Patricia Susan Maurer v. Nancy A. Berryhill

— 1 — — 2 — — 3 — — 4 — — 5 — — 6 — — 7 — 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA — 10 — 11 P.S.M., Case No. 2:19-cv-01113-SHK 12 Plaintiff, 13 v. OPINION AND ORDER 14 ANDREW M. SAUL, Commissioner of Social Security, — 15 — Defendant. — 16 — — 17 — 18 Plaintiff P.S.M.1 (“Plaintiff”) seeks judicial review of the final decision of the 19 Commissioner of the Social Security Administration (“Commissioner,” 20 “Agency,” or “Defendant”) denying her application for disability insurance 21 benefits (“DIB”), under Title II of the Social Security Act (the “Act”). This 22 Court has jurisdiction under 42 U.S.C. § 405 (g), and, pursuant to 28 U.S.C. 23 § 636(c), the parties have consented to the jurisdiction of the undersigned United 24 States Magistrate Judge. For the reasons stated below, the Commissioner’s 25 decision is REVERSED and this action is REMANDED for further proceedings 26 consistent with this Order. — 27 — 1 I. BACKGROUND 2 Plaintiff filed an application for DIB on February 25, 2015, alleging disability 3 beginning on December 28, 2013. Transcript (“Tr.”) 170-73.2 Following a denial 4 of benefits, Plaintiff requested a hearing before an administrative law judge 5 (“ALJ”) and, on April 18, 2018, ALJ Cynthia Floyd determined that Plaintiff was 6 not disabled. Tr. 17-31. Plaintiff sought review of the ALJ’s decision with the 7 Appeals Council, however, review was denied on December 11, 2018. Tr. 1-6. 8 This appeal followed. 9 II. STANDARD OF REVIEW 10 The reviewing court shall affirm the Commissioner’s decision if the decision 11 is based on correct legal standards and the legal findings are supported by 12 substantial evidence in the record. 42 U.S.C. § 405 (g); Batson v. Comm’r Soc. 13 Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). Substantial evidence is “more 14 than a mere scintilla. It means such relevant evidence as a reasonable mind might 15 accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389 , 16 401 (1971) (citation and internal quotation marks omitted). In reviewing the 17 Commissioner’s alleged errors, this Court must weigh “both the evidence that 18 supports and detracts from the [Commissioner’s] conclusions.” Martinez v. 19 Heckler, 807 F.2d 771, 772 (9th Cir. 1986). 20 “‘When evidence reasonably supports either confirming or reversing the 21 ALJ’s decision, [the Court] may not substitute [its] judgment for that of the ALJ.’” 22 Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (quoting Batson, 359 F.3d at 23 1196); see also Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (“If the 24 ALJ’s credibility finding is supported by substantial evidence in the record, [the 25 Court] may not engage in second-guessing.”) (citation omitted). A reviewing — 26 — 27 2 A certified copy of the Administrative Record was filed on July 10, 2019. Electronic Case Filing 1 court, however, “cannot affirm the decision of an agency on a ground that the 2 agency did not invoke in making its decision.” Stout v. Comm’r Soc. Sec. Admin., — 3 — 454 F.3d 1050, 1054 (9th Cir. 2006) (citation omitted). Finally, a court may not 4 reverse an ALJ’s decision if the error is harmless. Burch v. Barnhart, 400 F.3d 676 , 5 679 (9th Cir. 2005) (citation omitted). “[T]he burden of showing that an error is 6 harmful normally falls upon the party attacking the agency’s determination.” 7 Shinseki v. Sanders, 556 U.S. 396, 409 (2009). 8 III. DISCUSSION 9 A. Establishing Disability Under The Act 10 To establish whether a claimant is disabled under the Act, it must be shown 11 that: 12 (a) the claimant suffers from a medically determinable physical or 13 mental impairment that can be expected to result in death or that has 14 lasted or can be expected to last for a continuous period of not less than 15 twelve months; and 16 (b) the impairment renders the claimant incapable of performing the 17 work that the claimant previously performed and incapable of 18 performing any other substantial gainful employment that exists in the 19 national economy. 20 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. 21 § 423(d)(2)(A)). “If a claimant meets both requirements, he or she is ‘disabled.’” 