(SS) Gonzales v. Commissioner of Social Security ( 2020 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 JASMINE MONIQUE GONZALES, Case No. 1:19-cv-01128-SAB 10 Plaintiff, ORDER DENYING PLAINTIFF’S SOCIAL SECURITY APPEAL AND ENTERING 11 v. JUDGMENT IN FAVOR OF THE COMMISSIONER OF SOCIAL SECURITY 12 COMMISSIONER OF SOCIAL SECURITY, (ECF Nos. 17, 18, 19) 13 Defendant. 14 15 I. 16 INTRODUCTION 17 Plaintiff Jasmine Monique Gonzales (“Plaintiff”) through her guardian ad litem, Paul 18 Gonzales, seeks judicial review of a final decision of the Commissioner of Social Security 19 (“Commissioner” or “Defendant”) finding she no longer qualifies for disability benefits pursuant 20 to the Social Security Act. The matter is currently before the Court on the parties’ briefs, which 21 were submitted, without oral argument, to Magistrate Judge Stanley A. Boone.1 22 Plaintiff suffers from Attention Deficit Hyperactivity Disorder (“ADHD”). For the 23 reasons set forth below, Plaintiff’s Social Security appeal shall be denied. 24 II. 25 FACTUAL AND PROCEDURAL BACKGROUND 26 Plaintiff, a minor, was found to be disabled in a determination dated December 10, 2010. 27 On May 4, 2015, it was determined that Plaintiff was no longer disabled as of April 1, 2015. 1 (AR 83-88.) The determination was upheld upon reconsideration following a disability hearing 2 before the state hearing officer. (AR 142-144.) Plaintiff filed a request for a hearing before 3 Administrative Law Judge Ruxana Meyer (“the ALJ”). Plaintiff’s father waived the right to 4 appear and testify at the hearing. (AR 231.) On September 6, 2018, the ALJ found that Plaintiff 5 was not disabled. (AR 19-40.) The Appeals Council denied Plaintiff’s request for review on 6 April 24, 2019. (AR 8-10.) 7 A. Hearing Testimony 8 Plaintiff and her father, Mr. Gonzales, appeared for hearing on November 13, 2017. (AR 9 60-78.) Mr. Gonzales did not want to waive his right to representation so the hearing was 10 postponed for Plaintiff to obtain counsel. (AR 69, 180.) 11 Plaintiff’s attorney appeared, but neither Plaintiff nor Mr. Gonzales appeared, for the 12 hearing set on February 14, 2018. (50-59.) At the hearing, the ALJ noted that there was a 13 document stating that Mr. Gonzales had knee surgery the day prior to the hearing. (AR 53.) 14 When asked, Plaintiff’s attorney stated that Plaintiff was not waiving her right to appear at the 15 hearing. (AR 53.) He argued that good cause existed as to why they missed the hearing and he 16 was willing to move forward with any expert testimony that was available. (AR 53.) The ALJ 17 stated that knee surgery is generally an outpatient procedure so she was not sure that good cause 18 had been shown for the failure to appear. (AR 53.) The ALJ also stated that there was no 19 medical expert present. (AR 53.) Counsel requested that Mr. Gonzales’s testimony be 20 presented in a document fashion and the ALJ agreed. (AR 54.) A waiver of appearance for the 21 hearing was executed. (AR 231.) 22 B. ALJ Findings 23 The ALJ made the following findings of fact and conclusions of law. 24 • The most recent favorable medical decision finding that Plaintiff was disabled is 25 the determination dated December 17, 2010. This is known as the “comparison 26 point decision” or CPD. 27 • At the time of the CPD, Plaintiff had the following medically determinable 1 CFR Part 404, Subpart P, Appendix 1. 2 • Medical improvement occurred as of April 1, 2015. 3 • Since April 1, 2015, the impairment that Plaintiff had at the time of the CPD has 4 not met or medically equaled the listing. 5 • Plaintiff was born on March 29, 2004. Therefore, she was a school-age child, as of 6 April 1, 2015. Plaintiff is currently an adolescent. 7 • Since April 1, 2015, the impairment that Plaintiff had at the time of the CPD has 8 not functionally equaled the Listings of Impairments. 9 o Since April 1, 2015, Plaintiff has had no limitation in acquiring and using 10 information as a result of the impairment present at the CPD. 11 o Since April 1, 2015, Plaintiff has had less than marked limitation in 12 attending and completing tasks as a result of the impairment present at the 13 CPD. 14 o Since April 1, 2015, Plaintiff has had less than marked limitation in 15 interacting and relating with others as a result of the impairment present at 16 the CPD. 17 o Since April 1, 2015, Plaintiff has had no limitation in moving about and 18 manipulating objects as a result of the impairment present at the CPD. 19 o Since April 1, 2015, Plaintiff has had no limitation in the ability to care for 20 herself as a result of the impairment present at the CPD. 21 o Since April 1, 2015, Plaintiff has had no limitation in health and physical 22 well-being as a result of the impairment present at the CPD. 23 • The medical and other evidence establish that Plaintiff: did not have an impairment 24 at the CPD that was not considered at that time; and has not developed any 25 additional impairments subsequent to the CPD. 26 • Since April 1, 2015, Plaintiff has not had an impairment or combination of 27 impairments that meets or medically equals one of the listed impairments. 1 impairments that functionally equals the listings. 2 • Plaintiff’s disability ended as of April 1, 2015, and the claimant has not become 3 disabled again since that date. 4 (AR 25-40.) 5 III. 6 LEGAL STANDARD 7 To be eligible for disabled child’s insurance benefits, the claimant must meet the Social 8 Security Act’s definition of “child,” be unmarried, be below specified age limits (18 or 19) or be 9 under a disability which began prior to age 22, and was dependent on the insured at the time of 10 the insured’s death. Astrue v. Capato ex rel. B.N.C., 566 U.S. 541, 547 (2012) (quoting 42 11 U.S.C. § 402(d)(1), see also Smolen v. Chater, 80 F.3d 1273, 1279–80 (9th Cir. 1996) (quoting 12 42 U.S.C. § 402(d)(1)(B)(ii)) (“To be eligible for disabled child’s insurance benefits, the 13 claimant must, ‘at the time [her] application is filed,’ be ‘under a disability . . . which began 14 before [s]he attained the age of 22.’ ”). A child is disabled for the purposes of the Social 15 Security Act if she suffers from “a medically determinable physical or mental impairment, which 16 results in marked and severe functional limitations, and which can be expected to result in death 17 or which has lasted or can be expected to last for a continuous period of not less than 12 18 months.” Merrill ex rel. Merrill v. Apfel, 224 F.3d 1083, 1085 (9th Cir. 2000) (quoting 42 19 U.S.C. § 1382c(a)(3)(C)(i)). 