Ryan Duran v. Carolyn W. Colvin

Filing 22

MEMORANDUM DECISION AND ORDER AFFIRMING COMMISSIONER by Magistrate Judge Jean P. Rosenbluth. IT IS ORDERED that judgment be entered AFFIRMING the decision of the Commissioner, 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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RYAN PATRICK DURAN,
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 16-7416-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 April 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 1980.

(Administrative Record (“AR”)

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68.)

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diploma while in juvenile detention (id.), and worked as a

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commercial driver, general laborer, and security guard (AR 244).

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He completed 10th grade (AR 29), received his high-school

On October 10, 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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July 31, 2009, because of Tourette’s syndrome, attention deficit

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hyperactivity disorder, obsessive compulsive disorder, and

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bipolar disorder.

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denied initially and on reconsideration (AR 98-99, 128-29), he

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requested a hearing before an Administrative Law Judge (AR 145).

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A hearing was held on February 26, 2015, at which Plaintiff, who

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

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and medical expert.

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April 20, 2015, the ALJ found Plaintiff not disabled.

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Plaintiff requested review from the Appeals Council, and on

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September 14, 2016, it denied review.

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followed.

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III. STANDARD OF REVIEW

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(AR 68, 83.)

After his applications were

(AR 26-67.)

In a written decision issued

(AR 1-3.)

(AR 8-21.)

This action

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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The ALJ’s findings and

Substantial

Richardson, 402 U.S. at

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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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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).

To determine whether

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

“If the evidence can reasonably support

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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.

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.

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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).
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20 C.F.R.

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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416.920(a)(4)(iii).

§§ 404.1520(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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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).
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substantial gainful work available in the national economy.

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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

The ALJ’s Application of the Five-Step Process

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substantial gainful activity since July 31, 2009, the alleged

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onset date.

(AR 13.)

At step two, she concluded that Plaintiff

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had severe impairments of history of ADHD, history of anxiety,

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and personality disorder.

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that Plaintiff’s impairments did not meet or equal a listing.

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(AR 14.)

(Id.)

At step three, she determined

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At step four, the ALJ found that Plaintiff had the RFC to

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perform a full range of work at all exertional levels, but she

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limited him to “simple, repetitive tasks with no fast-paced

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assembly line work, no teamwork, no public contact, and no more

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than occasional contact with co-workers and supervisors.”

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15.)

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(AR

Based on the VE’s testimony, the ALJ concluded that

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Plaintiff could not perform his past relevant work.

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At step five, she relied on the VE’s testimony to find that given

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Plaintiff’s RFC for work at all exertional levels “compromised by

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nonexertional limitations,” he could perform three

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“representative” unskilled occupations in the national economy.

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(AR 20-21.)

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21.)

(AR 19-20.)

Accordingly, she found Plaintiff not disabled.

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(AR

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V.

DISCUSSION
Plaintiff argues that the ALJ erred in (1) considering and

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evaluating the opinions of Drs. Robert Marselle and Charles

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Dalton and failing to incorporate portions of them into his RFC

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and (2) assessing the credibility of his subjective symptom

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statements.

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A.

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(See J. Stip. at 2.)2

The ALJ Properly Assessed the Medical Evidence and
Determined Plaintiff’s RFC

Plaintiff contends that the ALJ failed to properly consider

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and evaluate Dr. Marselle’s opinion that (1) he “needed special

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and extra time,” (2) “at times even simple instructions would be

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problematic for him,” and (3) he had moderate limitations in his

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ability to maintain regular workplace attendance, perform work

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activities on a consistent basis, and perform work activities

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without special or additional supervision.

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Plaintiff also argues that the ALJ erred in failing to include in

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his RFC Dr. Dalton’s purported opinion that he would “miss days

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off work,” “be off task during the workday about 15-20%” of the

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time, and

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(Id. at 6.)

(Id. at 5.)

“need special or additional supervision occasionally.”
For the reasons discussed below, remand is not

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Plaintiff also contends that the ALJ’s hypothetical to the
VE was incomplete and she therefore erred in relying on the VE’s
testimony. (J. Stip. at 2, 11-13); see Hill v. Astrue, 698 F.3d
1153, 1162 (9th Cir. 2012) (if hypothetical to VE does not
reflect all of claimant’s limitations, then VE’s testimony “has
no evidentiary value to support a finding that the claimant can
perform jobs in the national economy” (citation omitted)). As
explained in Section V.A., the ALJ’s RFC determination adequately
incorporated Plaintiff’s mild to moderate limitations. Because
the ALJ’s hypothetical to the VE included the same limitations as
those in the RFC determination, she properly relied on the VE’s
testimony in finding Plaintiff capable of performing other work.
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warranted.

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1.

Applicable law

A claimant’s RFC is “the most [he] can still do” despite the

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impairments and related symptoms that “may cause physical and

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mental limitations that affect what [he] can do in a work

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setting.”

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must uphold an ALJ’s RFC assessment when the ALJ has applied the

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proper legal standard and substantial evidence in the record as a

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whole supports the decision.

§§ 404.1545(a)(1), 416.945(a)(1).

A district court

Bayliss v. Barnhart, 427 F.3d 1211,

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1217 (9th Cir. 2005).

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opinions “together with the rest of the relevant evidence [on

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record].”

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§§ 404.1545(a)(1), 416.945(a)(1) (“We will assess your residual

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functional capacity based on all the relevant evidence in your

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case record.”).

