Susan Gluck Cunningham v. Andrew Saul

• Court: District Court, C.D. California
• Decided: July 10, 2020
• Docket: 2:19-cv-08152
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 SUSAN G. C.,1 Case No. CV 19-08152-RAO 12 Plaintiff, 13 v. MEMORANDUM OPINION AND 14 ORDER ANDREW M. SAUL, Commissioner of 15 Social Security, 16 Defendant. 17 18 I. INTRODUCTION 19 Plaintiff Susan G. C. (“Plaintiff”) challenges the Commissioner’s denial of her 20 application for a period of disability and disability insurance benefits (“DIB”). For 21 the reasons stated below, the decision of the Commissioner is REVERSED, and the 22 matter is REMANDED. 23 II. PROCEEDINGS BELOW 24 On or about November 30, 2015, Plaintiff filed a Title II application for DIB 25 alleging disability beginning June 13, 2014. (Administrative Record (“AR”) 170- 26 27 1 Partially redacted in compliance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case 28 Management of the Judicial Conference of the United States. 1 71.) Her application was initially denied on March 4, 2016 (AR 88-91), and upon 2 reconsideration on August 8, 2016 (AR 95-99). Plaintiff filed a written request for a 3 hearing, and a hearing was held on June 1, 2018. (AR 30-61, 101-02.) Represented 4 by counsel, Plaintiff appeared and testified, along with an impartial vocational expert. 5 (AR 30-61.) During the hearing Plaintiff amended her alleged disability onset date 6 to January 8, 2015. (AR 33-34.) On October 15, 2018, the Administrative Law Judge 7 (“ALJ”) found that Plaintiff had not been under a disability, pursuant to the Social 8 Security Act, from January 8, 2015 through the date of the decision. (AR 24.) The 9 ALJ’s decision became the Commissioner’s final decision when the Appeals Council 10 denied Plaintiff’s request for review. (AR 1-3.) Plaintiff filed this action on 11 September 20, 2019. (Dkt. No. 1.) 12 The ALJ followed a five-step sequential evaluation process to assess whether 13 Plaintiff was disabled under the Social Security Act. See Lester v. Chater, 81 F.3d 14 821, 828 n.5 (9th Cir. 1995). At step one, the ALJ found that Plaintiff had not 15 engaged in substantial gainful activity since January 8, 2015, the alleged onset date 16 (“AOD”). (AR 17.) At step two, the ALJ found that Plaintiff has the following 17 severe impairments: lumbar degenerative disc disease; asthma; and kidney disease. 18 (Id.; see AR 17-20.) At step three, the ALJ found that Plaintiff “does not have an 19 impairment or combination of impairments that meets or medically equals the 20 severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 21 1.” (AR 20.) 22 Before proceeding to step four, the ALJ found that Plaintiff had the residual 23 functional capacity (“RFC”) to “perform light work . . . but with frequent postural 24 activities, except for occasional ladders, stooping, crouching, and crawling, and 25 occasional overhead reaching on the right. [Plaintiff] needs to avoid concentrated 26 exposure to dusts, odors, and fumes. [Plaintiff] would also need one additional five- 27 minute restroom break per hour.” (AR 21.) 28 /// 1 At step four, the ALJ found that Plaintiff is capable of performing past 2 relevant work as an administrative assistant. (AR 25.) Accordingly, the ALJ 3 determined that, as to Plaintiff’s claim for period of disability and DIB, Plaintiff had 4 not been under a disability from January 8, 2015, through the date of the decision. 5 (AR 24.) 6 III. STANDARD OF REVIEW 7 Under 42 U.S.C. § 405(g), a district court may review the Commissioner’s 8 decision to deny benefits. A court must affirm an ALJ’s findings of fact if they are 9 supported by substantial evidence and if the proper legal standards were applied. 10 Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001). “Substantial evidence . 11 . . is ‘more than a mere scintilla[,]’ . . . [which] means--and means only--‘such 12 relevant evidence as a reasonable mind might accept as adequate to support a 13 conclusion.’” Biestek v. Berryhill, —U.S. —, 139 S. Ct. 1148, 1154, 203 L. Ed. 2d 14 504 (2019) (citations omitted); Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017). 15 An ALJ can satisfy the substantial evidence requirement “by setting out a detailed 16 and thorough summary of the facts and conflicting clinical evidence, stating his 17 interpretation thereof, and making findings.” Reddick v. Chater, 157 F.3d 715, 725 18 (9thCir. 1998) (citation omitted). 19 “[T]he Commissioner’s decision cannot be affirmed simply by isolating a 20 specific quantum of supporting evidence. Rather, a court must consider the record 21 as a whole, weighing both evidence that supports and evidence that detracts from the 22 Secretary’s conclusion.” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) 23 (citations and internal quotation marks omitted). “‘Where evidence is susceptible to 24 more than one rational interpretation,’ the ALJ’s decision should be upheld.” Ryan 25 v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (citing Burch v. 26 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)); see Robbins v. Soc. Sec. Admin., 466 27 F.3d 880, 882 (9th Cir. 2006) (“If the evidence can support either affirming or 28 reversing the ALJ’s conclusion, we may not substitute our judgment for that of the 1 ALJ.”). The Court may review only “the reasons provided by the ALJ in the 2 disability determination and may not affirm the ALJ on a ground upon which he did 3 not rely.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (citing Connett v. 4 Barnhart, 340 F.3d 871, 874 (9th Cir. 2003)). 5 IV. DISCUSSION 6 Plaintiff raises three issues for review: (1) whether the ALJ erred in rejecting 7 Plaintiff’s subjective symptom testimony; (2) whether the ALJ erred in rejecting the 8 opinion of Plaintiff’s treating physician regarding her physical limitations; and (3) 9 whether the ALJ erred in finding that Plaintiff can perform her past relevant work. 10 (See Joint Submission (“JS”) 2.) For the reasons below, the Court reverses. 