Maria Guadalupe Inda De Arias v. Commissioner of Social Security Administration
Filing
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MEMORANDUM OPINION AND ORDER AFFIRING DECISION OF COMMISSIONER by Magistrate Judge Alexander F. MacKinnon. (ib)
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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MARIA GUADALUPE INDA DE ARIAS,
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Case No. CV 16-06226 AFM
Plaintiff,
MEMORANDUM OPINION AND
ORDER AFFIRMING DECISION
OF COMMISSIONER
v.
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NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
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I.
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BACKGROUND
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Plaintiff Maria Guadalupe Inda De Arias filed her application for disability
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benefits under Title II of the Social Security Act on October 16, 2012, alleging
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disability beginning May 1, 2012. After denial on initial review and on
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reconsideration, a hearing took place before an Administrative Law Judge (ALJ) on
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December 22, 2014, at which Plaintiff testified on her own behalf. A vocational
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expert (“VE”) also testified. (Administrative Record (“AR”) 111-118.) In a
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decision dated February 19, 2015, the ALJ found that Plaintiff was not disabled
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within the meaning of the Social Security Act from May 1, 2012, through the date
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of the decision. The Appeals Council declined to set aside the ALJ’s unfavorable
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decision in a notice dated June 28, 2016. Plaintiff filed a Complaint herein on
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August 18, 2016, seeking review of the Commissioner’s denial of her application
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for benefits.
In accordance with the Court’s Order Re Procedures in Social Security
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Appeal, Plaintiff filed a memorandum in support of the complaint on April 14,
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2017 (“Pl. Mem.”) and the Commissioner filed a memorandum in support of her
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answer on April 20, 2017 (“Def. Mem.”). Plaintiff did not file a reply. This matter
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now is ready for decision.1
II.
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DISPUTED ISSUE
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As reflected in the parties’ memoranda, the sole disputed issue in this case is
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whether the ALJ erred in his adverse credibility finding regarding Plaintiff’s
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testimony.
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III.
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STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to
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determine whether the Commissioner’s findings are supported by substantial
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evidence and whether the proper legal standards were applied. See Treichler v.
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Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014). Substantial
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evidence means “more than a mere scintilla” but less than a preponderance. See
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Richardson v. Perales, 402 U.S. 389, 401 (1971); Lingenfelter v. Astrue, 504 F.3d
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1028, 1035 (9th Cir. 2007). Substantial evidence is “such relevant evidence as a
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reasonable mind might accept as adequate to support a conclusion.” Richardson,
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402 U.S. at 401. This Court must review the record as a whole, weighing both the
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evidence that supports and the evidence that detracts from the Commissioner’s
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The decision in this case is being made based on the pleadings, the
administrative record, and the parties’ memoranda in support of their pleadings.
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conclusion. Lingenfelter, 504 F.3d at 1035. Where evidence is susceptible of more
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than one rational interpretation, the Commissioner’s decision must be upheld. See
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Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007).
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IV.
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FIVE-STEP EVALUATION PROCESS
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The Commissioner (or ALJ) follows a five-step sequential evaluation process
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in assessing whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920;
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Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995), as amended April 9, 1996.
