(SS) Wiggins v. Commissioner of Social Security ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID LOUIS WIGGINS, JR., No. 2:20-cv-0983 DB 12 Plaintiff, 13 v. ORDER 14 KILOLO KIJAKAZI, Acting Commissioner of Social Security,1 15 16 Defendant. 17 18 This social security action was submitted to the Court without oral argument for ruling on 19 plaintiff’s motion for summary judgment and defendant’s cross-motion for summary judgment.2 20 Plaintiff’s motion argues that the Administrative Law Judge’s treatment of the medical opinion 21 evidence, plaintiff’s testimony, lay witness testimony, and step five finding were erroneous. 22 //// 23 //// 24 25 1 After the filing of this action Kilolo Kijakazi was appointed Acting Commissioner of Social Security and has, therefore, been substituted as the defendant. See 42 U.S.C. § 405(g) (referring 26 to the “Commissioner’s Answer”); 20 C.F.R. § 422.210(d) (“the person holding the Office of the Commissioner shall, in his official capacity, be the proper defendant”). 27 2 Both parties have previously consented to Magistrate Judge jurisdiction over this action 28 1 For the reasons explained below, plaintiff’s motion is granted in part, the decision of the 2 Commissioner of Social Security (“Commissioner”) is reversed, and the matter is remanded for 3 further proceedings. 4 PROCEDURAL BACKGROUND 5 On March 24, 2017, plaintiff filed an application for Supplemental Security Income 6 (“SSI”) under Title XVI of the Social Security Act (“the Act”) alleging disability beginning on 7 January 1, 2011. (Transcript (“Tr.”) at 15, 193.) Plaintiff’s alleged impairments included Valley 8 Fever, diabetes, neuropathy, depression, forgetfulness, and uncontrolled sweats. (Id. at 198.) 9 Plaintiff’s application was denied initially, (id. at 106-10), and upon reconsideration. (Id. at 119- 10 22.) 11 Plaintiff requested an administrative hearing which was held before an Administrative 12 Law Judge (“ALJ”) on November 8, 2018. (Id. at 34-72.) Plaintiff was represented by an 13 attorney and testified at the administrative hearing. (Id. at 34-43.) In a decision issued on May 9, 14 2019, the ALJ found that plaintiff was not disabled. (Id. at 28.) The ALJ entered the following 15 findings: 16 1. The claimant has not engaged in substantial gainful activity since March 24, 2017, the application date (20 CFR 416.971 et seq.). 17 2. The claimant has the following severe impairments: diabetes 18 mellitus with diabetic neuropathy; tuberculosis; and pulmonary coccidioidomycosis, also known as Valley Fever (20 CFR 19 416.920(c)). 20 3. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the 21 listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926). 22 4. After careful consideration of the entire record, the undersigned 23 finds that the claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 416.967(a) except as follows. 24 The claimant can occasionally feel with the bilateral upper extremities. He can never climb ladders, ropes, or scaffolds, but can 25 occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl. He can never work around unprotected heights, and 26 should avoid concentrated exposure to moving mechanical parts, fumes, dust, gasses, chemicals, and poorly ventilated areas. 27 28 //// 1 5. The claimant has no past relevant work (20 CFR 416.965). 2 6. The claimant was born [in] 1977 and was 40 years old, which is defined as a younger individual age 18-44, on the date the application 3 was filed (20 CFR 416.963). 4 7. The claimant has a limited education and is able to communicate in English (20 CFR 416.964). 5 8. Transferability of job skills is not an issue because the claimant 6 does not have past relevant work (20 CFR 416.968). 7 9. Considering the claimant’s age, education, work experience, and residual functional capacity, there are jobs that exist in significant 8 numbers in the national economy that the claimant can perform (20 CFR 416.969 and 416.969(a)). 9 10. The claimant has not been under a disability, as defined in the 10 Social Security Act, since March 24, 2017, the date the application was filed (20 CFR 416.920(g)). 11 12 (Id. at 18-28.) 