Mark Anthony Pruitt v. Carolyn W. Colvin

Filing 21

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

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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MARK ANTHONY PRUITT,
Plaintiff,

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v.

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NANCY A. BERRYHILL, Acting
Commissioner of Social
Security,1

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Defendant.

) Case No. EDCV 16-2416-JPR
)
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) MEMORANDUM DECISION AND ORDER
) AFFIRMING COMMISSIONER
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I.

PROCEEDINGS
Plaintiff seeks review of the Commissioner’s final decision

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denying his application for supplemental security income benefits

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(“SSI”).

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

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

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filed July 5, 2017, which the Court has taken under submission

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without oral argument.

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Commissioner’s decision is affirmed.

The parties consented to the jurisdiction of the

For the reasons stated below, the

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Nancy A. Berryhill is substituted in as the correct
Defendant.
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The

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II.

BACKGROUND
Plaintiff was born in 1957.

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43, 247.)

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(Administrative Record (“AR”)

as a laborer in 2004 (AR 297).

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He has a ninth-grade education (AR 43) and last worked

On November 13, 2012, Plaintiff applied for SSI, alleging

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that he had been disabled since February 17, 2008 (AR 247),

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because of “paranoid schizophrenia, [chronic obstructive

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pulmonary disease], deafness, high cholesterol and auditory

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hallucinations” (see AR 165).2

After his application was denied

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initially and upon reconsideration (id.), he requested a hearing

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before an Administrative Law Judge (AR 172).

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on February 10, 2015, at which Plaintiff, who was represented by

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a nonattorney from a law firm (AR 211), testified, as did a

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vocational expert.

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held on June 2, 2015, primarily regarding the VE’s testimony.

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(AR 65-101.)

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found Plaintiff not disabled.

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review and submitted additional medical evidence.

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566-83.)

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review, finding that the additional evidence did not provide a

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basis for changing the ALJ’s decision.

(See AR 39-64.)

A hearing was held

A supplemental hearing was

In a written decision issued July 2, 2015, the ALJ
(AR 20-38.)

Plaintiff requested
(See AR 18,

On September 23, 2016, the Appeals Council denied

(AR 1-4.)

The council

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Plaintiff previously applied for SSI on March 24, 2006.
(See AR 23.) The application was denied, and the decision was
affirmed by an ALJ on May 19, 2008. (Id.) Though the case was
remanded by the district court, the denial was again affirmed on
November 19, 2010, and Plaintiff did not appeal. (Id.) The ALJ
here found that Plaintiff had demonstrated changed circumstances
since that final decision, however (AR 24), in the form of
physical impairments, and thus the Chavez presumption does not
apply. See Lester v. Chater, 81 F.3d 821, 827-28 (9th Cir. 1995)
(as amended Apr. 9, 1996) (citing Chavez v. Bowen, 844 F.2d 691,
693 (9th Cir. 1988)). Defendant does not contend otherwise.
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ordered that the new evidence be made part of the administrative

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record.

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III. STANDARD OF REVIEW

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(AR 5.)

This action followed.

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

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Commissioner’s decision to deny benefits.

The ALJ’s findings and

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

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

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

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

Substantial

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evidence means such evidence as a reasonable person might accept

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as adequate to support a conclusion.

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

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It is more than a scintilla but less than a preponderance.

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

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

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substantial evidence supports a finding, the reviewing court

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

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the evidence that supports and the evidence that detracts from

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the Commissioner’s conclusion.”

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720 (9th Cir. 1998).

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

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substitute its judgment” for the Commissioner’s.

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IV.

Richardson, 402 U.S. at

To determine whether

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

“If the evidence can reasonably support

Id. at 720-21.

THE EVALUATION OF DISABILITY

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People are “disabled” for purposes of receiving Social

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Security benefits if they are unable to engage in any substantial

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gainful activity owing to a physical or mental impairment that is

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

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last, for a continuous period of at least 12 months.
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42 U.S.C.

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

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1992).

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A.

The Five-Step Evaluation Process

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The ALJ follows a five-step sequential evaluation process to

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assess whether a claimant is disabled.

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§ 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir.

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1995) (as amended Apr. 9, 1996).

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Commissioner must determine whether the claimant is currently

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engaged in substantial gainful activity; if so, the claimant is

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20 C.F.R.

In the first step, the

not disabled and the claim must be denied.

§ 416.920(a)(4)(i).

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If the claimant is not engaged in substantial gainful

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activity, the second step requires the Commissioner to determine

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

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impairments significantly limiting his ability to do basic work

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

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must be denied.

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§ 416.920(a)(4)(ii).

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

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impairments, the third step requires the Commissioner to

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determine whether the impairment or combination of impairments

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meets or equals an impairment in the Listing of Impairments set

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

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disability is conclusively presumed.

§ 416.920(a)(4)(iii).

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If the claimant’s impairment or combination of impairments

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

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step requires the Commissioner to determine whether the claimant

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has sufficient residual functional capacity (“RFC”)3 to perform

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

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denied.

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proving he is unable to perform past relevant work.

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F.2d at 1257.

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case of disability is established.

§ 416.920(a)(4)(iv).

The claimant has the burden of
Drouin, 966

If the claimant meets that burden, a prima facie
Id.

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If that happens or if the claimant has no past relevant

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work, the Commissioner then bears the burden of establishing that

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the claimant is not disabled because he can perform other

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substantial gainful work available in the national economy.

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§ 416.920(a)(4)(v); Drouin, 966 F.2d at 1257.

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comprises the fifth and final step in the sequential analysis.

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§ 416.920(a)(4)(v); Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d

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at 1257.

That determination

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B.

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

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The ALJ’s Application of the Five-Step Process

substantial gainful activity since the application date.4

(AR

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RFC is what a claimant can do despite existing exertional
and nonexertional limitations. § 416.945; see Cooper v.
Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). The
Commissioner assesses the claimant’s RFC between steps three and
four. Laborin v. Berryhill, 867 F.3d 1151, 1153 (9th Cir. 2017)
(citing § 416.920(a)(4)).

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The ALJ incorrectly noted Plaintiff’s application date as
October 31, 2012, instead of November 13. (Compare AR 26, with
AR 247.) But the mistake was harmless. See Stout v. Comm’r,
Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006) (ALJ’s
error “harmless” when “the mistake was nonprejudicial to the
claimant or irrelevant to the ALJ’s ultimate disability
conclusion”). Because “SSI can only be paid beginning the month
after an application is filed,” the relevant period begins on the
application date and runs until the date of the ALJ’s decision.
See Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996, 1000-01 &
n.1 (9th Cir. 2015) (as amended) (citing § 416.335).
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26.)

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impairments: “schizophrenia; bipolar disorder; borderline

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intellectual functioning; a history of polysubstance abuse,

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including cocaine and alcohol; severe mixed hearing loss on the

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left and severe mixed hearing loss on the right; and a

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respiratory disorder.”

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he did not have an impairment or combination of impairments

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falling under a Listing.

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At step two, she concluded that he had the following severe

(AR 26.)

At step three, she found that

(Id.)

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

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perform “a full range of work at all exertional levels,” subject

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to the following nonexertional limitations:

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nonpublic;

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proximity to others but no tasks that require teamwork[;]

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cannot perform detailed tasks[;] cannot perform work

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where he would be responsible for the health and safety

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of others or require hypervigilance; should have verbal

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instructions rather than written instructions; should

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work in a quiet environment; cannot be required to

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communicate with others unless he can look directly at

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them with minimal to no background noise; should not be

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exposed to concentrated respiratory irritants.5

noncomplex

routine

tasks;

can

work

in

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The ALJ’s RFC partially tracks the RFC determined by the
previous ALJ on November 19, 2010:
[C]laimant has the [RFC] to perform a full range of work
at all exertional levels but with the following
nonexertional limitations: the claimant is capable of
performing simple repetitive tasks with no intense
contact with the public, co-workers, or supervisors. He
cannot perform detailed tasks; he cannot perform work
where he would be responsible for the health and safety
of others, and he should have verbal instructions rather
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(AR 28.)

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

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Plaintiff could not perform any past relevant work.

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step five, however, given his “age, education, work experience,

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and [RFC],” she determined that he could successfully find work

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in the national economy.

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not disabled.

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V.

(Id.)

(AR 31.)

At

Thus, the ALJ found Plaintiff

(AR 32.)

DISCUSSION

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Plaintiff argues that the ALJ erred in (1) evaluating the

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medical-opinion evidence of record and determining his “mental

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functional capacity,” (2) evaluating the credibility of his

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subjective symptom statements, and (3) relying on “flawed” VE

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testimony.

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the ALJ did not err.

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A.

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(J. Stip. at 3.)

For the reasons discussed below,

The ALJ Properly Evaluated the Medical-Opinion Evidence
and Determined Plaintiff’s RFC

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Plaintiff argues that the ALJ erred in assessing the

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medical-opinion evidence provided by Dr. Jeffrey C. Moffat, Jr.