The ALJ must consider all the medical

§§ 404.1527(b), 416.927(b);3 see also

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Three types of physicians may offer opinions in Social

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Security cases: (1) those who directly treated the plaintiff, (2)

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those who examined but did not treat the plaintiff, and (3) those

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Social Security regulations regarding the evaluation of
opinion evidence were amended effective March 27, 2017. When, as
here, the ALJ’s decision is the final decision of the
Commissioner, the reviewing court generally applies the law in
effect at the time of the ALJ’s decision. See Lowry v. Astrue,
474 F. App’x 801, 805 n.2 (2d Cir. 2012) (applying version of
regulation in effect at time of ALJ’s decision despite subsequent
amendment); Garrett ex rel. Moore v. Barnhart, 366 F.3d 643, 647
(8th Cir. 2004) (“We apply the rules that were in effect at the
time the Commissioner’s decision became final.”); Spencer v.
Colvin, No. 15-05925, 2016 WL 7046848, at *9 n.4 (W.D. Wash. Dec.
1, 2016) (“42 U.S.C. § 405 does not contain any express
authorization from Congress allowing the Commissioner to engage
in retroactive rulemaking”). Accordingly, citations to 20 C.F.R.
§§ 404.1527 and 416.927 are to the version in effect from August
24, 2012 to March 26, 2017.
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who did neither.

Lester, 81 F.3d at 830.

A treating physician’s

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opinion is generally entitled to more weight than an examining

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physician’s, and an examining physician’s opinion is generally

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entitled to more weight than a nonexamining physician’s.

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see §§ 404.1527(c)(1), 416.927(c)(1).

Id.;

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This is so because treating physicians are employed to cure

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and have a greater opportunity to know and observe the claimant.

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Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996).

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findings of a nontreating, nonexamining physician can amount to

But “the

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substantial evidence, so long as other evidence in the record

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supports those findings.”

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(9th Cir. 1996) (per curiam).

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given to a nonexamining doctor who testifies at a hearing and is

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subject to cross-examination.

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1042 (9th Cir. 1995).

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Saelee v. Chater, 94 F.3d 520, 522
Further, greater weight may be

Andrews v. Shalala, 53 F.3d 1035,

In making an RFC determination, the ALJ should consider

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those limitations for which there is support in the record and

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need not take into account properly rejected evidence or

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subjective complaints.

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ALJ’s RFC determination because “the ALJ took into account those

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limitations for which there was record support that did not

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depend on [claimant]’s subjective complaints”); Batson v. Comm’r

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of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004) (ALJ not

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required to incorporate into RFC those findings from physician

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opinions that were “permissibly discounted”).

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findings by state-agency medical consultants and experts as

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opinion evidence.

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opinions on ultimate issues reserved to the Commissioner, such as

See Bayliss, 427 F.3d at 1217 (upholding

§§ 404.1527(e), 416.927(e).

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The ALJ considers

Medical-source

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a claimant’s RFC or the application of vocational factors, are

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not medical opinions and have no special significance.

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§§ 404.1527(d), 416.927(d).

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Furthermore, “[t]he ALJ need not accept the opinion of any

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physician . . . if that opinion is brief, conclusory, and

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inadequately supported by clinical findings.”

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Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); accord Batson, 359

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F.3d at 1195.

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physician’s opinion or a portion of it; the court may draw

Thomas v.

An ALJ need not recite “magic words” to reject a

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“specific and legitimate inferences” from the ALJ’s opinion.

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Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989).

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interpreting the evidence and developing the record, the ALJ does

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not need to ‘discuss every piece of evidence.’”

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Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (quoting

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Black v. Apfel, 143 F.3d 383, 386 (8th Cir. 1998)).

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“[I]n

Howard ex rel.

The Court must consider the ALJ’s decision in the context of

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“the entire record as a whole,” and if the “‘evidence is

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susceptible to more than one rational interpretation,’ the ALJ’s

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decision should be upheld.”

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F.3d 1194, 1198 (9th Cir. 2008) (citation omitted).

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2.

Ryan v. Comm’r of Soc. Sec., 528

Relevant background

Consulting psychologist Dr. Robert Marselle performed a

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comprehensive psychological examination and evaluation of

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Plaintiff on March 26, 2013.

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noted that Plaintiff lived with his mother; was able to dress and

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bathe himself and care for his own personal hygiene; was unable

(See AR 383-92.)

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Dr. Marselle

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to drive but could take the bus;4 had no “outside activities”;

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was able to pay bills and handle money appropriately but had

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difficulty with calculations; was able to go out alone; reported

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“fair” relationships with family and friends; could not “focus

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attention during the interview”; had difficulty completing

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household tasks and making decisions; and got up early, showered,

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got dressed, and looked for employment “on a daily basis.”

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385-86.)

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(AR

In a mental-status examination, Plaintiff appeared “genuine

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and truthful”; Dr. Marselle noted that there was “no evidence” of

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exaggeration or manipulation.

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processes were coherent and organized; his thought content was

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not delusional, bizarre, or psychotic; his mood and affect were

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“within normal limits,” although he admitted to “feelings of

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hopelessness” and “helplessness”; his speech was normal; he had

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low-average intelligence but was completely alert and oriented;

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and his abstract thinking, judgment, and insight all appeared

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intact.

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attention, focus, and short-term memory, however.

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(AR 386-88.)

(AR 386.)

Plaintiff’s thought

Plaintiff had “significant problems” with
(AR 388.)

Plaintiff’s performance in a series of psychological tests

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indicated that he was “functioning in the borderline range of

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intelligence” and had “memory dysfunction,” his “short-term

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memory showed significant delay,” and he was “far below average”

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in the areas of “sustained attention, visual search, and

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psychomotor efficiency.”

(AR 389-90.)

Dr. Marselle assessed

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At the hearing, Plaintiff clarified that he had a driver’s
license and could drive but that his mother would not let him use
her car. (AR 55.)
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Plaintiff as having ADD, “sociopathic personality traits,” and a

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current global assessment of functioning score of 74.5

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He noted that Plaintiff’s prognosis was “good.”

