Raymond Clark v. Michael J. Astrue, No. 2:2008cv07398 - Document 18 (C.D. Cal. 2009)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Marc L. Goldman. (lwag)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 12 RAYMOND CLARK, 13 Plaintiff, 14 15 16 v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 17 Defendant. 18 19 I. ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 08-07398-MLG MEMORANDUM OPINION AND ORDER Factual and Procedural Background 20 Plaintiff Raymond Clark ( Plaintiff ) seeks judicial review of the 21 Commissioner s final decision denying his application for disability 22 insurance benefits ( DIB ) pursuant to Title II of the Social Security 23 Act. Plaintiff was born on July 27, 1957. (Administrative Record ( AR ) 24 at 26, 36). He has a high school education and is able to communicate in 25 English. (AR at 14, 23, 50). Plaintiff has relevant work experience as 26 a facilities coordinator and a material handler. (AR at 26). 27 28 In January 1999, Plaintiff filed applications for DIB and supplemental security income benefits. (AR at 14). An administrative law 1 judge denied the applications after a hearing, in a decision issued on 2 July 20, 2001. (AR at 14). That decision became final when the Appeals 3 Council denied review. (AR at 14). 4 Plaintiff filed a second application for DIB on February 15, 2002. 5 (AR at 14). Administrative Law Judge Peggy Zirlin ( ALJ Zirlin ) issued 6 a decision on July 19, 2003. (AR at 14). ALJ Zirlin found that Plaintiff 7 suffered from reflex sympathetic dystrophy in the upper right extremity, 8 that Plaintiff had the residual functional capacity to lift and carry 20 9 pounds occasionally and 10 pounds frequently with the left non-dominant 10 upper extremity, stand/walk six hours in an eight-hour workday, and sit 11 six hours in an eight-hour workday, but Plaintiff should avoid exposure 12 to vibrations and was unable to crawl, reach, grasp or finger with the 13 right upper extremity. (AR at 14). Based on this residual functional 14 capacity 15 concluded that Plaintiff could perform work as an information clerk and 16 surveillance systems monitor. (AR at 15). The Appeals Council denied 17 review on April 23, 2004. (AR at 15). and the testimony from a vocational expert, ALJ Zirlin 18 Plaintiff filed his current application for DIB on May 25, 2004. 19 (AR at 87-92). Plaintiff alleged he had been disabled due to reflex 20 sympathetic dystrophy in the right dominant arm, stomach cramping, and 21 diarrhea since July 20, 2003. (AR at 14-15, 93-99, 123-32). Plaintiff s 22 insured status for DIB expired on September 30, 2003. (AR at 15). 23 Therefore, 24 Plaintiff s alleged onset date, through September 30, 2003, Plaintiff s 25 date last insured.1 (AR at 15). the period at issue in this case is July 20, 2003, 26 27 28 1 In order to qualify for disability insurance benefits, a claimant is required to establish that he was disabled on or before the date of termination of his insured status. 20 C.F.R. §404.131(b)(1); Vincent ex 2 1 The Social Security Administration denied Plaintiff s current 2 application at the initial and reconsideration stages. (AR at 58-62). An 3 administrative hearing was held before ALJ Zirlin on October 4, 2006. 4 (AR at 33-57). Plaintiff, who was represented by counsel, testified in 5 his own behalf. Id. On October 25, 2006, ALJ Zirlin issued a decision 6 denying Plaintiff s application for DIB. (AR at 14-27). ALJ Zirlin found 7 that through September 30, 2003, Plaintiff: (1) had not engaged in 8 substantial gainful activity; (2) suffered from reflex sympathetic 9 dystrophy in the dominant right upper extremity; (3) did not have any 10 impairments that met or equaled a listed impairment; (4) had the 11 residual functional capacity to lift and carry 20 pounds occasionally 12 and 10 pounds frequently with the left non-dominant upper extremity, 13 stand/walk six hours in an eight-hour workday, and sit six hours in an 14 eight-hour workday, but Plaintiff needed to avoid exposure to even 15 moderate vibrations and was unable to crawl, reach, grasp or finger with 16 the right upper extremity; and (5) was unable to perform his past 17 relevant work. (AR at 18, 26-27). Based on his residual functional 18 capacity and the testimony from the vocational expert at Plaintiff s 19 second hearing,2 ALJ Zirlin concluded that Plaintiff was not disabled 20 because he was able to perform other work that exists in significant 21 numbers in the economy, including work as an information clerk and 22 surveillance systems monitor. (AR at 15, 25-26). ALJ Zirlin found no 23 basis for reopening the prior decisions. (AR at 15). On August 27, 2008, 24 the Appeals Council denied review and ALJ Zirlin s decision became the 25 26 rel. Vincent v. Heckler, 739 F.2d 1393, 1394 (9th Cir. 1984); Flaten v. Secretary of Health & Human Serv., 44 F.3d 1453, 1463 (9th Cir. 1995). 