Troxler v. Kijakazi ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KATHERINE T., Case No.: 22cv396 12 Plaintiff, ORDER ON JOINT MOTION [Doc. 13 v. No. 13] 14 KILOLO KIJAKAZI, 15 Defendant. 16 17 Plaintiff Katherine T. filed this action challenging the final decision of the 18 Commissioner of Social Security denying plaintiff’s claim for benefits. Doc. No. 1. This 19 Court directed the parties to explore informal resolution of the matter through the meet- 20 and-confer process, but the parties were unable to resolve the case on their own. Doc. Nos. 21 8, 10. On October 25, 2022, the parties filed a Joint Motion for Judicial Review. Doc. No. 22 13 (the “Joint Motion”). Having reviewed the parties’ briefing and the Administrative 23 Record (“AR”), the Court VACATES the decision of the Commissioner in this matter and 24 REMANDS for further proceedings as set forth in this Order. 25 // 26 // 27 // 28 // 1 I. BACKGROUND 2 Plaintiff applied for Disability Insurance Benefits on September 23, 2019. AR 148- 3 149.1 The claim was denied initially on March 10, 2020. Id. at 76-79. Plaintiff requested 4 reconsideration, but her claim was once-again denied on June 4, 2020. Id. at 86-90. On 5 June 8, 2020, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). 6 Id. at 92-93. Plaintiff and her attorney appeared before the ALJ on December 8, 2020. See 7 id. at 29-44. Plaintiff’s attorney and the ALJ both examined plaintiff at the hearing, and the 8 ALJ received testimony from a vocational expert. See id. After reviewing the documentary 9 evidence in the record and hearing the witnesses’ testimony, the ALJ ultimately concluded 10 plaintiff was not disabled. See AR 24. 11 The ALJ’s decision followed the five steps prescribed by applicable regulations 12 under which the ALJ must sequentially determine (1) if the claimant is engaged in 13 substantial gainful employment; (2) whether the claimant suffers from a “severe” 14 impairment; (3) if any impairment meets or is medically equal to one of the impairments 15 identified in the regulatory Listing of Impairments; (4) the claimant’s residual functional 16 capacity (“RFC”) and whether the claimant could perform any past relevant work; and (5) 17 whether a claimant can make an adjustment to other work based on his or her RFC. See 20 18 C.F.R. § 404.1250(a)(4); AR 16-17. The ALJ’s evaluation ends if at any individual step 19 the ALJ finds the claimant is or is not disabled. See 20 C.F.R. § 404.1250(a)(4). 20 First, the ALJ determined plaintiff had not engaged in substantial gainful activity 21 because plaintiff had not participated in any work activity since August 31, 2018. AR 17. 22 Second, the ALJ determined plaintiff had the following “severe” impairments within the 23 meaning of 20 C.F.R. § 404.1520(c): “spine disorders including history of compression 24 fractures and degenerative changes in the cervical and lumbar spines with associated multi 25 body area pain.” Id. at 18. The ALJ also determined that claimant has the following non- 26 27 1 The Court adopts the parties’ citations to the certified record in this matter. All other 28 1 severe mental impairments: anxiety and depressive bipolar disorder. Id. Third, the ALJ 2 found plaintiff did not have any impairment “that meets or medically equals the severity of 3 one of the listed impairments in [the applicable regulations].” Id. at 20. Fourth, the ALJ 4 determined, based on “careful consideration of the entire record,” plaintiff had “the residual 5 functional capacity to perform light work as defined in 20 § C.F.R. 404.1567(b) except 6 [she] can lift and[/or] carry 10 lbs. frequently and 20 lbs occasionally; stand and/or walk 7 for 6-hours in an 8-hour workday; sit for 6-hours in an 8-hour workday; occasionally climb 8 ramps and stairs, however, never climb ladders, ropes, or scaffolds; frequently balance, 9 frequently stoop; frequently kneel; frequently crouch; occasionally crawl; avoid 10 unprotected heights and dangerous moving machinery.” Id. at 20-21. 11 Fifth, having determined plaintiff’s RFC, the ALJ found plaintiff was “capable of 12 performing past relevant work as a[n] executive assistant” because such work “does not 13 require the performance of work-related activities precluded by” plaintiff’s RFC. Id. at 25. 