1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 ZENIA BROWN, Case No.: 2:23-cv-00254-APG-NJK

4 Plaintiff Order Accepting Report and Recommendation, Granting in Part 5 v. Plaintiff’s Motion for Summary Judgment

6 KILOLO KIJAKAZI, Acting Commissioner [ECF Nos. 19, 27] of Social Security 7 Defendant 8

9 On November 6, 2023, Magistrate Judge Koppe entered her Report and Recommendation 10 (ECF No. 27) recommending that plaintiff Zenia Brown’s motion for summary judgment be 11 granted in part and denied in part. Judge Koppe recommended that the case “be remanded to the 12 Appeals Council so that the Appeals Council can remand the case to an Administrative Law 13 Judge (ALJ) for determination of the relevant outstanding issues,” that is, a determination related 14 to the appropriate jobs that Brown may be able to perform based on her residual functional 15 capacity. ECF No. 27 at 7. She further recommended that Brown’s motion be denied “to the 16 extent that it seeks remand for an immediate award of benefits.” Id. at 7-8. Brown objected to 17 Judge Koppe’s report and recommendation, so I must conduct a de novo review. ECF No. 28; 18 LR IB 3-2. 19 Having conducted a de novo review, I agree with Judge Koppe that because it is not 20 “clear from the record that the ALJ would be required to find [Brown] disabled,” the appropriate 21 remedy is to remand for further administrative proceedings rather than an immediate award of 22 benefits. Strauss v. Comm’r of the Soc. Sec. Admin.,

(9th Cir. 2011) 23 (quotation omitted); see ECF No. 27 at 7. Brown’s objection that the Commissioner “should not 1}|be given a third bite at the apple” to meet her burden at step five is not persuasive because “[a] claimant is not entitled to benefits under the [Social Security Act] unless the claimant is, in fact, disabled, no matter how egregious the ALJ’s errors may be.” Jd; ECF No. 28 at 6. 4 I THEREFORE ORDER that Magistrate Judge Koppe’s Report and Recommendation [ECF No. 27] is ACCEPTED. 6 I FURTHER ORDER that plaintiff Zenia Brown’s motion for summary judgment [ECF is GRANTED in part and DENIED in part. The motion is granted to the extent that the 8]| case is REMANDED for further administrative proceedings consistent with Judge Koppe’s Report and Recommendation. The motion is denied to the extent that it seeks an immediate 10|| award of benefits. 11 DATED this 9th day of January, 2024. 12 (IER 8 ANDREWP.GORDON. 14 UNITED STATES DISTRICT JUDGE

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