Adam Richard Nagler v. Nancy A. Berryhill

Filing 21

MEMORANDUM OPINION AND ORDER by Magistrate Judge John D. Early. IT THEREFORE IS ORDERED that judgment be entered affirming the decision of the Commissioner and dismissing this action with prejudice. (see document for details). (dro)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 ADAM RICHARD NAGLER, 12 Plaintiff, 13 14 15 v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, 16 Defendant. 17 ) Case No. CV 17-05216-JDE ) ) ) MEMORANDUM OPINION AND ) ) ORDER ) ) ) ) ) ) ) ) 18 19 Plaintiff Adam Richard Nagler (“Plaintiff”) filed a Complaint on July 20 14, 2017, seeking review of the Commissioner’s denial of his application for 21 disability insurance benefits (“DIB”). The parties filed consents to proceed 22 before the undersigned Magistrate Judge. In accordance with the Court’s 23 Order Re: Procedures in Social Security Appeal, the parties filed a Joint 24 Stipulation (“Jt. Stip.”) on March 22, 2018, addressing their respective 25 positions. The Court has taken the Joint Stipulation under submission without 26 oral argument and as such, this matter now is ready for decision. 27 /// 28 /// 1 I. 2 BACKGROUND 3 On December 5, 2012, Plaintiff applied for DIB, alleging disability 4 beginning May 18, 2009. (Administrative Record [“AR”] 17, 189-90.) After his 5 application was denied initially (AR 105-09) and on reconsideration (AR 111- 6 15), Plaintiff requested an administrative hearing, which was held on 7 September 28, 2015. (AR 35, 116-17.) Plaintiff, represented by counsel, 8 appeared and testified at the hearing before an Administrative Law Judge 9 (“ALJ”), as did two medical experts, Dr. Harvey Alpern, M.D. (“Dr. 10 Alpern”), misidentified in the hearing transcript as Dr. Halperin, and 11 Psychologist Ken Griffin (“Dr. Griffin”), and vocational expert, Gregory 12 Jones. (AR 35-73.) 13 On October 26, 2015, the ALJ issued a written decision finding Plaintiff 14 was not disabled. (AR 14-28.) The ALJ found that Plaintiff had not engaged in 15 substantial gainful activity from May 18, 2009, the alleged onset date, through 16 the date last insured of December 31, 2014. (AR 19.) The ALJ determined that 17 Plaintiff suffered from the following severe impairments: history of left 18 shoulder surgery with complications; left carpal tunnel syndrome; 19 hypertension; and obesity. (Id.) The ALJ found that Plaintiff did not have an 20 impairment or combination of impairments that met or medically equaled a 21 listed impairment. (AR 21-22.) The ALJ also found that Plaintiff had the 22 residual functional capacity (“RFC”) to perform light work, with the following 23 limitations: Plaintiff could (1) stand and walk a total of four hours in an eight 24 hour workday; (2) only occasionally push and pull with the left upper 25 extremity; (3) never climb ladders, ropes, or scaffolds; (4) only occasionally 26 reach overhead with the left upper extremity; and (5) only occasionally grasp 27 with the left upper extremity. (AR 22.) The ALJ further found that Plaintiff’s 28 RFC precluded him from performing any past relevant work, but considering 2 1 his age, education, work experience, and RFC, Plaintiff was capable of making 2 a successful adjustment to other work that existed in significant numbers in the 3 national economy. (AR 26-28.) Accordingly, the ALJ concluded that Plaintiff 4 was not under a “disability,” as defined in the Social Security Act. (AR 28.) 5 Plaintiff filed a request with the Appeals Council for review of the ALJ’s 6 decision. (AR 187, 334-36.) On May 17, 2017, the Appeals Council denied 7 Plaintiff’s request for review, making the ALJ’s decision the Commissioner’s 8 final decision. (AR 1-6.) This action followed. 9 II. 10 STANDARD OF REVIEW 11 Under 42 U.S.C. § 405(g), a district court may review the 12 Commissioner’s decision to deny benefits. The ALJ’s findings and decision 13 should be upheld if they are free from legal error and supported by substantial 14 evidence based on the record as a whole. Brown-Hunter v. Colvin, 806 F.3d 15 487, 492 (9th Cir. 2015) (as amended); Parra v. Astrue, 481 F.3d 742, 746 (9th 16 Cir. 2007). Substantial evidence means such relevant evidence as a reasonable 17 person might accept as adequate to support a conclusion. Lingenfelter v. 18 Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It is more than a scintilla, but less 19 than a preponderance. Id. To determine whether substantial evidence supports 20 a finding, the reviewing court “must review the administrative record as a 21 whole, weighing both the evidence that supports and the evidence that detracts 22 from the Commissioner’s conclusion.” Reddick v. Chater, 157 F.3d 715, 720 23 (9th Cir. 1998). “If the evidence can reasonably support either affirming or 24 reversing,” the reviewing court “may not substitute its judgment” for that of 25 the Commissioner. Id. at 720-21; see also Molina v. Astrue, 674 F.3d 1104, 26 1111 (9th Cir. 2012) (“Even when the evidence is susceptible to more than one 27 rational interpretation, [the court] must uphold the ALJ’s findings if they are 28 supported by inferences reasonably drawn from the record.”). However, a 3 1 court may review only the reasons stated by the ALJ in his decision “and may 2 not affirm the ALJ on a ground upon which he did not rely.” Orn v. Astrue, 3 495 F.3d 625, 630 (9th Cir. 2007). Lastly, even when the ALJ commits legal error, the Court upholds the 4 5 decision where that error is harmless. Molina, 674 F.3d at 1115. An error is 6 harmless if it is “inconsequential to the ultimate nondisability determination,” 7 or if “the agency’s path may reasonably be discerned, even if the agency 8 explains its decision with less than ideal clarity.” Brown-Hunter, 806 F.3d at 9 492 (citation omitted). 10 III. 11 DISCUSSION 12 The parties present three disputed issues (Jt. Stip. at 2): 13 Issue No. 1: Whether the ALJ properly evaluated the medical opinion 14 evidence; Issue No. 2: Whether the ALJ properly evaluated Plaintiff’s subjective 15 16 symptoms; and Issue No. 3: Whether the ALJ properly determined Plaintiff’s RFC.1 17 18 A. Medical opinions 19 In deciding how to resolve conflicts between medical opinions, the ALJ 20 must consider that there are three types of physicians who may offer opinions 21 in Social Security cases: (1) those who directly treated the plaintiff, (2) those 22 who examined but did not treat the plaintiff, and (3) those who did not treat or 23 examine the plaintiff. See 20 C.F.R. § 404.1527(c); Lester v. Chater, 81 F.3d 24 25 26 27 28 In its entirety, this issue is framed as whether the ALJ properly determined Plaintiff’s RFC and “[a]bility to [p]erform her [sic] [p]ast [r]elevant [w]ork.” (Jt. Stip. at 2.) Because the ALJ did not determine Plaintiff could perform his past relevant work and this issue is not discussed further in the Joint Stipulation, the Court assumes this additional contention was a mistake. 