Opinion
CV-21-00291-TUC-DCB (LCK)
07-25-2022
Lorina Tinker Rodriguez, Plaintiff, v. Acting Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Lynnette C. Kimmins United States Magistrate Judge
Plaintiff Lorina Rodriguez brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial review of a final decision by the Commissioner of Social Security (Commissioner). Plaintiff filed an opening brief, Defendant responded, and Plaintiff replied. (Docs. 18, 21, 22.) Pursuant to the Rules of Practice of the Court, this matter was referred to Magistrate Judge Kimmins for Report and Recommendation. Based on the pleadings and administrative record, the Magistrate Judge recommends the District Court, after its independent review, remand for the payment of benefits.
FACTUAL AND PROCEDURAL HISTORY
Rodriguez filed an application for Supplemental Security Income (SSI) in July 2019, alleging disability from January 1, 2005. (Administrative Record (AR) 168.) She was born in May 1984 and was 35 years of age on the application date. (Id.) She previously held part-time jobs, earning up to several thousand dollars per year, but ultimately was terminated from all of them. (AR 42-44, 177, 197.) Rodriguez's application was denied upon initial review (AR 55-68) and on reconsideration (AR 72-83). A telephonic hearing was held on January 28, 2021. (AR 31-54.)
The ALJ found Rodriguez had the severe impairment of major depressive disorder. (AR 17.) The ALJ determined that Rodriguez had the Residual Functional Capacity (RFC) to perform work at all exertional levels, but she was limited to simple, repetitive, routine tasks, only occasional changes in work routine, no public interaction, and occasional contact with coworkers and supervisors. (AR 20.) The ALJ decided at Step Five, based on the testimony of a vocational expert, that Rodriguez could perform the jobs of housekeeping cleaner, marker, and router. (AR 25.) The Appeals Council denied Rodriguez's request for review of that decision. (AR 1.)
STANDARD OF REVIEW
The Commissioner employs a five-step sequential process to evaluate SSI claims. 20 C.F.R. § 416.920; see also Heckler v. Campbell, 461 U.S. 458, 460-462 (1983). To establish disability the claimant bears the burden of showing she (1) is not working; (2) has a severe physical or mental impairment; (3) the impairment meets or equals the requirements of a listed impairment; and (4) claimant's RFC precludes her from performing her past work. 20 C.F.R. § 416.920(a)(4). At Step Five, the burden shifts to the Commissioner to show that the claimant has the RFC to perform other work that exists in substantial numbers in the national economy. Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007). If the Commissioner conclusively finds the claimant “disabled” or “not disabled” at any point in the five-step process, she does not proceed to the next step. 20 C.F.R. § 416.920(a)(4).
“The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989)). The findings of the Commissioner are meant to be conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is “more than a mere scintilla but less than a preponderance.” Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)). The court 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 so 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, 981 F.2d at 1019 (quoting Richardson v. Perales, 402 U.S. 389, 400 (1971)); Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1198 (9th Cir. 2004). The Commissioner's decision, however, “cannot be affirmed simply by isolating a specific quantum of supporting evidence.” Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998) (citing Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)). Reviewing courts must consider the evidence that supports as well as detracts from the Commissioner's conclusion. Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975).
DISCUSSION
Rodriguez argues the ALJ committed two errors: (1) he failed to provide legally sufficient reasons for rejecting the opinion of a nurse practitioner; and (2) he did not properly evaluate lay-witness testimony.
