Terry v. Colvin

Filing 22


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1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 7 8 NO. C16-5990-JPD TRACEY J. TERRY, 9 10 11 12 Plaintiff, v. ORDER AFFIRMING THE COMMISSIONER NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. 13 14 Plaintiff Tracey J. Terry appeals the final decision of the Commissioner of the Social 15 Security Administration (“Commissioner”) which denied her applications for Disability 16 Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles II and XVI 17 of the Social Security Act, 42 U.S.C. §§ 401-33 and 1381-83f, after a hearing before an 18 administrative law judge (“ALJ”). For the reasons set forth below, the Commissioner’s 19 decision is AFFIRMED. 20 I. FACTS AND PROCEDURAL HISTORY 21 At the time of the administrative hearing, plaintiff was a fifty-one year old woman with 22 the equivalent of a high school education. Administrative Record (“AR”) at 55, 101. Her past 23 work experience includes employment as a cashier/checker, pharmacy technician, cleanup 24 ORDER - 1 1 janitor, and home cleaner. AR at 39, 59-60. Plaintiff was last gainfully employed in 2007 as a 2 cashier. AR at 148. 3 On June 13, 2013, plaintiff filed a claim for SSI payments and DIB, alleging an onset 4 date of November 1, 2010. AR at 10.1 Plaintiff asserts that she is disabled due to severe 5 depression, degenerative disc disease of the lumbar and cervical spine, and chronic migraines. 6 AR at 101. 7 The Commissioner denied plaintiff’s claim initially and on reconsideration. AR at 116- 8 33, 134-50. Plaintiff requested a hearing, which took place on December 3, 2014. AR at 30- 9 66. On July 30, 2015, the ALJ issued a decision finding plaintiff not disabled and denied 10 benefits based on her finding that plaintiff could perform a specific job existing in significant 11 numbers in the national economy. AR at 7-23. The ALJ’s request for review was denied by 12 the Appeals Council, AR at 1-4, making the ALJ’s ruling the “final decision” of the 13 Commissioner as that term is defined by 42 U.S.C. § 405(g). On December 6, 2016, plaintiff 14 timely filed the present action challenging the Commissioner’s decision. Dkt. 3. II. 15 16 17 Jurisdiction to review the Commissioner’s decision exists pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). III. 18 19 JURISDICTION STANDARD OF REVIEW Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s denial of 20 social security benefits when the ALJ’s findings are based on legal error or not supported by 21 substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 (9th 22 23 24 1 Plaintiff filed a previous application for benefits which was denied by the ALJ on February 27, 2013. AR at 67-80. Because plaintiff did not appeal that denial, the previous ALJ’s decision is administratively final. AR at 10. The ALJ in this case limited her review to the period beginning on February 28, 2013. AR at 10. ORDER - 2 1 Cir. 2005). “Substantial evidence” is more than a scintilla, less than a preponderance, and is 2 such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. 3 Richardson v. Perales, 402 U.S. 389, 401 (1971); Magallanes v. Bowen, 881 F.2d 747, 750 4 (9th Cir. 1989). The ALJ is responsible for determining credibility, resolving conflicts in 5 medical testimony, and resolving any other ambiguities that might exist. Andrews v. Shalala, 6 53 F.3d 1035, 1039 (9th Cir. 1995). While the Court is required to examine the record as a 7 whole, it may neither reweigh the evidence nor substitute its judgment for that of the 8 Commissioner. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). When the evidence is 9 susceptible to more than one rational interpretation, it is the Commissioner’s conclusion that 10 11 must be upheld. Id. The Court may direct an award of benefits where “the record has been fully developed 12 and further administrative proceedings would serve no useful purpose.” McCartey v. 13 Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002) (citing Smolen v. Chater, 80 F.3d 1273, 1292 14 (9th Cir. 1996)). The Court may find that this occurs when: 15 16 17 (1) the ALJ has failed to provide legally sufficient reasons for rejecting the claimant’s evidence; (2) there are no outstanding issues that must be resolved before a determination of disability can be made; and (3) it is clear from the record that the ALJ would be required to find the claimant disabled if he considered the claimant’s evidence. 18 Id. at 1076-77; see also Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000) (noting that 19 erroneously rejected evidence may be credited when all three elements are met). IV. 20 21 EVALUATING DISABILITY As the claimant, Ms. Terry bears the burden of proving that she is disabled within the 22 meaning of the Social Security Act (the “Act”). Meanel v. Apfel, 172 F.3d 1111, 1113 (9th 23 Cir. 1999) (internal citations omitted). The Act defines disability as the “inability to engage in 24 any substantial gainful activity” due to a physical or mental impairment which has lasted, or is ORDER - 3 1 expected to last, for a continuous period of not less than twelve months. 42 U.S.C. §§ 2 423(d)(1)(A), 1382c(a)(3)(A). A claimant is disabled under the Act only if her impairments 3 are of such severity that she is unable to do her previous work, and cannot, considering her age, 4 education, and work experience, engage in any other substantial gainful activity existing in the 5 national economy. 42 U.S.C. §§ 423(d)(2)(A); see also Tackett v. Apfel, 180 F.3d 1094, 1098- 6 99 (9th Cir. 1999). 7 The Commissioner has established a five step sequential evaluation process for 8 determining whether a claimant is disabled within the meaning of the Act. See 20 C.F.R. §§ 9 404.1520, 416.920. The claimant bears the burden of proof during steps one through four. At 10 step five, the burden shifts to the Commissioner. Id. If a claimant is found to be disabled at 11 any step in the sequence, the inquiry ends without the need to consider subsequent steps. Step 12 one asks whether the claimant is presently engaged in “substantial gainful activity.” 20 C.F.R. 13 §§ 404.1520(b), 416.920(b).2 If she is, disability benefits are denied. If she is not, the 14 Commissioner proceeds to step two. At step two, the claimant must establish that she has one 15 or more medically severe impairments, or combination of impairments, that limit her physical 16 or mental ability to do basic work activities. If the claimant does not have such impairments, 17 she is not disabled. 