27 2 28 The hearing transcript from Plaintiff s second hearing is not included in the record. 3 1 final decision of the Commissioner. (AR at 5-7). 2 Plaintiff commenced this action for judicial review on November 7, 3 2008. On July 13, 2009, the parties filed a joint statement of disputed 4 issues. The disputed issues are whether ALJ Zirlin: (1) improperly 5 applied administrative res judicata and relied on evidence not included 6 in the record; and (2) failed to adequately consider the medical 7 evidence and testimony of Plaintiff. (Joint Stipulation at 4-8, 12-16, 8 21-23). Plaintiff seeks remand for a payment of benefits or, in the 9 alternative, remand for a new administrative hearing and further 10 development of the record. (Joint Stipulation at 23). The Commissioner 11 requests that ALJ Zirlin s decision be affirmed. (Joint Stipulation at 12 23). The Joint Stipulation has been taken under submission without oral 13 argument. 14 15 16 II. Standard of Review Under 42 U.S.C. § 405(g), a district court may review the 17 Commissioner s decision to deny benefits. The Commissioner s or ALJ s 18 findings and decision should be upheld if they are free from legal error 19 and are supported by substantial evidence based on the record as a 20 whole. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 21 (1971); Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001). 22 Substantial evidence means such evidence as a reasonable person might 23 accept as adequate to support a conclusion. Richardson, 402 U.S. at 401; 24 Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1996). It is more than a 25 scintilla, but less than a preponderance. Reddick, 157 F.3d at 720. To 26 determine whether substantial evidence supports a finding, the reviewing 27 court must review the administrative record as a whole, weighing both 28 the evidence that supports and the evidence that detracts from the 4 1 Commissioner s conclusion. Id. If the evidence can reasonably support 2 either affirming or reversing, the reviewing court may not substitute 3 its judgment for that of the Commissioner. Id. at 720-721. 4 5 III. Discussion 6 A. ALJ s Reliance on Prior Administrative Decision 7 The principles of res judicata apply to administrative decisions. 8 A previous final determination of nondisability creates a presumption of 9 continuing nondisability with respect to any subsequent unadjudicated 10 period of alleged disability. See Lester v. Chater, 81 F.3d 821, 827 11 (9th Cir. 1996); see also Miller v. Heckler, 770 F.2d 845, 848 (9th Cir. 12 1985); Lyle v. Secretary of Health and Human Services, 700 F.2d 566, 13 568-69 (9th Cir. 1983); Social Security Acquiescence Ruling 97-4(9). 14 This 15 circumstances. Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988); 16 Taylor v. Heckler, 765 F.2d 872, 875 (9th Cir. 1985). To show changed 17 circumstances, the evidence must establish that the claimant suffers 18 from an impairment that indicates a greater disability since the prior 19 decision denying benefits. Chavez, 844 F.2d at 693. In other words, the 20 presumption of nondisability does not apply if the claimant raises an 21 issue not considered in the previous decision, such as the existence of 22 a new impairment, or demonstrates an increase in the severity of an 23 impairment, 24 functional capacity. See Lester, 81 F.3d at 827; see also Acquiescence 25 Ruling 97-4(9) ( where the final decision by the ALJ on the prior claim, 26 which found the claimant not disabled, contained findings of the 27 claimant s residual functional capacity, education, and work experience, 28 SSA may not make different findings in adjudicating the subsequent presumption either may one be of