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the “Discussion of Allegations” section of the evaluation, Dr.

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Marselle noted that Plaintiff’s ADD was a “lifelong problem” that

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gave him “great difficulty,” and “[i]t is unlikely that he would

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be able to follow more complex instructions and at times even

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simple instructions would be problematic for him.”

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(AR 390.)

(AR 391.)

In

(AR 390.)

In the “Functional Assessment” portion of the report, Dr.

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Marselle opined that Plaintiff had “mild” restrictions in his

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ability to “understand, remember, and carry out simple one-or

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two-step job instructions” and “moderate” restrictions in

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following “detailed and complex instructions.”

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in original).)

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“maintain concentration and attention, persistence and pace” and

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accept instructions from supervisors.

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restrictions in his ability to “relate and interact with co-

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workers and [the] public” or “associate with day-to-day work

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activity, including attendance and safety.”

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ability to “maintain regular attendance in the workplace and

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perform work activities on a consistent basis” and “perform work

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activities without special or additional supervision,” Dr.

(AR 391 (emphases

He had “mild” restrictions in his ability to

(Id.)

He had no

(Id.)

In his

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GAF scores assess a person’s overall psychological
functioning on a scale of 1 to 100. See Diagnostic and
Statistical Manual of Mental Disorders 32 (revised 4th ed. 2000).
A GAF score of 71-80 indicates “no more than slight impairment”
in social, occupational, or school functioning. DSM-IV 34. GAF
scores have been excluded from the latest edition of DSM because
of concerns about their reliability and lack of clarity, however.
See DSM-V 15-16 (5th ed. 2013).
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Marselle opined that Plaintiff had “moderate” restrictions “due

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to inattentiveness.”

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(Id.)

On May 10, 2013, state-agency medical consultant Dr. Barbara

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Moura6 completed the psychiatric portion of the disability

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determination for Plaintiff’s SSI and DIB claims.

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80, 83-90, 92-95.)

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included Dr. Marselle’s report, Dr. Moura opined that Plaintiff’s

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“primary disorder” was ADHD, which caused mild restrictions in

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his activities of daily living and moderate restrictions in

(AR 68-74, 76-

After reviewing the medical evidence, which

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maintaining social functioning and concentration, persistence, or

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pace.

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hospitalization for “depression and acting out” as a teenager but

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apparently no record of hospitalization as an adult.

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Dr. Moura noted Dr. Marselle’s opinion that Plaintiff’s

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“attentional” difficulties would likely interfere with “even

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simple tasks” at times; she noted that later in his report,

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however, Dr. Marselle assessed “at most moderate limitations” and

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“mild limitations” in Plaintiff’s concentration, persistence, and

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pace.

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that Plaintiff would have problems with “simple tasks” was

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“inconsistent” with the rest of his report.

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that Plaintiff would have “marked limitations” performing complex

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tasks; “moderate limitations” maintaining concentration,

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persistence, and pace; and “possibly moderate limitations”

(AR 69, 73.)

(AR 74.)

She noted that Plaintiff had a history of

(AR 73.)

Dr. Moura concluded that Dr. Marselle’s opinion

(Id.)

She found

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27
28

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Dr. Moura’s signature line includes a medicalconsultant code of “38,” indicating “[p]sychology” (AR 74); see
Program Operations Manual System (POMS) DI 24501.004, U.S. Soc.
Sec. Admin. (May 5, 2015), https://secure.ssa.gov/poms.nsf/lnx/
0424501004.
12

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2

interacting with the public.

(Id.)

In her mental-RFC assessment, Dr. Moura opined that although

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Plaintiff had understanding and memory limitations that would

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“markedly limit[]” his ability to understand and remember

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detailed instructions, he had no significant limitation in his

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ability to “remember locations and work-like procedures” or

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“understand and remember very short and simple instructions.”

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(AR 77-78.)

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maintain attention and concentration for extended periods of

He had moderate limitations in his ability to

10

time; sustain an ordinary routine without special supervision;

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work in coordination with or in proximity to others without being

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distracted by them; and complete a normal workday and workweek

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without interruption from psychologically based symptoms and

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perform at a consistent pace without an unreasonable number and

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length of rest periods.

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in his ability to make simple work-related decisions or perform

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activities within a schedule, maintain regular attendance, and be

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punctual within customary tolerances.

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limitation in his ability to interact appropriately with the

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general public and respond appropriately to changes in the work

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setting, Plaintiff had no significant limitations in the areas of

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social interaction or adaptation.

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that Plaintiff should be limited to “simple 1-2 step tasks,”

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could work a regular workweek or workday with “customary breaks,”

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and could interact “appropriately” with peers and supervisors but

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must have “limited” contact with the public.

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that Dr. Marselle’s opinion contained some internal

28

inconsistencies, was “an overestimate of the severity of

(Id.)

He had no significant limitations

13

Other than moderate

(Id.)

(AR 78-79.)

Dr. Moura opined

(AR 79.)

She noted

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[Plaintiff]’s restrictions/limitations and [was] based only on a

2

snapshot of [Plaintiff]’s functioning.”

3

(AR 79-80.)

On September 20, 2013, state-agency medical consultant Dr.

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Junko McWilliams, a psychologist, completed the psychiatric

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portion of the disability determination for Plaintiff’s SSI and

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DIB claims on reconsideration.

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McWilliams noted that Plaintiff had “reported no psychiatric

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changes” or treatment since Dr. Moura’s initial assessment.

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105.)

(AR 104-08, 109-11.)

Dr.