14 The ALJ accordingly found plaintiff was not disabled. Id. The Appeals Council denied 15 plaintiff’s request to review the ALJ’s decision, which made the ALJ’s decision the final 16 decision of the Commissioner. Id. at 1. Plaintiff subsequently filed this case challenging 17 the Commissioner’s decision. Doc. No. 1. The matter is now ripe for decision by this Court 18 upon the parties’ Joint Motion. Doc. No. 13. 19 II. DISPUTED ISSUES 20 The parties jointly assert the sole issue in dispute is whether the ALJ erred in finding 21 Plaintiff’s mental impairment non-severe. Doc. No. 13 at 3. Plaintiff avers the ALJ erred 22 by improperly disregarding the opinion of plaintiff’s treating physician, Dr. Gregory 23 Paniccia, whose opinion plaintiff characterizes as precluding plaintiff from working a 24 normal workday or a normal workweek. Doc. No. 13 at 4. Plaintiff argues the ALJ should 25 have given special deference to Dr. Paniccia’s opinion over that of examining psychologist 26 Dr. Jessica Durr. See id. at 5-6. Defendant argues plaintiff analyzes the ALJ’s decision 27 using the incorrect legal standard and ignores the substantial evidence supporting the ALJ’s 28 finding that plaintiff’s impairment is not severe. See id. at 6-9. 1 Notwithstanding how the parties label the issue as limited to the ALJ’s conclusion 2 at step two, the substance of the dispute presented to the Court is broader. “[C]ourts 3 consistently prioritize the substance and function over form when characterizing the nature 4 of a dispute or claim.” AT&T Mobility LLC v. Bernardi, C 11-03992 CRB, 2011 U.S. Dist. 5 LEXIS 124084, at *17-18 (N.D. Cal. Oct. 26, 2011) (collecting cases). Not only do the 6 parties discuss the ALJ’s reasoning at step two—which pertains to the severity of a 7 plaintiff’s impairments—they also debate the correctness of the ALJ’s reasoning at step 8 four where the ALJ assessed plaintiff’s residual functional capacity (taking into account 9 the effect of plaintiff’s mental impairments). See generally id. at 3-11 (repeatedly citing 10 the ALJ’s residual functional capacity assessment at AR 19-24). The Court can only 11 conclude the substance of the parties’ dispute encompasses the ALJ’s RFC assessment at 12 step four as well as the finding of non-severity at step two. This conclusion is also 13 consistent with the Court’s need to conduct a meaningful review. 14 If plaintiff’s only impairments had been mental, then a finding of non-severity would 15 have obviated the need to go through the entire five-step sequential evaluation process. See 16 generally 20 C.F.R. 404.1520. Review of the non-severity finding would, therefore, prove 17 dispositive of plaintiff’s appeal because this Court could potentially remand to the agency 18 to complete the process if plaintiff’s impairment qualified as severe. This case differs 19 because, given the fact that plaintiff had severe physical impairments in addition to her 20 non-severe mental impairments, the ALJ continued the five-step evaluation to its 21 conclusion. See AR 19-24. Moreover, the ALJ’s analysis of the persuasiveness of the two 22 medical opinions at issue appears only during step four. See AR 19-24. At step-four, the 23 regulations do not distinguish between severe and non-severe impairments because the ALJ 24 must consider all impairments to assess RFC, even those that are non-severe. See 20 C.F.R. 25 § 404.1545(a)(2). “The RFC therefore should be exactly the same regardless of whether 26 certain impairments are considered ‘severe’ or not.” Buck v. Berryhill, 869 F.3d 1040, 1048 27 (9th Cir. 2017). Because the ALJ completed the full evaluative process, a finding of error 28 at step-two, standing alone, would be virtually meaningless in this case. The Court must 1 and will address the ALJ’s assessment of plaintiff’s residual functional capacity because it 2 is the only way to conduct a meaningful review of the ALJ’s decision. 