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(J. Stip. at 4), and did not give any explanation for her mental-

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RFC finding (id. at 12-13).

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Applicable law

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

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impairments and related symptoms that “may cause physical and

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

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setting.”

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ALJ’s RFC assessment when the ALJ has applied the proper legal

§ 416.945(a)(1).

A district court must uphold an

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than written instructions.
(AR 109.)
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standard and substantial evidence in the record as a whole

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supports the decision.

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(9th Cir. 2005).

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“together with the rest of the relevant evidence.”

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see also § 416.945(a)(1) (“We will assess your residual

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functional capacity based on all the relevant evidence in your

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case record.”).

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Bayliss v. Barnhart, 427 F.3d 1211, 1217

The ALJ must consider all the medical opinions
§ 416.927(b);

Three types of physicians may offer opinions in Social

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Security cases: those who directly treated the plaintiff, those

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who examined but did not treat the plaintiff, and those who did

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neither.

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is generally entitled to more weight than an examining doctor’s,

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and an examining physician’s opinion is generally entitled to

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more weight than a nonexamining physician’s.

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§ 416.927(c)(1).6

Lester, 81 F.3d at 830.

A treating physician’s opinion

Id.; see

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This is so because treating physicians are employed to cure

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

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

But “the

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Social Security regulations regarding the evaluation of
opinion evidence were amended effective March 27, 2017. When, as
here, the ALJ’s decision is the final decision of the
Commissioner, the reviewing court generally applies the law in
effect at the time of the ALJ’s decision. See Lowry v. Astrue,
474 F. App’x 801, 804 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. 3:15-CV-05925-DWC, 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. § 416.927 are to the version in effect from August 24,
2012, to March 26, 2017.
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findings of a nontreating, nonexamining physician can amount to

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substantial evidence, so long as other evidence in the record

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supports those findings.”

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

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Saelee v. Chater, 94 F.3d 520, 522

The ALJ may disregard a treating physician’s opinion

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regardless of whether it is contradicted.

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881 F.2d 747, 751 (9th Cir. 1989).

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opinion is not contradicted by other medical-opinion evidence,

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however, it may be rejected only for “clear and convincing”

Magallanes v. Bowen,

When a treating physician’s

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reasons.

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F.3d 1155, 1164 (9th Cir. 2008) (citing Lester, 81 F.3d at 830-

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31).

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“specific and legitimate reasons” for discounting it.

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533 F.3d at 1164 (citing Lester, 81 F.3d at 830-31).

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Id.; see Carmickle v. Comm’r, Soc. Sec. Admin., 533

When it is contradicted, the ALJ must provide only
Carmickle,

In determining an RFC, the ALJ should consider those

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limitations for which there is support in the record and need not

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take into account properly rejected evidence or subjective

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complaints.

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determination because “the ALJ took into account those

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limitations for which there was record support that did not

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

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

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required to incorporate into RFC those findings from physician

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opinions that were “permissibly discounted”).

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findings by state-agency medical consultants and experts as

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opinion evidence.

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ultimate issues reserved to the Commissioner, such as a

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claimant’s RFC or the application of vocational factors, are not

See Bayliss, 427 F.3d at 1217 (upholding ALJ’s RFC

§ 416.927(e).

The ALJ considers

Medical-source opinions on

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medical opinions and have no special significance.

§ 416.927(d).

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

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

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inadequately supported by clinical findings.”

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

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F.3d at 1195.

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

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

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Magallanes, 881 F.2d at 755.

Thomas v.

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

“[I]n interpreting the evidence and

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developing the record, the ALJ does not need to ‘discuss every

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piece of evidence.’”

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1006, 1012 (9th Cir. 2003) (quoting Black v. Apfel, 143 F.3d 383,

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386 (8th Cir. 1998)).

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Howard ex rel. Wolff v. Barnhart, 341 F.3d

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

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

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

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decision should be upheld.”

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

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2.

Ryan v. Comm’r of Soc. Sec., 528

Relevant background

Between 2009 and 2012, Plaintiff was incarcerated and

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received psychiatric treatment for auditory hallucinations and

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paranoia (see AR 349-425), and he has apparently received

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treatment for mental-health issues since at least 2004 (see AR

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433, 435).

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assessment of functioning (“GAF”) scores ranging from 53 to 65.

While incarcerated, Plaintiff was assigned global

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(See, e.g., AR 360, 362, 364.)7

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compliant with his prescribed medication regimen and

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inconsistently stable.

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example, in 2010, Plaintiff reported “doing well” and said his

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“[s]ymptoms [were] under control with medication.”

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also AR 352.)

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because he didn’t think he “need[ed] them anymore” (AR 359, 361)

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and reported “no problems” when off medication

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hallucinations returned during periods of stress, such as when

He was noted to be marginally

(See, e.g., AR 350, 359, 365, 385.)

For

(AR 350; see

In 2011, he asked to discontinue his medications

(AR 362-64).

His

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his fiancé “lost custody of her daughter” (AR 365), but when he

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started taking his medications again, he reported feeling better

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and having no symptoms (AR 385, 387).

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reported hallucinations when stressed by his “wife’s likely

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infidelity” and paranoia “thinking that other[s] are after him”

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(AR 413 (May 2012), 415-16 (Apr. 2012)) but was otherwise

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compliant with medication and reported no hallucinations and

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decreased paranoia (AR 408 (Sept. 2012), 409-10 (Aug. 2012), 411

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(July 2012), 412 (June 2012), 417-18 (Mar. 2012), 419-20 (Feb.

Similarly, in 2012, he

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A GAF score of 61 to 70 indicates mild symptoms in one
area or difficulty in social, occupational, or school functioning
but the person is generally functioning well with some meaningful
interpersonal relationships. See Diagnostic and Statistical
Manual of Mental Disorders 32 (revised 4th ed. 2000). A score of
51 to 60 indicates moderate symptoms or moderate difficulty in
social, occupational, or school functioning. Id. The
Commissioner has declined to endorse GAF scores, Revised Medical
Criteria for Evaluating Mental Disorders and Traumatic Brain
Injury, 65 Fed. Reg. 50764-65 (Aug. 21, 2000) (codified at 20
C.F.R. pt. 404) (GAF score “does not have a direct correlation to
the severity requirements in our mental disorders listings”), and
the most recent edition of the DSM “dropped” the GAF scale,
citing its lack of conceptual clarity and questionable
psychological measurements in practice. Diagnostic and
Statistical Manual of Mental Disorders 16 (5th ed. 2012).
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2012)).

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Counseling, where he was seen by psychiatrists Romeo Villar and

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Jeffrey C. Moffat, Jr., among others.

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After his release, he was treated at Phoenix Community

(See AR 508-83.)

Dr. Villar began seeing Plaintiff in January 2013.

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(AR 516.)

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hallucinations and mood disorder, continued his medications, and

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observed his condition improving.

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January and April, Plaintiff reported hallucinations “tell[ing]

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[him] to spit on people.”

Throughout 2013, he monitored Plaintiff’s auditory

(See AR 511-16.)

(AR 514-16.)

Between

But by June, he reported

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that his “medication [was] helping” and that he had residual

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hallucinations that occurred “once in a while” or were “on [and]

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off [but] not bad.”

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(See AR 511-13.)

In October 2013, Dr. Villar completed a “Mental Disorder

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Questionnaire.”

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had mental-illness symptoms, including auditory hallucinations

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and paranoia, but was “oriented,” could “communicate fairly,” and

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had “fair” memory and “average intelligence.”

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did not need personal assistance during the interview and was

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cooperative.

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completion [were] very poor,” he “[did] not show any symptoms of

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acute psychosis or acute depression” and was found “competent to

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manage funds on his[] own behalf.”

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reported that he helped with household chores, cooked, and took

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care of his personal grooming.

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subsequent visits with Plaintiff indicated he was compliant with

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medication and had hallucinations and mood swings less often.

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(See AR 528 (Nov. 2013: reporting “happy” with medication, no

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hallucinations, and mood swings “sometimes”), 542 (Jan. 2014:

(AR 521-25.)

(Id.)

In it, he observed that Plaintiff

(AR 521-22.)

He

Though his “concentration [and] task

(AR 522-25.)

(AR 523.)

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Plaintiff also

Dr. Villar’s

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reporting residual hallucinations and mood swings “sometimes”),

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541 (Mar. 2014: compliant with medication and reporting

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“medication help[ing]”), 540 (May 2014: reporting hallucinations

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“still there [but] not as bad”); see also AR 539 (June 2014:

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compliant with medication and reporting to another doctor that

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his hallucinations were intermittent).)

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In January and March 2013, Plaintiff’s medical records were

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reviewed by consulting psychologists Robert Liss and Harvey

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Bilik, who found Plaintiff not disabled.

(AR 133-34, 137-40,

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151-52, 155-58.)

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decision, that Plaintiff’s credibility regarding his allegations

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was “an ongoing problem” that made assessment of his functional

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limitations difficult.

