Opinion
CV-21-00330-TUC-JGZ (DTF)
12-02-2022
Tonja Mize, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
HONORABLE D THOMAS FERRARO, UNITED STATES MAGISTRATE JUDGE.
Plaintiff Tonja Mize (Mize) brought this action pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3) seeking judicial review of the Commissioner of Social Security (Commissioner)'s final decision finding she was not disabled. (Doc. 1.) The parties have fully briefed the issues. (Docs. 21, 23, 24.) This matter was referred to the undersigned United States Magistrate Judge for a Report and Recommendation. (Doc. 18.) As more fully set forth below, based on the pleadings and the submitted administrative record (AR), the Court recommends the District Court, after its independent review, vacate the decision of the Commissioner and remand this matter for further proceedings.
BACKGROUND
Mize was born in 1969. (AR 206.) She has a GED and previously worked as a corrections officer, a cosmetologist, a shuttle driver, and a taxi driver. (AR 33, 45-46, 226, 700.) In December 2018, Mize was in an automobile accident in which she was the "third car in a rear-ender." (AR 34-35, 597, 760.) At the time of the accident, Mize was working; she filed a claim for workman's compensation. (AR 592, 760.) She received treatment for her back from Desert Sky Spine and Sports Medicine and Tucson Pain Institute in 2019 and 2020. (AR 513-90, 591-607, 711-721.) In 2020, Mize also saw a chiropractor for her back pain. (AR 760-809.)
Mize reported a long history of migraines. (AR 699, 708.) However, she claimed her migraines had become more frequent, occurring from twelve to sixteen days a month ranging from three hours to three days. (AR 708.) On August 28, 2019, Mize's primary care provider referred her to neurology for her reported migraines. (AR 612.) Mize told the neurology nurse practitioner that she could not tolerate higher doses of her preventative medication. (AR 691.) She stated other preventative medications had not provided relief. Id. The neurology nurse practitioner prescribed Emgality, a new preventative injectable. (AR 693.) But Mize's insurance did not approve the prescription. (AR 708.) In November 2019, the neurology nurse practitioner attempted to prescribe the medication again and noted that Mize's insurance had declined a second preventative injectable. (AR 708.) There is no indication in the record that this prescription was filled. In fact, on May 11, 2020, Mize's primary care provider noted Mize had recently been approved for a third preventative injectable. (AR 823.) The prescription was filled on June 5, 2020. (AR 815.)
In 2020, Mize started individual therapy for her anxiety and mental health issues. (AR 722-33.) Her appointments were telephonic. Id. She described that her anxiety had increased with the onset of menopause. (AR 722.) She also declined to take medication for her mental health symptoms because she worried about the potential interaction with her other medication and about potential side effects, including suicidal ideations. (AR 733, 745.) Mize expressed a concern to her primary care provider about medications interacting with her migraine treatments. (AR 814.) Mize was open to hypnotherapy. (AR 741.) In August 2020, Mize's primary care provider prescribed paroxetine for her panic attacks. (AR 819.) Mize's following appointment was telephonic. (AR 813.)
On August 12, 2019, Mize filed claims for disability benefits under both Title II and Title XVI for disabilities starting April 23, 2019. (AR 56, 206-213.) She claims disability based on the following impairments: low vision, chronic migraines, chronic back pain, and anxiety/depression. (AR 56.) Her fiance, fiance's daughter, and Mize's friend submitted letters in support of Mize's disability claim. (AR 298-303.)
Mize's claims were denied initially on December 4, 2019, and again on reconsideration on March 2, 2020. (AR 52, 54, 88, 90.) Mize requested a hearing. (AR 158.) On October 27, 2020, Administrative Law Judge (ALJ) Charles Davis held an administrative hearing. (AR 30.) Mize and Vocational Expert (VE) Susan Allison testified at the hearing. (AR 31, 32, 45.)