overcome which 5 by a adversely showing affects of his changed residual 1 disability claim unless there is new and material evidence relating to 2 the 3 experience ). claimant s residual functional capacity, education or work 4 Here, Plaintiff is alleging the same medical basis for disability 5 (reflex sympathetic dystrophy ( RSD )) that was previously alleged in 6 his prior two claims for benefits. Under such circumstances, the 7 presumption of continuing non-disability would ordinarily apply. See 8 Lester, 9 administrative res judicata is not applicable, as the Administration 10 implemented a Ruling during the pendency of his application that affects 11 the evaluation of RSD claims. The ruling is entitled: Social Security 12 Ruling 03-2p, Titles II and XVI: Evaluating Cases Involving Reflex 13 Sympathetic Dystrophy Syndrome/Complex Regional Pain Syndrome, 2003 WL 14 22399117 ( SSR 03-2p ). (Joint Stipulation at 4-5). In support of this 15 argument, Plaintiff cites Hallex I-2-4-40 ¶ K,3 which provides as 16 follows: 81 F.3d at 827. Nevertheless, Plaintiff asserts 17 The ALJ may not use res judicata as the basis for 18 dismissing 19 current application when there has been a change in 20 a statute, regulation, ruling or legal precedent 21 which 22 determination or decision on the prior application. 23 A new adjudicative standard exists and the issues 24 cannot be considered the same as the issues in the 25 that prior case. The ALJ must issue a decision. was [a request applied for in hearing] reaching based the on a final 26 27 28 3 HALLEX is the Commissioner of Social Security's Hearings, Appeals, and Litigation Manual. Clark v. Astrue, 529 F.3d 1211, 1216 (9th Cir. 2008) 6 1 (See Joint Stipulation at 5). Plaintiff contends that because the 2 issuance of Social Security Ruling 03-2p constitutes a change in agency 3 policy and interpretation, ALJ Zirlin could not apply administrative 4 res judicata. (Joint Stipulation at 5 (citing Hallex I-2-4-40 ¶ K and I- 5 2-9-40 ¶ E.1 (defining change of legal interpretation or administrative 6 ruling in the context of reopening final a decision))). Plaintiff s 7 argument is not persuasive. 8 First and most importantly, Hallex is an internal agency manual and 9 has no binding legal effect on the SSA or this court. Clark v. Astrue, 10 529 F.3d 1211, 1216 (9th Cir. 2008); Moore v. Apfel, 216 F.3d 864, 869 11 (9th Cir. 2000) (explaining that HALLEX is an internal guidance 12 tool[,] which does not create substantive rights); see also Christensen 13 v. 14 interpretations contained in policy statements, agency manuals, and 15 enforcement guidelines[ ] all ... lack the force of law ). As Hallex 16 does not have the force and effect of law, it is not binding on the 17 Commissioner. 18 (explaining that HALLEX has no legal force and is not binding and 19 does not prescribe substantive rules and therefore does not carry the 20 force and effect of law ); see also Lowry v. Barnhart, 329 F.3d 1019, 21 1023 (9th Cir. 2003) (stating that HALLEX does not impose[ ] judicially 22 enforceable duties ). Thus, the Court rejects Plaintiff s argument that 23 Hallex I-2-4-40 ¶ K precluded the application of res judicata in this 24 case. Bunnell, 336 F.3d at 1115; Lowry, 329 F.3d at 1023. Furthermore, 25 res judicata was not applied in this case to deny a request for hearing 26 entirely. Cf. Hallex I-2-4-40 ¶ K. Rather, res judicata was applied to 27 the period of time which had been the focus of the prior decisions. 28 Plaintiff received a hearing and an administrative decision was issued Harris County, 529 U.S. 576, 587 (2000) (holding that agency Bunnell v. Barnhart, 336 F.3d 1112, 1115 (9th Cir. 2003) 7 1 with respect to the time period during which he remained insured. Thus, 2 Hallex I-2-4-40 ¶ K was not violated. 3 Plaintiff s argument also fails because SSR 03-2p does not 4 represent a change in policy. The ruling itself clearly states that RSD 5 claims are adjudicated using the sequential evaluation process, just as 6 for any other impairment. SSR 03-2p at *6. 