20 The Social Security regulations establish a three-step sequential evaluation process to be 21 followed in a child disability case. 20 C.F.R. § 416.924. At the First Step, the Commissioner 22 must determine whether the claimant is working and whether the work is substantial gainful 23 activity; if so, a finding of nondisability is made and the claim is denied. 20 C.F.R. § 24 416.924(b). At the Second Step, where the claimant is been found not to be engaged in 25 substantial gainful activity, the Commissioner must determine whether the claimant has a severe 26 medically determinable impairment or combination of impairments; if not, a finding of 27 nondisability is made and the claim is denied. 20 C.F.R. § 416.924(c). If a severe impairment is 1 determine whether the claimant’s impairment meets or medically or functionally equals an 2 impairment in the Listing of Impairments (“the Listing”). 20 C.F.R. § 416.924(d). If the 3 impairment meets or equals an impairment in the Listing, it is presumed to cause “marked and 4 severe functional limitations,” provided it also meets the duration requirement, and benefits are 5 awarded. 20 C.F.R. § 416.924(d). 6 “The claimant’s impairment will medically equal a listed impairment ‘if the medical 7 findings are at least equal in severity and duration to the listed findings.’ ” Howard ex rel. Wolff 8 v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (quoting Interim Final Rules, 62 Fed. Reg. at 9 6424; 20 C.F.R. § 416.926(a)(1997).) “The impairment will be considered functionally 10 equivalent if the claimant has marked limitation in two areas or extreme limitation in one area. 11 Howard, 341 F.3d at 1022 (quoting Interim Final Rules, 62 Fed. Reg. at 6425, 20 C.F.R. § 12 416.926a(b)(2)(1997)). Functional equivalence is considered the areas of “(i) Acquiring and 13 using information; (ii) Attending and completing tasks; (iii) Interacting and relating with others; 14 (iv) Moving about and manipulating objects; (v) Caring for yourself; and, (vi) Health and 15 physical well-being.” 20 C.F.R. § 416.926a(b)(1). When the claimant’s impairment does not 16 meet or equal an impairment in the Listing, or does not meet the durational requirement, the 17 claimant is determined to be not disabled. 20 C.F.R. § 416.924(d). 18 Congress has provided that an individual may obtain judicial review of any final decision 19 of the Commissioner of Social Security regarding entitlement to benefits. 42 U.S.C. § 405(g). 20 In reviewing findings of fact in respect to the denial of benefits, this court “reviews the 21 Commissioner’s final decision for substantial evidence, and the Commissioner’s decision will be 22 disturbed only if it is not supported by substantial evidence or is based on legal error.” Hill v. 23 Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). “Substantial evidence” means more than a 24 scintilla, but less than a preponderance. Smolen, 80 F.3d at 1279 (internal quotations and 25 citations omitted). “Substantial evidence is relevant evidence which, considering the record as a 26 whole, a reasonable person might accept as adequate to support a conclusion.” Thomas v. 27 Barnhart, 278 F.3d 947, 955 (9th Cir. 2002) (quoting Flaten v. Sec’y of Health & Human Servs., 1 “[A] reviewing court must consider the entire record as a whole and may not affirm 2 simply by isolating a specific quantum of supporting evidence.” Hill, 698 F.3d at 1159 (quoting 3 Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 2006). However, it is not 4 this Court’s function to second guess the ALJ’s conclusions and substitute the court’s judgment 5 for the ALJ’s. See Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (“Where evidence is 6 susceptible to more than one rational interpretation, it is the ALJ’s conclusion that must be 7 upheld.”). 8 IV. 9 DISCUSSION AND ANALYSIS 10 A. Arguments of the Parties 11 Plaintiff argues that the ALJ erred by rejecting the opinion of Dr. Portnoff, a consultative 12 examiner, in favor of the non-examining sources who only reviewed the records. Plaintiff 13 contends that the ALJ erred by rejecting Dr. Portnoff’s opinion because it was formed after a 14 single assessment where Plaintiff’s father relayed information and by finding that Dr. Portnoff’s 15 opinion that her full scale IQ score was deflated due to Plaintiff’s ADHD symptoms was not 16 inconsistent with her performance and school grades. Plaintiff argues that the ALJ erred by 17 relying on evidence that Plaintiff was performing well in school and disregarding findings that 18 support disability. Plaintiff also contends that the ALJ erred by failing to comply with the 19 regulations in weighing third party opinions. Specifically, Plaintiff argues that the ALJ failed to 20 provide an explanation for Ms. Chanterie’s opinions about Plaintiff’s ability to attend and 21 complete tasks and interact and relate to others. Plaintiff also contends that the ALJ failed to 22 consider the various function reports, written narratives and statements to medical providers by 23 Mr. Gonzales. 24 Defendant counters that the ALJ properly weighed the opinion of Dr. Portnoff in 25 addressing that it was based on a one-time examination and the statements of Mr. Gonzales. 26 Defendant argues that the ALJ did not reject Dr. Portnoff’s entire opinion but assigned little 27 weight to the opinion regarding Plaintiff’s ability to socially integrate with peers and adult 1 ALJ provided specific citations to the record to support her reasoning that Dr. Portnoff’s opinion 2 was inconsistent with the medical recording demonstrating medical improvement as of April 1, 3 2015. The ALJ noted that on examination, Dr. Portnoff found Plaintiff’s thought process to be 4 coherent and organized, her receptive language comprehension was intact, she had some mild 5 tension and impatience, but her immediate and delayed recall was intact and she achieved a full 6 scale IQ of 80 and opined that she had no limitations in her ability to communicate, understand, 7 initiate and use language at an age-appropriate level. 8 Defendant also argues that the ALJ properly evaluated the testimony of Ms. Chanterie by 9 summarizing her statements and providing great weight to the educational records and teacher 10 opinions and observations. Defendant contends that the ALJ used Ms. Chanterie’s statements to 11 support her findings in each of the six childhood functional domains. Defendant states that the 12 ALJ provided multiple germane reasons to reject the testimony of Mr. Gonzales finding them to 13 be inconsistent with the observations of Plaintiff’s teachers, her documented attendance record, 14 and the overall record citing that Mr. Gonzales stated Plaintiff was engaged in weekly therapy 15 when she was not, and that she had been suspended from school when there was no evidence of 16 any suspensions in the record. 