(AR

He agreed with Dr. Moura’s assessment of Plaintiff’s

10

limitations (AR 106) and with her mental-RFC assessment (AR 109-

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10), except that he found no significant limitation in

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Plaintiff’s ability to sustain an ordinary routine without

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special supervision or work in coordination with or in proximity

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to others without being distracted by them (AR 110), and he found

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moderate limitation in his ability to accept instructions,

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respond appropriately to criticism from supervisors, and get

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along with coworkers or peers without distracting them or

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exhibiting behavioral extremes (id.).

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Plaintiff’s concentration limitations “do not preclude him from

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performing the basic mental demands of competitive work” on a

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regular basis, he could “deal with the public and get along with

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people at work if the contact is brief,” and he could “adapt to

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changes if they are not too rapid and extensive.”

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Dr. McWilliams noted that

(AR 110-11.)

Dr. Charles Dalton, a clinical psychologist, testified

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telephonically as a medical expert at Plaintiff’s hearing.

26

31-43.)

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that Plaintiff had “no more than mild limitations and adaptive

28

functions,” “no more than moderate limitations in socialization,

(AR

Dr. Dalton reviewed the medical record and determined

14

1

including the ability to get along with colleagues and

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supervisors,” and “no more than moderate limitations in

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concentration, persistence[,] or pace.”

4

Marselle’s report, Dr. Dalton opined that Plaintiff’s

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“intellectual functioning appears to be adequate for simple tasks

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and work.”

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be restricted to occasional contact with the public and “others.”

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(AR 32-33.)

9

(Id.)

(AR 32.)

Based on Dr.

Dr. Dalton opined that Plaintiff would need to

Plaintiff’s attorney extensively questioned Dr. Dalton at

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the hearing.

11

Plaintiff had “moderate” impairment in concentration,

12

persistence, and pace, counsel asked whether Plaintiff “would be

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off task” for some percentage of the day (AR 33-34); Dr. Dalton

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responded:

(See AR 33-43.)

As to Dr. Dalton’s opinion that

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It would depend on what the task is.

16

groceries, probably not.

If it’s pulling things off an

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assembly

not.

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repetitive tasks, no.

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that would include two and three steps, probably for some

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percentage of the day, yes.

line,

probably

So

If it’s bagging

for

very

simple,

For more detailed tasks, things

21

(AR 34).

22

stuck to his position that Plaintiff would not be significantly

23

off-task:

24

Q:

When pushed by the attorney on the subject, Dr. Dalton

Would

it

be

reasonable

that

the

Claimant’s

25

attendance would be impaired, to the point, where

26

he would miss, let’s say, two or three days a month

27

from work, based on this moderate restriction?

28

A:

No.

There’s no previous history supporting that
15

1

conclusion.

2

much work, would have significant other personal

3

deficits

4

treatment . . .

5

Q:

A person who would be missing that

that

he

would

require

psychiatric

What is the impact of a moderate restriction on

6

ability

7

workplace?

8

this restriction and if so, to what degree?

9
10

to

maintain

regular

attendance

in

the

Would his attendance suffer because of

. . .
A:

I don’t –- I can’t quantify that.

There’s just

11

such limits of data here.

Without a psychiatric

12

treatment history, I would assume that it would not

13

be so significant, as to keep him from doing SGA,

14

any gainful employment.

I would say no more less

15

than 15 to 20% . . . .

And so you’re asking for

16

quantification and I can’t give it.

17

(AR 38-39.)

18

percentage of time, the impact of “moderate” restrictions in

19

Plaintiff’s ability to maintain regular attendance in the

20

workplace (AR 39) and to perform work activities without special

21

or additional supervision (AR 40), and Dr. Dalton responded that

22

he was unable to do so (AR 39, 41).

23

counsel’s questioning, noting that counsel was likely not “going

24

to get [Dr. Dalton] to quantify any more than he has.”

25

Counsel again asked Dr. Dalton to quantify, in

The ALJ interrupted

(AR 41.)

When asked about Dr. Marselle’s opinion that “at times”

26

Plaintiff might “have difficulty performing even simple

27

instructions,” Dr. Dalton pointed out that Dr. Marselle “goes on

28

to say” that Plaintiff had only mild restrictions in his ability
16

1

to understand and carry out simple instruction.

2

Dalton noted that Dr. Marselle’s opinion that Plaintiff had only

3

mild restrictions in that area was “consistent with the objective

4

data.”

5

Dr. Dalton opined that, although “there are memory impairments,”

6

Plaintiff’s memory-test scores were “indicative of poor effort.”

7

(AR 35.)

8

“inconsistencies” between scores were indicative of poor or

9

limited effort, Dr. Dalton suggested that Dr. Marselle’s

(Id.)

(AR 34.)

Dr.

When asked about Plaintiff’s memory impairment,

Noting that “[a] raw score of zero” and

10

assessment of only mild limitations in memory for simple tasks

11

“gives you insight, as to how he took into consideration”

12

Plaintiff’s low memory-test scores.

13

that assessment “speaks just as much as” Dr. Marselle’s

14

statements concerning Plaintiff’s effort and sincerity.

15

Dr. Dalton opined that “[a]s tasks become more complex, yes,

16

there are probably going to be moderate memory impairments” (AR

17

35), but that Plaintiff had no “significant impairments, memory,

18

concentration or attention for simple instructions” (AR 37),

19

there was no medical history supporting a conclusion that he

20

would miss two or three days a month from work based on his

21

limitations (AR 38), and he would not need special or additional

22

supervision (AR 40).

23

(AR 36.)

He suggested that

(Id.)

When pushed to quantify Plaintiff’s “moderate” restriction

24

in performing work activities without special or additional

25

supervision, Dr. Dalton stated that “[w]hereas, somebody might

26

need to be told instructions once, this person may need to be

27

told it twice.”

28

that [Plaintiff] has had no treatment since 1998 . . . says [his

(AR 41.)

