Opinion
Case No. 18-cv-07140-JCS
09-30-2020
A.P., Plaintiff, v. ANDREW SAUL, Defendant.
ORDER REGARDING MOTION FOR SUMMARY JUDGMENT AND MOTION TO REMAND
Re: Dkt. Nos. 23, 28
I. INTRODUCTION
Plaintiff A.P. moves for summary judgment on his claim that Defendant Andrew Saul, Commissioner of Social Security (the "Commissioner") erred in denying A.P.'s application for disability benefits. A.P. seeks an order instructing the Commissioner to award benefits under the Ninth Circuit's credit-as-true doctrine. The Commissioner concedes that the administrative law judge ("ALJ") who denied A.P.'s application erred, but moves to remand the case for further administrative proceedings. For the reasons discussed below, A.P.'s motion is GRANTED, the Commissioner's motion is DENIED, and the case is REMANDED for calculation and award of benefits.
Because opinions by the Court are more widely available than other filings, and this order contains potentially sensitive medical information, this order refers to the plaintiff only by his initials. This order does not alter the degree of public access to other filings in this action provided by Rule 5.2(c) of the Federal Rules of Civil Procedure and Civil Local Rule 5-1(c)(5)(B)(i).
The parties have consented to the jurisdiction of the undersigned magistrate judge for all purposes pursuant to 28 U.S.C. § 636(c).
II. BACKGROUND
A. A.P.'s Medical History
A.P. grew up in foster care and suffered physical and sexual abuse during his childhood and early adulthood, and has been homeless for much of his adult life. He has a history of depression with hallucinations, which began during his teenage years. See Administrative Record ("AR," dkt. 22) at 399. This summary focuses on the evidence cited by the parties and relevant to the resolution of the present motions, and is not intended as a complete recitation of the administrative record or A.P.'s medical history.
When A.P. was incarcerated at the Santa Rita Jail in September of 2007, he complained of psychological issues including auditory hallucinations. Id. at 421, 423, 426-27. Mental health treatment notes indicate that A.P. reported using alcohol occasionally and no other drugs, although he had used cocaine in the past. Id. at 421.
In February of 2010, A.P. was picked up by police for purportedly agitated behavior, including "banging on doors" and "yelling," although A.P. stated that he was only walking down the street. Id. at 554. After being transferred from an emergency room to the John George Psychiatric Pavilion, A.P. reported no hallucinations and no past psychiatric diagnosis, but the person who competed his intake evaluation wrote that he smelled of alcohol and was at times unintelligible, and that he likely had past psychiatric diagnoses but was a poor historian. Id. A.P. stated that drank alcohol once per week and used cocaine whenever he could, "perhaps weekly." Id.
Mental health treatment notes from another short period of incarceration at the Santa Rita Jail in June of 2011 indicate that A.P. had a "significant" history of alcohol and cocaine use, that he reported using alcohol twice per week and cocaine occasionally (most recently around one month earlier), and that he stated, "cocaine is a great drug, it settles me down." Id. at 418-19. Those notes also reflect A.P.'s auditory hallucinations. Id. at 418-20.
A case manager brought A.P. to the John George Psychiatric Pavilion on May 13, 2014 because A.P. reported thoughts of harming himself. Id. at 584. Dr. Dennis Barton, M.D., wrote that A.P. "was feeling like harming himself (without specific plan)," but felt safer in a treatment setting. Id. Dr. Barton wrote that it was "[u]nclear . . . how much of his diagnosis is endogenous or related to underlying substance abuse and subsequent withdrawal symptoms of cocaine," but that A.P. did "not have any signs of withdrawal, including stable vital signs," and separately that A.P. "show[ed] no active signs of withdrawal." Id. Dr. Barton discharged A.P. to Bay Area Community Services' ("BACS") Woodroe Place Crisis Residential facility, where he received inpatient treatment from May 13 to May 27, 2014. Id. at 1073-88. A counselor's note at the time of A.P.'s admission recites verbatim Dr. Barton's note regarding uncertainty as to whether A.P.'s symptoms were related to withdrawal from cocaine. Id. at 1073. Treatment notes reflect improvement and stabilization in that structured setting, but even on the day before his discharge, A.P.'s "Axis V" Global Assessment of Functioning ("GAF") score was 50, indicating serious symptoms or impairments. See id. at 1088.
On September 30, 2014, psychiatric nurse practitioner Brian Whiteside completed a "mental impairment questionnaire" diagnosing A.P. with depression and PTSD. Id. at 846. He indicated that A.P. had flashbacks and intrusive thoughts, difficulty thinking or concentrating, and emotional withdrawal or isolation, among other symptoms. Id. at 846, 848. Whiteside checked a box indicating that A.P. experienced hallucinations or delusions, but added a note reading "treated with meds." Id. at 848. Whiteside reported that A.P. was "Seriously Limited, but not precluded" with respect to several categories of work-related mental abilities, but did not choose the more severe assessments of "Unable to Meet Competitive Standards" or "No Useful Ability to Function" for any such categories. Id. at 849-50. He assessed marked limitations with respect to concentration, persistence, or pace, but only moderate limitations with respect to activities of daily living and social functioning, and reported that A.P. had experienced one or two episodes of decompensation lasting at least two weeks during the previous twelve months. Id. at 850. According to Whiteside, A.P.'s impairments or treatment would cause him to miss about four days of work per month; his impairments were not caused by substance intoxication, dependence, or withdrawal; and his impairments would remain as severe in the absence of substance use. Id. at 847.
Psychologist Lisa Kalich also evaluated A.P. on September 30, 2014. Id. at 689. Dr. Kalich reported that A.P. isolates himself and is not comfortable with crowds, and that he experiences periods of depression in which he sometimes goes days or weeks without bathing or changing clothes. Id. at 690. He began to experience hallucinations as a young teenager, first believing that he could see ghosts, and later hearing voices, which intensified in his adolescence and has continued during his adult life. Id. at 691. A.P. has sometimes acted on commands of the voices he hears, including one incident where he assaulted a stranger. Id. at 691-92. He began to have suicidal thoughts as a young child, which have recurred throughout his life; he attempted suicide once during his childhood and has been hospitalized as an adult for suicidal ideation. Id. at 691. When he was employed, he "intermittently miss[ed] work due to depression once or twice per month," and typically quit his jobs when his depression became more severe. Id. at 690. Dr. Kalich determined that A.P. had intermittently marked impairment in activities of daily living (which, in her view, would prevent him from adhering to a typical work schedule), moderate to marked impairments in social interactions, and likely intermittent severe defects in concentration and attention due to his hallucinations and panic attacks, although his concentration was not impaired on the tests that Dr. Kalich conducted. Id. at 694-95. Dr. Kalich stated that A.P.'s symptoms had worsened over time and "the course of his illness has been marked by episodes of decompensation," but that at the time of the evaluation his symptoms had stabilized due to consistently taking his medication and decreasing his use of alcohol and drugs. Id. at 695.