Opinion of Treating Nurse Practitioner Kathleen Oldfather
On November 18, 2020, NP Oldfather completed a Medical Source Assessment (Mental). (AR 403-04.) She opined that Rodriguez was not able to perform the following skills on a regular, reliable, and sustained schedule: remembering locations and work-like procedures; understanding, remembering, and carrying out detailed instructions; maintaining attention and concentration for extended periods; performing within a schedule; maintaining regular attendance and expected punctuality; sustaining an ordinary routing without special supervision; working in proximity to others without being distracted by them; completing a normal day or week without interruption from psychological symptoms; performing at a consistent pace without unreasonable breaks; interacting with the public; accepting instructions and responding appropriately to supervisors; getting along with coworkers; responding appropriately to changes in the work setting; and setting realistic goals or planning independently. (Id.) She further determined Rodriguez would have noticeable difficulty, more than 20% of the time, performing the following actions: understanding, remembering, and carrying out simple instructions; making simple work-related decisions; asking simple questions; maintaining socially appropriate behavior; taking precaution of hazards; and using public transport. (Id.) NP Oldfather stated that her opinion was based on her August 2018 evaluation and subsequent medication reviews, as well as her review of 2009 and 2011 evaluations by psychiatrics. (AR 404.) She explained that Rodriguez had experienced ideas of reference, paranoid ideation, and "significant difficulty" controlling anger and irritability with a history of damaging property and hitting others. (Id.) She stated that Rodriguez's psychiatric symptoms predated her use of substances and were exacerbated by that use, but she currently was sober. (Id.) NP Oldfather reported that medication had been helpful, but it had not eradicated Rodriguez experiencing acute agitation, irritability, and erratic and impulsive anger. (Id.)
The ALJ found NP Oldfather's opinion not persuasive because "it appear[ed] to be advocacy" for Rodriguez's SSI claim; the marked limitations were inconsistent with COPE records, which did not document acute mental distress or decompensation and reflected normal to mild findings on mental status examinations; Rodriguez improved with medication compliance and abstinence from alcohol and drugs; and she relied upon 2009 and 2011 evaluations, which were irrelevant because they predated Rodriguez's SSI application by many years.
First, it is not legitimate to reject a medical opinion because it was requested by the claimant to support a disability claim, unless there is evidence of an "actual impropriety" on the part of the source or there is no medical basis for the opinion. Nguyen v. Chater, 100 F.3d 1462, 1464-65 (9th Cir. 1996); Reddick v. Chater, 157 F.3d 715, 726 (9th Cir. 1998) ("in the absence of other evidence to undermine the credibility of a medical report, the purpose for which the report was obtained does not provide a legitimate basis for rejecting it.") The ALJ did not identify any improprieties in relation to NP Oldfather's opinion. To the extent the ALJ questioned the medical support for the nurse practitioner's opinion, the Court evaluates that topic below.
In an earlier November 8, 2019 letter to the Social Security Administration, NP Oldfather stated that she does not typically offer opinions for disability applications. (AR 94.) This suggests to the Court, not that NP Oldfather would exaggerate the severity of a claimant's symptoms, but that she offered a rare opinion in this case because she determined Rodriguez had substantial functional limitations impeding employment.
Second, the ALJ found NP Oldfather's opinion not persuasive because Rodriguez improved with medication compliance and abstinence from alcohol and drugs. First, the ALJ found Rodriguez's substance abuse was not severe (AR 18), and he offered little other discussion on the topic. To support his finding of improvement when Rodriguez abstained from substances (and complied with medication), the ALJ cited in full two exhibits totaling one-hundred-seventy-five pages. (AR 22, citing Exs. 3F, 5F (AR 328-402, 405-508).) Review of those exhibits did not reveal documentation that Rodriguez's mental health correlated to her use of substances. Second, Rodriguez did experience improvement in her symptoms when she consistently took her psychiatric medications. However, the record reflects that she went off her medication repeatedly. (AR 378 (10/18), 364/384 (2/19), 375/447 (11/19), 457 (5/20), 421 (7/20), 461 (8/20). Similarly, her symptoms went up and down over the course of the two-and-a-half years she was treated by NP Oldfather. See infra at 6-7 (discussing whether NP Oldfather's opinion was inconsistent with COPE records). For that reason, NP Oldfather's opinion would not be expected to reflect Rodriguez's functioning solely when she was consistently medicated (and not using substances). Because Rodriguez did not remain on medication consistently and did not demonstrate sustained improvement in her symptoms, there is not substantial evidence to support discounting NP Oldfather's opinion on that basis.
