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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 RYAN PATRICK DURAN, Plaintiff, 12 13 v. 14 15 NANCY A. BERRYHILL, Acting Commissioner of Social Security, 16 Defendant. ) Case No. CV 16-7416-JPR ) ) ) MEMORANDUM DECISION AND ORDER ) AFFIRMING COMMISSIONER ) ) ) ) ) ) ) 17 18 19 I. PROCEEDINGS Plaintiff seeks review of the Commissioner’s final decision 20 denying his applications for Social Security disability insurance 21 benefits (“DIB”) and supplemental security income benefits 22 (“SSI”). 23 undersigned U.S. Magistrate Judge under 28 U.S.C. § 636(c). 24 matter is before the Court on the parties’ Joint Stipulation, 25 filed April 17, 2017, which the Court has taken under submission 26 without oral argument. 27 Commissioner’s decision is affirmed. The parties consented to the jurisdiction of the For the reasons stated below, the 28 1 The 1 II. 2 BACKGROUND Plaintiff was born in 1980. (Administrative Record (“AR”) 3 68.) 4 diploma while in juvenile detention (id.), and worked as a 5 commercial driver, general laborer, and security guard (AR 244). 6 He completed 10th grade (AR 29), received his high-school On October 10, 2012, Plaintiff filed applications for DIB 7 and SSI, alleging in each that he had been unable to work since 8 July 31, 2009, because of Tourette’s syndrome, attention deficit 9 hyperactivity disorder, obsessive compulsive disorder, and 10 bipolar disorder. 11 denied initially and on reconsideration (AR 98-99, 128-29), he 12 requested a hearing before an Administrative Law Judge (AR 145). 13 A hearing was held on February 26, 2015, at which Plaintiff, who 14 was represented by counsel, testified, as did a vocational expert 15 and medical expert. 16 April 20, 2015, the ALJ found Plaintiff not disabled. 17 Plaintiff requested review from the Appeals Council, and on 18 September 14, 2016, it denied review. 19 followed. 20 III. STANDARD OF REVIEW 21 (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 22 Commissioner’s decision to deny benefits. 23 decision should be upheld if they are free of legal error and 24 supported by substantial evidence based on the record as a whole. 25 See id.; Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra 26 v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). 27 evidence means such evidence as a reasonable person might accept 28 as adequate to support a conclusion. 2 The ALJ’s findings and Substantial Richardson, 402 U.S. at 1 401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 2 It is more than a scintilla but less than a preponderance. 3 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 4 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). 5 substantial evidence supports a finding, the reviewing court 6 “must review the administrative record as a whole, weighing both 7 the evidence that supports and the evidence that detracts from 8 the Commissioner’s conclusion.” 9 720 (9th Cir. 1996). To determine whether Reddick v. Chater, 157 F.3d 715, “If the evidence can reasonably support 10 either affirming or reversing,” the reviewing court “may not 11 substitute its judgment” for the Commissioner’s. 12 IV. Id. at 720-21. THE EVALUATION OF DISABILITY 13 People are “disabled” for purposes of receiving Social 14 Security benefits if they are unable to engage in any substantial 15 gainful activity owing to a physical or mental impairment that is 16 expected to result in death or has lasted, or is expected to 17 last, for a continuous period of at least 12 months. 18 § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 19 1992). 42 U.S.C. 20 A. 21 The ALJ follows a five-step sequential evaluation process to The Five-Step Evaluation Process 22 assess whether a claimant is disabled. 23 §§ 404.1520(a)(4), 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 24 828 n.5 (9th Cir. 1995) (as amended Apr. 9, 1996). 25 step, the Commissioner must determine whether the claimant is 26 currently engaged in substantial gainful activity; if so, the 27 claimant is not disabled and the claim must be denied. 28 §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). 3 20 C.F.R. In the first 1 If the claimant is not engaged in substantial gainful 2 activity, the second step requires the Commissioner to determine 3 whether the claimant has a “severe” impairment or combination of 4 impairments significantly limiting his ability to do basic work 5 activities; if not, the claimant is not disabled and his claim 6 must be denied. 