Manuel Trujillo v. Michael J Astrue, No. 5:2008cv01930 - Document 16 (C.D. Cal. 2009)

Court Description: MEMORANDUM OPINION; ORDER by Magistrate Judge Oswald Parada. IT THEREFORE IS ORDERED that Judgment be entered affirming the decision of the Commissioner, and dismissing this action with prejudice. (See document for specifics) (mrgo)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 MANUEL TRUJILLO, ) Case No. EDCV 08-1930-OP ) Plaintiff, ) v. ) MEMORANDUM OPINION; ORDER ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ) The Court1 now rules as follows with respect to the disputed 17 18 19 20 21 issues listed in the Joint Stipulation ( JS ).2 /// /// /// 22 23 24 1 Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the United States Magistrate Judge in the current action. (See Dkt. Nos. 8, 9.) 2 As the Court advised the parties in its Case Management Order, the decision in this case is being made on the basis of the pleadings, the 26 Administrative Record, and the Joint Stipulation filed by the parties. In 27 accordance with Rule 12(c) of the Federal Rules of Civil Procedure, the Court has 28 determined which party is entitled to judgment under the standards set forth in 42 U.S.C. § 405(g). 25 1 1 I. 2 DISPUTED ISSUES 3 As reflected in the Joint Stipulation, the disputed issues which Plaintiff 4 raises as the grounds for reversal and/or remand are as follows: 5 1. 6 7 the record, as ordered by the Appeals Council Order; 2. Whether the ALJ properly considered certain treating and consultative opinions;3 and 8 9 Whether the Administrative Law Judge ( ALJ ) properly developed 3. Whether the ALJ properly considered Plaintiff s obesity. 10 (JS at 3.) 11 II. 12 STANDARD OF REVIEW 13 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s decision 14 to determine whether the Commissioner s findings are supported by substantial 15 evidence and whether the proper legal standards were applied. DeLorme v. 16 Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means more 17 than a mere scintilla but less than a preponderance. Richardson v. Perales, 402 18 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971); Desrosiers v. Sec y of 19 Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial 20 evidence is such relevant evidence as a reasonable mind might accept as adequate 21 to support a conclusion. Richardson, 402 U.S. at 401 (citation omitted). The 22 Court must review the record as a whole and consider adverse as well as 23 supporting evidence. Green v. Heckler, 803 F.2d 528, 529-30 (9th Cir. 1986). 24 Where evidence is susceptible of more than one rational interpretation, the 25 Commissioner s decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 26 1452 (9th Cir. 1984). 27 28 3 The Court combines Plaintiff s second and third contentions into one discussion. (JS at 3.) 2 1 III. 2 DISCUSSION 3 A. The ALJ Fully and Fairly Developed the Record. 4 Plaintiff contends that the ALJ failed to properly develop the record by 5 failing to comply with the Appeals Council order to seek clarification regarding 6 Dr. Rose Colonna s psychiatric evaluation. (JS at 3-8.) The Court disagrees. 7 1. 8 The ALJ has an independent duty to fully and fairly develop a record in Applicable Law. 9 order to make a fair determination as to disability, even where, as here, the 10 claimant is represented by counsel. Celaya v. Halter, 332 F.3d 1177, 1183 (9th 11 Cir. 2003); see also Tonapetyan v. Halter, 242 F.3d, 1144, 1150 (9th Cir. 2001); 12 Crane v. Shalala, 76 F.3d 251, 255 (9th Cir. 1996). The duty is heightened when 13 the claimant is unrepresented or is mentally ill and thus unable to protect her own 14 interests. Celaya, 332 F.3d at 1183; Higbee v. Sullivan, 975 F.2d 558, 562 (9th 15 Cir.1992); see also Burch v. Barnhart, 400 F.3d 676, 682-83 (9th Cir. 2005) 16 (distinguishing Burch from Celaya at least in part, based on the fact that the 17 plaintiff in Burch was represented by counsel). Ambiguous evidence, or the ALJ s 18 own finding that the record is inadequate to allow for proper evaluation of the 19 evidence, triggers the ALJ s duty to conduct an appropriate inquiry. See 20 Tonapetyan, 242 F.3d at 1150. 21 2. 22 On September 17, 2005, the Appeals Council remanded the previous Analysis. 