20 C.F.R. §§ 404.1520(c), 416.920(c). If the claimant does have a severe 18 impairment, the Commissioner moves to step three to determine whether the impairment meets 19 or equals any of the listed impairments described in the regulations. 20 C.F.R. §§ 404.1520(d), 20 416.920(d). A claimant whose impairment meets or equals one of the listings for the required 21 twelve-month duration requirement is disabled. Id. 22 23 24 2 Substantial gainful activity is work activity that is both substantial, i.e., involves significant physical and/or mental activities, and gainful, i.e., performed for profit. 20 C.F.R. § 404.1572. ORDER - 4 1 When the claimant’s impairment neither meets nor equals one of the impairments listed 2 in the regulations, the Commissioner must proceed to step four and evaluate the claimant’s 3 residual functional capacity (“RFC”). 20 C.F.R. §§ 404.1520(e), 416.920(e). Here, the 4 Commissioner evaluates the physical and mental demands of the claimant’s past relevant work 5 to determine whether she can still perform that work. 20 C.F.R. §§ 404.1520(f), 416.920(f). If 6 the claimant is able to perform her past relevant work, she is not disabled; if the opposite is 7 true, then the burden shifts to the Commissioner at step five to show that the claimant can 8 perform other work that exists in significant numbers in the national economy, taking into 9 consideration the claimant’s RFC, age, education, and work experience. 20 C.F.R. §§ 10 404.1520(g), 416.920(g); Tackett, 180 F.3d at 1099, 1100. If the Commissioner finds the 11 claimant is unable to perform other work, then the claimant is found disabled and benefits may 12 be awarded. V. 13 DECISION BELOW 14 On July 30, 2015, the ALJ issued a decision finding the following: 15 1. The claimant meets the insured status requirements of the Social Security Act through March 31, 2014. 2. The claimant has not engaged in substantial gainful activity since February 28, 2013. 3. The claimant has the following severe impairments: degenerative joint disease in the cervical and thoracic spine, headaches, and depression. 4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. 5. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform medium work as defined in 20 CFR 404.1567(c) and 416.967(c) except she can occasionally stoop, kneel, crouch, and climb ramps and stairs. She cannot crawl or climb ladders, ropes or scaffolds. The claimant should avoid concentrated exposure to vibration and hazards. She can perform simple repetitive tasks of reasoning level 1 to 3. She can 16 17 18 19 20 21 22 23 24 ORDER - 5 engage in superficial social interactions with others in that they can work around and interact briefly, but would do best in tasks that do not require high-level socialization such as bargaining, persuading, and customer service. 1 2 3 4 6. The claimant is unable to perform any past relevant work. 7. The claimant was born on XXXXX, 1963 and was 47 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date. The claimant subsequently changed age category to closely approaching advanced age.3 8. The claimant has at least a high school education and is able to communicate in English. 9. Transferability of job skills is not an issue in this case because the claimant’s past relevant work is unskilled. 10. Considering the claimant’s age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform. 11. The claimant has not been under a disability, as defined in the Social Security Act, from February 28, 2013, through the date of this decision. 5 6 7 8 9 10 11 12 13 AR at 13-23. 14 15 16 17 18 19 20 VI. ISSUES ON APPEAL The principal issues on appeal are: 1. Did the ALJ err by failing to fulfill her duty to develop the record? 2. Did the ALJ err in evaluating the medical opinion evidence? 3. Did the ALJ err in evaluating plaintiff’s testimony? 4. Did the ALJ err in evaluating the lay witness testimony of plaintiff’s roommate? Dkt. 19 at 1; Dkt. 20 at 1. 21 22 23 24 3 The actual date is deleted in accordance with Local Rule CR 5.2, W.D. Washington. ORDER - 6 VII. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 A. DISCUSSION The ALJ Did Not Fail to Fully Develop the Record, and the Procedural Errors During the Hearing Were Harmless Plaintiff contends that the ALJ committed harmful error in this case by failing to fully and fairly develop the record. Dkt. 19 at 2. Specifically, plaintiff was unrepresented during the administrative hearing and declined the ALJ’s offer of an extension of time to find a new representative because she had found it unhelpful to be represented by counsel at a prior hearing. AR at 34-35. Plaintiff told the ALJ at the beginning of the hearing that she had tried to review the CD containing her medical records, but had been unable to do so. AR at 33. The ALJ did not halt the hearing at that point, but advised her “when you get home, what I’d like you to do is open that up, check it out, make sure there’s nothing on there that doesn’t belong to you or is in error.” AR at 33. Plaintiff argues that the ALJ should have immediately assisted plaintiff in opening her CD so she could see her file during the hearing. AR at 33. Later in the hearing, the ALJ told plaintiff “I’m going to talk to the vocational expert [“VE”] for a minute.” AR at 58. The ALJ then proceeded to question the VE without advising plaintiff that she had a right to cross-examine the VE. AR at 58-63. Plaintiff advised the ALJ that she did not understand the VE’s references to medium and light work, and the ALJ apologized, stating “Those are all kind of based on the regulations, which I guess I should have talked to you about, but I forgot.” AR at 63. The ALJ then gave a short explanation of the disability determination process, but still did not advise plaintiff of her right to cross-examine the VE. AR at 63-65. Plaintiff contends that “the ALJ’s failure to assist [plaintiff] in accessing her file and her failure to inform [plaintiff] of her right to cross-examine the vocational expert violated the ALJ’s duty to fully and fairly develop the record.” Dkt. 19 at 3. 