17 Plaintiff replies that Defendant does not rely on the rationale set forth by the ALJ and the 18 reasons provided by the ALJ to reject the opinion of Dr. Portnoff are not specific and legitimate. 19 Plaintiff argues that Ms. Chanterie’s opinions support a finding of more severe limitations than 20 found by the ALJ in the domain of attending and completing tasks. Plaintiff contends that the 21 cursory rejection of Mr. Gonzales’s testimony is legally insufficient. 22 B. Termination of Benefits 23 The Social Security regulations provide that if a severe impairment does not meet or 24 medically equal any listing, they “will decide whether it results in limitations that functionally 25 equal the listings.” 20 C.F.R. § 416.926a(a). A severe impairment functionally equals a listing if 26 it results in “marked” limitations in two domains of functioning or in an “extreme” limitation in 27 one domain. Id. The domains used are “(i) Acquiring and using information; (ii) Attending and 1 objects; (v) Caring for yourself; and, (vi) Health and physical well-being.” 20 C.F.R. § 2 416.926a(b)(1). 3 We will find that you have a “marked” limitation in a domain when your impairment(s) interferes seriously with your ability to independently initiate, 4 sustain, or complete activities. Your day-to-day functioning may be seriously limited when your impairment(s) limits only one activity or when the interactive 5 and cumulative effects of your impairment(s) limit several activities. “Marked” limitation also means a limitation that is “more than moderate” but “less than 6 extreme.” It is the equivalent of the functioning we would expect to find on standardized testing with scores that are at least two, but less than three, standard 7 deviations below the mean. 8 20 C.F.R. § 416.926a(e)(2)(i). A child of any age will be found to “have a ‘marked’ limitation 9 when [they] have a valid score that is two standard deviations or more below the mean, but less 10 than three standard deviations, on a comprehensive standardized test designed to measure ability 11 or functioning in that domain, and [their] day-to-day functioning in domain-related activities is 12 consistent with that score.” 20 C.F.R. § 416.926a(e)(2)(iii). However, they do not rely on test 13 scores alone and no single piece of information taken in isolation can establish whether the child 14 has a “marked” limitation in a domain. 20 C.F.R. § 416.926a(e)(4)(i). 15 Here, Plaintiff had previously been found to qualify for benefits in 2010. This appeal is 16 based upon the finding that due to medical improvement, Plaintiff was no longer disabled. 17 C. Relevant Portions of ALJ’s Opinion 18 In this instance, the ALJ found that the medical evidence supports a finding that as of 19 April 1, 2015, there had been a decrease in the severity of the impairment present at the time of 20 the CPD. (AR 25.) On June 6, 2014, Ms. Dorado, Plaintiff’s fourth grade teacher, reported that 21 Plaintiff was very attentive, liked to please her teacher, and her grades were great. (AR 25, 381.) 22 Plaintiff was a good multitasker and was only noticeably excitable when she was not on her 23 medications. (AR 25, 381.) Ms. Dorado identified no specific areas of weakness. (AR 25, 381.) 24 Plaintiff did not require an Individual Education Plan (“IEP”) but had Section 504 25 accommodations, including preferential seating, buddy pair up, graphic organizers and visuals, 26 note taking, repetition, and small group instruction. (AR 26, 382.) Plaintiff was staying for the 27 after school program and was accountable for following school rules. (AR 26, 382.) 1 Jasmine’s academics have been excellent. She is currently earning straight A’s. She loves to write and likes to do extra credit in the classroom. Her teacher notes 2 that on the very few days when she is not taking her medication, she gets easily excitable; however, Mrs. Dorado simply has to redirect Jasmine to do her work to 3 get her focused again. 4 (AR 384.) 5 The ALJ also considered the testimony of Ms. Chanterie, Plaintiff’s fifth grade teacher. 6 (AR 26.) Ms. Chanterie reported that Plaintiff read books at recess. (AR 26, 322.) There had 7 been four incidents where Plaintiff had to be sent out of the classroom and Plaintiff could get 8 very loud and disruptive when she was not on her medication. (AR 26, 322.) Most of the kids 9 stayed away from Plaintiff when she was not on her medication because she was bothersome and 10 they did not like it. (AR 26, 322.) For the most part, Plaintiff was never a problem. (AR 26, 11 322.) 12 The ALJ also considered the June 10, 2016, 504 Accommodation Plan which included 13 Plaintiff’s parents, her teacher, and the vice principal. (AR 26, 368-371.) The Plan noted that 14 Plaintiff’s academics were in good standing and that overall she was a good student. (AR 26, 15 368, 371.) Plaintiff liked reading and writing, worked well independently and was helpful in the 16 classroom. (AR 26, 368, 371.) Her teacher reported that Plaintiff was often cheerful and in a 17 good mood. (AR 26, 368, 371.) The teacher noted that it was evident when Plaintiff did not take 18 her medications because her behaviors were different and unpredictable. (AR 26, 371.) This had 19 occurred two or three times per school year. (AR 26, 371.) Plaintiff had no suspensions and 20 three absences. (AR 26, 368, 371.) She had no suspensions during the 2017-2018 school year. 21 (AR 26, 537.) 22 The ALJ also considered that on March 15, 2017, school personnel noted that Plaintiff 23 was having outbursts in class and had gone to the nurse’s office to cool down and talk. (AR 26, 24 450.) Plaintiff reported that she was out of her medications. (AR 26, 450.) The school nurse 25 was informed by Plaintiff’s physician’s office that the last refill on Plaintiff’s medication had 26 been a thirty day supply prescribed on February 6, 2017. (AR 26, 450.) When Mr. Gonzales 27 was contacted he stated, “Don’t let her play you, she took her medication this morning.” (AR 26, 450.) When he was informed of the information provided by the doctor’s office, he said he 1 was trying to get a ride to the doctor. (AR 26, 450.) 2 The ALJ went on to consider the degree of limitation in each of the six functional 3 domains for the period since April 1, 2015. (AR 27-39.) The ALJ considered the function 4 report, dated November 5, 2014, completed by Mr. Gonzales. (AR 27, 277-286.) He reported 5 that Plaintiff’s impairments affected her behavior with other people, but indicated that she had 6 friends, made new friends, generally got along well with him and other adults, generally got 7 along with school teachers, and plays team sports. (AR 27, 283.) He reported that her 8 impairments affect her ability to help herself and cooperate with others in taking care of her 9 needs as she does not pick up and put away her toys, hang up her clothes, or help around the 10 house. (AR 27, 284.) 