23 decision and stated: 24 The record includes a January 2005 psychological evaluation. Dr. 25 Colonna reported in connection with that evaluation that the claimant 26 achieved a Verbal IQ score of 65, a Performance IQ score of 91 and a 27 Full Scale IQ score of 88, and that the test results were valid. However, 28 she did not diagnose mental retardation or borderline intellectual 3 1 functioning (based on the Full Scale IQ score of 65),or discuss that score 2 at all. If necessary, the Administrative Law Judge will recontact the 3 doctor to clarify the situation. 4 (Administrative Record ( AR ) at 100.) Notably, the Appeals Council mistakenly 5 stated a Full Scale IQ score of 65. Dr. Rose Colonna s psychiatric evaluation 6 indicated a Full Scale IQ score of 88. (Id. at 340.)4 Nevertheless, Dr. Colonna 7 opined, Given the test results and clinical data, the claimant is functioning in low 8 average range of intellectual ability. (Id. at 341.) Dr. Colonna also assessed 9 Plaintiff with a Global Assessment of Functioning ( GAF )5 score of 45, or 10 [s]erious symptoms . . . OR any serious impairment in social, occupational, or 11 school functioning. (AR at 342); DSM-IV at 34. 12 Contrary to Plaintiff s contention, the Appeals Council did not order the 13 ALJ to contact Dr. Colonna, but rather gave the ALJ discretion to seek 14 clarification. (AR at 98-101.) In complying with the Appeals Council order, the 15 ALJ relied upon the testimony of the medical expert to interpret Dr. Colonna s 16 findings. (Id. at 24, 449-56.) In the current decision, the ALJ stated: 17 Dr. David Anderson testified as a psychiatric expert. He concluded 18 from the file that the claimant has an affective disorder with moderate 19 difficulties maintaining concentration, persistence and pace, but 20 otherwise only mild difficulties in performing activities of daily living 21 22 4 24 5 On January 14, 2005, Dr. Colonna completed a consultative psychiatric 23 evaluation on Plaintiff. (AR at 338-42.) 25 26 27 28 GAF scores reflect the clinician s judgment of the individual s overall level of functioning . . . [including] psychological, social and occupational functioning and are not meant to be a conclusive medical assessment of overall functioning, but rather, are only intended to be useful in planning treatment[,] . . . measuring its impact, and in predicting outcome. Diagnostic and Statistical Manual of Mental Disorders ( DSM-IV ), 32-34 (American Psychiatric Ass n ed., 4th ed. 2000). 4 1 and social interaction. Dr. Anderson specifically found that the GAF 2 score of 45 as determined by Dr. Rose Colonna in January 2005 was 3 inconsistent with the record. 4 (Id. at 24.) Thus, the ALJ properly relied on substantial evidence, i.e., the 5 testimony of the medical expert, to discredit Dr. Colonna s inconsistent GAF 6 finding. 7 Plaintiff mistakenly argues that the ALJ rejected Dr. Colonna s testimony 8 completely. (JS at 3-8, 10-11.) The ALJ only rejected Dr. Colonna s inconsistent 9 GAF finding and other similar observations indicating serious social, 10 occupational, or school functioning. (AR at 24.) In her opinion, Dr. Colonna 11 opined that Plaintiff could perform at least simple, unskilled work, which was 12 consistent with the ALJ s residual functional capacity ( RFC ) assessment). (Id. 13 at 26, 342.)6 14 Additionally, the ALJ relied upon the subsequent psychiatric examination 15 performed by Dr. Steven Brawer to determine the extent, if any, of Plaintiff s 16 mental impairments.7 (Id. at 22, 24, 375-81.) The ALJ stated: 17 At the claimant s request, he was sent out for psychological testing 18 which showed only mild functional limitations. It is noted that the 19 20 21 22 23 24 25 26 27 28 6 The ALJ provided the following RFC assessment: [T]he claimant has the residual functional capacity to perform light work with a preclusion from kneeling and crawling, a limitation to occasional crouching and occasional pushing, pulling and reaching overhead with the left upper extremity, an avoidance of hazards and pulmonary irritants and moderate limitations in the ability to understand, remember and carry out detailed work instructions, maintain concentration and attention for extended periods of time, interact appropriately with the general public and get along with coworkers or peers. (AR at 26.) 