23 24 ORDER - 7 1 The Commissioner responds that the ALJ did not err because the ALJ’s duty to further 2 develop the record was not triggered here, as the evidence was not ambiguous or inadequate to 3 allow for proper evaluation of the evidence. Dkt. 20 at 2 (citing AR at Tonapetyan v. Halter, 4 242 F.3d 1144, 1150 (9th Cir. 2001)). The Commissioner contends that neither of the alleged 5 deficiencies identified by plaintiff implicates the ALJ’s duty to develop the record. Id. 6 In social security cases, the ALJ has a “special duty to fully and fairly develop the 7 record and to assure that the claimant’s interests are considered.” Garcia v. Comm'r of Soc. 8 Sec., 768 F.3d 925, 930 (9th Cir. 2014) (citation omitted). This includes the duty to fully and 9 fairly develop the record, even when the claimant is represented by counsel. Thompson v. 10 Schweiker, 665 F.2d 936, 941 (9th Cir. 1982); Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 11 1983). However, “[a]n ALJ’s duty to develop the record further is triggered only when there is 12 ambiguous evidence or when the record is inadequate to allow for proper evaluation of the 13 evidence.” Mayes v. Massanari, 276 F.3d 453, 459–60 (9th Cir. 2001). See also Tonapetyan, 14 242 F.3d at 1150; Brown, 713 F.2d at 443. 15 The Court agrees with the Commissioner that the ALJ in this case did not abandon her 16 “independent duty to fully and fairly develop the record and to assure that the claimant’s 17 interests are considered.” Tonapetyan, 242 F.3d at 1150. On the contrary, at the outset of the 18 hearing the ALJ recommended that plaintiff consider postponing the hearing to seek new 19 counsel because “they do tend to know Social Security law and can focus on the evidence 20 that’s most relevant to your case and point it out and argue the case . . . to your benefit.” AR at 21 34-35. As noted above, the ALJ advised her to review the medical records on the CD as soon 22 as she gets home in case there are any issues that needed to be addressed before a decision was 23 issued. AR at 33. At the conclusion of the hearing, the ALJ further advised plaintiff that she 24 was going to obtain additional medical records for the plaintiff to add to her file, which would ORDER - 8 1 take two weeks to a month, at which point plaintiff should “follow-up in a month and call and 2 ask for a copy of your CD, we can have that sent to you so that you can look it over and make 3 sure everything is there.” AR at 65. The ALJ told plaintiff to “review it and make sure that all 4 that new evidence came in, but I definitely won’t go forward until I have all of the evidence.” 5 AR at 65. Thus, the record shows that the ALJ in fact took numerous steps to fully and fairly 6 develop the record by soliciting additional medical records on plaintiff’s behalf following the 7 hearing, and ensuring that plaintiff understood what steps she needed to take to review the 8 updated record before the ALJ issued her final decision. 9 Although plaintiff has not shown that the ALJ violated her duty to develop the record, 10 the Court does agree with plaintiff that the ALJ committed a procedural error by failing to 11 advise plaintiff of her right to question the VE. The ALJ also should have questioned plaintiff 12 further regarding her familiarity with the medical records on the CD before the hearing began 13 in case a continuance was warranted, because plaintiff was entitled under the regulations to 14 review her records at the hearing or at an earlier time. See 20 C.F.R. § 404.916(b)(3) (2017) 15 (“(b) Your procedural rights. We will advise you that you have the following procedural rights 16 in connection with the disability hearing process: . . . (3) You or your representative may 17 review the evidence in your case file, either on the date of your hearing or at an earlier time at 18 your request, and present additional evidence; (4) You may present witnesses and question any 19 witnesses at the hearing”). 20 However, plaintiff has not shown how either of these procedural errors were likely 21 prejudicial to her case. Instead, plaintiff argues that if she had access to her file during the 22 hearing and was properly informed of her right to cross-examine the VE, the ALJ “could have 23 reached a different disability determination.” Dkt. 21 at 3. However, in McLeod v. Astrue, 640 24 F.3d 881, 885 (9th Cir. 2011), the Ninth Circuit determined that the applicable inquiry is not ORDER - 9 1 whether prejudice could have resulted from the ALJ’s error, but whether there was a 2 “substantial likelihood of prejudice”: 3 4 5 6 7 We infer [ ] that, despite the burden to show prejudice being on the party claiming error by the administrative agency, the reviewing court can determine from the “circumstances of the case” that further administrative review is needed to determine whether there was prejudice from the error. Mere probability is not enough. But where the circumstances of the case show a substantial likelihood of prejudice, remand is appropriate so that the agency “can decide whether re-consideration is necessary.” By contrast, where harmlessness is clear and not a “borderline question,” remand for reconsideration is not appropriate. 8 640 F.3d at 888 (quoting Shinseki v. Sanders, 556 U.S. 396, 129 S.Ct. 1696, 1706-08 (2009)). 9 See also Garcia v. Comm'r of Soc. Sec., 768 F.3d 925, 932 n.10 (9th Cir. 2014) (“McLeod is 10 limited to situations where the record is insufficient for the court to make its own prejudice 11 determination, and remand is required for the ALJ to determine the harmfulness of the 12 omission in the first instance.”). 13 Here, plaintiff has not shown a substantial likelihood of prejudice. For example, 14 plaintiff has not argued that any medical records were erroneously omitted from the record in 15 her case, and therefore were not considered by the ALJ. She also does not allege that if she 16 had been properly afforded an opportunity to question the VE, she would have asked the VE a 17 particular question that would have altered the outcome of the case. Accordingly, plaintiff has 18 not established that the ALJ’s errors resulted in a substantial likelihkood of prejudice, and were 19 harmful. 20 B. 1. 21 22 The ALJ Did Not Err in Evaluating the Medical Opinion Evidence Standards for Reviewing Medical Evidence As a matter of law, more weight is given to a treating physician’s opinion than to that 23 of a non-treating physician because a treating physician “is employed to cure and has a greater 24 opportunity to know and observe the patient as an individual.” Magallanes v. Bowen, 881 F.2d ORDER - 10 1 747, 751 (9th Cir. 1989); see also Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). A treating 2 physician’s opinion, however, is not necessarily conclusive as to either a physical condition or 3 the ultimate issue of disability, and can be rejected, whether or not that opinion is contradicted. 