Defendant noted "[t]here were no reports of excessive drinking or alcoholism exacerbating her symptoms during the relevant period." (AR 21 at 15.) Defendant also stated that there was no evidence Plaintiff was actively abusing substances during that time. (Id.) This is not wholly true, as the ALJ cited positive urine screens (AR 18), andthe record reflects Rodriguez requesting help with sobriety in May 2019 because "drinking has gotten out of control" (AR 371). Regardless, if the record reflects only limited use ofsubstances during the entire period, it could not also reflect improvement upon abstaining.
Third, the ALJ discounted NP Oldfather's opinion because she relied, in part, upon her review of psychiatric evaluations from 2009 and 2011, which the ALJ deemed to be of "no probative value." (AR 22.) NP Oldfather stated that her opinion also was based upon her 2018 evaluation and the appointments she conducted over the following two-and-a-half years. The ALJ cited those records in evaluating whether NP Oldfather's opinion was well-supported. While the ALJ was not obligated to review evidence from a period substantially prior to Rodriguez's application date, it is not logical to discount a nurse practitioner's opinion because she looked and found consistency in prior evaluations conducted by psychiatrists. As stated by Plaintiff, "[a] medical source does not know less by knowing more." (Doc. 18 at 12.)
Finally, the ALJ determined that the marked limitations found by NP Oldfather were inconsistent with COPE records, which did not document acute mental distress or decompensation and reflected normal to mild findings on mental status examinations. The ALJ noted that, "at times," Rodriguez demonstrated anxious or depressed mood. (AR 23.) In fact, over the course of two years, NP Oldfather documented that Rodriguez had an anxious and/or depressed mood at each appointment. (AR 378, 381, 384, 387, 437, 442, 445, 448, 453, 457.) Only at the last two appointments was Rodriguez's mood documented as normal. The ALJ also noted that Rodriguez's symptoms worsened in February 2019, upon stopping medication, and her mental status exam reflected a decline in functioning. (AR 23.) What the ALJ failed to note is that Rodriguez went off her medication regularly, as discussed above, and her mental health declined accordingly. In addition to a depressed and/or anxious mood, NP Oldfather documented various other abnormal mental status exam results: rapid speech (8/18, 2/19, 4/19, 8/19, 11/20), tangential thought and/or speech (8/18, 2/19, 4/19, 6/19, 8/19, 11/19, 3/20, 5/20, 11/20), and psychomotor agitation (8/18, 8/19). (AR 384, 387, 437, 442, 444-45, 448, 454, 457, 465.)
Additionally, COPE records document Rodriguez's inability to consistently attend mental health treatment or begin services intended to support sustained improvement. Rodriguez failed to attend two appointments with NP Oldfather (AR 451, 459), and four appointments with other COPE providers (AR 353, 363, 436). Rodriguez agreed to participate in vocational rehabilitation services beginning in March 2018 and completed forms for employment services in February 2019; however, after rescheduling twice, Rodriguez never pursued vocational services. (AR 365, 366-67, 369, 406.) Similarly, Rodriguez expressed interest in therapy in November 2018, August 2019, and April and August 2020, and NP Oldfather referred her to participate in therapy in February 2019 and March 2020. (AR 361, 385, 415, 423, 446, 455.) Without having engaged in therapy services, Rodriguez was terminated from the program due to lack of contact. (AR 422.) Rodriguez also expressed interest in attending various group meetings at COPE in September 2018, November 2018, April 2019, May 2019, May 2020, June 2020, and August 2020 (AR 359, 361, 370, 371, 420, 423, 456), but she only attended one group and arrived too late for a second meeting she had hoped to attend. (AR 372, 373).
