. 20 C.F.R. § 416.920(a)(4)(i). If the 26 claimant is engaged in “substantial gainful activity,” the Commissioner must find that the 27 claimant is not disabled. 20 C.F.R. § 416.920(b). 28 If the claimant is not engaged in substantial gainful activity, the analysis proceeds to step 1 two. At this step, the Commissioner considers the severity of the claimant’s impairment. 20 2 C.F.R. § 416.920(a)(4)(ii). If the claimant suffers from “any impairment or combination of 3 impairments which significantly limits [his or her] physical or mental ability to do basic work 4 activities,” the analysis proceeds to step three. 20 C.F.R. § 416.920(c). If the claimant’s 5 impairment does not satisfy this severity threshold, however, the Commissioner must find that the 6 claimant is not disabled. 20 C.F.R. § 416.920(c). 7 At step three, the Commissioner compares the claimant’s impairment to severe 8 impairments recognized by the Commissioner to be so severe as to preclude a person from 9 engaging in substantial gainful activity. 20 C.F.R. § 416.920(a)(4)(iii). If the impairment is as 10 severe or more severe than one of the enumerated impairments, the Commissioner must find the 11 claimant disabled and award benefits. 20 C.F.R. § 416.920(d). 12 If the severity of the claimant’s impairment does not meet or exceed the severity of the 13 enumerated impairments, the Commissioner must pause to assess the claimant’s “residual 14 functional capacity.” Residual functional capacity (RFC), defined generally as the claimant’s 15 ability to perform physical and mental work activities on a sustained basis despite his or her 16 limitations, 20 C.F.R. § 416.945(a)(1), is relevant to both the fourth and fifth steps of the analysis. 17 At step four, the Commissioner considers whether, in view of the claimant’s RFC, the 18 claimant is capable of performing work that he or she has performed in the past (past relevant 19 work). 20 C.F.R. § 416.920(a)(4)(iv). If the claimant is capable of performing past relevant 20 work, the Commissioner must find that the claimant is not disabled. 20 C.F.R. § 416.920(f). If 21 the claimant is incapable of performing such work, the analysis proceeds to step five. 22 At step five, the Commissioner considers whether, in view of the claimant’s RFC, the 23 claimant is capable of performing other work in the national economy. 20 C.F.R. § 24 416.920(a)(4)(v). In making this determination, the Commissioner must also consider vocational 25 factors such as the claimant’s age, education, and past work experience. 20 C.F.R. § 26 416.920(a)(4)(v). If the claimant is capable of adjusting to other work, the Commissioner must 27 find that the claimant is not disabled. 20 C.F.R. § 416.920(g)(1). If the claimant is not capable of 28 adjusting to other work, analysis concludes with a finding that the claimant is disabled and is 1 therefore entitled to benefits. 20 C.F.R. § 416.920(g)(1). 2 The claimant bears the burden of proof at steps one through four above. Tackett v. Apfel, 3 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to step five, the burden shifts to the 4 Commissioner to establish that (1) the claimant is capable of performing other work; and (2) such 5 work “exists in significant numbers in the national economy.” 20 C.F.R. § 416.960(c)(2); Beltran 6 v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). 8 At step one, the ALJ found that Plaintiff has not engaged in substantial gainful activity 9 since July 31, 2017, the application date. (AR 17). At step two, the ALJ found that Plaintiff has 10 the following severe impairments: history of bradycardia and syncope requiring pacemaker 11 placement, mood disorder, and anxiety. (AR 18). At step three, the ALJ found that Plaintiff does 12 not have an impairment or combination of impairments that meets or medically equals the 13 severity of a listed impairment. (AR 19). The ALJ then found that Plaintiff has the RFC: 14 to perform light work as defined in 20 CFR 416.967(b) except he would need to be able to alternate between standing and sitting every 15 30 minutes for a brief position change while continuing to work at the work station. He is limited to simple, routine, or repetitive tasks 16 with no more than occasional interaction with co-workers, supervisors, and the general public, with no tandem job tasks. 