A.P. reported to Dr. Kalich that he drank extremely heavily from the time he was a teenager—resulting in an involuntary psychological hold and, on a separate occasion, an arrest for child endangerment—but he cut down his alcohol use beginning in November of 2013 to one to three times per month. Id. at 691. He reported that he began using cocaine, which calmed him and helped him concentrate, when he was 32 and uses it a few times per month, and that he previously used marijuana but had ceased doing so because it exacerbated his depression. Id. Dr. Kalich stated that A.P. has received mental health treatment "[o]ff and on since 2005," and that he used alcohol heavily in conjunction with his psychotropic medication for many years since then, but found his current prescriptions "effective in partially alleviating his symptoms." Id. at 692. She wrote that his alcohol use likely exacerbated his depression and that his cocaine use might contribute to mood fluctuations, but that because his "symptoms of depression and anxiety have persisted during periods of reported sobriety and decreased use, it is unlikely that his symptoms are the sole product of his use." Id. at 694.
On October 27, 2014, A.P. failed to appear for a psychological examination with a consultative examiner arranged by the California Department of Social Services in conjunction with A.P.'s application for Social Security disability benefits. Id. at 698.
Treating psychologist Roya Sakhai and another staff member at Multi-Lingual Counseling, Inc. completed an assessment form for A.P. on November 18, 2014. Id. at 826. Dr. Sakhai diagnosed A.P. with severe major depressive disorder with psychotic features. Id. at 827. Dr. Sakhai noted that A.P. "hears voices telling [him] to hurt himself and others, or making disparaging remarks about him," and "says he can hear people's mind talking to him," leading him to isolate himself. Id. at 829. Dr. Sakhai rated A.P. as having the highest level of need for services in every category listed on the form, specifically: (1) living arrangements; (2) "prevent[ing] difficulties in education/employment/day/social activities"; (3) maintaining relationships and social support; (4) hygiene and medication management; (5) psychotic symptoms, suicidal ideation or acts, or violence towards others; and (6) "high risk of recurrence to a level of functional impairment." Id. at 833. A.P. reported that he had problems with drinking in the past but only drank socially at the time of the evaluation, and that he had used other drugs "on and off but "never had any problem" with them. Id. at 834.
In January of 2015, in the context of the initial denial of A.P.'s application for disability benefits, state agency consultant Dr. Elizabeth Covey, Psy.D., determined that A.P. had severe affective disorders and non-severe substance addiction disorders, causing only mild to moderate limitations. Id. at 110-15. Dr. Covey determined that Dr. Kalich overstated the severity of A.P.'s symptoms and that A.P. could perform his past work as a janitor. See id. Despite diagnosing a non-severe addiction disorder, id. at 110, Dr. Covey separately wrote that there was "no evidence of any substance abuse disorder/DAA [i.e., drug addiction or alcoholism] issue," id. at 116. On reconsideration of A.P.'s application in June of 2015, Dr. F.L. Williams, M.D., and Dr. A. Ahmed, M.D., reached largely the same conclusions as Dr. Covey. Id. at 139-45.
In March of 2015, A.P. reported at a follow-up appointment with nurse practitioner Whiteside that he was facing eviction and homeless, and that he had passed out on a San Francisco sidewalk while binge drinking. Id. at 700. Whiteside reported that A.P. was within normal limits on a number of metrics, but his mood was depressed and anxious, and his judgment was affected by an "[i]mpaired ability to make reasonable decisions." Id. Whiteside's notes—as in other progress notes from this period—are inconsistent as to auditory hallucinations, with one section reading "Hallucinations: Denied None evidenced," while another section states that A.P. "presents with depression and auditory hallucinations." Id. at 700-01.
On July 9, 2015, Dr. Sakhai completed a "mental residual functional capacity questionnaire" indicating that A.P. had severe major depressive disorder with psychotic features, causing symptoms including headaches, sad affect, memory and concentration problems, and hallucinations. Id. at 841-42. Dr. Sakhai indicated that A.P. had "No Useful Ability to Function" with respect to remembering work-like procedures, maintaining attention for two hours at a time, maintaining regular and punctual attendance, and completing a normal workday without interruption due to psychological symptoms, that he was "Unable to Meet Competitive Standards" with respect to most of the other work-related mental abilities included in the form, and that his impairments or treatment would cause him to miss work more than three times per month. Id. at 844. Dr. Sakhai assessed three episodes of decompensation lasting at least two weeks within the previous twelve months, as well as marked limitations in activities of daily living; maintaining social functioning; and concentration, persistence or pace. Id. at 845. Dr. Sakhai reported that A.P.'s impairments were not caused by substance intoxication, dependence, or withdrawal, and twice indicates that his symptoms would remain as severe in the absence of substance use. Id. at 842.
A January 27, 2016 treatment note from nurse practitioner Douglas Frey, in the context of a tuberculosis screening, states that A.P. was "still drinking heavily" and should consider quitting alcohol. Id. at 891-92.
A.P. was admitted to Woodroe Place Crisis Residential for the second time on February 10, 2016 and stayed through at least February 22, 2016 after experiencing "decompensation due to excessive alcohol drinking, non-compliance with medication, fighting with others and various situations [that he] refused to discuss." See id. at 1090-1107. A.P. reported that he heard voices, most recently one week before his admission to Woodroe Place, and that he sought help because he "knew [he] was losing [his] mind." See id. A.P. showed some improvement during that period and expressed interest in pursuing treatment, but isolated himself at times, e.g., id. at 1098 (Feb. 15, 2016), and "continue[d] to struggle with staying sober," id. at 1106 (Feb. 21, 2016). A.P.'s treatment notes throughout this stay at Woodroe Place indicate a GAF score of 35, reflecting serious impairments. Id. at 1090-1107.
