Kristopher Emille Fisher v. Carolyn W. Colvin

Filing 37

MEMORANDUM DECISION AND ORDER AFFIRMING COMMISSIONER by Magistrate Judge Jean P. Rosenbluth. IT IS ORDERED that judgment be entered AFFIRMING the Commissioner's decision, DENYING Plaintiff's request for remand, and DISMISSING this action with prejudice. (See Order for details) (bem)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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KRISTOPHER EMILLE FISHER,
Plaintiff,

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v.

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NANCY A. BERRYHILL, Acting
Commissioner of Social
Security,

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Defendant.

) Case No. CV 16-2680-JPR
)
)
) MEMORANDUM DECISION AND ORDER
) AFFIRMING COMMISSIONER
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I.

PROCEEDINGS
Plaintiff seeks review of the Commissioner’s final decision

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denying his applications for Social Security disability insurance

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benefits (“DIB”) and supplemental security income benefits

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(“SSI”).

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undersigned U.S. Magistrate Judge under 28 U.S.C. § 636(c).

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matter is before the Court on the parties’ Joint Stipulation,

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filed August 17, 2017, which the Court has taken under submission

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without oral argument.

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Commissioner’s decision is affirmed.

The parties consented to the jurisdiction of the

For the reasons stated below, the

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The

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II.

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BACKGROUND
Plaintiff was born in 1972.

(Administrative Record (“AR”)

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41.)

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school diploma.

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sales clerk, grocery clerk, and mail carrier.

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He completed the 12th grade and has received his high(Id.)

Through 2008, he worked as a bus driver,
(AR 169.)

On October 30, 2012, Plaintiff filed applications for DIB

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and SSI, alleging in each that he had been unable to work since

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December 31, 2008 (AR 138, 145), because of depression, loss of

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memory, posttraumatic stress disorder, and anxiety (AR 163).

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After his applications were denied initially (AR 94-95), he

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requested a hearing before an Administrative Law Judge (AR 99).

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A hearing was held on April 24, 2014, at which Plaintiff, who was

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represented by counsel, testified, as did a vocational expert.

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(AR 35-69.)

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ALJ found Plaintiff not disabled.

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requested review from the Appeals Council, and on February 3,

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2016, it denied review.

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III. STANDARD OF REVIEW

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In a written decision issued on May 29, 2014, the

(AR 1-7.)

(AR 20-34.)

Plaintiff

This action followed.

Under 42 U.S.C. § 405(g), a district court may review the

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Commissioner’s decision to deny benefits.

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decision should be upheld if they are free of legal error and

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supported by substantial evidence based on the record as a whole.

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See id.; Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra

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v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007).

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evidence means such evidence as a reasonable person might accept

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as adequate to support a conclusion.

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401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007).

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It is more than a scintilla but less than a preponderance.
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The ALJ’s findings and

Substantial

Richardson, 402 U.S. at

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Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec.

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Admin., 466 F.3d 880, 882 (9th Cir. 2006)).

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substantial evidence supports a finding, the reviewing court

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“must review the administrative record as a whole, weighing both

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the evidence that supports and the evidence that detracts from

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the Commissioner’s conclusion.”

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720 (9th Cir. 1996).

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either affirming or reversing,” the reviewing court “may not

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substitute its judgment” for the Commissioner’s.

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IV.

To determine whether

Reddick v. Chater, 157 F.3d 715,

“If the evidence can reasonably support

Id. at 720-21.

THE EVALUATION OF DISABILITY

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People are “disabled” for purposes of receiving Social

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Security benefits if they are unable to engage in any substantial

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gainful activity owing to a physical or mental impairment that is

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expected to result in death or has lasted, or is expected to

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last, for a continuous period of at least 12 months.

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§ 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir.

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1992).

42 U.S.C.

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A.

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The ALJ follows a five-step sequential evaluation process to

The Five-Step Evaluation Process

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assess whether a claimant is disabled.

20 C.F.R.

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§§ 404.1520(a)(4), 416.920(a)(4); Lester v. Chater, 81 F.3d 821,

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828 n.5 (9th Cir. 1995) (as amended Apr. 9, 1996).