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Plaintiff’s “reported symptoms and observed signs” did not

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“suggest any significant worsening of [his] alleged impairments”

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since his November 19, 2010 SSI denial.

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Plaintiff to have some moderate limitations in “understanding and

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memory,” “concentration and persistence,” “social

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interaction[s],” and “adaptation,” Plaintiff could “understand

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and remember simple and some detailed — but not complex —

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instructions,” “carry out simple and some detailed — but not

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complex — instructions over the course of a normal workweek,”

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“interact appropriately with others[] but may benefit from

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reduced interactions with the public,” and “adapt.”

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Dr. Bilik reaffirmed those findings.

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particular, he found Plaintiff’s hallucinations to be “of limited

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credibility,” referencing the prior ALJ decision, and gave

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“greatest weight” to findings that he had a “60-63” GAF score and

Dr. Liss noted, based on the earlier ALJ’s

(AR 134.)

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He nonetheless found that

(Id.)

Though he found

(AR 137-39.)

(AR 152, 155-57.)

In

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was relatively stable.

(AR 149.)

On January 22, 2013, Plaintiff completed an Adult Function

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Report.

(AR 278-86.)

He reported “hearing voices,” not sleeping

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well, and being “afraid of some people at times,” which limited

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his ability to work.

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all day and did not spend time with others, he also noted that he

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had no problem with personal care; prepared meals “monthly”; did

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laundry, ironing, and other “household work”; used public

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transportation; shopped in stores; paid bills; did not have “any

(AR 278.)

Though he said he did “nothing”

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problems getting along with family, friends, neighbors, or

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others”; and had had no changes in his social activities since

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his “conditions began.”

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along “fairly well” with “authority figures,” such as “police,

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bosses, landlords or teachers.”

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Disability Report, Plaintiff stated that his condition had not

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changed since June 2013 (AR 309) and that he could take care of

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his “personal needs, but at a slower rate of time” (AR 312).

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(AR 279-83.)

He also stated that he got

(AR 284.)

In a January 2014

In August 2014, Plaintiff began seeing Dr. Moffat, who first

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noted that his medication compliance was “poor” because he had

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run out of his “meds” for four days.

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2014 visit with Dr. Moffat indicating “fair” compliance with

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medication despite being “out of meds for 7 days”).)

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also had “started drinking . . . to reduce paranoia” (AR 538),

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but by September 2014 he was “sober” because he “[hadn’t] had

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urges to drink” (AR 537).

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attend therapy, but he refused because of a monthlong trip he was

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taking in October 2014.

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again declined therapy in December 2014 because he was not

(AR 538; cf. AR 549 (Nov.

Plaintiff

Dr. Moffat recommended that Plaintiff

(AR 537; see also AR 559 (Plaintiff

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“ready”).)

In November 2014, Plaintiff, after being “confronted

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with lab results,” “admit[ted] to issues with medication

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compliance” and reported “ongoing hallucinations [and] paranoia.”

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(AR 558.)

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“goin’ [his] way.”

6

Mental Impairment Questionnaire (AR 543-47), in which he noted

7

that Plaintiff had “severe paranoia,” “PTSD-related avoidance

8

symptoms,” “hallucinations,” and “severe memory and concentration

9

deficits” (AR 545).

Plaintiff said he was “agitated” because SSI was not
(Id.)

At that time, Dr. Moffat completed a

He assigned Plaintiff a GAF score of 45 and

10

found him to have moderate, moderate to marked, and marked

11

limitations in understanding and memory, concentration and

12

persistence, and social interactions.8

13

found that Plaintiff had a St. Louis University Mental Status

14

Examination (“SLUMS”) score of 18 out of 30, which put “his

15

cognitive ability in the ‘Dementia’ range.”

16

concluded that Plaintiff could not work because his “mental

17

conditions . . . severely limit[ed] his ability to interact with

18

strangers [and] the public, and to concentrate or remember

19

details of a routine work schedule.”

(AR 543, 546.)

(AR 545.)

He also

He

(AR 547.)

20

Dr. Moffat’s subsequent visits with Plaintiff through the

21

date of the ALJ’s decision, July 2, 2015, showed his condition

22

improving.

23

linear thought processes; he had some or no hallucinations; his

24

insight and judgment were “good”; he had “good” compliance with

(See, e.g., AR 559-66.)

He noted that Plaintiff had

25
26
8

27
28

A GAF score of 41 to 50 indicates serious symptoms or any
serious impairment in social, occupational, or school
functioning. See Diagnostic and Statistical Manual of Mental
Disorders 32 (revised 4th ed. 2000).
15

1

medication; and his “mood, psychosis, and anxiety” were stable.

2

(See, e.g., AR 559 (Dec. 2014), 563 (Feb. 2015), 562 (Apr.

3

2015).)

4

family and having “a few drinks.”

5

Plaintiff also reported enjoying Christmas with his
(AR 559.)

The record contains notes from after the ALJ’s decision.9

6

In a letter to Plaintiff’s counsel dated November 13, 2015, Dr.

7

Moffat reaffirmed his November 2014 opinion.

8

Referencing the findings in his earlier questionnaire, he stated

9

that Plaintiff was unable to work because his “paranoia limit[ed]

(AR 566.)

10

his ability to interact with [the] public” and he had severe

11

“cognitive deficits.”

12

“cognitive function test[ed] in the demented range on the SLUMS

13

test,” again referencing the 2014 questionnaire.

(Id.)

He also stated that Plaintiff’s

(Id.)

14

In visits with Dr. Moffat between June and October 2015,

15

Plaintiff consistently demonstrated linear thought processes,

16
17
18
19
20
21
22
23
24
25
26
27
28

9

Social Security Administration regulations “permit
claimants to submit new and material evidence to the Appeals
Council and require the Council to consider that evidence in
determining whether to review the ALJ’s decision, so long as the
evidence relates to the period on or before the ALJ’s decision.”
Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1162 (9th
Cir. 2012); see also § 416.1470(b). “[W]hen the Appeals Council
considers new evidence in deciding whether to review a decision
of the ALJ, that evidence becomes part of the administrative
record, which the district court must consider when reviewing the
Commissioner’s final decision for substantial evidence.” Brewes,
682 F.3d at 1163; accord Taylor v. Comm’r of Soc. Sec. Admin.,
659 F.3d 1228, 1232 (9th Cir. 2011); see also Borrelli v. Comm’r
of Soc. Sec., 570 F. App’x 651, 652 (9th Cir. 2014) (remand
necessary when “reasonable possibility” exists that “the new
evidence might change the outcome of the administrative
hearing”). The Appeals Council considered “the additional
evidence” provided to it, including a November 2015 letter from
Dr. Moffat and medical records from April 2015 through July 2016,
and found no “basis for changing the [ALJ’s] decision.” (AR 2,
4.)
16

1

“good memory,” “good” insight and judgment, and “good” medication

2

compliance.

3

because “Seroquel10 helped [him] sleep,” his hallucinations had

4

“much improved,” and his paranoia was “not as bad.”

5

In August, however, he reported being “off meds for 2 weeks” and

6

experiencing “worsening paranoia” and hallucinations.

7

(“He reports he can’t function well off his medications.”).)

8

October, he reported improvement with hallucinations, paranoia

9

“at times,” and being at “a friend’s house,” where he suffered a

(AR 573-74, 576.)

10

head injury.

11

his ongoing SSI hearings.

12

(AR 573.)

He reported feeling better

(AR 576.)

(AR 574
By

He continued to have stress concerning
(Id.)

In a December 2015 visit with a different doctor at Phoenix

13

Community Counseling, Plaintiff reported “doing well since his

14

last appointment” and that “his medications . . . kept him

15

stable.”

16

spending time with family for Christmas” and was not experiencing

17

hallucinations or side effects from his medication.

18

doctor observed that Plaintiff had “a good support system with

19

his father” and that he was “goal directed” and had “logical”

20

thought forms, a “grossly intact” memory, “[n]o overt psychosis,”

21

and “good” medication compliance.

22

(AR 572.)

He stated that he was “look[ing] forward to

(Id.)

The

(Id.)

In visits with Dr. Moffat during the first half of 2016,

23

Plaintiff continued to demonstrate linear thought processes,

24

“good memory,” “good” insight and judgment, and “good” medication

25
26
27
28

10

Seroquel is the name-brand version of quetiapine, an
atypical antipsychotic used to treat the symptoms of
schizophrenia, mania, and depression. See Quetiapine,
MedlinePlus, https://medlineplus.gov/druginfo/meds/a698019.html
(last updated July 15, 2017).
17

1

compliance.

2

hallucinations or delusions.

3

same.

4

stated that his mood was “good” and “stable despite being off

5

Depakote”11 and that he had been “talking with an ex-girlfriend

6

for about one year via telephone.”

(AR 568).

7
8
9

(AR 567-68, 70.)

3.

In March, he reported no
(AR 570.)