1 4 1 821, 830 (9th Cir. 1996) (as amended). A treating physician’s opinions are 2 entitled to greater weight because a treating physician is employed to cure and 3 has a greater opportunity to know and observe the patient as an individual. See 4 Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). “The treating 5 physician’s opinion is not, however, necessarily conclusive as to either a 6 physical condition or the ultimate issue of disability.” Id. “The ALJ may 7 disregard the treating physician’s opinion whether or not that opinion is 8 contradicted.” Id. For instance, “[t]he ALJ need not accept the opinion of any 9 physician . . . if that opinion is brief, conclusory, and inadequately supported 10 by clinical findings.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 11 1228 (9th Cir. 2009) (citation omitted); Tonapetyan v. Halter, 242 F.3d 1144, 12 1149 (9th Cir. 2001). To reject the uncontradicted opinion of a treating 13 physician, the ALJ must provide “clear and convincing reasons that are 14 supported by substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 15 (9th Cir. 2005). Where the treating physician’s opinion is contradicted by 16 another physician’s opinion, the “ALJ may only reject it by providing specific 17 and legitimate reasons that are supported by substantial evidence.” Id. The 18 opinion of a non-examining physician, standing alone, cannot constitute 19 substantial evidence. Widmark v. Barnhart, 454 F.3d 1063, 1066 n.2 (9th Cir. 20 2006) (citing Lester, 81 F.3d at 831); Morgan v. Comm’r of the Soc. Sec. 21 Admin., 169 F.3d 595, 602 (9th Cir. 1999). 22 1. Dr. Hung 23 Dr. Calvin Hung, M.D. (“Dr. Hung”) began treating Plaintiff around 24 April 2010. (AR 424.) On March 11, 2013, Dr. Hung completed a medical 25 source statement form (AR 440-41), wherein he concluded that Plaintiff could 26 lift and/or carry ten pounds occasionally and less than ten pounds frequently; 27 stand and/or walk at least two hours in an eight hour workday; sit six hours in 28 an eight hour workday; Plaintiff would need to alternate standing and sitting; 5 1 could never climb, stoop, kneel, crouch, or crawl; occasionally balance; 2 handle, finger, and feel constantly and reach frequently with his right hand; 3 and never reach, handle, or finger and occasionally feel with his left hand. (AR 4 440-41.) In support of these findings, Dr. Hung cited to Plaintiff’s decreased 5 range of motion and function with the left upper extremity, pain, and 6 numbness. (Id.) Dr. Hung further restricted Plaintiff from heights and moving 7 machinery. (AR 441.) He indicated that Plaintiff’s prognosis was poor. (Id.) 8 9 The ALJ gave little weight to Dr. Hung’s assessments, finding that “the probative value of this evidence [was] undermined by a lack of 10 contemporaneous treatment records upon which the opinion purports to be 11 based or any other medical records.” (AR 25.) The ALJ noted that Dr. Hung’s 12 treatment records from 2013 primarily reflected routine visits for blood 13 pressure monitoring and lab work and did not reflect the sort of physical 14 abnormalities one would expect if Plaintiff was as limited as assessed. (AR 25- 15 26.) The ALJ further indicated that Dr. Hung’s opinion was diminished by the 16 fact that the assessed limitations were “so extreme as to appear implausible, 17 given the evidence in this case.” (AR 26.) For instance, Dr. Hung concluded 18 that Plaintiff could never perform postural activities and could never reach, 19 handle, or finger with the left upper extremity. The ALJ found that there was 20 no support in the record for these limitations. (Id.) The ALJ additionally 21 explained that, unlike the medical expert, Dr. Alpern, Dr. Hung lacked 22 disability program knowledge and did not have an opportunity to review all of 23 the medical evidence through the date last insured. (Id.) Finally, the ALJ 24 found that the limitations assessed by Dr. Hung departed significantly from 25 those assessed by the physicians involved in Plaintiff’s workers’ compensation 26 claim, specifically, Dr. Benjamin Broukhim, M.D. (“Dr. Broukhim”) and Dr. 27 Roger Sohn, M.D. (“Dr. Sohn”). The ALJ explained that the relative 28 probative value of these opinions was diminished by remoteness, but noted 6 1 that they were essentially consistent with the conclusions reached in the 2 decision. The ALJ noted that Dr. Broukhim released Plaintiff in May 2009 – 3 the month of his shoulder injury – to modified duties with no lifting greater 4 than ten pounds. Following shoulder surgery, Dr. Broukhim assessed 5 limitations similar to those of Dr. Alpern, including no lifting in excess of 6 thirty pounds, no repetitive work above shoulder level, and no power grasping 7 or holding. (Id.) Dr. Sohn opined that Plaintiff was limited to no heavy work 8 and no work at or above shoulder level as to the left shoulder and limited to no 9 very forceful activities as to the left hand. (Id.) 10 An ALJ is permitted to reject a treating physician’s opinion that is 11 unsupported by the record as a whole. Batson v. Comm’r of the Soc. Sec. 12 Admin., 359 F.3d 1190, 1195 (9th Cir. 2004); see also Shavin v. Comm’r of 13 Soc. Sec. Admin., 488 F. App’x 223, 224 (9th Cir. 2012) (ALJ may reject 14 physician’s opinion by “noting legitimate inconsistencies and ambiguities in 15 the doctor’s analysis or conflicting lab test results, reports, or testimony” 16 (internal citation omitted)). As the ALJ specifically noted, Dr. Hung’s 17 assessments were not supported by his contemporaneous treatment records. 