A longitudinal review of the records reveals that Rodriguez's symptoms went up and down, with NP Oldfather documenting a worsening of her depression at half of the appointments. (AR 379, 385, 446, 449, 466.) The APA Dictionary of Psychology defines decompensation as "a breakdown in an individual's defense mechanisms, resulting in progressive loss of normal functioning or worsening of psychiatric symptoms." Decompensation, APA DICTIONARY OF PSYCHOLOGY (2d Ed. 2015). Although the ALJ found no evidence that Rodriguez decompensated, her psychiatric symptoms worsened repeatedly over the course of the record. She was homeless, floating between family members' residences, arrested for unknown reasons in August 2019, and described having a "nervous breakdown" in April 2020. (AR 391, 415, 444.) The record does not reflect sustained improved functioning as the ALJ suggests. See Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014) (finding, when evaluating a claimant's symptom testimony, that "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"). In sum, the ALJ's finding that NP Oldfather's opinion was not persuasive was not supported by substantial evidence.
Lay-Witness Testimony
Rodriguez argues the ALJ improperly rejected a lay-witness statement from her mother Sylvia Vargas. Vargas completed a third-party function report on July 18, 2019. (AR 224-31.) She stated that Rodriguez's moods were variable leading her to stay in bed some days and to have good energy others, and typically to be argumentative with everyone. (AR 224.) Vargas reported that Rodriguez needed reminders for personal care, such as washing hair, brushing her teeth, shaving, and taking medication. (AR 226.) When Rodriguez would stay at Vargas's house, she would do dishes or laundry but required multiple reminders. (Id.) She noted that Rodriguez had never obtained a driver's license, but she did use public transportation. (AR 227.) Vargas stated that Rodriguez did not participate in family events or socialize, other than trying to go to groups, and her only regular activity was attending doctor appointments. (AR 228, 229.) Vargas observed that Rodriguez had difficulty getting along with others because of her negative thoughts and frequent mood swings. (AR 229.) This applied to authority figures, as she punched one boss and assaulted a police officer. (AR 230.) Vargas noted that Rodriguez heard voices talking about her, was easily distracted, and unable to maintain concentration on one thing. (AR 229.) Further, she stated that Rodriguez did not complete actions; was poor at following instructions instead choosing to do things her own way; and handled stress and changes in routine very poorly. (AR 229, 230.) Vargas affirmed Rodriguez's testimony that she had been fired from employment due to arguing and fighting over imagined offenses. (AR 230.) Vargas indicated Rodriguez had been increasingly aggressive and was talking to herself. (Id.)
The ALJ did not give any weight to the statement of Vargas finding it was not supported. (AR 24.) Specifically, the ALJ relied upon several findings in discounting Vargas's testimony: Rodriguez did not present testimony from her mother at the hearing, which prevented cross-examination; Vargas's input may not have reflected Rodriguez's maximal capabilities as her mother may not have seen her on a regular basis; and the witness's testimony conflicted with the medical evidence. (Id.)
Defendant also argues that Vargas's statements conflicted with Rodriguez's statements in her function report. (Doc. 21 at 19.) The Court does not evaluate this argument because the ALJ did not rely upon it in his decision. He did not even mention Rodriguez's function report, or the information contained therein; in evaluating her symptom testimony, he discussed only her hearing testimony. (AR 22.)