22 Id. 23 The ALJ employs a five-step sequential evaluation process to determine 24 whether a claimant is disabled within the meaning of the Act. Bowen v. Yuckert, — 25 — 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1520 (a). Each step is potentially 26 dispositive and “if a claimant is found to be ‘disabled’ or ‘not-disabled’ at any step 27 in the sequence, there is no need to consider subsequent steps.” Tackett, 180 F.3d 1 one through four, and the Commissioner carries the burden of proof at step five. 2 Tackett, 180 F.3d at 1098 . 3 The five steps are: 4 Step 1. Is the claimant presently working in a substantially gainful 5 activity [(“SGA”)]? If so, then the claimant is “not disabled” within 6 the meaning of the [] Act and is not entitled to [DIB]. If the claimant is 7 not working in a [SGA], then the claimant’s case cannot be resolved at 8 step one and the evaluation proceeds to step two. See 20 C.F.R. 9 § 404.1520(b). 10 Step 2. Is the claimant’s impairment severe? If not, then the 11 claimant is “not disabled” and is not entitled to [DIB]. If the claimant’s 12 impairment is severe, then the claimant’s case cannot be resolved at 13 step two and the evaluation proceeds to step three. See 20 C.F.R. 14 § 404.1520(c). 15 Step 3. Does the impairment “meet or equal” one of a list of 16 specific impairments described in the regulations? If so, the claimant is 17 “disabled” and therefore entitled to [DIB]. If the claimant’s 18 impairment neither meets nor equals one of the impairments listed in 19 the regulations, then the claimant’s case cannot be resolved at step 20 three and the evaluation proceeds to step four. See 20 C.F.R. 21 § 404.1520(d). 22 Step 4. Is the claimant able to do any work that he or she has 23 done in the past? If so, then the claimant is “not disabled” and is not 24 entitled to [DIB]. If the claimant cannot do any work he or she did in 25 the past, then the claimant’s case cannot be resolved at step four and 26 the evaluation proceeds to the fifth and final step. See 20 C.F.R. 27 § 404.1520(e). 1 Step 5. Is the claimant able to do any other work? If not, then 2 the claimant is “disabled” and therefore entitled to [DIB]. See 20 3 C.F.R. § 404.1520 (f)(1). If the claimant is able to do other work, then 4 the Commissioner must establish that there are a significant number of 5 jobs in the national economy that claimant can do. There are two ways 6 for the Commissioner to meet the burden of showing that there is other 7 work in “significant numbers” in the national economy that claimant 8 can do: (1) by the testimony of a vocational expert [(“VE”)], or (2) by 9 reference to the Medical-Vocational Guidelines at 20 C.F.R. pt. 404, 10 subpt. P, app. 2. If the Commissioner meets this burden, the claimant 11 is “not disabled” and therefore not entitled to [DIB]. See 20 C.F.R. §§ 12 404.1520(f), 404.1562. If the Commissioner cannot meet this burden, 13 then the claimant is “disabled” and therefore entitled to [DIB]. See id. — 14 — Id. at 1098-99 . 15 B. Summary Of ALJ’s Findings 16 The ALJ determined that “[Plaintiff] last met the insured status 17 requirements of the . . . Act through December 31, 2017.” Tr. 19. The ALJ then 18 found at step one, that “[Plaintiff] did not engaged in [SGA] during the period 19 from her alleged onset date of December 28, 2013 through her date last insured of 20 December 31, 2017. (20 CFR 404.1571 et seq.).” Id. At step two, the ALJ found 21 that “[t]hrough the date last insured, [Plaintiff] had the following severe 22 impairments: left knee osteoarthritis, status post left knee arthroplasty; and 23 fibromyalgia, stable (20 CFR 404.1520(c)).” Tr. 20. At step three, the ALJ found 24 that “[t]hrough the date last insured, [Plaintiff] did not have an impairment or 25 combination of impairments that met or medically equaled the severity of one of 26 the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 27 404.1520(d), 404.1525 and 404.1526).” Tr. 23. 1 In preparation for step four, the ALJ found that Plaintiff has the residual 2 functional capacity (“RFC”) to: 3 perform light work as defined in 20 CFR 404.1567(b) except that 4 [Plaintiff] could lift and carry 20 pounds occasionally and 10 pounds 5 frequently; stand and walk 6 hours; sit 6 hours; frequently climb ramps 6 and stairs; frequently stoop, kneel, crouch and balance; occasionally 7 climb ladders, ropes, and scaffolds; and [Plaintiff] needed to avoid 8 concentrated exposure to workplace hazardous [sic] such as working at 9 unprotected heights, fast moving machinery, and traversing uneven or 10 slippery terrain. 