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step, the Commissioner must determine whether the claimant is

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currently engaged in substantial gainful activity; if so, the

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claimant is not disabled and the claim must be denied.

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§§ 404.1520(a)(4)(i), 416.920(a)(4)(i).

In the first

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If the claimant is not engaged in substantial gainful

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activity, the second step requires the Commissioner to determine
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whether the claimant has a “severe” impairment or combination of

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impairments significantly limiting his ability to do basic work

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activities; if not, the claimant is not disabled and his claim

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must be denied.

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§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii).

If the claimant has a “severe” impairment or combination of

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impairments, the third step requires the Commissioner to

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determine whether the impairment or combination of impairments

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meets or equals an impairment in the Listing of Impairments set

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forth at 20 C.F.R. part 404, subpart P, appendix 1; if so,

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disability is conclusively presumed.

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§§ 404.1520(a)(4)(iii),

416.920(a)(4)(iii).

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If the claimant’s impairment or combination of impairments

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does not meet or equal an impairment in the Listing, the fourth

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step requires the Commissioner to determine whether the claimant

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has sufficient residual functional capacity (“RFC”)1 to perform

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his past work; if so, he is not disabled and the claim must be

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denied.

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has the burden of proving he is unable to perform past relevant

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work.

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burden, a prima facie case of disability is established.

§§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv).

Drouin, 966 F.2d at 1257.

The claimant

If the claimant meets that
Id.

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If that happens or if the claimant has no past relevant

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work, the Commissioner then bears the burden of establishing that

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the claimant is not disabled because he can perform other

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substantial gainful work available in the national economy.

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RFC is what a claimant can do despite existing exertional
and nonexertional limitations. §§ 404.1545, 416.945; see Cooper
v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). The
Commissioner assesses the claimant’s RFC between steps three and
four. Laborin v. Berryhill, __F.3d__, No. 15-15776, 2017 WL
3496031, at *2 (9th Cir. Aug. 16, 2017) (citing § 416.920(a)(4)).
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§§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Drouin, 966 F.2d at 1257.

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That determination comprises the fifth and final step in the

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sequential analysis.

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Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257.

§§ 404.1520(a)(4)(v), 416.920(a)(4)(v);

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B.

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At step one, the ALJ found that Plaintiff had not engaged in

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substantial gainful activity since December 31, 2008, the alleged

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onset date.

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Plaintiff had no physical impairments but had medically

The ALJ’s Application of the Five-Step Process

(AR 26-27.)

At step two, he concluded that

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determinable mental ones: depression and PTSD.

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impairments were not severe, however.

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depression and PTSD produced “only mild limitations” on his

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activities of daily living, social functioning, and ability to

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maintain concentration, persistence, and pace.

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the ALJ concluded that Plaintiff was not disabled and did not

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proceed to the later steps of the sequential evaluation.

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31.)

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V.

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(Id.)

(AR 27.)

Those

Plaintiff’s

(AR 30.)

Thus,

(AR 30-

DISCUSSION
Plaintiff argues that the ALJ erred in rejecting the

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credibility of his testimony because he failed to articulate

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clear and convincing reasons for doing so.

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For the reasons discussed below, the ALJ did not err.2

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Plaintiff does not challenge the ALJ’s finding at step two that

(See J. Stip. at 4.)
Moreover,

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This claim is likely forfeited because Plaintiff never
raised it to the Appeals Council. (See AR 216 (challenging only
ALJ’s rejection of treating doctor’s opinion and his assessment
of RFC)); see also Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir.
1999) (as amended); Shaibi v. Berryhill, __F.3d__, No. 15-16849,
2017 WL 3598085, at *6 (9th Cir. Aug. 22, 2017). Because
Defendant has not raised waiver, however, the Court considers
Plaintiff’s claim on the merits.
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his impairments were not severe.

That finding mandates the

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conclusion that Plaintiff was not disabled.