11 In a questionnaire dated November 24, 2014, Mr. Gonzales reported that he did not know 12 if Plaintiff was in special education. (AR 28, 288.) She received special counseling or tutoring 13 in school where she talked to the teachers one on one, but not outside of school. (AR 28, 288.) 14 Plaintiff was taking medication for her ADHD that was prescribed by Dr. Naz and had no side 15 effects. (AR 28, 292.) He reported that the medication let her pay attention and be able to 16 understand the tasks at hand and that they were allowing her to become a better person in her 17 life. (AR 28, 292.) 18 On February 23, 2016, Mr. Gonzales reported that Plaintiff was in the special education 19 program and receives accommodations for whatever she needs, but that every year was different. 20 (AR 28, 328.) She did not receive any special counseling or tutoring in school, but outside of 21 school she had been seeing a counselor one time a week for two months. (AR 28, 328.) He 22 reported that Plaintiff had been seen by Madera Mental Health in 2009 and was put on 23 medication at the age of five. (AR 28, 329.) He reported Plaintiff is seen by Madera Mental 24 Health weekly and they say she has ADHD. (AR 28, 329.) He stated that Plaintiff receives 25 discipline therapy; that she was enrolled in Monroe’s afterschool program but was “kicked out” 26 due to her medication running out and the program did not have staff equipped to handle kids 27 with ADHD. (AR 28, 330, 332.) He reported that her medication is a gift that lets her focus on 1 ninety minutes. (AR 28, 332.) 2 In an undated letter submitted in February 2016, Mr. Gonzales reported that Plaintiff had 3 been placed on medication by Madera County Mental Health at the age of five. (AR 28, 323.) 4 She was taking 70 milligrams of Vyvanse and she sees Dr. Naz, but he only sees her for about 5 fifteen minutes per month. (AR 28, 323.) He stated that he feels Dr. Naz does not know 6 anything about his daughter. (AR 28, 323.) Plaintiff has ADHD and will never be cured and 7 will always need help. (AR 28, 323.) He reported that Plaintiff was receiving mental health 8 counseling and he was glad because he was not able to handle some of the things that Plaintiff 9 does. (AR 28, 323.) He stated he also needed counseling and that Plaintiff breaks things in the 10 house, breaks doors and kicks the walls in her room, fights with her brothers and sisters, kicks 11 her brother in the testicles, and he is afraid she is going to hurt one of the other children. (AR 28, 12 323-324.) He reported that her future all depended on what she learned in mental health 13 treatment. (AR 28, 325.) 14 The ALJ considered that on March 30, 2016, Mr. Gonzales reported that Plaintiff was 15 receiving treatment for emotional or learning problems. (AR 28, 345.) She was being treated by 16 Dr. Naz for ADHD with medications. (AR 28, 346.) There had been no change in her activities 17 due to her physical or mental conditions. (AR 28, 345, 350.) 18 The ALJ considered the opinion of Dr. Portnoff who conducted a consultative psychiatric 19 examination of Plaintiff on May 12, 2018. (AR 29-30, 1085-1090.) Dr. Portnoff noted that he 20 had no records for review and that Mr. Gonzales provided all the history and information he 21 considered, including that Plaintiff was hyperactive, impulsive, distractible, defiant, aggressive, 22 and that she has pushed teachers and broken a school computer. (AR 29, 1085.) Her father 23 reported that she was depressed with low self-esteem, has said she wants to die, has social 24 anxiety, and had daily rages that last three hours or more. (AR 29, 1085.) He reported that 25 Plaintiff was taking 30 milligrams of dextroamphetamine and 25 milligrams of Strattera, that she 26 was independent with her grooming, can fix herself something to eat, and that when she is home 27 she watches television or is on her cell phone. (AR 29, 1085-1086.) 1 (AR 29, 1086.) Plaintiff’s speech was prompt and spontaneous. (AR 29, 1086.) Her thought 2 process was coherent and organized. (AR 29, 1086.) Her receptive language comprehension 3 was intact. (AR 29, 1086.) Her mood and affect were characterized by mild tension and 4 impatience. (AR 29, 1086.) Plaintiff’s immediate and delayed recall for two words was intact. 5 (AR 29, 1086.) She could not count backwards from ten to one. (AR 29, 1086.) On the 6 Wechsler Intelligence Scale for Children-Fifth Edition, she achieved a full scale IQ of 80, 7 placing her in the marginally impaired category (AR 29, 1087.) 8 Dr. Portnoff’s diagnostic impression was disruptive mood dysregulation disorder; 9 attention deficit hyperactivity disorder combined; and unspecified learning disorder. (AR 29, 10 1089.) He noted that Plaintiff had a history of ADHD and also has a reported history of violent 11 rages, separation anxiety, morbid statements, consistent with childhood mood disorder. (AR 29, 12 1089.) Her current cognitive testing was indicative of average visual intelligence that argues 13 against primary sub average intelligence. (AR 29, .) Dr. Portnoff noted that ADHD as suggested 14 by the deficient WMI is deflating Plaintiff’s full-scale IQ. (AR 29-30, 1089.) He noted that 15 Plaintiff has mild deficiencies in verbal and fluid reasoning, which suggests unspecified learning 16 disorder. (AR 29, 1089.) He noted the progress for ADHD-disruptive mood dysregulation 17 disorder is fair, dependent on access and response to appropriate psychotropic medication. (AR 18 29, 1089.) Dr. Portnoff opined that Plaintiff has mild impairment in her ability and 19 understanding when responding to increasingly complex requests, instructions, and tasks in an 20 age-appropriate manner. (AR 29, 1089.) She has no limitations in her ability to communicate, 21 understand, initiate and use language at an age-appropriate level. (AR 29, 1089.) Plaintiff has 22 no limitation in her ability to engage in age-appropriate physical activities. (AR 29, 1089.) In 23 her social development, she has marked limitations in her ability to socially integrate with peers 24 and adults in an age-appropriate manner due to ADHD and Disruptive Mood Dysregulation 25 Disorder. (AR 29, 1090.) She is able to respond to general stimuli in an age-appropriate 26 manner. (AR 29, 1090.) She has a moderate to marked impairment in her ability to cooperate, 27 behave, and participate in a group due to ADHD. (AR 29, 1090.) She has mild limitations in her 1 The ALJ also considered the opinions of the state agency physician, Dr. Balson who 2 reviewed the record and determined that Plaintiff was receiving medication from her primary 3 care provider for her ADHD, has exhibited no high risk behavior, and has achieved significant 4 medical improvement as long as the parents will maintain adherence to medications as 5 prescribed by her physician. (AR 30, 698.) 