7 On December 3, 2007, Dr. Brawer completed a psychological evaluation on Plaintiff. (AR at 375-81.) 5 1 claimant has never had treatment from any mental health provider, only 2 having taken psychotropic medications prescribed by the family 3 physician. 4 (Id. at 24, 449-56.) The record supports the ALJ s finding. Similar to Dr. 5 Colonna, Dr. Brawer concluded that Plaintiff had a Full Scale IQ score of 89. 6 (Id. at 340, 379.) This IQ score would, as Dr. Colonna also opined, place the 7 patient in the Low Average Range of general intelligence. (Id. at 341, 379.) Like 8 Dr. Colonna, Dr. Brawer concluded that Plaintiff could perform at least simple, 9 repetitive tasks. (Id. at 342, 380.) The ALJ relied upon Dr. Brawer s opinion, and 10 implicitly Dr. Colonna s opinion, to assess Plaintiff s RFC. (Id. at 26.) 11 Accordingly, the record contains no ambiguous or inadequate evidence 12 regarding Dr. Colonna s opinion, as the ALJ relied upon the opinion of the 13 medical expert to partially reject the inconsistent GAF score. Additionally, the 14 ALJ relied on a subsequent examination, similar to Dr. Colonna s opinion, to 15 assess Plaintiff s RFC. As a result, the ALJ s duty to develop the record as to 16 ambiguous evidence is not triggered. See Tonapetyan, 242 F.3d at 1150; see also 17 Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001). Moreover, the record 18 was adequate for the ALJ to interpret Dr. Colonna s opinion, as the ALJ relied 19 upon the medical expert testimony and a subsequent psychological evaluation for 20 further clarification. (AR at 22-26.) Thus, Plaintiff fails to explain how the 21 medical record was ambiguous or inadequate regarding Dr. Colonna s opinion. 22 See Mayes, 276 F.3d at 458 (citing 42 U.S.C. § 423(d)(5) (Supp. 2001) and Clem 23 v. Sullivan, 894 F.2d 328, 330 (9th Cir. 1990)) (plaintiff has a duty to prove that 24 she is disabled). 25 Based on the foregoing, the Court finds that the ALJ fully and fairly 26 developed the record with respect to Plaintiff s alleged mental impairments. Thus, 27 there was no error. 28 / / / 6 1 B. The ALJ Properly Considered the Opinions of the Consultative and 2 Treating Sources. 3 Plaintiff contends the ALJ failed to provide specific and legitimate reasons, 4 supported by substantial evidence, to reject the findings of consultative physician, 5 Dr. Colonna, and treating physician, Dr. Hector Flores. (JS at 10-11, 13-17.) 6 1. 7 It is well-established in the Ninth Circuit that a treating physician s opinions Applicable Law. 8 are entitled to special weight, because a treating physician is employed to cure and 9 has a greater opportunity to know and observe the patient as an individual. 10 McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989). The treating 11 physician s opinion is not, however, necessarily conclusive as to either a physical 12 condition or the ultimate issue of disability. Magallanes v. Bowen, 881 F.2d 747, 13 751 (9th Cir. 1989). The weight given a treating physician s opinion depends on 14 whether it is supported by sufficient medical data and is consistent with other 15 evidence in the record. See 20 C.F.R. § 404.1527(d)(2). If the treating 16 physician s opinion is uncontroverted by another doctor, it may be rejected only 17 for clear and convincing reasons. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 18 1995); Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991). If the treating 19 physician s opinion is controverted, it may be rejected only if the ALJ makes 20 findings setting forth specific and legitimate reasons that are based on the 21 substantial evidence of record. Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 22 2002); Magallanes, 881 F.2d at 751; Winans v. Bowen, 853 F.2d 643, 647 (9th 23 Cir. 1987). 