(SS) Lamb v. Commissioner of Social Security ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL L. LAMB, Case No. 1:21-cv-01636-HBK 12 Plaintiff, OPINION AND ORDER TO REMAND CASE TO COMMISSIONER1 13 v. (Doc. No. 19, 22) 14 KILOLO KIJAKAZI, COMMISSIONER OF SOCIAL 15 SECURITY, 16 Defendant. 17 18 19 Michael L. Lamb (“Plaintiff”) seeks judicial review of a final decision of the 20 Commissioner of Social Security (“Commissioner” or “Defendant”) denying his application for 21 supplemental security income under the Social Security Act. (Doc. No. 1). The matter is 22 currently before the Court on the parties’ briefs, which were submitted without oral argument. 23 (Doc. Nos. 19, 22-23). For the reasons stated , the Court orders this matter REMANDED for 24 further administrative proceedings. 25 I. JURISDICTION 26 Plaintiff filed for supplemental security income on November 30, 2002. (AR 169). 27 1 Both parties have consented to the jurisdiction of a magistrate judge, in accordance with 28 U.S.C. §636(c)(1). (Doc. No. 10). 28 1 Benefits were awarded as of March 28, 2001, in a decision dated April 21, 2003. (AR 169, 649). 2 On December 28, 2016, after a periodic review, it was determined that Plaintiff was no longer 3 disabled as of December 1, 2016. (AR 197-99). Plaintiff filed a request for reconsideration on 4 March 8, 2017. (AR 203-04). After a hearing by a state agency hearing office, the decision was 5 upheld on November 16, 2017. (AR 221-32). Plaintiff requested further review and appeared 6 before an Administrative Law (“ALJ”) on November 7, 2018. (AR 89-168). Plaintiff was 7 represented by counsel and testified at the hearing. (Id.). On January 2, 2019, the ALJ issued an 8 unfavorable decision (AR 8-22), and on February 5, 2020, the Appeals Council denied review 9 (AR 1-7). 10 On December 11, 2020, the United States District Court for the Northern District of 11 California granted the parties’ stipulated motion to remand the case for further proceedings. (AR 12 745-52). On February 23, 2021, the Appeals Council vacated the ALJ’s finding and remanded 13 for further administrative proceedings including the opportunity for a hearing. (AR 753-63). On 14 June 28, 2021, Plaintiff appeared for an additional hearing before the ALJ. (AR 671-736). 15 Plaintiff was represented by counsel and testified at the hearing. (Id.). On September 1, 2021, 16 the ALJ issued an unfavorable decision. (AR 646-70). The matter is now before this Court 17 pursuant to 42 U.S.C. § 1383(c)(3). 18 II. BACKGROUND 19 The facts of the case are set forth in the administrative hearing and transcripts, the ALJ’s 20 decision, and the briefs of Plaintiff and Commissioner. Only the most pertinent facts are 21 summarized here. 22 Plaintiff was 44 years old at the time of the 2021 hearing. (AR 683). He did not graduate 23 high school but has a GED. (Id.). Plaintiff has no past relevant work. (AR 684-85). He lives 24 with his mother. (See AR 878). Plaintiff testified that he has diabetic neuropathy and takes 25 medicine to control his diabetes, and has had surgery for a cataract in his left eye. (AR 708-09, 26 711-12). He reported it takes him two to three hours to grocery shop by himself, he needs to be 27 reminded to take his medication, and he gets “tired” of taking his medication because it is 28 “tedious.” (AR 723-24). 1 Plaintiff’s mother provided a written declaration on July 7, 2021 stating that Plaintiff has 2 diarrhea and nausea at times and when he does not make it to the bathroom he leaves the mess for 3 her to clean up; he “hoards everything”; he does his laundry once every 3-4 months and wears the 4 same outfit for an entire week; he will not allow her to do his laundry because she will not wash it 5 twice; he showers once a week for 3 hours; he washes his sandals in the dishwasher; he put his 6 clothes in the freezer after the cat “touched them”; he always recooks things in the microwave if 7 she touches it because it is not “clean enough”; and he mostly stays in his room. (AR 877-78). 