# Deborah Ellen Bodnar v. Kilolo Kijakazi

> District Court, C.D. California · August 23, 2023

URL: https://www.frixlaw.com/law-library/cases/9984201

## Case

- **Court:** District Court, C.D. California
- **Decided:** August 23, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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11 DEBORAH B.,1 Case No. 8:23-cv-00531-MAA

12 Plaintiff, MEMORANDUM DECISION AND

13 ORDER REVERSING DECISION OF
v.
14 THE COMMISSIONER AND
KILOLO KIJAZAKI, Acting REMANDING FOR FURTHER
15 Commissioner of Social Security, ADMINISTRATIVE PROCEEDINGS

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Defendant.
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19 I. INTRODUCTION
20 On March 23, 2023, Plaintiff Deborah B. (“Plaintiff”) filed a Complaint
21 seeking review of Defendant Commissioner of Social Security’s (“Defendant” or
22 “Commissioner”) final decision denying her application for a period of disability
23 and disability insurance benefits (“DIB”) under Title II of the Social Security Act
24 and Supplemental Security Income (“SSI”) under Title XVI of the Social Security
25

26 1 Plaintiff’s name is partially redacted in accordance with Federal Rule of Civil
Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court
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Administration and Case Management of the Judicial Conference of the United
28 States.
1 Act. (Compl., ECF No. 1.) Pursuant to 28 U.S.C. § 636(c), the parties consented to
2 the jurisdiction of a United States Magistrate Judge. (ECF Nos. 6, 7.) On May 23,
3 2023, the Commissioner filed an Answer and the Administrative Record (“AR”).
4 (ECF No. 9.) On June 20, 2023, Plaintiff filed a Brief in Support of Complaint
5 (“Plaintiff’s Brief”). (Pl’s Br., ECF No. 10.) On July 19, 2023, Defendant filed
6 Defendant Commissioner’s Brief (“Defendant’s Brief”). (Def’s Br., ECF No. 13.)
7 On July 21, 2023, Plaintiff filed a Statement of No Reply, notifying the Court that
8 she did not intend to file a reply to Defendant’s Brief. (ECF No. 14.) The matter is
9 fully briefed and the Court deems the matter appropriate for resolution without oral
10 argument. See Fed. R. Civ. P. 78(b); C.D. Cal. L.R. 7-15. For the reasons
11 discussed below, the Court reverses the decision of the Commissioner and remands
12 the matter for further administrative proceedings.
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14 II. SUMMARY OF ADMINISTRATIVE PROCEEDINGS
15 On July 23, 2018, Plaintiff filed an application for a period of disability and
16 DIB, alleging disability beginning on June 17, 2010. (AR 263–66.) Plaintiff
17 alleged she was disabled due to chronic spinal problems, right shoulder pain,
18 depression, arthritis on both knees, severe migraines, and lower back pain. (AR
19 363.) The Commissioner denied the application on August 30, 2018, and again
20 upon reconsideration on November 15, 2018. (AR 78–84, 86–92.) On January 11,
21 2019, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”).
22 (AR 105–06.) On December 11, 2019, Plaintiff filed an application for SSI. (AR
23 18.) At a telephonic hearing held on December 2, 2021, the ALJ heard testimony
24 from Plaintiff, who was represented by counsel, and a vocational expert. (AR 37–
25 77.)
26 In a decision dated January 27, 2022, the ALJ issued a partially favorable
27 decision, finding that Plaintiff was not disabled before July 20, 2016, but became
28 disabled on that date, after making the following findings under the
1 Commissioner’s five-step evaluation. (AR 15–36.) At step one, the ALJ found that
2 Plaintiff had not engaged in substantial gainful activity since June 17, 2010, the
3 alleged onset date. (AR 21.) At step two, the ALJ found that Plaintiff had severe
4 impairments consisting of disc disease of the cervical spine with cervical spinal
5 fusion surgery, degenerative disc disease of the right shoulder, status post surgery,
6 and depression. (Id.) At step three, the ALJ found that Plaintiff did not have an
7 impairment or combination of impairments that met or medically equaled the
8 severity of one of the agency’s listed impairments. (AR 22.) Next, the ALJ found
9 that Plaintiff had the following Residual Functional Capacity (“RFC”):
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[Plaintiff] has the residual functional capacity to perform
11 sedentary work with the following specific limitations:
12 can lift or carry ten pounds occasionally and less than ten
pounds frequently; can sit for six hours and stand or walk
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for two hours in an eight-hour workday; cannot climb
14 ladders, ropes, and scaffolds; can occasionally climb
ramps and stairs; can occasionally balance, stoop, kneel,
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crouch, and crawl; can occasionally perform overhead
16 reaching with the right upper extremity; and is limited to
17 unskilled work (20 CFR 404.1567 and 416.967).