11 A. The ALJ Did Not Err in Rejecting Plaintiff’s Subjective Symptom 12 Testimony 13 Plaintiff contends that the ALJ “improperly rejected Plaintiff’s testimony 14 regarding her subjective symptoms and functional limitations, failing to provide any 15 specific, clear and convincing reasons for doing so.” (JS 2; see JS 2-8.) The 16 Commissioner contends that the “ALJ provided multiple well-supported reasons for 17 discounting Plaintiff’s allegations of disabling pain and dysfunction.” (JS 9; see JS 18 8-13.) 19 1. Plaintiff’s June 1, 2018 Testimony 20 Plaintiff explained that after January 2015 she was unable to work due to 21 chronic pain from her lumbar spine down to her ankle. (AR 39.) She reported 22 experiencing pain every time she sat down and when she tried to walk. (Id.) She 23 “basically stopped walking” due to the pain, but tries to walk “a tiny bit of [her] cul 24 de sac.” (Id.) However, she gets a burning sensation in her back that travels all the 25 way to her leg and foot. (AR 40.) Plaintiff takes tramadol to relieve the pain, and 26 explained that her physician did not want her to use anything stronger because of her 27 kidneys. (Id.) 28 /// 1 Plaintiff previously worked as an office manager at a school. (AR 35, 40.) 2 Her job required that she lift ten to 20 pounds of supplies. (AR 54.) She spent half 3 of her time sitting and the other half on her feet. (AR 54-55.) Plaintiff explained that 4 she is unable to return to work because she is in too much pain. (AR 40-41.) She is 5 unable to focus because of the pain and needs to rest. (AR 41.) 6 Plaintiff reported that during the day she rests. (AR 41.) Plaintiff’s spouse 7 takes her to the market, and he does the driving, shopping, and carrying. (Id.) 8 Plaintiff walks “a little bit” in the market. (Id.) 9 Plaintiff reported that her urinary tract infections (“UTI”) and kidney disease 10 also prevent her from working. (AR 41-42.) She explained that because of the UTIs 11 she has to “urinate a lot,” experiences a lot of pressure, pain, and needs to be near a 12 bathroom. (AR 42.) She has had a UTI once or twice a month for the last “couple 13 of years.” (Id.) Each UTI lasts approximately four to five days. (AR 52.) During 14 this time, she experiences nausea, can only “urinate a little amount,” feels “lots of 15 pressure down,” and “basically hurt[s].” (Id.) She stays home, but makes doctors’ 16 appointments in the afternoon and runs an errand or two. (Id.) Plaintiff’s spouse 17 drives her to the doctor. (Id.) When Plaintiff goes to the market, she “know[s] right 18 where the restroom is.” (AR 52-53.) She takes an antibiotic daily which “slowed it 19 down a little bit,” but reported experiencing nausea as a side effect. (AR 42-43.) 20 Plaintiff was also in a car accident in November 2017. (AR 43.) She reported 21 that her shoulder, arm, and neck prevent her from working. (Id.) Plaintiff receives 22 physical therapy twice per week. (AR 44.) She was still being treated at the time of 23 the hearing. (AR 44-45.) 24 Plaintiff explained that sitting also presents a problem. (AR 45.) She has to 25 get up frequently and “walk around a tiny bit.” (Id.) Her bones hurt when she gets 26 up. (Id.) Plaintiff reported that everything hurts. (Id.) She testified that she can sit 27 for 30 minutes before her back starts to ache and hurt. (AR 50.) She experiences a 28 pain shooting down her leg. (Id.) In order to relieve the pain, she walks around the 1 house for five to ten minutes. (Id.) Plaintiff reported being able to walk for 12 or 15 2 minutes. (Id.) She can stand for approximately ten minutes. (AR 51.) She can lift 3 approximately five pounds; any more weight would hurt her lower back. (Id.) 4 She reported having a lot of anxiety about being in pain. (AR 46.) She takes 5 Zoloft (AR 45-46), and sees a psychiatrist (AR 46). She explained that she has 6 difficulty concentrating. (AR 53.) For example, she has had a book sitting in her 7 house for three years and has not read it yet because she cannot focus. (Id.) Similarly, 8 she has difficulty focusing when watching television. (AR 53-54.) 9 Plaintiff tried physical therapy for back pain relief, but she reported no 10 improvement and explained that the therapy made the pain worse. (AR 47.) Plaintiff 11 received four epidural injections, which offered some relief, but the pain returned. 12 (AR 47.) She explained that she could not visit the physician who recommended the 13 epidural injections because he was no longer within her insurance and she could not 14 afford to visit him. (AR 48.) 15 Plaintiff reported that because she is not able to exercise and walk like she used 16 to, she gained weight. (AR 49.) Weight loss surgery was suggested, but Plaintiff 17 initially declined. (Id.) However, she explained that she was participating in the 18 classes required to have the surgery. (Id.) Plaintiff explained that her weight gain 19 added stress on her back and made it difficult for her to move and walk. (AR 53.) 20 2. Plaintiff’s Function Report 21 On December 14, 2015, Plaintiff prepared a function report. (See AR 197- 22 205.) Plaintiff reported being limited in her ability to work due to the pain from 23 sitting and standing which prevents her from walking or exercising. (AR 197.) She 24 has “numbness, tingling, [and] pain 100% of the time.” (Id.) 25 During the day, Plaintiff lays down, rests, and watches television. (AR 198.) 26 She has gained weight because she has not been able to be active. (Id.) Plaintiff and 27 her husband take care of each other. (Id.) Plaintiff does not take care of any pets, 28 but her spouse takes care of two dogs with the help of a neighbor. (Id.) Before 1 developing her condition, Plaintiff was able to sit, walk, and exercise. (Id.) 2 Plaintiff’s condition affects her ability to sleep, but she has been prescribed 3 medication to help her sleep. (Id.) 4 Plaintiff reported that she is unable to get dressed because she cannot stand on 5 her right leg. (AR 198.) She does not need to be reminded to take care of her personal 6 needs or to take her medications. (AR 199.) Plaintiff is not responsible for preparing 7 meals, but does prepare meals “maybe twice a month.” (Id.) She spends one- or two- 8 hours preparing meals and does need help. (Id.) She cannot lift big pots and cannot 9 stand long. (Id.) 10 Plaintiff’s husband does the laundry. (AR 199.) Plaintiff noted that she does 11 laundry once per week with help from her husband. (Id.) She explained that she 12 does not do house or yard work because her back and right leg are under a lot of pain. 13 (AR 200.) She sits outside when it is sunny. (Id.) When she goes out, she rides in a 14 car. (Id.) She reported that she does drive. (Id.) 15 Plaintiff shops in stores, by phone, and by computer. (AR 200.) She shops for 16 food and Christmas items. (Id.) She shops once a week for less than an hour. (Id.) 17 Plaintiff reported being able to pay bills, count change, handle a savings account, and 18 can use a checkbook and money orders. (Id.) Her ability to handle money has not 19 changed since her illness began. (AR 201.) 