11 Tr. 24. The ALJ then found, at step four, that “[t]hrough the date last insured, 12 [Plaintiff] was capable of performing [PRW] as an administrative clerk, customer 13 service representative, and administrative assistant. This work did not require the 14 performance of work-related activities precluded by [Plaintiff’s] [RFC] (20 CFR 15 404.1565).” Tr. 30. Thus, the ALJ concluded that Plaintiff “was not under a 16 disability, as defined in the . . . Act, at any time from December 28, 2013, the 17 alleged onset date, through December 31, 2017, the date last insured (20 CFR 18 404.1520(f)).” Tr. 31. 19 C. Issues Presented 20 In this appeal, Plaintiff raises two issues: (1) whether the ALJ properly 21 evaluated Plaintiff’s testimony, and (2) whether the ALJ properly evaluated the 22 opinions of the consultative psychologist. ECF No. 15, Joint Stip. at 4. 23 D. Court’s Consideration Of First Issue 24 1. Parties’ Arguments 25 Plaintiff argues that the ALJ erred by failing to properly consider her 26 subjective symptom statements. Id. Plaintiff adds that the ALJ “did not cite to any 27 affirmative evidence of malingering” and, “[t]herefore, . . . was required to 1 Plaintiff argues that the ALJ failed to provide clear and convincing reasons for 2 rejecting Plaintiff’s testimony, and “[t]he ALJ’s rejection of [her] testimony based 3 on a lack of corroboration from medical evidence constitutes legal error.” Id. at 74 8. 5 Defendant responds that the ALJ’s finding was supported by substantial 6 evidence and adds that “[c]ontrary to Plaintiff’s contentions, the ALJ did not look 7 only to the testimony’s lack of consistency with the objective medical evidence of 8 record, but also considered whether and to what extent Plaintiff’s subjective 9 statements were consistent with the other evidence in the record.” Id. at 11 10 (citations and internal quotations marks omitted). 11 Defendant cites to several portions of the medical records that were 12 discussed generally by the ALJ. Id. at 10 . Specifically, Defendant notes that 13 following a surgery performed on Plaintiff’s left knee in May 2016, Plaintiff “was 14 discharged home the next day in stable condition, having been cleared by physical 15 therapy.” Id. (citations omitted). Defendant argues that this, and other evidence 16 “was inconsistent with [Plaintiff’s] testimony that, e.g., that [sic] her left knee 17 would lock up[;] that, if she sat too long, she had to move it around or get up to 18 move; and that, despite the record evidence that her fibromyalgia was stable, she 19 had been having more pain.” Id. (citations and internal quotation marks omitted). 20 Defendant also cited Plaintiff’s activities of daily living (“ADLs”) that were 21 discussed by the ALJ throughout the decision and argues that “[s]uch admitted 22 activities . . . belied her claims of disabling symptoms.” Id. at 12 . 23 2. ALJ’s Consideration Of Plaintiff’s Symptom Statements 24 The ALJ first observed Plaintiff’s statements “regarding the intensity, 25 persistence, and limiting effects of her symptoms.” Tr. 25. The ALJ noted that 26 Plaintiff: 27 testified that she underwent partial knee replacement, which helped 1 and that she must get up and move around, which resolves her pain. In 2 addition, she stated that she suffers from fibromyalgia and that she has 3 more pain in the hands and elbows, for which she was advised to take 4 medication. [Plaintiff] testified that she walks twice per week for a mile 5 and a half, and that she must put her feet up when she goes grocery 6 shopping due to big toe pain. She testified that she takes Wellbutrin for 7 major depression and that she takes anxiety medication. Further, she 8 stated that she attends physical therapy for her hip, and that she cannot 9 grip or lift herself up, which comes and goes. She testified that she 10 experienced panic attacks since 1995, and that her last panic attack was 11 three months prior, which causes difficulty breathing and shakiness. 