18 (AR 23.) At step four, the ALJ found that Plaintiff was not capable of performing
19 her past relevant work as a stylist, manager, or retail chain store supervisor. (AR
20 27.) At step five, the ALJ determined that, prior to July 20, 2016, Plaintiff could
21 perform other work in the national economy, specifically as a charge account
22 clerk. (AR 27–28.) However, the ALJ found that Plaintiff’s age category changed
23 on July 20, 2016, and concluded that beginning on July 20, 2016, there were no
24 jobs that existed in significant numbers in the national economy that Plaintiff could
25 perform. (AR 29.) Accordingly, the ALJ concluded that Plaintiff was not disabled
26 as defined by the Social Security Act, from June 17, 2010 to July 20, 2016, but
27 became disabled on July 20, 2016 and continued to be disabled through the date of
28 the decision on January 27, 2022. (Id.)
1 On January 27, 2023, the Appeals Council denied Plaintiff’s request for
2 review. (AR 1–6.) Plaintiff now seeks judicial review of the ALJ’s decision, which
3 stands as the final decision of the Commissioner. See 42 U.S.C. § 405(g).
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5 III. STANDARD OF REVIEW
6 Pursuant to 42 U.S.C. § 405(g), the Court reviews the Commissioner’s final
7 decision to determine whether the Commissioner’s findings are supported by
8 substantial evidence and whether the proper legal standards were applied. See
9 Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014).
10 “‘Substantial evidence’ means more than a mere scintilla, but less than a
11 preponderance; it is such relevant evidence as a reasonable person might accept as
12 adequate to support a conclusion.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th
13 Cir. 2007); see also Richardson v. Perales, 402 U.S. 389, 401 (1971). The Court
14 “must consider the record as a whole, weighing both the evidence that supports and
15 the evidence that detracts from the Commissioner’s conclusion, and may not affirm
16 simply by isolating a specific quantum of supporting evidence.” Trevizo v.
17 Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (quoting Garrison v. Colvin, 759 F.3d
18 995, 1009 (9th Cir. 2014)). “‘Where evidence is susceptible to more than one
19 rational interpretation,’ the ALJ’s decision should be upheld.” Orn v. Astrue, 495
20 F.3d 625, 630 (9th Cir. 2007) (quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th
21 Cir. 2005)). “If the evidence can support either affirming or reversing the ALJ’s
22 conclusion, [a court] may not substitute [its] judgment for that of the ALJ.” Robbins
23 v. SSA, 466 F.3d 880, 882 (9th Cir. 2006).
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1 IV. DISCUSSION
2 A. Disputed Issues
3 The parties raise three disputed issues:
4 1. Whether the ALJ properly considered the relevant medical evidence of
5 record in assessing Plaintiff’s RFC.
6 2. Whether the ALJ properly considered Plaintiff’s subjective symptom
7 statements in assessing Plaintiff’s RFC.
8 3. Whether the ALJ properly developed the vocational issues in this case
9 at step five of his five-step evaluation?
10 (Pl’s Br. 4; Def’s Br. 7.)2
11 For the reasons discussed below, the Court finds that reversal and remand for
12 further administrative proceedings are warranted for the second issue, based on the
13 ALJ’s consideration of Plaintiff’s subjective symptom statements. Having found
14 that remand is warranted, the Court declines to address Plaintiff’s remaining
15 arguments. See Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012) (“Because we
16 remand the case to the ALJ for the reasons stated, we decline to reach [plaintiff’s]
17 alternative ground for remand.”); see also Augustine ex rel. Ramirez v. Astrue, 536
18 F. Supp. 2d 1147, 1154 n.7 (C.D. Cal. 2008) (“[The] Court need not address the
19 other claims plaintiff raises, none of which would provide plaintiff with any further
20 relief than granted, and all of which can be addressed on remand.”).
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22 B. Applicable Law
23 “A claimant’s residual functional capacity is what he can still do despite his
24 physical, mental, nonexertional, and other limitations.” Cooper v. Sullivan, 880
25 F.2d 1152, 1158 n.5 (9th Cir. 1989) (citing 20 C.F.R. § 404.1545). An RFC
26 assessment requires the ALJ to consider a claimant’s impairments and any related
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2 With the exception of the Administrative Record, citations to pages in docketed
28 documents reference the page numbers created by the CM/ECF headers.