8 III. STANDARD OF REVIEW 9 A district court’s review of a final decision of the Commissioner of Social Security is 10 governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is limited; the 11 Commissioner’s decision will be disturbed “only if it is not supported by substantial evidence or 12 is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). “Substantial 13 evidence” means “relevant evidence that a reasonable mind might accept as adequate to support a 14 conclusion.” Id. at 1159 (quotation and citation omitted). Stated differently, substantial evidence 15 equates to “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 16 citation omitted). In determining whether the standard has been satisfied, a reviewing court must 17 consider the entire record as a whole rather than searching for supporting evidence in isolation. 18 Id. 19 In reviewing a denial of benefits, a district court may not substitute its judgment for that of 20 the Commissioner. “The court will uphold the ALJ's conclusion when the evidence is susceptible 21 to more than one rational interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 22 2008). Further, a district court will not reverse an ALJ’s decision on account of an error that is 23 harmless. Id. An error is harmless where it is “inconsequential to the [ALJ’s] ultimate 24 nondisability determination.” Id. (quotation and citation omitted). The party appealing the ALJ’s 25 decision generally bears the burden of establishing that it was harmed. Shinseki v. Sanders, 556 26 U.S. 396, 409-10 (2009). 27 //// 28 //// 1 IV. SEQUENTIAL EVALUATION PROCESS 2 The Commissioner has established a multi-step sequential evaluation process for 3 determining whether a person's disability has ended. 20 C.F.R. §§ 404.1594(f), 416.994(b)(5). 4 This multi-step continuing disability review process is similar to the five-step sequential 5 evaluation process used to evaluate initial claims, with additional attention as to whether there has 6 been medical improvement. Compare 20 C.F.R. § 404.1520 and 416.920 with § 404.1594(f) and 7 416.994(b)(5), respectively. A claimant is disabled only if his impairment is “of such severity 8 that he is not only unable to do his previous work[,] but cannot, considering his age, education, 9 and work experience, engage in any other kind of substantial gainful work which exists in the 10 national economy.” 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). 11 Determination of whether a person's eligibility has ended for disability benefits involves 12 an eight-step process under Title II and a seven-step process under Title XVI. 20 C.F.R. §§ 13 404.1594(f)(1)-(8), 416.994(b)(5)(i)-(vii). The Title XVI process is identical to the Title II 14 process, except for the consideration of substantial gainful activity at the beginning of the 15 disability insurance process and not during the Title XVI process. These otherwise identical steps 16 are broadly summarized as follows. 17 The first step determines whether the claimant has an impairment or combination of 18 impairments that meet or equal the severity of listed impairments set forth at 20 C.F.R. pt. 404, 19 subpt. P, app. 1. 20 C.F.R. §§ 416.920(d), 416.994(b)(5)(i). If the impairment does not equal a 20 listed impairment, the second step addresses whether there has been medical improvement in the 21 claimant's condition. 20 C.F.R. § 416.994(b)(5)(ii). Medical improvement is “any decrease in 22 the medical severity” of the impairment that was present at the time the individual was disabled 23 or continued to be disabled. 20 C.F.R. § 416.994(b)(1)(i). If there has been medical 24 improvement, at step three, a determination is made whether such improvement is related to the 25 claimant's ability to perform work—that is, whether there has been an increase in the individual's 26 residual functional capacity. 20 C.F.R. § 416.994(b)(iii). If the answer to step three is yes, the 27 Commissioner skips to step five and inquires whether all of the claimant's current impairments in 28 combination are severe. 1 If there has been no medical improvement or medical improvement is not related to the 2 claimant's ability to work, the evaluation proceeds to step four. At step four, consideration is 3 given to whether the case meets any of the special exceptions to medical improvement for 4 determining that disability has ceased. 20 C.F.R. § 416.994(b)(5)(iv). At step five, if medical 5 improvement is shown to be related to the claimant's ability to work, a determination will be 6 made to assess whether the claimant's current impairments in combination are severe—that is, 7 whether they impose more than a minimal limitation on his physical or mental ability to perform 8 basic work activities. 