20 Plaintiff’s hobbies and interests include watching television, reading, and 21 laying down. (AR 201.) Plaintiff reads one hour per day and watches television most 22 of the time while laying down. (Id.) Before her condition began, she was more active 23 and was able to work, but explained that her condition has “gotten progressively 24 much worse.” (Id.) She spends time with others when people visit her and uses the 25 phone. (Id.) Plaintiff mostly stays home. (Id.) She needs to be reminded to go 26 places. (Id.) She goes to the doctor “a lot” and her husband drives her most of the 27 time. (Id.) She does not have a problem getting along with others. (AR 202.) 28 /// 1 Plaintiff reported that her conditions affect her ability to lift, squat, bend, stand, 2 walk, sit, kneel, hear, and climb stairs. (AR 202.) Her abilities to remember, 3 complete tasks, concentrate, understand, and follow instructions have also been 4 affected. (Id.) Plaintiff can lift between two and five pounds and can walk down her 5 street very slowly. (Id.) She can walk between 100-200 feet before needing to rest 6 three to five minutes. (Id.) She can pay attention between ten and 20 minutes. (Id.) 7 She does not finish what she starts. (Id.) She does not follow written instructions 8 well because she cannot remember things. (Id.) She follows spoken instructions 9 better than written instructions, but finds it very hard to concentrate. (Id.) 10 Plaintiff gets along “fine” with authority figures and has never been laid off 11 from a job because of problems getting along with other people. (AR 203.) She does 12 not handle stress well. (Id.) She gets nervous and forgets things. (Id.) Similarly, 13 changes in routine bother her and cause her to stress. (Id.) Plaintiff fears losing her 14 mother. (Id.) 15 Plaintiff wears glasses. (AR 203.) She takes sertraline which causes her to be 16 sleepy and quiet. (AR 204.) She also takes Zetia. (Id.) Plaintiff also takes 17 furosemide which causes her to “urinate often.” (Id.) Plaintiff also takes “many 18 medications” for high blood pressure and other medical conditions. (Id.) She has 19 had three operations for her thyroid condition. (Id.) She also reported having an 20 epidural steroid shot that helped her feel better for a couple of days, but the pain 21 returned. (Id.) Plaintiff noted that filling out the form was “killing” her due to the 22 pain she experienced from sitting in a chair. (Id.) 23 3. Applicable Legal Standards 24 In assessing the credibility of a claimant’s testimony regarding subjective pain 25 or the intensity of symptoms, the ALJ engages in a two-step analysis. Molina v. 26 Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (citing Vasquez v. Astrue, 572 F.3d 586, 27 591 (9th Cir. 2009)). “First, the ALJ must determine whether the claimant has 28 presented objective medical evidence of an underlying impairment which could 1 reasonably be expected to produce the pain or other symptoms alleged.” Treichler v. 2 Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014) (quoting 3 Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007)) (internal quotation marks 4 omitted). If so, and if the ALJ does not find evidence of malingering, the ALJ must 5 provide specific, clear and convincing reasons for rejecting a claimant’s testimony 6 regarding the severity of his symptoms. Id. The ALJ must identify what testimony 7 was found not credible and explain what evidence undermines that testimony. 8 Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001). “General findings are 9 insufficient.” Lester, 81 F.3d at 834. 10 4. Discussion 11 “After careful consideration of the evidence,” the ALJ found that Plaintiff’s 12 “medically determinable impairments could reasonably be expected to cause the 13 alleged symptoms,” but found that Plaintiff’s “statements concerning the intensity, 14 persistence and limiting effects of these symptoms are not entirely consistent with 15 the medical evidence and other evidence in the record.” (AR 21; see AR 22-24.) 16 The Court’s review of the ALJ’s decision shows that, in finding the record did 17 not support Plaintiff’s alleged level of incapacity, the ALJ relied on: (1) Plaintiff’s 18 course of treatment; (2) Plaintiff’s activities of daily living; (3) Plaintiff’s reason for 19 cessation of work; and (4) the lack of supporting objective medical evidence. (AR 20 36; see AR 32-36.) No malingering allegation was made, and therefore, the ALJ’s 21 reasons must be “clear and convincing.” 22 a. Reason No. 1: Course of Treatment 23 In finding that the record did not support Plaintiff’s alleged level of incapacity, 24 the ALJ found that Plaintiff “ has treated [sic] for her impairments minimally in light 25 of her complaints of chronic pain.” (JS 24.) When a claimant complains of disabling 26 pain but does not seek treatment, the ALJ may determine that the claimant’s 27 complaint is unjustified or exaggerated. Orn, 495 F.3d at 638 (citing Fair v. Bowen, 28 885 F.2d 597, 603 (9th Cir. 1989)). The ALJ observed that, in relation to her low 1 back pain, Plaintiff requested a referral for surgery, but failed to pursue surgical 2 intervention. (AR 22, citing AR 269, 466.) Additionally, the ALJ noted that while 3 Plaintiff alleged continued lower back pain resulting from a car accident, it did not 4 appear that Plaintiff received treatment for lower back pain resulting from a car 5 accident. (AR 22; see AR 43-44.) 