17 18 (AR 20). At step four, the ALJ found that Plaintiff has no past relevant work. (AR 24). At step 19 five, the ALJ found that considering Plaintiff’s age, education, work experience, and RFC, there 20 are jobs that exist in significant numbers in the national economy that Plaintiff can perform, 21 including routing clerk, marker, and office helper. (AR 25). On that basis, the ALJ concluded 22 that Plaintiff has not been under a disability, as defined in the Social Security Act, since July 31, 23 2017, the date the application was filed. (AR 25). 25 Plaintiff seeks judicial review of the Commissioner’s final decision denying him 26 supplemental security income benefits under Title XVI of the Social Security Act. (Doc. No. 1). 27 Plaintiff raises the following issue for this Court’s review: whether the ALJ properly weighed the 28 medical opinion evidence. (Doc. No. 13 at 2-5). 2 A. Medical Opinions 3 For claims filed on or after March 27, 2017, new regulations apply that change the 4 framework for how an ALJ must evaluate medical opinion evidence. Revisions to Rules 5 Regarding the Evaluation of Medical Evidence, 2017 WL 168819, 82 Fed. Reg. 5844-01 (Jan. 18, 6 2017); 20 C.F.R. § 404.1520c. The new regulations provide that the ALJ will no longer “give 7 any specific evidentiary weight…to any medical opinion(s)…” Revisions to Rules, 2017 WL 8 168819, 82 Fed. Reg. 5844, at 5867-68; see 20 C.F.R. § 404.1520c(a). Instead, an ALJ must 9 consider and evaluate the persuasiveness of all medical opinions or prior administrative medical 10 findings from medical sources. 20 C.F.R. § 404.1520c(a) and (b). The factors for evaluating the 11 persuasiveness of medical opinions and prior administrative medical findings include 12 supportability, consistency, relationship with the claimant (including length of the treatment, 13 frequency of examinations, purpose of the treatment, extent of the treatment, and the existence of 14 an examination), specialization, and “other factors that tend to support or contradict a medical 15 opinion or prior administrative medical finding” (including, but not limited to, “evidence showing 16 a medical source has familiarity with the other evidence in the claim or an understanding of our 17 disability program’s policies and evidentiary requirements”). 20 C.F.R. § 404.1520c(c)(1)-(5). 18 Supportability and consistency are the most important factors, and therefore the ALJ is 19 required to explain how both factors were considered. 20 C.F.R. § 404.1520c(b)(2). 20 Supportability and consistency are explained in the regulations: 21 (1) Supportability. The more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or 22 her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior administrative medical finding(s) 23 will be. 24 (2) Consistency. The more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other medical 25 sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be. 26 20 C.F.R. § 404.1520c(c)(1)-(2). The ALJ may, but is not required to, explain how the other 27 factors were considered. 20 C.F.R. § 404.1520c(b)(2). However, when two or more medical 28 1 opinions or prior administrative findings “about the same issue are both equally well-supported ... 2 and consistent with the record ... but are not exactly the same,” the ALJ is required to explain how 3 “the other most persuasive factors in paragraphs (c)(3) through (c)(5)” were considered. 20 4 C.F.R. § 404.1520c(b)(3). 5 The Ninth Circuit has additionally held that the new regulatory framework displaces the 6 longstanding case law requiring an ALJ to provide “specific and legitimate” or “clear and 7 convincing” reasons for rejecting a treating or examining doctor’s opinion. Woods v. Kijakazi, 32 8 F.4th 785 (9th Cir. 2022). Nonetheless, in rejecting an examining or treating doctor’s opinion as 9 unsupported or inconsistent, an ALJ must still provide an explanation supported by substantial 10 evidence. Id. This means that the ALJ “must ‘articulate ... how persuasive’ [he or she] finds ‘all 11 of the medical opinions’ from each doctor or other source ... and ‘explain how [he or she] 12 considered the supportability and consistency factors’ in reaching these findings.” Id. (citing 20 13 C.F.R. §§ 404.1520c(b), 404.1520(b)(2)). 