20 C.F.R. § 416.994(b)(5)(v). If the answer to that inquiry is yes, at step 9 six the ALJ must determine whether the claimant can perform past relevant work. 20 C.F.R. §§ 10 416.994(b)(5)(vi), 416.920(e); SSR 82-61, available at 1982 WL 31387. 11 Finally, at step seven, if the claimant cannot perform past relevant work, a limited burden 12 of production shifts to the Commissioner to prove there is alternative work in the national 13 economy that the claimant can perform given his age, education, work experience, and residual 14 functional capacity. 20 C.F.R. § 416.994(b)(5)(vii). If the claimant cannot perform a significant 15 number of other jobs, he remains disabled despite medical improvement; if, however, he can 16 perform a significant number of other jobs, disability ceases. Id. 17 Prior to the final step, the burden to prove disability and continuing entitlement to 18 disability benefits is on the claimant. 20 C.F.R. § 416.994; cf. Bowen v. Yuckert, 482 U.S. 137, 19 146 n. 5 (1987). The Commissioner must consider all evidence without regard to prior findings 20 and there must be substantial evidence that medical improvement has occurred. 42 U.S.C. §§ 21 423(f)(1), 1382c(a)(4). The Commissioner views the evidence in a continuing disability review 22 from a neutral perspective, without any initial inference as to the existence of disability being 23 drawn from a prior finding of disability. 42 U.S.C. §§ 423(f)(1), 1382c(a)(4). If the analysis 24 proceeds to step seven, the burden shifts to the Commissioner to establish that (1) the claimant is 25 capable of performing other work; and (2) such work “exists in significant numbers in the 26 national economy.” Cf. Bowen v. Yuckert, 482 U.S. at 146 n. 5; and Beltran v. Astrue, 700 F.3d 27 386, 389 (9th Cir. 2012) (applying the same burden at the initial disability determination). 28 //// 1 V. ALJ’S FINDINGS 2 Initially, the ALJ found that Plaintiff had the following medically determinable 3 impairments at the time of the comparison point decision (CPD)2 on April 21, 2003: anxiety 4 related disorders. (AR 652). The ALJ noted that since December 1, 2016, the claimant has had 5 the following medically determinable impairments: obsessive-compulsive disorder; generalized 6 anxiety disorder; unspecified depressive disorder; attention-deficit disorder; type 2 diabetes 7 mellitus; obesity; and cataract of the left eye, status post extraction. (AR 652). At step one, the 8 ALJ found that since December 1, 2016, Plaintiff has not had an impairment or combination of 9 impairments that meets or medically equals the severity of one of the listed impairments in 20 10 C.F.R. Part 404, Subpt. P, App’x 1. (AR 652). At step two, the ALJ found medical improvement 11 occurred on December 1, 2016. (AR 654). At step three, the ALJ found Plaintiff’s medical 12 improvement was related to his ability to work because by the CPD his impairments no longer 13 met or medically equaled the same listing that was met at the time of the CPD. (AR 655). Thus, 14 the ALJ skipped to step five and found that since December 1, 2016, Plaintiff has continued to 15 have a severe impairment or combination of impairments. (AR 655). At step six, the ALJ found 16 that, since December 1, 2016, Plaintiff had the residual functional capacity (RFC) to 17 perform light work as defined in 20 CFR 404.1567(b) except with the following limitations. Lift and carry are 20 pounds occasionally 18 and 10 pounds frequently. Stand and walk is 6 out of 8 hours. Sit is 6 out of 8 hours. He can occasionally climb stairs and ramps, never 19 climb ladders, scaffolds, and ropes, and can occasionally balance, stoop, kneel, crouch, and crawl. Reaching, handling, and fingering 20 are all frequent bilaterally. There are no limits on hearing, seeing, and speaking. He should avoid exposure to extremes of heat; 21 however, there are no limits with regard to wet, noise, vibration, fumes, dust, odors, and gases. He should never work off unprotected 22 heights nor large, dangerous, moving machinery. He can do simple, routine tasks but cannot do detailed tasks and cannot do complex 23 tasks. He can relate appropriately with the public but only occasionally. He can relate appropriately with supervisors but only 24 occasionally. He can relate appropriately with co-workers but only occasionally. In a work setting with simple, routine tasks, he can 25 respond appropriately to work pressures, can sustain routine and regular attendance, and can work a full day with only the usual 26 27 2 As noted by the ALJ, the comparison point decision (CPD) is the most recent favorable medical decision finding Plaintiff was disabled. Here, that determination was dated April 21, 2003. (AR 28 50). 