13 On April 1, 2020, the Appeals Council denied plaintiff’s request for review of the ALJ’s 14 May 9, 2019 decision. (Id. at 1-5.) Plaintiff sought judicial review pursuant to 42 U.S.C. § 15 405(g) by filing the complaint in this action on May 15, 2020. (ECF. No. 1.) 16 LEGAL STANDARD 17 “The district court reviews the Commissioner’s final decision for substantial evidence, 18 and the Commissioner’s decision will be disturbed only if it is not supported by substantial 19 evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 1158-59 (9th Cir. 2012). 20 Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to 21 support a conclusion. Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001); Sandgathe v. 22 Chater, 108 F.3d 978, 980 (9th Cir. 1997). 23 “[A] reviewing court must consider the entire record as a whole and may not affirm 24 simply by isolating a ‘specific quantum of supporting evidence.’” Robbins v. Soc. Sec. Admin., 25 466 F.3d 880, 882 (9th Cir. 2006) (quoting Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 26 1989)). If, however, “the record considered as a whole can reasonably support either affirming or 27 reversing the Commissioner’s decision, we must affirm.” McCartey v. Massanari, 298 F.3d 28 1072, 1075 (9th Cir. 2002). 1 A five-step evaluation process is used to determine whether a claimant is disabled. 20 2 C.F.R. § 404.1520; see also Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). The five-step 3 process has been summarized as follows: 4 Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two. 5 Step two: Does the claimant have a “severe” impairment? If so, 6 proceed to step three. If not, then a finding of not disabled is appropriate. 7 Step three: Does the claimant’s impairment or combination of 8 impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App. 1? If so, the claimant is automatically determined 9 disabled. If not, proceed to step four. 10 Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five. 11 Step five: Does the claimant have the residual functional capacity to 12 perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. 13 14 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995). 15 The claimant bears the burden of proof in the first four steps of the sequential evaluation 16 process. Bowen v. Yuckert, 482 U.S. 137, 146 n. 5 (1987). The Commissioner bears the burden 17 if the sequential evaluation process proceeds to step five. Id.; Tackett v. Apfel, 180 F.3d 1094, 18 1098 (9th Cir. 1999). 19 APPLICATION 20 Plaintiff’s pending motion asserts the following four principal claims: (1) the ALJ’s 21 treatment of the medical opinion evidence constituted error; (2) the ALJ improperly rejected 22 plaintiff’s testimony; (3) the ALJ improperly rejected lay witness testimony; and (4) the ALJ 23 erred at step five of the sequential evaluation. (Pl.’s MSJ (ECF No. 19) at 13-26.3) 24 I. Medical Opinion Evidence 25 For Social Security disability cases filed prior to March 27, 2017, the weight to be given 26 to medical opinions depends in part on whether the opinions are proffered by treating, examining, 27 3 Page number citations such as this one are to the page number reflected on the court’s CM/ECF 28 1 or nonexamining health professionals.4 Lester, 81 F.3d at 830; Fair v. Bowen, 885 F.2d 597, 604 2 (9th Cir. 1989). “As a general rule, more weight should be given to the opinion of a treating 3 source than to the opinion of doctors who do not treat the claimant . . . .” Lester, 81 F.3d at 830. 4 This is so because a treating doctor is employed to cure and has a greater opportunity to know and 5 observe the patient as an individual. Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996); Bates 6 v. Sullivan, 894 F.2d 1059, 1063 (9th Cir. 1990). 