24 However, the Ninth Circuit also has held that [t]he ALJ need not accept the 25 opinion of any physician, including a treating physician, if that opinion is brief, 26 conclusory, and inadequately supported by clinical findings. Thomas, 278 F.3d 27 at 957; see also Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 28 1992). A treating or examining physician s opinion based on the plaintiff s own 7 1 complaints may be disregarded if the plaintiff s complaints have been properly 2 discounted. Morgan v. Comm r of Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir. 3 1999); see also Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997); Andrews 4 v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995). Additionally, [w]here the opinion 5 of the claimant s treating physician is contradicted, and the opinion of a 6 nontreating source is based on independent clinical findings that differ from those 7 of the treating physician, the opinion of the nontreating source may itself be 8 substantial evidence; it is then solely the province of the ALJ to resolve the 9 conflict. Andrews, 53 F.3d at 1041; Magallanes, 881 F.2d at 751; Miller v. 10 Heckler, 770 F.2d 845, 849 (9th Cir. 1985). 11 2. 12 Plaintiff argues the ALJ failed to provide specific and legitimate reasons, The Opinion of Dr. Colonna. 13 supported by substantial evidence, to reject the opinion of Dr. Colonna. (JS at 1014 11.) The Court disagrees. 15 As stated above, the ALJ relied on medical expert testimony to partially 16 reject Dr. Colonna s opinion as to Plaintiff s GAF score. See supra, Discussion 17 Part III.A.2; see also Thomas, 278 F.3d at 957; Matney, 981 F.2d at 1019. To the 18 extent that Plaintiff argues the ALJ reject all of Dr. Colonna s findings, that 19 contention is without merit. The ALJ relied upon a subsequent psychological 20 evaluation, consistent with Dr. Colonna s opinion, to assess Plaintiff s RFC. See 21 supra, Discussion Part III.A.2. Thus, the ALJ provided specific and legitimate 22 reasons, based upon substantial evidence, to partially reject Dr. Colonna s opinion. 23 3. 24 Plaintiff next contends that the ALJ failed to provide specific and legitimate The Opinion of Dr. Flores. 25 reasons, supported by substantial evidence, to reject the findings of Dr. Flores. (JS 26 at 16-17.) The Court disagrees. 27 On September 14, 2007, Dr. Flores completed a physical RFC 28 questionnaire. (AR at 367-71.) In the questionnaire, Dr. Flores diagnosed 8 1 Plaintiff with diabetes mellitus, hypertension, left shoulder impingement 2 syndrome, right knee degenerative joint disease, and major depression. (Id. at 3 367.) He indicated Plaintiff s prognosis was fair. (Id.) Based on the severity of 4 Plaintiff s pain, Dr. Flores opined that Plaintiff cannot lift more than fifteen 5 pounds and was precluded from a full range of motion in his left shoulder. (Id.) 6 Dr. Flores also opined that Plaintiff is unable to climb stairs, squat, or stand for a 7 prolonged period due to pain in his right knee. (Id.) Dr. Flores opined Plaintiff s 8 functional limitations as follows: (i) Plaintiff can walk one block without rest; (ii) 9 Plaintiff can continuously sit for thirty minutes and stand for ten minutes; (iii) 10 Plaintiff can stand or walk for about two hours, and sit for about four hours, in an 11 eight-hour workday with normal breaks; (iv) Plaintiff requires a job which permits 12 shifting at will from sitting, standing, and walking; (v) Plaintiff will need to take 13 unscheduled breaks for about twenty minutes during an eight-hour workday; (vi) 14 Plaintiff can occasionally lift ten pounds or less, and can never lift twenty pounds 15 or more; (vii) Plaintiff is unable to reach out with his left arm at a full extension; 16 (viii) Plaintiff has limitations with grasping, turning, twisting, fine manipulation, 17 reaching, and overhead reaching; and (ix) Plaintiff requires the use of an assistive 18 device for ambulation. (Id. at 367-71.) Dr. Flores also concluded that Plaintiff 19 would be absent from work at least three days per month due to his impairments or 20 treatment. (Id. at 371.) 