On November 23, 2020, the ALJ issued his unfavorable decision. (AR 10.) At step one, the ALJ concluded Mize had not engaged in substantial activity since the alleged onset date. (AR 16.) At step two, the ALJ determined Mize had the following severe impairments: degenerative disc disease, migraines, anxiety disorder, and depressive disorder. Id. At step three, the ALJ concluded that none of Mize's impairments, alone or in combination, were equal in severity those listed in 20 C.F.R. part 404, Subpart P, Appendix 1. Id. The ALJ considered whether Mize's mental impairments met the "paragraph B" criteria. (AR 16-18.)
Between steps three and four, the ALJ found Mize had the residual functional capacity (RFC) to perform light work with some exceptions. (AR 18.) The ALJ concluded Mize could not climb ladders, ropes, or scaffolds, could occasionally climb ramps and stairs, stoop, kneel, crouch and crawl, and could frequently balance. Id. Further, the ALJ stated Mize should not be exposed to hazards. Id. Finally, the ALJ said Mize should not have contact with the public as a part of her work duties. Id.
At step four, the ALJ concluded Mize was unable to perform any of her past relevant work. (AR 22-23.) At step five, the ALJ determined that someone with Mize's age, education, work experience, and RFC could perform positions that exist in significant numbers in the national economy. (AR 23.) Specifically, the ALJ agreed Mize could work as a bagger of garments, a cleaner, and a marker, tagger. (AR 24.) Thus, the ALJ resolved that Mize was not disabled. Id.
On June 30, 2021, the Appeals Council denied Mize's request for review. (AR 1-3.) On August 18, 2021, Mize filed a complaint challenging the ALJ's unfavorable decision. (Doc. 1.) This Court has jurisdiction pursuant to § 405(g).
ISSUES ON REVIEW
Mize raises three issues. (Doc. 21 at 2.) First, she states the ALJ failed to provide specific, clear and convincing reasons for rejecting her statements about her migraine symptoms. Id. at 2, 12-17. Specifically, Mize claims her migraines would cause absences of no less than two days per month. Id. at 13. Second, Mize contends the ALJ did not provide specific, clear and convincing reasons when rejecting her statements regarding her anxiety and depression. Id. at 2, 17-23. She also challenges the consideration of Dr. Noelle Rohen's report. Id. at 20-21. Finally, Mize asserts the ALJ did not provide germane reasons for discounting the lay witnesses' statements. Id. at 2, 23-24. Mize contends that the credit-as-true rule dictates reversing the Commissioner's decision and remanding for award of benefits. Id. at 25.
STANDARD OF REVIEW
Courts review only those issues raised by the party challenging the ALJ's decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). A person is disabled if their "physical or mental impairment or impairments are of such severity" that they are unable to do both their previous work and, considering their "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 their immediate area, whether a specific job vacancy exists for them, or whether they would be hired if they applied for work. 42 U.S.C. §§ 423(A)(2), 1382c(a)(3)(B).
Courts may overturn the decision to deny benefits only "when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole." Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001). This is because the ALJ "and not the reviewing court must resolve conflicts in the evidence, and if the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ." Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992); see Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1196 (9th Cir. 2004). Substantial evidence "must be more than a mere scintilla but may be less than a preponderance." Ahearn v. Saul, 988 F.3d 1111, 1115 (9th Cir. 2021) (quoting Molina v. Astrue, 674 F.3d 1104, 1110-11 (9th Cir. 2012)). Courts must consider the record as a whole and "may not affirm simply by isolating a 'specific quantum of supporting evidence.'" Ghanim v. Colvin, 763 F.3d 1154, 1160 (9th Cir. 2014) (quoting Hill v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012)).
Even if the ALJ made an error, courts may affirm if the error was harmless; in other words, if it was "inconsequential to the ultimate nondisability determination." Fordv. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020) (quoting Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008)). "A reviewing court may only consider the reasons provided by the ALJ in the disability determination and 'may not affirm the ALJ on a ground upon which he did not rely.'" Luther v. Berryhill, 891 F.3d 872, 875 (9th Cir. 2018) (quoting Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014)); see Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) (stating courts cannot "affirm the denial of benefits on a ground not invoked by the Commissioner in denying the benefits originally" (quoting Pinto v. Massanari, 249 F.3d 840, 847-48 (9th Cir. 2001))).