7 The uncontradicted opinion of a treating or examining physician may be rejected only for 8 clear and convincing reasons, while the opinion of a treating or examining physician that is 9 controverted by another doctor may be rejected only for specific and legitimate reasons supported 10 by substantial evidence in the record. Lester, 81 F.3d at 830-31. “The opinion of a nonexamining 11 physician cannot by itself constitute substantial evidence that justifies the rejection of the opinion 12 of either an examining physician or a treating physician.” (Id. at 831.) Finally, although a 13 treating physician’s opinion is generally entitled to significant weight, “‘[t]he ALJ need not 14 accept the opinion of any physician, including a treating physician, if that opinion is brief, 15 conclusory, and inadequately supported by clinical findings.’” Chaudhry v. Astrue, 688 F.3d 661, 16 671 (9th Cir. 2012) (quoting Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 17 2009)). 18 Here, plaintiff challenges the ALJ’s treatment of the opinion offered by Faranza Nawaz 19 Ali, plaintiff’s treating physician. (Pl.’s MSJ (ECF No. 19) at 13-18.) The ALJ’s recounted Dr. 20 Ali’s opinion with respect to plaintiff’s limitations, stating: 21 In her estimation, the claimant could sit for only 45 minutes at a time but less than two hours total in an eight-hour workday and could not 22 stand at all. However, Dr. Ali also reported that the claimant required a job that permitted shifting positions between sitting, standing, and 23 walking. Additionally, Dr. Ali concluded the claimant would need to take unscheduled breaks at least every hour, and noted that she did 24 not believe the claimant was capable of any physical work. In her estimation, the claimant could rarely lift less than ten pounds, rarely 25 26 4 Effective March 27, 2017, Revisions to Rules Regarding the Evaluation of Medical Evidence 27 went into effect. Plaintiff’s application, however, was filed prior to March 27, 2017. “For claims filed before March 27, 2017, but not decided until after that date . . . the rules listed in 20 C.F.R. 28 1 stoop, and never perform other postural activities. She also assessed significant manipulative limitations bilaterally. 2 3 (Tr. at 25.) 4 The ALJ elected to afford “little weight” to Dr. Ali’s opinion. (Id. at 26.) The ALJ 5 attempted to support this finding by asserting that Dr. Ali’s opinion consisted of “filling out a pre- 6 made, conclusory form within only a few months of beginning treatment[.]” (Id.) That assertion, 7 however, is erroneous. 8 Dr. Ali had been treating plaintiff for approximately six months at the time of the opinion. 9 (Id. at 775.) Paradoxically, the ALJ afforded Dr. Ali’s opinion “little weight compared to the 10 assessments provided by Dr. Trias and Dr. Wong.” (Id. at 26.) It appears the ALJ was referring 11 to the opinions of E. Trias and B. Duoung, two non-treating, non-examining State agency 12 physicians. 13 As to the thoroughness of Dr. Ali’s opinion, the opinion is in the form of a completed 14 Physical Residual Functional Capacity Questionnaire. In completing the questionnaire Dr. Ali 15 provided thorough answers, including citations to clinical findings and test results, diagnosis, 16 objective signs, etc. (Id. at 771.) It cannot be said that Dr. Ali’s opinion was conclusory. 17 Moreover, even assuming arguendo, that Dr. Ali’s opinion consisted of only a simple 18 “check-the-box form” an ALJ is “not entitled to reject the responses of a treating physician 19 without specific and legitimate reasons for doing so, even where those responses were provided 20 on a ‘check-the-box’ form, were not accompanied by comments, and did not indicate to the ALJ 21 the basis for the physician’s answers.” Trevizo v. Berryhill, 871 F.3d 664, 677 n.4 (9th Cir. 22 2017). “[T]here is no authority that a ‘check-the-box’ form is any less reliable than any other 23 type of form; indeed, agency physicians routinely use these types of forms to assess the intensity, 24 persistence, or limiting effects of impairments.” Id; see also Rule v. Saul, 859 Fed. Appx. 754, 25 755 (9th Cir. 2021) (“Dr. Marks’s use of a check-box form alone therefore was not a specific and 26 legitimate reason for the ALJ to reject her opinion.”). 27 The ALJ also attempted to support the rejection of Dr. Ali’s opinion by noting that 28 although Dr. Ali’s own examination found plaintiff suffered from “atrophy of proximal muscles 1 and fasciculations with body movements,” an examination by a neurologist two months later 2 found “full power in the proximal and distal upper and lower limbs, as well as normal muscle 3 bulk and tone.” (Tr. at 26.) Dr. Ali’s opinion, however, was supported by treatment for several 4 diagnosis and findings. It is entirely unclear why a single examination finding relating to a 5 narrow aspect of plaintiff’s symptoms should support the rejection of a treating physician’s entire 6 opinion. 