In May, he reported the

And in July, he reported the same again and

(AR 567)

Analysis

The ALJ gave “little weight” to Dr. Moffat’s opinion (AR 30)
and provided specific and legitimate reasons for doing so: (1)

10

the opinion was “inconsistent with the findings of attending

11

psychiatrist Romeo Villar” (id.); (2) it “conflict[ed] with

12

progress notes” showing that when Plaintiff was “compliant with

13

following prescribed treatment” and “taking his psychotropic

14

medications,” his “symptoms and mood [were] stable,” he reported

15

“doing well,” he “declined mental health treatment,” and he had

16

received GAF scores “rang[ing] between 60 to 65” (id.); (3) the

17

opinion was undermined by his “ability to use public

18

transportation, get along with family members and interact with

19

medical personnel” (AR 29); and (4) the opinion that he was

20

“disabled” or “unable to work” was “not entitled to any special

21

significance” (id.).

22

reasons were supported by substantial evidence in the record, the

23

ALJ did not err.

Because these specific and legitimate

24
25
26
11

27
28

Depakote is the name-brand version of valproic acid, an
anticonvulsant used to treat seizures and mania. See Valproic
Acid, MedlinePlus, https://medlineplus.gov/druginfo/meds/
a682412.html (last updated July 15, 2017).
18

1

a.

2

Contradicted by other medical-opinion
evidence

3

Plaintiff argues that the ALJ did not explain how Dr.

4

Moffat’s opinion was inconsistent with Dr. Villar’s and thus no

5

evidence contradicted his opinion.

6

Accordingly, Dr. Moffat’s opinion, Plaintiff contends, should be

7

given controlling weight.

8

SSR 96-2p, 1996 WL 374188 (July 2, 1996)).)

9

did not err in this regard, and Dr. Moffat’s opinion was properly

(J. Stip. at 11.)

(Id. at 11-12 (citing § 416.927(c)(2);
The ALJ, however,

10

discounted based on specific and legitimate reasons.

11

Carmickle, 533 F.3d at 1164.

12

See

Though Plaintiff correctly highlights that both Dr. Villar

13

and Dr. Moffat observed that Plaintiff had hallucinations,

14

paranoia, and “very poor” concentration and task completion (J.

15

Stip. at 11 (citing AR 521-24; see also AR 545), Dr. Villar’s

16

opinion and treatment records otherwise contradicted Dr.

17

Moffat’s.

18

opinion stated that Plaintiff was “oriented” and had “fair”

19

memory.

20

deficits).)

21

intelligence,” and was “competent to manage [his own] funds,”

22

according to Dr. Villar.

23

noting Plaintiff’s “cognitive ability in the ‘Dementia’ range”).

24

Moreover, as highlighted by the ALJ, Dr. Villar found “no

25

evidence of psychotic symptoms” or “other significant objective

26

abnormalities.”

27

Villar noting no “symptoms of acute psychosis or acute

28

depression”; cf. AR 545 (on Nov. 25, 2014, Dr. Moffat noting

For example, as the ALJ noted (AR 30), Dr. Villar’s

(AR 522; cf. AR 545 (Dr. Moffat noting “severe” memory
He could “communicate fairly,” demonstrated “average

(AR 522, 525; cf. AR 545 (Dr. Moffat

(AR 30; see also AR 523 (on Oct. 22, 2013, Dr.

19

1

“severe paranoia” and “PTSD-related avoidance symptoms”)).

2

further contrast to Dr. Moffat’s opinion, Dr. Villar’s treatment

3

notes throughout 2013 and 2014 indicated that Plaintiff’s

4

condition was not disabling: he was compliant with his

5

medications and experienced less or no hallucinations because the

6

“medication help[ed].”

7

Plaintiff reported that he was “happy” with his medications

8

(AR 528) and that any hallucinations he experienced were only

9

“mild residual symptoms” (AR 542).

(See, e.g., AR 527-28, 540-41.)

In

Indeed,

Thus, Dr. Moffat’s medical

10

opinion was contradicted by Dr. Villar’s, and the ALJ was correct

11

in discounting it accordingly.12

12

(9th Cir. 2002); Batson, 359 F.3d at 1195.

13

b.

14

See Thomas, 278 F.3d at 957

Inconsistent with medical records

The ALJ properly found that Dr. Moffat’s opinion conflicted

15

with treatment notes throughout the record showing that when

16

Plaintiff was “compliant with . . . medications,” “his symptoms

17

and mood [were] stable” and “he [was] doing well.”

18

Moffat’s own treatment notes, for instance, indicated that

19

Plaintiff was stable and that his hallucinations or delusions

20

were controlled with medication.

21

576.)

22

experiencing less or no hallucinations and had been compliant

23

with medication.

24

through the first half of 2016 showed the same.

(AR 30.)

Dr.

(See, e.g., AR 559, 562, 563,

Throughout 2015 Dr. Moffat noted that Plaintiff was

(See AR 559, 562-63, 576.)

Treatment notes
(See AR 567-68,

25
26
27
28

12

The differences in the two opinions cannot be explained
by their different time frames. Plaintiff stated that his
symptoms remained relatively stable (see, e.g., AR 309), and if
anything his symptoms improved over time, as he remained
compliant with his medicines (see, e.g., AR 511-13, 541, 559).
20

1

570.)

And, despite Dr. Moffat’s conclusion that Plaintiff had

2

severe concentration and memory deficits (AR 545-46), his

3

treatment notes frequently indicated that Plaintiff had good

4

memory and was alert and oriented (see, e.g., AR 576 (June 2015),

5

574 (Aug. 2015)).

6

unsupported by the weight of his own treatment notes.

7

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

8

(physician’s opinion properly rejected when treatment notes

9

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

Thus, Dr. Moffat’s medical opinion was
See

10

should be imposed on [plaintiff]”); Rollins v. Massanari, 261

11

F.3d 853, 856 (9th Cir. 2001) (ALJ permissibly rejected

12

physician’s opinion when it was contradicted by or inconsistent

13

with treatment reports); see also Thomas, 278 F.3d at 957 (ALJ

14

need not accept doctor’s opinion that “is brief, conclusory, and

15

inadequately supported by clinical findings”).

16

Moreover, Dr. Moffat’s opinion that Plaintiff had moderate,

17

moderate to marked, and marked limitations in understanding,

18

memory, concentration, persistence, and social interactions were

19

expressed through an inadequately substantiated check-off report

20

provided by Plaintiff’s counsel.

21

argues that Dr. Moffat appropriately supported his opinion by

22

“identifying numerous mental status abnormalities and

23

psychological testing.”

24

(same).)

25

attributing them to his “severe paranoia” and “hallucinations”

26

(AR 545), but that explanation was conclusory and failed to

27

indicate any efforts taken by Dr. Moffat to “determine the

28

capacity found therein.”

(See AR 544-46.)

Plaintiff

(J. Stip. at 7 (citing AR 544-45), 12

Indeed, he justified Plaintiff’s social limitations by

De Guzman v. Astrue, 343 F. App’x 201,
21

1

208-09 (9th Cir. 2009) (ALJ was “free to reject” doctor’s

2

check-off report that did not “indicate any measuring of effort

3

or give[] a description” of how patient was evaluated (alteration

4

in original)).

5

concentration and memory limitations with his SLUMS score of 18

6

out of 30, indicating that his cognitive abilities were in the

7

“dementia” range (AR 545), such a finding was unsupported by

8

anything in the medical record and “out of proportion to any

9

findings” even in Dr. Moffat’s treatment notes, as discussed

To the extent Dr. Moffat justified Plaintiff’s

10

above.

11

opinion, written in November 2014, was formed only three months

12

after he began seeing Plaintiff.

13

Dr. Moffat reiterated the same opinion in November 2015 without

14

any indication that new psychiatric tests or examinations were

15

conducted to sustain his findings.

16

F.3d at 957 (ALJ may discredit opinion that is “inadequately

17

supported by clinical findings”); Crane v. Shalala, 76 F.3d 251,

18

253 (9th Cir. 1996) (ALJ permissibly rejected psychological

19

evaluations “because they were check-off reports that did not

20

contain any explanation of the bases of their conclusions”); see

21

also Batson, 359 F.3d at 1195 (“[A]n ALJ may discredit treating

22

physicians’ opinions that are conclusory, brief, and unsupported

23

by the record as a whole . . . or by objective medical

24

findings[.]”).

25

De Guzman, 343 F. App’x at 208-09.

Further still, his

See § 416.927(c)(2)(i).

And

(AR 566); see Thomas, 278

Plaintiff also argues that the ALJ relied on treatment

26

records from before the relevant period.

(J. Stip. at 10 (citing

27

AR 385, 387, 390, 408).)

28

Plaintiff’s prison medical records, which predate his recent SSI

Though the ALJ indeed cited to

22

1

application (see AR 30 (citing AR 385, 387, 390, 408)), he also

2

relied on records from August, September, and November 2013 and

3

December 2014 (id. (citing AR 511-12, 528-29, 559)).