7 §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a “severe” impairment or combination of 8 impairments, the third step requires the Commissioner to 9 determine whether the impairment or combination of impairments 10 meets or equals an impairment in the Listing of Impairments set 11 forth at 20 C.F.R. part 404, subpart P, appendix 1; if so, 12 disability is conclusively presumed. 13 416.920(a)(4)(iii). §§ 404.1520(a)(4)(iii), 14 If the claimant’s impairment or combination of impairments 15 does not meet or equal an impairment in the Listing, the fourth 16 step requires the Commissioner to determine whether the claimant 17 has sufficient residual functional capacity (“RFC”)1 to perform 18 his past work; if so, he is not disabled and the claim must be 19 denied. 20 has the burden of proving he is unable to perform past relevant 21 work. 22 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. 23 If that happens or if the claimant has no past relevant 24 work, the Commissioner then bears the burden of establishing that 25 the claimant is not disabled because he can perform other 26 27 28 1 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). 4 1 substantial gainful work available in the national economy. 2 §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Drouin, 966 F.2d at 1257. 3 That determination comprises the fifth and final step in the 4 sequential analysis. 5 Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); 6 B. 7 At step one, the ALJ found that Plaintiff had not engaged in The ALJ’s Application of the Five-Step Process 8 substantial gainful activity since July 31, 2009, the alleged 9 onset date. (AR 13.) At step two, she concluded that Plaintiff 10 had severe impairments of history of ADHD, history of anxiety, 11 and personality disorder. 12 that Plaintiff’s impairments did not meet or equal a listing. 13 (AR 14.) (Id.) At step three, she determined 14 At step four, the ALJ found that Plaintiff had the RFC to 15 perform a full range of work at all exertional levels, but she 16 limited him to “simple, repetitive tasks with no fast-paced 17 assembly line work, no teamwork, no public contact, and no more 18 than occasional contact with co-workers and supervisors.” 19 15.) 20 (AR Based on the VE’s testimony, the ALJ concluded that 21 Plaintiff could not perform his past relevant work. 22 At step five, she relied on the VE’s testimony to find that given 23 Plaintiff’s RFC for work at all exertional levels “compromised by 24 nonexertional limitations,” he could perform three 25 “representative” unskilled occupations in the national economy. 26 (AR 20-21.) 27 21.) (AR 19-20.) Accordingly, she found Plaintiff not disabled. 28 5 (AR 1 2 V. DISCUSSION Plaintiff argues that the ALJ erred in (1) considering and 3 evaluating the opinions of Drs. Robert Marselle and Charles 4 Dalton and failing to incorporate portions of them into his RFC 5 and (2) assessing the credibility of his subjective symptom 6 statements. 7 A. 8 9 (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 10 and evaluate Dr. Marselle’s opinion that (1) he “needed special 11 and extra time,” (2) “at times even simple instructions would be 12 problematic for him,” and (3) he had moderate limitations in his 13 ability to maintain regular workplace attendance, perform work 14 activities on a consistent basis, and perform work activities 15 without special or additional supervision. 16 Plaintiff also argues that the ALJ erred in failing to include in 17 his RFC Dr. Dalton’s purported opinion that he would “miss days 18 off work,” “be off task during the workday about 15-20%” of the 19 time, and 20 (Id. at 6.) (Id. at 5.) “need special or additional supervision occasionally.” For the reasons discussed below, remand is not 21 22 2 23 24 25 26 27 28 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. 6 1 warranted. 2 3 1. Applicable law A claimant’s RFC is “the most [he] can still do” despite the 4 impairments and related symptoms that “may cause physical and 5 mental limitations that affect what [he] can do in a work 6 setting.” 7 must uphold an ALJ’s RFC assessment when the ALJ has applied the 8 proper legal standard and substantial evidence in the record as a 9 whole supports the decision. §§ 404.1545(a)(1), 416.945(a)(1). A district court Bayliss v. Barnhart, 427 F.3d 1211, 10 1217 (9th Cir. 2005). 11 opinions “together with the rest of the relevant evidence [on 12 record].” 