Marc Abbink v. Carolyn W. Colvin

Filing 22

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

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 MARC ABBINK, Plaintiff, 12 13 v. 14 15 NANCY A. BERRYHILL, Acting Commissioner of Social Security, 16 Defendant. ) Case No. SACV 16-0324-JPR ) ) ) MEMORANDUM DECISION AND ORDER ) AFFIRMING COMMISSIONER ) ) ) ) ) ) ) 17 18 19 I. PROCEEDINGS Plaintiff seeks review of the Commissioner’s final decision 20 denying his applications for Social Security disability insurance 21 benefits (“DIB”) and supplemental security income benefits 22 (“SSI”). 23 undersigned U.S. Magistrate Judge under 28 U.S.C. § 636(c). 24 matter is before the Court on the parties’ Joint Stipulation, 25 filed November 3, 2016, which the Court has taken under 26 submission without oral argument. 27 the Commissioner’s decision is affirmed. The parties consented to the jurisdiction of the 28 1 The For the reasons stated below, 1 II. 2 BACKGROUND Plaintiff was born in 1962. (Administrative Record (“AR”) 3 168.) 4 an architectural draftsman, general laborer, and tutor (AR 220). 5 On January 17, 2013, Plaintiff filed an application for DIB 6 and on January 22 he filed one for SSI, alleging in each that he 7 had been unable to work since December 30, 2012 (AR 168, 170), 8 because of a head injury, physical limitations, anxiety, 9 arthritis, and diabetes (AR 218). He completed two years of college (AR 219) and worked as After his applications were 10 denied initially and on reconsideration (AR 73-74, 105-06), he 11 requested a hearing before an Administrative Law Judge (AR 127). 12 A hearing was held on September 21, 2015, at which Plaintiff, who 13 was represented by counsel, testified, as did a vocational 14 expert. 15 2015, the ALJ found Plaintiff not disabled. 16 Plaintiff requested review from the Appeals Council, and on 17 January 28, 2016, it denied review. 18 followed. 19 III. STANDARD OF REVIEW 20 (AR 33-48.) In a written decision issued October 27, (AR 16-32.) (AR 1-6.) This action Under 42 U.S.C. § 405(g), a district court may review the 21 Commissioner’s decision to deny benefits. 22 decision should be upheld if they are free of legal error and 23 supported by substantial evidence based on the record as a whole. 24 See id.; Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra 25 v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). 26 evidence means such evidence as a reasonable person might accept 27 as adequate to support a conclusion. 28 401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 2 The ALJ’s findings and Substantial Richardson, 402 U.S. at 1 It is more than a scintilla but less than a preponderance. 2 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 3 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). 4 substantial evidence supports a finding, the reviewing court 5 “must review the administrative record as a whole, weighing both 6 the evidence that supports and the evidence that detracts from 7 the Commissioner’s conclusion.” 8 720 (9th Cir. 1996). 9 either affirming or reversing,” the reviewing court “may not To determine whether Reddick v. Chater, 157 F.3d 715, “If the evidence can reasonably support 10 substitute its judgment” for the Commissioner’s. 11 IV. Id. at 720-21. THE EVALUATION OF DISABILITY 12 People are “disabled” for purposes of receiving Social 13 Security benefits if they are unable to engage in any substantial 14 gainful activity owing to a physical or mental impairment that is 15 expected to result in death or has lasted, or is expected to 16 last, for a continuous period of at least 12 months. 17 § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 18 1992). 42 U.S.C. 19 A. The Five-Step Evaluation Process 20 The ALJ follows a five-step sequential evaluation process to 21 assess whether a claimant is disabled. 22 §§ 404.1520(a)(4), 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 23 828 n.5 (9th Cir. 1995) (as amended Apr. 9, 1996). 24 step, the Commissioner must determine whether the claimant is 25 currently engaged in substantial gainful activity; if so, the 26 claimant is not disabled and the claim must be denied. 27 §§ 404.1520(a)(4)(I), 416.920(a)(4)(I). 28 20 C.F.R. In the first If the claimant is not engaged in substantial gainful 3 1 activity, the second step requires the Commissioner to determine 2 whether the claimant has a “severe” impairment or combination of 3 impairments significantly limiting his ability to do basic work 4 activities; if not, the claimant is not disabled and his claim 5 must be denied. 6 §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a “severe” impairment or combination of 7 impairments, the third step requires the Commissioner to 8 determine whether the impairment or combination of impairments 9 meets or equals an impairment in the Listing of Impairments set 10 forth at 20 C.F.R. part 404, subpart P, appendix 1; if so, 11 disability is conclusively presumed. 12 416.920(a)(4)(iii). §§ 404.1520(a)(4)(iii), 13 If the claimant’s impairment or combination of impairments 14 does not meet or equal an impairment in the Listing, the fourth 15 step requires the Commissioner to determine whether the claimant 16 has sufficient residual functional capacity (“RFC”)1 to perform 17 his past work; if so, he is not disabled and the claim must be 18 denied. 19 has the burden of proving he is unable to perform past relevant 20 work. 21 burden, a prima facie case of disability is established. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). Drouin, 966 F.2d at 1257. The claimant If the claimant meets that Id. 22 If that happens or if the claimant has no past relevant 23 work, the Commissioner then bears the burden of establishing that 24 the claimant is not disabled because he can perform other 25 substantial gainful work available in the national economy. 26 27 28 1 RFC is what a claimant can do despite existing exertional and nonexertional limitations. §§ 404.1545, 416.945; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 4 1 §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Drouin, 966 F.2d at 1257. 2 That determination comprises the fifth and final step in the 3 sequential analysis. 