Opinion
CV 20-00276-TUC-JCH (LAB)
10-25-2021
Kathryn Lucille Ford, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Leslie A. Bowman, United States Magistrate Judge.
The plaintiff filed this action for review of the final decision of the Commissioner for Social Security pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3). (Doc. 1, pp. 1; 2, n.2)
The case has been referred to the United States Magistrate Judge pursuant to the Rules of Practice of this court.
The Magistrate Judge recommends that the District Court, after its independent review, reverse the final decision of the Commissioner. The ALJ failed to give specific and legitimate reasons for discounting the opinion of the treating physicians. The case should be remanded for payment of benefits.
PROCEDURAL HISTORY
Ford filed an application for disability insurance benefits on October 15, 2016 and an application for supplemental security income on November 23, 2016. (Doc. 21-3, p. 14) She alleged disability beginning on April 23, 2016, due to “heart attack, stent placed; COPD [chronic obstructive pulmonary disease]; arthritis in spine; sleep apnea; depression; [and] degenerative disc [disease].” (Doc. 21-7, pp. 6, 7)
Her applications were denied initially and upon reconsideration. (Doc. 21-3, p. 14) Ford requested review and appeared with counsel at a hearing before Administrative Law Judge (ALJ) Paula Fow Atchison on February 13, 2019. (Doc. 21-3, p. 34) In her decision, dated April 16, 2019, the ALJ found that Ford was not disabled because there are jobs in the national economy that she can perform considering her age, education, work experience, and residual functional capacity. (Doc. 21-3, pp. 26-27) Ford requested review, but on April 28, 2020, the Appeals Council denied review making the decision of the ALJ the final decision of the Commissioner. (Doc. 21-3, pp. 2-6) Ford subsequently filed this action appealing that final decision. (Doc. 1)
Claimant's Work History and Medical History
Ford worked in the past as a nurse's assistant and as a cashier at a convenience store. (Doc. 21-3, pp. 39-40, 57) In early 2016, Ford experienced progressively worsening coronary artery disease. (Doc. 21-3, p. 23) She had a heart attack in March of 2016, and a stent was placed in her left anterior descending artery. Id; (Doc. 21-11, p. 9) She never returned to work.
Ford continues to have pain in her chest and arm. (Doc. 21-11, p. 9) “She also has severe bilateral leg pain and claudication [fatigue and numbness], which also gets worse with walking only 100 feet.” Id.
Medical Opinions
On March 15, 2017, Marilyn Orenstein, M.D., reviewed the medical records for the disability determination services. (Doc. 21-4, pp. 12-15, 26-29) Orenstein opined that Ford can lift or carry 20 pounds occasionally and 10 pounds frequently. Id. She can stand or walk for 4 hours in an 8-hour day. Id. She can sit for about 6 hours in an 8-hour work day. Id.
Ford also has postural limitations. (Doc. 21-4, pp. 12-15, 26-29) She should only occasionally climb ramps or stairs, stoop, kneel, or crouch. Id. She should never climb ladders, ropes, or scaffolds. Id. She should never crawl. Id. She also has manipulative limitations. Id. She is limited in reaching overhead on both sides. Id. She also has environmental limitations. Id. She should avoid concentrated exposure to extreme cold; extreme heat; wetness; humidity; fumes, odors, dusts, gases, and poor ventilation; and hazards such as machinery or heights. Id.
On March 23, 2017, Christopher Maloney, M.D., reviewed the medical records for the disability determination services on rehearing. (Doc. 21-4, pp. 46-49, 66-68) He agreed with Orenstein's opinion of Ford's exertional, postural, manipulative, and environmental limitations except he believed that Ford was not limited by wetness or humidity. Id.