At a December 2016 office visit, BACS psychiatrist Dr. Eunjoo Justice, M.D., reported depression, anxiety, and hallucinations, assessed a GAF score of 38, and reported that A.P.'s highest GAF score in 2016 was 48. Id. at 1068. A.P. stated that he needed medication to control the voices that he heard, id. at 1065, and Dr. Justice wrote that A.P.'s current medications were "somewhat effective," id. at 1067. Dr. Justice indicated that A.P. used alcohol but did not use other drugs at that time. Id. at 1066.
Dr. Sakhai completed another evaluation form on March 7, 2017. Id. at 868. Some pages of this form are difficult to read in the record provided to the Court, but Dr. Sakhai reported that "cognitive behavioral, solution-focused, and supportive psychotherapy have not been effective in reducing symptoms." Id. at 866. Dr. Sakhai assessed marked or extreme limitations in a number of categories. Id. at 866-67. According to Dr. Sakhai, A.P. was not abusing alcohol or drugs at that time, he would miss four or more days of work per month as a result of his impairments or treatment, and he would be off task for more than 30% of a typical workday. Id. at 867. Dr. Sakhai checked a box indicating that the effects of A.P.'s impairments were not expected to fluctuate over time, explaining that his "response to treatment has been consistently very slow and very minimal." Id. at 868.
B. Administrative Hearing
A.P. appeared with an attorney for a hearing before ALJ Arthur Zeidman on March 15, 2017. Id. at 44. A.P. testified that he does not have a driver's license, at one point received training in disposal of hazardous materials, and recalled some but not all of the jobs that Social Security records indicated he had held. Id. at 49-53. A.P. and the ALJ discussed the degree of physical labor required in A.P.'s past work in warehouses, as a janitor, and as a security guard, as well as his use of computers and other equipment in those roles. Id. at 54-59.
A.P. testified that he is "not good with people," id. at 59, and that his "hard background" growing up left him "emotionally very sensitive," id. at 61. A.P. had verbal disagreements with supervisors, but never physical altercations and never anything that cause a warehouse to ask him not to come back. Id. at 61. When he was homeless in 2005, A.P. started hearing voices and "just broke down," which he testified happened "all the times [he has] been homeless." Id. A.P. was still working during some of the time since he started hearing voices, but testified that he was not able to keep up with his jobs and taking his medication. Id. at 62-64. A.P. quit his most recent job because he was depressed and stopped going to work. Id. at 64. He was offered a job but turned it down because he did not feel he could be a good worker, and believed he would only lose the job. Id.
Despite A.P.'s doctors changing and increasing his medication, he "hasn't been getting any better," and still has weeks of severe depression where he stays home, declining invitations from his cousins to get out:
Like a have a week, two weeks I'm in the house depressed not watching TV, not doing nothing, can't eat, can't sleep, just staring at the walls. And I just -- it seems like my will to just do anything is gone. I try to make myself wash my hair, wash my clothes, take a shower and it's just like my will isn't -- isn't there. It's like I'm dead inside and it's hard -- it's hard -- it's hard to do anything.Id. at 65. A.P. testified that he has been seeing therapists on schedules ranging from weekly, to monthly, to periods of six weeks or more. Id. at 65-66.
The ALJ highlighted a treatment note from 2014 indicating that A.P. was drinking occasionally and would drink two twenty-four-ounce bottles of malt liquor, which the ALJ characterized as "a lot," to which A.P. responded that "it depends what your tolerance is" and "it's not a lot to [him]." Id. at 66-67. A.P. stated that he drank to self-medicate "before [he] got the pills and stuff like that" in order to avoid hearing voices. Id. at 67. The ALJ concluded his examination of A.P. by noting his use of cocaine, which A.P. characterized as "experimental" rather than sustained:
Q: Okay. And then another time, this was Exhibit 4F, you said that you had a history of in addition to alcohol also using cocaine, a substance abuse history. And at that point in 2014 you said you had used it about a month before.
A: Yeah.Id. at 67-68.
Q: So when you're talking about self-medication, there's alcohol, there's cocaine.
A: Um-hum, but I don't -- that was like -- if I did it before I -- I did it. I don't -- I don't really do drugs. I mean I drink, but I don't do drugs.
Q: Okay.
A: So that was just like, you know, probably a one time --
Q: Okay.
A: -- thing and then probably -- prior to that it probably was probably like maybe six months or eight months before. So it was just experimental stuff.
In response to questioning from his attorney, A.P. testified that he struggled with depression and anxiety, and sometimes slept all day or stayed up all night. Id. at 68-69. His medication helped to some degree, but he still experienced symptoms, including hallucinations while shopping. Id. at 70 ("[I]t's like I hear people talking about me and I don't hear their lips moving but it seems like they're talking about me."). He testified that his medication has changed frequently "[b]ecause they can't find the right one" and he "still suffered the same symptoms." Id. at 78. He avoids stores and public transportation, and instead walks on back streets where he is unlikely to encounter other people. Id. at 70.
A.P. testified that, when employed, he had difficulty keeping his mind on his work and remembering instructions from supervisors. Id. at 71. He recalled an incident where he was unable to consistently attend work at a fast food restaurant because he was homeless and often had no place to shower. Id. at 72-73. He also recounted a "bad spell" in which, despite taking his medication, he heard voices telling him to break car windows and hurt people, which only subsided when he physically assaulted a stranger. Id. at 73-74. A.P. testified that he has attempted suicide by taking pills. Id. at 74. A.P. stated that he does not have symptoms when he is drinking, and that he has continued to have symptoms—including debilitating depression and hearing voices—during periods where he has stopped drinking and taken his medication. Id. at 74-75.