Dr. Dalton opined that “[t]he fact

17

1

diagnoses have] never been problematic enough [for him] to do

2

anything about it.”

3

3.

(AR 42.)

Analysis

4

Plaintiff argues that the ALJ erred in rejecting without

5

explanation certain limitations assessed by Drs. Marselle and

6

Dalton.

7

“simple, repetitive tasks with no fast-paced assembly line work,

8

no teamwork, no public contact, and no more than occasional

9

contact with co-workers and supervisors.”

(J. Stip. at 2-6, 9-10.)

The ALJ limited Plaintiff to

(AR 15.)

In assessing

10

Plaintiff’s mental impairments, she gave “great weight” to the

11

opinions of state-agency consultants Drs. Moura and McWilliams,

12

consulting psychologist Dr. Marselle, and medical expert Dr.

13

Dalton.

14

opinions in full.

15

(AR 18.)

She did not, however, adopt any of their
(See id.)

The ALJ summarized Dr. Marselle’s opinion, noting that the

16

“broad consensus” among the psychologists who examined Plaintiff

17

or reviewed his medical record was that he was “capable of

18

performing at least simple work.”

19

weight” to the opinions of Drs. Moura, Marselle, McWilliams, and

20

Dalton, which were “consistent with the record as a whole and

21

with each other,” and “greater weight” to the opinion of Dr.

22

McWilliams that Plaintiff was “able to adapt to changes if they

23

are not too rapid and extensive” and to the opinions of Drs.

24

Moura, McWilliams, and Dalton that Plaintiff “should have limited

25

interpersonal contact.”

26

“restriction to simple work . . . more than adequately

27

accommodates” his limitations.

28

(AR 18.)

(AR 17-18.)

She gave “great

She found that Plaintiff’s

(Id.)

As an initial matter, the ALJ properly translated the mild
18

1

and moderate limitations assessed by Dr. Marselle into

2

Plaintiff’s RFC.

3

restrictions in his ability to “understand, remember, and carry

4

out simple one-or two-step job instructions”; moderate

5

restrictions with “detailed and complex instructions”; mild

6

restrictions in his ability to “maintain concentration and

7

attention, persistence and pace” and accept instructions from

8

supervisors; and moderate restrictions in his ability to

9

“maintain regular attendance in the workplace and perform work

10

activities on a consistent basis” and “perform work activities

11

without special or additional supervision.”

12

appropriately translated those mild and moderate restrictions

13

into Plaintiff’s RFC for “simple, repetitive tasks” with

14

limitations on fast-paced work, teamwork, and contact with the

15

public, coworkers, and supervisors.

16

Astrue, 539 F.3d 1169, 1173–74 (9th Cir. 2008) (ALJ’s limitation

17

to “simple, routine, repetitive” work sufficiently accommodated

18

medical-opinion evidence that claimant had “moderate” limitation

19

in pace and “other mental limitations regarding attention,

20

concentration, and adaption”); Hughes v. Colvin, 599 F. App’x

21

765, 766 (9th Cir. 2015) (ALJ’s RFC assessment accounted for

22

moderate difficulties in social functioning, concentration, and

23

persistence by restricting claimant to simple, routine,

24

repetitive tasks in job where she could work independently, with

25

no more than occasional public interaction); Sabin v. Astrue, 337

26

F. App’x 617, 620–21 (9th Cir. 2009) (ALJ properly assessed

27

medical evidence in determining that despite moderate

28

difficulties in concentration, persistence, or pace, claimant

Dr. Marselle found that Plaintiff had mild

19

(AR 391.)

The ALJ

See Stubbs–Danielson v.

1

could perform simple and repetitive tasks on consistent basis);

2

Rodriquez v. Colvin, No. 1:13-CV-01716-SKO, 2015 WL 1237302, at

3

*6 (E.D. Cal. Mar. 17, 2015) (“a moderate limitation in the

4

ability to complete a workday or workweek without interruption is

5

consistent with and properly captured by a limitation to simple

6

repetitive tasks”); McLain v. Astrue, No. SACV 10-1108 JC, 2011

7

WL 2174895, at *6 (C.D. Cal. June 3, 2011) (“[m]oderate mental

8

functional limitations . . . are not per se disabling, nor do

9

they preclude the performance of jobs that involve simple,

10
11

repetitive tasks” (citations omitted)).
To the extent Dr. Marselle opined that Plaintiff might

12

sometimes have difficulty even with simple tasks and might need

13

extra or special supervision, the ALJ’s reliance on the opinions

14

of Drs. Moura, McWilliams, and Dalton — who each noted that that

15

brief portion of Dr. Marselle’s opinion must be read in the

16

context of his finding of only mild and moderate limitations —

17

was substantial evidence because those opinions were consistent

18

with the medical evidence and indeed Dr. Marselle’s own

19

functional assessment.

20

Marselle’s brief assessment of possible occupational difficulty

21

even with simple tasks was undermined by his other findings.

22

the “functional assessment” portion of his opinion, which comes

23

after his examination notes, he assessed Plaintiff as having no

24

more than moderate or mild limitations.

25

Marselle assigned Plaintiff a GAF score of 74, indicating that he

26

had “no more than slight impairment” in social, occupational, or

27

school functioning, and he noted that his prognosis was “good.”

28

(AR 390-91); DSM-IV 34.

As the state-agency doctors observed, Dr.

(AR 391.)

Indeed, Dr.

As Dr. Dalton noted, Dr. Marselle’s
20

In

1

opinion only made sense when read as a whole, not when brief

2

portions of it were considered in isolation.

3

entitled to implicitly disregard Dr. Marselle’s note that

4

Plaintiff might “at times” have difficulty with “even simple

5

instructions” because it was inconsistent with his own broader

6

assessment.