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In the first step, the Commissioner must determine whether the claimant is
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currently engaged in substantial gainful activity; if so, the claimant is not disabled
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and the claim is denied. Id. If the claimant is not currently engaged in substantial
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gainful activity, the second step requires the Commissioner to determine whether
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the claimant has a “severe” impairment or combination of impairments significantly
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limiting his ability to do basic work activities; if not, a finding of nondisability is
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made and the claim is denied. Id. If the claimant has a “severe” impairment or
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combination of impairments, the third step requires the Commissioner to determine
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whether the impairment or combination of impairments meets or equals an
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impairment in the Listing of Impairments (“Listing”) set forth at 20 C.F.R. part
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404, subpart P, appendix 1; if so, disability is conclusively presumed and benefits
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are awarded. Id. If the claimant’s impairment or combination of impairments does
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not meet or equal an impairment in the Listing, the fourth step requires the
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Commissioner to determine whether the claimant has sufficient “residual functional
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capacity” to perform his past work; if so, the claimant is not disabled and the claim
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is denied. Id. The claimant has the burden of proving that he is unable to perform
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past relevant work. Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). If the
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claimant meets this burden, a prima facie case of disability is established. Id. The
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Commissioner then bears the burden of establishing that the claimant is not
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disabled, because he can perform other substantial gainful work available in the
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national economy. Id. The determination of this issue comprises the fifth and final
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step in the sequential analysis. 20 C.F.R. §§ 404.1520, 416.920; Lester, 81 F.3d at
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828 n.5; Drouin, 966 F.2d at 1257.
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V.
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THE ALJ’S APPLICATION OF THE FIVE-STEP PROCESS
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At step one, the ALJ found that Plaintiff had not engaged in substantial
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gainful activity since May 1, 2012, the alleged onset date. (AR 13.) At step two,
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the ALJ found that Plaintiff had the following severe impairments: arthritis;
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degenerative disc disease; fibromyalgia; obesity; history of hyperthyroidism; and
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bilateral plantar fasciitis. (Id.) At step three, the ALJ found that Plaintiff did not
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have an impairment or combination of impairments that meets or medically equals
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the severity of one of the listed impairments. (AR 16.) At step four, the ALJ found
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that Plaintiff had the following residual functional capacity (RFC) to perform
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sedentary work except: occasionally climb stairs, climb ladders/ropes/scaffolds,
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kneel, crouch, crawl, stoop; frequently but not constantly balance; no uneven
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ground. (Id.) The ALJ determined that Plaintiff is capable of performing her past
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relevant work as a customer service representative. (AR 17.) Accordingly, the ALJ
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concluded that Plaintiff was not disabled under the Social Security Act since
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May 1, 2012 through the date of the decision. (AR 17-18.)
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VI.
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DISCUSSION
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Plaintiff alleges disability based on fibromyalgia, and pain in her back, hip,
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shoulder and extremity. (AR 47-56.) Plaintiff contends that the ALJ erred in his
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adverse credibility finding. Her testimony during the administrative hearing can be
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found at AR 33-120.
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An ALJ’s assessment of pain severity and claimant credibility is entitled to
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“great weight.” Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989). Where the
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claimant has produced objective medical evidence of an impairment that could
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reasonably be expected to produce some degree of pain and/or other symptoms and
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where the record is devoid of any affirmative evidence of malingering, the ALJ
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may reject the claimant’s testimony regarding the severity of the claimant’s pain
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and/or other symptoms only if the ALJ makes specific findings stating clear and
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convincing reasons for doing so. See Cotton v. Bowen, 799 F.2d 1403, 1407 (9th
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Cir. 1986); see also Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996).
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The ALJ found that the Plaintiff’s statements about the intensity, persistence
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and limiting effects of her symptoms were not entirely credible and provided three
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reasons in support of that finding. (AR 16.)