4 Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); 5 B. 6 At step one, the ALJ found that Plaintiff had not engaged in 7 substantial gainful activity since December 30, 2012, the alleged 8 onset date. 9 had severe impairments of “status post remote motorcycle accident The ALJ’s Application of the Five-Step Process (AR 21.) At step two, he concluded that Plaintiff 10 in 1980; status post remote cardiac arrest; status post fracture 11 and reconstructive surgery of right tibia; and anxiety 12 disorders.” 13 impairments did not meet or equal a listing. 14 (Id.) At step three, he determined that Plaintiff’s (AR 23.) At step four, the ALJ found that Plaintiff had the RFC to 15 perform medium work, was able to lift and carry 25 pounds 16 frequently and 50 pounds occasionally, could sit and stand about 17 six hours in an eight-hour workday, and could perform “no greater 18 than simple routine tasks” with “no more than occasional contact 19 with the public and coworkers.” 20 (AR 24.) Based on the VE’s testimony, the ALJ concluded that 21 Plaintiff could not perform his past relevant work. (AR 26.) At 22 step five, he relied on the VE’s testimony to find that given 23 Plaintiff’s RFC for medium work “impeded by additional 24 limitations,” he could perform two “representative” medium, 25 unskilled occupations in the national economy: (1) “dishwasher,”2 26 27 28 2 Although the VE and the ALJ both used the job title “dishwasher,” the DOT number provided by the VE and repeated by the ALJ corresponds to the job of “kitchen helper,” which is a medium, unskilled position. 5 1 DOT 318.687-010, 1991 WL 672755, and (2) “hand packager,” DOT 2 920.587-018, 1991 WL 687916. 3 Plaintiff not disabled. 4 V. (AR 26-27.) Accordingly, he found (AR 27.) DISCUSSION 5 Plaintiff argues that the ALJ erred in (1) considering and 6 evaluating the opinion of Dr. Jason B. Miller and (2) assessing 7 Plaintiff’s credibility. (See J. Stip. at 3.) 8 A. 9 Plaintiff contends that the ALJ failed to properly consider The ALJ Properly Assessed the Medical Evidence 10 and evaluate Dr. Miller’s medical opinion, including that 11 Plaintiff would be “off task 30% or more of the time.” 12 3-7.) 13 on this ground. 14 (Id. at For the reasons discussed below, remand is not warranted 1. Applicable law 15 Three types of physicians may offer opinions in Social 16 Security cases: (1) those who directly treated the plaintiff, (2) 17 those who examined but did not treat the plaintiff, and (3) those 18 who did neither. 19 opinion is generally entitled to more weight than an examining 20 physician’s, and an examining physician’s opinion is generally 21 entitled to more weight than a nonexamining physician’s. Lester, 81 F.3d at 830. A treating physician’s Id. 22 This is so because treating physicians are employed to cure 23 and have a greater opportunity to know and observe the claimant. 24 Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). 25 treating physician’s opinion is well supported by medically 26 acceptable clinical and laboratory diagnostic techniques and is 27 not inconsistent with the other substantial evidence in the 28 record, it should be given controlling weight. 6 If a 1 §§ 404.1527(c)(2), 416.927(c)(2). 2 opinion is not given controlling weight, its weight is determined 3 by length of the treatment relationship, frequency of 4 examination, nature and extent of the treatment relationship, 5 amount of evidence supporting the opinion, consistency with the 6 record as a whole, the doctor’s area of specialization, and other 7 factors. 8 9 If a treating physician’s §§ 404.1527(c)(2)-(6), 416.927(c)(2)-(6). When a treating physician’s opinion is not contradicted by other evidence in the record, it may be rejected only for “clear 10 and convincing” reasons. 11 Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) (citing Lester, 81 12 F.3d at 830-31). 13 only “specific and legitimate reasons” for discounting it. 14 (citing Lester, 81 F.3d at 830-31). 15 not accept the opinion of any physician, including a treating 16 physician, if that opinion is brief, conclusory, and inadequately 17 supported by clinical findings.” 18 947, 957 (9th Cir. 2002); accord Batson v. Comm’r of Soc. Sec. 19 Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). 20 21 2. See Carmickle v. Comm’r, Soc. Sec. When it is contradicted, the ALJ must provide Id. Furthermore, “[t]he ALJ need Thomas v. Barnhart, 278 F.3d Relevant background Plaintiff severely injured his head, brain stem, and tibia 22 in a motorcycle accident in 1980. (AR 261.) From 2006 to 2010, 23 he was evaluated and treated by Dr. James S. Sands. 24 99, 449-54.) 25 depression. 26 complained of an earlier anxiety attack but was noted to be 27 “doing well on meds.” 28 was referred to Dr. Aimee David for treatment and counseling. (See AR 368- In 2007, Dr. Sands diagnosed anxiety and (AR 449, 451.) On July 22, 2010, Plaintiff (AR 368.) On January 1, 2013, Plaintiff 7 1 (AR 410.) In 2013, Dr. David noted that Plaintiff complained of 2 stress and anxiety, wanted to finish an architect degree, was 3 completing training classes, and was taking Paxil.3 4 On February 18, 2013, Plaintiff reported to a doctor that he 5 “desire[d] to be placed on disability” and noted that he had 6 stopped taking his medications. 7 reported to Dr. David that although he felt “overwhelmed,” his 8 anxiety was “not bad” and he was a “pretty happy guy.” (AR 408.) (AR 402-04.) On April 8, 2013, he (AR 570.) 9 On May 23, 2013, state consulting psychologist Sonia G. 10 Martin completed a psychological examination and evaluation. 11 426-30.) 12 stem injury in 1980 and that he was taking Paxil, metformin, and 13 simvastatin.4 14 and attention span, “average” intellectual functioning, and 15 “intact” insight and judgment. 16 Plaintiff with anxiety disorder and assigned him a global 17 assessment of functioning (“GAF”) score of 70.5 (AR Dr. Martin noted Plaintiff’s history of head and brain- (AR 427.) Plaintiff showed “good” concentration (AR 428.) Dr. Martin diagnosed (AR 429.) 18 19 20 3 Paxil is a selective serotonin reuptake inhibitor used to treat depression and other conditions. Paroxetine, MedlinePlus, (last updated Nov. 15, 2014). 