7 Accordingly, on this record the Court cannot find that the ALJ provided a specific and 8 legitimate reason for rejecting the treating physician’s opinion. Accordingly, plaintiff is entitled 9 to summary judgment on this claim. 10 II. Plaintiff’s Subjective Testimony 11 Plaintiff next challenges the ALJ’s treatment of plaintiff’s subjective testimony. (Pl.’s 12 MSJ (ECF No. 19) at 19-25.) The Ninth Circuit has summarized the ALJ’s task with respect to 13 assessing a claimant’s credibility as follows: 14 To determine whether a claimant’s testimony regarding subjective pain or symptoms is credible, an ALJ must engage in a two-step 15 analysis. First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment 16 which could reasonably be expected to produce the pain or other symptoms alleged. The claimant, however, need not show that her 17 impairment could reasonably be expected to cause the severity of the symptom she has alleged; she need only show that it could 18 reasonably have caused some degree of the symptom. Thus, the ALJ may not reject subjective symptom testimony . . . simply because 19 there is no showing that the impairment can reasonably produce the degree of symptom alleged. 20 Second, if the claimant meets this first test, and there is no evidence 21 of malingering, the ALJ can reject the claimant’s testimony about the severity of her symptoms only by offering specific, clear and 22 convincing reasons for doing so[.] 23 Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007) (citations and quotation marks 24 omitted). “The clear and convincing standard is the most demanding required in Social Security 25 cases.” Moore v. Commissioner of Social Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002). “At 26 the same time, the ALJ is not required to believe every allegation of disabling pain, or else 27 disability benefits would be available for the asking[.]” Molina v. Astrue, 674 F.3d 1104, 1112 28 (9th Cir. 2012). 1 “The ALJ must specifically identify what testimony is credible and what testimony 2 undermines the claimant’s complaints.”5 Valentine v. Commissioner Social Sec. Admin., 574 3 F.3d 685, 693 (9th Cir. 2009) (quoting Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 4 599 (9th Cir. 1999)). In weighing a claimant’s credibility, an ALJ may consider, among other 5 things, the “[claimant’s] reputation for truthfulness, inconsistencies either in [claimant’s] 6 testimony or between [her] testimony and [her] conduct, [claimant’s] daily activities, [her] work 7 record, and testimony from physicians and third parties concerning the nature, severity, and effect 8 of the symptoms of which [claimant] complains.” Thomas v. Barnhart, 278 F.3d 947, 958-59 9 (9th Cir. 2002) (modification in original) (quoting Light v. Soc. Sec. Admin., 119 F.3d 789, 792 10 (9th Cir. 1997)). If the ALJ’s credibility finding is supported by substantial evidence in the 11 record, the court “may not engage in second-guessing.” Id. 12 Here, the ALJ recounted plaintiff’s testimony and ultimately found that plaintiff’s 13 medically determinable impairments could reasonably be expected to cause the symptoms 14 alleged, but that plaintiff’s statements concerning the intensity, persistence, and limiting effects of 15 those symptoms were “not entirely consistent with the medical evidence and other evidence in the 16 record for the reason explained in [the] decision.”6 (Id.) 17 18 5 In March 2016, Social Security Ruling (“SSR”) 16-3p went into effect. “This ruling makes 19 clear what our precedent already required: that assessments of an individual’s testimony by an ALJ are designed to ‘evaluate the intensity and persistence of symptoms after the ALJ finds that 20 the individual has a medically determinable impairment(s) that could reasonably be expected to 21 produce those symptoms,’ and not to delve into wide-ranging scrutiny of the claimant’s character and apparent truthfulness.” Trevizo v. Berryhill, 871 F.3d 664, 679 (9th Cir. 2017) (quoting SSR 22 16-3p) (alterations omitted). 