18 The treatment note for March 11, 2013 – the same date the medical source 19 statement was completed – reflected that Plaintiff was being seen for follow up 20 on his blood pressure and to complete a social security form, presumably 21 referring to the medical source statement. (AR 401.) At that time, Dr. Hung 22 noted that Plaintiff’s left shoulder and neck pain were stable. (Id.) Although 23 Dr. Hung reported limited range of motion with limiting factors of pain and 24 decreased strength in his left shoulder, his findings with respect to the right 25 shoulder were normal. Despite limited range of motion in the left shoulder and 26 normal range of motion and strength on the right shoulder, Dr. Hung 27 concluded in the medical source statement that Plaintiff could only lift and/or 28 carry ten pounds occasionally and less than ten pounds frequently. (AR 4027 1 403, 440.) Dr. Hung noted left wrist strength was decreased, but did not 2 indicate that Plaintiff essentially lost all use his left hand except for occasional 3 feeling, as assessed in his medical source statement. (Compare AR 403 (left 4 wrist strength decreased) with 441 (Plaintiff could never reach, handle, or 5 finger and occasionally feel with his left hand).)2 Dr. Hung’s progress note 6 from December 2012 is similar. At that time, Plaintiff primarily visited him for 7 follow on his lab work. (AR 404.) Plaintiff reported that the tingling and arm 8 pain was better and his prescription for Gabapentin was helping with the pain. 9 (Id.) Dr. Hung noted limited range of motion with the left shoulder with 10 limiting factors of pain, and decreased left wrist strength. (AR 405.) Plaintiff 11 was advised to do range of motion exercises. (AR 406.) As noted, the ALJ also indicated that Dr. Hung’s assessed limitations 12 13 with respect to postural activities were unsupported by the record. (AR 26.) Dr. 14 Hung indicated that Plaintiff could never climb, stoop, kneel, crouch, or crawl. 15 (AR 441.) Plaintiff argues that Dr. Hung was “not stating he [could not] do 16 any of these activities ever, just not on a regular basis in a given workday.” (Jt. 17 Stip. at 4.) The Court finds this argument unpersuasive. Regardless of whether 18 Dr. Hung was evaluating an eight hour workday or longer, the 19 contemporaneous treatment records do not show that Plaintiff was precluded 20 from these activities. The ALJ also found that unlike Dr. Alpern, Dr. Hung lacked disability 21 22 23 24 25 26 27 28 program knowledge and did not have an opportunity to review all of the 2 To the extent Plaintiff contends that despite the ALJ’s specific finding that Dr. Hung’s opinion was not supported by the “contemporaneous treatment records,” the Court is not permitted to review the actual inconsistent assessments themselves because “this [was] not a reason cited by the ALJ in rejecting the doctor’s opinion” (Jt. Stip. at 17), the Court disagrees. The ALJ expressly cited Dr. Hung’s findings regarding lifting, postural limitations, reach, handling, and fingering with the left upper extremity. (AR 25-26.) 8 1 medical evidence through the date last insured. (AR 26.) See also 20 C.F.R. § 2 404.1527(c)(6) (listing “the amount of understanding of our disability programs 3 and their evidentiary requirements that a medical source has” and “the extent 4 to which a medical source is familiar with the other information in your case 5 record” as relevant factors when considering how much weight to give a 6 medical opinion). The ALJ also concluded that the limitations assessed by Dr. 7 Hung conflicted with the findings of the workers’ compensation physicians, 8 Drs. Broukhim and Sohn. (AR 26.) Again, these findings are supported by 9 substantial evidence in the record. The ALJ gave great weight to the opinion 10 provided by Dr. Alpern, who had the opportunity to review all of the medical 11 evidence through the date last insured. (AR 25.) Dr. Alpern found that Plaintiff 12 could lift twenty pounds occasionally, ten pound frequently; stand and/or 13 walk four out of eight hours; sit six out of eight hours; no left overhead; 14 occasionally push and pull with his left upper extremity; occasionally gross 15 grasp with the left hand; no fine restriction; and no ropes or ladders. (AR 45.) 16 In June 2010, Dr. Broukhim restricted Plaintiff to no lifting greater than thirty 17 pounds with his left shoulder, no repetitive work at above shoulder level, and 18 no repetitive power grasping or holding with the left wrist. (AR 362.) A month 19 later, Dr. Sohn limited Plaintiff to no “heavy” work with respect to the left 20 shoulder; no work at or above shoulder level; and no very forceful activities 21 with the left hand. (AR 551.) Because Dr. Broukhim treated Plaintiff and Dr. 22 Sohn examined Plaintiff, their opinions constitute substantial evidence for the 23 ALJ’s rejection of Dr. Hung’s opinion. See Tonapetyan, 242 F.3d at 1149; 24 Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). 25 Plaintiff briefly argues that the state agency physicians’ opinions 26 provided further support for Dr. Hung’s opinion, but the ALJ “failed to 27 provide a rationale of the weight given to the State Agency physicians.” (Jt. 28 Stip. at 5.) In particular, Plaintiff refers to assessed limitations to occasional 9 1 fingering with the left hand, and occasional climbing ramps and stairs, 2 balancing, stooping, kneeling, crouching, and crawling. (Id.) Contrary to 3 Plaintiff’s contention, the ALJ expressly discussed the opinion of state agency 4 medical consultant Dr. H.M. Estrin, M.D., finding that it was consistent with 5 Dr. Alpern’s opinion and that with respect to the variances, the ALJ gave Dr. 6 Alpern’s opinion greater weight because relatively little evidence was available 7 at the time of Dr. Estrin’s evidentiary review. (AR 25.) Although the ALJ did 8 not separately discuss the opinion of the other state agency medical consultant, 9 Dr. C. Scott, M.D. (“Dr. Scott”), any error in failing to explain the weight 10 given to this state agency consultant’s findings was harmless. The ALJ noted 11 that it carefully considered “all the evidence.” (AR 17.) Dr. Scott’s assessed 12 postural limitations were less restrictive than those provided by Dr. Estrin and 13 the same with respect to fine manipulation, (compare AR 83 with AR 98-99), 14 and as explained, the ALJ gave greater weight to Dr. Alpern’s opinion over 15 Dr. Estrin’s because “relatively little evidence” was available at the time of Dr. 16 Estrin’s December 2013 evidentiary review. (AR 25.) Plaintiff does not 17 challenge this finding. When Dr. Scott rendered his opinion in April 2013, the 18 medical evidence available for review was even more limited. (See AR 111.) 19 As such, a failure to address Dr. Scott’s opinion would not have altered the 20 outcome. See Molina, 674 F.3d at 1115; Chislock v. Astrue, 2010 WL 21 2787955, at *10 (C.D. Cal. July 14, 2010) (concluding that any error in failing 22 to explain the weight given to the state agency findings was harmless). 23 Finally, Plaintiff contends that the ALJ should have recontacted doctors 24 if she had a question as to the completeness of the record or it did not appear 25 to be based on medically acceptable clinical and laboratory diagnostic 26 techniques. (Jt. Stip. at 4-5, 20-21.) Plaintiff principally relies on language in 27 Social Security Ruling (“SSR”) 96-5p, 1996 WL 374183, at *6 which states: 28 Because treating source evidence (including opinion evidence) is 10 1 important, if the evidence does not support a treating sources 2 opinion on any issue reserved to the Commissioner and the 3 adjudicator cannot ascertain the basis of the opinion from the case 4 record, the adjudicator must make “every reasonable effort” to 5 recontact the source for clarification of the reasons for the opinion. 