21 Here, the ALJ rejected Dr. Flores opinion as follows: 22 I do not give weight to the unsupported assertions Dr. Flores makes in 23 the disability form. I give greater weight to the treatment notes that the 24 doctors made at the time claimant was examined and that were created 25 for the sole purpose of making an official record of the claimant s 26 medical condition, treatment, and response to treatment, than I give 27 weight to a disability form that was completed solely for the purpose of 28 qualifying the claimant for benefits, and which is inconsistent with those 9 1 treatment notes and the claimant s actual daily functioning. I also give 2 weight to the objective findings and observed functional limitations 3 from the consultative examiners. I do not give weight to any assessment 4 that relies solely on the claimant s subjective complaints and self 5 assessed functional limitations because the claimant s complaints and 6 statements are not credible. Thus, Dr. Flores recordation and repetition 7 of the claimant s subjective assertions and contentions in the disability 8 form, in the absence of corroborative medical findings, is not an 9 independent, well supported medical evaluation and assessment of the 10 claimant s condition and functional abilities. 11 (Id. at 23.) 12 The record supports the ALJ s contention, as Dr. Flores treatment notes do 13 not validate the above functional limitations. (AR at 217-23, 271-332, 343-55, 14 367-71.) For example, in June 2001, Dr. Flores noted that Plaintiff suffered from 15 mild left shoulder pain but was able to perform normal activities. (Id. at 287, 331.) 16 On July 9, 2001, Dr. Flores noted that Plaintiff had a full range of motion in his 17 left shoulder. (Id. at 286, 330.) On April 27, 2006, Dr. Flores reported that 18 Plaintiff s knee condition was stable. (Id. at 347.) On July 14, 2006, Dr. Flores 19 stated that Plaintiff had an improved range of motion in his left shoulder. Thus, 20 the ALJ rejected the opinion of Dr. Flores, as it was inadequately supported by the 21 doctor s treatment records. Thomas, 278 F.3d at 957; see also Matney, 981 F.2d at 22 1019. 23 Moreover, Dr. Flores s findings are largely based upon Plaintiff s subjective 24 complaints, which the ALJ properly discounted.8 (AR at 26-28.) As a result, the 25 ALJ properly rejected Dr. Flores opinion. Morgan, 169 F.3d at 602; see also 26 Sandgathe, 108 F.3d at 980; Andrews, 53 F.3d at 1043. The ALJ also relied upon 27 28 8 Plaintiff does not contest the ALJ s credibility finding. Thus, the Court declines to discuss this issue. 10 1 the opinions of the consultative examiners, whose findings were supported by 2 independent clinical evidence, to reject the opinion of Dr. Flores.9 (AR at 22-24, 3 356-66, 375-87); see also Andrews, 53 F.3d at 1041; Magallanes, 881 F.2d at 751; 4 Miller, 770 F.2d at 849. 5 Based upon the foregoing, the Court finds that the ALJ provided specific 6 and legitimate reasons, supported by substantial evidence, to properly reject Dr. 7 Flores opinion. Thus, there was no error.10 8 C. Reversal Is Not Warranted Based on the ALJ s Alleged Error with 9 Respect to His Failure to Consider Plaintiff s Obesity. 10 Plaintiff s final contention is that the ALJ should have taken into account 11 Plaintiff s obesity in arriving at the decision. (JS at 20-23.) Plaintiff bases his 12 contention on the opinion of Dr. Flores, who indicated that Plaintiff s chronic knee 13 pain worsened from weight gain. (Id. at 21; AR at 344.) Plaintiff also argues that 14 he suffered from hypertension, which was exacerbated by his obesity. (JS at 21.) 15 16 9 19 10 Plaintiff does not contest the validity of the consultative examiners 17 opinions. Thus, the Court declines to elaborate on the individual findings of the 18 consultative examiners. 20 21 22 23 24 25 26 27 28 Plaintiff also argues that the ALJ failed to properly develop the record as to Dr. Flores opinion. However, the record contains no ambiguous or inadequate evidence regarding Dr. Flores opinion, as the ALJ reviewed and summarized Dr. Flores treatment records and related findings. (AR at 22-24.) Plaintiff fails to identify how the record was ambiguous or inadequate regarding Dr. Flores opinion. See Mayes, 276 F.3d at 458 (citing 42 U.S.C. § 423(d)(5) (Supp. 2001) and Clem v. Sullivan, 894 F.2d 328, 330 (9th Cir. 1990)) (plaintiff has a duty to prove that she is disabled). As a result, the ALJ s duty to develop the record as to ambiguous or inadequate evidence is not triggered. See Tonapetyan, 242 F.3d at 1150; see also Mayes, 276 F.3d at 459-60. Additionally, the record was adequate for the ALJ to determine Plaintiff s RFC, as the ALJ relied upon the findings of consultative examiners, the medical expert s opinion, and Plaintiff s testimony and statements regarding his daily activities. (AR at 22-26.) Thus, there was no error. 