Vocational expert Roxane Minkus (the "VE") asked the ALJ and A.P. to clarify some aspects of his past work, including the amount of weight he was required to lift, the nature of his work as a forklift driver, and whether he had learned the skills required to work as security guard in the time that he did so. Id. at 80-88. The VE assigned exertion levels and job titles from the Dictionary of Occupational Titles to A.P.'s past work. Id. at 88-90. The VE testified that employers could "easily" tolerate one absence from work per month by a hypothetical person of A.P.'s age, education, and work experience who had no other limitations beyond that absence. Id. at 90-91. Presented with a second hypothetical with more restrictions, the VE testified that two absences from work per month would eliminate some but not all jobs, while three days per month would eliminate most jobs and is an appropriate "cutoff." Id. at 91-93. The VE testified that an inability to respond appropriately to coworkers, supervisors, and the public due to hearing voices would eliminate some but not all jobs, with more jobs eliminated where the inappropriate response takes the form of aggression. Id. at 93-96. The VE testified that the acceptable amount of time an employee could be off task would range from fifteen percent to twenty-five percent of the workday depending on the job. Id. at 98-99.
At the conclusion of the hearing, the ALJ acknowledged that "the emotional problems that [A.P. has] suffered have got in the way," but the ALJ stated that he was "going to have to analyze the effects of drug and alcohol on that whole thing and figure out where it all fits in." Id. at 101.
C. Five Step Framework for ALJ Decisions
When a claimant alleges a disability and applies for Social Security benefits, the ALJ evaluates their claim using a five-step process. 20 C.F.R. § 404.1520(a)(4). At step one, if the claimant has engaged in "substantial gainful activity" during the alleged period of disability, they are not disabled. 20 C.F.R. § 404.1520(a)(4)(i). Substantial gainful activity is "work activity that involves doing significant physical or mental activities . . . for pay or profit." 20 C.F.R. § 220.141(a)-(b). If the claimant has not engaged in such activities, the evaluation continues at step two.
At the second step of the analysis, if the claimant has no "severe medically determinable impairment," they are not disabled. 20 C.F.R. § 404.1520(a)(4)(ii). Impairments are severe when there is "more than a minimal limitation in [the claimant's] ability to do basic work activities." 20 C.F.R. § 404.1520(c). If the claimant does not suffer from a severe impairment, they are not disabled; if they have a severe impairment, the evaluation continues to step three.
Next, the ALJ turns to the Social Security Administration's listing of severe impairments (the "Listing"). See 20 C.F.R. § 404, subpt. P, app. 1. If the claimant's alleged impairment meets or medically equals the definition of a listed impairment, the claimant is disabled. 20 C.F.R. § 404.1520(a)(4)(iii). If not, the evaluation proceeds to step four.
At step four, if—based on the claimant's residual functional capacity ("RFC")—the claimant can still perform their past work, they are not disabled. 20 C.F.R. § 404.1520(a)(4)(iv). The RFC is a determination of "the most [the claimant] can do despite [the claimant's] limitations." 20 C.F.R. § 404.1520(a)(1). If the ALJ finds that the claimant can perform their past relevant work, they are not disabled; if they are not able to perform such work, the evaluation moves to step five.
For the fifth and final step, the burden shifts from the claimant to prove disability to the Commissioner to "identify specific jobs existing in substantial numbers in the national economy that the claimant can perform despite [his] identified limitations." Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (citing Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995)). If the Commissioner can identify work that the claimant could perform, they are not disabled; if not, the claimant is disabled and entitled to benefits. 20 C.F.R. § 404.1520(g)(1).
D. The ALJ's Decision
At the first step of his analysis, the ALJ determined that A.P. was not disabled through November of 2013 because he had worked in a warehouse and as a janitor during that time, earning more than the threshold for substantial gainful activity. AR at 30-31. The ALJ determined that A.P. had not engaged in substantial gainful activity after that date. Id. at 31.
At the second and third steps, the ALJ concluded that A.P. had two severe impairments—major depressive disorder and polysubstance abuse disorder—but his impairments did not meet or equal the severity of a listed impairment. Id. The ALJ found that A.P.'s impairments caused only "mild limitations in the ability to understand, remember, or apply information; moderate difficulties in the ability to interact with others; mild to moderate difficulties in maintaining the ability to concentrate, persist, or maintain pace; and no evidence of difficulties in the ability to adapt or manage oneself." Id. Because the ALJ did not find at least two "marked" limitation or one "extreme" limitation in those categories, the ALJ determined that A.P. did not meet Paragraph B of Listing 12.04, encompassing depression. Id. The ALJ stated without further explanation that "the evidence fails to establish the presence of the 'paragraph C criteria." Id.
The ALJ assessed A.P.'s RFC as follows:
[T]he claimant has the residual functional capacity to perform a full range of work at all exertional levels but with the following nonexertional limitations: the claimant is limited to hearing and understanding simple oral instructions and to communicating simple information. He could not work at unprotected heights, around moving machinery or operating a motor vehicle. He is limited to work that is simple, routine, and repetitive that is not at a production rate (for example, assembly work). He is limited to simple work-related decisions. He occasionally could respond appropriately to supervisors, co-workers, and the public. He would be absent from work two days per month.Id. at 32.
In reaching that determination, the ALJ concluded that although A.P.'s impairments reasonably could be expected to cause his reported symptoms, "these symptoms are not entirely consistent with the medical evidence and other evidence in the record." Id. at 33. The ALJ did not identify particular portions of A.P.'s testimony or other reports that were not credible, nor did he provide specific reasons for discounting A.P.'s credibility other than the vague assertion that his alleged symptoms were "not entirely consistent" with the record. See id.
The ALJ acknowledged that "[p]sychological evaluations noted depressive symptoms but some evaluators found the claimant no more than moderately limited while others found more severe limitations." Id. He noted instances in the record where A.P. reported that treatment and medication were helpful, and instances of "essentially benign treatment notes," including when A.P. was incarcerated in November of 2013. Id. The ALJ also noted that A.P. failed to attend the consultative examination arranged by the state agency. Id. at 34.
The ALJ recounted Dr. Kalich's report, but determined that it lacked "probative value as to [A.P.'s] residual functional ability in the absence of drugs and alcohol" because Dr. Kalich "did not distinguish between the effects of the psychological disorder and the substance use." Id. at 33-34. The ALJ assigned "good weight" to nurse practitioner Whiteside's conclusion that A.P. "would have serious difficulties with many work activities, but no work activities were precluded," but failed to address Whiteside's opinions that A.P. would miss four days of work per month and that his impairments would be equally severe in the absence of substance use. Id. at 34. The ALJ rejected Dr. Sakhai's 2017 report as "not well supported by the treatment notes indicating that [A.P.] was doing well or by any discussion of the effects of the drug and alcohol use." Id. According to the ALJ, a finding of mild to moderate severity is consistent with treatment notes from May of 2014. Id.