13 §§ 404.1545(a)(1), 416.945(a)(1) (“We will assess your residual 14 functional capacity based on all the relevant evidence in your 15 case record.”). The ALJ must consider all the medical §§ 404.1527(b), 416.927(b);3 see also 16 Three types of physicians may offer opinions in Social 17 Security cases: (1) those who directly treated the plaintiff, (2) 18 those who examined but did not treat the plaintiff, and (3) those 19 20 21 22 23 24 25 26 27 28 3 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. 7 1 who did neither. Lester, 81 F.3d at 830. A treating physician’s 2 opinion is generally entitled to more weight than an examining 3 physician’s, and an examining physician’s opinion is generally 4 entitled to more weight than a nonexamining physician’s. 5 see §§ 404.1527(c)(1), 416.927(c)(1). Id.; 6 This is so because treating physicians are employed to cure 7 and have a greater opportunity to know and observe the claimant. 8 Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). 9 findings of a nontreating, nonexamining physician can amount to But “the 10 substantial evidence, so long as other evidence in the record 11 supports those findings.” 12 (9th Cir. 1996) (per curiam). 13 given to a nonexamining doctor who testifies at a hearing and is 14 subject to cross-examination. 15 1042 (9th Cir. 1995). 16 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 17 those limitations for which there is support in the record and 18 need not take into account properly rejected evidence or 19 subjective complaints. 20 ALJ’s RFC determination because “the ALJ took into account those 21 limitations for which there was record support that did not 22 depend on [claimant]’s subjective complaints”); Batson v. Comm’r 23 of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004) (ALJ not 24 required to incorporate into RFC those findings from physician 25 opinions that were “permissibly discounted”). 26 findings by state-agency medical consultants and experts as 27 opinion evidence. 28 opinions on ultimate issues reserved to the Commissioner, such as See Bayliss, 427 F.3d at 1217 (upholding §§ 404.1527(e), 416.927(e). 8 The ALJ considers Medical-source 1 a claimant’s RFC or the application of vocational factors, are 2 not medical opinions and have no special significance. 3 §§ 404.1527(d), 416.927(d). 4 Furthermore, “[t]he ALJ need not accept the opinion of any 5 physician . . . if that opinion is brief, conclusory, and 6 inadequately supported by clinical findings.” 7 Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); accord Batson, 359 8 F.3d at 1195. 9 physician’s opinion or a portion of it; the court may draw Thomas v. An ALJ need not recite “magic words” to reject a 10 “specific and legitimate inferences” from the ALJ’s opinion. 11 Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989). 12 interpreting the evidence and developing the record, the ALJ does 13 not need to ‘discuss every piece of evidence.’” 14 Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (quoting 15 Black v. Apfel, 143 F.3d 383, 386 (8th Cir. 1998)). 16 “[I]n Howard ex rel. The Court must consider the ALJ’s decision in the context of 17 “the entire record as a whole,” and if the “‘evidence is 18 susceptible to more than one rational interpretation,’ the ALJ’s 19 decision should be upheld.” 20 F.3d 1194, 1198 (9th Cir. 2008) (citation omitted). 21 22 2. Ryan v. Comm’r of Soc. Sec., 528 Relevant background Consulting psychologist Dr. Robert Marselle performed a 23 comprehensive psychological examination and evaluation of 24 Plaintiff on March 26, 2013. 25 noted that Plaintiff lived with his mother; was able to dress and 26 bathe himself and care for his own personal hygiene; was unable (See AR 383-92.) 27 28 9 Dr. Marselle 1 to drive but could take the bus;4 had no “outside activities”; 2 was able to pay bills and handle money appropriately but had 3 difficulty with calculations; was able to go out alone; reported 4 “fair” relationships with family and friends; could not “focus 5 attention during the interview”; had difficulty completing 6 household tasks and making decisions; and got up early, showered, 7 got dressed, and looked for employment “on a daily basis.” 8 385-86.) 9 (AR In a mental-status examination, Plaintiff appeared “genuine 10 and truthful”; Dr. Marselle noted that there was “no evidence” of 11 exaggeration or manipulation. 12 processes were coherent and organized; his thought content was 13 not delusional, bizarre, or psychotic; his mood and affect were 14 “within normal limits,” although he admitted to “feelings of 15 hopelessness” and “helplessness”; his speech was normal; he had 16 low-average intelligence but was completely alert and oriented; 17 and his abstract thinking, judgment, and insight all appeared 18 intact. 