14 In August 2017, Dr. Olaya opined that Plaintiff “is capable of understanding, 15 remembering, and carrying out simple one to two step (unskilled) tasks. [Plaintiff] is able to 16 maintain concentration, persistence and pace throughout a normal workday/workweek as related 17 to simple/unskilled tasks. [Plaintiff] is able to interact adequately with coworkers and supervisors 18 but may have difficulty dealing with the demands of general public contact. [Plaintiff] is able to 19 make adjustments and avoid hazards in a low demand work setting consistent [with] simple work 20 tasks.” (AR 79). In December 2017, Dr. Brode affirmed Dr. Olaya’s opinion. (AR 90, 94). The 21 ALJ analyzed these opinions jointly, and found them only “partially persuasive” for the following 22 reasons: 23 Both supported their conclusion by citing to evidence of record, and while precluding the claimant for interaction with the general public 24 is not consistent based on the overall medical evidence of record, the remaining limitations are generally consistent with the medical 25 evidence of record. [Plaintiff] can perform simple, routine, repetitive tasks. [Plaintiff] was fair insight and judgment, intact cognitive 26 functioning, and a linear, logical, goal directed, clear, and coherent thought process. He can have occasional interaction with co- 27 workers, supervisors, and the general public, with no tandem job tasks.” 28 1 (AR 23 (internal citation omitted)). 2 Plaintiff argues that “[a]lthough the ALJ appears to have largely credited the opinions of 3 Dr. Olaya and Brode, the ALJ failed to fully incorporate their opinions into the residual functional 4 capacity. In particular, the ALJ restricted Plaintiff to simple, routine, and repetitive tasks, but 5 failed to include a restriction to one to two-step tasks.” (Doc. No. 13 at 4). Defendant contends it 6 was “reasonable” for the ALJ not to adopt the one to two-step task limitation in the RFC for 7 several reasons. (Doc. No. 14 at 6). First, Defendant cites a separate portion of the disability 8 determination explanation, at both the initial and reconsideration levels, entitled “assessment of 9 vocational factors,” that indicates “[b]ased o the seven strength factors of the physical RFC, 10 Plaintiff’s “maximum sustained work capacity” was “simple work and work [with] moderate 11 contact [with] the public.” (AR 83, 98). However, a plain reading of the “vocational assessment” 12 section cited by Defendant reveals that it is not part of the medical portion of the disability 13 determination. (Id. (noting that the medical portion of the disability determination was 14 “complete” and signed by Dr. Olaya and Dr. Brode, respectively, before the adjudicator 15 proceeded to the “vocational assessment”)). Thus, while Defendant is correct that portion of the 16 agency disability determination is consistent with the ALJ’s assessed RFC, it is of limited 17 relevance in considering whether the ALJ properly considered the medical opinions. 18 Second, Defendant argues that the “ALJ noted the unskilled task and ‘one to two’ step 19 task limitations, found them only partially persuasive, and concretely found: ‘The claimant can 20 perform simple, routine repetitive tasks.’” (Doc. No. 14 at 7). This argument misstates the ALJ’s 21 findings. As noted above, the ALJ explicitly found that both opinions were partially persuasive 22 because they “[b]oth supported their conclusion by citing to evidence of record, and while 23 precluding the claimant from interaction with the general public is not consistent based on the 24 overall medical evidence of record, the remaining limitations are generally consistent with the 25 medical evidence of record.” (AR 23). A plain reading of the ALJ decision indicates that while 26 she found the assessed limitation on Plaintiff’s ability to interact with the general public less 27 persuasive, the “remaining limitations,” which would presumably include the limitation to one to 28 two-step tasks, were found to be “generally consistent with the medical evidence of record.” 1 (Id.). 2 Third, Defendant notes that “the paragraph where Dr. Olaya used the term ‘one to two 3 step’ tasks further supports this was not an assessment of Plaintiff’s maximum capacity. The first 4 sentence of that paragraph states Plaintiff ‘can do unskilled tasks,” the last sentence states 5 Plaintiff can perform ‘simple work tasks,’ and the sentence with the ‘one to two step’ task 6 language equates that to ‘unskilled’ work.” (Doc. No. 14 at 7 (citing AR 79)). Thus, according to 7 Defendant, when “read as a whole” it was reasonable for the ALJ to find the assessments of Dr. 8 Olaya and Dr. Brode supported a limitation to simple, routine, and repetitive tasks. (Id.). 