The ALJ determined that reports of severe limitations from A.P.'s February 2016 crisis residential treatment had "little probative value" because they "reflect only a snapshot of [his] ability when he was first seen after excessive alcohol use and is not a true reflection of the most he could do once the acute symptoms resolved with treatment and adherence to medications," noting that A.P. improved with treatment and abstinence from substances, although the ALJ did not note specifically that A.P. was treated at a residential crisis facility. Id. The ALJ also noted that, while there was "no period during which [A.P.] likely was not using drugs and alcohol," A.P. was able to maintain employment from February 2013 to November 2013 with occasional drug and alcohol use, and thus should be able to work if he holds himself to moderate—as opposed to "acute and intense"—use of drugs and alcohol. Id. at 34-35.
Whether the ALJ ultimately considered A.P.'s substance use material to his decision is unclear. He concluded as follows:
Even if the alcohol and drug use was material to a finding of disability, that would not change the overall outcome of the case. With intense drugs and alcohol, the severity of his symptoms might have met or equaled the requirement of a listing or precluded regular work activity. Therefore, taking into consideration the drugs and alcohol, he likely would have been disabled. However, following the second prong of the DAA [i.e., drug abuse or alcoholism] analysis, with the absence or near-absence of the drugs and alcohol, as in 2013, the claimant was able to sustain work activity, so a finding of disability would be precluded (SSR 132p). Therefore, the claimant did not meet his burden to demonstrate that whether or not he was using drugs and alcohol, he has been disabled.Id. at 35.
It is not clear whether the ALJ credited A.P.'s testimony that he experienced auditory hallucinations, or the reports to that effect from a number of his treatment providers. The ALJ noted "hearing voices" as one of A.P.'s alleged symptoms, but did not address the issue further. See id. at 32. The ALJ acknowledged only that A.P. "has some symptoms of depression, including some impaired concentration and memory, which would affect his ability sustain work." Id. at 35.
Taking into account the VE's testimony, the ALJ determined that A.P. could perform his past work as a warehouse worker, cleaner, and hand packager, and thus concluded at step four of the five-step analysis that A.P. was not disabled. Id. at 36.
E. The Parties' Arguments
1. A.P.'s Motion for Summary Judgment
A.P. argues that the ALJ erred in wholly failing to address Dr. Sakhai's November 2014 opinion. Pl.'s Mot. (dkt. 23) at 7-8. A.P. also argues that the ALJ failed to provide sufficient reasons for rejecting Dr. Sakhai's July 2015 opinion, id. at 8-11, and March 2017 opinion, id. at 11-14. According to A.P., while the ALJ purported to give "good weight" to nurse practitioner Whiteside's opinions, the ALJ erred in failing acknowledge: (1) Whiteside's diagnosis of PTSD; (2) Whiteside's assessment that A.P. would miss four days of work per month; (3) Whiteside's determinations that A.P.'s impairments were not caused by substance use and that his symptoms would remain as severe in the absence of substance use; (4) Whiteside's assessment that A.P. would be "seriously limited" in a number of abilities; (5) Whiteside's conclusion that A.P. had a "marked" limitation in concentration, persistence, or pace; and (6) Whiteside's report that A.P. had experienced episodes of decompensation. Id. at 14-18. A.P. contends that the ALJ also erred in cherry picking portions of Dr. Kalich's evaluation while misrepresenting both the extent of, and Dr. Kalich's consideration of, A.P.'s drug and alcohol use, id. at 18-22, and that the ALJ understated the severity of A.P.'s symptoms during his inpatient treatment at Woodroe Place and failed to account for Dr. Justice's December 2016 assessment, id. at 22-25.
Taken together, A.P. argues that the "ALJ erred by disregarding, undervaluing, and effectively rejecting every treating and examining opinion in the record," id. at 25, with those errors including failing to meet the high standard to reject disability based on drug and alcohol use, id. at 25-27, wrongfully determining that A.P.'s impairment met no listing, id. at 27, and determining that A.P.'s residual functional capacity would allow him to work, id. at 28. A.P. asks the Court to remand for an award of benefits based on the Ninth Circuit's "credit-as-true" rule. Id. at 29.
Going forward and in future cases, Plaintiff's counsel is admonished to comply with the twenty-five-page limit for motions or, in exceptional circumstances, to seek leave to file additional pages. See Civ. L.R. 7-2(b).
2. The Commissioner's Motion to Remand
Rather than file a motion for summary judgment to affirm the ALJ's decision, the Commissioner moves to remand for further administrative proceedings. See generally Def.'s Mot. (dkt. 28). The Commissioner specifically concedes error with respect to the ALJ's failure to explain conflicts between the residual functional capacity he assessed and aspects of nurse practitioner Whiteside's opinions, despite stating that he afforded Whiteside's opinions "good weight." Id. at 1.
The Commissioner preserves his objection in principle to the Ninth Circuit's credit-as-true rule, but does not dispute that this Court is bound by that precedent. Id. at 2 & n.3. The Commissioner argues that even under the Ninth Circuit's framework, however, remand for an award of benefits should be a rare exception, and further proceedings are necessary here to determine whether A.P.'s impairments were caused by his drug or alcohol use, which some of A.P.'s treatment providers noted as contributing to his impairment and others "failed to acknowledge." Id. at 2-4. The Commissioner also argues that the Court cannot credit treating physicians' opinions regarding A.P.'s limitations as true because those opinion conflict with the state agency doctors' opinions, which were consistent with the ALJ's conclusions even though the ALJ "did not address" them. Id. at 4-5. The Commissioner further contends that the credit-as-true rule is inappropriate in light of a handful of "benign mental status examination findings"—including an incident where A.P. "was arrested and off his medications"—and in light of the ALJ's determination that A.P. himself was not credible and not consistently compliant with his medication. Id. at 6-7. The Commissioner notes that disability benefits may not be awarded solely due to error by the Social Security Administration, but instead require a showing that the claimant is actually disabled. Id. at 7 (citing Brown-Hunter v. Colvin, 806 F.3d 487, 495 (9th Cir. 2015)).