7

856 (9th Cir. 2001) (ALJ permissibly rejected physician’s opinion

8

when it was contradicted by or inconsistent with treatment

9

reports); Connett v. Barnhart, 340 F.3d 871, 875 (9th Cir. 2003)

Thus, the ALJ was

(AR 390); See Rollins v. Massanari, 261 F.3d 853,

10

(physician’s opinion properly rejected when treatment notes

11

“provide[d] no basis for the functional restrictions he opined

12

should be imposed on [plaintiff]”); see also Magallanes, 881 F.2d

13

at 755 (ALJ need not recite “magic words” to reject portion of

14

physician’s opinion; court may draw “specific and legitimate

15

inferences” from ALJ’s opinion).

16

The ALJ was entitled to rely on the opinions of the

17

consulting and reviewing psychologists together, because they

18

were generally consistent with each other and with Dr. Marselle’s

19

own functional assessment.

20

1144, 1149 (9th Cir. 2001) (although “contrary opinion of a

21

non-examining medical expert does not alone constitute a

22

specific, legitimate reason for rejecting a treating or examining

23

physician’s opinion, it may constitute substantial evidence when

24

it is consistent with other independent evidence in the record”);

25

Andrews, 53 F.3d at 1041 (“reports of the nonexamining advisor

26

need not be discounted and may serve as substantial evidence when

27

they are supported by other evidence in the record and are

28

consistent with it”); Morgan v. Comm’r, Soc. Sec. Admin., 169

See Tonapetyan v. Halter, 242 F.3d

21

1

F.3d 595, 600 (9th Cir. 1999) (testifying medical-expert opinions

2

may serve as substantial evidence when “they are supported by

3

other evidence in the record and are consistent with it”).

4

Plaintiff further argues that the ALJ failed to incorporate

5

portions of Dr. Dalton’s opinion that Plaintiff would “miss days

6

off work,” “be off task during the workday about 15-20%” of the

7

time, and “would need special or additional supervision

8

occasionally.”

9

Plaintiff had no more than mild or moderate functional

(J. Stip. at 6.)

Dr. Dalton testified that

10

limitations and opined that Plaintiff could perform “simple

11

tasks.”

12

translated Plaintiff’s moderate limitations in his ability to

13

maintain workplace attendance and perform work without special or

14

additional supervision into his RFC for “simple, repetitive

15

tasks.”

16

(AR 32.)

As discussed above, the ALJ properly

To the extent Plaintiff argues that Dr. Dalton testified

17

that he would be “off task” “about 15-20%” of the time (see J.

18

Stip. at 6), Plaintiff mischaracterizes that portion of Dr.

19

Dalton’s testimony.

20

repetitive tasks” Plaintiff would not be off task at all.

21

34.)

22

to quantify Plaintiff’s limitations and resisted Plaintiff’s

23

counsel’s repeated attempts to ask him to do so.

24

As for Dr. Dalton’s statement that Plaintiff might need to be

25

told some instructions “twice,” it was clear in context that he

26

was not referring to the simple, repetitive tasks the ALJ found

27

Plaintiff capable of but rather more detailed instructions.

28

AR 37 (stating that Plaintiff had no “significant impairments

Dr. Dalton opined that “for very simple,
(AR

Further, Dr. Dalton repeatedly stated that he was not able

22

(See AR 39.)

(See

1

. . . for simple instructions”); see also AR 38-41.)

2

Accordingly, Plaintiff is not entitled to remand on this

3

ground.

4

B.

5

The ALJ Properly Assessed the Credibility of
Plaintiff’s Subjective Symptom Statements

6

Plaintiff argues that the ALJ failed to articulate legally

7

sufficient reasons for rejecting his testimony.

8

18, 21-23.)

9

err.

10
11

1.

(J. Stip. at 13-

For the reasons discussed below, the ALJ did not

Applicable law7

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

12

allegations concerning the severity of his symptoms is entitled

13

to “great weight.”

14

Cir. 1989); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1986).

15

“[T]he ALJ is not required to believe every allegation of

16

disabling pain, or else disability benefits would be available

17

for the asking, a result plainly contrary to 42 U.S.C.

18

§ 423(d)(5)(A).”

19

2012) (citing Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)).

20

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

Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir.

In evaluating a claimant’s subjective symptom testimony, the

21

ALJ engages in a two-step analysis.

See Lingenfelter, 504 F.3d

22

at 1035-36.

23

has presented objective medical evidence of an underlying

24

impairment [that] could reasonably be expected to produce the

“First, the ALJ must determine whether the claimant

25
26
27
28

7

Social Security Ruling 16-3p, 2016 WL 1119029, effective
March 28, 2016, rescinded SSR 96-7p, 1996 WL 374186 (July 2,
1996), 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 on April 20, 2015, however.
23

1

pain or other symptoms alleged.”

2

medical evidence exists, the ALJ may not reject a claimant’s

3

testimony “simply because there is no showing that the impairment

4

can reasonably produce the degree of symptom alleged.”

5

80 F.3d at 1282 (emphasis in original).

6

Id. at 1036.

If such objective

Smolen,

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

7

the claimant’s subjective symptom testimony only if she makes

8

specific findings that support the conclusion.

9

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

See Berry v.
Absent a finding or

10

affirmative evidence of malingering, the ALJ must provide “clear

11

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

12

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

13

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

14

1102 (9th Cir. 2014).

15

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

16

claimant’s reputation for lying, prior inconsistent statements,

17

and other testimony by the claimant that appears less than

18

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

19

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

20

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

21

(5) testimony from physicians and third parties.

22

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

23

amended); Thomas, 278 F.3d at 958-59.

24

finding is supported by substantial evidence in the record, the

25

reviewing court “may not engage in second-guessing.”

26

F.3d at 959.