6 Additionally, the ALJ relied on Plaintiff’s improvement with medication. (See 7 AR 21-22.) “Impairments that can be controlled effectively with medication are not 8 disabling for the purpose of determining eligibility” for benefits. Warre v. Comm’r 9 of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006). As to Plaintiff’s back pain, 10 the ALJ observed that Plaintiff “underwent several epidural steroid injections, with 11 improvement noted from [the] same.” (AR 22, citing AR 393, 396, 398, 403, 686, 12 663.) The ALJ relied on a September 2017 progress note which documented that 13 Plaintiff has received “epidural injections with good success for several months at a 14 time.” (AR 686.) The ALJ also pointed to an October 2017 office visit where 15 Plaintiff underwent an injection and “within several minutes,” Plaintiff reported 16 decreased pain. (AR 663.) Similarly, as to Plaintiff’s kidney disease, UTIs, and 17 sepsis, the ALJ reasoned that while Plaintiff had been hospitalized due to sepsis and 18 a UTI, she “improved rapidly with medication.” (AR 22, citing AR 432, 444-45.) 19 The Court finds that this reason is a clear and convincing reason, supported by 20 substantial evidence, to discount Plaintiff’s subjective symptom testimony. See Orn, 21 495 F.3d at 638. 22 b. Reason No. 2: Activities of Daily Living 23 In finding that the record did not support Plaintiff’s alleged level of incapacity, 24 the ALJ points to Plaintiff’s admissions that she “is able to go outside, go out alone, 25 drive, walk around her cul-de-sac, and shop in stores.” (AR 22; see AR 24.) 26 Inconsistencies between symptom allegations and daily activities may act as a 27 clear and convincing reason to discount a claimant’s credibility. See Tommasetti v. 28 Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008); Bunnell v. Sullivan, 947 F.2d 341, 346 1 (9th Cir. 1991). But a claimant need not be utterly incapacitated to obtain benefits. 2 Fair, 885 F.2d at 603. The ALJ may also rely on a claimant’s “daily activities to 3 form the basis of an adverse credibility determination” where the activities contradict 4 the claimant’s other testimony. Orn, 495 F.3d at 639; see Burkett v. Berryhill, 732 5 F. App’x 547, 552 (9th Cir. 2018) (“While transferability of skills to a work setting 6 is one way in which an ALJ may consider a claimant’s daily activities, an ALJ may 7 also discount claimant testimony where reported daily activities contradict the 8 claimant’s alleged extent of her limitations.”). 9 First, Plaintiff contends that the ALJ misstated Plaintiff’s daily activities. (JS 10 6.) In support, Plaintiff, points to her hearing testimony where she explained that her 11 husband does the shopping and the driving. (Id., citing AR 41.) Additionally, she 12 points to her function report where she reported that her husband does all the laundry. 13 (JS 6, citing AR 199-200.) “An ALJ errs when he or she mischaracterizes a 14 claimant’s testimony by ignoring reports that daily activities are conducted with 15 assistance, with great pain, or with limitation-related disruptions.” Furtado v. Colvin, 16 No. 13-CV-04063-HRL, 2017 WL 1365208, at *3 (N.D. Cal. Apr. 14, 2017) (citing 17 Garrison v. Colvin, 759 F.3d 995, 1016 (9th Cir. 2014); Benecke v. Barnhart, 379 18 F.3d 587, 594 (9th Cir. 2004)). 19 Here, the ALJ mischaracterizes some of Plaintiff’s statements. Plaintiff did 20 not state that her husband did all the shopping, but rather that he did most of the 21 shopping and takes her to the market. (See AR 41.) However, Plaintiff testified that 22 she shops in stores with the help of her husband. (AR 41, 52.) Plaintiff testified that 23 it is her husband that does the driving and the carrying. (Id.) In her function report, 24 Plaintiff did note that she shopped once a week for less than an hour, but did not 25 report needing assistance. (See AR 200.) As to Plaintiff’s ability to drive, the ALJ 26 relied on the 2016 psychiatric evaluation where Plaintiff reported that she has a 27 driver’s license. (AR 22, citing AR 245.) Plaintiff did not state that she actively 28 drives, but rather only stated that she has a license. (See AR 245.) In her function 1 report, when asked about form of travel, Plaintiff reported only that she rides in a car 2 and noted that her husband drives her “mostly.” (See AR 200-01.) Similarly, during 3 the hearing she testified that her husband does most of the driving. (See AR 41.) 4 The ALJ’s mischaracterizations cannot support the ALJ’s finding that 5 Plaintiff’s activities of daily living were inconsistent with Plaintiff’s subjective 6 symptom testimony. See Rawa v. Colvin, 672 F. App’x 664, 666 (9th Cir. 2016) 7 (finding that where “the ALJ omitted a number of salient and dispositive facts and 8 details when recounting [claimant’s] activity level,” including the fact that claimant 9 drove only a couple of times per week and the fact that she experienced pain while 10 engaged in certain activities, “[s]uch an inaccurate representation of the record cannot 11 constitute a specific, clear, and convincing reason for rejecting” claimant’s subjective 12 symptom testimony); Corless v. Comm’r of Soc. Sec. Admin., 260 F. Supp. 3d 1172, 13 1178 (D. Ariz. 2017) (finding that the ALJ committed error where the “ALJ 14 conspicuously omitted the pain and difficulties [p]laintiff experiences performing 15 even the simplest daily activity”). 16 Second, Plaintiff contends that the ALJ did not explain how any specific 17 activity was inconsistent with Plaintiff’s allegations and did not identify any daily 18 activities that involved skills that would translate to a work setting at the light level 19 of exertion. (JS 7.) The Commissioner argues that the record reflects that Plaintiff 20 engaged in activities that contradict her alleged level of dysfunction. (JS 12.) In 21 support, the Commissioner points out that despite alleging low back pain, Plaintiff 22 reported swimming for exercise. (Id., citing AR 411, 642.) The ALJ, however, did 23 not rely on Plaintiff’s alleged swimming exercise. (See AR 22-24.) Therefore, the 24 Court cannot consider the Commissioner’s post hoc rationale. See Garrison, 759 25 F.3d at 1010 (“We review only the reasons provided by the ALJ in the disability 26 determination and may not affirm the ALJ on a ground upon which he did not rely.”). 