12 [Plaintiff] further testified that she takes pain medication for her knee 13 pain, and that her knee pain wakes her at night. She also stated that she 14 had panic attacks while working, which caused an inability to function. — 15 — Id. 16 The ALJ found that Plaintiff’s “medically determinable impairments could 17 reasonably be expected to cause the alleged symptoms; however, [Plaintiff’s] 18 statements concerning the intensity, persistence and limiting effects of these 19 symptoms are not entirely consistent with the medical evidence and other evidence 20 in the record for the reasons explained in th[e] decision.” Id. The ALJ added that 21 “the objective medical evidence . . . cannot be fully reconciled with the level of pain 22 and limiting effects of the impairments [Plaintiff] alleges.” Id. The ALJ also added 23 that “[a]lthough there is evidence of the existence of the impairments listed above, 24 the medical evidence does not support the alleged level of limitation arising from 25 these impairments.” Id. 26 After discussing Plaintiff’s medical treatment records, but not specifying 27 which evidence contradicted which of Plaintiff’s statements that the ALJ found 1 Based on the entire record, including the testimony of [Plaintiff], the 2 undersigned concludes the evidence fails to support [Plaintiff’s] 3 assertion of total disability. Despite the evidence demonstrating that 4 the claimant has suffered from a medically determinable ‘severe’ 5 impairment, the evidence also establishes that [Plaintiff] retains the 6 capacity to function adequately to perform many basic activities 7 associated with work. In sum, the above [RFC] assessment is supported 8 by the objective medical evidence contained in the record. Treatment 9 notes in the record do not sustain [Plaintiff’s] allegations of disabling 10 pain and limitations. [Plaintiff] does experience some levels of pain and 11 limitations but only to the extent described in the [RFC] above. 12 Tr. 30. 13 3. Standard To Review ALJ’s Analysis Of Plaintiff’s Symptom 14 Statements 15 When a claimant has medically documented impairments that “might 16 reasonably produce the symptoms or pain alleged and there is no evidence of 17 malingering, the ALJ must give ‘specific, clear, and convincing reasons for 18 rejecting’ the testimony by identifying ‘which testimony [the ALJ] found not 19 credible’ and explaining ‘which evidence contradicted that testimony.’” Laborin 20 v. Berryhill, 867 F.3d 1151, 1155 (9th Cir. 2017) (emphasis in original) (quoting 21 Brown-Hunter v. Colvin, 806 F.3d 487, 489, 494 (9th Cir. 2015). “This is not an 22 easy requirement to meet: ‘the clear and convincing standard is the most 23 demanding required in Social Security cases.’” Garrison v. Colvin, 759 F.3d 995 , 24 1015 (9th Cir. 2014) (quoting Moore v. Comm’r Soc. Sec. Admin., 278 F.3d 920 , 25 924 (9th Cir. 2002)). 26 “The ALJ may consider inconsistencies either in the claimant’s testimony or 27 between the testimony and the claimant’s conduct.” Molina v. Astrue, 674 F.3d 1 subjective complaints solely on the lack of objective evidence, the ALJ may 2 nonetheless look to the medical record for inconsistencies. See Morgan v. Comm’r 3 Soc. Sec. Admin., 169 F.3d 595, 599-600 (9th Cir. 1999) (finding that “[t]he ALJ 4 provided clear and convincing reasons for rejecting [Plaintiff’s] testimony” by 5 “point[ing] to specific evidence in the record—including reports by [Plaintiff’s 6 doctors]—in identifying what testimony was not credible and what evidence 7 undermined [Plaintiff’s] complaints.”). 8 4. ALJ’s Decision Is Not Supported By Substantial Evidence 9 Here, the ALJ’s rejection of Plaintiff’s symptom statements fails for several 10 reasons. First, the ALJ did not identify which evidence contradicted which of 11 Plaintiff’s testimony. See Laborin, 867 F.3d at 1155 . Rather, the ALJ only 12 discussed Plaintiff’s medical records generally and did not explain how any of those 13 records contradicted any of Plaintiff’s symptom statements. 14 Second, even if the ALJ had provided a discussion of which evidence 15 contradicted which of Plaintiff’s statements for this Court to review, the ALJ’s 16 finding would still fail because the ALJ ignored other entries in the record that 17 appear to support Plaintiff’s symptom statements. See Holohan v. Massanari, 246 18 F.3d 1195, 1207-08 (9th Cir. 2001) (holding an ALJ cannot selectively rely on some 19 entries in a plaintiff’s records while ignoring others). 