Pursuant to Ninth Circuit caselaw from 1993, "[i]f the ALJ wishes to discount the testimony of the lay witnesses, he must give reasons that are germane to each witness." Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993). This requirement satisfies the regulation that the ALJ would "consider observations by non-medical sources as to how an impairment affects a claimant's ability to work.” Id. (quoting Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987)). Defendant argues that caselaw no longer applies because the regulations have changed, citing 20 C.F.R. § 416.920c, which provides: "[w]e are not required to articulate how we considered evidence from nonmedical sources using the requirements in paragraphs (a)-(c) in this section." This regulatory change does not provide that an ALJ need not articulate any reason for discounting evidence from lay witnesses, it only states that the ALJ's consideration need not follow the requirements for evaluating medical opinions. This regulatory change is not inconsistent with the Ninth Circuit's germane-reasons standard. See Rogers v. Comm'r of Soc. Sec. Admin., No. CV-20-00532-TUC-SHR-MSA, 2022 WL 464911, at *7 (D. Ariz. Jan. 11, 2022) ("the germane-reasons standard 'has always been a different (and lower) standard than that required for evaluating medical opinions.'" (quoting Alice B. v. Kijakazi, No. 20-cv-05897, 2021 WL 6113000, at *8 (N.D. Cal. Dec. 27, 2021)), report and recommendation adopted, 2022 WL 458517 (D. Ariz. Feb. 15, 2022); see also Kimberly T. v. Kijakazi, No. 3:20-CV-1543-SI, 2022 WL 910083, at *7 (D. Or. Mar. 29, 2022) ("Because there are no provisions of the new regulations that unambiguously remove the ALJ's obligation to address lay witness testimony, it follows that the ALJ must continue to give germane reasons for discounting lay witness testimony."); but see, e.g., John E.L. v. Comm'r of Soc. Sec., No. 3:20-CV-5776-TLF, 2021 WL 5150359, at *7 (W.D. Wash. Nov. 5, 2021) (finding ALJ not required to offer any discussion regarding lay witness testimony under the 2017 regulations). Therefore, the Court will evaluate whether the ALJ's reasoning satisfied the germane-reasons standard.
First, there is no rule that an ALJ will consider witness testimony only if presented live and subject to cross-examination. If the ALJ believed cross-examination was warranted, he could have requested testimony from Rodriguez's mother, see 20 C.F.R. § 416.1450(d)(1), which he did not do. The fact that Rodriguez did not present her mother as a witness at the hearing is not a germane reason to discount her written evidence. Next, the ALJ discounted Vargas's testimony because she may not have seen Rodriguez regularly and, therefore, her observations may not reflect Rodriguez's maximum capabilities. The record does not reflect that Rodriguez had limited contact with her mother. As noted by the ALJ, Rodriguez was at her mother's house on the day of the telephonic hearing. (AR 24.) Also, Rodriguez testified that she was staying at her mother's house at that time. (AR 36.) Vargas's Third-Party Function Report provided information about Rodriguez's day-to-day functioning. (AR 224-27.) And the record reflects that she began receiving her psychiatric medication by mail to her mother's house in November 2019. Although it is not clear if Rodriguez had "regular" contact with her mother, even the ALJ found only that Vargas may not have seen Rodriguez regularly. A speculative possibility is not supported by substantial evidence and is not a germane reason to discount a witness's testimony. Similarly, the ALJ improperly relied upon speculation that Vargas's testimony may not reflect Rodriguez's maximal capacities. Although the ALJ ultimately must determine the most a claimant can do, there is no requirement that a lay witness offer testimony only as to the claimant's maximum capability. If the ALJ finds lay testimony conflicts with other evidence that more accurately reflects a claimant's maximum abilities, he should say that.
Finally, the ALJ discounted Vargas's statements because he found them inconsistent with the medical evidence. Inconsistency with medical evidence is a germane reason for rejecting lay testimony. See Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005). However, an ALJ may not discredit lay witness statements solely because they are “not supported by medical evidence in the record.” Bruce v. Astrue, 557 F.3d 1113, 1116 (9th Cir. 2009) (citing Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir. 1996)). This is because the ALJ looks to non-medical sources, including family, only when the objective medical evidence alone does not direct a fully favorable decision. SSR 16-3p ¶ 2. Because inconsistency with objective medical evidence is the only remaining reason to discount Vargas's written evidence, it is insufficient.