19 attention, focus, and short-term memory, however. 20 (AR 386-88.) (AR 386.) Plaintiff’s thought Plaintiff had “significant problems” with (AR 388.) Plaintiff’s performance in a series of psychological tests 21 indicated that he was “functioning in the borderline range of 22 intelligence” and had “memory dysfunction,” his “short-term 23 memory showed significant delay,” and he was “far below average” 24 in the areas of “sustained attention, visual search, and 25 psychomotor efficiency.” (AR 389-90.) Dr. Marselle assessed 26 27 28 4 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.) 10 1 Plaintiff as having ADD, “sociopathic personality traits,” and a 2 current global assessment of functioning score of 74.5 3 He noted that Plaintiff’s prognosis was “good.” 4 the “Discussion of Allegations” section of the evaluation, Dr. 5 Marselle noted that Plaintiff’s ADD was a “lifelong problem” that 6 gave him “great difficulty,” and “[i]t is unlikely that he would 7 be able to follow more complex instructions and at times even 8 simple instructions would be problematic for him.” 9 (AR 390.) (AR 391.) In (AR 390.) In the “Functional Assessment” portion of the report, Dr. 10 Marselle opined that Plaintiff had “mild” restrictions in his 11 ability to “understand, remember, and carry out simple one-or 12 two-step job instructions” and “moderate” restrictions in 13 following “detailed and complex instructions.” 14 in original).) 15 “maintain concentration and attention, persistence and pace” and 16 accept instructions from supervisors. 17 restrictions in his ability to “relate and interact with co- 18 workers and [the] public” or “associate with day-to-day work 19 activity, including attendance and safety.” 20 ability to “maintain regular attendance in the workplace and 21 perform work activities on a consistent basis” and “perform work 22 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 23 24 25 26 27 28 5 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). 11 1 Marselle opined that Plaintiff had “moderate” restrictions “due 2 to inattentiveness.” 3 (Id.) On May 10, 2013, state-agency medical consultant Dr. Barbara 4 Moura6 completed the psychiatric portion of the disability 5 determination for Plaintiff’s SSI and DIB claims. 6 80, 83-90, 92-95.) 7 included Dr. Marselle’s report, Dr. Moura opined that Plaintiff’s 8 “primary disorder” was ADHD, which caused mild restrictions in 9 his activities of daily living and moderate restrictions in (AR 68-74, 76- After reviewing the medical evidence, which 10 maintaining social functioning and concentration, persistence, or 11 pace. 12 hospitalization for “depression and acting out” as a teenager but 13 apparently no record of hospitalization as an adult. 14 Dr. Moura noted Dr. Marselle’s opinion that Plaintiff’s 15 “attentional” difficulties would likely interfere with “even 16 simple tasks” at times; she noted that later in his report, 17 however, Dr. Marselle assessed “at most moderate limitations” and 18 “mild limitations” in Plaintiff’s concentration, persistence, and 19 pace. 20 that Plaintiff would have problems with “simple tasks” was 21 “inconsistent” with the rest of his report. 22 that Plaintiff would have “marked limitations” performing complex 23 tasks; “moderate limitations” maintaining concentration, 24 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 25 26 27 28 6 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 1 2 interacting with the public. (Id.) In her mental-RFC assessment, Dr. Moura opined that although 3 Plaintiff had understanding and memory limitations that would 4 “markedly limit[]” his ability to understand and remember 5 detailed instructions, he had no significant limitation in his 6 ability to “remember locations and work-like procedures” or 7 “understand and remember very short and simple instructions.” 8 (AR 77-78.) 9 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; 11 work in coordination with or in proximity to others without being 12 distracted by them; and complete a normal workday and workweek 13 without interruption from psychologically based symptoms and 14 perform at a consistent pace without an unreasonable number and 15 length of rest periods. 16 in his ability to make simple work-related decisions or perform 17 activities within a schedule, maintain regular attendance, and be 18 punctual within customary tolerances. 19 limitation in his ability to interact appropriately with the 20 general public and respond appropriately to changes in the work 21 setting, Plaintiff had no significant limitations in the areas of 22 social interaction or adaptation. 