1 symptoms that may “cause physical and mental limitations that affect what [he] can
2 do in a work setting.” 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). In determining
3 a claimant’s RFC, the ALJ considers all relevant evidence, including a claimant’s
4 statements and residual functional capacity assessments made by consultative
5 examiners, State Agency physicians, and medical experts. 20 C.F.R.
6 §§ 404.1545(a)(3), 416.945(a)(3); see also id. §§ 404.1513(c), 416.913(c).
7 When assessing a claimant’s credibility regarding subjective pain or intensity
8 of symptoms, the ALJ must engage in a two-step analysis. Trevizo, 871 F.3d at
9 678. First, the ALJ must determine if there is medical evidence of an impairment
10 that could reasonably produce the symptoms alleged. Garrison, 759 F.3d at 1014.
11 “In this analysis, the claimant is not required to show ‘that her impairment could
12 reasonably be expected to cause the severity of the symptom she has alleged; she
13 need only show that it could reasonably have caused some degree of the
14 symptom.’” Id. (quoting Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996)).
15 “Nor must a claimant produce objective medical evidence of the pain or fatigue
16 itself, or the severity thereof.” Id. (quoting Smolen, 80 F.3d at 1282).
17 If the claimant satisfies this first step, and there is no evidence of malingering,
18 the ALJ must provide specific, clear and convincing reasons for rejecting the
19 claimant’s testimony about the symptom severity. Id. at 1014–15; see also Robbins,
20 466 F.3d at 883 (“[U]nless an ALJ makes a finding of malingering based on
21 affirmative evidence thereof, he or she may only find an applicant not credible by
22 making specific findings as to credibility and stating clear and convincing reasons
23 for each.”). “This is not an easy requirement to meet: ‘The clear and convincing
24 standard is the most demanding required in Social Security cases.’” Garrison, 759
25 F.3d at 1015 (quoting Moore v. Comm’r of SSA, 278 F.3d 920, 924 (9th Cir. 2002)).
26 The ALJ must evaluate “the intensity and persistence of those symptoms to
27 determine the extent to which the symptoms limit [the claimant’s] ability to perform
28 ///
1 work-related activities for an adult.” Social Security Ruling (“SSR”) 16-3p, 2016
2 SSR LEXIS 4, at *4 (Mar. 16, 2016).
3 While the ALJ cannot “delve into wide-ranging scrutiny of the claimant’s
4 character and apparent truthfulness,” Trevizo, 871 F.3d at 678 n.5, the ALJ may
5 consider “prior inconsistent statements concerning the symptoms, and other
6 testimony by the claimant that appears less than candid; . . . unexplained or
7 inadequately explained failure to seek treatment or to follow a prescribed course of
8 treatment; and . . . the claimant’s daily activities,” Ghanim v. Colvin, 763 F.3d
9 1154, 1163 (9th Cir. 2014) (quoting Smolen, 80 F.3d at 1284). Inconsistencies
10 between a claimant’s testimony and conduct, or internal contradictions in the
11 claimant’s testimony, also may be relevant. Burrell v. Colvin, 775 F.3d 1133, 1137
12 (9th Cir. 2014). In addition, the ALJ may consider “the claimant’s work record and
13 observations of treating and examining physicians and other third parties regarding,
14 among other matters, the nature, onset, duration, and frequency of the claimant’s
15 symptom; precipitating and aggravating factors; [and] functional restrictions caused
16 by the symptoms.” Smolen, 80 F.3d at 1284. However, it is improper for an ALJ to
17 reject subjective testimony based “‘solely on a lack of objective medical evidence
18 to fully corroborate’ the claimant’s allegations.” Bray v. Comm’r of SSA, 554 F.3d
19 1219, 1227 (9th Cir. 2009) (quoting Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir.
20 1991)).
21 The ALJ must make “a credibility determination with findings that are
22 sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily
23 discredit claimant’s testimony.” Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th
24 Cir. 2008) (quoting Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002)); see
25 Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (“A finding that a
26 claimant’s testimony is not credible ‘must be sufficiently specific to allow a
27 reviewing court to conclude the adjudicator rejected the claimant’s testimony on
28 permissible grounds and did not arbitrarily discredit a claimant’s testimony
1 regarding pain.’” (quoting Bunnell, 947 F.2d at 345–46)). Although an ALJ’s
2 interpretation of a claimant’s testimony may not be the only reasonable one, if it is
3 supported by substantial evidence, “it is not [the court’s] role to second-guess it.”
4 Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001).
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6 C. Plaintiff’s Statements
7 During the hearing, Plaintiff testified about her medical problems and
8 limitations as follows:
9 She first became injured in 2006 when she fell and dislocated her right
10 shoulder, which resulted in her having surgery on that shoulder. (AR 54–55.) In
11 2009, she had an injury at work when she fell from a ladder and landed on her head.