21 4 22 23 24 25 26 27 28 Metformin is used to treat diabetes. Metformin, MedlinePlus, (last updated Apr. 15, 2016). Simvastatin is used to reduce cholesterol. Simvastatin, MedlinePlus, druginfo/meds/a692030.html (last updated Sept. 15, 2014). 5 GAF scores assess a person’s overall psychological functioning on a scale of 1 to 100. See Diagnostic and Statistical Manual of Mental Disorders 32 (revised 4th ed. 2000). A GAF score of 61 to 70 indicates “some mild symptoms (e.g., depressed mood and mild insomnia) OR some difficulty in social, occupational, or school functioning . . . but generally functioning pretty well, has some meaningful interpersonal 8 1 Plaintiff was “unimpaired” in his ability to follow simple — and 2 complex or detailed — instructions; maintain adequate pace or 3 persistence to perform one- or two-step simple repetitive tasks 4 or complex tasks; maintain adequate attention or concentration; 5 adapt to changes in job routine; and interact appropriately with 6 coworkers, supervisors, and the public on a regular basis. 7 430). 8 stress of a routine workday and adapt to the changes, hazards, 9 and stressors in a workplace setting. (AR He had mild impairment in his ability to withstand the (Id.) His prognosis was 10 “good with comprehensive mental health services to address his 11 anxiety.” 12 (Id.) On June 18, 2013, state-agency medical consultant Dr. Dan 13 Funkenstein6 completed the psychiatric portion of the disability 14 determination for Plaintiff’s SSI and DIB claims. 15 72.) 16 limitations” in his mental functioning (AR 54, 66); no 17 restrictions in his activities of daily living; no difficulty 18 maintaining social functioning; and “mild” difficulty maintaining 19 concentration, persistence, or pace (AR 55, 67). 20 2013, state-agency medical consultant Dr. Richard Kaspar7 (AR 49-60, 61- Dr. Funkenstein found that Plaintiff had “mild to no On December 22, 21 22 23 24 25 26 relationships.” DSM-IV 34. GAF scores have been excluded from the latest edition of DSM because of concerns about their reliability and lack of clarity, however. See DSM-V 15-16 (5th ed. 2013). 6 Dr. Funkenstein’s signature line includes a medicalconsultant code of “20,” indicating “[n]eurology” (AR 54); see Program Operations Manual System (POMS) DI 24501.004, U.S. Soc. Sec. Admin. (May 5, 2015), 0424501004. 27 7 28 Dr. Kaspar’s signature line includes a medical-consultant code of “38,” indicating “[p]sychology” (AR 82); see POMS DI 9 1 completed the psychiatric portion of the disability determination 2 for Plaintiff’s SSI and DIB claims on reconsideration. 3 89, 90-104.) 4 (AR 81-82, 96-97.) 5 (AR 75- Dr. Kaspar confirmed Dr. Funkenstein’s assessment. Plaintiff reported symptoms of anxiety to various healthcare 6 professionals in 2014; his symptoms waxed and waned. 7 AR 512 (Sept. 4, 2014: “I’m so anxious. 8 (Sept. 11, 2014: feeling “much better . . . less anxious and on 9 edge”; reported exercising and interacting socially with others), (See, e.g., It’s debilitating”), 510 10 495 (Oct. 10, 2014: reporting symptoms of anxiety).) 11 6, 2014, Plaintiff stated that he “just want[ed] to kick back and 12 be happy” and was “[h]oping to get SSI” because he “does not feel 13 able to look for or maintain a new job,” but he was “heading out 14 after [the] appointment to help a friend paint her kitchen” and 15 had slept “12 straight hours after doing physical labor with [a] 16 friend.” 17 his ex-wife had recently died and that he “can’t control [his] 18 emotions.” 19 normal given [the] situation”8 and that he otherwise reported 20 “good sleep and more stabilization of his mood overall with the (AR 493.) On November On December 4, 2014, Plaintiff reported that (AR 491.) Dr. David noted that his “grief appear[ed] 21 22 23 24 25 26 27 28 24501.004, U.S. Soc. Sec. Admin. (May 5, 2015), https:// 8 Indeed, Plaintiff’s anxiety apparently increased in response to normal stressors, such as visits with his parents. (See, e.g., AR 513 (Sept. 4, 2014: Dr. David noting “[v]isit with father triggered past memories and poor emotional presence and support from father”), 704 (June 18, 2015: Dr. David noting Plaintiff’s “increased irritability” when his mother was visiting).) At other times his symptoms were well controlled. 10 1 2 use of citalopram.”9 (Id.) On November 3, 2014, Plaintiff was evaluated by therapist 3 Tanya White at a behavioral health center. 4 Plaintiff was apparently advised to go to the center by his 5 attorney, following the initial denials of his SSI and DIB 6 claims. 7 symptoms as “moderate[ly]” severe mood, anxiety, attention, and 8 conduct problems. 9 atorvastatin,10 citalopram, and metformin; he found all three (AR 2384.) (See AR 2383-405.) White described Plaintiff’s self-reported (AR 2384-85.) Plaintiff was taking 10 drugs “helpful.” 11 was alert, oriented, and cooperative and had intact concentration 12 and appropriate attention and judgment. 13 diagnosed “Depressive Disorder” and a “moderate” occupational 14 impairment, noting that Plaintiff had “impulsively said 15 inappropriate statements to his employers that has led to his 16 being fired from multiple jobs.” 17 significant impairment or “probability of deterioration” in “an 18 important area of life functioning.” 19 that Plaintiff had been working part time for the past three 20 years as an extra in movies. 21 eight jobs since 2002 but “was not fired for his behavior at 22 work” but because “the economy was changing.” 23 that Plaintiff “does not meet criteria for [behavioral health] (AR 2401.) In a mental-status exam, Plaintiff (AR 2394.) (AR 2395-96.) (AR 2397.) (AR 2403.) White She found no White noted He had been fired from (Id.) White found 24 25 26 27 28 9 Citalopram is used to treat depression and social phobia. Citalopram, MedlinePlus, a699001.html (last updated Nov. 15, 2014). 10 Atorvastatin is used to reduce the risk of heart attack and stroke. Atorvastatin, MedlinePlus, druginfo/meds/a600045.html (last updated Aug. 15, 2015). 11 1 services” and discharged him because of “No Medical Necessity.” 2 (AR 2390.) 3 On December 18, 2014, Plaintiff remarked to Dr. David that 4 he was “feeling good” and “happier now than [he] ever was 5 before.” 6 psychologist who apparently first saw Plaintiff on December 19, 7 2014, interviewed him and administered a series of 8 neuropsychological tests. 