9 Similarly, Defendant argues that the RFC was properly assessed by the ALJ based on the 10 longitudinal record, including the opinion of state agency consultant Arthur Lewy, Ph.D., who 11 found no mental work limitations. (Doc. No. 14 at 5-8 (citing AR 558)). 12 Defendant is correct that an ALJ’s RFC is an administrative finding based on all the 13 relevant evidence in the record, and need only be consistent with the relevant assessed limitations 14 and not identical to them. (Doc. No. 14 at 5); see Turner v. Comm’r of Soc. Sec., 613, F.3d 1217, 15 1222-23 (9th Cir. 2010); Stubbs, 539 F.3d 1173-74 (finding harmless error when the ALJ’s 16 hypothetical properly incorporated limitations consistent with those identified in medical 17 testimony). However, regardless of whether the assessed RFC properly limited Plaintiff to 18 simple, routine, and repetitive work based on the overall evidence of record, the issue remains as 19 to whether the ALJ properly considered Dr. Olaya and Dr. Brodie’s opinion that Plaintiff was 20 capable of carrying out simple one to two step tasks. See Brown-Hunter v. Colvin, 806 F.3d at 21 495 (a court “cannot substitute [the court’s] conclusions for the ALJ’s, or speculate as to the 22 grounds for the ALJ's conclusions. Although the ALJ’s analysis need not be extensive, the ALJ 23 must provide some reasoning in order for [the court] to meaningfully determine whether the 24 ALJ’s conclusions were supported by substantial evidence.”); see SSR 96-8p (“If the RFC 25 assessment conflicts with an opinion from a medical source, the adjudicator must explain why the 26 opinion was not adopted.”). Here the ALJ failed to either provide reasons, supported by 27 substantial evidence, to reject the limitation to simple one or two step tasks, or to properly 28 incorporate the limitations into the assessed RFC. See Robbins v. Soc. Sec. Admin., 466 F.3d 880, 1 886 (9th Cir. 2006) (“an ALJ is not free to disregard properly supported limitations”); Byrd v. 2 Colvin, 2017 WL 980559, at *8 (D. Or. Mar. 14, 2017) (“Here, the ALJ gave great weight to [the] 3 opinion, but the RFC failed to take into account all of the limitations identified by [the doctor], 4 and the ALJ failed to explain why she did not include the limitations in the RFC. As a result, the 5 ALJ erred in formulating the RFC.”). This constitutes error. 6 Further, the reviewing court cannot consider an error harmless unless it “can confidently 7 conclude that no reasonable ALJ, when fully crediting the [evidence], could have reached a 8 different disability determination.” Stout v. Comm’r of Soc. Sec. Admin., 454 F.3d 1050, 1056 9 (9th Cir. 2006). Here, in response to the hypothetical propounded by the ALJ at the hearing, the 10 vocational expert testified that an individual with Plaintiff’s age, education, work experience, and 11 the RFC outlined above, including the limitation to simple, routine, and repetitive work tasks, can 12 perform the requirements of routing clerk, marker, and office helper. (AR 25, 73). However, 13 while the ALJ correctly indicates in the decision that these jobs are “unskilled,” as noted by 14 Plaintiff, they also all require a DOT reasoning level of 2. DOT 222.687-022, available at 1991 15 WL 672133 (routing clerk occupation requires reasoning level of 2); DOT 902.687-126, available 16 at 1991 WL 687992 (marker occupation requires reasoning level of 2); DOT 239.567-010, 17 available at 1991 WL 672232 (office helper occupation requires reasoning level of 2). It is well- 18 settled in the Ninth Circuit that an individual restricted to one to two-step tasks cannot perform 19 occupations requiring a Dictionary of Occupational Titles (“DOT”) reasoning of 2. See Rounds v. 20 Comm’r of Soc. Sec., 807 F.3d 996, 1003 (9th Cir. 2015) (“There was an apparent conflict 21 between Rounds’ RFC, which limits her to performing one- and two-step tasks, and the demands 22 of Level Two reasoning, which requires a person to ‘[a]pply commonsense understanding to carry 23 out detailed but uninvolved written