12 (AR 55.) In 2012, she had cervical spine surgery. (AR 57.) The surgery did not fix
13 her medical problems, however, and she continued to have problems using her right
14 arm. (AR 58.)
15 When asked by her attorney whether she remembered going through a nerve
16 study in early 2013, Plaintiff testified that she had “been through that more than
17 once.” (Id.) When asked by her attorney if she had difficulty reaching in front of
18 her, Plaintiff answered in the affirmative. (AR 59.) Fastening buttons and typing
19 were a problem for her because her fingers, especially her thumb, would freeze up.
20 (Id.) She is right-handed. (Id.) Her left shoulder would become weak and
21 exhausted because she used it so much. (AR 60.)
22 In the mornings, she would get up and try to spend time moving her body for
23 ten to fifteen minutes while standing, but then she would need to sit down or lay
24 down because “the pain [was] excruciating.” (Id.) She had to lay down to rest her
25 body and neck. (Id.) If she got any stress in her body, “everything [would] tense[]
26 up, and then [she would] get a migraine.” (Id.) If she got a migraine, then her
27 “whole day [would be] shot.” (AR 61.) She laid down “all the time[,]” and even at
28 the hearing she was seated in a recliner with a pillow at her lumbar area because her
1 lower back hurt from her “neck being so rigid.” (Id.) She had to lay her head back
2 and rest a lot because her head was “extra heavy because of the metal in it.” (Id.)
3 When asked by her attorney whether she had any days where she did not
4 have to lay down, Plaintiff responded that she did not have any such days. (Id.)
5 When asked by her attorney whether she could remember the last time that she
6 could go all day without laying down, Plaintiff responded that she could not
7 remember such a time. (AR 61–62.) If she only laid down for five or ten minutes
8 in a day, she would be “having a really good day.” (AR 62.) She usually took a
9 three-hour nap in the middle of the day, but could “split it up into two one-and-a-
10 half-hour breaks.” (AR 62–63.) She needed “big breaks during the day because”
11 she could not hold herself up for that long. (AR 63.) When asked by her attorney
12 how her depression would affect her ability to work, she testified that her pain and
13 depression made it difficult to concentrate. (Id.) She took Celexa for her
14 depression. (AR 64.)
15 Plaintiff’s husband did the laundry, and she helped him fold the laundry.
16 (Id.) She could put the dishes into the dishwasher. Her husband swept the floor
17 and vacuumed. (AR 65.) Plaintiff could use a feather duster, but her “house [was]
18 not very clean at all.” (Id.)
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20 D. Analysis
21 At the first step of the two-step evaluation, the ALJ found that Plaintiff’s
22 “medically determinable impairments could reasonably be expected to cause the
23 alleged symptoms.” (AR 26–27.) At the second step, however, the ALJ found that
24 Plaintiff’s “statements concerning the intensity, persistence, and limiting effects of
25 these symptoms [were] not fully supported for the above reasons.” (AR 27.)
26 Both parties assert that the ALJ based his adverse credibility determination
27 regarding Plaintiff’s subjective symptom statements on a lack of supporting
28 objective evidence in the record. (Pl’s Br. 16; Def’s Br. 18–19.) In addition,
1 Defendant asserts that the ALJ also discounted Plaintiff’s subjective symptom
2 statements because of Plaintiff’s “documented improvement in the medical record.”
3 (Def’s Br. 18.) Below, the Court addresses each reason upon which the parties
4 contend the ALJ based his rejection of Plaintiff’s subjective symptom statements.
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6 1. Improvement Documented in Medical Record
7 Defendant argues that the ALJ properly discounted Plaintiff’s subjective
8 symptom statements by citing to “multiple instances of documented improvement
9 in the medical record.” (Def’s Br. 18.) Plaintiff, perhaps disagreeing that the ALJ
10 relied on this reason to reject Plaintiff’s subjective symptom statements, does not
11 respond to this argument or otherwise address Plaintiff’s improvement that was
12 allegedly documented in the medical record. (See generally Pl’s Br.)
13 As an initial matter, the Court may review only those reasons that the ALJ
14 specifically cited as grounds to reject Plaintiff’s subjective symptom testimony.
15 See Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) (“We are constrained to
16 review the reasons the ALJ asserts.”) (citations omitted); Garrison, 759 F.3d at
17 1010 (“We review only the reasons provided by the ALJ in the disability
18 determination and may not affirm the ALJ on a ground upon which he did not rely.”