27 “The ALJ must make ‘specific findings relating to [the daily] activities’ and 28 their transferability to conclude that a claimant’s daily activities warrant an adverse 1 credibility determination.” Orn, 495 F.3d at 639 (quoting Burch, 400 F.3d at 681) 2 (alteration in original). Here, in discussing Plaintiff’s low back pain, the ALJ only 3 states that “[b]y her own admission, [Plaintiff] is able to go outside, go out alone, 4 drive, walk around her cul-de-sac, and shop in stores once a week.” (See AR 21-22.) 5 As discussed above, the ALJ mischaracterized some of the evidence used to support 6 that statement. Additionally, the ALJ failed to provide the level of specificity 7 required to reject or discount Plaintiff’s testimony. See Lester, 81 F.3d at 834 8 (“General findings are insufficient; rather, the ALJ must identify what testimony is 9 not credible and what evidence undermines the claimant's complaints.”). 10 Accordingly, this was not a specific, clear, and convincing reason for 11 discounting Plaintiff’s subjective symptom testimony. 12 c. Reason No. 3: Reason for Cessation of Work 13 In finding that the record did not support Plaintiff’s alleged level of incapacity, 14 the ALJ observed that Plaintiff “noted that she stopped working not due to her 15 impairments but because she was laid off.” (AR 22.) 16 Plaintiff contends that while Plaintiff lost her job in June 2014, she was placed 17 on state disability on, and amended her AOD to, January 8, 2015. (JS 8.) The 18 Commissioner contends that it was appropriate for the ALJ to consider the reasons 19 why Plaintiff stopped working. (JS 13.) The Commissioner argues that the “fact that 20 her impairments did not directly contribute to her unemployment raises an inference 21 that she may have been able to continue working if not for her company going out of 22 business.” (Id.) 23 An ALJ may reasonably consider the fact that a claimant stopped working for 24 reasons other than their alleged disability. Butler v. Saul, 785 F. App'x 389, 390 (9th 25 Cir. 2019) (citing Tommasetti, 533 F.3d at 1040). Some courts in this district have 26 found that time between the last date of employment and the AOD “lessens the 27 impact of [an] admission that [claimant] originally stopped working for non- 28 disability reasons.” Thomas v. Colvin, No. CV 15-01451-RAO, 2016 WL 1733418, 1 at *5 (C.D. Cal. Apr. 29, 2016) (citing Shehan v. Astrue, No. EDCV 08-01302 2 (MLG), 2009 WL 2524573, at *3 (C.D. Cal. Aug. 17, 2009) (finding plaintiff's non- 3 disability “reasons for leaving her earlier jobs was not a proper basis for rejecting her 4 credibility[,]” in part, because those “jobs ended long before her alleged onset date 5 of August 2005”)). Here, Plaintiff was laid off in June 2014 when her employer went 6 out of business (AR 245), and filed her application for disability on November 30, 7 2015 (AR 170-71). While Plaintiff later amended her AOD to January 8, 2015 8 because that was when she began receiving state disability insurance (see AR 33), 9 the six-month difference in the amended AOD is not so distant from when she 10 stopped working as to lessen the impact of Plaintiff’s admission that she stopped 11 working because she was laid off. 12 Thus, this was a specific, clear, and convincing reason for discounting 13 Plaintiff’s subjective symptom testimony. See Molina v. Berryhill, 734 F. App’x 14 492, 494 (9th Cir. 2018) (finding that the fact that claimant stopped working for 15 reasons unrelated to health was a specific, clear, and convincing reason for 16 discounting claimant’s testimony). 17 d. Reason No. 4: Lack of Supporting Objective Medical Evidence 18 The ALJ found that “[t]he medical evidence of record generally does not 19 support [Plaintiff’s] alleged loss of functioning.” (AR 21.) The lack of supporting 20 objective medical evidence cannot form the sole basis for discounting testimony, but 21 it is a factor that the ALJ may consider in making a credibility determination. Burch, 22 400 F.3d at 681; Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (citing 20 23 C.F.R. § 404.1529(c)(2)). 24 As to Plaintiff’s low back complaints, the ALJ observed that July 2015 lumbar 25 spine x-rays documented Plaintiff’s severe degenerative disc disease at L2-3 and an 26 October 2015 showed multilevel spondylosis which was most notable at L2-3 and 27 showed hypertrophy at L4-5 and L5-S1. (AR 22, citing AR 242-43, 267-68.) The 28 ALJ recognized that Plaintiff, at times, was documented to have “limited range of 1 motion, tenderness to palpitation at L4-5 and L5-S1, muscle spasm, abnormal or 2 positive straight leg raising, decreased strength, and positive facet loading, and . . . 3 reported no improvement with physical therapy.” (AR 22, citing AR 241, 263, 272, 4 315, 318, 390, 401, 406, 417, 437, 535, 567, 689.) The ALJ, however, also observed 5 that Plaintiff reported experiencing no weakness, numbness or shooting pains, she 6 denied having back pain, and underwent “several epidural steroid injections” with 7 reported improvement. (AR 22, citing AR 258, 260, 263, 305, 388, 390, 393, 396, 8 398, 403, 566, 663, 686.) The ALJ relied on physical examinations which 9 documented Plaintiff had normal gait, strength and motor function, full range of 10 motion, no tenderness with percussion, symmetric reflexes, and negative straight leg 11 raising. (AR 22, citing AR 240-41, 272, 318, 390, 399, 401, 406, 417, 430, 439, 535, 12 567.) 13 As to Plaintiff’s asthma, the ALJ relied on records documenting no shortness 14 of breath, dyspnea, wheezing, chronic cough, pleuritic chest pain, headaches, or 15 lightheadedness. (AR 22, citing AR 255, 258, 262, 271, 297, 302, 307, 312, 317, 16 322.) The ALJ also observed that the physical exams rendered clear lungs to 17 auscultation, no wheezing, rales or rhonchi, and documented a good respiratory 18 effort. (AR 22, citing AR 254, 258, 263, 272, 298, 303, 308, 313, 318, 323, 333.) 