9 Miller completed a “Neuropsychological Assessment” form (AR 656- (AR 489.) On January 7, 2015, Dr. Miller, a clinical (AR 656, 667.) On January 26, Dr. 10 65) and a “Medical Source Statement of Ability to do Work Related 11 Activities” (AR 667-69), both apparently based on the January 7 12 visit. 13 Plaintiff was friendly, cooperative, and attentive during 14 the testing. 15 articulation defect and mild disinhibition, Plaintiff showed no 16 negative cognitive, language, psychotic, emotional, or physical 17 symptoms. 18 “sometimes impulsive, angry, and resentful,” and “his ability to 19 concentrate and attend” were likely to be “significantly 20 compromised” because he was “plagued by worry.” 21 “memory, language, calculation, construction, sensorimotor 22 skills, learning, attention, adaptive behavior and social 23 cognition remained within normal limits, with only relative 24 weaknesses in verbal memory and visual-motor speed.” 25 He may “sometimes evidence confusion, distractibility, and 26 difficulty concentrating.” 27 being friendly . . . to hostility, poorly controlled anger, and 28 harsh self-criticism.” (AR 657.) (AR 657-58.) Other than a moderate speech- Dr. Miller noted that Plaintiff was (Id.) (Id.) (AR 659.) His (AR 664.) He “can rapidly shift from Dr. Miller opined that as a result 12 1 of his brain injury, “changes in routine, unexpected events, and 2 contradictory information” were likely to cause Plaintiff 3 “untoward stress and subsequent decompensation.” 4 Miller opined that mental-health services would be “fairly 5 challenging” and “difficult” for Plaintiff, and thus he did not 6 recommend any. 7 “pursue disability benefits as an alternative to employment.” 8 (Id.) 9 (AR 665.) (Id.) Dr. Instead, he recommended that Plaintiff In the check-box “Medical Source Statement,” Dr. Miller 10 noted that Plaintiff had no limitations in most areas of mental 11 ability, including his ability to understand, remember, and carry 12 out short and simple, as well as detailed, instructions; maintain 13 attention and concentration for extended periods of time; perform 14 activities within a schedule, maintain regular attendance, and be 15 punctual; sustain an ordinary routine without special 16 supervision; make simple work-related decisions; ask simple 17 questions or request assistance; maintain socially appropriate 18 behavior and adhere to basic standards of neatness and 19 cleanliness; be aware of normal hazards and take appropriate 20 precautions; travel to unfamiliar places or use public 21 transportation; and set realistic goals or make plans 22 independently of others. 23 restrictions of daily living or difficulty maintaining 24 concentration, persistence, and pace. 25 performance would be precluded for 10 percent of a normal eight- 26 hour workday by his limitations in responding appropriately to 27 changes in a work setting. 28 precluded for more than 15 percent of an eight-hour workday by (AR 667-68.) (Id.) 13 He also had no (AR 668.) Plaintiff’s His performance would be 1 his limitations in working in coordination with, or in proximity 2 to, others without being distracted by them; completing a normal 3 workday and workweek without interruptions from psychologically 4 based symptoms and performing at a consistent pace without an 5 unreasonable number and length of rest periods; interacting 6 appropriately with the general public; accepting instructions and 7 responding appropriately to criticism from supervisors; and 8 getting along with coworkers or peers without distracting them or 9 exhibiting behavioral extremes. (AR 667-68.) His difficulty 10 maintaining social functioning would also result in a 15 percent 11 preclusion of performance. 12 that Plaintiff would “never” be absent from work because of his 13 impairments, but they would cause him to be “off task” more than 14 30 percent of the time. (AR 668.) (AR 669.) Dr. Miller anticipated Dr. Miller wrote, 15 [Plaintiff] has a history of aggressive behavior stemming 16 from a traumatic brain injury. 17 job terminations, the dissolution of his marriage, & 18 physical confrontation with roommates. This occurs under 19 perceived slights & under duress. 20 legal consequences for his behavior is high. 21 22 This has led to numerous The potential for (Id.) In 2015, Plaintiff reported symptoms of anxiety that were 23 generally under control. (See, e.g., AR 799 (Jan. 2015: 24 “[r]eports explosive episodes about 1x/month” but “[m]ood appears 25 stable,” “[a]nxiety appears under control”), 748 (Feb. 2015: 26 “[m]ood and anxiety appear stable and controlled,” he 27 “[c]ontinues to do part-time work for film industry,” “began 28 tutoring auto CAD (computer animated design),” and “[f]eels much 14 1 more relaxed and peaceful”), 746 (Mar. 2015: “goes from joking 2 and laughter to tearfulness,” but anxiety caused by “continued 3 resentment” of father and “does not interfere with daily 4 functioning or sleep,” and he “[c]ontinues to get out daily for 5 walks, coffee, and meals”), 741 (Apr. 2015: reported anxiety but 6 “coping relatively well” and “[e]ngaging with others well in 7 brief encounters”), 736 (May 2015: reported emotional instability 8 caused by “recent stressor” of apparently finding out former 9 girlfriend was diagnosed with cancer, but “anxiety well under 10 control”).) 11 AR 719, 1684.) 12 “increased irritability after . . . surgery, altered routine, 13 presence of mother for over 1 month,” but he was “coping well 14 with temporary change in functional status and routine,” was 15 “us[ing] therapy well,” and reported “feel[ing] really good.” 16 (AR 704.) 17 discontinuing citalopram because of “sexual side effects,” but 18 she recommended that he continue using it. 19 citalopram “has been working well” and that he had exhibited 20 “[d]ecreased anxiety since starting [it]” from when she first saw 21 him “several years ago.” 22 Plaintiff had open heart surgery in May 2015. (See In June 2015, Dr. David noted that Plaintiff had Dr. David noted that Plaintiff was interested in 3. (Id.) She noted that (Id.) Analysis The ALJ found that Plaintiff could perform medium work but 23 24 was limited to “no greater than simple routine tasks” and “no 25 more than occasional contact with the public and coworkers.” 