The ALJ may consider, among other factors,

27
28
24

Rounds v.

If the ALJ’s credibility

Thomas, 278

1
2

2.

Relevant background

Medical records from 1997 and 1998 reveal that Plaintiff was

3

hospitalized several times as a teenager and placed on

4

psychiatric hold.

5

(May 1998 hospitalization, noting that it was his “third”).)

6

1997 he “refused to take his medications” but later tolerated

7

them “without side effects.”

8

side effects from some medication in 1998, when a different

9

medication was prescribed instead he tolerated it well “without

(See AR 360 (Aug. 1997 hospitalization), 350

(AR 360-61.)

In

Although he showed

10

further side effects.”

11

October 1998, it was noted that Plaintiff’s behavior was

12

“definitely better” when he took his medication.

13

(AR 351.)

In a school report from

(AR 402.)

In his consultative examination on March 26, 2013, Plaintiff

14

told Dr. Marselle that he had problems focusing, remaining

15

attentive, concentrating, and remembering.

16

history of bipolar disorder, Tourette’s syndrome, ADHD, and

17

obsessive compulsive disorder, and he said he currently suffered

18

from the latter two.

19

hospitalized or treated for psychiatric problems “other than in

20

prison”8 and was not currently taking any medication or receiving

21

any treatment.

22

day “get[ting] up early, shower[ing], get[ting] dressed, and

23

look[ing] for employment.”

24

personal care, rode the bus, could pay bills and handle cash

25

appropriately, and had fair relationships with family and

26

friends.

(Id.)

(Id.)

(AR 385.)

(AR 384.)

He reported that he had not been

He reported that he typically spent his

(AR 386.)

He had no problems with

He had difficulty completing household tasks

27
28
8

He had a

As noted above, this apparently was not true.
25

1

and making decisions.

2

(AR 385-86.)

At the February 26, 2015 hearing, Plaintiff testified that

3

he was not seeing a doctor for his conditions (AR 31), was not

4

taking any medication (AR 55), and had seen a doctor most

5

recently “a few years” ago (id.).

6

jobs because he failed to finish the tasks assigned to him,

7

wasn’t working fast enough, or “wasn’t catching on” to the job.

8

(AR 45-48.)

9

concentrating, getting certain jobs done, just getting [himself]

He had been fired from several

He testified that he had a hard time “just

10

together, just basic instructions.”

11

over and over again, what to do” by his employers.

12

could take the bus by himself, and in a normal day he would watch

13

television, sleep, and go to the park to exercise.

14

He could not finish a 30-minute television program without losing

15

interest and changing the channel to watch something else.

16

54-55.)

17

had trouble finishing that task because he got sidetracked.

18

56.)

19

when he was taking medication, he “had a lot of bad side

20

effects.”

21

psychiatrist recently, Plaintiff stated that he had tried but

22

could not “find one.”

23

couple numbers” but was told that “it costs money to see those

24

doctors.”

25

for health insurance.

26
27
28

(AR 52.)

He had to be “told
(Id.)

He

(AR 53-54.)

(AR

He was able to maintain his living area but sometimes

He could make his own basic meals.

(Id.)

(Id.)

3.

(Id.)

(AR

He noted that

When asked by the ALJ why he had not seen a

(AR 61.)

He noted that he “called a

He had only recently applied and been approved
(Id.)

Analysis

The ALJ found that Plaintiff’s condition was “not as severe
as he alleges” (AR 17) and that although his “medically
26

1

determinable impairments could reasonably be expected to cause

2

the alleged symptoms,” his “statements concerning the intensity,

3

persistence and limiting effects of [those] symptoms” were not

4

credible to the extent they were inconsistent with the evidence

5

(AR 16).

6

range of work at all exertional levels, but he was “limited to

7

simple, repetitive tasks with no fast-paced assembly line work,

8

no teamwork, no public contact, and no more than occasional

9

contact with co-workers and supervisors.”

10

She found that Plaintiff had the RFC to perform a full

(AR 15.)

Plaintiff argues that the ALJ failed to give specific,

11

clear, and convincing reasons to support her credibility

12

assessment.9

13

Plaintiff’s subjective complaints of decreased mental

14

functioning: she limited him to “simple, repetitive tasks,” with

15

no fast-paced or assembly-line work, teamwork, public contact, or

16

more than occasional contact with co-workers and supervisors.

17

(AR 15.)

18

Plaintiff’s subjective complaints of mental impairment, she

19

provided clear and convincing reasons for doing so.

20

(J. Stip. at 16.)

The ALJ afforded some weight to

As discussed below, to the extent the ALJ rejected

First, the ALJ noted that Plaintiff had “very limited

21

medical records,” suggesting that Plaintiff’s “conditions have

22

been managed with little care.”

23

in detail above, the medical evidence does not support

(AR 16.)

Indeed, as discussed

24
25

9

27

Plaintiff objects to the ALJ’s credibility assessment only
as to his alleged mental impairment; he does not contest any
credibility assessment related to physical symptoms. (See J.
Stip. at 16-18.)

28

27

26

1

Plaintiff’s allegations of disabling psychological symptoms.

2

Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (“Although

3

lack of medical evidence cannot form the sole basis for

4

discounting pain testimony, it is a factor that the ALJ can

5

consider in his credibility analysis.”); Carmickle v. Comm’r,

6

Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008)

7

(“Contradiction with the medical record is a sufficient basis for

8

rejecting the claimant’s subjective testimony.”).

9

See

Further, the sparse medical record indicates that Plaintiff,

10

34 years old at the time of the hearing (AR 29), was treated for

11

psychological symptoms as a teenager but had not sought any

12

mental-health evaluation or treatment as an adult (see, e.g., AR

13

350-52, 360-62).