20 For example, when discussing the medical evidence, the ALJ considered 21 several records relating to Plaintiff’s knee pain. In one such instance, the ALJ 22 observed that: 23 In May 2014, [Plaintiff] complained of left knee pain over the past five 24 years, and that she underwent arthroscopic surgery of the left knee. She 25 reported continued pain and instability of the left knee. On exam, she 26 had tenderness over the medial and lateral joint line and crepitation at 27 the patellofemoral joint. It was noted that images brought by [Plaintiff] 1 effusion. At that time, she received a steroid injection, and her left knee 2 was drained. 3 Tr. 25 (citing Tr. 669-70). 4 The ALJ’s observation of this record omits discussion of notations indicating 5 that following the “surgery of [Plaintiff’s] left knee[,] [Plaintiff] says that at the 6 beginning she was doing fine but she has sustained multiple falls. As a result[,] she 7 has continued to have pain and instability of the left knee. She says that the knee 8 gives out and it’s painful as well as stiff.” Tr. 669. The record further reveals that 9 Plaintiff’s range of motion in her left knee ranged from zero-to-ninety-five degrees, 10 and, in addition to having her knee drained and receiving a steroid injection in her 11 knee as the ALJ observed, Plaintiff also received a lidocaine injection in her knee. 12 Tr. 669-70. 13 Thus, the ALJ observed only evidence indicating a reduction of pain in 14 Plaintiff’s left knee following knee surgery but ignored other evidence indicating 15 that following surgery, Plaintiff had a limited range of motion in her left knee, her 16 knee gave out on her, she sustained multiple falls, and she continued to have pain 17 and received a lidocaine injection, presumably to treat pain. The ALJ’s 18 consideration of only the evidence that supports rejecting Plaintiff’s statements, 19 while ignoring other evidence that supports Plaintiff’s statements, undercuts the 20 ALJ’s already anemic rejection of Plaintiff’s symptom statements. This evidence 21 also undercuts the ALJ’s RFC finding that Plaintiff could stand and walk six hours; 22 frequently stoop, kneel, crouch, and balance; and occasionally climb ladders, ropes, 23 and scaffolds. Tr. 24. 24 Third, Defendant’s post-hoc rationale does not cure the ALJ’s lack of 25 analysis because the Court cannot affirm the ALJ’s decision with reasons not 26 provided by the ALJ. See Stout v. Comm’r Soc. Sec. Admin., 454 F.3d 1050 , 1054 27 (9th Cir. 2006) (the Court cannot affirm the ALJ’s decision on grounds not 1 Fourth, even if Defendant could supply the analysis for the ALJ, 2 Defendant’s analysis appears flawed. Taking Plaintiff’s knee pain as an example, 3 Defendant argues that Plaintiff’s discharge from the hospital in stable condition the 4 day after having her knee surgically replaced in May 2016 contradicts Plaintiff’s 5 testimony that her left knee locks up if she sits too long. ECF No. 15, Joint Stip. at 6 10. It is unclear how being discharged from the hospital in stable condition 7 following a knee replacement surgery contradicts Plaintiff’s statement that her 8 knee locks up if she sits too long, or that she takes pain medication for her knee 9 pain, and that her knee pain wakes her at night. The former indicates merely that 10 Plaintiff was able to leave the hospital, while the latter indicates that she had some 11 residual symptoms, despite receiving surgical intervention to hopefully ameliorate 12 her condition. 13 Moreover, the record cited by the ALJ appears to defeat Defendant’s 14 argument, at least to the extent Defendant’s argument stands for the proposition 15 that being discharged from the hospital in stable condition the day after having 16 one’s knee replaced contradicts any residual symptoms one might experience 17 following their surgery. Specifically, the ALJ observed that on May 19, 2016, 18 Plaintiff “underwent a left knee unicompartmental replacement” and that 19 “[d]uring [Plaintiff’s] initial physical therapy examination three weeks after the 20 knee replacement surgery[,] [Plaintiff’s] gait was antalgic[,] . . . she lacked