6 The ALJ also considered the opinion of Dr. Haroun who reviewed the record on 7 reconsideration and noted that the medical and education evidence shows that Plaintiff does well 8 when she is compliant with medication, does not have any cognitive problems, and does not 9 require special education. (AR 30, 737.) Dr. Haroun opined that Plaintiff’s mental impairment 10 is non-severe. (AR 30, 737.) 11 The ALJ’s further discussion of the evidence in each of the functional areas will be 12 addressed as need in addressing the issues raised in this appeal. 13 C. Physician Opinion 14 Plaintiff argues that the ALJ erred in giving greater weight to the opinions of the agency 15 physicians who had only reviewed the record than to the opinion of Dr. Portnoff who had done a 16 consultative examination of Plaintiff. 17 The weight to be given to medical opinions depends upon whether the opinion is 18 proffered by a treating, examining, or non-examining professional. See Lester v. Chater, 81 F.3d 19 821, 830-831 (9th Cir. 1995). “Generally, the opinions of examining physicians are afforded 20 more weight than those of non-examining physicians, and the opinions of examining non- 21 treating physicians are afforded less weight than those of treating physicians. Orn v. Astrue, 495 22 F.3d 625, 631 (9th Cir. 2007) (citing 20 C.F.R. § 404.1527(d)(1)-(2)). “If a treating or 23 examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ may only reject 24 it by providing specific and legitimate reasons that are supported by substantial evidence.” 25 Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (citing 20 C.F.R. § 404.1527(d)(3)). The 26 contrary opinion of a non-examining expert is not sufficient by itself to constitute a specific, 27 legitimate reason for rejecting a treating or examining physician’s opinion, however, “it may 1 record.” Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). The ALJ need not accept 2 the opinion of any physician that is brief, conclusory, and unsupported by clinical findings. 3 Thomas, 278 F.3d at 957. 4 Dr. Portnoff’s opinion conflicts with the opinions of Drs. Balson and Haroun, so the ALJ 5 must provide specific and legitimate reasons to reject Dr. Portnoff’s opinion. 6 The ALJ gave little weight to Dr. Portnoff’s opinion as it related to marked limitations in 7 Plaintiff’s ability to socially integrate with her peers and adults in an age appropriate manner. 8 (AR 30.) The ALJ found that Dr. Portnoff did not review the education or medical records but 9 formed his opinion after one examination during which Plaintiff’s father provided her history 10 and related information. (AR 30.) Plaintiff argues that the ALJ erred by rejecting Dr. Portnoff’s 11 opinion because he did not review the medical records and it was a one time evaluation. But the 12 ALJ rejected the opinion because it was based on Mr. Gonzales relating her history and related 13 information. An ALJ can reject a physician’s opinion that is premised on a claimant’s subjective 14 complaints that have been properly discounted. Fair v. Bowen, 885 F.2d 597, 605 (1989).2 15 Here, Dr. Portnoff’s opinion was based on Mr. Gonzales’s representation that Plaintiff 16 was hyperactive, impulsive, distractible, defiant, aggressive, and that she has pushed teachers 17 and broken a school computer. (AR 29, 1085.) But the ALJ noted that the educational records 18 do not corroborate such claims. (AR 29.) Her father also reported that she was depressed with 19 low self-esteem, has said she wants to die, has social anxiety, and had daily rages that last three 20 hours or more. (AR 29, 1085.) The ALJ noted that neither the educational records nor the 21 medical records contain complaints of three hour rages. (AR 29.) 22 Substantial evidence in the record supports the ALJ’s findings that the allegations of 23 Plaintiff’s conduct set forth by her father are unsupported by the record. As the ALJ addressed 24 in discussing the opinions of Plaintiff’s teachers, her fourth grade teacher reported she liked to 25 please her teacher, was very attentive and was only excitable when she was not on her 26 medications. (AR 381.) Ms. Dorado stated she simply has to redirect Plaintiff to do her work to 27 2 As will be discussed below, the Court finds that the ALJ provided germane reasons to find the testimony of Mr. 1 get her refocused again. (AR 384.) 2 Ms. Chanterie, Plaintiff’s fifth grade teacher, identified four incidents where Plaintiff had 3 to be sent out of the room because she was loud and disruptive when she was not on her 4 medication. (AR 322.) For the most part, Plaintiff was not a problem. (AR 322.) Ms. Chanterie 5 stated that Plaintiff “was an absolute pleasure to have in class.” (AR 322.) 6 The 504 Accommodation Plan from June 10, 2016 noted that Plaintiff was very helpful in 7 the classroom, was often cheerful and in a good mood. (AR 371.) It was evident when Plaintiff 8 did not take her medications, as had occurred two or three times per school year, because her 9 behaviors were different and unpredictable. (AR 371.) 10 Review of the medical records also shows no complaints of such rages. In fact as the 11 ALJ noted, the medical record indicates that Plaintiff was reported to be doing good and was 12 doing well at her school studies and behavior. (AR 32, 39, 814.) Plaintiff points to no evidence 13 of such rages in the record. 14 There are a few incidents in the medical record where the family reported issues with 15 Plaintiff. On February 2, 2015, Plaintiff’s medication was increased at the request of her father. 16 (AR 663.) On May 5, 2015, Plaintiff’s father requested a referral to mental health because she 17 was aggressive and throwing knives (although the record on that date also notes that she is doing 18 well at her school studies and behavior). (AR 817.) On October 9, 2015, Plaintiff’s father 19 requested a referral to mental health; and on November 16, 2015, he reported that Plaintiff’s 20 medication was not working and Plaintiff was placed on a new medication. (AR 798-799, 801.) 21 On November 15, 2016, Plaintiff was reported not to be doing well with her school studies and 22 behavior. (AR 768.) On December 24, 2016, it was reported that her medication was not 23 working but she was doing well at school studies and behavior. (AR 752.) 