3. A.P.'s Reply
A.P. argues in his reply brief that the outcome the Commissioner seeks here "is precisely the type of carte blanche 'do-over' that the credit-as-true rule is designed to prevent." Reply (dkt. 29) at 4. According to A.P., the Commissioner's only basis for remand is to allow an ALJ to revisit the medical opinion evidence that the ALJ failed to consider properly the first time, which is not permitted under Ninth Circuit precedent. See id. at 3-4. A.P. notes that Dr. Sakhai assessed marked limitations in a number of categories and determined that his impairments are not caused by substance use, and argues that the opinions of nurse practitioner Whiteside, Dr. Kalich, and other treatment providers support those conclusions. Id. at 4-5. A.P. contends that, in the absence of any treating or examining doctor's opinion that his impairments would be diminished if he did not use drugs or alcohol, the record cannot support a conclusion that substance use is a contributing factor in his disability, particularly in light of the stringent standard required to support such a conclusion and deference afforded to treatment providers under Social Security Ruling 13-2p. See id. at 5-6, 8-10.
III. ANALYSIS
A. Legal Standard
District courts have jurisdiction to review the final decisions of the Commissioner and may affirm, modify, or reverse the Commissioner's decisions with or without remanding for further hearings. 42 U.S.C. § 405(g); see also 42 U.S.C. § 1383(c)(3).
When reviewing the Commissioner's decision, the Court takes as conclusive any findings of the Commissioner that are free of legal error and supported by "substantial evidence." Substantial evidence is "such evidence as a reasonable mind might accept as adequate to support a conclusion" and that is based on the entire record. Richardson v. Perales, 402 U.S. 389, 401 (1971). "'Substantial evidence' means more than a mere scintilla," id., but "less than a preponderance." Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988) (citation omitted). Even if the Commissioner's findings are supported by substantial evidence, the decision should be set aside if proper legal standards were not applied when weighing the evidence. Benitez v. Califano, 573 F.2d 653, 655 (9th Cir. 1978) (quoting Flake v. Gardner, 399 F.2d 532, 540 (9th Cir. 1978)). In reviewing the record, the Court must consider both the evidence that supports and the evidence that detracts from the Commissioner's conclusion. Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (citing Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985)).
If the Court identifies defects in the administrative proceeding or the ALJ's conclusion, the Court may remand for further proceedings or a calculation of benefits. See Garrison v. Colvin, 759 F.3d 995, 1019-21 (9th Cir. 2014). "When the ALJ denied benefits and the court finds error, the court ordinarily must remand to the agency for further proceedings before directing an award of benefits." Leon, 880 F.3d at 1045 (citing Treichler, 775 F.3d at 1099). "[A]n ALJ's failure to provide sufficiently specific reasons for rejecting the testimony of a claimant or other witness does not, without more, require the reviewing court to credit the testimony as true." Treichler, 775 F.3d at 1106. In appropriate circumstances, however, the court may order immediate award of benefits under the Ninth Circuit's "credit-as-true" rule. Leon, 880 F.3d at 1045 (citing Garrison, 759 F.3d at 1019).
The district court may remand to the ALJ to calculate and award benefits when: (1) "the ALJ failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion"; (2) "there are [no] outstanding issues that must be resolved before a disability determination can be made" and "further administrative proceedings would [not] be useful"; and (3) "on the record taken as a whole, there is no doubt as to disability." Leon, 880 F.3d at 1045 (citations and internal quotation marks omitted); Varney v. Sec'y of Health & Human Servs., 859 F.2d 1396, 1401 (9th Cir. 1988) (emphasizing that the credit-as-true rule applies to both claimant testimony and medical opinion evidence); see also Garrison, 759 F.3d at 1021 (holding that a district court abused its discretion in declining to apply the "credit as true" rule to an appropriate case). The credit-as-true rule does not apply "when the record as a whole creates serious doubt as to whether the claimant is, in fact, disabled within the meaning of the Social Security Act," Garrison, 759 F.3d at 1021, when "there is a need to resolve conflicts and ambiguities," Treichler, 775 F.3d at 1101, or when there is ambiguity about when the claimant's disability began that is not solved by the record credited as true. See Dominguez v. Colvin, 808 F.3d 403, 409 (9th Cir. 2015). This credit-as-true rule, which is "settled" in the Ninth Circuit, Garrison, 759 F.3d at 999, is intended to encourage careful analysis by ALJs, avoid duplicative hearings and burden, and reduce delay and uncertainty facing claimants, many of whom "suffer from painful and debilitating conditions, as well as severe economic hardship." Id. at 1019 (quoting Varney, 859 F.2d at 1398-99).
B. The Credit-as-True Rule Warrants an Award of Benefits
The Commissioner does not dispute that the ALJ erred in failing to address the aspects of nurse practitioner Whiteside's opinions that conflict with the ALJ's conclusions, but argues that the Court should remand for further proceedings rather than an award of benefits because A.P.'s "undisputed substance abuse, the conflicting medical opinions and evidence, and the ALJ's discussion of [A.P.'s] subjective statements all represent outstanding conflicts in the record that preclude a judicial finding of disability." Def.'s Mot. at 28. The Commissioner does not specifically address whether the ALJ erred in rejecting or failing to address opinions of Dr. Sakhai, Dr. Kalich, and Dr. Justice.
No party disputes that the Commissioner would be required to find A.P. disabled if Dr. Sakhai's opinions that he would miss more than three days or at least four days of work per month, AR at 842, 867, or Whiteside's opinion that he would miss four days of work per month, id. at 847, were taken as true. The Commissioner has identified no medical opinion in the record contradicting those opinions. The Court does not reach the question of whether the Ninth Circuit's credit-as-true rule can apply to an opinion of a non-physician, "other" source like nurse practitioner Whiteside, because there is no question that it can apply to medical opinions from a treating physician like Dr. Sakhai, and both of those providers' opinions are materially identical with respect to A.P.'s absence from work. Because the Commissioner has not argued that the ALJ provided sufficient reasons to reject either of their opinions, the remaining questions are whether further administrative proceedings would be useful, and whether the record as a whole evinces doubt as to disability. Leon, 880 F.3d at 1045. The Court addresses the Commissioner's arguments as to those issues in turn.
The Commissioner argues only that the case should be remanded for further consideration of the existing record. See Def.'s Mot. at 1. To the extent that A.P.'s failure to appear for a consultative examination might support an argument that the case should be remanded to conduct such an examination, the Commissioner has waived any such argument by failing to raise it in his motion.