4 Magallanes, 881 F.2d at 751. If an ALJ rejects the opinion of a treating or examining 5 physician, the ALJ must give clear and convincing reasons for doing so if the opinion is not 6 contradicted by other evidence, and specific and legitimate reasons if it is. Reddick v. Chater, 7 157 F.3d 715, 725 (9th Cir. 1988). “This can be done by setting out a detailed and thorough 8 summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and 9 making findings.” Id. (citing Magallanes, 881 F.2d at 751). The ALJ must do more than 10 merely state his/her conclusions. “He must set forth his own interpretations and explain why 11 they, rather than the doctors’, are correct.” Id. (citing Embrey v. Bowen, 849 F.2d 418, 421-22 12 (9th Cir. 1988)). Such conclusions must at all times be supported by substantial evidence. 13 Reddick, 157 F.3d at 725. 14 The opinions of examining physicians are to be given more weight than non-examining 15 physicians. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Like treating physicians, the 16 uncontradicted opinions of examining physicians may not be rejected without clear and 17 convincing evidence. Id. An ALJ may reject the controverted opinions of an examining 18 physician only by providing specific and legitimate reasons that are supported by the record. 19 Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 20 Opinions from non-examining medical sources are to be given less weight than treating 21 or examining doctors. Lester, 81 F.3d at 831. However, an ALJ must always evaluate the 22 opinions from such sources and may not simply ignore them. In other words, an ALJ must 23 evaluate the opinion of a non-examining source and explain the weight given to it. Social 24 Security Ruling (“SSR”) 96-6p, 1996 WL 374180, at *2. Although an ALJ generally gives ORDER - 11 1 more weight to an examining doctor’s opinion than to a non-examining doctor’s opinion, a 2 non-examining doctor’s opinion may nonetheless constitute substantial evidence if it is 3 consistent with other independent evidence in the record. Thomas v. Barnhart, 278 F.3d 947, 4 957 (9th Cir. 2002); Orn, 495 F.3d at 632-33. 5 2. James L. Roscetti, M.D. On April 26, 2013, Dr. Roscetti completed a DSHS physical functional evaluation for 6 7 plaintiff. AR at 522-28. Plaintiff complained of neck pain and mid-back pain, muscle spasms, 8 nerve pain, trouble breathing, sitting standing, and loss of feeling. AR at 522. On 9 examination, Dr. Roscetti found that plaintiff had a reduced range of motion in her neck, back, 10 and hips. AR at 524. However, plaintiff had a full range of motion in hip flexion, hip 11 adduction, hip abduction, knees, ankles shoulders, elbows, wrests, and thumbs, with normal 12 findings in the extremities and reflexes within normal limits. AR at 524, 526, 527. He 13 diagnosed plaintiff with (1) “moderate” cervical degenerative arthritis, which limited plaintiff’s 14 ability to sit, stand, walk, life, carry, and handle; (2) “marked” lumbar degenerative arthritis, 15 which limited plaintiff’s ability to push, pull, stoop, and crouch; (3) and “marked” depression, 16 which he opined limited her ability to communicate. AR at 525. Dr. Roscetti opined that 17 plaintiff was limited to sedentary work, and that she was unable to work at heights. AR at 523, 18 525. 19 The ALJ summarized Dr. Roscetti’s findings, noting earlier in her decision that Dr. 20 Roscetti’s “examination of the back revealed diffuse paravertebral spasm with limitation in 21 flexion, extension and lateral bending. The doctor diagnosed probable chronic cervical and 22 lumbar disc disease.” AR at 16. The ALJ indicated that she gave Dr. Roscetti’s opinion “little 23 weight” for three reasons. First, “because the doctor’s evaluation of the claimant did not have 24 the type of significant clinical abnormalities to substantiate the opinion.” AR at 19. Second, ORDER - 12 1 the ALJ found that “[i]t appears the doctor relied heavily on the claimant’s subjective report of 2 symptoms and limitations, which are not fully credible for the reasons stated in this decision.” 3 AR at 19. Third, the ALJ found that “it is also inconsistent with the clinical findings of 4 treatment providers. Specifically, Dr. Khan found she had no tenderness and normal mobility 5 of the thoracic and lumbar spine. ARNP Carlson found she had normal gait and station, 6 negative straight leg raise and full strength in the lower extremities. Dr. Polo found she had 7 full motor strength, intact sensation, normal reflexes, and normal heel-toe tandem gait.” AR at 8 19. 9 The ALJ’s reasons for discounting Dr. Roscetti’s opinion that plaintiff is limited to 10 sedentary work are specific, legitimate, and supported by substantial evidence in the record. 11 First, the Court finds that the ALJ reasonably discounted Dr. Roscetti’s opinion that plaintiff is 12 limited to sedentary work as being unsupported by his own clinical examination findings, 13 which were largely unremarkable. Specifically, the ALJ concluded that “the doctor’s 14 evaluation of the claimant did not have the type of significant clinical abnormalities to 15 substantiate the opinion.” AR at 19. Dr. Roscetti’s physical examination findings were 16 entirely normal, with the exception of some range of motion limitations in plaintiff’s back, 17 neck, and hip flexors. AR at 524-26. Plaintiff has not cited any authority suggesting that the 18 range of motion limitations identified by Dr. Roscetti would limit her to sedentary work. AR 19 at 19. Thus, inconsistency between Dr. Roscetti’s conclusion and her own clinical findings on 20 examination – which were mostly normal - was a legitimate reason for the ALJ to discount Dr. 21 Roscetti’s medical opinion. 