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First, the ALJ found that Plaintiff did not consistently follow through with
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instructions to attend pain management treatment, increase physical activity,
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continue physical therapy, and see a psychiatrist. (AR 17.) The ALJ stated that
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Plaintiff’s failure to seek medical treatment suggested that her pain was not so
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severe as to prevent all work. (Id.) The record shows that the Plaintiff quit pain
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management treatment (AR 69), did not consistently follow instructions to increase
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physical exercise (AR 360, 445, 491, 507, 685, 723), was discharged from physical
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therapy because of failure to attend (AR 838), and chose to do self-therapy (AR
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76). Although Plaintiff suggests that her failure to seek treatment was due to
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financial limitations, the medical record indicates that this was only in relation to
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acupuncture and aqua therapy. (AR 652, 704, 709, 769.) There was no evidence in
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the record that financial limitations prevented her from following through on other
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areas of treatment. If the evidence of Plaintiff’s failure to seek medical treatment
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could be subject to more than one interpretation, the ALJ’s interpretation must be
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upheld if that interpretation is rational, as it is here. See Burch v. Barnhart, 400
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F.3d 676, 680-81 (9th Cir. 2005). Thus, the ALJ’s finding that Plaintiff failed to
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seek treatment was supported by substantial evidence, and provides a valid basis for
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discounting Plaintiff’s subjective symptom testimony. See Tommasetti v. Astrue,
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533 F.3d 1035, 1039 (9th Cir. 2008) (ALJ may consider failure to follow a
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prescribed course of treatment in weighing a claimant’s credibility); Smolen, 80
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F.3d at 1284; Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989).
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As a second reason, the ALJ stated that the Plaintiff’s daily activities are not
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limited to the extent a person would expect given her complaints of disabling
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symptoms and limitations. (AR 17.) On one hand, Plaintiff testified that on a scale
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of one to ten, ten being the worst, she experienced a constant pain of eight for her
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back, a periodic pain of nine for her fibromyalgia, and a pain of eight or nine when
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walking. (AR 46, 48, 50.) Plaintiff also testified that due to the severity of her
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pain, her physical activity was extremely limited. For example: she can go on
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walks but no more than a block at a time (AR 67); can sit, stand or walk for no
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more than five to fifteen minutes (AR 71); has trouble holding a plate or a cup of
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coffee; cannot dress herself (AR 95); and takes hours to make her bed (AR 99). On
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the other hand, evidence in the record concerning daily activities also reflects that
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Plaintiff is more physically able and her pain is not as severe as she suggests.
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Plaintiff is able to drive (AR 95), cook (AR 96), grocery shop (AR 99), take the
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garbage out (AR 100), and was able to travel to Mexico (AR 1002). Thus,
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substantial evidence supports the ALJ’s finding that certain of Plaintiff’s daily
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activities were inconsistent with her subjective symptom testimony. This is a clear
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and convincing reason for discrediting Plaintiff’s testimony. See Molina v. Astrue,
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674 F.3d 1104, 1112 (9th Cir. 2012) (ALJ may discredit claimant’s testimony when
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“claimant engages in daily activities inconsistent with the alleged symptoms”); see
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also Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009)
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(ALJ properly discounted claimant’s testimony because “she leads an active
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lifestyle, including cleaning, cooking, walking her dogs, and driving to
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appointments”).
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As a final reason, the ALJ found that Plaintiff’s subjective testimony was not
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substantiated by objective medical evidence in the record. (AR 13-15.) Although
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this may not be the sole reason to support an adverse credibility finding, “it is a
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factor that the ALJ can consider in his credibility analysis.” Burch, supra, 400 F.3d
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at 681; Morgan v. Comm’r of Social Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999)
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(ALJ may properly consider conflict between claimant’s testimony of subjective
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complaints and objective medical evidence in the record); see also Tidwell v. Apfel,
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161 F.3d 599, 602 (9th Cir. 1999) (ALJ may properly rely on weak objective
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support for the claimant’s subjective complaints); Orteza v. Shalala, 50 F.3d 748,
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750 (9th Cir. 1995) (ALJ may properly rely on lack of objective evidence to support
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claimant’s subjective complaints). In the present case, the ALJ’s assessment of the
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objective medical evidence was supported by substantial evidence and was not in
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error as part of the adverse credibility determination. Accordingly, the Court
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concludes that the ALJ did not err in his adverse credibility determination.
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IT THEREFORE IS ORDERED that Judgment be entered be entered
affirming the decision of the Commissioner of Social Security Administration.
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DATED: June 28, 2017
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ALEXANDER F. MacKINNON
UNITED STATES MAGISTRATE JUDGE
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