3 III. STANDARD OF REVIEW 4 This Court will affirm the ALJ’s decision if (1) the ALJ applied the correct legal 5 standards; and (2) the decision is supported by substantial evidence. See Batson v. Comm’r 6 of the Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). Even if the ALJ makes an 7 error, this Court can nonetheless affirm the denial of benefits if such error was “harmless, 8 meaning it was ‘inconsequential to the ultimate nondisability determination.’” Ford, 950 9 F.3d at 1154 (quoting Tommasetti, 533 F.3d 1035, 1038 (9th Cir. 2008). The Court’s ability 10 to uphold the ALJ’s decision is limited in that this Court may not make independent 11 findings and therefore cannot uphold the decision on a ground not asserted by the ALJ. See 12 Stout v. Comm’r of the Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006). 13 IV. ANALYSIS OF THE COMMISSIONER’S DECISION 14 This Court must first determine which legal framework controlled the ALJ’s 15 assessment of competing medical opinions. After determining the correct legal rule to 16 apply, the Court will assess whether the ALJ followed the law and, if so, whether the 17 decision was supported by substantial evidence 18 A. Applicable Law for Evaluating Medical Opinions 19 Plaintiff argues “[a]s a general rule, the opinion of a treating source is entitled to 20 greater weight than the opinion of doctors who do not treat the Claimant.” Doc. No. 13 at 21 5 (citing Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995)). “In cases where a treating 22 doctor’s opinion is contradicted by another doctor’s opinion, an ALJ may reject the treating 23 doctor’s opinion only by providing ‘specific and legitimate reasons that are supported by 24 substantial evidence.’” Id. (citing Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014)). 25 Defendant argues plaintiff applies the wrong regulation by citing to the “treating physician 26 rule,” which has been eliminated since March 27, 2017. Id. at 8-9 (citing 20 C.F.R. 27 § 404.1520c(a); Woods v. Kijakazi, 32 F.4th 785, 788 (9th Cir. 2022)). 28 1 Plaintiff filed for disability after March 27, 2017. See AR 148. Therefore, the Social 2 Security Administration’s revised regulations for considering medical opinions apply. See 3 20 C.F.R. § 404.1520c. Under the revised regulations, an ALJ must evaluate the 4 persuasiveness of any medical opinions and articulate his or her assessment as to each. Id.2 5 In evaluating persuasiveness, an ALJ considers the medical opinions’ supportability and 6 consistency; and the ALJ may also consider the relationship between the source and the 7 claimant, the source’s specialization, and other factors such as the source’s knowledge of 8 other evidence, social security requirements, and whether there was subsequently 9 submitted evidence. See 20 C.F.R. § 404.1520c(1)-(5). Although an ALJ may discuss each 10 of the factors to be considered in his or her opinion, the regulations only require the ALJ 11 to explain how he or she considered the most important factors—supportability and 12 consistency—when determining a medical opinion’s persuasiveness, unless two 13 conflicting medical opinions are both equally well-supported and consistent with the 14 record. 20 C.F.R. § 404.1520c(b)(2)-(3). 15 The new regulations override the treating physician rule, which automatically gave 16 greater weight to the medical opinions of treating physicians, required clear and convincing 17 reasons for rejecting an uncontradicted medical opinion of a treating physician, and 18 required specific and legitimate reasons supported by substantial evidence in the record for 19 rejecting the contradicted medical opinion of a treating physician. Woods, 32 F.4th at 787. 20 Under the revised regulations, “an ALJ's decision, including the decision to discredit any 21 medical opinion, must simply be supported by substantial evidence.” Id.; accord Jones v. 22 Saul, No. 2:19-cv-01273 AC, 2021 WL 620475, at *6 (E.D. Cal. Feb. 17, 2021); Julie R. 23 M. v. Kijakazi, No. 20cv1608-LL-MDD, 2021 WL 4993034, at *4 (S.D. Cal. Oct. 26, 24 2021). Accordingly, the Court will address the ALJ's evaluation of the medical opinions at 25 26 27 2 “A medical opinion is a statement from a medical source about what you can still do despite your impairment(s) and whether you have one or more impairment-related 28 1 issue here under the 2017 regulations, with no regard to the treating source rule advocated 2 for by the plaintiff. 