19 (citing Connett, 340 F.3d at 874)). It is well-settled that a reviewing court may not
20 construe an ALJ’s general findings from the medical record as reasons to reject a
21 claimant’s subjective symptom testimony if the ALJ does not explicitly tie such
22 findings to the testimony. See Burrell, 775 F.3d at 1139 (“Although the ALJ made
23 findings . . . concerning Claimant’s treatment for headaches, he never stated that he
24 rested his adverse credibility determination on those findings.”).
25 Here, the Court finds that, contrary to Defendant’s assertion, the ALJ did not
26 rely on evidence of Plaintiff’s improvement in discounting Plaintiff’s subjective
27 symptom statements. The only time the ALJ referenced Plaintiff’s improvement
28 was within a summary of the medical evidence. (AR 25 (“Subsequent treatment
1 records note ‘persistent neurologic symptoms,’ including weakness and a loss of
2 dexterity in the right hand but slight improvement overall” (citing AR 485, 497,
3 502)).); (Id. (“In December 2013, the claimant’s ‘severe pain’ was characterized as
4 ‘improved,’ although she s[t]ill had residual deficits (including numbness,
5 weakness, and loss of dexterity)” (citing AR 494)).) The ALJ did not state that he
6 “rested his adverse credibility determination” on these findings, and therefore, the
7 Court cannot, and does not, review this reason as a basis for rejecting Plaintiff’s
8 statements about her subjective symptoms. Burrell, 775 F.3d at 1139; see Connett,
9 340 F.3d at 874.
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11 2. Lack of Objective Medical Evidence
12 The parties concur that the ALJ discounted Plaintiff’s subjective symptom
13 statements based on limited objective medical evidence supporting the severity of
14 Plaintiff’s complaints. (Pl’s Br. 16; Def’s Br. 18–19.) The Court agrees. (AR 24
15 (“Despite the claimant’s allegations, the evidence in the record supports the above
16 residual functional capacity.”).)
17 However, the ALJ cannot reject Plaintiff’s subjective symptom statements
18 solely based on a lack of objective medical evidence to corroborate them. See, e.g.,
19 Bunnell, 947 F.2d at 345 (“[A]n adjudicator may not reject a claimant’s subjective
20 complaints based solely on a lack of objective medical evidence to fully corroborate
21 the alleged severity of pain.”); Robbins, 466 F.3d at 883 (“While an ALJ may find
22 testimony not credible in part or in whole, he or she may not disregard it solely
23 because it is not substantiated affirmatively by objective medical evidence.”). Here,
24 even assuming the record supports the ALJ’s reasoning regarding the lack of
25 support from objective medical evidence, the ALJ did not identify any other clear
26 and convincing reason, supported by substantial evidence, to discount Plaintiff’s
27 subjective symptom statements. (See generally AR 23–27.) Standing alone, the
28 purported lack of support from objective medical evidence is not a legally sufficient
1 reason to discount Plaintiff’s symptom testimony. Accordingly, reversal is
2 warranted.
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4 E. Remand for Further Proceedings
5 The decision whether to remand for further proceedings or order an
6 immediate award of benefits is within the district court’s discretion. Harman v.
7 Apfel, 211 F.3d 1172, 1175–78 (9th Cir. 2000). Where no useful purpose would be
8 served by further administrative proceedings, or where the record has been fully
9 developed, it is appropriate to exercise this discretion to direct an immediate award
10 of benefits. Id. at 1179 (“[T]he decision of whether to remand for further
11 proceedings turns upon the likely utility of such proceedings.”).
12 Although the Court has found the ALJ rejected Plaintiff’s subjective
13 symptom testimony without clear and convincing reasons, supported by substantial
14 evidence, as described above, the Court is “not satisfied that further administrative
15 proceedings would serve no useful purpose.” Brown-Hunter, 806 F.3d at 495
16 (citation and quotation marks omitted). This is because the record as a whole is not
17 fully developed or free from conflicts and ambiguities. See Dominguez v. Colvin,
18 808 F.3d 403, 410 (9th Cir. 2015) (further proceedings were warranted where there
19 were “inconsistencies, conflicts, and gaps in the record”). Moreover, Plaintiff
20 herself requests remand for further administrative proceedings. (Pl’s Br. 20.)
21 Given these circumstances, this is not a case where “further administrative
22 proceedings would serve no useful purpose.” Dominguez, 808 F.3d at 407.
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|| Vv. ORDER
2 The Court ORDERS that judgment be entered reversing the decision of the
3 || Commissioner and remanding this mater for further administrative proceedings.
4 IT ISSO ORDERED.
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7 || DATED: August 23, 2023 | □
g HONORABLE MARIA A. AUDERO
9 UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9984201. Public record. Not legal advice.