26 24.) 27 the opinion of Dr. Miller. 28 Miller’s “more restrictive limitations,” such as his opinion that (AR In so finding, the ALJ considered and gave “some weight” to (Id.) 15 He gave “no weight” to Dr. 1 Plaintiff would be “off task 30% or more.” 2 Miller’s opinion was contradicted by other medical opinions in 3 the record, the ALJ had to give only specific and legitimate 4 reasons for discounting all or part of it. 5 F.3d at 1164. 6 (Id.) Because Dr. See Carmickle, 533 As discussed below, the ALJ did so. As an initial matter, it is not clear that Dr. Miller was 7 among Plaintiff’s treating physicians. 8 Miller apparently first saw Plaintiff on December 19, 2014 (AR 9 667), interviewed him and administered a series of tests on The record shows that Dr. 10 January 7, 2015 (AR 656), and completed two reports (AR 665, 11 669). 12 from December 19, 2014. 13 be based only on Plaintiff’s January 7, 2015 visit. 14 69.) 15 however, the length of the treatment relationship is relevant in 16 assessing whether the ALJ gave specific and legitimate reasons 17 for rejecting his opinion to the extent he did so, as the ALJ 18 correctly found (AR 24). 19 The record does not contain any notes or treatment records Indeed, Dr. Miller’s reports appear to (See AR 656- Even if the Court assumes Dr. Miller was a treating doctor, See §§ 404.1527(c), 416.927(c). To the extent the ALJ rejected portions of Dr. Miller’s 20 opinion, he gave legally sufficient reasons for doing so. 21 the ALJ gave “no weight” to Dr. Miller’s “more restrictive 22 limitations,” such as his opinion that Plaintiff would be “off 23 task 30% or more,” because they were inconsistent with the 24 medical record and “not well supported” by diagnostic evidence. 25 (AR 24.) 26 30% or more” is inconsistent with the other findings in Dr. 27 Miller’s reports, including that he would not be significantly 28 limited in performing sustained work on a mental basis. First, Indeed, the opinion that Plaintiff would “be off task 16 (AR 24, 1 664, 667-68.) After administering a series of psychological 2 tests, Dr. Miller found that Plaintiff’s attention was within 3 normal limits (AR 664) and had no limitations in his ability to 4 maintain attention and concentration for extended periods of 5 time; perform activities within a schedule, maintain regular 6 attendance, and be punctual within customary tolerances; and 7 sustain an ordinary routine without special supervision (AR 667- 8 68). 9 maintaining concentration, persistence, and pace. He had no restrictions of daily living or difficulty (AR 668.) 10 These findings are inconsistent with an opinion that Plaintiff 11 would be off task for more than 30 percent of the time in a work 12 setting. 13 The other medical evidence in the record does not support an 14 opinion that Plaintiff would often be off task in a workplace 15 setting. 16 depression, other than Dr. Miller, no doctor or clinician opined 17 that he would be significantly impaired in his ability to be on 18 task at work. 19 “good” concentration and attention span (AR 428) and was 20 “unimpaired” in his ability to maintain adequate pace or 21 persistence to perform simple and complex tasks, maintain 22 adequate attention and concentration, adapt to changes in job 23 routine, and interact appropriately with coworkers, supervisors, 24 and the public on a regular basis (AR 430). 25 Funkenstein and Kaspar also determined that Plaintiff had only 26 mild difficulty maintaining concentration, persistence, or pace. 27 (AR 55, 67.) 28 concentration and appropriate attention and judgment. Although Plaintiff reported symptoms of anxiety and Indeed, Dr. Martin found that Plaintiff showed State-agency doctors Therapist White found that Plaintiff had intact 17 (AR 2394.) 1 And Dr. David, who treated Plaintiff from at least 2013 to 2015, 2 did not mention any limitation in his ability to remain on task. 3 Inconsistency with the medical record and lack of diagnostic 4 evidence are permissible reasons for the ALJ to have given 5 portions of Dr. Miller’s opinion little or no weight. 6 Batson, 359 F.3d at 1195 (ALJ may discredit treating physicians’ 7 opinions that are “unsupported by the record as a whole”); 8 Thomas, 278 F.3d at 957 (ALJ need not accept treating-physician 9 opinion that is “inadequately supported by clinical findings”); See 10 cf. §§ 404.1527(c)(3), 416.927(c)(3) (“The more a medical source 11 presents relevant evidence to support an opinion, particularly 12 medical signs and laboratory findings, the more weight we will 13 give that medical opinion.”). 14 The ALJ found the opinion of Dr. Martin “fully credible” in 15 “showing [Plaintiff] is not significantly limited in performing 16 sustained work on a mental basis,” in part because it was 17 “buttressed by a GAF score of 70.” 18 examined Plaintiff, her opinion alone can be substantial evidence 19 for the ALJ to rely on. 20 1149 (9th Cir. 2001); Andrews v. Shalala, 53 F.3d 1035, 1041 (9th 21 Cir. 1995). 22 (AR 24.) Because Dr. Martin See Tonapetyan v. Halter, 242 F.3d 1144, Finally, the ALJ noted that “[o]ther treating sources noted 23 improvement with treatment.” (AR 24.) 24 treated Plaintiff over several years, consistently noted 25 improvement with the use of medication and therapy. 26 AR 748 (Feb. 2015: “[m]ood and anxiety appear stable and 27 controlled”), 704 (June 2015: Plaintiff “us[ing] therapy well” 28 and showing “[d]ecreased anxiety since starting citalopram”).) 18 Indeed, Dr. David, who (See, e.g., 1 Improvement with treatment and medication can be substantial 2 evidence supporting an ALJ’s nondisability determination. 3 Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th 4 Cir. 2006) (“Impairments that can be controlled effectively with 5 medication are not disabling for the purpose of determining 6 eligibility for . . . benefits.”); Thomas, 278 F.3d at 957; Allen 7 v. Comm’r of Soc. Sec., 498 F. App’x 696, 697 (9th Cir. 2012). 8 Moreover, Dr. Miller’s opinion that Plaintiff would not benefit 9 from mental-health treatment (AR 665) was inconsistent with See 10 Plaintiff’s substantial beneficial treatment history and thus was 11 properly discounted. 