6 However, “[a]n ALJ is required to recontact a doctor only if the doctor’s report 7 is ambiguous or insufficient for the ALJ to make a disability determination.” 8 Bayliss, 427 F.3d at 1217; Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005) 9 (“The ALJ’s duty to supplement a claimant’s record is triggered by ambiguous 10 evidence, the ALJ’s own finding that the record is inadequate or the ALJ’s 11 reliance on an expert’s conclusion that the evidence is ambiguous.”). Here, the 12 ALJ never stated that Dr. Hung’s opinion was ambiguous or insufficient to 13 make a disability determination; rather, the ALJ discounted it because it was 14 contradicted by the record. A conflict between the medical opinions does not 15 mean that there is ambiguous evidence that triggers a duty to develop the 16 record further. See Freeman v. Colvin, 2016 WL 6123538, at *1 (9th Cir. Oct. 17 20, 2016) (“conflict between medical opinions alone does not render evidence 18 ambiguous”). Where the physician’s reports are neither ambiguous nor 19 insufficient to make a disability determination, the ALJ is not required to 20 recontact the treating physicians before finding a claimant not disabled. See 21 Thornsberry v. Colvin, 552 F. App’x 691, 692 (9th Cir. 2014). 22 Here, the ALJ provided specific and legitimate reasons supported by 23 substantial evidence for according Dr. Hung’s opinion little weight, including 24 the opinions of treating and examining physicians. Even if there are two 25 rational interpretations of the evidence, the ALJ’s decision must be upheld. See 26 Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (“Where evidence is 27 susceptible of more than one rational interpretation, it is the ALJ’s conclusion 28 which must be upheld.”). The record before the ALJ was neither ambiguous 11 1 nor inadequate to allow for proper evaluation of the evidence. The ALJ had no 2 duty to further develop the record. See Mayes v. Massanari, 276 F.3d 453, 460 3 (9th Cir. 2001) (finding no duty to develop record where there was substantial 4 evidence supporting the ALJ’s decision that the plaintiff was not disabled). 5 The Court finds that the ALJ did not err in rejecting Dr. Hung’s opinion. 6 2. 7 Plaintiff also contends that the ALJ erred in evaluating Dr. Broukhim’s 8 finding that he should remain off work if he is on pain medication and muscle 9 relaxers. (Jt. Stip. at 5.) Plaintiff argues that the ALJ found no cognitive Dr. Broukhim’s recommendation regarding medication side effects 10 impairment, but treating and examining physicians3 noted the effects of his 11 medication caused difficulty with his cognitive functioning. (Id. at 4.)4 On September 14, 2009, Dr. Broukhim conducted an interim workers’ 12 13 compensation examination, and noted that he was awaiting authorization for 14 left shoulder arthroscopic surgery. (AR 389.) He released Plaintiff to modified 15 duties with no lifting greater than ten pounds and noted, “[o]bviously if he is 16 taking the pain medication and muscle relaxers he should be off work.” (AR 17 390.) Later that month, Dr. Broukhim conducted another interim workers’ 18 compensation examination and recommended an updated MRI arthrogram of 19 the left shoulder. (AR 387.) Dr. Broukhim noted that Plaintiff was apparently 20 sent home from work “since he was taking medication and he [was] not 21 22 23 24 25 26 27 28 3 Although Plaintiff refers to treating and examining physicians, he only specifically discusses Dr. Broukhim’s finding. 4 The Commissioner spends several pages arguing that Plaintiff did not have any medically determinable mental impairment. However, as framed by Plaintiff, the issue is limited to Dr. Broukhim’s opinion regarding the pain medication and muscle relaxers. (Jt. Stip. at 5, 22 (“To Issue No. 1, Plaintiff’s contention is that Dr. Broukhim’s opinion that he could not work while on pain medication and muscle relaxers was improperly rejected as it was not even considered.”).) The Court addresses the disputed issue accordingly. 12 1 allowed in the workplace due to the usage of heavy equipment.” (Id.) 2 Accordingly, Dr. Broukhim recommended that Plaintiff “remain off work due 3 to his intake of medications and pending surgical intervention to his left 4 shoulder.” (Id.) In November 2009, Dr. Broukhim similarly noted that Plaintiff 5 was apparently sent home from work “since he was taking medication and he 6 [was] not allowed in the workplace due to the usage of heavy equipment.” (AR 7 386.) Therefore, Plaintiff would “remain off work due to his intake of 8 medications and pending surgical intervention to his left shoulder.” (Id.) After 9 being released to return to work following surgery in January 2010, Dr. 10 Broukhim’s work status recommendations did not include any work 11 restrictions based medication use. (See, e.g., AR 362 (6/3/10), 367 (4/22/10).) 12 The ALJ noted that although Plaintiff testified that he has limited 13 cognitive function, i.e., “problems with memory and concentration,” Dr. 14 Griffin opined that the evidence in this case did not establish any medically 15 determinable mental impairment. (AR 20.) The ALJ gave great weight to Dr. 16 Griffin’s opinion in light of his medical training; his knowledge of the disability 17 program; the fact that he had an opportunity to review all of the relevant 18 medical evidence; a state agency psychological consultant reached the same 19 conclusion; and was fully consistent with Plaintiff’s accomplishments, valid 20 driver’s license, and activities of daily living. (AR 20-21.) 