4

records indicated that Plaintiff was doing “well” (AR 511), his

5

hallucinations occurred “once in a while” and were “not bad” (AR

6

511-12), he was “happy” with his medications (AR 528), and by

7

December 2014, he had no hallucinations and even reported

8

enjoying Christmas and having “a few drinks” with his family

9

during the holiday (AR 559).

Those

Such findings were reinforced by

10

other treatment notes during the relevant period showing his

11

compliance with medication and improved symptoms.

12

513 (June 2013), 521-25 (Oct. 2013), 542 (Jan. 2014), 541 (Mar.

13

2014), 540 (May 2014), 539 (June 2014), 563 (Feb. 2015), 562

14

(Apr. 2015), 576 (June 2015), 574 (Aug. 2015).)

15

(See, e.g., AR

Plaintiff also argues that statements that he was “doing

16

well” and that medication was “helping” him suggested “nothing

17

about his capacity to withstand the demands of full-time work,”

18

relying on Ghanim v. Colvin, 763 F.3d 1154, 1164 (9th Cir. 2014),

19

for the proposition that treatment records demonstrating

20

improvement “must be viewed in light of the overall diagnostic

21

record.”

22

Plaintiff’s argument is unconvincing.

23

“doing well” and that medication was “helping” him were relied on

24

by the ALJ to assess whether Dr. Moffat’s medical opinion was

25

substantiated by his treatment notes; such reports undermined the

26

severity of that opinion by showing Plaintiff’s improved

27

condition.

28

Plaintiff’s subjective symptom testimony, see 763 F.3d at 1164,

(J. Stip. at 10 (citing AR 511, 512, 559).)
His reports that he was

Unlike in Ghanim, the notes were not used to reject

23

1

but were instead used to discount a treating physician’s medical

2

opinion.

3

adverse assessment of Dr. Moffat’s opinion based on its

4

inconsistency with the record as a whole.

5

at 856.13

6
7

Substantial evidence therefore supports the ALJ’s

c.

See Rollins, 261 F.3d

Inconsistent with activities of daily living

The ALJ properly found that Dr. Moffat’s opinion regarding

8

Plaintiff’s “discomfort around others” was undermined by “his

9

ability to use public transportation, get along with family

10

members and interact with medical personnel.”

11

also undermined by Plaintiff’s reported trip in October 2014.

12

(AR 30.)

(AR 29.)

It was

Plaintiff argues that the ALJ “failed to identify

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

13

The ALJ also discounted Dr. Moffat’s opinion because the
GAF score he assessed for Plaintiff of 45 (AR 543) was
inconsistent with records showing GAF scores of 60 to 65 (see AR
30 (citing AR 391, 394, 410, 418, 424-24)). Indeed, during the
months just before his release from incarceration in September
2012 and the filing of his SSI application in November of that
year, Plaintiff was assigned GAF scores of 63 (AR 411 (July 9)),
65 (AR 410 (Aug. 2), 409 (Aug. 27)), and 55 (AR 408 (Sept. 14)).
Though the ALJ relied on scores from just before the relevant
period, Dr. Moffat’s low GAF finding was inadequately supported
and inconsistent with the record as a whole, as discussed above
and below, and thus any error was harmless. See Parker v. Comm’r
of Soc. Sec., No. 2:16-CV-0087-SMJ, 2017 WL 4158617, at *7 (E.D.
Wash. Sept. 19, 2017) (ALJ’s rejection of low GAF scores was
supported by substantial evidence showing that “Plaintiff was
able to complete her activities of daily living with few
limitations”); Smith v. Colvin, No. C14-1530 TSZ, 2016 WL
8710029, at *6 (W.D. Wash. Oct. 14, 2016) (upholding ALJ’s
conclusion that medical opinion’s “unjustifiably low” GAF score
was not supported by record); see also Thomas, 278 F.3d at 957;
Batson, 359 F.3d at 1195. Indeed, “a GAF score is merely a rough
estimate of an individual’s psychological, social, or
occupational functioning used to reflect an individual’s need for
treatment, but it does not have any direct correlative workrelated or functional limitations.” Hughes v. Colvin, 599 F.
App’x 765, 766 (9th Cir. 2015) (citing Vargas v. Lambert, 159
F.3d 1161, 1164 n.2 (9th Cir. 1998) (as amended)).
24

1

substantial evidence” to support this finding.

2

He argues that “[t]here is absolutely no evidence that he use[d]

3

public transportation on a regular basis or [had] meaningful

4

interactions with others, nor does the record reflect that

5

Plaintiff actually went somewhere for a month or what this trip

6

consisted of.”

7

supports the ALJ’s determination.

8
9

(Id. at 9.)

(J. Stip. at 8.)

Substantial evidence, however,

Plaintiff’s January 2013 function report indicated that he
used public transportation; had no problem with personal care;

10

prepared meals “monthly”; did laundry, ironing, and other

11

“household work”; shopped in stores; and paid bills.

12

81.)

13

his “personal needs” (AR 312), and he similarly reported to Dr.

14

Villar that he managed his own funds, helped with household

15

chores, cooked, and took care of his personal grooming (AR 523,

16

525).

17

having “any problems getting along with family, friends,

18

neighbors, or others” (AR 283) and got along “fairly well” with

19

“authority figures,” like “police, bosses, landlords, [and]

20

teachers” (AR 284); his social activities had not changed since

21

his “conditions began” (AR 283).

22

with his family “brought [him] a little joy” and he had “a few

23

drinks” with them.

24

he was “look[ing] forward to spending time with [them again] for

25

Christmas.”

26

reported that he was going on a monthlong trip in October 2014

27

(AR 537), had been at “a friend’s house” around October 2015 (AR

28

573), and in July 2016 had been “talking with an ex-girlfriend

(AR 279-

His Disability Report indicated that he could take care of

Regarding his ability to be around others, he reported not

(AR 559.)

(AR 572.)

In December 2014, Christmas

In December of the following year,

During visits with Dr. Moffat, Plaintiff

25

1
2

for about one year via telephone” (AR 567).
His medical records further demonstrated that he interacted

3

appropriately with medical personnel, who consistently noted that

4

he “appear[ed] well” and “in no acute distress,” was “alert and

5

oriented,” and “verbalized understanding and agreement with [his

6

treatment] plan[s]” (see, e.g., AR 472, 476-77, 480-82, 484),

7

further demonstrating that his ability to be around others was

8

greater than Dr. Moffat opined.

9

hearing testimony suggested otherwise (see AR 50-51 (noting that

To the extent Plaintiff’s

10

he got around on bicycle and was not close to his father or

11

siblings)), the ALJ properly found his subjective symptom

12

testimony not entirely credible (AR 28), as discussed below.14

13

Thus, substantial evidence supports the ALJ’s use of Plaintiff’s

14

activities of daily living to discount Dr. Moffat’s medical

15

opinion that he could not work around others.

16

Colvin, 673 F. App’x 787, 787-88 (9th Cir. 2017) (affirming ALJ’s

17

adverse determination of treating physician’s medical opinion

18

because it was “speculative and inconsistent” with activities of

19

daily living), cert. denied sub nom. Coaty v. Berryhill, 137 S.

20

Ct. 2309 (2017); Lunn v. Astrue, 300 F. App’x 524, 525 (9th Cir.

21

2008) (affirming ALJ’s rejection of treating physician’s medical

22

opinion that was “contrary to [plaintiff’s] reports of her daily

23

activities”).

24

See Coaty v.

In any event, the ALJ accommodated Plaintiff’s alleged

25
26
27
28

14

Plaintiff stated in his function report that his father
encouraged him by telling him he was “do[ing] a good job” (AR
280), and a Phoenix Community Counseling doctor noted that
Plaintiff’s dad provided him with “a good support system” (AR
572).
26

1

preference for limited contact with others by finding that he

2

could not work with the public or engage in any “teamwork,”

3

should work in a “quiet environment,” and could communicate with

4

others only in certain specific, limited circumstances.

5

Thus, even if the ALJ erred in her adverse assessment of Dr.

6

Moffat’s opinion on this basis, the error was likely harmless.

7

See Hughes v. Colvin, 599 F. App’x 765, 766 (9th Cir. 2015)

8

(holding potential medical-opinion error harmless when ALJ’s RFC

9

took into account plaintiff’s “moderate difficulties in social

(AR 28.)

10

functioning” by restricting her to “job[s] where she could work

11

independently with no more than occasional public interaction”).

12
13

d.

Opinion on disability

Finally, the ALJ correctly afforded no “special

14

significance” to Dr. Moffat’s conclusion that Plaintiff was

15

“disabled” or “unable to work.”

16

argues that the opinions of treating physicians are generally

17

given greater weight (J. Stip. at 6-7 (citing Garrison v. Colvin,

18

759 F.3d 995, 1012 (9th Cir. 2014)), the ALJ was not obligated to

19

accept a medical-source statement regarding Plaintiff’s ultimate

20

disability status.