DISCUSSION
Standard for Considering Mize's Testimony
For an ALJ to discredit a claimant's testimony they must complete the following two-step analysis. Smith v. Kijakazi, 14 F.4th 1108, 1111 (9th Cir. 2021). "First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain or other symptoms alleged." Id. (quoting Garrison, 759 F.3d at 1014). The claimant need not present objective evidence of the symptom itself (e.g., pain), or of its severity. Garrison, 759 F.3d at 1014 (quoting Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996)).
Second, absent evidence of malingering, an ALJ can only reject the claimant's testimony as to the severity of their symptoms by offering specific, clear and convincing reasons. Id. at 1014-15. "General findings are insufficient; rather, the ALJ must identify what testimony is not credible and what evidence undermines the claimant's complaints." Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014) (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995), as amended (Apr. 9, 1996)); see also Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020) ("[T]he ALJ never identified which testimony she found not credible, and never explained which evidence contradicted that testimony." (quoting Brown-Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015))). Thus, to support a finding discrediting the claimant's credibility, an ALJ must point to specific facts in the record. Burrell, 775 F.3d at 1138. An ALJ must also link the testimony to the record supporting the non-credibility determination. Brown-Hunter, 806 F.3d at 494. An ALJ cannot reject a claimant's symptom testimony “solely because the available objective medical evidence does not substantiate [their] statements.” 20 C.F.R. § 404.1529(c)(2).
Here, between steps three and four of the decision, the ALJ found that Mize's "medically determinable impairments could reasonably be expected to cause the alleged symptoms." (AR 19.) The ALJ must then provide clear and convincing reasons for discounting Mize's symptom testimony. See Garrison, 759 F.3d at 1014-15. The ALJ stated "As for the claimant's statements about the intensity, persistence, and limiting effects of his or her symptoms, they are inconsistent because they are not fully supported by the medical evidence." (AR 19.) This is the incorrect standard. However, the Court will examine if the ALJ provided clear and convincing reasons when discounting Mize's testimony.
Discounting Mize's Migraine Testimony
Mize alleges the ALJ did not provide specific, clear and convincing reasons for rejecting her statements detailing her migraine symptoms. (Doc. 21 at 14.)
The relevant statements and testimony are as follows. On September 7, 2019, Mize filled out a headache questionnaire. (AR 235.) She reported headaches from 1999 to as recently as September 7, 2019. Id. She described migraines lasted "anywhere from 3 hours to 3 days." Id. She described feeling nauseous, experiencing light and noise sensitivity, and that she would throw up because of the pain. Id. She lamented that there were no known causes or triggers for the migraines. (AR 236.) In her Adult Function Report, Mize outlined that her migraines caused nausea that would interfere with her ability to complete tasks. (AR 247.)
In September 2020, Mize reported the neurology nurse practitioner "wasn't much help." (AR 294.) However, she noted the injectable "cut [her] migraines down to 2-3 a week, sometimes 4 times a week." Id. She expressed that "anything's better than every day." Id. At the October 2020 hearing, Mize testified that the injectable medications had reduced her migraines from every day to three or four times a week. (AR 41.) She reported the migraines lasted anywhere from three hours to three days with some sensitives afterwards. Id. She avowed that her migraines alone would cause her to miss two or more days of work a month, which the VE testified would eliminate any available work. (AR 42, 47-48.)
The Court will consider the reasons the ALJ mention in discounting Mize's migraine testimony in turn. None of the reasons amount to a clear and convincing reason supported by substantial evidence. As such, the Court agrees with Mize that the ALJ erred.
First, the ALJ found it significant that Mize refused to take Botox to reduce her migraines. (AR 20.) This is supported by the evidence. The neurology nurse practitioner suggested Botox at the same appointment Mize elected to try a new CGRP antagonists. (AR 693.) This does not provide clear and convincing reason for discounting Mize's testimony because Mize was still attempting new medication and treatments.