21 With respect to side effects from Plaintiff’s medication, the ALJ found 22 that Plaintiff reported no side effects from his medication regimen, which the 23 ALJ found “casts doubt on his testimony in this regard, which was again 24 inconsistent.” (AR 24.) Further, the ALJ noted that a review of the medical 25 records failed to reveal any evidence corroborating Plaintiff’s allegations of 26 significantly limited cognitive function secondary to medication use. (Id.) In 27 2012, Plaintiff reported that his medication helped his pain and generally made 28 his condition better. In 2014 and 2015, Plaintiff consistently exhibited an 13 1 entirely normal mental status and did not mention adverse medication side 2 effects. (Id.) 3 The ALJ’s findings were supported by substantial evidence. During the 4 administrative hearing, Plaintiff’s attorney asked Dr. Griffin whether the pain 5 medication Plaintiff was taking would “cause cognitive limitations, or [was] 6 that consistent with cognitive limitations?” (AR 60.) Dr. Griffin responded that 7 typically an individual’s “mentation adjusts to the medication. No. It might 8 perhaps initially, but not substantially over time. [¶] Difficulty in concentrating 9 identified in the record is likely secondary to [Plaintiff’s] report of chronic 10 pain.” (Id.) This assessment is consistent with Dr. Broukhim’s 11 recommendation that Plaintiff remain off work while taking medication. Dr. 12 Broukhim’s recommendations were made shortly after Plaintiff’s shoulder 13 injury – within the first six months – when Plaintiff first began treatment with 14 pain medication. Notably, Dr. Broukhim’s later reports do not reflect any such 15 restriction. Plaintiff does not refer to any other medical opinions finding that 16 his pain medication would cause any lasting cognitive impairment. 17 Further, as the ALJ noted, Plaintiff has not reported any side effects 18 from his medication regimen. (AR 24.) Plaintiff did not report any adverse 19 medication side effects in recent office visits. (See, e.g., AR 576, 581, 586, 591, 20 596, 601, 606, 611, 617, 622.) Similarly, Plaintiff did not report any medication 21 side effects in his most recent pain management assessments, (see AR 630 22 (6/19/15 reported that taking Percocet allowed him limited function), 632 23 (10/28/14 reported that taking Oxycontin helped manage pain and let him 24 have his life back a little), 660 (9/15/15 reported that taking Percocet allowed 25 him limited function), 662 (8/14/15 reported that taking Percocet was the only 26 thing that relieved his pain), 664 (6/10/15 reported that taking an unidentified 27 opioid worked to decrease his pain), 666 (3/20/15 reported that taking 28 Percocet allowed him limited function), 668 (4/21/15 reported the same), 670 14 1 (5/19/15 reported the same), 672 (2/23/15 reported the same), 674 (1/23/15 2 no results noted), 676 (12/29/14 reported that taking Percocet allowed him to 3 function and “live [his] life”), and indicated to Dr. Hung that he was “[d]oing 4 well on Perco[c]et” and denied any adverse drug reactions. (AR 581.) See 5 Lester, 81 F.3d at 832 (“medical evaluations made after the expiration of a 6 claimant’s insured status are relevant to an evaluation of the preexpiration 7 condition” (citation omitted)). The Court agrees with the ALJ that a review of 8 the medical records fails to reveal any evidence corroborating Plaintiff’s 9 allegations of significantly limited cognitive function as a result of medication 10 use. The only references the Court has found where Plaintiff reported to his 11 treating physicians that he was experiencing adverse side effects from 12 medication was in April 2012 and October 2014. In April 2012, Plaintiff 13 reported that he could not tolerate Amlodipine and it was discontinued. (AR 14 410-11.) In October 2014, Plaintiff reported that he was mobile with Percocet 15 and could function, but noted that taking Gabapentin more than 300 mg three 16 times a day made him more withdrawn.5 (AR 627.) Plaintiff, however, did not 17 report any cognitive impairment from the medication, and in any event, 18 Plaintiff’s prescription for Gabapentin was limited to 300 mg three times a day. 19 (See, e.g., AR 613, 621, 624, 626.) Substantial evidence supports the ALJ’s 20 findings as to a cognitive impairment based on effects of Plaintiff’s medication. 21 B. Plaintiff’s subjective symptom testimony Where a disability claimant produces objective medical evidence of an 22 23 underlying impairment that could reasonably be expected to produce the pain 24 or other symptoms alleged, absent evidence of malingering, the ALJ must 25 26 27 28 5 The Court notes that the ALJ found Plaintiff remained capable of doing other work existing in significant numbers even assuming an additional limitation to only brief and casual contact with others in the workplace. (AR 21, 27.) 15 1 provide “‘specific, clear and convincing reasons for’ rejecting the claimant’s 2 testimony regarding the severity of the claimant’s symptoms.” Treichler v. 3 Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014) (citation 4 omitted); Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004); see also 20 5 C.F.R. § 404.1529(a). The ALJ’s findings “must be sufficiently specific to 6 allow a reviewing court to conclude that the [ALJ] rejected [the] claimant’s 7 testimony on permissible grounds and did not arbitrarily discredit the 8 claimant’s testimony.” Moisa, 367 F.3d at 885 (citation omitted). However, if 9 the ALJ’s assessment of the claimant’s testimony is reasonable and is 10 supported by substantial evidence, it is not the court’s role to “second-guess” it. 11 See Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001).6 On March 11, 2013, Plaintiff completed a function report, stating that 12 13 his medical conditions restrict his ability to perform his past work because he 14 has such pain in his left arm after a short period of time, it takes him one to 15 two days to recover. (AR 234-42.) He cannot type or write reports because of 16 his dyslexia and inability to do math. (AR 234.) He reported trouble lifting, 17 standing, reaching, walking, sitting, using his hands, completing tasks, 18 concentrating, and understanding. (AR 239.) He indicated that he cannot lift 19 20 21 22 23 24 25 26 27 After the ALJ’s decision, SSR 16-3p went into effect. See SSR 16-3p, 2016 WL 1119029 (Mar. 16, 2016). SSR 16-3p provides that “we are eliminating the use of the term ‘credibility’ from our sub-regulatory policy, as our regulations do not use this term.” Id. Moreover, “[i]n doing so, we clarify that subjective symptom evaluation is not an examination of an individual’s character” and requires that the ALJ consider all of the evidence in an individual’s record when evaluating the intensity and persistence of symptoms. Id.; see also Trevizo v. Berryhill, 871 F.3d 664, 678 n.5 (9th Cir. 2017) (as amended). Thus, the adjudicator “will not assess an individual’s overall character or truthfulness in the manner typically used during an adversarial court litigation. The focus of the evaluation of an individual’s symptoms should not be to determine whether he or she is a truthful person.” SSR 16-3p, 2016 WL 1119029, at *10. 6 28 16 1 much of anything with his left arm, and cannot sit or stand without shifting. 