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Sullivan, 923 F.2d 1391, 1395 (9th Cir. 1991) (“If the impairment

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is not severe, the claimant is not disabled.”).

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finding may have been based in part on the ALJ’s rejection of

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Plaintiff’s symptom testimony, however, the Court construes

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Plaintiff’s briefing liberally to include a challenge to it.

See Baxter v.

Because that

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A.

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An ALJ’s assessment of the credibility of a claimant’s

Applicable Law

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allegations concerning the severity of his symptoms is entitled

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to “great weight.”

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Cir. 1989) (as amended); Nyman v. Heckler, 779 F.2d 528, 531 (9th

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Cir. 1986) (as amended).

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every allegation of disabling pain, or else disability benefits

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would be available for the asking, a result plainly contrary to

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42 U.S.C. § 423(d)(5)(A).”

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(9th Cir. 2012) (citing Fair v. Bowen, 885 F.2d 597, 603 (9th

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Cir. 1989)).

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See Weetman v. Sullivan, 877 F.2d 20, 22 (9th

“[T]he ALJ is not required to believe

Molina v. Astrue, 674 F.3d 1104, 1112

In evaluating a claimant’s subjective symptom testimony, the

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ALJ engages in a two-step analysis.

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at 1035-36; see also SSR 96-7p, 1996 WL 374186 (July 2, 1996).3

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“First, the ALJ must determine whether the claimant has presented

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objective medical evidence of an underlying impairment [that]

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could reasonably be expected to produce the pain or other

See Lingenfelter, 504 F.3d

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Social Security Ruling 16-3p, 2016 WL 1119029, effective
March 28, 2016, rescinded SSR 96-7p, which provided the framework
for assessing the credibility of a claimant’s statements. SSR
16-3p was not in effect at the time of the ALJ’s decision in this
case, however.
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symptoms alleged.”

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objective medical evidence exists, the ALJ may not reject a

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claimant’s testimony “simply because there is no showing that the

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impairment can reasonably produce the degree of symptom alleged.”

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Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996) (emphasis in

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original).

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Lingenfelter, 504 F.3d at 1036.

If such

If the claimant meets the first test, the ALJ may discredit

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the claimant’s subjective symptom testimony only if he makes

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specific findings that support the conclusion.

See Berry v.

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Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010).

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affirmative evidence of malingering, the ALJ must provide “clear

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and convincing” reasons for rejecting the claimant’s testimony.

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Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (as

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amended); Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090,

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1102 (9th Cir. 2014).

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(1) ordinary techniques of credibility evaluation, such as the

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claimant’s reputation for lying, prior inconsistent statements,

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and other testimony by the claimant that appears less than

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candid; (2) unexplained or inadequately explained failure to seek

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treatment or to follow a prescribed course of treatment; (3) the

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claimant’s daily activities; (4) the claimant’s work record; and

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(5) testimony from physicians and third parties.

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Comm’r Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015) (as

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amended); Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir.

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2002).

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substantial evidence in the record, the reviewing court “may not

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engage in second-guessing.”

Absent a finding or

The ALJ may consider, among other factors,

Rounds v.

If the ALJ’s credibility finding is supported by

Thomas, 278 F.3d at 959.

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B.

Relevant Background

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Plaintiff has sought and received limited treatment for his

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mental impairments.

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mental-health records from before 2012 even though his disability

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allegedly began in December 2008.

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2012, Plaintiff received an “adult short assessment” at Augustus

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F. Hawkins Mental Health Center.

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depressive symptoms, paranoia, and an unspecified childhood

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trauma.

(Id.)

The record contains no psychiatric or

(AR 138, 145.)

(AR 218-20.)

In September

He reported

Afterward, he received follow-up medication

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support services in December 2012 and January 2013, through which

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he was prescribed medication for depression.

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(AR 222-24.)

In March 2013, Plaintiff was assessed at Harbor UCLA Medical

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Center, where he again reported suffering from depression.

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225-31.)

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psychiatrist, who diagnosed him with depression, noting his “flat

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affect,” “anxiety,” and feelings of “sad[ness], poor appetite,

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poor sleep/insomnia, [and] pain.”