1 breaks. He can regulate emotions and control behavior. He can respond appropriately to work changes. 2 (AR 656). The ALJ then determined that Plaintiff has no past relevant work. (AR 662). Finally, 3 at step seven, the ALJ found that since December 1, 2016, considering Plaintiff’s age, education, 4 work experience, and RFC, there are jobs that exist in significant numbers in the national 5 economy that Plaintiff has been able to perform including cleaner, marker, and small products 6 assembler. (AR 663-64). On that basis, the ALJ concluded that Plaintiff’s disability ended on 7 December 1, 2016, and Plaintiff has not become disabled again since that date. (AR 664). 8 V. ISSUES 9 Plaintiff seeks judicial review of the Commissioner’s final decision denying him 10 supplemental security income benefits under Title XVI of the Social Security Act. (Doc. No. 1). 11 Plaintiff raises the following issues for this Court’s review: 12 1. Whether the ALJ properly found medical improvement as of December 1, 2016; 13 2. Whether the ALJ properly considered Plaintiff’s symptom claims; 14 3. Whether the ALJ properly considered the lay witness testimony; and 15 4. Whether the ALJ erred at step five. 16 (Doc. No. 19 at 14-30). In response, Defendant filed a motion to remand conceding that the ALJ 17 failed to properly consider the medical opinion evidence and failed to properly evaluate Plaintiff’s 18 obsessive compulsive disorder (OCD) in the entire record, including the lay testimony from 19 Plaintiff’s mother. (Doc. No. 22 at 5-8). Because Defendant agrees that remand is appropriate, 20 the only issue before the Court is whether to remand for further proceedings or reverse and 21 remand for award of benefits. 22 //// 23 VI. DISCUSSION 24 The decision whether to remand for further proceedings or reverse and award benefits is 25 within the discretion of the district court. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 26 1989). An immediate award of benefits is appropriate where “no useful purpose would be served 27 by further administrative proceedings, or where the record has been thoroughly developed,” 28 1 Varney v. Sec'y of Health & Human Servs., 859 F.2d 1396, 1399 (9th Cir. 1988), or when the 2 delay caused by remand would be “unduly burdensome[.]” Terry v. Sullivan, 903 F.2d 1273, 3 1280 (9th Cir. 1990); see Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir. 2014) (noting that a 4 district court may abuse its discretion not to remand for benefits when all of these conditions are 5 met). This policy is based on the “need to expedite disability claims.” Varney, 859 F.2d at 1401. 6 Courts have credited evidence and remanded for an award of benefits where: (1) the ALJ has 7 failed to provide legally sufficient reasons for rejecting such evidence; (2) the record has been 8 fully developed and there are no outstanding issues that must be resolved before a disability 9 determination can be made; and (3) it is clear from the record that the ALJ would be required to 10 find the claimant disabled were such evidence credited. See Treichler v. Comm’r of Soc. Sec. 11 Admin., 775 F.3d 1090, 1100-02 (9th Cir. 2014); Revels v. Berryhill, 874 F.3d 648, 668 (9th Cir. 12 2017); Garrison, 759 F.3d at 1020 (citations omitted). 13 However, even where the three prongs have been satisfied, the Court will not remand for 14 immediate payment of benefits if “the record as a whole creates serious doubt that a claimant is, 15 in fact, disabled.” Garrison, 759 F.3d at 1021; Leon v. Berryhill, 880 F.3d 1041, 1047 (9th Cir. 16 2017) (it is only “rare circumstances that result in a direct award of benefits” and “only when the 17 record clearly contradicted an ALJ’s conclusory findings and no substantial evidence within the 18 record supported the reasons provided by the ALJ for denial of benefits.”). Thus, where there are 19 outstanding issues that must be resolved before a determination can be made, and it is not clear 20 from the record that the ALJ would be required to find a claimant disabled if all the evidence 21 were properly evaluated, remand for further proceedings is appropriate. See Benecke v. Barnhart, 22 379 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel, 211 F.3d 1172, 1179-80 (9th Cir. 2000). 