or oral instructions.’”); Wells v. Colvin, 2016 WL 4744668, at 24 *8 (E.D. Cal. Sept. 13, 2016) (remanding where ALJ gave significant weight to doctor’s opinion 25 that Plaintiff could “sustain simple one-two step repetitive tasks,” but did not adopt this limitation 26 in the RFC, instead limiting Plaintiff to “simple, routine, and repetitive tasks.”); Wilson v. Colvin, 27 2017 WL 1861839, at *6 (N.D. Cal. May 9, 2017) (“Rounds shows that a significant distinction 28 exists between Level One and Level Two Reasoning jobs, with Level One jobs typically lining up 1 with the ability to perform one or two step job instructions.”); Cf. Zavalin v. Colvin, 778 F.3d 2 842, 847 (9th Cir. 2015) (individual limited to simple, repetitive tasks has been found able to 3 perform occupations requiring a DOT reasoning level of 2). 4 Thus, as noted by Plaintiff, “the legal error is harmful because, had the ALJ adopted the 5 restriction to 1 to 2 step tasks, Plaintiff would not have been able to perform the occupations 6 listed at step five of the sequential evaluation.” (Doc. No. 13 at 5). Further, because there was no 7 testimony from the vocational expert regarding a limitation to one to two-step tasks, the Court 8 cannot confidently conclude that the disability determination would remain the same were the 9 ALJ to fully credit this portion of Dr. Olaya and Dr. Brodie’s opinions. See Hill, 698 F.3d at 10 1161 (when the ALJ improperly ignores significant and probative evidence in the record 11 favorable to a claimant’s position, the ALJ “thereby provide[s] an incomplete . . . [disability] 12 determination.”). Based on the foregoing, the Court finds the ALJ erred by failing to properly 13 reject the limitation to one to two-step tasks opined by Dr. Olaya and Dr. Brodie or incorporate it 14 into the assessed RFC. On remand, the ALJ must reconsider Dr. Olaya and Dr. Brodie’s opinions 15 along with the relevant medical opinion evidence. 16 B. Remedy 17 The Court finds in this case that further administrative proceedings are appropriate. See 18 Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1103-04 (9th Cir. 2014) (remand for 19 benefits is not appropriate when further administrative proceedings would serve a useful 20 purpose). Here, the ALJ improperly considered the medical opinion evidence, which calls into 21 question whether the assessed RFC, and resulting hypothetical propounded to the vocational 22 expert, are supported by substantial evidence. “Where,” as here, “there is conflicting evidence, 23 and not all essential factual issues have been resolved, a remand for an award of benefits is 24 inappropriate.” Treichler, 775 F.3d at 1101. Thus, the undersigned recommends the case be 25 remanded for further proceedings. 26 On remand, the ALJ should reconsider the medical opinion evidence, and provide legally 27 sufficient reasons for evaluating the opinions, supported by substantial evidence. If necessary, 28 the ALJ should order additional consultative examinations and, if appropriate, take additional 1 | testimony from medical experts. Finally, the ALJ should reconsider the remaining steps in the 2 || sequential analysis, reassess Plaintiff's RFC and, if necessary, take additional testimony from a 3 | vocational expert which includes all of the limitations credited by the ALJ. 4 Accordingly, it is RECOMMENDED: 5 Plaintiff's Motion for Summary Judgment (Doc. No. 13) be GRANTED. Pursuant to 6 || sentence four of 42 U.S.C.§ 405(g), the Court REVERSE the Commissioner’s decision and 7 | REMAND this case back to the Commissioner of Social Security for further proceedings 8 || consistent with this Order. 10 These findings and recommendations will be submitted to the United States district judge 11 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 12 | days after being served with these findings and recommendations, a party may file written 13 | objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 14 | Findings and Recommendations.” Parties are advised that failure to file objections within the 15 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 16 | 838-39 (Oth Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 17 | Dated: _ September 13, 2022 Wiha. Mh. Bareh Zaskth 19 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE

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