21

medical source that you are ‘disabled’ or ‘unable to work’ does

22

not mean that we will determine that you are disabled.”); SSR 96-

23

5p, 1996 WL 374183, at *5 (July 2, 1996) (treating-source

24

opinions that a person is disabled or unable to work “can never

25

be entitled to controlling weight or given special

26

significance”); see also McLeod v. Astrue, 640 F.3d 881, 885 (9th

27

Cir. 2011) (as amended) (“A disability is an administrative

28

determination of how an impairment, in relation to education,

(See AR 29.)

While Plaintiff

See § 416.927(d)(1) (“A statement by a

27

1

age, technological, economic, and social factors, affects ability

2

to engage in gainful activity.”).

3

therefore appropriately discounted on this ground.

4

Dr. Moffat’s opinion was

Accordingly, the ALJ did not err in assessing the medical-

5

opinion evidence or, as discussed below, Plaintiff’s credibility.

6

Properly rejected medical evidence and subjective complaints do

7

not need to be incorporated into a plaintiff’s RFC.

8

427 F.3d at 1217.

9

ALJ’s RFC determination.

10
11

this basis.
B.

12
13

See Bayliss,

Substantial evidence therefore supports the
As such, remand is not warranted on

See Saelee, 94 F.3d at 522.

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

The ALJ found that Plaintiff’s statements “concerning the

14

intensity, persistence and limiting effects” of his mental

15

symptoms were “not entirely credible.”15

16

argues that this finding was improper because it was not

17

supported by substantial evidence.

18

ALJ, however, based her credibility assessment on clear and

19

convincing reasons.

20

ground.

21
22

1.

(AR 28-29.)

Plaintiff

(See J. Stip. at 20.)

The

Accordingly, remand is not warranted on this

Applicable law

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

23

allegations concerning the severity of his symptoms is entitled

24

to “great weight.”

25

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

26

Cir. 1985) (as amended Feb. 24, 1986).

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

“[T]he ALJ is not

27
15

28

Plaintiff challenges only the ALJ’s credibility
determination regarding his mental impairments. (J. Stip at 19.)
28

1

‘required to believe every allegation of disabling pain, or else

2

disability benefits would be available for the asking, a result

3

plainly contrary to 42 U.S.C. § 423(d)(5)(A).’”

4

Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (quoting Fair v.

5

Bowen, 885 F.2d 597, 603 (9th Cir. 1989)).

6

Molina v.

In evaluating a claimant’s subjective symptom testimony, the

7

ALJ engages in a two-step analysis.

8

at 1035-36; see also SSR 96-7p, 1996 WL 374186 (July 2, 1996).16

9

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

See Lingenfelter, 504 F.3d

10

objective medical evidence of an underlying impairment [that]

11

could reasonably be expected to produce the pain or other

12

symptoms alleged.”

13

objective medical evidence exists, the ALJ may not reject a

14

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

15

impairment can reasonably produce the degree of symptom alleged.”

16

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

17

Lingenfelter, 504 F.3d at 1036.

If such

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

18

the claimant’s subjective symptom testimony only if she makes

19

specific findings that support the conclusion.

20

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

21

affirmative evidence of malingering, the ALJ must provide “clear

22

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

23

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

24

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

See Berry v.
Absent a finding or

25
26
27
28

16

Social Security Ruling 16-3p, 2016 WL 1119029, effective
March 28, 2016, rescinded SSR 96-7p, which provided the framework
for assessing the credibility of a claimant’s statements. SSR
16-3p was not in effect at the time of the ALJ’s decision in this
case, however.
29

1

1102 (9th Cir. 2014).

The ALJ may consider, among other factors,

2

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

3

claimant’s reputation for lying, prior inconsistent statements,

4

and other testimony by the claimant that appears less than

5

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

6

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

7

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

8

(5) testimony from physicians and third parties.

9

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

Rounds v.

10

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

11

finding is supported by substantial evidence in the record, the

12

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

13

F.3d at 959.

14

2.

15

If the ALJ’s credibility

Thomas, 278

Additional relevant background

At his February 10, 2015 hearing, Plaintiff testified that

16

his paranoia kept him from working (AR 49) and that he had

17

problems concentrating (AR 56).

18

“past experience with being incarcerated,” he was afraid of

19

people, and being around them was “the most significant problem

20

for [him].”

21

that “tell [him] about spitting on people, pissing people,

22

hitting on people, cursing people out, [and] doing all kinds of

23

bad things.”

24

45-46) that was helping him (AR 53).

25

“sometimes” when on medication, but “[m]ost of the time, [he

26

didn’t] hear them because [he took his] medication as prescribed

27

at the same time that [he was] supposed to take [it].”

28

testified that he did not “need help remembering to take [his]

(AR 49-50.)

(AR 53-54.)

He stated that because of his

He also stated that he “hear[s] voices”

He testified to taking medication (AR

30

He still heard voices

(Id.)

He

1

medication.”

2

father (AR 49), that they “seldomly talk[ed]” because of his

3

“paranoia of people” (AR 51), that they went to doctor’s

4

appointments and did grocery shopping together, and that he did

5

not have any difficulty while “doing those things with him” (AR

6

54).

7

3.

8
9

(AR 58.)

He also stated that he lived with his

Analysis

Plaintiff argues that the ALJ’s credibility determination is
not supported by substantial evidence.

(J. Stip. at 20.)

As

10

discussed below, the substantial weight of the evidence, looking

11

at the record as a whole, undermines Plaintiff’s statements

12

regarding his mental functional limitations, and the ALJ

13

therefore did not err.

14

First, the ALJ properly found Plaintiff’s symptom statements

15

not entirely credible because they were unsupported by “clinical

16

signs and findings” or “the objective medical evidence.”

17

29.)

18

mental impairments severely limited his ability to concentrate

19

and be around other people.

20

he similarly testified that being around people was the most

21

significant difficulty for him and that he had problems

22

concentrating.

23

not sleeping well, and being “afraid of some people at times”

24

limited his ability to work.

25

however, were inconsistent with his medical records and the other

26

evidence.

27
28

(AR

Plaintiff alleges that he was unable to work because his

(AR 50, 56.)

(J. Stip. at 19.)

At his hearing,

He reported that “hearing voices,”

(AR 278.)

These statements,

As discussed by the ALJ, Plaintiff’s treatment notes
indicated that his “medications were relatively effective in
31

1

controlling [his] symptoms” during the applicable period.17

2

29; see also, e.g., AR 511-13, 528, 540-42, 559, 562-63, 574,

3

576.)

4

that Plaintiff’s condition was improving: he experienced

5

hallucinations less often, reported improvement with his mood

6

swings, and frequently stated that his medication was helping.

7

(See AR 511-16, 527-28, 540-41.)

8

2015 and into 2016 similarly indicated that Plaintiff’s condition

9

was improving and stable and that he was compliant with

(AR

Throughout 2013 and 2014, Dr. Villar’s notes indicated

Dr. Moffat’s notes throughout

10

medication.

11

above, to the extent Dr. Moffat opined that Plaintiff’s

12

hallucinations and paranoia were debilitating, the ALJ properly

13

discounted his medical opinion and relied on the findings

14

substantiated by his treatment notes.

15

that Plaintiff reported still hearing voices while on medication

16

(see, e.g., AR 540), he also reported not hearing voices while on

17

medication (see, e.g., AR 567) and testified that he did not hear

18

voices when he took his medication as prescribed (AR 53).

19

Plaintiff’s treatment records therefore show substantial

20

inconsistency between his allegations and his apparently

21

improving condition, undermining his subjective symptom

(See AR 559-68, 570, 573-74, 576.)

As discussed

Though some notes indicate

22
23
24
25
26
27
28

17

The ALJ may have erred in finding Plaintiff’s course of
treatment “conservative.” (AR 29.) But even if the ALJ was
wrong, see, e.g., Childress v. Colvin, No. EDCV 14-0009-MAN, 2015
WL 2380872, at *14 (C.D. Cal. May 18, 2015) (finding treatment of
prescription antidepressants, prescription antipsychotics, and
talk therapy not properly characterized as conservative), she did
not err in concluding that it was largely effective. Moreover,
as discussed above and below, the ALJ gave other legally
sufficient reasons for partially discounting Plaintiff’s
credibility.
32

1

statements.

2

(9th Cir. 2017) (“[The ALJ] properly discounted [Plaintiff’s]

3

severity claims by pointing to . . . the nature of the medical

4

evidence itself.”); Carmickle, 533 F.3d at 1161 (“Contradiction

5

with the medical record is a sufficient basis for rejecting the

6

claimant’s subjective testimony.”); see also Burch v. Barnhart,

7

400 F.3d 676, 681 (9th Cir. 2005) (“Although lack of medical

8

evidence cannot form the sole basis for discounting pain

9

testimony, it is a factor that the ALJ can consider in his

10
11

See Womeldorf v. Berryhill, 685 F. App’x 620, 621

credibility analysis.”).
Moreover, the record indicates that Plaintiff refused

12

therapy (see, e.g., 537, 559) and contains no indication that he

13

ever attended therapy or was psychiatrically hospitalized.

14

yet Plaintiff was clearly aware that he had mental-health issues

15

and sought treatment for them.