24 But, as the ALJ found, Plaintiff was generally reported to be doing good and doing well 25 on her school studies and behavior. (AR 662, 665, 667, 669, 671, 673, 675, 677, 679, 682, 711, 26 712, 742, 745, 749, 768, 770, 773, 783, 786, 789, 792, 805, 808, 814, 815, 817, 958.) 27 The ALJ also noted that Dr. Portnoff found that Plaintiff’s full scale IQ was deflated due 1 school achievements and grades and that she only had intermittent behavioral issues associated 2 with not taking her medication. (AR 30.) The ALJ noted substantial evidence in the record to 3 support the finding that Plaintiff’s behavioral issues were intermittent and associated with not 4 taking her medication. The ALJ considered that Mr. Dorado reported that Plaintiff was only 5 noticeably excitable when she was not on her medication. (AR 25, 381.) While she is easily 6 excitable when not on her medication, Ms. Dorado simply has to redirect her to do her work to 7 get Plaintiff focused again. (AR 384.) Ms. Chanterie reported that there had been four incidents 8 when Plaintiff had to be sent out of the classroom. (AR 26, 322.) Plaintiff would get very loud 9 and disruptive when she was not on her medication, but for the most part she was never a 10 problem. (AR 26, 322.) In the June 10, 2016, Accommodation Plan it was reported that it was 11 evident when Plaintiff did not take her medication because her behaviors were different and 12 unpredictable. (AR 26, 371.) This occurred two or three times per year. (AR 26, 371.) 13 Plaintiff argues that the ALJ erred by ignoring the opinion of MSW Crystal whose notes 14 included that Plaintiff had a history of neglect and abandonment and is exhibiting poor grades. 15 But the ALJ did consider the opinion of MSW Crystal. The ALJ noted that despite her father’s 16 assertion that Plaintiff was participating in mental health treatment weekly, Plaintiff only 17 received two mental health evaluations that were a year apart and both times Plaintiff was 18 discharged for failing to attend treatment or respond to letters. (AR 29.) The ALJ also addressed 19 the mental health examinations in discussing the domains. (AR 34-39.) While Plaintiff argues 20 that the providers made findings that Plaintiff had a history of neglect and abandonment and is 21 exhibiting poor grades, the report of Plaintiff’s poor grades were by Mr. Gonzales and the ALJ 22 discussed throughout the opinion that the assertion was unsupported by the educational record. 23 Plaintiff points to no evidence in the record that she was receiving poor grades. 24 Citing to a teacher questionnaire completed by Ms. Chanterie on June 4, 2015, Plaintiff 25 also argues that Ms. Chanterie reported that Plaintiff had serious problem completing class work 26 and assignments and an obvious problem working with others without being distracted. (AR 27 314-321.) In the area of attending and completing tasks, Ms. Chanterie found that Plaintiff had 1 activity; carrying out single or multi-step instructions; waiting to take turns; completing work 2 accurately without careless mistakes; and working at a reasonable pace/finishing on time. (AR 3 316.) She had a slight problem in focusing long enough to finish assigned task or activity; 4 refocusing to task when necessary; and changing form one activity to another without being 5 disruptive (daily). (AR 316.) Plaintiff had an obvious problem organizing own things or school 6 materials (daily); and working without distracting others (monthly). (AR 361.) She had a 7 serious problem completing class or homework assignments (daily). (AR 316.) Ms. Chanterie 8 stated that when Plaintiff is not on her medication she can be very disruptive and lately she has 9 been very tired with no motivation to complete classwork or homework. (AR 316.) 10 The ALJ did consider Ms. Chanterie’s testimony regarding Plaintiff’s limitations. She 11 considered the letter written by Ms. Chanterie the next day on June 5, 2015 which states: 12 Jasmine has done very well in my classroom. She is a very pleasant student who is always willing to lend a helping hand. She is very bright and when she tries, 13 she receives very high grades. At the beginning of the year her grades were much higher than they currently are and her attitude has somewhat seemed to change as 14 well. Recently, I have seen Jasmine more quiet and not as willing to complete her work. 15 However, there were a few days this year when Jasmine was not so willing and 16 cooperative. There were four times this year when Jasmine had an episode in which I needed to send her out of the classroom. She can get very loud and 17 disruptive when she is not on her medication, but for the most part, she was never a problem. 18 Jasmine does very well independently, and often times prefers to work alone. She 19 enjoys reading and when walking out to recess and lunch, I would catch her with a book in her hand. She has a consistent group of friends, but I noticed that most 20 of the kids stay away from her because when she is not on medication, she is very bothersome to them and they do not like that. 21 I cannot say that I have had many problems with Jasmine this year, because l 22 haven’t. She was an absolute pleasure to have in class. 23 (ECF No. 322.) The ALJ also incorporated the June 4, 2015 report in the discussion of the 24 domains. (AR 32-34.) The ALJ’s discussion of the June 4, 2015 Teacher Questionnaire in 25 addressing each of the domains will be addressed below. 26 Plaintiff argues that this is evidence that Plaintiff was receiving poor grades, but the fact 27 that Plaintiff’s grades were lower than they were at the beginning of the year does not support 1 receiving good grades and doing well in her classes. Further, while Plaintiff argues that there is 2 evidence that would support a finding of disability, “the key question is not whether there is 3 substantial evidence that could support a finding of disability, but whether there is substantial 4 evidence to support the Commissioner’s actual finding that claimant is not disabled.” Jamerson 5 v. Chater, 112 F.3d 1064, 1067 (9th Cir. 1997). 6 While Plaintiff argues for a different interpretation of the evidence in the record, the ALJ 7 reasonably found that Plaintiff’s educational records contradicted Dr. Portnoff’s opinion that she 8 had marked limitations in her ability to socially integrate with peers and adults in an age 9 appropriate manner and properly rejected the testimony because it was based on Mr. Gonzales’ 10 symptom testimony that was not credible. Finally, to the extent that Plaintiff is arguing that 11 Plaintiff’s limitations made her unable to complete her school work, Dr. Portnoff found that 12 Plaintiff only had mild impairment in her ability to understand and respond to increasing 13 complex requests, instructions, and tests in an appropriate manner; and her ability to engage in a 14 sustained or focused activity for a period of time. (AR 1089-1090.) 