23 that Plaintiff should be limited to “simple 1-2 step tasks,” 24 could work a regular workweek or workday with “customary breaks,” 25 and could interact “appropriately” with peers and supervisors but 26 must have “limited” contact with the public. 27 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 1 [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. 4 Junko McWilliams, a psychologist, completed the psychiatric 5 portion of the disability determination for Plaintiff’s SSI and 6 DIB claims on reconsideration. 7 McWilliams noted that Plaintiff had “reported no psychiatric 8 changes” or treatment since Dr. Moura’s initial assessment. 9 105.) (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- 11 10), except that he found no significant limitation in 12 Plaintiff’s ability to sustain an ordinary routine without 13 special supervision or work in coordination with or in proximity 14 to others without being distracted by them (AR 110), and he found 15 moderate limitation in his ability to accept instructions, 16 respond appropriately to criticism from supervisors, and get 17 along with coworkers or peers without distracting them or 18 exhibiting behavioral extremes (id.). 19 Plaintiff’s concentration limitations “do not preclude him from 20 performing the basic mental demands of competitive work” on a 21 regular basis, he could “deal with the public and get along with 22 people at work if the contact is brief,” and he could “adapt to 23 changes if they are not too rapid and extensive.” 24 Dr. McWilliams noted that (AR 110-11.) Dr. Charles Dalton, a clinical psychologist, testified 25 telephonically as a medical expert at Plaintiff’s hearing. 26 31-43.) 27 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 2 supervisors,” and “no more than moderate limitations in 3 concentration, persistence[,] or pace.” 4 Marselle’s report, Dr. Dalton opined that Plaintiff’s 5 “intellectual functioning appears to be adequate for simple tasks 6 and work.” 7 be restricted to occasional contact with the public and “others.” 8 (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 10 the hearing. 11 Plaintiff had “moderate” impairment in concentration, 12 persistence, and pace, counsel asked whether Plaintiff “would be 13 off task” for some percentage of the day (AR 33-34); Dr. Dalton 14 responded: (See AR 33-43.) As to Dr. Dalton’s opinion that 15 It would depend on what the task is. 16 groceries, probably not. If it’s pulling things off an 17 assembly not. 18 repetitive tasks, no. 19 that would include two and three steps, probably for some 20 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, 27 28 (AR 17.) 30 (AR 53-54.) The 1 allegation that he would be unable to do “simple, routine tasks” 2 or sustain the level of concentration needed to maintain 3 employment. 4 plaintiff’s subjective symptom statements when they are 5 inconsistent with his daily activities. 6 1112 (ALJ may discredit claimant’s testimony when “claimant 7 engages in daily activities inconsistent with the alleged 8 symptoms” (citing Lingenfelter, 504 F.3d at 1040)). 9 those [daily] activities suggest some difficulty functioning, An ALJ may properly discount the credibility of a See Molina, 674 F.3d at “Even where 10 they may be grounds for discrediting the claimant’s testimony to 11 the extent that they contradict claims of a totally debilitating 12 impairment.” 13 CV 15-0188-KES, 2016 WL 1715163, at *7 (C.D. Cal. Apr. 28, 2016) 14 (“That Plaintiff maintained a reasonably normal level of daily 15 activities was a clear and convincing reason to discount his 16 credibility, even if his impairments made those activities 17 somewhat more challenging.”). 18 Molina, 674 F.3d at 1113; Amezquita v. Colvin, No. In sum, the ALJ provided clear and convincing reasons for 19 finding Plaintiff’s subjective symptom allegations not credible. 20 Because those findings were supported by substantial evidence, 21 this Court may not engage in second-guessing. 22 F.3d at 959. Plaintiff is not entitled to remand on this ground 23 24 25 26 27 28 See Thomas, 278 31 1 2 VI. CONCLUSION Consistent with the foregoing and under sentence four of 42 3 U.S.C. § 405(g),10 IT IS ORDERED that judgment be entered 4 AFFIRMING the decision of the Commissioner, DENYING Plaintiff’s 5 request for remand, and DISMISSING this action with prejudice. 6 7 DATED: June 14, 2017 8 _________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 10 27 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.” 28 32 25 26

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