12 Plaintiff argues that Dr. Miller’s opinion is consistent 13 with the record (J. Stip. at 4), but this claim is not supported 14 by the medical evidence. 15 cites is Dr. Miller’s own report (see id. (citing AR 664)), 16 which, as discussed above, is not consistent with a finding that 17 Plaintiff’s limitations would cause him to often be off task. 18 also cites to the report of therapist White (see id. at 5 (citing 19 AR 2384)), but none of White’s findings support an opinion that 20 Plaintiff would be off task 30 percent of the workday. 21 For example, the “record” Plaintiff He Plaintiff also argues that the ALJ improperly dismissed Dr. 22 Miller’s opinion “because he only began treating [Plaintiff] in 23 2014”11 and that “this could not constitute a specific and 24 legitimate reason to dismiss Dr. Miller’s opinion.” 25 But the length of the treatment relationship is relevant to how (Id. at 6.) 26 27 28 11 Again, the ALJ may have been generous in so finding, as it appears that Dr. Miller evaluated Plaintiff only once, on January 7, 2015. (AR 656.) 19 1 much weight a doctor’s opinion should be accorded. See 2 §§ 404.1527(c), 416.927(c). 3 date of December 30, 2012, but Dr. Miller’s ability to assess 4 Plaintiff’s mental state in the two years prior to when he first 5 saw him was likely limited. 6 747, 754 (9th Cir. 1989) (ALJ properly rejected opinion of doctor 7 who had “no direct personal knowledge” of claimant’s condition 8 until two years after alleged onset date); cf. Vincent ex rel. 9 Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) (per Moreover, Plaintiff alleged an onset See Magallanes v. Bowen, 881 F.2d 10 curiam) (ALJ properly ignored opinion of psychiatrist who 11 examined Plaintiff because “[a]fter-the-fact psychiatric 12 diagnoses are notoriously unreliable”). 13 considered Plaintiff’s apparently limited relationship with Dr. 14 Miller and gave his opinion “only partial weight” because of it. 15 The ALJ properly Because the ALJ gave specific and legitimate reasons for 16 giving Dr. Miller’s opinion partial weight, remand is not 17 warranted on this basis. 18 B. 19 Plaintiff argues that the ALJ failed to articulate legally The ALJ Properly Assessed Plaintiff’s Credibility 20 sufficient reasons for rejecting his testimony. 21 24.) 22 23 (J. Stip. at 21- For the reasons discussed below, the ALJ did not err. 1. Applicable law An ALJ’s assessment of symptom severity and claimant 24 credibility is entitled to “great weight.” 25 Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman v. Heckler, 779 26 F.2d 528, 531 (9th Cir. 1986). 27 believe every allegation of disabling pain, or else disability 28 benefits would be available for the asking, a result plainly See Weetman v. “[T]he ALJ is not required to 20 1 contrary to 42 U.S.C. § 423(d)(5)(A).” 2 F.3d 1104, 1112 (9th Cir. 2012) (citing Fair v. Bowen, 885 F.2d 3 597, 603 (9th Cir. 1989)). 4 Molina v. Astrue, 674 In evaluating a claimant’s subjective symptom testimony, the 5 ALJ engages in a two-step analysis. 6 at 1035-36. 7 has presented objective medical evidence of an underlying 8 impairment [that] could reasonably be expected to produce the 9 pain or other symptoms alleged.” See Lingenfelter, 504 F.3d “First, the ALJ must determine whether the claimant Id. at 1036. If such objective 10 medical evidence exists, the ALJ may not reject a claimant’s 11 testimony “simply because there is no showing that the impairment 12 can reasonably produce the degree of symptom alleged.” 13 80 F.3d at 1282 (emphasis in original). 14 Smolen, If the claimant meets the first test, the ALJ may discredit 15 the claimant’s subjective symptom testimony only if he makes 16 specific findings that support the conclusion. 17 Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010). 18 affirmative evidence of malingering, the ALJ must provide “clear 19 and convincing” reasons for rejecting the claimant’s testimony. 20 Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (as 21 amended); Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 22 1102 (9th Cir. 2014). 23 (1) ordinary techniques of credibility evaluation, such as the 24 claimant’s reputation for lying, prior inconsistent statements, 25 and other testimony by the claimant that appears less than 26 candid; (2) unexplained or inadequately explained failure to seek 27 treatment or to follow a prescribed course of treatment; (3) the 28 claimant’s daily activities; (4) the claimant’s work record; and See Berry v. Absent a finding or The ALJ may consider, among other factors, 21 1 (5) testimony from physicians and third parties. Rounds v. 2 Comm’r Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015) (as 3 amended); Thomas, 278 F.3d at 958-59. 4 finding is supported by substantial evidence in the record, the 5 reviewing court “may not engage in second-guessing.” 6 F.3d at 959. 7 2. If the ALJ’s credibility Thomas, 278 Relevant background 8 In a May 23, 2013 “Disability Summary” prepared by 9 Plaintiff, apparently to assist his treating doctors and the 10 agency, he reported a variety of physical ailments stemming from 11 his 1980 motorcycle accident. 12 reported treatment for anxiety and depression in 1984 and again 13 in 2013, and he noted that his physical symptoms had “left [him] 14 with lots of emotional anxiety.” 15 his anxiety “leads to compulsive, erratic decision making” and 16 that he “[c]an’t sustain employment.” 17 (See AR 260-63, 691-93.) (AR 692-93.) He He reported that (AR 693.) On February 18, 2013, Plaintiff reported to a doctor that he 18 “desire[d] to be placed on disability” and that he had stopped 19 taking his medications. 20 completed on March 16, 2013, Plaintiff noted that he typically 21 spent his day “look[ing] for employment, apply[ing] for jobs, 22 [using] social network[s,] and attend[ing] school for further 23 training.” 24 (id.); prepared his own food (AR 241); did his own cleaning, 25 laundry, and dishes (id.); shopped “once or twice per week” (AR 26 242); and socialized “with others” – dined, watched movies, went 27 for coffee – most days (AR 243). 28 to three hours and could finish activities once he started them. (AR 240.) (AR 408.) In a Function Report He had no problems with personal care 22 He could pay attention for two 1 (AR 244.) 