7 2p, ALJ Zirlin evaluated Plaintiff s claim for benefits at all five 8 steps of the sequential process. See SSR 03-2p at *6-7 (explaining that 9 if RSD is determined to be a severe impairment and the claimant s 10 impairments do not meet or equal a listed impairment, an assessment of 11 [the 12 adjudication must proceed to the fourth and, if necessary, the fifth 13 step of the sequential evaluation process ). At steps one through four, 14 ALJ Zirlin considered Plaintiff s claim and the new evidence submitted, 15 de novo. (See Joint Stipulation at 6; AR at 18-26). At step five, ALJ 16 Zirlin relied on the vocational expert testimony from the previous two 17 hearings to find that Plaintiff was capable of performing other work to 18 find Plaintiff not disabled at step five. (AR at 15, 18, 24-25, 27). 19 Although the record did not contain the transcripts of the vocational 20 experts testimony from the previous two hearings, Plaintiff has not 21 shown prejudice from the asserted omission. Significantly, ALJ Zirlin 22 found that Plaintiff s RSD impairment did not increase in severity since 23 the last two administrative decisions. (AR at 14-15, 18). Therefore, ALJ 24 Zirlin assessed Plaintiff with the exact same residual functional 25 capacity as in the previous two decisions. (AR at 15, 24). ALJ Zirlin 26 also 27 testimonies from the previous hearings. (AR at 15, 27). In view of the 28 analysis undertaken by ALJ Zirlin, any error in failing to include the claimant s carefully residual and functional thoroughly capacity] summarized 8 In accordance with SSR 03- the must be made, vocational and experts 1 transcripts in the current record was harmless. (AR at 14-15); see Curry 2 v. Sullivan, 925 F.2d 1127, 1131 (9th Cir. 1991) (harmless error rule 3 applies to review of administrative decisions regarding disability). 4 5 In sum, Plaintiff has not shown that the decision of ALJ Zirlin was tainted by legal error. 6 B. 7 Plaintiff contends that ALJ Zirlin s evaluation of the medical 8 evidence and rejection of Plaintiff s subjective symptom testimony was 9 not supported by substantial evidence. (Joint Stipulation at 13-16, 21- 10 Plaintiff s Medical Records and Subjective Pain Testimony 23). 11 1. Treating Physician Opinion 12 Plaintiff claims that ALJ Zirlin erred by improperly rejecting the 13 opinion of his treating doctor, Eric Arosemena, M.D. (Joint Stipulation 14 at 15). Dr. Arosemena has been Plaintiff s treating physician for many 15 years. (AR at 142-82, 186-256). In June 2004, about eight months after 16 Plaintiff s 17 indicating that Plaintiff s RSD prevented him from using his right arm. 18 (AR at 138). Dr. Arosemena also opined that Plaintiff s chronic pain 19 would increase if he used his left arm for strenuous or even moderate 20 activities. (AR at 138). In a Physical Capacities Evaluation form, Dr. 21 Arosemena reported that Plaintiff could sit for two hours, stand for one 22 hour, walk for one hour, bend and squat occasionally, use his left 23 hand/arm 24 occasionally, 25 occasionally. (AR at 139-40). insured to lift and status and expired, carry reach 10 above Dr. pounds shoulder Arosemena frequently level with wrote and his a 20 letter pounds left arm 26 The opinion of a treating physician is entitled to greater weight 27 than that of a non-treating physician because the treating physician is 28 employed to cure and has a greater opportunity to know and observe the 9 1 patient as an individual. Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 2 1996); Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989); Sprague 3 v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987). Where the treating 4 physician s 5 specific findings stating clear and convincing reasons for rejecting 6 it. Lester, 81 F.3d at 830; Regennitter v. Commissioner of Social 7 Security Admin., 166 F.3d 1294, 1298-99 (9th Cir. 1999). Similarly, the 8 ALJ 9 disability without clear and convincing reasons. Lester, 81 F.3d at 830. 10 This is because [t]he treating physician s continuing relationship with 11 the claimant makes him especially qualified to evaluate reports from 12 examining doctors, to integrate the medical information they provide, 13 and to form an overall conclusion as to the [claimant s] functional 14 capacities and limitations .... Id. at 833. cannot medical reject opinion a is treating uncontroverted, physician s the ultimate ALJ must make conclusions on 15 ALJ Zirlin found that Dr. Arosemena s records did not establish a 16 material change in Plaintiff s condition between the prior denial of 17 benefits and the expiration of his insured status. (AR at 20). ALJ 18 Zirlin s conclusion is consistent with and supported by the record. With 19 respect to the two-month period at issue in this case (July 20, 2003 20 through September 30, 2003), Dr. Arosemena did not report any objective 21 findings concerning Plaintiff s RSD. (AR at 20, 152-55); Thomas v. 22 Barnhart, 23 Commissioner appropriately discounted physician s opinion because it was 24 not adequately supported by clinical records or treatment records). 