23 6 “ALJs routinely include this statement in their written findings as an introduction to the ALJ’s credibility determination” before “identify[ing] what parts of the claimant’s testimony were not 24 credible and why.” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1103 (9th Cir. 25 2014). “The use of this generic language is not itself reversible error . . . but it inverts the responsibility of an ALJ, which is first to determine the medical impairments of a claimant based 26 on the record and the claimant’s credible symptom testimony and only then to determine the claimant’s RFC. By rejecting a claimant’s subjective symptoms ‘to the extent they are 27 inconsistent with the above residual functional capacity assessment,’ the agency indicates that it is failing properly to incorporate a claimant’s testimony regarding subjective symptoms and pain 28 1 One reason given by the ALJ in support of this finding was plaintiff’s history of 2 noncompliance with treatment. (Id. at 24.) “Our case law is clear that if a claimant complains 3 about disabling pain but fails to seek treatment, or fails to follow prescribed treatment, for the 4 pain, an ALJ may use such failure as a basis for finding the complaint unjustified or 5 exaggerated.” Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007); see also Sager v. Colvin, 622 6 Fed. Appx. 629 (9th Cir. 2015) (“noncompliance undermines his claims of debilitating pain”). 7 Moreover, the ALJ’s finding is amply supported by the record. In this regard, there are 8 multiple instances of treating providers noting plaintiff “stopped taking” medication, had a 9 “history of noncompliance,” “noncompliance” related to “methamphetamine use,” and instances 10 where plaintiff “adamantly refuses” treatment. (Tr. at 314, 366, 456, 800). 11 Accordingly, the ALJ provided a clear and convincing reason for rejecting plaintiff’s 12 testimony. Plaintiff, therefore, is not entitled to summary judgment on this claim. 13 III. Lay Witness Testimony 14 Plaintiff also argues that the ALJ improperly rejected lay witness testimony. (Pl.’s MSJ 15 (ECF No. 19) at 23-25.) The testimony of lay witnesses, including family members and friends, 16 reflecting their own observations of how the claimant’s impairments affect her activities must be 17 considered and discussed by the ALJ. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 18 2006); Smolen, 80 F.3d at 1288. Persons who see the claimant on a daily basis are competent to 19 testify as to their observations. Regennitter, 166 F.3d at 1298; Dodrill v. Shalala, 12 F.3d 915, 20 918-19 (9th Cir. 1993). If the ALJ chooses to reject or discount the testimony of a lay witness, he 21 or she must give reasons germane to each particular witness in doing so. Regennitter, 166 F.3d at 22 1298; Dodrill, 12 F.3d at 919. 23 Here, the ALJ acknowledged the lay witness statement submitted by plaintiff’s aunt. (Tr. 24 at 26.) The ALJ afforded that testimony “little weight” due to the testimony’s “inconsistencies 25 with the objective evidence of record,” and plaintiff’s “subjective symptom reports.” (Id.) As 26 noted above, the ALJ provided a clear and convincing reason for rejecting plaintiff’s testimony. 27 The ALJ may reject lay witness testimony where “the ALJ’s well-supported reasons for rejecting 28 //// 1 the claimant’s testimony apply equally well to the lay witness testimony[.]” Molina v. Astrue, 2 674 F.3d 1104, 1117 (9th Cir. 2012). 3 Accordingly, the Court finds that the ALJ offered a germane reason for rejecting the lay 4 witness testimony. Accordingly, plaintiff is also not entitled to summary judgment on the claim 5 that the ALJ’s treatment of the lay witness testimony constituted error. 