2 (Id.) He can walk for twenty minutes before needing to rest, and must then rest 3 approximately two hours before he can resume walking. (Id.) He does not 4 handle stress or changes in routine well. (AR 240.) His medications make him 5 drowsy, unable to focus, and reduce his creativity. (AR 241.)7 Plaintiff stated in the function report that he wakes up in the morning 6 7 and his wife gives him his medication and breakfast. He sometimes drives his 8 children to school. He spends the rest of the day sitting. (AR 235.) He has 9 difficulty sleeping because of pain in his neck, shoulder, and left arm. (Id.) He 10 has difficulty bathing because of his left arm. (Id.) He needs reminders to take 11 care of his personal needs, grooming, and to take his medications. (AR 236.) 12 He does not prepare his own meals or do household chores because of the 13 pain. (AR 236-37.) He does not pay bills, handle a savings account, or use a 14 checkbook/money orders because he is dyslexic. (AR 237.) He watches 15 television, but noted that he used to have many different, fun hobbies and an 16 active life. (AR 238-39.) He no longer has a social life or hobbies. (AR 241.) During the administrative hearing, Plaintiff testified that in a typical day 17 18 he sits at home and does not do much. (AR 41.) He wakes up, takes his 19 medication and has breakfast, and then usually goes back to bed until noon. 20 He then has lunch, takes his medication, and visits with his family. He 21 sometimes stays up until dinner and then typically sits in his chair for an hour 22 or two before bedtime. (AR 42.) Plaintiff testified that he watches probably 23 three to four hours of television per day and tries to read. (AR 68.) He does not 24 sleep well and does not feel rested in the morning. (AR 63-64.) It varies how 25 26 27 28 7 In his disability appeal, Plaintiff noted that he was taking a different medication that caused similar effects: loss of concentration, drowsiness, and loss of fine motor skills. (AR 276.) 17 1 often he sleeps during the day, but generally he takes two naps during the day, 2 occasionally three. (AR 64.) He indicated that he is awake for two to six hours, 3 maybe eight hours, during the day. (AR 65.) He spends the majority of his time 4 in a recliner. (AR 65.) If he was sitting in a regular chair, he estimated he 5 would need to change positions after five to ten minutes and could sit for 6 twenty minutes to thirty minutes before needing to stand up or lay down. (AR 7 66.) Plaintiff reported that if he spent the day sitting in a chair like the one at 8 the hearing, he would probably need to spend two days “virtually immobile.” 9 (Id.) Plaintiff indicated that on a good day, he probably could stand for around 10 an hour and fifteen minutes on a bad day. (AR 64-65.) He then would lie down 11 in a reclined position. (AR 65.) He drives to pick up his son from school once 12 every two weeks. (AR 41.) He also indicated that he drove to the hearing and 13 drives to doctors’ appointments. (Id.) He does not exercise and does not take 14 care of many of his personal needs. (AR 42-43.) He testified that he cannot 15 work because of the limitations from his injuries and a few learning disabilities. 16 (Id.) He testified that he experiences neck and left shoulder pain, which runs 17 down his back “a little bit” and his left arm to his fingertips. (AR 63.) He 18 reported that the pain alternates between feeling like ants, pin pricks, and 19 “different sensations like that.” (AR 63.) He explained that he has problems 20 grasping things with his left hand and drops things. (AR 44.) He also stated 21 that, as a result of his hypertension, he gives the wrong information. (AR 63.) 22 He testified that he experiences memory loss and has trouble concentrating. 23 (AR 67-68.) 24 The ALJ determined Plaintiff’s “medically determinable impairments 25 could reasonably be expected to cause the alleged symptoms,” but his 26 “statements concerning the intensity, persistence and limiting effects of these 27 symptoms rising to the level of disability [were] not reliable for the reasons 28 explained in this decision.” (AR 23.) The ALJ discounted Plaintiff’s subjective 18 1 symptom testimony for the following reasons: (1) lack of objective medical 2 evidence supporting his subjective statements; (2) inconsistent statements; (3) 3 alleged symptoms and limitations at odds with his reported activities; and (4) 4 his course of treatment failed to enhance his allegations of ongoing, disabling 5 symptoms. (AR 23-25.) 6 As an initial matter, the parties agree that the ALJ improperly 7 discounted Plaintiff’s subjective symptom testimony based on his course of 8 treatment. (See Jt. Stip. at 25, 30.) 9 The ALJ also discounted Plaintiff’s subjective symptom testimony 10 because the objective medical evidence did not support his allegations of 11 disabling limitations. (AR 23.) Although a lack of objective medical evidence 12 cannot be the sole reason for rejecting a claimant’s testimony, it can be one of 13 several factors used in evaluating the credibility of Plaintiff’s subjective 14 complaints. See Rollins, 261 F.3d at 857. The ALJ noted that in June 2010, 15 Dr. Broukhim indicated that Plaintiff’s surgical scar had healed, but that there 16 was some residual tenderness at the subacromial region and some limitation in 17 left shoulder of motion. (AR 23, 357.) The ALJ noted, however, that 18 impingement sign was negative and, despite signs of left carpal tunnel 19 syndrome, Plaintiff’s grip strength remained relatively good. (AR 23, 357-58.) 20 The ALJ noted that after settling his workers’ compensation claim in 2011, 21 Plaintiff sought treatment with Dr. Hung. However, the records revealed that 22 Plaintiff’s visits primarily focused on blood pressure management and showed 23 “a relative paucity of findings” regarding Plaintiff’s musculoskeletal 24 condition(s). (AR 23; see, e.g., AR 401-02 (follow up on blood pressure and 25 request for Dr. Hung to complete social security form; mild pain with motion 26 on musculoskeletal examination), 404-06 (follow up on lab work; tingling and 27 arm pain better; cervical spine evaluation reflected active pain free range of 28 motion; recommendation for range of motion exercises), 410 (follow up on 19 1 blood pressure), 413-15 (physical examination, musculoskeletal examination 2 revealed normal range of motion, muscle strength, and stability in all 3 extremities with no pain on inspection), 467 (follow up for blood pressure and 4 lab work, dizziness with ear pain, and “chronic conditions,” described as 5 “[p]ertinent negatives include weight gain and weight loss. Hypertension 6 (onset 7/21/2010; Controlled.) Obesity (onset 07/21/2010; Stable.) Type II 7 diabetes mellitus, uncontrolled”).) Plaintiff’s October 2014 shoulder MRI 8 revealed only postsurgical changes to the AC joint and no