22 The ALJ’s other two reasons for rejecting Dr. Roscetti’s opinion were also specific, 23 legitimate, and supported by substantial evidence. As noted above, the ALJ rejected Dr. 24 Roscetti’s opinion as being inconsistent with the clinical findings of other examining treatment ORDER - 13 1 providers, and based in large part upon plaintiff’s less than credible symptom testimony. The 2 ALJ adequately explained what parts of the record she considered to be inconsistent with Dr. 3 Roscetti’s opinion, and she specifically cited to the unremarkable clinical findings of Dr. Khan, 4 ARNP Carlson, and Dr. Polo. AR at 19. See also Tommasetti v. Astrue, 533 F.3d 1035, 1041 5 (9th Cir. 2008) (inconsistency with the record properly considered by ALJ in rejection of 6 physician’s opinions). Dr. Kahn found no tenderness and normal mobility in the spine, with 7 only “mildly reduced ROM.” AR at 553-54. Treating nurse practitioner Caroline Carlson, 8 ARNP found that plaintiff had a “normal gait and station,” with full strength in her lower 9 extremities, although she also reported “diffuse muscle tightness” and tenderness in her 10 thoracic and lumbar spine. AR at 811, 823. Neurologic examiner Kathleen Polo, M.D., found 11 that plaintiff had full strength, intact sensation, normal reflexes, and a normal gait. AR at 633- 12 634.4 These treatment providers’ mostly unremarkable physical examinations provided a valid 13 basis for the ALJ to reject Dr. Roscetti’s conclusion that plaintiff was physically limited to 14 sedentary work. 15 The ALJ could also properly reject Dr. Roscetti’s opinion as being based “to a large 16 extent” on plaintiff’s subjective self-reports, which the ALJ considered to be less than fully 17 credible. Tommasetti, 533 F.3d at 1041 (citing Morgan v. Comm'r Soc. Sec. Admin., 169 F.3d 18 595, 602 (9th Cir. 1999)). As discussed below, the ALJ provided several clear and convincing 19 20 21 22 23 24 4 As the Commissioner points out, the ALJ also noted elsewhere in the decision in support of her finding that “the claimant’s allegations are not fully consistent with the objective medical evidence” that “Dr. Brown found she had full strength and intact sensation in the upper and lower extremities.” AR at 18. Dr. Brown noted that plaintiff’s neck was “quite stiff,” and diagnosed “posterior neck pain” but “no radiculopathy and no myelopathy” based upon plaintiff’s 2013 cervical MRI. AR at 665. Thus, plaintiff’s assertion that “none of the finding cited by the ALJ here directly contradict the range of motion findings of Dr. Roscetti and Dr. Brown” misses the point. The ALJ reasonably supported her finding that despite the range of motion limitations, which the ALJ does not dispute, Dr. Roscetti’s opinion that plaintiff was limited to sedentary work was inconsistent with the record as a whole. AR at 18. ORDER - 14 1 reasons for giving plaintiff’s subjective symptom testimony less weight. As a result, the ALJ 2 did not err in rejecting Dr. Roscetti’s opinion that plaintiff is limited to sedentary work, which 3 was largely based upon plaintiff’s self-reported symptoms, because it was not substantiated by 4 his own findings on examination. The ALJ’s reasons for discounting Dr. Roscetti’s opinion 5 that plaintiff is limited to sedentary work are specific, legitimate, and supported by substantial 6 evidence in the record. 7 8 9 3. Alysa A. Ruddell, Ph.D. Dr. Ruddell completed a DSHS psychological evaluation on April 26, 2013. Dr. Ruddell diagnosed plaintiff with a pain disorder associated with psychological and medical 10 factors, and adjustment disorder with mixed depression and anxiety. AR at 518. She opined 11 that plaintiff was markedly limited in her ability to adapt to changes in a routine work setting. 12 AR at 519. She further assessed numerous moderate limitations in functioning with respect to 13 plaintiff’s ability to perform routine tasks without special supervision, make simple work- 14 related decisions, be aware of normal hazards, take appropriate precautions, ask simple 15 questions or request assistance, maintain appraise behavior in a work setting, complete a 16 workday/workweek without interruptions from psychological symptoms, and set realistic goals 17 and plan independently. AR at 519. 18 On mental status examination, Dr. Ruddell noted that plaintiff (1) showed pain 19 symptoms and a limp, (2) had an uncertain gait, (3) had to expend effort to get up after sitting 20 at the desk, (4) over-endorsed problems, (5) showed impaired concentration on the serial threes 21 test, (6) showed impaired abstract thinking, and (7) and showed impaired insight/judgment. 22 AR at 520. All other examination findings were normal, such as a normal appearance, affect, 23 mood, social behavior, thought content, and orientation. AR at 520. Dr. Ruddell expressed 24 doubt regarding plaintiff’s effort on at least one part of the examination, noting that plaintiff ORDER - 15 1 “completed 13 serial 3’s in 28 seconds with a final error, raising concerns about effort.” AR at 2 520. Plaintiff was also able to complete a three-step task in the waiting room at the doctor’s 3 office by following the instructions on the form directing her to complete the forms, and then 4 keep the forms with her and return the clipboard to the counter, which plaintiff did. AR at 5 520.5 6 The ALJ rejected Dr. Ruddell’s opinion because “it is inconsistent with the doctor’s 7 essentially unremarkable examination of the claimant. Furthermore, this was a one-time exam 8 to obtain benefits.” AR at 19. In addition, “the opinion is inconsistent with the claimant’s 9 activities of daily living and treatment history for mental health issues. She had no history of 10 psychiatric hospitalizations or emergency room visits.” AR at 19-20. The ALJ found that “the 11 record shows she retains very good functioning despite her depression.” AR at 20. 12 Plaintiff contends that the ALJ erred because Dr. Ruddell described a number of 13 clinical findings which support her opinion. In addition, the fact that this is a “one time 14 examination to obtain benefits” is never a legitimate reason to reject an examining physician’s 15 opinion. Dkt. 19 at 6. Plaintiff further contends that the ALJ erred because “her opinion is not 16 meaningfully inconsistent with any of Terry’s activities, nor is it meaningfully inconsistent 17 with Terry’s treatment history.” Id. Finally, plaintiff argues that “the ALJ also errs by 18 implicitly rejecting Dr. Ruddell’s diagnosis of pain disorder associated with psychological and 19 medical factors.” Id. 20 As a threshold matter, the Commissioner concedes that the ALJ erred by failing to 21 acknowledge that by diagnosing a pain disorder, Dr. Ruddell actually diagnosed a somatoform 22 disorder. Specifically, at step two the ALJ stated that plaintiff’s “somatoform disorder is not a 23 24 5 On May 7, 2013, a non-examining psychologist, Aaron Burdge, Ph.D., reviewed and affirmed Dr. Ruddell’s opinion. AR at 514. ORDER - 16 1 severe impairment. A State agency psychological consultant diagnosed the impairment. The 2 medical evidence of record shows no related treatment, and no other treatment providers or 3 examiners have diagnosed the condition.” AR at 13. The parties agree that the ALJ’s 4 statement is inaccurate, as Dr. Ruddell also diagnosed a pain disorder associated with 5 psychological and medical factors, which is a somatoform disorder. Dkt. 20 at 12 (citing AR 6 at 518). Plaintiff argues, however, that the ALJ’s error “was not at step two, as she proceeded 