19 As to Plaintiff’s kidney disease, UTIs, and sepsis, the ALJ noted that Plaintiff 20 complained of right kidney and right sided flank pain, had gallstones removed, and 21 imaging documented a left upper pole renal lesion. (AR 22, citing AR 309-10, 315, 22 328, 337, 339, 362-63.) However, the ALJ observed, and relied on the fact, that 23 Plaintiff reported experiencing, no fever, chills, vomiting, weight loss, back pain, 24 bleeding, frequently reported no urinary or abdominal pain, and was, at times, 25 asymptomatic. (AR 22, citing AR 302, 307, 411, 417, 426, 429, 468, 491, 496, 498, 26 513, 519, 543, 546, 555, 558, 566, 669, 677.) The ALJ also relied on “predominantly 27 unremarkable” physical exams documenting non-palpable kidneys, no rebounding or 28 1 guarding and non-tender, non-distended abdomen, and stable creatinine levels. (AR 2 22, citing AR 409, 485, 496, 500, 509, 514, 521-22, 548, 558, 573, 674, 678.) 3 The Court finds that the ALJ thoroughly considered Plaintiff’s medical records 4 (see AR 21-23) and found that the records did not support Plaintiff’s allegations of 5 disabling symptoms and limitations (see AR 24). See Reddick, 157 F.3d at 725. 6 Throughout the records are examination notes and reports showing normal and 7 unremarkable results, all of which the ALJ was permitted to rely on in assessing 8 Plaintiff’s testimony. See Garza v. Astrue, 380 F. App’x 672, 674 (9th Cir. 2010) 9 (finding that an ALJ properly considered a claimant’s normal exam findings when 10 noting a lack of objective medical evidence to support the claimant’s allegations); 11 Margolis v. Berryhill, No. CV 17-5047 SS, 2018 WL 3129775, at *10 (C.D. Cal. 12 June 22, 2018) (holding that ALJ may rely on normal and unremarkable examinations 13 in discounting a claimant’s subjective testimony). 14 Plaintiff contends that “the ALJ failed to consider that the overwhelming 15 medical evidence in the record did support Plaintiff’s testimony regarding her 16 symptoms and functional limitations, and instead cited to isolated pieces of evidence 17 to justify his conclusion that Plaintiff’s allegations were not credible.” (JS 6; see JS 18 5.) Notably, the ALJ discussed the “abnormal medical findings” which Plaintiff 19 alleges support her allegations and Plaintiff fails to point to any relevant medical 20 evidence which may have been of consequence to the ALJ’s decision. (JS 5; see AR 21 22.) The ALJ was allowed to weigh the multiple normal examination results in 22 evaluating Plaintiff’s testimony. Where, as here, the evidence might be susceptible 23 to more than one rational interpretation, the ALJ’s decision should be upheld. See 24 Ryan, 528 F.3d at 1198 (citing Burch, 400 F.3d at 679); see Robbins, 466 F.3d at 882 25 (“If the evidence can support either affirming or reversing the ALJ’s conclusion, we 26 may not substitute our judgment for that of the ALJ.”). 27 Accordingly, the ALJ’s finding that the objective medical evidence does not 28 support Plaintiff’s statements constitutes a specific, clear and convincing reason for 1 discounting Plaintiff’s subjective symptom testimony. 2 5. Conclusion 3 The Court finds that the ALJ gave three specific, clear and convincing reasons 4 for discounting Plaintiff’s subjective symptom testimony. See Bray v. Comm’r of 5 Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009) (finding ALJ’s reliance on an 6 invalid reason to discredit claimant testimony was “harmless error” where ALJ relied 7 on other specific, clear and convincing reasons). As such, the ALJ properly evaluated 8 Plaintiff’s subjective complaints. 9 B. The ALJ Erred in Rejecting the Opinion of Plaintiff’s Treating 10 Physician Regarding Her Physical Limitations 11 Plaintiff contends that the ALJ improperly rejected the opinions of Jan Janay, 12 M.D., regarding Plaintiff’s physical limitations, by failing to present any specific and 13 legitimate reasons supported by substantial evidence. (JS 14; see JS 14-17.) The 14 Commissioner contends that the ALJ “provided the requisite good reasons for 15 assigning less weight to Dr. Janay’s opinions.” (JS 17-19.) 16 The ALJ is responsible for assessing a claimant’s RFC “based on all of the 17 relevant medical and other evidence.” 20 C.F.R. §§ 404.1545(a)(3), 404.1546(c); see 18 Robbins, 466 F.3d at 883 (citing SSR 96-8p, 1996 WL 374184, at *5 (July 2, 1996)). 19 In doing so, the ALJ may consider any statements provided by medical sources, 20 including statements that are not based on formal medical examinations. See 20 21 C.F.R. § 404.1513(a), 404.1545(a)(3). An ALJ’s determination of a claimant’s RFC 22 must be affirmed “if the ALJ applied the proper legal standard and his decision is 23 supported by substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th 24 Cir. 2005); accord Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th 25 Cir. 1999). 26 Courts give varying degrees of deference to medical opinions based on the 27 provider: (1) treating physicians who examine and treat; (2) examining physicians 28 who examine, but do not treat; and (3) non-examining physicians who do not examine 1 or treat. Valentine v. Comm’r, Soc. Sec. Admin., 574 F.3d 685, 692 (9th Cir. 2009). 2 Most often, the opinion of a treating physician is given greater weight than the 3 opinion of a non-treating physician, and the opinion of an examining physician is 4 given greater weight than the opinion of a non-examining physician. See Garrison, 5 759 F.3d at 1012. 6 The ALJ must provide “clear and convincing” reasons to reject the ultimate 7 conclusions of a treating or examining physician. Embrey v. Bowen, 849 F.2d 418, 8 422 (9th Cir. 1988); Lester, 81 F.3d at 830-31. When a treating or examining 9 physician’s opinion is contradicted by another opinion, the ALJ may reject it only by 10 providing specific and legitimate reasons supported by substantial evidence in the 11 record. Orn, 495 F.3d at 633; Lester, 81 F.3d at 830; Carmickle v. Comm’r, Soc. Sec. 12 Admin., 533 F.3d 1155, 1164 (9th Cir. 2008). “An ALJ can satisfy the ‘substantial 13 evidence’ requirement by ‘setting out a detailed and thorough summary of the facts 14 and conflicting evidence, stating his interpretation thereof, and making findings.’” 