other abnormalities 9 except minimal supraspinatus tendinosis. (AR 23, 562.) Further, as the ALJ 10 indicated, recent treatment notes revealed that Plaintiff had full strength in the 11 right upper extremity and only mildly reduced strength in the left upper 12 extremity. (AR 23, 691.) Despite Plaintiff’s allegations of difficulty standing 13 and walking, he exhibited a normal gait; was able to walk on heels and toes; 14 tandem was normal; and an examination of his lower extremities revealed no 15 abnormalities. (Id.) And despite alleged cognitive deficits, Dr. Mark Liker, 16 M.D. described Plaintiff as alert and fully oriented; noted his comprehension 17 was intact; and memory, attention, and concentration were normal. (Id.) This 18 evidence was substantial and reasonably supported the ALJ’s conclusion that 19 Plaintiff’s symptoms and limitations were inconsistent with the objective 20 medical evidence. Accordingly, the ALJ properly relied on a lack of objective 21 evidence to discount Plaintiff’s subjective symptom testimony. 22 Next, the ALJ discounted Plaintiff’s subjective symptom testimony 23 because of inconsistent statements made by Plaintiff. In particular, the ALJ 24 noted that at the hearing, Plaintiff initially stated that he could not stand, but 25 then indicated that he could stand for fifteen minutes to an hour. (AR 23-25.) 26 Further, although he initially testified that he did not do anything during a 27 typical day, he later acknowledged that he picked up his children as needed, 28 enjoyed watching science programs, and read about firearms. (AR 25.) The 20 1 ALJ explained that, “[w]hile not necessarily reflecting a conscious intention to 2 mislead, nevertheless such inconsistencies further indicate that the information 3 reported cannot be used as a reliable source for assessing disability.” (Id.) 4 The ALJ also cited inconsistencies between Plaintiff’s allegations of pain 5 and his documented reports in the clinical context. (AR 24.) The ALJ noted 6 that despite allegations of disabling pain, Plaintiff reportedly told Dr. Sohn that 7 his left shoulder pain was generally mild and only intermittently moderate; and 8 that his left hand pain was only occasional and minimal. (Id.) Similarly, when 9 Plaintiff recently met with a pain management physician, he endorsed 10 generally mild pain – three out of ten in severity with medication. (Id.) 11 Further, as previously noted, Plaintiff did not report any side effects from his 12 medication regimen, which cast doubt on his testimony in that regard. (Id.) 13 The ALJ noted that in 2012, Plaintiff reported that his medication helped his 14 pain and generally made his condition better. In 2014 and 2015, Plaintiff 15 consistently exhibited an entirely normal mental status and made no mention 16 of any adverse medication side effects. (Id.) 17 The ALJ’s determination that Plaintiff’s allegations of disabling pain 18 were inconsistent with his statements to his treating and examining physicians 19 was supported by substantial evidence. See Ghanim v. Colvin, 763 F.3d 1154, 20 1163 (9th Cir. 2014) (the ALJ may consider prior inconsistent statements 21 concerning symptoms in assessing credibility); see also Fair v. Bowen, 885 22 F.2d 597, 604 n.5 (9th Cir. 1989) (“If a claimant . . . has made prior statements 23 inconsistent with his claim of pain, or is found to have been less than candid in 24 other aspects of his testimony, that may be properly taken into account in 25 determining whether or not his claim of disabling pain should be believed.”). 26 As explained, Plaintiff reported in the function report that his medical 27 conditions restrict his ability to perform his past work because of left arm pain, 28 and he has difficulty sleeping because of the pain in his neck, shoulder, and left 21 1 arm. (AR 234-35.) At the hearing, Plaintiff initially testified that on typical day 2 he sits at home and does not do much (AR 41), although he later reported that 3 he watches television three to four hours a day and tries to read. (AR 68.) He 4 stated that he could sit for twenty to thirty minutes before needing to stand up 5 or lay down; would probably need to spend two days “virtually immobile” 6 after spending a day sitting in a chair like the one at the hearing; and could 7 stand for between fifteen minutes to an hour. (AR 64-66.) 8 However, Dr. Sohn summarized Plaintiff’s left shoulder and hand pain 9 as follows: complaints of left shoulder pain were rated as constant and mild 10 becoming intermittent and moderate; and complaints of left hand pain were 11 rated as occasional and minimal. (AR 550.) The ALJ also noted that Plaintiff 12 recently met with a pain management physician and endorsed generally mild 13 pain – three out of ten in severity with medication. (AR 24, 637.) In the Joint 14 Stipulation, Plaintiff argues that this same report noted that pain increased 15 with physical activity and interfered with activities of daily living. (Jt. Stip. at 16 26.) But, as Plaintiff concedes, Plaintiff otherwise reported that pain 17 medication and bed rest helped with “some pain relief.” (AR 637.) Further, 18 Plaintiff often reported similar pain levels in 2014 and 2015. (See, e.g., AR 661 19 (reported pain intensity as two on 9/15/15 and average pain intensity as four), 20 663 (8/14/15 average pain intensity three), 665 (reported pain intensity as four 21 on 6/10/15 and average pain intensity as three), 669 (reported pain intensity as 22 four on 4/21/15 and average pain intensity the same), 671 (reported pain 23 intensity as two on 5/19/15 and average pain intensity as three), 673 (reported 24 pain intensity as three on 2/23/15 and average pain intensity as three/four), 25 677 (reported pain intensity as three on 12/29/14 and average pain intensity as 26 four).) Additionally, as previously discussed, Plaintiff did not report any side 27 effects from his medication regimen. Plaintiff reported one time that an 28 increase in his Gabapentin dosage made him more withdrawn (AR 627) and 22 1 reported in 2012 that he could not tolerate Amlodipine, at which time this 2 medication was discontinued. (AR 410-11.) 3 Although Plaintiff’s statements at the hearing regarding standing and 4 daily activities were not necessarily inconsistent as the ALJ concluded, the 5 ALJ’s additional finding that Plaintiff’s statements were inconsistent with his 6 reported symptoms to his physicians constitutes a specific, clear and 7 convincing reason supported by substantial evidence for discounting Plaintiff’s 8 subjective symptom testimony. 9 Finally, the ALJ concluded that Plaintiff’s alleged symptoms and 10 limitations were at odds with his reported activities during the period at issue. 