2 instructions “well” but that he often got agitated or annoyed. 3 (Id.) 4 with authority figures,” he responded that he “get[s] along well 5 with most everyone.” 6 “several jobs due to being unable to inhibit” his emotions (id.) 7 and because of his “impulsive decision making or behavior” (AR 8 259).12 9 He noted that he could follow written and spoken In response to the question, “How well do you get along (AR 245.) He noted that he had lost On November 6, 2014, Plaintiff told Dr. David that he “just 10 want[ed] to kick back and be happy” and was “hoping to get SSI” 11 because he “does not feel able to look for or maintain a new 12 job,” but he was “heading out after [the] appointment to help a 13 friend paint her kitchen” and had recently slept “12 straight 14 hours after doing physical labor with [a] friend.” 15 (AR 493.) At the September 21, 2015 hearing, Plaintiff testified that 16 he “see[s] a psychologist on a steady basis,” which he found 17 helpful. (AR 39.) He was able to cook, shop, and clean up after 18 himself. (AR 40.) He stated that when he was “under stress or 19 pressure” he sometimes “speak[s] harshly” or will “fly off the 20 handle.” 21 better” since taking medication (AR 42), but he sometimes 22 suffered from “uncontrollable crying spells” (AR 43). (AR 41.) He acknowledged that his anxiety had “gotten 23 24 25 26 27 28 12 This contradicts the November 3, 2014 report of therapist White, who noted — apparently based on what Plaintiff told her — that Plaintiff had been fired from eight jobs since 2002 but “was not fired for his behavior at work” but because “the economy was changing.” (AR 2403.) 23 1 3. 2 Analysis The ALJ found Plaintiff “not credible to the extent of 3 establishing disability,” finding that although his “medically 4 determinable impairments could reasonably be expected to cause 5 the alleged symptoms,” his “statements concerning the intensity, 6 persistence and limiting effects of [those] symptoms” were not 7 credible to the extent they were inconsistent with his RFC. 8 25.) 9 capacity to perform medium work, could lift and carry 25 pounds (AR He found that Plaintiff had the residual functional 10 frequently and 50 pounds occasionally, and could sit and stand 11 about six hours during an eight-hour workday. 12 perform “no greater than simple routine tasks,” however, 13 “involving no more than occasional contact with the public and 14 coworkers.” (AR 24.) He could (Id.) 15 Plaintiff argues that the ALJ improperly rejected his 16 allegation that he “would be unable to work because of his 17 distractibility, confusion, emotional liability, difficulty with 18 changes in routine, unexpected events, and contradictory 19 instructions.” 20 the ALJ’s credibility assessment only as to his alleged mental 21 impairment; he does not contest any credibility assessment 22 related to his alleged physical symptoms. 23 34.) 24 complaints of decreased mental functioning: he limited Plaintiff 25 to “no greater than simple routine tasks,” “involving no more 26 than occasional contact with the public and coworkers.” 27 As discussed below, to the extent the ALJ rejected Plaintiff’s 28 subjective complaints of mental-health impairment, he provided (J. Stip. at 23.) Indeed, Plaintiff objects to (See id. at 21-24, 32- The ALJ afforded some weight to Plaintiff’s subjective 24 (AR 24.) 1 clear and convincing reasons for doing so. 2 First, the ALJ found that Plaintiff’s activities of daily 3 living were inconsistent with his statements about his severe 4 impairments and “indicate the capacity to perform focused and 5 sustained activities similar to the capacity required to perform 6 work duties at many jobs.” 7 testified that he was able to keep his house clean, cook, and 8 shop. 9 for jobs, using social networks, and attending school for further (AR 40.) (AR 25.) At the hearing, Plaintiff He typically spent his day looking and applying 10 training. 11 2014 (AR 2403) and February 2015 (AR 748), when he was also 12 looking into volunteering opportunities (id.). 13 most days. (AR 240.) He worked as an extra in movies in November He socialized (AR 243.) 14 Keeping a house clean, shopping once or twice a week, 15 socializing most days, seeking and applying for jobs daily, and 16 attending training classes are inconsistent with Plaintiff’s 17 allegation that he would be unable to sustain the level of 18 concentration needed to maintain employment and that his anxiety 19 was so great he would not be able to hold a job. 20 Plaintiff spent “most days” socializing with other people at a 21 local coffee shop (AR 243, 510), lived with roommates (AR 748), 22 and reported that he “get[s] along well with most everyone” (AR 23 245), belying his claims of anxiety so great he could not work 24 with others. 25 credibility when his daily activities are inconsistent with his 26 subjective symptom testimony. 27 may discredit claimant’s testimony when “claimant engages in 28 daily activities inconsistent with the alleged symptoms” (citing Indeed, An ALJ may properly discount a plaintiff’s See Molina, 674 F.3d at 1112 (ALJ 25 1 Lingenfelter, 504 F.3d at 1040)). “Even where those [daily] 2 activities suggest some difficulty functioning, they may be 3 grounds for discrediting the claimant’s testimony to the extent 4 that they contradict claims of a totally debilitating 5 impairment.” 6 Comm’r of Soc. Sec. Admin., 534 F. App’x 608, 610 (9th Cir. 2013) 7 (substantial evidence supported ALJ’s adverse credibility finding 8 because claimant “was social and had no difficulty getting along 9 with other people” despite allegations of anxiety); Gerard v. Molina, 674 F.3d at 1113; see also Blodgett v. 10 Astrue, 406 F. App’x 229, 231 (9th Cir. 2010) (ALJ properly 11 disregarded medical opinion of severe anxiety and relational 12 problems when claimant testified that “she left her house to shop 13 for clothes and groceries, to attend GED classes, and to visit 14 with her mother”). 15 In January 2013, Plaintiff was completing training classes. 16 (AR 402.) 17 2013. 18 the “structure” of his day and was “look[ing] into volunteering 19 activities.” 20 training classes is inconsistent with Plaintiff’s allegation that 21 he would be unable to remain on task in a workplace setting. 