On August 24, 2017, treating physician Abhay Rao, M.D., completed a Medical Assessment of Ability to do Work-Related Physical Activities. (Doc. 21-11, p. 32) He stated that Ford's functional limitations result from her cervical spine, degenerative disc, and connective tissue disease. (Doc. 21-11, p. 32) Rao opined that Ford could lift more than 15 pounds but less than 20 pounds, carry more than 10 pounds but less than 15 pounds, sit for less than 2 hours, and stand/walk for less than 2 hours. Id. She would have to alternate between sitting, standing, and walking at least every 20 minutes and rest for 10-15 minutes when she changes position. Id. She would miss six or more days of work per month due to her medical condition. (Doc. 21-11, p. 33)
On March 29, 2018, treating physician Shantha Kumar, M.D., completed a Medical Assessment of Ability to do Work-Related Physical Activities. (Doc. 21-12, p. 24) She stated that Ford's functional limitations result from her “shortness of breath” and “chest pain.” Kumar opined that Ford could lift more than 10 pounds but less than 15 pounds and carry less than 10 pounds. Id. She could sit for more than 3 hours but less than 4 hours and stand/walk for less than 2 hours. Id. She would have to alternate between sitting, standing, or walking at least every 20 minutes and would have to rest 1-4 minutes each time. Id. She would miss 2-3 days of work per month due to her medical condition. (Doc. 21-2, p. 25)
On February 11, 2019, Rao completed a second Medical Assessment. (Doc. 21-12, p. 96) His opinion of Ford's limitations in that Assessment was essentially the same as one he gave previously. (Doc. 21-12, pp. 96-97)
The Hearing
In February of 2019, Ford appeared at a hearing before the ALJ. (Doc. 21-3, p. 34) She stated that she was 46 years old. (Doc. 21-3, p. 39) Ford explained that she currently lives with her sister who is on disability. (Doc. 21-3, p. 42)
During the day, Ford does light household chores such as washing dishes, cooking, and laundry. (Doc. 21-2, p. 42) She spends most of her day watching television or chatting on the phone. (Doc. 21-3, pp. 48-50) She has difficulty standing, walking, or sitting in one position due to back pain and numbness in her legs. (Doc. 21-3, pp. 44-45) She can walk for only ten to twelve minutes because she gets short of breath. Id. She testified that lifting and carrying the groceries, “wears me out.” (Doc. 21-3, p. 52)
The vocational expert testified that a person with the functional limitations identified by the non-examining state agency consultants would be able to work. Specifically, he testified that a person with the claimant's age, education, and past work experience, who “could lift and carry a maximum of 20 pounds occasionally, 10 pounds . . . frequently, could stand and walk a maximum of four hours in an eight-hour day, could sit a minimum of six hours in an eight-hour day, ” and who had the postural and environmental limitations identified by the consulting vocational experts, could not perform Ford's past relevant work but could work as a storage facility rental clerk, router, or ticket seller. (Doc. 21-3, pp. 57-59)
The vocational expert conceded that an individual with the functional limitations identified by the treating physicians could not work. Specifically he testified that a person who requires additional breaks of one to two hours per day, who could not sit for four hours per day, who could not stand or walk for two hours per day, or who would be absent from work two or three days per month would not be able to work full-time. (Doc. 21-2, pp. 59-60)
CLAIM EVALUATION
Social Security Administration (SSA) regulations require that disability claims be evaluated pursuant to a five-step sequential process. 20 C.F.R. §§ 404.1520, 416.920. The first step requires a determination of whether the claimant is engaged in substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). If so, then the claimant is not disabled and benefits are denied. Id.
If the claimant is not engaged in substantial gainful activity, the ALJ proceeds to step two, which requires a determination of whether the claimant has a severe impairment or combination of impairments. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). In making a determination at step two, the ALJ uses medical evidence to consider whether the claimant's impairment significantly limits or restricts his or her physical or mental ability to do basic work activities. Id. If the ALJ concludes the impairment is not severe, the claim is denied. Id.
Upon a finding of severity, the ALJ proceeds to step three, which requires a determination of whether the impairment meets or equals one of several listed impairments that the Commissioner acknowledges are so limiting as to preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); 20 C.F.R. Pt. 404, Subpt. P, App.1. If the claimant's impairment meets or equals one of the listed impairments, then the claimant is presumed to be disabled, and no further inquiry is necessary. Ramirez v Shalala, 8 F.3d 1449, 1452 (9th Cir. 1993). If the claimant's impairment does not meet or equal a listed impairment, evaluation proceeds to the next step.