25 Instead, Dr. Arosemena s reports appear to be based largely on Plaintiff 26 subjective complaints sometime after Plaintiff s insured status expired. 27 (AR at 20, 152-55). As discussed more fully below, ALJ Zirlin properly 28 discredited 278 F.3d 947, Plaintiff s 957 (9th subjective 10 Cir. 2002) symptom (finding testimony. that Morgan the v. 1 Commissioner of Social Security, 169 F.3d 595, 602 (9th Cir. 1999) ( A 2 physician s opinion of disability premised to a large extent upon the 3 claimant s 4 disregarded where those complaints have been properly discounted ) 5 (quoting Fair v. Bowen, 885 F.2d 597, 605 (9th Cir. 1989)). own accounts of his symptoms and limitations may be 6 ALJ Zirlin also provided clear and convincing reasons for rejecting 7 Dr. Arosemena s assessment of Plaintiff s residual functional capacity. 8 (AR at 20, 23). ALJ Zirlin pointed out that Dr. Arosemena s opinion was 9 inconsistent with Plaintiff s established abilities. (AR at 23). For 10 example, in June 2004, Dr Arosemena noted that Plaintiff had asked him 11 to complete paperwork for his disability claim. (AR at 143). In response 12 to Plaintiff s request, Dr. Arosemena filled out a physical capacities 13 assessment and wrote a letter indicating that Plaintiff s use of his 14 left arm for even moderate activities would aggravate his chronic RSD 15 pain on his right side. (AR at 138). However, in other records, Dr. 16 Arosemena specifically noted that Plaintiff used his left hand for 17 almost everything. (AR at 22, 154, 203). This apparent inconsistency was 18 a proper basis for discounting Dr. Arosemena s opinion. See Saelee v. 19 Chater, 94 F.3d 520, 522 (9th Cir. 1996) (the ALJ could disregard an 20 examining physician s opinion because it was obtained solely for the 21 purposes of the administrative hearing, varied from [the physician s] 22 own treatment notes, and was worded ambiguously in an apparent attempt 23 to assist [the claimant] in obtaining social security benefits ). 24 Plaintiff himself even admitted that he was able to shop, drive, 25 maintain his home, care for his dog, cook, do laundry, load the 26 dishwasher, vacuum, and take care of his personal needs without use of 27 his right arm. (AR at 22, 113, 116-18). When a claimant s testimony 28 about daily activities is inconsistent with a condition that would 11 1 preclude all work activity, the ALJ may reject a physician s opinion to 2 the contrary. See, e.g., Morgan, 169 F.3d at 602-03; Curry, 925 F.2d at 3 1130. Finally, Dr. Arosemena s assessment of Plaintiff s functional 4 limitations was not relevant to the period at issue in this case, as it 5 was prepared in June 2004, long after Plaintiff s insured status 6 expired. (AR at 23). See Flaten v. Sec'y of Health & Human Servs., 44 7 F.3d 1453, 1461 & n.4 (9th Cir. 1995) (observing that a long line of 8 cases has established that a claimant must establish disability as of 9 the date last insured, and that any deterioration in her condition 10 subsequent to that time is, of course, irrelevant (quoting Waters v. 11 Gardner, 452 F.2d 855 (9th Cir. 1971))). Thus, it was appropriate for 12 ALJ Zirlin to disregard Dr. Arosemena s functional capacity assessment. 13 Plaintiff also contends that ALJ Zirlin failed to properly consider 14 a 15 Stipulation at 15, 21-22, 202-03). However, that record pertained to the 16 previously adjudicated period. Therefore, ALJ Zirlin was not required to 17 discuss it in the decision. See Vincent v. Heckler, 739 F.2d 1393, 18 1394-95 (9th Cir. 1984) (explaining that ALJ need only explain why 19 significant, probative evidence was rejected). medical 20 record 2. 21 from Dr. Arosemena dated June 5, 2003. (Joint Plaintiff s Subjective Pain Testimony Plaintiff next contends that the ALJ Zirlin failed to properly 22 consider 23 Stipulation at 16). 