7 beyond step two in her analysis; her harmful error was in failing to include in her [RFC] all of 8 the limitations caused by all of Terry’s physical and mental impairments, including her pain 9 disorder associated with psychological and medical factors.” Dkt. 19 at 6. The Court does not 10 11 agree that the ALJ’s error was harmful in this case. An impairment is only severe if it significantly limits a claimant’s ability to do basic 12 work activity. Plaintiff has not identified any work-related limitation due to a somatoform 13 disorder that was omitted from the RFC in this case, and therefore she has failed to establish 14 harmful error.6 Similarly, the Court finds that the ALJ erred by concluding that the fact that 15 Dr. Ruddell was performing a “one time examination for benefits” somehow rendered her 16 opinion less credible. Such reasoning is not consistent with the law of this Circuit. These 17 errors were harmless in this case, however, because the ALJ provided several other specific 18 and legitimate reasons, supported by substantial evidence, to discount Dr. Ruddell’s opinion. 19 Plaintiff only states in a conclusory fashion that Dr. Ruddell’s opinion was “not 20 meaningfully inconsistent with any of Terry’s activities” or her “treatment history,” but 21 provides no analysis or basis for disturbing the ALJ’s findings in this regard. The Court finds 22 that, in fact, the ALJ’s conclusion that “the record shows she retains very good functioning 23 24 6 Dr. Ruddell specifically declined to opine as to the impact of this diagnosis on plaintiff’s functioning, instead deferring “to medical professionals for recitation of medical difficulties and impact on functioning.” AR at 518. ORDER - 17 1 despite her depression,” AR at 20, was amply supported by the record. The ALJ found that 2 plaintiff is only mildly restricted in her activities of daily living, as she reported she does not 3 require any assistance to perform her daily activities. AR at 14. Plaintiff reported that she can 4 making quick meals and perform household chores such as sweeping the kitchen floor, making 5 the bed, watering plants, and doing laundry. AR at 14, 264. She reported that she goes outside 6 daily, walks or drives a car, shops in stores once or twice a week as needed, and can handle her 7 funds. AR at 14. Her hobbies include reading, drawing, gardening, sewing, painting, and 8 watching television. AR at 14, 266, 518, 529. Plaintiff reported that she uses the computer 9 approximately three hours per day to check email and be on social sites, and regularly uses the 10 library. AR at 14, 308, 337, 518. The ALJ reasonably found Dr. Ruddell’s assessment of 11 moderate and marked limitations to be inconsistent with this level of functioning. See Morgan 12 v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 601-02 (9th Cir. 1992) (upholding the ALJ’s 13 rejection of treating psychologist’s opinion that claimant had marked mental limitations 14 because it was inconsistent with the claimant’s activities). 15 Similarly, the ALJ reasonably concluded that Dr. Ruddell’s opinion was inconsistent 16 with plaintiff’s treatment history for mental health issues. AR at 19-20. See 20 C.F.R. §§ 17 404.1527(c)(4), 416.927(c)(4) (“Generally, the more consistent a medical opinion is with the 18 record as a whole, the more weight we will give to that medical opinion.”). As the ALJ noted, 19 the mental health counseling notes document few symptoms and relatively good functioning. 20 AR at 19-20. Plaintiff has also received no treatment for her somatoform disorder. Plaintiff 21 has provided no analysis to disturb the ALJ’s finding. 22 Finally, the ALJ could reasonably find that Dr. Ruddell’s mental status examination 23 findings did not support a marked limitation in her ability to adapt to changes in a routine work 24 setting, or her other moderate limitations. AR at 517-21. For example, Dr. Ruddell observed ORDER - 18 1 that plaintiff’s attention to detail was adequate, and she successfully performed a three-step 2 command, and yet Dr. Ruddell assessed plaintiff with moderate limitations in her ability to 3 perform routine tasks without special supervision. AR at 519. Although plaintiff 4 demonstrated impaired concentration on the serial threes test, Dr. Ruddell also expressed 5 concerns about plaintiff’s level of effort during that test. AR at 520. Although plaintiff offers 6 an alternative view of the mental status examination findings, the ALJ could reasonably find 7 that Dr. Ruddell’s findings were inconsistent with her assessment of moderate and marked 8 limitations. AR at 519. Accordingly, the ALJ provided several specific and legitimate 9 reasons, supported by substantial evidence, for rejecting Dr. Ruddell’s opinion. 4. 10 11 Jan Lewis, Ph.D. Plaintiff argues that the ALJ erred by failing to include in her RFC non-examining 12 psychologist Dr. Lewis’ opinion that “[d]ue to her subjective experience of pain and depressive 13 symptoms, her pace may slow and persistence wane as task complexity increases.” Dkt. 19 at 14 8 (citing AR at 20, 129). However, the Court agrees with the Commissioner that there was no 15 conflict between Dr. Lewis’ opinion and the RFC in this case, because the ALJ found that 16 plaintiff was able to perform simple, repetitive tasks. AR at 15. Thus, Dr. Lewis’ opinion 17 regarding plaintiff’s ability to perform “increasingly complex tasks” does not conflict with the 18 RFC in this case, as it would if the ALJ had instead found that plaintiff could perform complex 19 tasks. Accordingly, plaintiff has not established any error in the ALJ’s treatment of Dr. Lewis’ 20 opinion. 21 C. 1. 22 23 24 The ALJ Did Not Err in Evaluating Plaintiff’s Testimony Legal Standard for Evaluating the Plaintiff’s Testimony As noted above, it is the province of the ALJ to determine what weight should be afforded to a claimant’s testimony, and this determination will not be disturbed unless it is not ORDER - 19 1 supported by substantial evidence. A determination of whether to accept a claimant’s 2 subjective symptom testimony requires a two-step analysis. 20 C.F.R. §§ 404.1529, 416.929; 3 Smolen, 80 F.3d at 1281. First, the ALJ must determine whether there is a medically 4 determinable impairment that reasonably could be expected to cause the claimant’s symptoms. 