The fourth step requires the ALJ to consider whether the claimant has sufficient residual functional capacity (RFC) to perform past relevant work. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). If yes, then the claim is denied. Id. If the claimant cannot perform any past relevant work, then the ALJ must move to the fifth step, which requires consideration of the claimant's RFC to perform other substantial gainful work in the national economy in view of the claimant's age, education, and work experience. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). “The burden of proof is on the claimant at steps one through four, but shifts to the Commissioner at step five.” Garrison v. Colvin, 759 F.3d 995, 1011 (9th Cir. 2014).
Residual functional capacity is defined as that which an individual can still do despite his or her limitations. 20 C.F.R. §§ 404.1545, 416.945.
The ALJ's Findings
At step one of the disability analysis, the ALJ found that Ford “has not engaged in substantial gainful activity since April 23, 2016, the alleged onset date . . . .” (Doc. 21-3, p. 18) At step two, she found Ford “has the following severe impairments: coronary artery disease and chronic obstructive pulmonary disease (COPD) . . . .” Id.
At step three, the ALJ found that Ford's impairments did not meet or equal the criteria for any impairment found in the Listing of Impairments, Appendix 1, Subpart P, of 20 C.F.R., Part 404. (Doc. 21-3, p. 21)
The ALJ then analyzed Ford's residual functional capacity (RFC). She adopted the functional limitations identified by the non-examining state agency consultants. Specifically, she found that “the claimant has the residual functional capacity to perform light work . . . Except the claimant can stand or walk for four hours out of an eight-hour workday. She can sit for six hours out of an eight-hour workday. The claimant can frequently balance, but can only occasionally stoop, kneel, crouch, and climb ramps or stairs. She should never crawl or climb ladders, ropes and scaffolds. The claimant must avoid concentrated exposure to extreme temperatures, fumes, odors, gasses, and poor ventilation. She must avoid all exposure to hazards, such as dangerous machinery or unprotected heights.” (Doc. 21-3, p. 21)
At step four, the ALJ found that Ford is unable to perform any past relevant work. (Doc. 21-3, p. 25) At step five, the ALJ found, based on the testimony of the vocational expert, that, considering her age, education, work experience, and residual functional capacity, Ford can work as a storage facility clerk, router, or ticket seller. (Doc. 21-3, p. 27)
STANDARD OF REVIEW
To qualify for disability benefits the claimant must demonstrate, through medically acceptable clinical or laboratory standards, an inability to engage in substantial gainful activity due to a physical or mental impairment that can be expected to last for a continuous period of at least twelve months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). “An individual shall be determined to be under a disability only if [her] physical or mental impairment or impairments are of such severity that [she] is not only unable to do [her] previous work but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which [she] lives, or whether a specific job vacancy exists for [her] or whether [she] would be hired if [she] applied for work.” 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
The findings of the Commissioner are meant to be conclusive. 42 U.S.C. §§ 405(g), 1383(c)(3). The decision to deny benefits “should be upheld unless it contains legal error or is not supported by substantial evidence.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. It is “more than a mere scintilla but less than a preponderance.” Id.
“Where evidence is susceptible to more than one rational interpretation, the [Commissioner's] decision should be upheld.” Orn, 495 F.3d at 630. “However, a reviewing court must consider the entire record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence.” Id.
The Commissioner need not accept the claimant's subjective testimony of disability, but if he decides to reject it, he must justify his decision. Valentine v. Comm 'r Soc. Sec. Admin., 574 F.3d 685, 693 (9th Cir. 2009). “[W]ithout affirmative evidence showing that the claimant is malingering, the Commissioner's reasons for rejecting the claimant's testimony must be clear and convincing.” Id.