15 Garrison, 759 F.3d at 1012 (citation omitted). 16 On June 1, 2016, Dr. Janay prepared a Physical Residual Functional Capacity 17 Questionnaire. (See AR 384-87.) Dr. Janay reported that he saw Plaintiff every four 18 to 12 weeks for 20 to 40 minutes. (AR 384.) Plaintiff was diagnosed with chronic 19 lumbar radiculopathy and major depression, but had a fair prognosis. (Id.) 20 After summarizing Plaintiff’s symptoms and clinical findings, Dr. Janay 21 opined that Plaintiff’s ability to lift and carry had been affected by her impairments. 22 (AR 385.) Specifically, Dr. Janay opined that Plaintiff could occasionally lift or carry 23 less than ten pounds, but could never lift or carry more than ten pounds. (Id.) 24 Similarly, Dr. Janay opined that Plaintiff’s ability to stand and walk had been affected 25 such that Plaintiff could stand and/or walk for less than two hours in an eight-hour 26 workday. (Id.) Dr. Janay opined that Plaintiff had to use a cane or other assistive 27 device in order to stand and/or walk. (Id.) Plaintiff could sit for less than six hours 28 in an eight-hour workday. (Id.) She would need a job that allows her to shift position 1 from sitting, standing, or walking. (Id.) Dr. Janay also found that Plaintiff would 2 need to take unscheduled breaks every one- to two- hours. (Id.) Additionally, 3 Plaintiff would be absent from work more than three times per month due to her 4 condition. (Id.) 5 Dr. Janay also opined that Plaintiff’s ability to push and pull were affected by 6 her impairments such that she cannot lift because of her back pain, and she cannot 7 bend. (AR 386.) Plaintiff could never bend, crouch, kneel, or crawl, but could 8 occasionally climb and balance. (Id.) Due to lower back pain, Plaintiff could 9 occasionally reach, handle, and finger. (Id.) Dr. Janay found Plaintiff did not have 10 any visual, hearing, or communication problems. (Id.) Similarly, Dr. Janay opined 11 that there were no environmental limitations. (Id.) 12 On April 10, 2018, Dr. Janay prepared a second Physical Residual Functional 13 Capacity Questionnaire presenting the same functional limitations as those in the 14 2016 questionnaire. (SeeJS 694-97.) Dr. Janay did note that in addition to Plaintiff’s 15 2016 diagnoses, Plaintiff now had neck pain, right shoulder pain, and anxiety. (AR 16 694.) 17 The ALJ afforded these opinions “little weight.” (AR 23.) First, the ALJ 18 reasoned that the opinion is inconsistent with the evidence of record. (Id.) An ALJ 19 may reject a physician’s opinion where the opinion is inconsistent with the medical 20 record. Tommasetti, 533 F.3d at 1041. In finding Dr. Janay’s opinions were 21 inconsistent with record, the ALJ relied on physical examinations documenting 22 normal strength, full range of motion, normal motor function, and normal gait with 23 no evidence that Plaintiff uses an assistive device. (AR 23, citing 240-41, 272, 318, 24 390, 399, 401, 406, 417, 430, 439, 535, 567, 690.) The ALJ reasoned that these 25 findings did not support a finding that Plaintiff is limited to “essentially sedentary 26 work.”2 (AR 23-24.) The Court concludes that the ALJ set out a detailed and 27 2 Plaintiff argues that the ALJ “mischaracterized Dr. Janay’s opinion regarding 28 Plaintiff’s physical limitations, incorrectly asserting that Dr. Janay ‘essentially 1 thorough summary of the conflicting evidence in discussing Dr. Janay’s opinions and 2 provided a specific and legitimate reason supported by substantial evidence in 3 assigning little weight to Dr. Janay’s opinions. See Garrison, 759 F.3d at 1012. 4 Second, in discussing Dr. Janay’s opinions, the ALJ noted that Plaintiff stated 5 that she does not use an assistive device, but is able to go for short walks, go out 6 alone, and go to the store. (AR 23-24, citing AR 200.) An ALJ may properly 7 discount a treating physician’s opinion that is inconsistent with evidence of the 8 claimant’s daily activities. See Rollins, 261 F.3d at 856. Accordingly, this was a 9 specific and legitimate reason for giving little weight to Dr. Janay’s opinions.3 10 However, a finding that a treating physician’s opinion is inconsistent with 11 other evidence in the record “means only that the opinion is not entitled to 12 ‘controlling weight.’” SSR 96-2p, 1996 WL 374188, at *4 (S.S.A. July 2, 1996).4 13 “Even when there is substantial evidence contradicting a treating physician’s opinion 14 such that it is no longer entitled to controlling weight, the opinion is nevertheless 15 ‘entitled to deference.’” Weiskopf v. Berryhill, 693 F. App’x 539, 541 (9th Cir. 2017) 16 (citing Orn, 495 F.3d at 633); see 20 C.F.R. § 404.1527(c)(2) (effective Aug. 24, 17 2012 to Mar. 26, 2017) (when a treating source’s medical opinion is unsupported by 18 limited [her] to sedentary work.’” (JS 16.) Instead, Plaintiff argues that Dr. Janay’s 19 opinion “reduced Plaintiff’s RFC to less than sedentary work.” (Id.) However, 20 Plaintiff fails to show how this error, if any can be found, is harmful. See Molina, 21 674 F.3d at 1111 (“[T]he burden of showing that an error is harmful normally falls upon the party attacking the agency's determination.”). 22 3 Plaintiff argues that “the presence of the contradictory opinions of the non- 23 examining State Agency medical consultants, in and of itself, did not constitute a specific and legitimate reason for rejecting the opinion of the treating physician, and 24 the ALJ failed to present any other legally sufficient reasons for rejecting Dr. Janay’s 25 opinion.” (JS 17.) While the ALJ assigned great weight to the opinions of the state agency medical consultants, the ALJ did not rely on these opinions in affording Dr. 26 Janay’s opinions little weight. (See AR 23-24.) 27 4 Although this Ruling was rescinded for claims filed on or after March 27, 2017, see SSR 96-2p, 2017 WL 3928298 (S.S.A. Mar. 27, 2017), it remains applicable to 28 Plaintiff’s claim. 1 medical evidence or is inconsistent with other substantial evidence, such that it does 2 not receive controlling weight, the ALJ must apply the listed factors to determine its 3 weight). The opinion “must be weighed using all of the factors provided in 20 C.F.R. 4 §§ 404.1527 and 416.927.” SSR 96-2p, 1996 WL 374188, at *4. These factors 5 include, inter alia, the length of the treatment relationship, the frequency of 6 examination, and the nature and extent of the treatment relationship. 