5 20 C.F.R. §§ 404.1529(b), 416.929(b); Smolen, 80 F.3d at 1281-82. Once a claimant produces 6 medical evidence of an underlying impairment, the ALJ may not discredit the claimant’s 7 testimony as to the severity of symptoms solely because they are unsupported by objective 8 medical evidence. Bunnell v. Sullivan, 947 F.2d 341, 343 (9th Cir. 1991) (en banc); Reddick v. 9 Chater, 157 F.3d 715, 722 (9th Cir. 1988). Absent affirmative evidence showing that the 10 claimant is malingering, the ALJ must provide “clear and convincing” reasons for rejecting the 11 claimant’s testimony.7 Burrell v. Colvin 775 F.3d 1133, 1136-37 (9th Cir. 2014) (citing 12 Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012)). See also Lingenfelter v. Astrue, 504 13 F.3d 1028, 1036 (9th Cir. 2007). 14 When evaluating a claimant’s subjective symptom testimony, the ALJ must specifically 15 identify what testimony is not credible and what evidence undermines the claimant’s 16 complaints; general findings are insufficient. Smolen, 80 F.3d at 1284; Reddick, 157 F.3d at 17 722. The ALJ may consider “ordinary techniques of credibility evaluation,” including a 18 claimant’s reputation for truthfulness, inconsistencies in testimony or between testimony and 19 conduct, daily activities, work record, and testimony from physicians and third parties 20 concerning the nature, severity, and effect of the alleged symptoms. Thomas v. Barnhart, 278 21 22 23 24 7 In Social Security Ruling (SSR) 16-3p, the Social Security Administration rescinded SSR 96-7p, eliminated the term “credibility” from its sub-regulatory policy, clarified that “subjective symptom evaluation is not an examination of an individual’s character[,]” and indicated it would more “more closely follow [its] regulatory language regarding symptom evaluation.” SSR 16-3p. However, this change is effective March 28, 2016 and not applicable to the July 30, 2015 ALJ decision in this case. The Court, moreover, continues to cite to relevant case law utilizing the term credibility. ORDER - 20 1 F.3d 947, 958-59 (9th Cir. 2002) (citing Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th 2 Cir. 1997)). 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 2. The ALJ Provided Several Clear and Convincing Reasons for Discounting Plaintiff’s Testimony The ALJ found that although plaintiff’s “medically determinable impairments could possibly cause the alleged symptoms…the claimant’s statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible for the reasons stated below.” AR at 17. Specifically, the ALJ cited two reasons for finding plaintiff’s testimony not fully credible in this case: (1) plaintiff’s testimony was inconsistent with the medical evidence, and (2) plaintiff’s testimony regarding her limitations was inconsistent with her daily activities. AR at 18-19. As discussed below, the Court finds that the ALJ’s reasons were clear, convincing, and supported by substantial evidence. First, the ALJ rejected plaintiff’s testimony because it was inconsistent with the medical evidence. AR at 17-18. The ALJ includes a very lengthy discussion of the evidence relating to both plaintiff’s physical and mental limitations in her discussion. AR at 17-19. With respect to plaintiff’s physical limitations, the ALJ found that plaintiff’s statements were inconsistent with the objective medical evidence. For example, the ALJ pointed out that although treatment providers have found that plaintiff has diffuse spasms, tightness and tenderness of the neck and upper back with reduced range of motion, her physical examinations have been otherwise unremarkable. AR at 17. Moreover, “electrodiagnostic study of the left upper extremity was unremarkable,” “diagnostic imaging of the thoracic spine showed mild to moderate multilevel degeneration,” and “diagnostic imaging of the cervical spine showed no more than mild abnormalities.” AR at 17. The ALJ concluded that “these clinical findings do not suggest disabling physical limitations.” AR at 17. The ALJ 24 ORDER - 21 1 specifically pointed out that “the claimant’s allegations are not fully consistent with the 2 objective medical evidence,” as plaintiff alleges that she has “constant neck pain and fatigue” 3 and is unable to “sit or stand for more than 10 to 20 minutes.” AR at 18. She alleged that “she 4 could not walk more than half a block without stopping to rest.” AR at 18. In light of the fact 5 that diagnostic imaging showed only mild abnormalities and “treatment providers repeatedly 6 noted she was negative for fatigue, malaise, muscle weakness, gait change, and numbness and 7 tingling,” the ALJ could reasonably conclude that although plaintiff experiences neck pain “the 8 objective medical evidence does not support the severity of symptoms alleged at the hearing.” 9 AR at 18. Inconsistency with the medical evidence was a clear and convincing reason for the 10 ALJ to find plaintiff’s testimony less than fully credible. See Bray v. Comm’r of Soc. Sec. 11 Admin., 554 F.3d 1219, 1227 (9th Cir. 2009). 12 Similarly, the ALJ found that plaintiff’s allegations related to her depression were 13 inconsistent with the medical evidence. AR at 18. For example, plaintiff alleged that 14 “because of her daily chronic pain she was severely depressed and could barely function on a 15 daily basis” due to “a lot of panic attacks,” frequent crying spells, and because she could “only 16 pay attention 2 to 5 minutes depending on pain levels.” AR at 18. The ALJ pointed out 17 plaintiff’s presentation and performance on mental status examination for numerous treatment 18 providers contradicted plaintiff’s statements, because they reflected adequate attention, 19 concentration, and memory, and the ability to complete a three-step command. AR at 18. 20 Plaintiff also reported being able to get along “very well” with authority figures, follow written 21 instructions “very well,” and that she can finish what she starts without breaks. AR at 18. The 22 ALJ could reasonably conclude that “the medical evidence when considered as a whole” is 23 inconsistent with plaintiff’s statements, and instead supports the ALJ’s finding that plaintiff 24 can perform the mental demands of some simple unskilled work. AR at 19. Accordingly, ORDER - 22 1 inconsistency with the objective medical evidence was a clear and convincing reason for the 2 ALJ to find plaintiff’s testimony less than fully credible. See Bray v. Comm’r of Soc. Sec. 3 Admin., 554 F.3d 1219, 1227 (9th Cir. 2009) (“In reaching a credibility determination, an ALJ 4 may weigh inconsistencies between the claimant’s testimony and his or her conduct, daily 5 activities, and work record, among other factors.”). 