15 The ALJ provided specific and legitimate reasons to reject the marked limitation opined 16 by Dr. Portnoff. To the extent that opinion could be construed as rejecting the opinion because it 17 was based on a one time examination, any such error would be harmless given that the ALJ 18 provided a specific and legitimate reason for the weight provided to the opinion. Burch, 400 19 F.3d at 679; Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012). 20 D. Third Party Testimony 21 Plaintiff contends that the ALJ erred in considering the testimony of the lay witnesses. 22 “In determining whether a claimant is disabled, an ALJ must consider lay witness testimony 23 concerning a claimant’s ability to work.” Stout v. Commissioner, Social Sec. Admin., 454 F.3d 24 1050, 1053 (9th Cir. 2006); 20 C.F.R. § 404.1513(b)(4). “Lay witness testimony is competent 25 evidence and cannot be disregarded without comment.” Bruce v. Astrue, 557 F.3d 1113, 1115 26 (9th Cir. 2009) (quoting Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996)). The ALJ must 27 give specific reasons germane to the witness in discounting the lay witness testimony. Stout, 454 1 relevant to similar testimony provided by lay witnesses, that would support a finding that the lay 2 witness testimony is similarly not credible. Molina, 674 F.3d at 1114. 3 1. Ms. Chanterie 4 Plaintiff argues that the ALJ erred by failing to provide an explanation for rejecting Ms. 5 Chanterie’s opinions about Plaintiff’s ability to attend and complete tasks and interact and relate 6 with others. Plaintiff argues that the ALJ rejected Ms. Chanterie’s opinion that Plaintiff had a 7 very serious problem completing class work and that her grades were declining and she had 8 decreased motivation. The ALJ specifically discussed Ms. Chanterie’s testimony in finding that 9 Plaintiff has no limitations in acquiring and using information as a result her ADHD. (AR 32.) 10 The ALJ considered the June 4, 2015 teacher questionnaire completed by Ms. Chanterie. 11 On June 4, 2015, Ms. Chanterie submitted a teacher questionnaire in which she reported she had known the claimant since August 12, 2014, Monday through 12 Friday for English, reading, math, science, and social studies. She reported the claimant was in fifth grade, reading at a 4.9 grade level. Her math grade was C 13 [AR 314]. She opined the claimant had no problems observed in the domain of acquiring and using information [AR 315]. 14 (AR 32.) 15 The ALJ also considered the teacher questionnaire in finding that Plaintiff had a less than 16 marked limitation in attending and completing tasks as a result of her ADHD. 17 On June 4, 2015, Ms. Chanterie reported in the domain of Attending and 18 Completing Tasks, that when the claimant was not on her medication she could be very disruptive to others. She reported that recently she had seen the claimant 19 very tired with no motivation to complete class work or homework. She identified a “very serious problem” with the claimant completing class/homework 20 assignments daily, and an obvious problem with organizing her own things like school materials, and working without distracting herself and others monthly. 21 She reported the claimant had a slight problem focusing long enough to finish assigned activities or tasks, refocusing to task when necessary, and changing from 22 one activity to another without being disruptive [AR 316]. Despite the “very serious problem” noted by the teacher, the narrative described the claimant as 23 medication improved and also noted a recent fluctuation in energy and motivation. The claimant’s previous teacher Mrs. Dorado reported on June 6, 24 2014 that at home the claimant was a good helper and mostly got along with her siblings. In class, she was very attentive, liked to please her teacher, and her 25 grades were great. She reported the claimant was a good multitasker, and was only noticeably excitable when she was not on her medications. She reported the 26 claimant was earning straight A’s and loved to write and do extra credit in the classroom [AR 634-637]. In a June 8, 2017 student progress transcript the 27 claimant achieved grades A’s and B’s in all subjects except for science and math 1 [AR 523].3 As such less than marked rating is supported. 2 (AR 34.) 3 The ALJ considered that Ms. Chanterie stated that Plaintiff was improved when she was 4 on medication and that she described a recent fluctuation in energy and motivation. But she also 5 noted the prior teacher’s report and that Plaintiff was still maintaining good grades. The ALJ did 6 not reject Ms. Chanterie’s opinion but considered it in the totality of the record. The ALJ 7 properly considered and incorporated the opinion of Ms. Chanterie and her interpretation of the 8 evidence is rational. Plaintiff disagrees with the finding that she was less than marked in this 9 area, but where the evidence is subject of more than one rational interpretation, the decision will 10 be upheld. Burch, 400 F.3d at 679; Andrews v. Shalala, 53 F.3d 1035, 1039–40 (9th Cir. 1995) 11 (The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and 12 for resolving ambiguities. Where the evidence is susceptible to more than one rational 13 interpretation the Commissioner’s decision will be upheld).4 14 2. Mr. Gonzales 15 Plaintiff argues that the ALJ failed to provide adequate reasons to reject the testimony of 16 Mr. Gonzales. But the ALJ noted multiple instances where Mr. Gonzales’s testimony was 17 inconsistent with the record, as well as a specific incident where he was untruthful about giving 18 19 3 In the transcript cited, Plaintiff was receiving a C on her semester reports. Her fourth quarter grades were As and Bs in all classes, other than a C- in math. 20 4 Plaintiff argues that the ALJ did not address Ms. Chanterie’s opinion that Plaintiff had four episodes during the 21 school year and that other kids shied away from her. However, Plaintiff has not developed this argument. Further, the ALJ did address the four episodes and that they were when Plaintiff was not on her medication. Additionally, 22 Ms. Chanterie reported that Plaintiff “has a consistent group of friends, but I noticed that most of the kids stay away from her because when she is not on medication, she is very bothersome to them and they do not like that.” (AR 23 322.) 