3 B. Whether the ALJ Applied the Correct Legal Standards to Plaintiff’s Claim 4 The ALJ must assess all the evidence in the plaintiff’s case record. See 20 C.F.R. 5 §§ 416.920(a)(2); 416.920b. The applicable regulations do not specify a particular step of 6 the five-step sequential evaluation at which an ALJ must weigh the persuasiveness of 7 competing medical opinions. See 20 C.F.R. § 416.920c. Rather, the regulations simply 8 prescribe the factors any ALJ can or must consider when evaluating conflicting medical 9 opinions. See id. The only guarantee is that an ALJ “will articulate . . . how persuasive [the 10 ALJ] find[s] all of the medical opinions” in the record. Id. at § 416.920(c)(b) (emphasis 11 added). At a minimum, the ALJ had to consider the supportability and consistency of all 12 opinions. 20 C.F.R. § 404.1520c(b)(2)-(3). Under the regulations, “supportability” is the 13 extent to which a source presents relevant objective medical evidence and explanations to 14 support its opinion or finding. 20 C.F.R. § 404.1520c(c)(1), 416.920c(c)(1). The more 15 relevant the evidence and explanations are, the more persuasive the opinion or finding will 16 be. See id. “Consistency” is the extent to which an opinion or finding is consistent 17 with evidence from other medical and nonmedical sources. 20 C.F.R. §§ 404.1520c(c)(2), 18 416.920c(c)(2). The more consistent it is with evidence from other sources, the more 19 persuasive it will be. See id.3 20 At step two of the five-step sequential evaluation, the ALJ reasoned plaintiff’s 21 “medically determinable mental impairments of anxiety and depressive bipolar and related 22 disorders, considered singly and in combination, do not cause more than minimal limitation 23 24 25 3 These two inquiries focus on separate aspects of a medical opinion. The supportability analysis looks at the quality of the medical evidence that was in front of the 26 treating physician (or other medical source) at the time he or she offered an opinion. In 27 contrast, consistency evaluates a medical opinion against the weight of other evidence in the record, which evidence was not necessarily presented to the treating physician (or other 28 1 in the claimant’s ability to perform basic mental work activities and are therefore non- 2 severe.” AR 18. Based on the records of treating psychiatrist Dr. Gregory Paniccia the ALJ 3 concluded plaintiff’s “mental status assessments were essentially normal” during the time 4 she was under his care, and that she “responded well to medication and improved.” See id. 5 at 18. The ALJ also evaluated plaintiff’s mental impairment using the so-called Paragraph 6 B criteria. Id.4 However, the ALJ based this part of his assessment solely on Dr. Durr’s 7 report. See id. (citing AR 502-08 [Ex. 6F]). The ALJ did not assess the persuasiveness of 8 the two relevant medical opinions at step two. Id. at 17-19. Instead, he treated them as if 9 they were wholly consistent with each other. Id. As the Court has already noted, whether 10 the ALJ correctly determined plaintiff’s mental impairment was not “severe” within the 11 meaning of the regulations has no effect on the ultimate outcome of this case because the 12 ALJ’s RFC assessment would have come out the same way regardless of how the ALJ 13 categorized plaintiff’s mental impairments at step two. Buck v. Berryhill, 869 F.3d 1040, 14 1048 (9th Cir. 2017). Accordingly, this Court need not evaluate the ALJ’s immaterial 15 conclusions at step two. Rather, the dispositive issue in this case is whether the ALJ erred 16 at step four. 17 At step four, an ALJ must determine if a claimant can return to his or her previous 18 work. See 20 C.F.R. § 404.1520(e). As part of that determination, the ALJ must ascertain 19 the claimant’s residual functional capacity. See id. Based on this Court’s review of the 20 record, the reports of Dr. Paniccia and Dr. Durr were the only sources of information 21 directly pertinent to assessing the effect of plaintiff’s mental impairment on her residual 22 23 4 When an ALJ evaluates the severity of a mental impairment at step two, the ALJ 24 must assess the claimant’s level of “functional limitation” in four functional areas that 25 relate to the claimant’s ability to “[u]nderstand, remember, or apply information; interact with others; concentrate, persist, or maintain pace; and adapt or manage [her]self.” See 26 generally 20 C.F.R. § 404.1520a. These are referred to as the “Paragraph B” criteria. See 27 id. § 404.1520a(c)(2); 20 C.F.R. pt. 404, subpt. B, app. 1, ¶ 12.A.2.b. The ALJ’s decision must include a specific finding as to the degree of limitation in each of the functional areas. 