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does not contain any later Harbor treatment records except for

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consultations for foot and mouth issues.

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2013 tooth extraction), 279-90 (July 2013 tooth extraction), 291-

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300 (Aug. 2013 tooth extraction), 270-78 (same), 265-69 (Apr.

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2014 foot sprain).)

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(AR

In April 2013, he was interviewed by a Harbor

(AR 232-38.)

But the record

(See AR 301-12 (June

In June 2013, Plaintiff received a complete psychological

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evaluation by the Department of Social Services.

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Plaintiff complained of depression, anxiety, and PTSD and

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reported that he was sexually molested when he was young, that he

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could not keep a job, and that he was uncomfortable being around

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“a lot of people.”

(AR 240.)

(AR 239-44.)

Plaintiff had never been
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psychiatrically hospitalized, however.

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that “helped” him with his depression and anxiety and indicated

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that he was able to “take care of [his grandmother],” “manage his

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own funds,” and “dress, bathe, shop and do household chores.”

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(AR 240-41.)

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games “most of the day.”

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(Id.)

He took medication

He also had friends and “enjoyed” playing video
(AR 241.)

As part of the evaluation, Plaintiff underwent psychometric

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testing.

(See AR 239.)

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questionnaire with “copious notations,” he put forth “very little

Though he completed a standardized

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effort” on the test, “lowering his scores to within the

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borderline range.”

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underestimation of his ability.

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organized, linear thoughts; moderately diminished memory;

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moderately diminished attention and concentration; and age-

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appropriate insight and judgment, responding “appropriately to

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imaginary situations requiring social judgment and knowledge of

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the norms.”

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likely had dysthymia4 and personality-disorder dependent traits.

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(AR 242.)

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carry out detailed instructions,” Plaintiff was found capable of

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“interact[ing] appropriately with supervisors, coworkers and

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peers,” managing his own finances, and making simple “work-

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related decisions without special supervision.”

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(Id.)

(AR 241.)

The test results were noted to be an
(AR 242.)

Plaintiff had

The evaluation concluded that Plaintiff

Despite a “mild inability to understand, remember and

(AR 243.)

At his April 24, 2014 hearing, Plaintiff testified that he

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4

Dysthymia is a “chronic mood disorder manifested as
depression.” Stedman’s Medical Dictionary 556 (27th ed. 2000);
see also Types of Depression, PubMed Health, https://
www.ncbi.nlm.nih.gov/pubmedhealth/PMH0072472/ (last updated Jan.
12, 2017) (“chronic depressive disorder”).
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was no longer working because of his mental-health issues.

(AR

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45.)

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not like to be around a lot of people, and had trouble sleeping.5

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(AR 50-52.)

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(AR 47) and testified that he intended to speak to his doctor

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about future therapy (AR 48).

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living with his father, grandmother, and aunt (AR 42) and that he

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fed and bathed his grandmother and drove her to doctor’s

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appointments after “getting her in the car” and later out (AR

He testified that he sometimes had suicidal thoughts, did

He attributed his mental issues to his past abuse

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43).

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his grandmother.

He also testified that he was

In his own words, he provided “a lot [of] assistance” to
(Id.)

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Plaintiff’s Adult Function Report and the Third-Party

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Function Report submitted by his sister, both completed on March

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7, 2013, indicated that he took care not only of his grandmother

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but also his father.

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cared for his father’s dog by himself in exchange for room and

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board.

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with personal care (id.), prepared his own meals daily (AR 183,

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192), and regularly went to church (AR 185, 194).

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specifically noted that despite his “increased anxiety in public

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around strangers,” Plaintiff did not “have any problems getting

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along with family, friends, neighbors, or others.”

(Id.)

(AR 182, 191.)

Plaintiff also apparently

The function reports stated that he had no problem

His sister

(AR 195.)