Discussion: Treating Physicians
The ALJ committed legal error when she improperly discounted the opinions of Ford's treating physicians, Abhay Rao, M.D., and Shantha Kumar, M.D. See Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). The court does not reach Ford's remaining claims of error.
“Because treating physicians are employed to cure and thus have a greater opportunity to know and observe the patient as an individual, their opinions are [ordinarily] given greater weight than the opinions of other physicians.” Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). If the treating physician's opinions are uncontradicted, the ALJ may disregard them only after giving clear and convincing reasons for doing so. Id. The ALJ may reject the treating physician's contradicted opinion only if she sets forth “specific and legitimate reasons supported by substantial evidence in the record.” Lester v. Chater, 81 F.3d 821, 830 (9th Cir.1996) (punctuation modified).
In this case, the opinions of Rao and Kumar are contradicted by the medical opinions of the non-examining state agency physicians, Orenstein and Maloney. (Doc. 21-4, pp. 12-15, 26-29); (Doc. 21-4, pp. 46-49, 66-68) Accordingly, the ALJ's decision to discount the opinions of the treating physicians must be supported by “specific and legitimate reasons supported by substantial evidence in the record.” Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996) (punctuation modified); see also Widmark v. Barnhart, 454 F.3d 1063, 1067 (9th Cir. 2006) (applying the “specific and legitimate” test). “This can be done by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating [her] interpretation thereof, and making findings.” Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007). “The ALJ must do more than offer [her] conclusions.” Id. “[She] must set forth [her] own interpretations and explain why they, rather than the doctor[s'], are correct.” Id.
If the treating source's opinion “is well-supported by medically and acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record, ” it must be given “controlling weight.” 20 C.F.R. § 404.1527(c)(2); § 416.927(c)(2). If the treating source's opinion is not given controlling weight, the ALJ must nevertheless analyze other factors such as the length, nature, and extent of the treating relationship; the supportability and consistency of the opinion; and the degree of medical specialization possessed by the treating source. 20 C.F.R. § 1527(c); § 416.927(c); see also Sameena, Inc. v. U.S. Air Force, 147 F.3d 1148, 1153 (9th Cir. 1998) (“[A] federal agency is obliged to abide by the regulations it promulgates.”). In sum, the ALJ must “give good reasons” for the weight given to the treating sources' opinions. 20 C.F.R. § 404.1527(c)(2); § 416.927(c)(2).
In this case, Ford's treating physicians opined that Ford had significant exertional and postural limitations. Rao opined that Ford could lift more than 15 pounds but less than 20 pounds, carry more than 10 pounds but less than 15 pounds, sit for less than 2 hours, and stand/walk for less than 2 hours. (Doc. 21-11, p. 32) Kumar opined that Ford could lift more than 10 pounds but less than 15 pounds, and carry less than 10 pounds. (Doc. 21-2, p. 25) She could sit for more than 3 hours but less than 4 hours, and stand/walk for less than 2 hours. Id
The ALJ however rejected the opinions of the treating physicians and found, based apparently on the opinions of the non-examining state agency consultants that Ford could perform light work with some restrictions. The ALJ's stated reasons for doing so are not “specific and legitimate.” See Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996) (punctuation modified).
The ALJ's decision reads in pertinent part as follows:
Two of the claimant's treating providers, Abhay Rao, M.D. and Shantha Kumar, M.D., submitted medical source statements on the claimant's behalf in August 2017 March 2018, and February 2019. Both providers opined that as a result of her impairments, the claimant is limited to a sedentary exertional level and would be expected to miss work at least two days per month (Exhibits 18F, 23F, 28F). The undersigned affords partial weight to the opinions of Dr. Rao and Dr. Kumar. Although they appear to have a treating relationship with the claimant, their assessments of her limitations are excessively restrictive and contrast sharply with the other medical evidence of record. In addition, the opinions of these two doctors are inconsistent with the claimant's own admitted activities of daily living. Therefore, the undersigned is unable to afford great weight to the opinions of Dr. Rao and Dr. Kumar.(Doc. 21-3, p. 24) (emphasis added) The ALJ's analysis is not legally sufficient.