11 1 The Court disagrees. 2 Generally, where there is evidence of obesity, the ALJ must determine the 3 effect of the plaintiff s obesity upon his other impairments, his ability to work, and 4 his general health. See, e.g., Celaya v. Halter, 332 F.3d at 1181; see also SSR 025 01p (requiring an ALJ to consider the effects of obesity at several points in the 6 ALJ s evaluation). In Celaya, the Ninth Circuit held that it was error for an ALJ 7 not to develop the record on an obesity condition when that condition was likely a 8 partial basis for the claimant s disability, or could exacerbate her reported 9 illnesses, and where the claimant had proceeded pro se and likely never knew that 10 she could assert obesity as a partial basis for her disability. Celaya, 332 F.3d at 11 1183. 12 In Burch, the Ninth Circuit distinguished its holding in Celaya, reasoning 13 that the ALJ had no duty to consider the represented plaintiff s obesity because 14 there was no indication in the record that her obesity exacerbated her other 15 impairments. Burch, 400 F.3d at 682. The court noted that there was no evidence 16 before the ALJ, and none in the record, indicating that Burch s obesity limited her 17 functioning; there were no treatment notes or any diagnoses addressing her 18 limitations due to obesity; the record was silent as to whether and how her obesity 19 might have exacerbated her condition; Burch did not specify which listing she 20 believed she would have met or equaled had her obesity been considered; and she 21 did not present any testimony or other evidence at the hearing that her obesity 22 impaired her ability to work. Id. at 682-83. Moreover, unlike the claimant in 23 Celaya, Burch had been represented by counsel throughout the proceedings. Id. 24 ( [m]ore significantly, Burch was represented by counsel. ). 25 The facts in this case closely resemble those in Burch. Represented by 26 counsel throughout the proceedings, Plaintiff presented no evidence that his 27 obesity was disabling or that it exacerbated his hypertension or other severe 28 impairments. See Burch, 400 F.3d at 682. While Dr. Flores indicated the 12 1 Plaintiff s knee pain worsened due to weight gain, Dr. Flores did not opine that 2 Plaintiff suffered any functional limitations due to his obesity or even his greater 3 knee pain. (AR at 344.) This is not enough for this Court to find error. See, e.g., 4 Burch, 400 F.3d at 683 (holding that there was no reversible error in the ALJ s 5 failure to consider the represented plaintiff s obesity where the only evidence in 6 the record consisted of notes from doctors observing weight gain, indicating 7 obesity, and recommending a medically supervised weight loss program). Nor 8 does Plaintiff in this case set forth any evidence which would support the finding 9 that Plaintiff s impairments met or equaled a Listing when obesity is included. Id. 10 at 683 (plaintiff bears the burden of proving the impairment meets or equals the 11 criteria of a listing; ALJ s failure to consider equivalence not error where claimant 12 did not offer any theory, plausible or otherwise, as to how his impairments 13 combined to equal a listing). Plaintiff cites to instances in the record indicating 14 hypertension, but there are no instances of doctors opining that his hypertension 15 was exacerbated due to his obesity or that he suffered any related functional 16 limitations. (AR at 275, 277-85, 300, 311-12, 314-16, 318-28, 365.) As in Burch, 17 there simply is no evidence in this record of any functional limitations as a result 18 of Plaintiff s obesity that the ALJ should have, yet failed, to consider. 19 Accordingly, the Court finds there was no error in the ALJ s failure to 20 address Plaintiff s obesity. 21 IV. 22 ORDER 23 Based on the foregoing, IT THEREFORE IS ORDERED that Judgment be 24 entered affirming the decision of the Commissioner, and dismissing this action 25 with prejudice. 26 27 Dated: December 11, 2009 28 HONORABLE OSWALD PARADA United States Magistrate Judge 13

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