16

course of treatment while undergoing others therefore undermined

17

his allegations of his symptoms’ severity, as the ALJ found (AR

18

30), and distinguishes Plaintiff’s situation from that in Nguyen

19

v. Chater, 100 F.3d 1462, 1464-65 (9th Cir. 1996) (claimant’s

20

failure to seek any psychiatric treatment for over three years

21

not legitimate basis for discounting medical opinion that he had

22

severe depressive disorder).

23

09-4743-PJW, 2010 WL 3245813, at *4 (C.D. Cal. Aug. 16, 2010)

24

(“[The claimant’s] failure to get treatment after 1997 seems more

25

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

26

her inability to comprehend that she needed it.”).

27
28

And

His refusal to engage in one

Cf. Judge v. Astrue, No. CV

Second, the ALJ properly found that Plaintiff’s “allegations
of significant limitations [were] not borne out in his
33

1

description of his daily activities.”

2

properly discount the credibility of a plaintiff’s subjective

3

symptom statements when they are inconsistent with his daily

4

activities.

5

claimant’s testimony when “claimant engages in daily activities

6

inconsistent with the alleged symptoms” (citing Lingenfelter, 504

7

F.3d at 1040)).

8

some difficulty functioning, they may be grounds for discrediting

9

the claimant’s testimony to the extent that they contradict

10

(AR 29.)

See Molina, 674 F.3d at 1112 (ALJ may discredit

“Even where those [daily] activities suggest

claims of a totally debilitating impairment.”

11

An ALJ may

Id. at 1113.

The ALJ noted that Plaintiff was “able to independently

12

manage his transportation,” “[got] around with public

13

transportation,” “[did] his own laundry,” “help[ed] with the

14

household chores and cook[ed].”

15

claimed to do “nothing” from the moment he got up to the time he

16

went to bed (AR 279), he also reported that he had no problem

17

with personal care; prepared meals “monthly”; did laundry,

18

ironing, and other “household work”; and paid bills.

19

83.)

20

household chores, cooked, and took care of his personal grooming

21

(AR 523), and in his Disability Report, he stated that he could

22

take care of his “personal needs” (AR 312).

23

interactions, Plaintiff reported that he used public

24

transportation; shopped in stores; did not have “any problems

25

getting along with family, friends, neighbors, or others”; got

26

along “fairly well” with “authority figures,” such as “police,

27

bosses, landlords, or teachers”; and had experienced no changes

28

in his social activities since his “conditions began.”

(AR 29.)

Although Plaintiff

(AR 279-

He similarly reported to Dr. Villar that he helped with

34

Regarding his social

(AR 279-

1

84.)

He also reported enjoying Christmas and spending time with

2

his family (AR 559), looking forward to spending the next

3

Christmas with his family (AR 572), being at a “friend’s house”

4

(AR 573), and “talking with an ex-girlfriend” for a year (AR

5

567).

6

interacted appropriately with medical personnel, who consistently

7

noted that he “appear[ed] well” and “in no acute distress,” was

8

“alert and oriented,” and “verbalized understanding and agreement

9

with [his treatment] plan[s]” (see, e.g., AR 472, 476-77, 480-82,

Moreover, his medical records demonstrated that he

10

484).

11

daily living, which demonstrated his functional ability and

12

capacity to engage effectively with others, supports the ALJ’s

13

adverse credibility determination.

14

at 621 (upholding ALJ’s discounting of plaintiff’s credibility in

15

part because his activities of daily living “were not entirely

16

consistent with his claimed inability to engage in social

17

interactions”).

18

Thus, substantial evidence of Plaintiff’s activities of

See Womeldorf, 685 F. App’x

For all these reasons, the ALJ’s adverse credibility

19

determination is supported by substantial evidence looking at the

20

record as a whole.

21

on this ground.

Plaintiff is therefore not entitled to remand

22

C.

23

Plaintiff argues that “[t]he ALJ failed to present a

The ALJ Properly Relied on the VE’s Testimony

24

hypothetical to the VE that accurately described all of [his]

25

mental limitations found in the decision.”

26

particular, the ALJ failed to capture his “moderate difficulties

27

in concentration, persistence, or pace.”

28

discussed below, however, the ALJ did not err.
35

(J. Stip. at 24.)

(Id.)

In

For the reasons

1
2

1.

Applicable law

At step five of the five-step process, the Commissioner has

3

the burden to demonstrate that the claimant can perform some work

4

that exists in “significant numbers” in the national or regional

5

economy, taking into account the claimant’s RFC, age, education,

6

and work experience.

7

Cir. 1999); see 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 416.960(c).

8

To ascertain the requirements of occupations as generally

9

performed in the national economy, the ALJ may rely on VE

Tackett v. Apfel, 180 F.3d 1094, 1100 (9th

10

testimony or information from the DOT.

11

1898704, at *2 (Dec. 4, 2000) (at steps four and five, SSA relies

12

“primarily on the DOT (including its companion publication, the

13

SCO) for information about the requirements of work in the

14

national economy” and “may also use VEs . . . at these steps to

15

resolve complex vocational issues”); SSR 82–61, 1982 WL 31387, at

16

*2 (Jan. 1, 1982) (“The [DOT] descriptions can be relied upon —

17

for jobs that are listed in the DOT — to define the job as it is

18

usually performed in the national economy.” (emphasis in

19

original)).

20

credible functional limitations, an ALJ is generally entitled to

21

rely upon the VE’s response to it.

22

also Bayliss, 427 F.3d at 1218 (“A VE’s recognized expertise

23

provides the necessary foundation for his or her testimony.”).

24

2.

SSR 00-4P, 2000 WL

When a hypothetical includes all the claimant’s

Thomas, 278 F.3d at 956; see

Relevant background

25

The ALJ presented to the VE a hypothetical person who was 57

26

years old and had a ninth-grade education, no past relevant work,

27

and the following limitations:

28

[He] would have the following limits specifically non36

1

public, non-complex, routine tasks.

2

the proximity of others, but no tasks that would require

3

teamwork. . . .

4

person would be responsible for the health or safety of

5

others

6

instructions,

7

concentrated exposure to respiratory irritants.

8

a quiet environment.

9

others unless this person could look directly at them and

10

or

Work can be done in

No work that — where this hypothetical

would

require

no

hypervigilance.

written

instructions,

Verbal
and

no

Work in

No required communication with

minimal to no background noise.

11

(AR 61-62.)

The VE testified that such a person would be able to

12

perform the jobs of hospital cleaner, DOT 323.687-010, 1991 WL

13

672782, dining-room attendant, DOT 311-677-018, 1991 WL 672696,

14

and hand packager, DOT 920.587-018, 1991 WL 687916.

15

the supplemental hearing on June 2, 2015, the VE found the hand-

16

packager job no longer applicable but added that the hypothetical

17

person would be able to perform the job of floor waxer, DOT

18

381.687-034, 1991 WL 673262.

(AR 62.)

At

(AR 98-99.)

19

The ALJ presented a second hypothetical, adding to the first

20

the limitation that “if [the hypothetical] person were distracted

21

and unable to concentrate or focus [he] would require constant

22

reminders, even at a very unskilled level of work, and those

23

reminders were daily in nature or every day and continuing

24

through the day.”

25

individual would be precluded from the jobs listed in response to

26

the first hypothetical and all other jobs.

27
28

(AR 62.)

The VE testified that such an

(Id.)

In determining whether Plaintiff had an impairment or
combination of impairments that met or equaled any of the
37

1

Listings, the ALJ found that under the “paragraph B” criteria of

2

§ 416.920a(e)(2), used to evaluate the severity of mental

3

impairments at steps two and three of the sequential evaluation

4

process, Plaintiff had “moderate difficulties in maintaining

5

concentration, persistence, or pace.”

6

explicitly stated, however, that “[t]he limitations identified in

7

the ‘paragraph B’ . . . criteria are not a [RFC] assessment.”

8

(Id.)

9
10
11

3.

(AR 27.)

The ALJ

Analysis

Plaintiff’s RFC included a full range of work at all
exertional levels but with nonexertional limitations:

12

nonpublic;

13

proximity to others but no tasks that require teamwork[;]

14

cannot perform detailed tasks[;] cannot perform work

15

where he would be responsible for the health and safety

16

of others or require hypervigilance; should have verbal

17

instructions rather than written instructions; should

18

work in a quiet environment; cannot be required to

19

communicate with others unless he can look directly at

20

them with minimal to no background noise; should not be

21

exposed to concentrated respiratory irritants.

22
23

noncomplex

routine

tasks;

can

work

in

(AR 28.)
The ALJ properly consulted the VE to determine whether any

24

available jobs would accommodate Plaintiff’s specific

25

limitations.

26

(noting that when individual’s exertional RFC does not coincide

27

with any of defined ranges of work but instead includes

28

“considerably greater restriction(s),” VE testimony can clarify

See SSR 83-12, 1983 WL 31253, at *2 (Jan. 1, 1983)

38

1

extent of erosion of occupational base); Moore v. Apfel, 216 F.3d

2

864, 870 (9th Cir. 2000); Thomas, 278 F.3d at 960.