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Plaintiff’s testimony about his insomnia implied that it
resulted from his depression. (See, e.g., AR 52 (attributing it
to “nightmares” and his “stressful” situation).) But elsewhere
the record shows that it actually occurred because his father,
who was hard of hearing, watched TV “all night” with “very loud
volume.” (AR 191 (sister’s function report); see also AR 182
(Plaintiff acknowledging in Adult Function Report that his father
“keeps [him] up” at night, the only reason given for poor
sleep).)
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C.

Analysis

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The ALJ found that Plaintiff did not have a “severe mental

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impairment” in part because his allegations regarding the

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severity of his symptoms and his functional limitations were not

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fully credible.

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failed to give clear and convincing reasons to support his

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credibility assessment.

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the ALJ’s credibility assessment was based on specific, clear and

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convincing findings that Plaintiff’s allegations were (1)

(AR 29-30.)

Plaintiff argues that the ALJ

(J. Stip. at 4.)

As discussed below,

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unsupported by his medical records and (2) inconsistent with his

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daily activities.6

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(AR 29.)

Accordingly, the ALJ did not err.

First, the ALJ correctly noted that Plaintiff not only had

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“very scarce” medical records (AR 28) but also “no treating

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record . . . showing any sustained course of psychiatric

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treatment” (AR 29).

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Plaintiff’s medical records, which established that his

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impairments were not severe.

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a few psychiatric assessments, with generally mild diagnoses

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therein, and lacked substantiating treatment records.

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The ALJ in particular relied on the conclusions of Dr. Barbara

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Moura, a consulting psychologist who reviewed Plaintiff’s medical

The ALJ, in great detail, evaluated

(See AR 27-30.)

Plaintiff had only

(See id.)

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Plaintiff initially argues that the ALJ used “oft rejected
boilerplate language” to dismiss his testimony. (J. Stip. at 67.) Indeed, use of boilerplate language is disfavored, see
Laborin v. Berryhill, __F.3d__, No. 15-15776, 2017 WL 3496031, at
*3 (9th Cir. Aug. 16, 2017), and the ALJ arguably used some (see,
e.g., AR 29). But the ALJ specifically identified the testimony
he found not credible and then provided several reasons
supporting the finding. Thus, any use of boilerplate language
was harmless. See Laborin, 2017 WL 3496031, at *3
(“[B]oilerplate language is not, by itself, reversible error and
can be harmless.”).
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records and found his mental impairments to be mild.

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Plaintiff has not challenged the ALJ’s finding that Dr. Moura’s

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opinion was entitled to “significant weight.”

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Moura concluded that Plaintiff’s depression was “currently

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nonsevere” given the lack of significant longitudinal history,

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his mild affective symptoms, and the poor effort he displayed in

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his psychological testing.7

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or his sister’s statements that he had “no problem” with personal

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care, preparing meals, shopping in stores and by computer,

(AR 89.)

(Id.)

(AR 30.)

And Dr.

She recounted Plaintiff’s

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counting change and handling bank accounts, and spending time at

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church with others.

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86, 191-95).)

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depression and PTSD reach disability-level severity, such

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allegations are not corroborated by his medical records.

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(See AR 87 (apparently referring to AR 182-

Thus, to the extent that Plaintiff alleges his

Further, the ALJ properly found that Plaintiff had no

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sustained treatment.

17

(9th Cir. 2008) (ALJ may discount claimant’s testimony in light

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of “unexplained or inadequately explained failure to seek

Tommasetti v. Astrue, 533 F.3d 1035, 1039

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27
28

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The ALJ specifically noted that Plaintiff “put forth very
little effort” on his June 2013 psychometric test, which
artificially lowered his scores to within a borderline range of
functionality. (AR 29; see AR 239, 242.) Though not explicitly
tied to the assessment of Plaintiff’s credibility, the finding
relates to the consistency between Plaintiff’s medical records
and his testimony regarding his symptoms. Plaintiff’s poor
effort on his psychometric test was itself a legally sufficient
and factually supported reason for discounting the credibility of
his statements. See Thomas, 278 F.3d at 959 (ALJ properly
considered claimant’s “self-limiting behaviors” and “efforts to
impede accurate testing” during two physical-capacity
evaluations); Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir.
2001) (ALJ properly considered claimant’s poor effort during
consulting examinations in discounting her statements’
credibility).
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treatment or to follow a prescribed course of treatment”); see

2

also Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007).