24 Plaintiff s testimony regarding his impairments. (Joint The determination of credibility and the resolution of conflicts in 25 the 26 Commissioner. Morgan, 169 F.3d at 599; Saelee, 94 F.3d at 522). In 27 general, an ALJ s assessment of credibility should be given great 28 weight. Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985). The ALJ may testimony are functions of the 12 ALJ acting on behalf of the 1 employ ordinary techniques of credibility evaluation and may take into 2 account prior inconsistent statements or a lack of candor by the 3 witness. Fair, 885 F.2d at 604 n.5. However, once a claimant has 4 presented medical evidence of an underlying impairment, the ALJ may not 5 discredit the claimant s testimony regarding subjective pain and other 6 symptoms merely because the symptoms, as opposed to the impairments, are 7 unsupported by objective medical evidence. Lingenfelter v. Astrue, 504 8 F.3d 1028, 1035-36 (9th Cir. 2007); Reddick v. Chater, 157 F.3d 715, 722 9 (9th Cir. 1998); Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 10 1997). [T]he ALJ can reject the claimant s testimony about the 11 severity of her symptoms only by offering specific, clear and convincing 12 reasons for doing so. Lingenfelter, 504 F.3d at 1036 (quoting Smolen, 13 80 F.3d at 1281. 14 In this case, Plaintiff reported that his condition deteriorated 15 since his last hearing. (AR at 50). He also testified that he suffers 16 from depression and that his medications cause him to be constipated. 17 (AR at 50). 18 ALJ Zirlin found that Plaintiff s medically determinable 19 impairments could have reasonably been expected to produce Plaintiff s 20 symptoms, but that the intensity, persistence and limiting effects of 21 those symptoms were not entirely credible for the period from July 20, 22 2003, through September 30, 2003. (AR at 25). As ALJ Zirlin made no 23 finding that Plaintiff was malingering, she was required to justify her 24 adverse credibility determination with clear and convincing reasons. 25 Benton v. Barnhart, 331 F.3d 1030, 1040 (9th Cir. 2003). 26 In evaluating Plaintiff s alleged symptoms and limitations, ALJ 27 Zirlin found that Plaintiff received 28 consisted of only medication management. (AR at 25); see Fair, 885 F.2d 13 conservative treatment which 1 at 604 (an ALJ may rely on a claimant s conservative treatment regimen 2 to reject a claimant s testimony of disabling limitations or disabling 3 pain); see also Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995) 4 (that the claimant received only conservative treatment for back injury 5 is a clear and convincing reason for disregarding testimony that the 6 claimant is disabled). During the period at issue, Plaintiff took only 7 one Percocet (analgesic) per day for pain. (AR at 25, 154). More 8 aggressive 9 Plaintiff s doctors. (AR at 25). And, while Dr. Arosemena instructed 10 Plaintiff to exercise, the record does not show that Plaintiff made any 11 effort to comply with this recommendation. (AR at 25); see Fair, 885 12 F.2d at 603 (holding that non-compliance with prescribed treatment is 13 proper 14 Furthermore, in finding Plaintiff not entirely credible, ALJ Zirlin 15 observed 16 discussions with his doctor concerning nerve blocks. (AR at 25, 43, 47); 17 see Smolen, 80 F.3d at 1283-84 (an ALJ may consider inconsistent 18 statements made by a claimant in evaluating credibility). treatment, evidence including relating inconsistencies to in surgery, the was credibility Plaintiff s not of testimony prescribed the by patient). regarding his 19 ALJ Zirlin properly employed ordinary techniques of credibility 20 determination to conclude that Plaintiff s subjective complaints were 21 not entirely credible. See Fair, 885 F.2d at 604 n.5; see also 20 C.F.R. 22 §§ 404.1529(c), 416.929(c); SSR 96-7p. As such, remand or reversal is 23 not warranted on this issue. 24 // 25 // 26 // 27 // 28 // 14 1 2 3 IV. Conclusion For the reasons stated above, the final decision of Commissioner of Social Security is AFFIRMED. 4 5 DATED: August 20, 2009 6 7 8 ______________________________ Marc L. Goldman United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15 the

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