28 1 functional capacity. See generally AR 503-08, 531-75, 690-94. As a general principle, Dr. 2 Durr opined plaintiff was not disabled, and Dr. Paniccia opined plaintiff was unable to 3 work. Compare id. at 503-08 with id. at 690-94. At step four, the ALJ rejected Dr. 4 Paniccia’s opinion in favor of Dr. Durr’s. See id. at 23-24. 5 The ALJ correctly acknowledged he could not “defer or give any specific evidentiary 6 weight, including controlling weight, to any prior . . . medical opinion(s). . . .” Id. at 22. 7 When he evaluated the persuasiveness of Dr. Durr’s opinion, the ALJ found it was 8 “consistent with [plaintiff’s] clinical presentation and . . . supported by intelligence 9 testing.” Id. at 23. “Consistency” measures how consistent a medical opinion is with other 10 evidence in the record. See 20 C.F.R. §§ 404.1520c(c)(2), 416.920c(c)(2). The “clinical 11 presentation” with which the ALJ found Dr. Durr’s opinion “consistent” is a reference to 12 plaintiff’s presentation before Dr. Durr during plaintiff’s evaluation in January 2020. See 13 AR 23. The ALJ did not actually compare Dr. Durr’s opinion to any other evidence in the 14 record. See id. Plaintiff’s presentation before Dr. Durr is more appropriately considered a 15 measure of supportability because it refers to the evidence on which Dr. Durr based her 16 assessment. See 20 C.F.R. § 404.1520c(c)(1), 416.920c(c)(1). For the ALJ to properly 17 assess the consistency of Dr. Durr’s opinion, he would have had to compare it to other 18 evidence in the record, which he did not. The ALJ therefore failed to follow the regulations 19 when he assessed the “consistency” of Dr. Durr’s opinion. Although the ALJ’s assessment 20 of “supportability” is threadbare, Dr. Durr did rely on facially valid intelligence testing, 21 which counts as substantial evidence of her opinion’s supportability. See AR 507.5 22 23 24 25 5 It is not hard to envision a situation in which competing medical opinions are equally supported by their own evidence. On remand, the ALJ may well find that each opinion here 26 is equally “supported” by the information in front of each medical source. Should that occur 27 and contribute to a situation where the ALJ finds both opinions equally persuasive, yet he must choose between them, the ALJ is encouraged to consult the supplemental factors 28 1 The ALJ rejected Dr. Paniccia’s opinion, calling it “not persuasive,” but he made no 2 explicit finding of consistency or supportability. Id. at 23-24. As to supportability, 3 defendant argues Dr. Paniccia’s “own examination findings did not support his opinion,” 4 and the Court should affirm on this ground. See Doc. No. 13 at 10. While this may be 5 defendant’s interpretation of the record, it is not the ALJ’s interpretation of the facts 6 because the ALJ made no such finding. See AR 23-24. This Court’s authority to affirm is 7 limited to grounds asserted by the ALJ. See Stout v. Comm’r of the Soc. Sec. Admin., 454 8 F.3d 1050, 1054 (9th Cir. 2006). It may well be the case that Dr. Paniccia’s opinion was 9 not supported by his own findings, as defendant suggests, but that issue was for the ALJ to 10 resolve in the first instance, not this Court. The Court therefore finds the ALJ failed to 11 consider the supportability of Dr. Paniccia’s opinion. 12 Although the ALJ made no explicit finding of consistency, this Court’s review of 13 the ALJ’s analysis indicates the ALJ compared Dr. Paniccia’s opinion to Dr. Durr’s 14 opinion, and concluded Dr. Durr’s opinion was inconsistent with Dr. Paniccia’s. See AR 15 23-24. Defendant urges the Court to adopt the same analysis. Doc. No. 13 at 10. This 16 argument could be confused for an assessment based on “consistency” because, as a 17 technical matter, Dr. Durr’s opinion is “other evidence” in the record that appears 18 inconsistent with Dr. Paniccia’s opinion. The Court does not find this argument persuasive. 