20 C.F.R. 7 § 404.1527(c). Although the ALJ is not required to analyze each factor in detail, the 8 ALJ must indicate that he has considered all the relevant factors. See Carbajal v. 9 Berryhill, No. EDCV 17-0970-AFM, 2018 WL 1517161, at *4 (C.D. Cal. Mar. 27, 10 2018) (collecting cases); Clark v. Berryhill, No. 3:16-CV-02854-BEN-AGS, 2018 11 WL 948489, at *2 (S.D. Cal. Feb. 20, 2018). 12 Here, the record reflects that treating physician Dr. Janay saw Plaintiff every 13 four to 12 weeks beginning, at the latest, in June 2016. (See AR 384-87.) The ALJ 14 appears to have considered the supportability and consistency of Dr. Janay’s opinions 15 (see AR 23-24), but did not indicate that he also considered the examining and 16 treatment relationship, the length and frequency of examination, nature and extent of 17 treatment relationship, or specialization of the doctors. The ALJ therefore failed to 18 consider all of the relevant factors, and “[t]his failure alone constitutes reversible 19 legal error.” Trevizo v. Berryhill, 871 F.3d 664, 676 (9th Cir. 2017). 20 Despite an ALJ’s error, the Court may uphold the ALJ’s decision when the 21 error is harmless. Treichler, 775 F.3d at 1099. An error is harmless if it is 22 “inconsequential to the ultimate nondisability determination,” Molina, 674 F.3d at 23 1115, or “if the agency’s path may be reasonably discerned,” Buchanan v. Colvin, 24 636 F. App’x 414, 415 (9th Cir. 2016). Here, the ALJ failed to discuss Plaintiff’s 25 treatment relationship with Dr. Janay with any specificity. The ALJ simply 26 acknowledged that Dr. Janay was Plaintiff’s treating physician. This assessment does 27 not satisfy the ALJ’s obligation. See Kelly v. Berryhill, 732 F. App’x 558, 562 n.4 28 (9th Cir. 2018) (finding that “a cursory acknowledgment” of a physician as a “treating 1 physician” does not indicate that the factors were properly considered). It is not clear 2 that the ALJ considered all of the relevant factors before giving the opinions little 3 weight, and “[t]he court may not speculate as to the ALJ’s findings or the basis of the 4 ALJ’s unexplained conclusions.” See Ros v. Berryhill, No. 2:15-CV-2389 DB, 2017 5 WL 896287, at *4 (E.D. Cal. Mar. 7, 2017) (citing Burrell v. Colvin, 775 F.3d 1133, 6 1138 (9th Cir. 2014)). On this record, the Court cannot conclude that the error was 7 harmless. 8 In sum, the Court finds that the ALJ did not properly evaluate the opinions of 9 Dr. Janay. Accordingly, remand is warranted on this issue. 10 C. The Court Declines to Address Plaintiff’s Remaining Argument 11 Having found that remand is warranted, the Court declines to address 12 Plaintiff’s remaining arguments. See Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 13 2012) (“Because we remand the case to the ALJ for the reasons stated, we decline to 14 reach [plaintiff’s] alternative ground for remand.”); see also Augustine v. Astrue, 536 15 F. Supp. 2d 1147, 1153 n.7 (C.D. Cal. 2008) (“[The] Court need not address the other 16 claims plaintiff raises, none of which would provide plaintiff with any further relief 17 than granted, and all of which can be addressed on remand.”). 18 D. Remand for Further Administrative Proceedings 19 Because further administrative review could remedy the ALJ’s errors, remand 20 for further administrative proceedings, rather than an award of benefits, is warranted 21 here. See Brown-Hunter v. Colvin, 806 F.3d 487, 495 (9th Cir. 2015) (remanding for 22 an award of benefits is appropriate in rare circumstances). Before ordering remand 23 for an award of benefits, three requirements must be met: (1) the Court must 24 conclude that the ALJ failed to provide legally sufficient reasons for rejecting 25 evidence; (2) the Court must conclude that the record has been fully developed and 26 further administrative proceedings would serve no useful purpose; and (3) the Court 27 must conclude that if the improperly discredited evidence were credited as true, the 28 ALJ would be required to find the claimant disabled on remand. Id. (citations 1 || omitted). Even if all three requirements are met, the Court retains flexibility to 2 || remand for further proceedings “when the record as a whole creates serious doubt as 3 || to whether the claimant is, in fact, disabled within the meaning of the Social Security 4 || Act.” Id. (citation omitted). 5 Plaintiff contends that the ALJ’s failure “to provide the requisite reasons for 6 || rejecting the medical opinions of Plaintiff's treating physician” warrants crediting 7 || Dr. Janay’s opinion as a matter of law. (JS 21.) Additionally, Plaintiff contends that g || Plaintiffs testimony should be credited as a matter of law. (JS 21-22.) Accordingly, 9 || Plaintiff requests that the case be remanded for an award of benefits, or in the 10 || alternative, remanded for further proceedings. (JS 22.) The Commissioner contends 11 || that the matter should be remanded for further administrative proceedings. (JS 22.) 12 Here, remand for further administrative proceedings is appropriate. The Court 13 || finds that the ALJ erred in assessing and discounting Dr. Janay’s opinions. On 14 || remand, the ALJ shall reassess and properly weigh Dr. Janay’s opinions. The ALJ 15 || shall then reassess Plaintiff's RFC and proceed through step four and step five, if 16 || necessary, to determine what work, if any, Plaintiff is capable of performing. 17 V. CONCLUSION 18 IT IS ORDERED that Judgment shall be entered REVERSING the decision of 19 || the Commissioner denying benefits and REMANDING the matter for further 29 || proceedings consistent with this Order. 71 IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this 22 || Order and the Judgment on counsel for both parties. . 93 || DATED: July 10, 2020 Raylh □□□

4A ROZELLA A. OLIVER UNITED STATES MAGISTRATE JUDGE 25 6 NOTICE 27 THIS DECISION IS NOT INTENDED FOR PUBLICATION IN WESTLAW, 2g || LEXIS/NEXIS, OR ANY OTHER LEGAL DATABASE. 23