23 Plaintiff argues the Court should remand the case for immediate payment of benefits 24 because the record is fully developed, and if the improperly rejected evidence is credited as true 25 the ALJ “would be required to find [Plaintiff’s] disability did not cease on 12/1/16 and that 26 [Plaintiff] remains disabled.” (Doc. No. 19 at 30 (“As in Garrison, there can be no ‘serious 27 doubt’ that [Plaintiff] is disabled.”)). Defendant concedes that the matter should be remanded, 28 but argues it should be remanded for further administrative proceedings for several reasons. First, 1 Defendant argues remand is necessary because the ALJ incorrectly applied the revised regulations 2 to evaluate medical opinion evidence. For claims filed on or after March 27, 2017, new 3 regulations apply that change the framework for how an ALJ must evaluate medical opinion 4 evidence. Revisions to Rules Regarding the Evaluation of Medical Evidence, 2017 WL 168819, 5 82 Fed. Reg. 5844-01 (Jan. 18, 2017); 20 C.F.R. § 416.920c. The new regulations provide that 6 the ALJ will no longer “give any specific evidentiary weight…to any medical opinion(s)…” 7 Revisions to Rules, 2017 WL 168819, 82 Fed. Reg. 5844, at 5867-68; see 20 C.F.R. § 8 404.1520c(a). Instead, an ALJ must consider and evaluate the persuasiveness of all medical 9 opinions or prior administrative medical findings from medical sources. 20 C.F.R. § 416.920c(a)- 10 (c) (identifying supportability and consistency as the most important factors, and therefore 11 requiring the ALJ to explain how both factors were considered). In contrast, for claims filed 12 before March 27, 2017, a treating physician’s opinion generally carried more weight than an 13 examining physician’s opinion, and an examining physician’s opinion carried more weight than a 14 reviewing physician’s opinion. 20 C.F.R. § 416.927(c); see also Holohan v. Massanari, 246 15 F.3d 1195, 1201–02 (9th Cir. 2001); Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) 16 (“To reject an uncontradicted opinion of a treating or examining doctor, the ALJ must state clear 17 and convincing reasons that are supported by substantial evidence. If a treating or examining 18 doctor’s opinion is contradicted by another doctor’s opinion, an ALJ may only reject it by 19 providing specific and legitimate reasons that are supported by substantial evidence.”). 20 As noted by Defendant, 21 [t]he decision at issue in this case was made pursuant to a [Continuing Disability Review “CDR” conducted on December 28, 22 2016, that found Plaintiff was no longer disabled as of December 2016]. The agency issued revised instructions (which took effect on 23 August 25, 2021, prior to the decision in this case) regarding which medical evidence rules apply in CDR cases. The instructions 24 clarified that when a CDR is at issue, the ALJ must use the prior medical rules when (as here) the initial claim was filed before March 25 27, 2017, and there was no additional CDR after March 27, 2017. Here the relevant ALJ decision was issued on September 1, 2021, 26 after the revised instructions took effect. Under the revised instructions, the ALJ was required to apply the older regulations, 20 27 C.F.R. § 416.927, to evaluate the medical opinion evidence. However, the ALJ incorrectly use the revised regulations when 28 evaluating the medical opinions. Among other things, the ALJ 1 assessed the persuasiveness of the medical opinions instead of assigning them weight. In addition, the ALJ did not analyze whether 2 the opinion of Plaintiff’s treating physician, Neha Chandra, M.D. was entitled to controlling weight, as required under the prior 3 regulations. 4 (Doc. No. 22 at 6 (citing Hearings, Appeals, and Litigation Law Manual (HALLEX) I-5-3-30, § 5 IV.E-F, available at 2017 WL 1362776, at *4-5). Plaintiff did not respond to this argument in his 6 reply brief. (See generally Doc. No. 23). 