The ALJ did not specify which of their limitations are “excessive” and how they “contrast sharply with the other medical evidence in the record.” (Doc. 21-3, p. 24) Neither did she explain how these opinions are inconsistent with Ford's “admitted activities of daily living.” Id. Instead, the ALJ simply offered a conclusory statement of her opinion. The ALJ, however, “must do more than offer [her] conclusions.” Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007). She must cite to the record to explain why she believes the limitations identified by the treating physicians are contradicted by other evidence in the record. The ALJ “must set forth [her] own interpretations and explain why they, rather than the doctor[s'], are correct.” Id. This, the ALJ failed to do. See also Reddick v. Chater, 157 F.3d 715, 725 n. 7 (9th Cir. 1998) (“In Embrey we rejected the ALJ's conclusory statements rejecting the treating doctor's opinion on disability . . . .”). The ALJ's conclusory statements are not “specific and legitimate” reasons for discounting the opinions of the treating physician. See Garrison v. Colvin, 759 F.3d 995, 1013 (9th Cir. 2014) (“[A]n ALJ errs when he rejects a medical opinion or assigns it little weight while doing nothing more than . . . criticizing it with boilerplate language that fails to offer a substantive basis for his conclusion.”); see, e.g., Kinzer v. Colvin, 567 Fed.Appx. 529, 530 (9thCir. 2014) (Where, “the ALJ concluded-without any explanation-that Ross's opinion was ‘not well-supported by the . . . other objective findings in the case record,' and that Biscoe's opinion ‘contrasted] sharply with the other evidence of record'” the court concluded that the ALJ had not provided specific and legitimate reasons.); Banda v. Comm 'r of Soc. Sec. Admin., 2019 WL 4141049, at *4 (D. Ariz. 2019) (The ALJ's statement that she gave little weight to the treating physician's medical opinion because “his assessment contrasts sharply with the medical evidence and is not supported by the treatment records” was “conclusory in nature” and “cannot serve as a specific and legitimate reason.”). Marlette-McGrew v. Colvin, 2016 WL 756524, at *4 (CD. Cal. 2016), judgment entered, 2016 WL 768505 (CD. Cal. 2016) (The AL J's statement that “[t]he opinions of the doctors are given limited weight because the medical evidence of record does not support them and they are inconsistent with the claimant's activities of daily living” is conclusory reasoning that “does not provide a legally sufficient basis for rejecting these treating-physician opinions.”).
In his response, the Commissioner asserts that when the ALJ stated that the opinions of the treating physicians were “excessively restrictive” and in sharp contrast “with the other medical evidence of record, ” she meant that they were contradicted by the opinions of the non- examining state agency medical consultants. (Doc. 31, pp. 11-12) The court finds this suggestion unlikely. First of all, she does not say that. Moreover, even if it were true, this contradiction, by itself, does not constitute a “specific and legitimate” reason for discounting the opinion of the treating physicians.
The court acknowledges that the opinions of the treating physicians are contradicted by the opinions of the non-examining consultants. As a consequence, the ALJ need only provide “specific and legitimate” reasons if she wants to discount the opinions of the treating physicians. If the opinions of the treating physicians were uncontradicted, the ALJ would have to provide “clear and convincing” reasons if she wanted to discount the opinions of the treating physicians. The existence of these contradictory opinions changes the ALJ's burden. It does not, by itself, constitute a “specific and legitimate” reason once the contradiction has been established. See Lester v. Chater, 81 F.3d 821, 831 (9th Cir. 1995), as amended (Apr. 9, 1996) (“The opinion of a nonexamining physician cannot by itself constitute substantial evidence that justifies the rejection of the opinion of either an examining physician or a treating physician.”).