Second, the ALJ noted a physical exam in May 2019, which noted no abnormality related to the migraines. (AR 20 (citing AR 624).) The ALJ noted that Mize's cranial nerves were normal and that she had painless range of motion in her neck in October 2019. Id. The ALJ mentioned that, at a primary care appointment in January 2020, Mize did not mention migraines. Id. One, the "cause of migraines is generally unknown," such that these findings are not inconstant with Mize's reported migraines See Cindy H. v. Comm'r of Soc. Sec., 574 F.Supp.3d 923, 928-29 (W.D. Wash. 2021) (rejecting normal cranial nerve or appointment with no acute distress as inconsistent with migraines); Rhonda T. v. Comm'r of Soc. Sec., No. C18-5867 JCC, 2019 WL 2171545, at *2 (W.D. Wash. May 20, 2019) (rejecting intact cranial nerves and visits without acute distress as inconsistent with migraines); Bree Lyn C-W. v. Comm'r of Soc. Sec., No. 18-5400 BSH-BAT, 2018 WL 6331322, at *3 (W.D. Wash. Nov. 15, 2018), R. & R. adopted sub nom. Bree Lyn C.-L. v. Comm'r of Soc. Sec., No. C18-5400 BHS, 2018 WL 6329389 (W.D. Wash. Dec. 3, 2018) ("There is no evidence that 'intact cranial nerves' undermine plaintiff's headache testimony.") Two, migraines are an episodic condition, thus appointments without distress do not contradict Mize's reports. See Cindy H., 574 F.Supp.3d at 930. These notes are insufficient to discount Mize's symptom testimony.
Third, the ALJ stated "It is unclear as to whether the severity of claimant's 12-16 headaches would require her to miss work." (AR 21.) Mize testified that she had to be in a dark, quiet area during her migraines. (AR 41.) She also avowed that even after her migraines, she was "kind of out of it" with continued light and sound sensitivities. Id. Additionally, Mize missed a chiropractic appointment in May 2020. (AR 770.) Mize confirmed that her migraines would cause her to miss at least two days a month. (AR 41-42.) Even if Mize would not miss work for each migraine, the ALJ was required to consider and make findings regarding the amount Mize would miss.
Fourth, the ALJ mentioned that "[t]here is no further mention of frequency or duration for migraines after she was prescribed Emgality." (AR 21.) The ALJ notes that the insurance previously would not cover this medication. (AR 20.) On November 4, 2019, Emgality was prescribed once again. (AR 705.) On May 11, 2020, Mize's primary care provider noted Mize had recently been approved for a third preventative injectable. (AR 823.) The prescription was filled on June 5, 2020. (AR 815.) Finally, the ALJ's statement that there was no mention of frequency or duration after this point is inaccurate as the administrative hearing, where Mize described the frequency of her migraines, was after Emgality was prescribed or the third injectable prescription was filled. (Compare AR 30, 41 with 689, 705, 815.) Mize even filled out a medical treatment report in September 2020, which noted that the injectable had reduced her migraines to two to four times a week. (AR 294.) Hence, the ALJ did not provide a clear and convincing reason supported by substantial evidence to reject Mize's testimony.
The ALJ erred in discounting Mize's symptom testimony without providing clear and convincing reasons supported by the record. The Court must consider whether the error was harmless or not. See Ford, 950 F.3d at 1154. "If the ALJ fails to specify his or her reasons for finding claimant testimony not credible, a reviewing court will be unable to review those reasons meaningfully without improperly 'substituting] our conclusions for the ALJ's, or speculating] as to the grounds for the ALJ's conclusions.'" Brown-Hunter, 806 F.3d at 492 (alterations in Brown-Hunter) (quoting Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1103 (9th Cir. 2014)). Mize clearly testified that migraines alone would cause her to miss two or more days of work a month. (AR 41-42.) The VE explained that an individual matching the RFC later found by the ALJ missing two days per month on occasion or one time per month consistently would be unable to perform any work that exists in significant numbers. (AR 47-48.) Hence, the Court concludes this error was not inconsequential to the ultimate nondisability determination because changes in attendance could have altered the ALJ's conclusion.
Discounting Mize's Anxiety and Depression Testimony
Mize alleges the ALJ did not provide specific, clear and convincing reasons for rejecting her testimony about her mental health limitations (Doc. 21 at 17-21.)