full knee 21 extension at heel strike[,]” she “used a single point cane with the right hand, and it 22 was recommended that she use it to assist with ambulation.” Tr. 27 (citations 23 omitted). This evidence cited by the ALJ demonstrates that three weeks after 24 Plaintiff’s surgery—which the Court notes took place two-and-a-half years into 25 Plaintiff’s alleged disability onset in December 2013—Plaintiff had significant 26 limitations in her mobility as a result of her knee impairment. Thus, this evidence 27 cuts against Defendant’s argument that Plaintiff’s discharge from the hospital the 1 day after Plaintiff’s surgery constitutes substantial evidence for the ALJ to have 2 rejected Plaintiff’s symptom statements. 3 Additionally, the ALJ also noted that in July 2016, Plaintiff reported a 4 reduction in her pain level, but that in October 2016, “[a] nurse practitioner noted 5 [Plaintiff’s] use of a cane during an office visit.” Id. Thus, pursuant to the ALJ’s 6 own observation of the record, Plaintiff was still in pain in July 2016, two months 7 after her knee surgery, and that in October 2016, five months after her knee 8 surgery, Plaintiff was still using a cane to ambulate. On the record before the 9 Court, and as cited by the ALJ, Plaintiff’s impairments caused by her knee led 10 Plaintiff to have her knee replaced two-and-a-half years into the alleged disability 11 time period and left Plaintiff in pain and ambulating with a cane until nearly three 12 years into the alleged disability time period. 13 This evidence further cuts against Defendant’s argument that Plaintiff’s 14 discharge from the hospital amounted to substantial evidence for the ALJ to reject 15 Plaintiff’s statement that sitting causes her knee to lock up. It appears on the 16 record before the Court that Plaintiff’s knee caused significant limitations 17 throughout the majority of the relevant time period. 18 Finally, the Court notes that there is evidence in the record that Plaintiff’s 19 knee impairment was severe leading up to Plaintiff’s 2016 surgery. For example, 20 the ALJ observed emergency room reports from October 2014 indicating that 21 Plaintiff fell and sustained a sprained ankle and a fractured knee as a result of her 22 fall. Tr. 26 (citations omitted). The ALJ also noted that in the first two years of 23 Plaintiff’s alleged disability period, Plaintiff experienced pain, “crepitus and varus 24 deformities over the knees[,]” it was noted she could walk for only twenty minutes 25 at a time, and that “images of [Plaintiff’s] left knee showed slightly more 26 prominent osteoarthritis with more prominent changes in the tibiofemoral joint . . . 27 [and] early degenerative joint disease, especially in the medial compartment[,]” 1 | disease with compression in Plaintiff’s left knee.” Tr. 26-27 (citations omitted). 2 | This evidence further supports Plaintiffs symptom statements, undercuts 3 | Defendant’s interpretation of the evidence and arguments, and adds to the 4 | conclusion that the AL]’s rejection of Plaintiff’s statements was not supported by 5 | substantial evidence in the record. As such, the Court finds that remand for further 6 | proceedings is necessary so that the ALJ may reassess Plaintiff’s symptom 7 | statements. On remand, the ALJ shall consider and discuss the aforementioned 8 | evidence. 9 Because the Court remands as to the first issue raised by Plaintiff, it does not 10 | reach Plaintiff’s second assignment of error. 11 IV. CONCLUSION 12 Because the Commissioner’s decision is not supported by substantial 13 | evidence, IT IS HEREBY ORDERED that the Commissioner’s decision is 14 | REVERSED and this case is REMANDED for further administrative proceedings 15 | under sentence four of 42 U.S.C. § 405 (g). See Garrison v. Colvin, 759 F.3d 995 , 16 | 1009 (9th Cir. 2014) (holding that under sentence four of 42 U.S.C. § 405 (g), 17 | “[t]he court shall have power to enter . . . a judgment affirming, modifying, or 18 | reversing the decision of the Commissioner . .. , with or without remanding the 19 | cause for a rehearing.”’) (citation and internal quotation marks omitted). — 20 — 21 IT ISSO ORDERED. — 22 — °° | DATED: 12/23/2019 □□ 24 HONORABLE SHASHI H. KEWALRAMANI 5 United States Magistrate Judge — 26 — — 27 — — 28 —