3

record indicates only that Plaintiff is on depression medication

4

and may have attended psychotherapy sessions since 2013 that have

5

been “minimally helpful.”

6

appears to have suffered mental issues since childhood, no record

7

of treatment seems to exist from before 2012, let alone from the

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time of the alleged disability onset date, December 31, 2008.

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Thus, substantial evidence supports the ALJ’s finding that

10

Plaintiff’s testimony was not credible, and hence that his

11

symptoms were not severe, in part because the lack of treatment

12

records so indicates.

13

533 F.3d 1155, 1161 (9th Cir. 2008) (“Contradiction with the

14

medical record is a sufficient basis for rejecting the claimant’s

15

subjective testimony.”); Burch v. Barnhart, 400 F.3d 676, 681

16

(9th Cir. 2005) (“Although lack of medical evidence cannot form

17

the sole basis for discounting pain testimony, it is a factor

18

that the ALJ can consider in his credibility analysis.”).

19

ALJ therefore properly found that Plaintiff’s testimony

20

concerning his symptoms was undermined by the lack of medical

21

evidence to support it.

22

620, 621 (9th Cir. 2017) (“[The ALJ] properly discounted

23

[Plaintiff’s] severity claims by pointing to . . . the nature of

24

the medical evidence itself.”).

25

(AR 29.)

The

Moreover, though Plaintiff

See Carmickle v. Comm’r, Soc. Sec. Admin.,

The

See Womeldorf v. Berryhill, 685 F. App’x

Plaintiff argues that the ALJ’s reliance on his lack of

26

mental-health treatment was inappropriate because “it is a

27

questionable practice to chastise one with a mental impairment

28

for the exercise of poor judgment in seeking rehabilitation.”
13

1

(J. Stip. at 10 (quoting Nguyen v. Chater, 100 F.3d 1462, 1465

2

(9th Cir. 1996).)

3

involved an ALJ who discredited a psychologist’s diagnosis of

4

depression based on the lack of a treatment record, whereas here

5

the ALJ relied on Plaintiff’s lack of treatment records to

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discredit his claims as to the severity of his symptoms.

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Moreover, even once Plaintiff apparently sought treatment in

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2012, it was minimal.

9

mentally impaired by depression but reasonably found that the

Nguyen, however, is distinguishable.

It

The ALJ concluded that Plaintiff was

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impairment did not meet the degree of functional limitation

11

claimed.

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and with the only functional assessments in the record showing

13

mostly mild findings, the substantial weight of the evidence

14

supports the ALJ’s finding that Plaintiff’s depression produced

15

only mild limitations.

16

2010 WL 3245813, at *4 (C.D. Cal. Aug. 16, 2010) (“[The

17

claimant’s] failure to get treatment after 1997 seems more a

18

function of the fact that she did not need it, as opposed to her

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inability to comprehend that she needed it.”).

Thus, without treatment records to indicate otherwise,

See Judge v. Astrue, No. CV 09-4743-PJW,

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Second, the ALJ properly found that Plaintiff’s activities

21

of daily living were inconsistent with his claims of functional

22

limitation.

23

credibility of a plaintiff’s subjective symptom statements when

24

they are inconsistent with his daily activities.

25

F.3d at 1112.

26

difficulty functioning, they may be grounds for discrediting the

27

claimant’s testimony to the extent that they contradict claims of

28

a totally debilitating impairment.”

(AR 29-30.)

An ALJ may properly discount the

See Molina, 674

“Even where those [daily] activities suggest some

14

Id. at 1113.

1

To the extent Plaintiff’s symptom statements focused on his

2

alleged inability to be around other people, substantial evidence

3

in the record suggests otherwise.

4

did not “like [being] around a lot of . . . people” (AR 51) and

5

was “very [cautious] of others” (AR 187).