14

treatment from a mental health specialist” but argues that it was

15

because he was not able to find “free” care and that he had

16

experienced side effects from his medication as a teenager.

17

Stip. at 16, 22 (citing AR 56, 61).)

18

suggests that although Plaintiff experienced some side effects

19

from his medication as a teenager, when his medication was

20

changed and he actually took it, he no longer had negative side

21

effects and his condition improved.

22

(tolerated medication “without side effects”), 351 (after

23

medication changed, Plaintiff tolerated it well “without further

24

side effects”), 402 (Plaintiff’s behavior “definitely better”

25

when he took his medication).)

26

Plaintiff concedes that he “has not received

But the medical evidence

(See, e.g., AR 360-61

And as to Plaintiff’s failure to seek medical care, when

27
28

(J.

28

1

asked why he had not gone to a psychiatrist in years, Plaintiff

2

told the ALJ that he “just [hadn’t] been able to find one.”

3

61.)

4

that “it costs money to see those doctors.”

5

testify as to how much money he was asked to pay or state that he

6

was unable to afford it, only that it “costs money” to see the

7

doctors he called.

8

[Plaintiff] attempted to seek treatment at free or reduced fee

9

county facilities.”

(AR

He noted that he “called a couple numbers” but was told
(Id.)

He did not

The ALJ noted that there was “no evidence

(AR 17.)

An ALJ may rely upon a claimant’s

10

unexplained failure to seek treatment as a clear and convincing

11

reason for an adverse credibility finding.

12

Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (ALJ may discount

13

claimant’s testimony in light of “unexplained or inadequately

14

explained failure to seek treatment or to follow a prescribed

15

course of treatment”); Orn v. Astrue, 495 F.3d 625, 638 (9th Cir.

16

2007).

See Tommasetti v.

17

And even if the ALJ improperly considered Plaintiff’s

18

failure to seek medical care in her credibility finding — though

19

she noted that she in fact “does not use the possible lack of

20

access to care as a factor against [him]” (AR 17) — any such

21

error was harmless because as explained below, she gave other,

22

legitimate reasons for discounting the credibility of his

23

statements.

24

1050, 1055 (9th Cir. 2006) (nonprejudicial or irrelevant mistakes

25

harmless).

26

See Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d

Second, the ALJ noted that Plaintiff’s scores on his memory

27
28

29

1

tests “were indicative of poor effort.”

(AR 17.)

Indeed, both

2

state-agency consultant Dr. Moura (AR 76) and medical expert Dr.

3

Dalton (AR 35-36) interpreted Plaintiff’s low memory-test scores

4

as indicative of poor effort.

5

found Plaintiff’s effort genuine, as Plaintiff notes, the ALJ was

6

entitled to rely instead on the other two doctors’ opinion

7

evidence on this point.

8

possible unreliability of Plaintiff’s test scores was a legally

9

sufficient and factually supported reason for discounting the

Although Dr. Marselle may have

See Saelee, 94 F.3d at 522.

The

10

credibility of Plaintiff’s statements.

11

959 (ALJ properly considered claimant’s “self-limiting behaviors”

12

and “efforts to impede accurate testing” during two physical-

13

capacity evaluations); Tonapetyan, 242 F.3d at 1148 (ALJ properly

14

considered claimant’s poor effort during consultative

15

examinations).

16

See Thomas, 278 F.3d at

Third, the ALJ found that Plaintiff’s activities of daily

17

living were “reasonably normal” and inconsistent with his

18

statements about his severe impairments.

19

hearing, Plaintiff testified that he was able to tend to his

20

personal care, prepare basic meals, handle money, do household

21

chores, go to the park to exercise regularly, and ride a bus

22

independently.

23

watching television, and looking for jobs.

24

“reasonably normal” daily tasks of keeping a space clean,

25

maintaining an exercise routine, handling money, seeking jobs,

26

and preparing simple meals are inconsistent with Plaintiff’s

(AR 40.)

At the

He typically spent his day exercising,

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(AR 17.)

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(AR 53-54.)

The

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allegation that he would be unable to do “simple, routine tasks”

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or sustain the level of concentration needed to maintain

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employment.

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plaintiff’s subjective symptom statements when they are

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inconsistent with his daily activities.

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1112 (ALJ may discredit claimant’s testimony when “claimant

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engages in daily activities inconsistent with the alleged

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symptoms” (citing Lingenfelter, 504 F.3d at 1040)).

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those [daily] activities suggest some difficulty functioning,

An ALJ may properly discount the credibility of a

See Molina, 674 F.3d at

“Even where

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they may be grounds for discrediting the claimant’s testimony to

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the extent that they contradict claims of a totally debilitating

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impairment.”

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CV 15-0188-KES, 2016 WL 1715163, at *7 (C.D. Cal. Apr. 28, 2016)

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(“That Plaintiff maintained a reasonably normal level of daily

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activities was a clear and convincing reason to discount his

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credibility, even if his impairments made those activities

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somewhat more challenging.”).

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Molina, 674 F.3d at 1113; Amezquita v. Colvin, No.

In sum, the ALJ provided clear and convincing reasons for

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finding Plaintiff’s subjective symptom allegations not credible.

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Because those findings were supported by substantial evidence,

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this Court may not engage in second-guessing.

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F.3d at 959.

Plaintiff is not entitled to remand on this ground

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See Thomas, 278

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VI.

CONCLUSION
Consistent with the foregoing and under sentence four of 42

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U.S.C. § 405(g),10 IT IS ORDERED that judgment be entered

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AFFIRMING the decision of the Commissioner, DENYING Plaintiff’s

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request for remand, and DISMISSING this action with prejudice.

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DATED: June 14, 2017

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_________________________
JEAN ROSENBLUTH
U.S. Magistrate Judge

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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.”

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