1. Substance Use
First, with respect to A.P.'s substance use, Social Security Ruling 13-2p sets forth the standard for determining when drug abuse or alcoholism ("DAA") is material to a claimant's mental impairment:
7. What do we do if the claimant's co-occurring mental disorder(s) improve in the absence of DAA?SSR 13-2p, 2013 WL 621536, at *9 (Feb. 20, 2013). Under SSR 13-2p:
a. Many people with DAA have co-occurring mental disorders; that is, a mental disorder(s) diagnosed by an acceptable medical source in addition to their DAA. We do not know of any research data that we can use to predict reliably that any given claimant's co-occurring mental disorder would improve, or the extent to which it would improve, if the claimant were to stop using drugs or alcohol.
b. To support a finding that DAA is material, we must have evidence in the case record that establishes that a claimant with a co-occurring mental disorder(s) would not be disabled in the absence of DAA. Unlike cases involving physical impairments, we do not permit adjudicators to rely exclusively on medical expertise and the nature of a claimant's mental disorder.
c. We may purchase a CE in a case involving a co-occurring mental disorder(s). We will purchase CEs primarily to help establish whether a claimant who has no treating source records has a mental disorder(s) in addition to DAA. See Question 8. We will provide a copy of this evidence, or a summary, to the CE provider.
d. We will find that DAA is not material to the determination of disability and allow the claim if the record is fully developed and the evidence does not establish that the claimant's co-occurring mental disorder(s) would improve to the point of nondisability in the absence of DAA.
Periods of abstinence may be considered evidence of whether DAA is material in cases involving co-occurring mental disorders, so long
as the "claimant is abstinent long enough to allow the acute effects of drugs or alcohol abuse to abate." SSR 13-2p(9), 2013 WL 621536, at *12. To find DAA material, there must be evidence demonstrating that any remaining limitations were not disabling during the period. SSR 13-2p(9)(b), 2013 WL 621536, *12.Wall v. Berryhill, No. 16-cv-01374-SK, 2017 WL 2901701, at *7 (N.D. Cal. Apr. 24, 2017). Improvement during periods of abstinence in a structure treatment setting is not sufficient; the Social Security Administration "need[s] evidence from outside of such highly structured treatment settings demonstrating that the claimant's co-occurring mental disorder(s) has improved, or would improve, with abstinence." SSR 13-2p, 2013 WL 621536, at *13 (emphasis added). "In addition, a record of multiple hospitalizations, emergency department visits, or other treatment for the co-occurring mental disorder—with or without treatment for DAA—is an indication that DAA may not be material even if the claimant is discharged in improved condition after each intervention." Id.
A.P. also relies on a section of SSR 13-2p acknowledging that "[t]reating sources, especially specialists, may have the best understanding of . . . the extent to which the other impairment(s) would likely improve absent DAA," but that language appears in a section addressing physical impairments, which is not applicable to A.P.'s claim based on mental impairment. See SSR 13-2p, 2013 WL 621536, at *8.
The Commissioner has not explained how the record available here could satisfy that standard for finding A.P.'s substance use material to his disability. As the ALJ acknowledged, there is no extended period of abstinence documented in the record. AR at 35. The period of purportedly reduced usage in 2013 precedes most of the alleged period of disability and all of the period now at issue—A.P. initially alleged disability beginning in February of 2013, but does not contest the ALJ's conclusion that he was not disabled through the end of his employment in November of 2013—and Dr. Kalich's conclusion in 2014 that A.P.'s symptoms had worsened over time, id. at 695, is not contradicted in the record. It is also not entirely clear how the ALJ reached the conclusion that A.P.'s substance use was more moderate during that period or whether such a conclusion can be supported by the record. The ALJ notes that A.P. described his use as "intermittent" during that time, but A.P. also reported only intermittent use during much of his alleged period of disability when he was not working. It appears that the ALJ might have concluded, tautologically, that because A.P. maintained employment, his substance use must have been reduced, and therefore his subsequent inability to work was caused by increased substance use.
To the extent the ALJ relied on A.P.'s purported recovery after treatment and "apparently abstaining from drugs and alcohol" in February of 2016 to show a material effect of substance use, id. at 34, that period of crisis residential treatment was the sort of "highly structured treatment setting" that cannot establish materiality of substance use as compared to abstinence under SSR 13-2p, because the effects of the structured setting and treatment cannot be decoupled from any beneficial effect of abstinence. See SSR 13-2p, 2013 WL 621536, at *13; AR at 1091-1107. Moreover, notes from that period of treatment indicate that A.P. "continue[d] to struggle with staying sober," id. at 1106, calling into question whether he was in fact abstaining from substance use at that time.
Contrary to the Commissioner's assertion that "none of the providers on whose opinions Plaintiff relies clarified whether they would have assessed the same limitations had Plaintiff refrained from substance abuse," Def.'s Mot. at 4, Dr. Sakhai and nurse practitioner Whiteside both reported that A.P.'s impairments would remain as severe in the absence of substance use, AR at 842, 847, 867. And contrary to the Commissioner's assertion that Whiteside and Dr. Sakhai "wholly failed to acknowledge [A.P.]'s substance abuse," Def.'s Mot. at 4, both documented his substance use in their treatment notes. See, e.g., AR at 805 (progress note by Dr. Sakhai reporting that A.P. "spoke about his struggle with alcohol and using at as self-medication"); id. at 834 (initial assessment form by Dr. Sakhai noting A.P.'s drug and alcohol use); id. at 907 (note by Whiteside stating A.P. "reported that he has been continuing to drink and smoke mj"). The record does not support a conclusion that either Whiteside's or Dr. Sakhai's opinion that A.P.'s symptoms would be as severe in the absence of substance use was based on a lack of knowledge of such use.
Dr. Kalich's opinions that "[c]hronic use of alcohol likely exacerbated [A.P.'s] feelings of depression" and "his intermittent use of cocaine may also intensify fluctuations in his mood" do not go so far as stating that he would be able to sustain regular attendance at work without his substance use, particularly given Dr. Kalich's conclusions that "it is unlikely that his symptoms are the sole product of his use" because they "have persisted during periods of reported sobriety and decreased use," and that he "is unlikely to be able to adhere to a typical work schedule. Id. at 694. State agency consulting psychiatrist Dr. Covey reported that A.P. suffered from substance addiction, id. at 112, but—presumably familiar with the Social Security Administration's analytical framework for DAA materiality—concluded that "[t]here is no evidence of any substance abuse disorder/DAA issue," id. at 116. Drs. Williams and Ahmed reached the same conclusions on reconsideration. Id. at 141, 145.