6 Finally, the ALJ found that plaintiff’s “daily activities are not limited to the extent one 7 would expect, given the complaints of disabling symptoms and limitations.” AR at 19. As 8 discussed above, plaintiff reported that she did not require assistance with her activities of 9 daily living, and reported that she is able to prepare meals daily, perform household chores 10 (such as sweeping the kitchen floor, making the bed, watering plants, and laundry), going 11 outside daily and alone, traveling by walking and driving a car, visiting the library, and 12 shopping in stores once or twice a week as needed. AR at 19. Plaintiff further reported that 13 her hobbies include reading, drawing, gardening, sewing, painting, watching television, and 14 using the computer about three hours per day checking email and on social sites. AR at 19. 15 The ALJ could reasonably conclude that plaintiff’s daily activities contradicted her statements 16 that she could barely function on a daily basis, only lift between a half pound and one pound, 17 or stand or walk for long periods. AR at 336, 341, 262, 267, 304, 309, 336, 341, 343. 18 Similarly, plaintiff’s statements that she can only concentrate for two to five minutes at a time, 19 AR at 341, is contracted by her hobbies such as reading, sewing, painting, and drawing, which 20 require significant concentration. AR at 14, 266, 308, 337, 518. Inconsistencies between 21 plaintiff’s testimony and her daily activities is a clear and convincing reason for the ALJ to 22 find plaintiff’s statements less than fully credible. See Bray, 554 F.3d at 1227. Accordingly, 23 plaintiff has not shown that the ALJ erred in evaluating plaintiff’s subjective symptom 24 testimony. ORDER - 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 D. The ALJ Did Not Err in Evaluating the Lay Witness Testimony of Plaintiff’s Roommate In order to determine whether a claimant is disabled, an ALJ may consider lay-witness sources, such as testimony by nurse practitioners, physicians’ assistants, and counselors, as well as “non-medical” sources, such as spouses, parents, siblings, and friends. See 20 C.F.R. § 404.1527(f). Such testimony regarding a claimant’s symptoms or how an impairment affects his/her ability to work is competent evidence, and cannot be disregarded without comment. Dodrill v. Shalala, 12 F.3d 915, 918-19 (9th Cir. 1993). If an ALJ chooses to discount testimony of a lay witness, he must provide “reasons that are germane to each witness,” and may not simply categorically discredit the testimony. Dodrill, 12 F.3d at 919. Plaintiff alleges that the ALJ erred by discounting the lay witness statements of her roommate, Leslie DeGrote. AR at 313-20. Ms. DeGrote completed a third party function report for plaintiff on July 10, 2013. AR at 313-20. She indicated that plaintiff “is in constant pain, mostly back but also some leg and foot. She can’t do anything for extended periods. She can’t walk long distances without hurting.” AR at 313. She indicated that plaintiff is able to do some “light chores and cares for the pets. Spends some time on the computer.” AR at 314. Ms. DeGrote further indicated that “pain wakes her up,” and “she has been in constant pain as long as I’ve known her. She was a store clerk before and pharmacy tech.” AR at 314. She indicated that plaintiff does not require special reminders to care for herself, and she can perform light cleaning, laundry, and sweep the kitchen floor. AR at 315. Ms. DeGrote indicated that plaintiff goes outside daily, and can go out alone, drive a car, and shop for groceries without assistance. AR at 316. Her hobbies include reading, gardening, caring for pets, visiting the library, and watching TV. AR at 317. She indicated that plaintiff “is depressed a lot,” and has “been in pain since I’ve known her.” AR at 318. 24 ORDER - 24 1 The ALJ found that Ms. DeGrote’s statements “are given some weight because they 2 reflect her personal observations of the claimant. However, I am unable to find the statement 3 probative in terms of the ultimate issue of disability in light of the medical and other factors of 4 this case.” AR at 21. The ALJ indicated that Ms. DeGrote “was reliant on the claimant’s 5 subjective description of her impairments, which are not entirely credible in this case. Further I 6 conclude that the lay witness statements cannot outweigh the analysis of the objective clinical 7 and laboratory evidence, as well as the claimant’s overall functional abilities.” AR at 21. The 8 ALJ then cited to the objective evidence and treatment providers’ examination findings that she 9 found to be inconsistent with Ms. DeGrote’s lay witness statement. AR at 21. 10 The ALJ did not err. Inconsistency with the medical evidence is a germane reason to 11 reject a lay witness’s opinion. Bayliss, 427 F.3d at 1218. Ms. DeGrote indicated that plaintiff 12 was in constant pain, could not do anything for extended periods, walk “maybe 200 yards,” and 13 could do some light chores. AR at 313, 318. The ALJ reasonably concluded that her opinion 14 was inconsistent with the objective medical findings and physical examination findings, which 15 the ALJ afforded more weight. AR at 21. 16 In addition, the ALJ discounted Ms. DeGrote’s lay witness statements because she relied 17 on plaintiff’s subjective description of the severity of her pain and limitations, which the ALJ 18 found not entirely credible. AR at 21. The ALJ could reasonably reject Ms. DeGrote’s opinion 19 to the extent she was relying on plaintiff’s subjective reports. AR at 313-14, 317-18. See 20 Valentine v. Commissioner Social Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009). Accordingly, 21 the ALJ properly provided specific and germane reasons for affording Ms. DeGrote’s opinion 22 limited weight. 23 24 ORDER - 25 VIII. 1 2 CONCLUSION The role of this Court is limited. As noted above, the ALJ is responsible for 3 determining credibility, resolving conflicts in medical testimony, and resolving any other 4 ambiguities that might exist. Andrews, 53 F.3d at 1039. When the evidence is susceptible to 5 more than one rational interpretation, it is the Commissioner’s conclusion that must be upheld. 6 Thomas, 278 F.3d at 954. While it may be possible to evaluate the evidence as plaintiff 7 suggests, it is not possible to conclude that plaintiff’s interpretation is the only rational 8 interpretation. For the foregoing reasons, the Commissioner’s decision is AFFIRMED. 9 DATED this 30th day of October, 2017. A 10 11 JAMES P. DONOHUE Chief United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 ORDER - 26

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