Mize made the following statements about her mental health limitations. On September 9, 2019, Mize filled out an Adult Function Report. (AR 246, 253.) She described that her anxiety had worsened with the onset of menopause. (AR 246.) She depicted nightmares from her childhood abuse. (AR 247.) She stated that she went outside "as little as possible" and generally only with her then-boyfriend. (AR 249.) Mize also explained that her past sexual harassment "at almost every job" and that her childhood abuse in foster homes contributed to her social anxiety-particularly around men. (AR 252.) She conveyed that she did not take anti-depressants or anxiety medications because of the negative side effects. (AR 253.)
At the administrative hearing, Mize testified she was able to drive a little, but that generally her fiance drove her. (AR 37.) Even when she drove alone, Mize described needing to be on the phone with another person. (AR 43.) She stopped CODAC services because she felt like she was not improving. (AR 37.) She reported that her social anxiety contributed to her inability to work because her panic attacks were worsening and prevented her from going out into public. (AR 37-38.) Mize described having to conduct phone appointments with her primary care provider because of her panic attacks. (AR 39-40.) She also reported that triggers of her past abuse would cause her issues in leaving her home. (AR 42-43.) She explained that she had previously been sexually harassed at jobs and that she could not "tolerate people in public anymore." (AR 44.)
The Court will consider the reasons the ALJ mention in discounting Mize's anxiety and depression testimony in turn. None of the reasons amount to a clear and convincing reason supported by substantial evidence. As such, the Court agrees with Mize that the ALJ erred.
First, to the extent the ALJ relied on Mize's refusal of psychiatric medication, the ALJ erred in discounting Mize's testimony on this bases. ALJs may consider an "unexplained, or inadequately explained, failure to seek treatment." Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007). The ALJ never acknowledged or expressly considered Mize's explanation for declining psychiatric medication: fear of side effects and potential interaction with her migraine medications. (See AR 19-20, 253, 294, 814.) Mize's fiance even described a period in which Mize was on medication for anxiety. (AR 300.) He stated that the medication "made things 10 times worse!" Id. The ALJ failed to consider if these concerns were a sufficient explanation for not taking psychiatric medication and thus the failure to take psychiatric medication is not a clear and convincing reason for discounting Mize's symptom testimony.
Second, the ALJ considered Mize's daily activity to discount Mize's symptom testimony. (AR 17.) ALJs may discount claimants' testimony based on daily activities that either contradict their testimony or that meet the threshold for transferable work skills. Orn, 495 F.3d at 639. For example, the ALJ contrasted Mize's allegations "that she has difficulty following instructions, shopping, and driving" with statements that Mize "could perform simple maintenance, prepare meals, pay bills, and shop." (AR 17.) Mize stated she did shop, but she did it as little as possible and generally accompanied either by another person or someone on the phone. (AR 43, 249.) A therapy appointment was ended because Mize was running errands during the telephone session. (AR 733.) The ALJ also compared Mize's alleged limitation in concentrating and following instructions with statements that "she is also able to drive, prepare meals, and handle her own medical care." (AR 17.) Mize stated that she prepared sandwiches, cereal, or "small meals with a meat and side." (AR 248.) This hardly contradicts her allegations for concentrating or following instructions. These activities are not transferable work skill. These are not clear and convincing reasons for discounting Mize's testimony.
Finally, the ALJ considered notes that stated Mize had good eye contact and normal affect and was pleasant and cooperative. (AR 19-20.) The Ninth Circuit has rejected the notion that treatment notes of "good eye contact, organized and logical thought content, and focused attention" contradict with alleged depression and social anxiety. Ghanim v. Colvin, 763 F.3d 1154, 1164 (9th Cir. 2014). The notes must be read as a whole and considering the overall diagnostic record. Id. Even the ALJ points to appointments where Mize presented with anxious mood and animated affect. (AR 20.) In total, these notes are not inconsistent with Mize's testimony and do not provide a clear and convincing reason for rejecting her testimony. Thus, the ALJ did not provide a clear and convincing reason for rejecting or discounting Mize's testimony and erred.