7 In determining whether to credit the medical opinion evidence and remand for benefits, 8 the first step is clearly met. As noted by Defendant, and unchallenged by Plaintiff, the ALJ 9 incorrectly evaluated all of the medical opinion evidence under the revised regulations. However, 10 as recently determined in Thomas v. Saul, 2021 WL 2646908 (C.D. Cal. Jun. 25, 2021), “[i]n 11 conducting the second step, the Court considers whether there are inconsistencies between the 12 improperly rejected evidence and the medical evidence in the record. Here, further administrative 13 proceedings are necessary because the ALJ’s analysis and opinion is derived from an application 14 of the incorrect legal standard.” Thomas, 2021 WL 2646908, at *3 (citing Dominguez v. Colvin, 15 808 F.3d 403, 407 (9th Cir. 2015)). As in Thomas, the Appeals Council in the instant case also 16 explicitly instructed that the ALJ should apply the “old rules” in considering the medical opinion 17 evidence, consistent with HALLEX I-5-3-30. (AR 756-57). The medical opinion evidence must 18 be properly reevaluated under the correct legal standard on remand. 19 In his opening brief, Plaintiff argues the ALJ improperly found medical improvement as 20 of December 1, 2016, in large part because the ALJ improperly relied on the medical expert 21 opinion testimony, and “parsed the evidence and downplayed the significance of [Plaintiff’s] 22 obsessive compulsive disorder, and limitations.” (Doc. No. 19 at 15-21). Plaintiff also argues the 23 ALJ improperly rejected Plaintiff’s testimony and his mother’s lay witness testimony, and the 24 ALJ’s finding at step five is not supported by substantial evidence. (Id. at 21-31). Defendant 25 concedes remand is necessary to properly evaluate Plaintiff’s claimed impairment of OCD, 26 including his own testimony and his mother’s reports concerning that impairment. (Doc. No. 22 27 at 6-7). Because the analysis of medical improvement, Plaintiff’s symptom claims, the lay 28 witness testimony, and the findings at step five are dependent on the ALJ’s reevaluation of the 1 medical opinion evidence and Plaintiff’s claimed impairment of OCD, it is unnecessary for the 2 Court to address these challenges here. 3 On reply, Plaintiff additionally argues this case should be remanded for immediate 4 reinstatement of benefits because it has been previously remanded and Plaintiff has been waiting 5 six years for a decision. (Doc. No. 23 at 18). The Court is sympathetic to further delay in 6 resolution of Plaintiff’s disability status; however, this alone cannot provide a basis to award 7 benefits. See Treichler, 775 F.3d at 1106. For all of the reasons discussed supra, the Court finds 8 that further administrative proceedings are appropriate. Defendant concedes the ALJ improperly 9 considered Plaintiff’s claimed impairment of OCD and all of the medical opinion evidence, which 10 calls into question whether the finding of medical improvement, assessed RFC, and resulting 11 hypothetical propounded to the vocational expert, are supported by substantial evidence. 12 “Where,” as here, “there is conflicting evidence, and not all essential factual issues have been 13 resolved, a remand for an award of benefits is inappropriate.” Id. at 1101. On remand, the ALJ 14 should reevaluate Plaintiff’s symptom claims and the lay witness testimony, particularly as to 15 Plaintiff’s OCD. The ALJ should reconsider the medical opinion evidence, and provide legally 16 sufficient reasons for evaluating the opinions, supported by substantial evidence. If necessary, 17 the ALJ should order additional consultative examinations, and, if appropriate, take additional 18 testimony from medical experts. The ALJ should conduct a new sequential analysis, reevaluate 19 whether medical improvement occurred, and, if necessary, reassess Plaintiff’s RFC and take 20 additional testimony from a vocational expert to include all the limitations credited by the ALJ. 21 //// 22 Accordingly, it is ORDERED: 23 1. Plaintiff’s Motion for Summary Judgment (Doc. No. 19) is GRANTED in part. 24 2. Defendant’s Motion to Remand (Doc. No. 22) is GRANTED. 25 3. Pursuant to sentence four of 42 U.S.C.§ 405(g), the Court REVERSES the 26 Commissioner’s decision and REMANDS this case back to the Commissioner of 27 Social Security for further proceedings consistent with this Order. 28 4. An application for attorney fees may be filed by separate motion. 1 5. The Clerk shall enter judgment in favor of Plaintiff, terminate any motions and 2 deadlines, and close this case. 3 * | Dated: _ October 2. 2023 Wile. Th fares Hack 5 HELENA M. BARCH-KUCHTA ‘ UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12