11 (AR 24.) The ALJ noted that in 2013, Plaintiff reportedly remained able to go 12 out and travel alone, drive his children to school, walk twenty minutes at a 13 time, and get along well with family, friends, neighbors, and others. (AR 24, 14 234-42.) Additionally, the treatment notes reflected that Plaintiff helped his 15 father set up a business, a gun shop, and in so doing was attending out of state 16 trade shows and doing a lot of walking. (AR 24, 611, 627.) The ALJ found that 17 these activities conflicted with the degree of limitation Plaintiff described at the 18 hearing and suggested that his actual daily activities have been somewhat 19 greater than alleged. (AR 24.) 20 The Ninth Circuit has “repeatedly warned that ALJs must be especially 21 cautious in concluding that daily activities are inconsistent with testimony 22 about pain, because impairments that would unquestionably preclude work 23 and all the pressures of a workplace environment will often be consistent with 24 doing more than merely resting in bed all day.” Garrison v. Colvin, 759 F.3d 25 995, 1016 (9th Cir. 2014); Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 26 2001) (“This court has repeatedly asserted that the mere fact that a plaintiff has 27 carried on certain daily activities, such as grocery shopping, driving a car, or 28 limited walking for exercise, does not in any way detract from her credibility as 23 1 to her overall disability.”). “[O]nly if [his] level of activity [was] inconsistent 2 with [a claimant’s] claimed limitations would these activities have any bearing 3 on [his] credibility.” Garrison, 759 F.3d at 1016. Here, Plaintiff’s reports of 4 walking “a lot” at a trade show and “moving heavy furniture” to help his 5 father set up a business (AR 611, 627) directly contradict many of Plaintiff’s 6 allegations, including that he cannot lift much, has trouble grasping things with 7 his left hand, is unable to do household chores, and can only walk for twenty 8 minutes before needing to rest for two hours. (AR 44, 236-37, 239.) Even 9 attempting such activities is inconsistent for someone who has alleged such 10 disabling pain. While Plaintiff’s other daily activities do not necessarily detract 11 from his credibility as to his overall disability, Plaintiff’s strenuous activities 12 helping his father do. As such, substantial evidence supports the ALJ’s finding 13 that Plaintiff’s reported activities were at odds with his alleged symptoms and 14 limitations. 15 Plaintiff contends that, pursuant to then-applicable SSR 96-7p, 1996 WL 16 374186, the ALJ should have questioned Plaintiff regarding the treatment note 17 reflecting that he helped his father move heavy furniture. (Jt. Stip. at 34-35.) 18 SSR 96-7p provides, “When additional information is needed to assess the 19 credibility of the individual’s statements about symptoms and their effects, the 20 adjudicator must make every reasonable effort to obtain available information 21 that could shed light on the credibility of the individual’s statements.” 1996 22 WL 374186, at *3. Here, the record was adequate to assess the credibility of 23 Plaintiff’s subjective statements such that the ALJ was not obligated to further 24 develop the record as Plaintiff contends. The record before the ALJ contained 25 assessments of Plaintiff’s capacity to perform work-related functions and was 26 sufficient to allow the ALJ to make an appropriate evaluation of Plaintiff's 27 statements of pain and limitations. See McCoy v. Astrue, 648 F.3d 605, 612 28 (8th Cir. 2011) (the duty to develop the record “is not never-ending and an 24 1 ALJ is not required to disprove every possible impairment”). Further, Plaintiff 2 does not identify any additional information that would have been provided in 3 response to a question requesting clarification. Indeed, even in his request for 4 review of the hearing decision, Plaintiff does not offer any explanation 5 reconciling this inconsistency. (See AR 334-36.) Moreover, as to heavy lifting, 6 the ALJ noted that the RFC conclusion was consistent with Plaintiff’s 7 testimony that he stopped working because he had to lift/carry “heavy” items 8 and in so doing, needed good use of both hands. (AR 25.) Where, as here, an ALJ provides legally sufficient reasons supporting his 9 10 credibility determination, the ALJ’s reliance on erroneous reasons is harmless 11 “[s]o long as there remains substantial evidence supporting the ALJ’s 12 conclusions on . . . credibility and the error does not negate the validity of the 13 ALJ’s ultimate [credibility] conclusion . . . .” Carmickle v. Comm’r, Soc. Sec. 14 Admin., 533 F.3d 1155, 1162 (9th Cir. 2008) (internal quotation marks and 15 citation omitted). Since the ALJ articulated several legally sufficient reasons 16 supporting his adverse credibility finding, any error in relying on improper 17 grounds was harmless. See Nava v. Colvin, 2017 WL 706099, at *5 (C.D. Cal. 18 Feb. 21, 2017) (since history of conservative treatment and lack of 19 corroborating medical evidence were legally sufficient reasons supporting the 20 ALJ’s credibility finding, reliance on plaintiff’s daily activities was harmless). Accordingly, reversal is not warranted based on the ALJ’s credibility 21 22 determination. 23 C. 24 RFC determination Issue No. 3 essentially reargues Issue No. 1. Plaintiff argues that the ALJ 25 erred in rejecting the opinions of Drs. Hung and Broukhim and when the 26 vocational expert was asked to consider the additional limitations assessed by 27 these physicians, the expert eliminated all of the work identified in the ALJ’s 28 decision. (Jt. Stip. at 37.) Plaintiff contends that hypothetical questions are 25 1 incomplete if they omit mental impairments or restrictions or if they omit 2 symptoms and restrictions presented through competent lay testimony. 3 According to Plaintiff, the ALJ erred in relying on the response to the 4 hypothetical question that did not include all of Plaintiff’s limitations. (Id. at 5 38.) Because the Court has already concluded that the ALJ provided legally 6 sufficient reasons for rejecting Drs. Hung’s and Broukhim’s opinions as 7 explained above, Plaintiff’s challenge to the RFC determination lacks merit 8 and does not provide a basis for reversal. 9 IV. 10 ORDER 11 12 IT THEREFORE IS ORDERED that judgment be entered affirming the decision of the Commissioner and dismissing this action with prejudice. 13 14 Dated: April 09, 2018 15 ______________________________ JOHN D. EARLY United States Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 26

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