Accordingly, the Court must consider whether the error was harmless or not. See Ford, 950 F.3d at 1154. Here, Mize testified that being around people made her anxious. (AR 43.) However, she also was anxious if she was alone or without a trusted person on the telephone. Id. The VE noted that if Mize cannot work on her own and cannot work near or around coworkers then that would eliminate any possible positions. (AR 50.) If the ALJ had credited Mize's alleged limitations from her anxiety, there would not have been any available positions at step five. Hence, the Court concludes this error was not inconsequential to the ultimate nondisability determination.
Discounting Lay Witness's Statements
"A germane explanation is required to reject lay witness testimony." Leon v. Berryhill, 880 F.3d 1041, 1046 (9th Cir. 2017). Here, Marcia Burtlow, Michelle Peraza, and William Bejarano Sr. all provided lay witness statements and evidence. (AR 298-303.) Generally, they all mentioned Mize's anxiety, migraines, and issues with going out into public. Id.
The ALJ mentioned Third-Party Function Reports when determining Mize's RFC (AR 22.) The ALJ concluded that these were supportive of and consistent with Mize's claims that she often stays in bed because of migraines and suffers from agoraphobia because of anxiety. Id. The ALJ did not mention discrediting or undermining these statements in any way. Id. However, the ALJ rejected or discounted many of those symptoms. (AR 19-21.) The ALJ clearly disregarded these statements in the RFC without providing a germane reason. This is an error. The Court has examined these symptoms above and found the error to be harmful; the same reasoning applies here.
REMEDY
Mize requests an award of benefits. (Doc. 21 at 1, 25.) The Commissioner argues that, if there is reversible error, the appropriate course is to remand for further investigation or explanation under the "ordinary remand rule." (Doc. 23 at 16-17.)
A federal court may affirm, modify, reverse, or remand a social security case. § 405(g). The proper course is generally to remand to the agency for additional investigation or explanation. Treichler, 775 F.3d at 1099. Under a "rare exception" to this rule, the Court may remand for an immediate award of benefits after conducting a three-part inquiry, often labeled the "credit as true" rule:
First, [the Court] ask[s] whether the ALJ failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion. Next, [the Court] determine[s] whether there are outstanding issues that must be resolved before a disability determination can be made, and whether further administrative proceedings would be useful.
When these first two conditions are satisfied, [the Court will] then credit the discredited testimony as true for the purpose of determining whether, on the record taken as a whole, there is no doubt as to disability.Leon, 880 F.3d at 1045 (cleaned up). The Court has discretion to remand for further proceeding even if it reaches the third step. Id. "Where an ALJ makes a legal error, but the record is uncertain and ambiguous, the proper approach is to remand the case to the agency." Id. (quotation marks and alteration omitted).
Here, the Court finds that the first step is satisfied. The ALJ failed to provide sufficient reasons for discounting Mize's testimony. At step two, the Court finds that while the administrative record is extensive, additional proceedings would be useful because it could be enlightening given the passage of time. See Treichler, 775 F.3d at 1101 (citing I.N.S. v. Orlando Ventura, 537 U.S. 12, 18 (2002)).
However, if the District Court continues to step three, the undersigned recommends finding that if Mize's testimony was credited, then there would be no doubt as to disability. Then it would be a matter of discretion whether to remand for benefits or further proceedings. The undersigned would still recommend remanding for further proceedings. Accordingly, this matter should be remanded for further proceedings.
RECOMMENDATION
Based on the foregoing, the Magistrate Judge RECOMMENDS that the District Court, after its independent review, enter an order vacating the Commissioner's final decision and remanding this matter for proceedings consistent with its opinion.
This Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Fed. R. App. P., should not be filed until entry of the District Court's judgment.
However, the parties shall have fourteen (14) days from the date of service of a copy of this Recommendation within which to file specific written objections with the District Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a, d), 72(b). Thereafter, the parties have fourteen (14) days within which to file a response to the objections. No reply briefs shall be filed unless the District Court grants leave to do so. The Clerk of Court is directed to terminate the referral of this matter. Filed objections should bear the following case number: CV 21-00330-TUC-JGZ. Failure to timely file objections to any factual or legal determination of the Magistrate Judge may be considered a waiver of a party's right to de novo consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).