6

his sister said he was able to go out and shop, attend church and

7

church outings, and apparently get along well with “family,

8

friends, neighbors, and others” (AR 184-86, 193-94), suggesting

9

that he was indeed able to be around people and function

Plaintiff testified that he

But both Plaintiff and

10

effectively.

11

concluded that he was capable of interacting “appropriately with

12

supervisors, coworkers and peers.”

13

Plaintiff’s statements of being anxious around others,

14

substantial evidence in the record regarding his activities of

15

daily living supports the ALJ’s finding that such statements

16

lacked credibility.

17

(upholding ALJ’s discounting of plaintiff’s credibility in part

18

because his activities of daily living “were not entirely

19

consistent with his claimed inability to engage in social

20

interactions”).

21

His June 2013 psychological evaluation similarly

(AR 243.)

Thus, despite

See Womeldorf, 685 F. App’x at 621

Plaintiff also claimed that he was unable to work because of

22

his “lack of productivity” (AR 44), which was in part because of

23

his “passive attitude” and lack of motivation (AR 45; see AR 51).

24

But this claim, too, lacked credibility given the record as a

25

whole.

26

grandmother and provide “a lot [of] assistance,” apparently on an

27

on-call basis.

28

doctor’s appointments, getting her in and out of the car.

Plaintiff testified that he was able to care for his

(AR 43.)

He fed, bathed, and drove her to

15

(Id.)

1

He also took care of his father and his father’s dog in exchange

2

for room and board.

3

meals every day, shopped in stores and by computer, handled

4

money, played video games, and went to church.

5

95.)

6

allegations that he was unable to be productive.

7

(AR 182, 191.)

Plaintiff prepared his own

(AR 182-86, 191-

These daily tasks are inconsistent with Plaintiff’s

Plaintiff argues that despite his ability to help his

8

grandmother, his activity is “far short of what is needed to

9

demonstrate the capacity to perform work activity on a sustained

10

basis.”

11

daily activities involving skills that could be transferred to

12

the workplace, the ALJ may discredit the claimant’s allegations

13

upon making specific findings relating to those activities.”

14

Burch, 400 F.3d at 681.

15

findings more fully, as discussed above, they were sufficient.

16

(J. Stip. at 11.)

“[I]f a claimant engages in numerous

While the ALJ could have explained his

But even had the ALJ erred in his credibility determination,

17

the error was likely harmless.

18

Admin., 454 F.3d 1050, 1055 (9th Cir. 2006) (nonprejudicial or

19

irrelevant mistakes harmless).

20

with “moderate limitation in dealing with co-workers,

21

supervisors, and the general public” and “moderate limitation in

22

attention[ and] concentration” — the most severe functional

23

limitations appearing anywhere in the record — could perform jobs

24

available in the economy.

25

that testimony.

26

Plaintiff’s alleged limitations and concluded he would

27

nonetheless be able to work, any error in the ALJ’s credibility

28

determination was likely harmless.

See Stout v. Comm’r, Soc. Sec.

The VE testified that a person

(AR 67-68.)

Counsel did not challenge

Because the testimony took into account

16

See Tommasetti, 533 F.3d at

1

1038 (9th Cir. 2008) (error is harmless when it is

2

“inconsequential to the ultimate nondisability determination”);

3

cf. Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 536 (6th Cir.

4

2001) (finding error harmless when ALJ did not discuss opinion of

5

treating physician but VE took relevant limitations into

6

consideration anyway).

7
8
9

For all these reasons, Plaintiff is not entitled to relief.
VI.

CONCLUSION
Consistent with the foregoing and under sentence four of 42

10

U.S.C. § 405(g),8 IT IS ORDERED that judgment be entered

11

AFFIRMING the Commissioner’s decision, DENYING Plaintiff’s

12

request for remand, and DISMISSING this action with prejudice.

13
14

DATED: September 5, 2017___

15

______________________________
JEAN ROSENBLUTH
U.S. Magistrate Judge

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21
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24
25
26
27
28

8

That sentence provides: “The [district] court shall have
power to enter, upon the pleadings and transcript of the record,
a judgment affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the
cause for a rehearing.”
17