The Commissioner further maintains that “the ALJ found that records indicating Plaintiff was responding well to medical management, improved after surgical interventions and that extensive cardiovascular workups of Plaintiff by Dr. Kumar did not substantiate Plaintiffs, Dr. Rao's or Dr. Kumar's alleged restrictive limitations.” (Doc. 31, p. 12) The ALJ, however, did not explicitly say that these were the reasons why she thought that the treating physicians' “assessments of [Ford's] limitations are excessively restrictive” or that this was “medical evidence of record” with which the opinions of the treating physicians “contrast sharply.” (Doc. 21-3, p. 24) The court “may not affirm the ALJ on a ground upon which [she] did not rely.” Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014).
The ALJ's discussion of the January 2017 cardiovascular workup does not contain a reference to Dr. Kumar. (Doc. 21-3, p. 23) She simply says that Ford “underwent an extensive cardiovascular workup” and “her stress nuclear imaging study was negative and her lower extremity arterial ultrasound study did not reveal any occlusive arterial disease.” Id. It is therefore unlikely that she relied on this workup when she concluded that Kumar's assessment of Ford's limitations was contradicted by the medical record. And if she did, one might suggest that the ALJ found a contradiction here because she is not a medical professional and is not qualified to discern what signs and symptoms should be expected in a person with the functional limitations identified by her treating physician. See, e.g., Cox v. Colvin, 2014 WL 6882390, 5 (C.D.Cal. 2014) (“Absent expert medical assistance, the ALJ could not competently translate the medical evidence into a residual functional capacity assessment.”).
Discussion: Remedy
The ALJ improperly discounted the opinions of Ford's treating physicians. “When the ALJ improperly ignores or improperly discounts significant and probative evidence in the record favorable to a claimant's position, such as an opinion from an examining or treating doctor, the ALJ thereby provides an incomplete residual functional capacity (RFC) determination.” Recknagle v. Berryhill, 2018 WL 5624187 at *4 (W.D. Wash. 2018) (punctuation modified), report and recommendation adopted, 2018 WL 5619204 (W.D. Wash. 2018). And, the vocational expert's testimony in reliance on that RFC is not substantial evidence that the claimant is able to work. Hill v. Astrue, 698 F.3d 1153, 1162 (9th Cir. 2012). The ALJ's decision in this case is not free from legal error and not supported by substantial evidence.
If the Commissioner is reversed, the court usually remands for further administrative proceedings. The court may, however, remand for payment of benefits if “(1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand.” Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014).
Here, all three requirements are fulfilled. “The record has been fully developed and further administrative proceedings would serve no useful purpose.” Garrison, 759 F.3d at 1020. As the Ninth Circuit observed in Garrison, “our precedent and the objectives of the credit-as-true rule foreclose the argument that a remand for the purpose of allowing the ALJ to have a mulligan qualifies as a remand for a ‘useful purpose' under the first part of credit-as-true analysis.” Garrison v. Colvin, 759 F.3d 995, 1021-1022 (9th Cir. 2014).
The ALJ failed to provide specific and legitimate reasons for discounting the opinions of Ford's treating physicians. Furthermore, if their opinions were credited as true, Ford necessarily would be found disabled. The vocational expert opined that a person with the functional limitations identified by the treating physicians would not be able to work.
All three parts of the Garrison test are fulfilled. The court has examined the entire record and finds no reason to seriously doubt that Ford is disabled. See Garrison, 759 F.3d at 1022-23. Accordingly, this case will be remanded for payment of benefits. See also Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) (“Allowing the Commissioner to decide the issue again would create an unfair ‘heads we win; tails, let's play again' system of disability benefits adjudication.”); Smith v. Colvin, 554 F. App'x 568, 569 (9th Cir. 2014) (remanding for payment of benefits because the Commissioner “did not meet her burden at step five of demonstrating that substantial gainful work exists in the national economy.”).
RECOMMENDATION
For the foregoing reasons, the Magistrate Judge recommends that the District Court, after its independent review, reverse the final decision of the Commissioner and remand for payment of benefits.
Pursuant to 28 U.S.C. § 636(b), any party may file and serve written objections within 14 days after being served with a copy of this Report and Recommendation. If objections are not timely filed, the party's right to de novo review may be waived. The Local Rules permit the filing of a response to an objection. They do not permit the filing of a reply to a response without leave of the District Court.