19 This Court cannot interpret the controlling regulations in a manner that leads to an 20 absurd result. See Ariz. State Bd. for Charter Sch. v. U.S. Dep’t of Educ., 464 F.3d 1003, 21 1008 (9th Cir. 2006). The regulations do not explicitly direct the ALJ to assess consistency 22 based on evidence in the record outside the opposing medical opinion. See 20 C.F.R. 23 §§ 404.1520c(c)(2), 416.920c(c)(2). At the same time, if the ALJ were able to decide Dr. 24 Paniccia’s opinion is unpersuasive because it is not consistent with Dr. Durr’s, the ALJ’s 25 rejection of Dr. Paniccia’s opinion amounts to little more than a judgment call, made in a 26 vacuum, that Dr. Durr’s assessment should control the outcome of plaintiff’s case. This 27 result would be absurd because it would turn the governing regulations into paper tigers 28 that offer the ALJ no meaningful guidance. Under such a regime, the ALJ could pick an 1 opinion at random and just label it “inconsistent” with the competing opinion. Accordingly, 2 the Court can only conclude the regulations require the ALJ to assess consistency in light 3 of information other than that which is contained in the opposing medical opinion, in this 4 case that of Dr. Durr. The ALJ committed legal error by failing to make such an assessment. 5 In sum, the ALJ’s persuasiveness analysis was limited to a threadbare assessment 6 that Dr. Durr’s opinion was supported, and he gave no consideration to the supportability 7 of Dr. Paniccia’s opinion or to the consistency of either opinion. The ALJ therefore erred 8 in his assessment of plaintiff’s residual functional capacity by making a legal error. See 9 Batson v. Comm’r of the Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004); Lanway 10 v. Colvin, 13-cv-5155-BHS, 2014 U.S. Dist. LEXIS 33601, at *7 (W.D. Wash. Feb. 10, 11 2014) (citations omitted). 12 C. Whether the ALJ’s Error Was Harmless 13 The Court can affirm an erroneous decision if the error was harmless. Ford v. Saul, 14 950 F.3d 1141, 1154 (9th Cir. 2020). “In the context of social security appeals, legal errors 15 committed by the ALJ may be considered harmless where the error is irrelevant to the 16 ultimate disability conclusion when considering the record as a whole.” Lanway, 2014 U.S. 17 Dist. LEXIS 33601, at *7. Here, the vast majority of the ALJ’s assessment focused on 18 plaintiff’s physical impairments. See AR 19-24. The ALJ’s effect of plaintiff’s mental 19 impairment on her residual functional capacity rested solely on what amounts to a contest 20 between Drs. Pannicia and Durr. See id. 23-24. Which medical source the ALJ believed 21 was therefore a potentially outcome determinative consideration in the proceedings below. 22 Thus, this is not a case where other evidence in the record can render the ALJ’s decision 23 harmless because, at least with regard to plaintiff’s mental impairments, there is no other 24 evidence in the record upon which this Court might uphold a decision affirming the ALJ’s 25 denial of benefits. Rather than “inconsequential” to the outcome, a proper evaluation of the 26 two competing medical opinions was essential, and the ALJ failed to follow the regulations. 27 The Court cannot find this error harmless. 28 // 1 V. CONCLUSION 2 The Court concludes the ALJ failed to apply the correct legal standard when he 3 || evaluated plaintiff's claim for benefits. The final decision of the Commissioner of Social 4 ||Security is hereby VACATED and the matter is REMANDED to the Commission for 5 || further proceedings consistent with this Order. On remand, the ALJ is specifically directed 6 evaluate the persuasiveness of both Dr. Durr’s and Dr. Pannicia’s opinions. As part of 7 || that evaluation, the ALJ must evaluate the supportability and consistency of both opinions, 8 the ALJ should consider the other factors enumerated in the regulations as necessary. 9 || The Clerk of the Court shall enter judgment accordingly and terminate the case. The entry 10 judgment will begin the running of the thirty-day period for which plaintiff, as the 11 || prevailing party, may make a timely application for attorneys’ fees under the Equal Access 12 Justice Act. See 28 U.S.C. § 2412(d)(1)(B); Akopyan v. Barnhart, 296 F.3d 852, 854 13 || (9th Cir. 2002). 14 IT ISSO ORDERED 15 Dated: December 7, 2022 Yy JA 16 Mlle Se 7 Hort. Karen S. Crawford United States Magistrate Judge 18 19 20 21 22 23 24 25 26 27 28