22 Macri v. Chater, 93 F.3d 540, 544 (9th Cir. 1996) (finding that 23 ALJ properly considered claimant’s completion of training course 24 when rejecting his subjective pain testimony). 25 He was attending school for further training in March (AR 240.) In February 2015, he was advised to increase (AR 748.) His ability to attend and complete See Second, the ALJ found that Plaintiff’s “[n]oncompliance with 26 medical advice tends to diminish [his] credibility.” 27 Indeed, Plaintiff stopped taking his prescribed medication on at 28 least two occasions; each time the doctor recommended that he 26 (AR 25.) 1 continue to take medication for his anxiety because it was 2 effective. 3 had “taken Xanax before but didn’t like taking [it] daily – 4 stopped when feeling better,” doctor then prescribed 5 citalopram),13 408 (Feb. 8, 2013: Plaintiff alleged he could not 6 tolerate citalopram prescribed in Jan. 1 visit, had stopped 7 taking it after “couple of days”; doctor “recommended trying to 8 continue with medication”), 2401 (Dec. 2, 2014: Plaintiff 9 currently taking citalopram, which was “helpful”), 704 (June 18, (See AR 410 (Jan. 1, 2013: Plaintiff reported that he 10 2015: Plaintiff “interested in changing” from citalopram to 11 different psychotropic medication because of “sexual side 12 effects,” Dr. David recommended waiting because “Citalopram has 13 been working well”).) 14 Plaintiff argues that he stopped taking citalopram because 15 he was “unable to tolerate” it (J. Stip. at 24 (citing AR 408)), 16 but the medical record shows that he complained only of the 17 “sexual side effects” of citalopram (AR 246, 406, 704), and in 18 June 2015 Dr. David recommended that he continue to take it 19 because she had noticed “[d]ecreased anxiety” since he started it 20 (id.). 21 allegedly being unable to tolerate it. 22 2013, Plaintiff reported that he “likes having citalopram”), 578 23 (Mar. 2013, Dr. David noting that Plaintiff had been taking Plaintiff apparently took citalopram for years despite (See, e.g., AR 405 (Mar. 24 25 13 27 Xanax is the brand name of a drug used to treat anxiety and panic disorders. Alprazolam, MedlinePlus, https:// (last updated Mar. 15, 2017). 28 27 26 1 citalopram for “1.5 months” and was “more calm”), 2401 (Dec. 2 2014, Plaintiff taking citalopram, which was “helpful”), 736-39 3 (May 2015, Plaintiff taking citalopram daily, noting that he 4 “sleep[s] well” with “anxiety well under control”).)14 5 may rely upon a claimant’s noncompliance with treatment as a 6 clear and convincing reason for an adverse credibility finding. 7 See Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) 8 (ALJ may discount claimant’s testimony in light of “unexplained 9 or inadequately explained failure to seek treatment or to follow 10 a prescribed course of treatment”); Orn v. Astrue, 495 F.3d 625, 11 638 (9th Cir. 2007). 12 An ALJ Finally, the ALJ noted that Plaintiff received “limited and 13 conservative treatment,” which was “inconsistent with” his 14 alleged severity of symptoms. 15 dispute this finding as to his physical ailments. 16 medical record indicates that Plaintiff’s anxiety was effectively 17 managed by therapy sessions and medication and that no more 18 intensive or invasive treatment was needed. 19 2, 2014: noting currently taking three “helpful” medications), 20 799 (Jan. 22, 2015: “[s]till taking Citalopram,” “[a]nxiety 21 appears under control”), 1428 (May 23, 2015: Plaintiff reported 22 no psychiatric hospitalizations and was “coping with his (AR 25.) Plaintiff does not Similarly, the (See AR 2401 (Nov. 23 24 25 26 27 28 14 Plaintiff also complained of “increased fatigue and drowsiness” when his citalopram dosage was increased, but that was apparently resolved by “taking medicine before bed.” (AR 512; see also AR 246 (Mar. 2013 Function Report alleging side effects of citalopram as “insomnia & impotence”), 516 (Sept. 2014 visit to doctor apparently because of side effect of “increased citalopram dosing,” resolved with Plaintiff “now taking before bed without issue”), 799 (Jan. 2015, Plaintiff reported “[s]leeping well” and “[s]till taking [c]italopram”).) 28 1 condition”), 704 (June 18, 2015: Dr. David noting that Plaintiff 2 “[c]ontinues to use therapy well” and exhibited “[d]ecreased 3 anxiety since starting citalopram evident to this clinician since 4 first seeing [Plaintiff] several years ago”).) 5 treatment can legitimately discredit a claimant’s testimony. 6 Parra, 481 F.3d at 751. Conservative 7 Plaintiff argues that his condition was “not amenable to 8 treatment,” pointing to Dr. Miller’s January 26, 2015 opinion 9 See that “mental health services” were not recommended because 10 “treatment would be fairly challenging.” 11 (citing AR 664-65).) 12 examination of Plaintiff, Dr. David noted that Plaintiff “use[d] 13 therapy well” and had exhibited “[d]ecreased anxiety since 14 starting citalopram evident to this clinician since first seeing 15 [Plaintiff] several years ago.” 16 himself noted on many occasions that his mental-health treatment 17 was helpful. 18 that “see[ing] a psychologist on a steady basis” was helpful), 19 804 (Dec. 2014, Plaintiff reporting to Dr. David that he was 20 “happier now” than he “ever was before”), 2401 (Nov. 2014, noting 21 currently taking three “helpful” medications).) 22 (J. Stip. at 24, 34 But in June 2015, after Dr. Miller’s (AR 704.) Indeed, Plaintiff (See, e.g., AR 39 (Sept. 2015 hearing testimony In sum, the ALJ provided clear and convincing reasons for 23 finding Plaintiff’s symptom allegations not credible. 24 those findings were supported by substantial evidence, this Court 25 may not engage in second-guessing. 26 Plaintiff is not entitled to remand on this ground. 27 VI. 28 Because See Thomas, 278 F.3d at 959. CONCLUSION Consistent with the foregoing and under sentence four of 42 29 1 U.S.C. § 405(g),15 IT IS ORDERED that judgment be entered 2 AFFIRMING the decision of the Commissioner, DENYING Plaintiff’s 3 request for remand, and DISMISSING this action with prejudice. 4 5 DATED: April 25, 2017 6 ______________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15 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.” 30

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