24 In the domain of interacting and relating with others, the Commissioner considers how well the claimant initiates and sustains emotional connections with others, develops and uses the language of your community, cooperates with 25 others, complies with rules, responds to criticism, and respects and takes care of the possessions of others. 20 C.F.R. § 416.926a(i). Plaintiff does not set forth any argument explaining how Ms. Chanterie’s opinion would contradict the ALJ’s finding that Plaintiff had a less than marked limitation in reacting and relating with others, 26 especially given the fact that Ms. Chanterie stated that Plaintiff “is a very pleasant student who is always willing to lend a helping hand. . . . [H]as a consistent group of friends. I cannot say that I have had many problems with 27 Jasmine this year, because l haven’t. She was an absolute pleasure to have in class.” (AR 322.) As well as the other statements from her teachers which the ALJ considered demonstrating that Plaintiff liked to please her teachers (AR 1 Plaintiff her medication. 2 The ALJ considered the November 5, 2014 function report (AR 277-286); November 24, 3 2014 Questionnaire for Children Claiming SSI Benefits (AR 287-294); February 23, 2016 4 Questionnaire for Children Claiming SSI Benefits (AR 327-334); February 2016 letter (AR 323- 5 326); and March 30, 2016 Disability Report - Appeal (AR 344-351); in addition to specific 6 statements made by Mr. Gonzales in the opinion. (AR 27-28.) 7 The ALJ noted that on February 23, 2016, Mr. Gonzalez reported that Plaintiff was 8 engaged in mental health therapy sessions weekly (AR 328, 329, 330), but the medical evidence 9 showed that she was not in therapy with Madera County Behavioral Health from 2009 to 2015 10 (AR 725-726) and that since that time she had attended only two evaluations, a year apart, and 11 each time she was administratively discharged for failing to show up for appointments and not 12 responding to written correspondence, (AR 28-29, 1047-1078). 13 The ALJ also noted that her father had reported to the mental health workers that she was 14 suspended from school but the evidence in the record does not show that she has ever been 15 suspended. (AR 314, 322, 368, 381, 394, 452, 465, 477, 491, 505, 537, 634, 646, 835, 853, 16 1085.) The ALJ noted that Plaintiff told Dr. Portnoff that Plaintiff was hyperactive, impulsive, 17 distractible, defiant, aggressive, and that she has pushed teachers and broken a school computer. 18 (AR 29, 1085.) But the ALJ noted that the educational records do not corroborate such claims. 19 (AR 29.) Her father also reported that she was depressed with low self-esteem, has said she 20 wants to die, has social anxiety, and had daily rages that last three hours or more. (AR 29, 1085.) 21 The ALJ noted that neither the educational records nor the medical records contain complaints of 22 three hour rages. (AR 29.) As discussed above substantial evidence supports the ALJ’s finding 23 that these statements are not supported in the record. 24 The ALJ considered that on March 15, 2017, school personnel noted that Plaintiff was 25 having outbursts in class and had gone to the nurse’s office to cool down and talk. (AR 26, 450.) 26 Plaintiff reported that she was out of her medications. (AR 26, 450.) The school nurse was 27 informed by Plaintiff’s physician’s office that the last refill on Plaintiff’s medication had been a 1 contacted he stated, “Don’t let her play you, she took her medication this morning.” (AR 26, 2 450.) When he was informed of the information provided by the doctor’s office, he said he was 3 trying to get a ride to the doctor. (AR 26, 450.) 4 The ALJ found that Mr. Gonzales’s statements were not consistent with the observations 5 of the teachers and the documented attendance records. The ALJ provided germane reasons to 6 reject the testimony of Mr. Gonzales. The ALJ did consider Mr. Gonzales’s statements in 7 discussing the domains. 8 The ALJ considered that on September 12, 2016 during a mental health assessment of 9 Plaintiff her parents had reported that she was suspended that year for fighting and was engaged 10 in frequent anger outbursts, had difficulty concentrating and following directions, was engaged 11 in frequent conflicts with her siblings, had declining grades, and CPS was involved. (AR 32-33, 12 847.) 13 On August 9, 2017, her father reported that Plaintiff had exhibited hyperactivity and 14 aggression throughout her life, her moods changed quickly, she was manipulative, not 15 remorseful, barely passing her classes, had a history of suspensions from school, was aggressive 16 with her siblings, had a history of running away from home, daily violent outbursts, and that she 17 kicks doors, throws things, and is aggressive with her siblings when she is angry. (AR 33, 851, 18 853.) Plaintiff reported that she had been referred to CPS because her father had given her the 19 wrong medication when her medication ran out. (AR 33, 36, 853.) 20 The ALJ considered that on May 8, 2015, her father reported that Plaintiff was very 21 aggressive and threw knives. (AR 35, 817.) On December 22, 2015, Plaintiff’s parents reported 22 that she had been suspended from school for fighting and the educational records do not support 23 this allegation. (AR 35, 835.) They reported that her mood changes quickly, she is 24 manipulative, not remorseful, failing her classes, has been expelled from the afterschool 25 program, is aggressive with siblings, runs away from home and has daily outbursts which include 26 kicking doors and putting holes in the wall, struggles to make friends and care for herself. (AR 27 35-36, 835.) wOoOw 4:40 VV SIA UETICTIL oO PO re AY ON VI eG 1 | refills on her psychotropic medication and occasional episodes of head lice where her providers 2 | noted that she did well on her medications, other than some occasions where her father reported 3 | that they were not working and he requested a change in medication or an increase in the dose. 4 | (AR 39.) 5 The ALJ did not err in discounting Mr. Gonzales’s testimony because she provided 6 | reasons that were germane to his testimony in finding he was not credible. 7 V. 8 CONCLUSION AND ORDER 9 Based on the foregoing, the Court finds that the ALJ did not err in evaluating the opinion 10 | of Dr. Portnoff or the testimony of the lay witnesses. 11 Accordingly, IT IS HEREBY ORDERED that Plaintiff's appeal from the decision of the 12 | Commissioner of Social Security is DENIED. It is FURTHER ORDERED that judgment be 13 | entered in favor of Defendant Commissioner of Social Security and against Plaintiff Jasmine 14 | Monique Gonzales. The Clerk of the Court is directed to CLOSE this action. 15 16 IT IS SO ORDERED. OF. nf ee 17 | Dated: _ September 3, 2020_ ef UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28