CONCLUSION AND RECOMMENDATION
A federal court may affirm, modify, reverse, or remand a social security case. 42 U.S.C. § 405(g). When a court finds that an administrative decision is flawed, the remedy should generally be remand for “additional investigation or explanation.” INS v. Ventura, 537 U.S. 12, 16 (2006) (quoting Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985)); see also Moisa v. Barnhart, 367 F.3d 882, 886 (9th Cir. 2004). However, a district court should credit as true medical opinions that were improperly rejected by the ALJ and remand for benefits if:
(1) the ALJ failed to provide legally sufficient reasons for rejecting the testimony; (2) there are no outstanding issues that must be resolved before a determination of disability can be made; and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited.Benecke v. Barnhart, 379 F.3d 587, 594 (9th Cir. 2004); Garrison, 759 F.3d at 1021 (precluding remand for further proceedings if the purpose is solely to allow ALJ to revisit the medical opinion he rejected). The Ninth Circuit holds that application of the credit as true rule is mandatory unless the record creates serious doubt that the claimant is disabled. Garrison, 759 F.3d at 1021.
The Court concluded that the first requirement had been satisfied, because the ALJ rejected the opinion of NP Oldfather without substantial evidence to support his reasons. As to the second factor, the Court is not aware of, and Defendant has not identified, any outstanding issues that must be resolved prior to a disability determination being completed. The Vocational Expert testified that if, more than 20% of the time, a person could not sustain an ordinary routine without special supervision that person would be unemployable. (AR 51.) NP Oldfather opined that Rodriguez was wholly unable to sustain an ordinary routine without special supervision. (AR 403.) Therefore, if NP Oldfather's opinion is credited as true, the ALJ would be required to find Rodriguez disabled. It appears that a remand for further proceedings, therefore, would serve solely the unallowed purpose of giving the ALJ an opportunity to reconsider his evaluation of NP Oldfather's opinion.
Defendant opposes this case being remanded for benefits because she argues there is serious doubt that Rodriguez is disabled. This contention is based on her mostly normal exams, the improvement of her symptoms with medication compliance, her activities of daily living, and the opinions of the state agency consultants. As discussed thoroughly above, the Court disagrees with the ALJ's assessment that Rodriguez's exams were primarily normal and that her improvement on medication was significant, when her frequent medication non-compliance is considered. In light of NP Oldfather's opinion, based on an extended treating relationship within her field of specialty, the Court does not find that the contradictory opinions of the state agency consultants raise a serious question as to Rodriguez's disability status.
With respect to activities of daily living, Rodriguez stated that she did not need reminders for personal care, taking medications, and going places. (AR 208, 210.) As discussed above, however, Rodriguez was not a reliable taker of her medications, and she testified that medication side effects of drowsiness, dizziness, and headaches prevented her from working. (AR 35, 42, 213.) She also stated that she only went to group therapy or the store with her mother, did not care for her hair, and at times did not want to dress or bathe. (AR 207, 210.) She stated that she kept to herself, could not be around people for long, and did get along with authority figures. (AR 211, 212.) Rodriguez stated that she prepared meals, primarily frozen, and with help or encouragement would do cleaning and washing. (AR 208.) She was able to use public transport on her own. (AR 209.) Rodriguez reported no hobbies, but she would daily watch television and exercise. (AR 210.) She reported an inability to finish activities and when working would forget her assigned task and do something else. (AR 35, 41-42, 211.) Although Rodriguez was physically unimpaired, her day-to-day activities were very limited. She interacted only with certain family members and at COPE. Additionally, her symptoms were not well-controlled when she went off her medication and, when she complied with her prescriptions, she had side effects that impaired her functioning. The Court finds that this evidence is not incompatible with disability. “One does not need to be ‘utterly incapacitated' in order to be disabled.” Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) (finding driving, walking for exercise, and grocery shopping not incompatible with disability) (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)).After a thorough review of the entire record, the Court does not have serious doubts as to whether Rodriguez is disabled. Therefore, the Magistrate Judge recommends that the District Court remand this matter for the award of benefits.
Pursuant to Federal Rule of Civil Procedure 72(b)(2), any party may serve and file written objections within fourteen days of being served with a copy of the Report and Recommendation. A party may respond to the other party's objections within fourteen days. No reply brief shall be filed on objections unless leave is granted by the district court. If objections are not timely filed, they may be deemed waived. If objections are filed, the parties should use the following case number: CV-21-291-TUC-DCB.