3

argues that the hypothetical posed by the ALJ failed to account

4

for the “moderate difficulties in concentration, persistence, or

5

pace” that “[t]he ALJ found” Plaintiff to have.

6

(citing AR 27).)

7

Social Security Administration, 343 F. App’x 211, 212 (9th Cir.

8

2009), which held that an “ALJ’s initial hypothetical question to

9

[a] vocational expert” was in error because it “referenced only

Plaintiff

(J. Stip. at 24

Plaintiff relies on Brink v. Commissioner

10

‘simple, repetitive work,’ without including limitations on

11

concentration, persistence or pace.”

12

also Lubin v. Comm’r of Soc. Sec. Admin., 507 F. App’x 709, 712

13

(9th Cir. 2013) (holding that ALJ erred because limiting claimant

14

to “one to three step tasks” didn’t capture “moderate

15

difficulties in maintaining concentration, persistence, or pace,”

16

which “should have [been] included” in hypothetical question to

17

VE).

18

(See J. Stip. at 24); see

In Brink, an ALJ accepted medical evidence that a claimant

19

had “moderate difficulty maintaining concentration, persistence,

20

or pace” but failed to include such limitations in his

21

hypothetical question to the VE, which referenced only “simple,

22

repetitive work.”

23

similarly erred by not including his finding of “moderate

24

difficulties in maintaining concentration, persistence, or pace”

25

in his RFC assessment or hypothetical to the VE because his

26

limitation to “one to three step tasks” was insufficient.

27

App’x at 712.

28

that an ALJ’s RFC assessment should be based only on limitations

343 F. App’x at 212.

The ALJ in Lubin

507 F.

Those cases, however, do not implicate the rule

39

1

supported by the record.

See Bayliss, 427 F.3d at 1217; Batson,

2

359 F.3d at 1197; see also Stubbs-Danielson v. Astrue, 539 F.3d

3

1169, 1174 (9th Cir. 2008) (“[A]n ALJ’s [RFC] assessment of a

4

claimant adequately captures restrictions related to

5

concentration, persistence, or pace where the assessment is

6

consistent with restrictions identified in the medical

7

testimony.”).

8

in assessing Plaintiff’s RFC.

9

Brink and Lubin, the medical evidence here did not establish that

As discussed in detail above, the ALJ did not err
As the ALJ found, and unlike in

10

Plaintiff suffered from moderate mental limitations, and the ALJ

11

properly discounted Plaintiff’s allegations of more restrictive

12

limitations in concentration and pace because they were

13

unsupported by the medical record.

14

required to include in the RFC limitations that were permissibly

15

discounted, she did not err in her hypothetical to the VE.

16

Batson, 359 F.3d at 1197 (ALJ not required to incorporate into

17

RFC those findings from treating-physician opinions that were

18

“permissibly discounted”); see also Yelovich v. Colvin, 532 F.

19

App’x 700, 702 (9th Cir. 2013) (“Because the RFC was not

20

defective, the hypothetical question posed to the VE was

21

proper.”).

22

Because the ALJ was not

See

To the extent Plaintiff contends that the ALJ’s step-three

23

finding of some moderate mental limitations should have been

24

incorporated into the hypothetical question to the VE (J. Stip.

25

at 24), the argument is unavailing.

26

court opinions[, in following Brink and Lubin, have found] error

27

when the ALJ finds that a claimant has moderate limitation in

28

maintaining concentration, persistence, or pace at step two [or
40

Some “unpublished district

1

three], but attempts to account for this in the RFC only by

2

limiting the claimant to simple, repetitive work.”

3

Berryhill, __ F. Supp. 3d __, No. 1:16-cv-0019-HRH, 2017 WL

4

3018068, at *5 (D. Alaska July 13, 2017) (second alteration in

5

original) (citations omitted).

6

claimant has “moderate difficulties in maintaining concentration,

7

persistence, or pace” need not be included in an ALJ’s RFC

8

assessment or hypothetical question to a VE when such limitations

9

are unsupported by substantial evidence.

Jahnsen v.

But a step-three finding that a

See Wilder v. Comm’r of

10

Soc. Sec. Admin., 545 F. App’x 638, 639 (9th Cir. 2013) (citing

11

Stubbs-Danielson, 539 F.3d at 1174).

12

identified in step 3 . . . are ‘not an RFC assessment but are

13

used to rate the severity of mental impairment(s) at steps 2 and

14

3.’”

15

(emphasis in original) (quoting SSR 96-8p, 1996 WL 374184, at *4

16

(July 2, 1996)); see also Hoopai v. Astrue, 499 F.3d 1071, 1076

17

(9th Cir. 2007) (“The step two and step five determinations

18

require different levels of severity of limitations such that the

19

satisfaction of the requirements at step two does not

20

automatically lead to the conclusion that the claimant has

21

satisfied the requirements at step five.”).

22

limitations in concentration, persistence, or pace found at steps

23

two and three do “not automatically translate to a RFC finding

24

with these limitations.”

25

2016 WL 7480245, at *7 (C.D. Cal. Dec. 29, 2016) (citing Phillips

26

v. Colvin, 61 F. Supp. 3d 925, 940 (N.D. Cal. 2014)).

27
28

Indeed, “limitations

Israel v. Astrue, 494 F. App’x 794, 796 (9th Cir. 2012)

Thus, moderate

Williams v. Colvin, No. CV 16-2433 JC,

Accordingly, the ALJ here did not err.

She specifically

noted that the step-three limitations in concentration,
41

1

persistence, and pace “[were] not a [RFC] assessment” and “[t]he

2

mental [RFC] . . . used at steps 4 and 5 of the sequential

3

evaluation process require[d] a more detailed assessment.”

4

27.)

5

extent that they were supported by the medical record, assessing

6

him with limitations that included “noncomplex,” “routine,” and

7

“[non-]detailed tasks.”

8

consistent with treatment notes documenting Plaintiff’s “average

9

intelligence” (AR 522), “good” memory (see, e.g., AR 568, 570,

(AR

She accounted for Plaintiff’s mental limitations to the

(AR 28.)

Such limitations were

10

573-74, 576), “good” insight and judgment (see, e.g., id.), and

11

medicinally controlled condition (see, e.g., AR 528, 540-41, 559,

12

562-63, 567-68, 570, 572, 576).

13

at 1174; Sabin v. Astrue, 337 F. App’x 617, 621 (9th Cir. 2009)

14

(“The RFC finding is consistent with these reports and adequately

15

captures the tasks [claimant] can do despite her concentration,

16

persistence, or pace restrictions.”)

17

record did not substantiate greater, let alone moderate,

18

limitations.

19

See Stubbs-Danielson, 539 F.3d

And as discussed above, the

Thus, the RFC was supported by substantial evidence and

20

adequately captured Plaintiff’s mental limitations, and “the ALJ

21

committed no reversible error in failing to specifically include

22

[P]laintiff’s deficiencies in [concentration, persistence, or

23

pace] in either her RFC assessment . . . or her subsequent

24

hypothetical to the [VE].”

25

01970-MAN, 2011 WL 5295059, at *5 (C.D. Cal. Nov. 2, 2011); see

26

also Rhodus v. Berryhill, No. CV-16-00238-TUC-LCK, 2017 WL

27

4150445, at *4-5 (D. Ariz. Sept. 19, 2017) (upholding RFC

28

assessment that was “consistent with the [medical record],

See Maidlow v. Astrue, No. EDCV 10-

42

1

regardless of the paragraph B functional assessment”); Duncan v.

2

Astrue, No. C12-546-MJP-JPD, 2012 WL 5877510, at *5-6 (W.D. Wash.

3

Nov. 1, 2012) (upholding RFC assessment and VE hypothetical that

4

limited claimant to “simple and some complex instructions”

5

despite step-three finding that he had “mild to moderate”

6

limitations in concentration, persistence, and pace), accepted by

7

2012 WL 5877495 (W.D. Wash. Nov. 19, 2012).

8
9

Thus, substantial evidence supports the ALJ’s finding that
Plaintiff could perform the jobs identified by the VE.

The ALJ

10

was entitled to rely on the VE’s informed, specific, and

11

uncontradicted explanation that consistent with his RFC,

12

Plaintiff was able to work as a dining-room attendant, hospital

13

cleaner, and floor waxer.

14

Accordingly, remand is not warranted on this basis.

15

VI.

16

See Bayliss, 427 F.3d at 1218.

CONCLUSION
Consistent with the foregoing and under sentence four of 42

17

U.S.C. § 405(g),18 IT IS ORDERED that judgment be entered

18

AFFIRMING the Commissioner’s decision, DENYING Plaintiff’s

19

request for remand, and DISMISSING this action with prejudice.

20
21

DATED: October 24, 2017

22

______________________________
JEAN ROSENBLUTH
U.S. Magistrate Judge

23
24
25
26
27
28

18

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.”
43