6 IV. Step Five Finding 7 Plaintiff’s final claim is that the ALJ’s finding as step five of the sequential evaluation 8 was not supported by substantial evidence. (Pl.’s MSJ (ECF No. 19) at 25-26.) At step five of 9 the sequential evaluation, “the Commissioner has the burden ‘to identify specific jobs existing in 10 substantial numbers in the national economy that a claimant can perform despite his identified 11 limitations.’” Zavalin v. Colvin, 778 F.3d 842, 845 (9th Cir. 2015) (quoting Johnson v. Shalala, 12 60 F.3d 1428, 1432 (9th Cir. 1995)) (alterations omitted). The ALJ can meet her burden by either 13 taking the testimony of a Vocational Expert (“VE”) or by referring to the grids. See Lounsburry 14 v. Barnhart, 468 F.3d 1111, 1114-15 (9th Cir. 2006). Here, the ALJ relied on the testimony of a 15 VE. (Tr. at 27.)_ 16 While an ALJ may pose a range of hypothetical questions to a vocational expert (“VE”) 17 based on alternate interpretations of the evidence, the hypothetical question that ultimately serves 18 as the basis for the ALJ’s determination, i.e., the hypothetical question that is predicated on the 19 ALJ’s final residual functional capacity assessment, must account for all of the limitations and 20 restrictions of the particular claimant. Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 21 (9th Cir. 2009). “If an ALJ’s hypothetical does not reflect all of the claimant’s limitations, then 22 the expert’s testimony has no evidentiary value to support a finding that the claimant can perform 23 jobs in the national economy.” Id. (citation and quotation marks omitted); see also Taylor v. 24 Commissioner of Social Sec. Admin., 659 F.3d 1228, 1235 (9th Cir. 2011) (“Because neither the 25 hypothetical nor the answer properly set forth all of Taylor’s impairments, the vocational expert’s 26 testimony cannot constitute substantial evidence to support the ALJ’s findings.”). 27 //// 28 //// 1 Here, because the ALJ erroneously rejected Dr. Ali’s medical opinion the ALJ’s 2 hypothetical question to the VE did not account for the limitations established by that evidence. 3 (Tr. at 66-75.) 4 Accordingly, plaintiff is also entitled to summary judgment on the claim that the ALJ 5 committed an error at step five of the sequential evaluation. 6 CONCLUSION 7 After having found error, “‘[t]he decision whether to remand a case for additional 8 evidence, or simply to award benefits[,] is within the discretion of the court.’” Trevizo, 871 F.3d 9 at 682 (quoting Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987)). A case may be 10 remanded under the “credit-as-true” rule for an award of benefits where: 11 (1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to 12 provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly 13 discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand. 14 15 Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). 16 Even where all the conditions for the “credit-as-true” rule are met, the court retains 17 “flexibility to remand for further proceedings when the record as a whole creates serious doubt as 18 to whether the claimant is, in fact, disabled within the meaning of the Social Security Act.” Id. at 19 1021; see also Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) (“Unless the district court 20 concludes that further administrative proceedings would serve no useful purpose, it may not 21 remand with a direction to provide benefits.”); Treichler v. Commissioner of Social Sec. Admin., 22 775 F.3d 1090, 1105 (9th Cir. 2014) (“Where . . . an ALJ makes a legal error, but the record is 23 uncertain and ambiguous, the proper approach is to remand the case to the agency.”). 24 Here, the Court cannot find that further administrative proceedings would serve no useful 25 purpose. This matter, therefore, will be remanded for further proceedings. 26 Accordingly, IT IS HEREBY ORDERED that: 27 1. Plaintiff’s motion for summary judgment (ECF No. 16) is granted in part and denied in 28 part; 1 2. Defendant’s cross-motion for summary judgment (ECF No. 18) is granted in part and 2 | denied in part; 3 3. The Commissioner’s decision is reversed; 4 4. This matter is remanded for further proceedings consistent with this order; and 5 5. The Clerk of the Court shall enter judgment for plaintiff, and close this case. 6 | Dated: September 2, 2022 7 8 9 ‘BORAH BARNES UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 | DLB:6 DB\orders\orders.soc sec\wiggins0983.ord 26 27 28 12