Viewing the record as a whole, there is no medical opinion evidence that A.P. would have a greater ability to maintain regular attendance but for substance use. Even if there were, the Commissioner could not rely on such an opinion under SSR 13-2p, which acknowledges the lack of "research data that we can use to predict reliably that any given claimant's co-occurring mental disorder would improve, or the extent to which it would improve, if the claimant were to stop using drugs or alcohol." SSR 13-2p, 2013 WL 621536, at *9. Because the current record would not support a finding that A.P.'s drug and alcohol use were material to his impairments under the Social Security Administrations rules for such analysis, the Court finds no need for further proceedings to allow an ALJ to reconsider that issue.
2. Conflicts in the Record
The Commissioner contends that Whiteside's opinions that A.P. would not be entirely precluded from any work activities "seems to conflict" with his opinion that A.P. would be absent from work four days per month. Def.'s Mot. at 5. Taken as a whole, Whiteside's opinion was that A.P.'s impairments would not entirely preclude him from working when he attended work, but he would be absent from work four days per month. AR at 847-50. The amount of absence that an employer would tolerate does not fall within Whiteside's area of expertise as a nurse practitioner. The VE, whose expertise encompasses such issues, testified that missing three or more days per month would preclude work. Id. at 91-93. The Court discerns no meaningful conflict.
The Commissioner also cites the non-examining state agency doctors' opinions regarding the severity of A.P.'s impairments—specifically, that they were less severe than assessed by his treatment providers—as conflicts requiring remand. Def's Mot. at 5. None of the consultants addressed whether A.P. could maintain regular attendance with fewer than the four-or-more monthly absences predicted by Whiteside and Dr. Sakhai. "[T]he opinion of a treating physician is . . . entitled to greater weight than that of an examining physician, [and] the opinion of an examining physician is entitled to greater weight than that of a non-examining physician." Garrison, 759 F.3d at 1012. The non-examining consultants' assessment of generally less severe symptoms would not be a sufficient basis on remand to reject a treating physician's opinion on absences from work, an issue the consultants did not specifically address
The remaining "inconsistencies" identified by the Commissioner are merely instances where A.P.'s symptoms did not present as particularly severe. See Def.'s Mot. at 6. Addressing an ALJ's decision to reject a claimant's symptom testimony on similar grounds, the Ninth Circuit has held that the claimant's testimony of intermittently severe symptoms should be credited as true despite instances where his symptoms were less severe:
It is an error to reject a claimant's testimony merely because symptoms wax and wane in the course of treatment. Cycles of improvement and debilitating symptoms are a common occurrence, and in such circumstances it is error for an ALJ to pick out a few isolated instances of improvement over a period of months or years and to treat them as a basis for concluding a claimant is capable of working.Garrison, 759 F.3d at 1017. Fluctuations in the severity of A.P.'s symptoms are not inconsistent with periods of severe symptoms where he would be absent from work, as assessed by nurse practitioner Whiteside and Dr. Sakhai.
3. A.P.'s Credibility
Finally, the Commissioner argues that further proceedings are appropriate and the case cannot be remanded for benefits because the ALJ found A.P. himself not credible as to the severity of his symptoms. See Def.'s Mot. at 6-7.
While not raised in A.P.'s briefs as a basis for reversal, the ALJ's analysis A.P.'s credibility did not comport with Ninth Circuit precedent. In any event, the Ninth Circuit case on which the Commissioner relies held only that a district court did not abuse its discretion in denying a request to award benefits and instead remanding for further proceedings where the plaintiffs' claims were not only "undercut by the ALJ's adverse credibility determination, which was supported by evidence of skepticism on the part of her physicians about her claims of limitations as well as by inconsistent reports from [the plaintiff] herself," but also by inconsistencies in the treatment notes of the doctor whose opinion the plaintiff argued should be credited, inconsistencies with other treating physicians' opinions, and an unresolved issue regarding her alleged onset date. Dominguez, 808 F.3d at 408-09. Dominguez did not hold that an ALJ's finding that a plaintiff is not himself credible precludes applying the credit-as-true rule to uncontradicted opinions of a treating physician. The Commissioner has not explained why any question of A.P.'s credibility would undermine Dr. Sakhai's and nurse practitioner Whiteside's opinions regarding absences from work. The Court declines to require further administrative proceedings on that basis.
A.P.'s present motion does not challenge the ALJ's assessment of A.P.'s own testimony, and the Court does not rely on that error in resolving the parties' motions. The Court notes, however, that the Social Security Administration's consistent failure to acknowledge and comply with binding Ninth Circuit precedent regarding symptom testimony has resulted in countless appeals and reversals of ALJ decisions, engendering unnecessary delay and public expense. The Ninth Circuit has repeatedly held that if an ALJ determines that a claimant's medically determinable impairments could result in the symptoms alleged and does not affirmatively find that the plaintiff is malingering, the ALJ can only reject the claimant's testimony about the severity of those symptoms by offering "'specific, clear, and convincing reasons for doing so.'" Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (quoting Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)). In presenting such reasons, "'[g]eneral findings are insufficient; rather, the ALJ must identify what testimony is not credible and what evidence undermines the claimant's complaints.'" Berry v. Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010) (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)). The ALJ's analysis here did not acknowledge or meet those standards. --------
IV. CONCLUSION
For the reasons discussed above, the Court concludes that the ALJ failed to provide sufficient reasons to reject Dr. Sakhai's opinion regarding A.P.'s absences from work, the Commissioner would be required to find A.P. disabled if that opinion were credited as true, and there is neither need for further administrative proceeding nor any doubt that A.P. is disabled. A.P.'s motion is therefore GRANTED, the Commissioner's motion is DENIED, and the case is REMANDED for calculation and award of benefits for a period of disability beginning at the termination of A.P.'s employment in November of 2013. The Clerk shall enter judgment in favor of A.P.
IT IS SO ORDERED. Dated: September 30, 2020
/s/_________
JOSEPH C. SPERO
Chief Magistrate Judge