Helen Henderson v. Michael J Astrue, No. 5:2011cv01913 - Document 20 (C.D. Cal. 2012)

Court Description: MEMORANDUM OPINION by Magistrate Judge Jacqueline Chooljian. The decision of the Commissioner of Social Security is affirmed. See memorandum for details. (hr)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 HELEN HENDERSON, 12 Plaintiff, 13 14 15 16 17 v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. _________________________ ) Case No. EDCV 11-1913 JC ) ) ) MEMORANDUM OPINION ) ) ) ) ) ) ) ) 18 19 I. On December 8, 2011, plaintiff, Helen Henderson ( plaintiff ), filed a 20 21 22 23 Complaint seeking review of the Commissioner of Social Security s denial of plaintiff s application for benefits. The parties have consented to proceed before a United States Magistrate Judge. This matter is before the Court on the parties cross motions for summary 24 25 26 27 28 SUMMARY judgment, respectively ( Plaintiff s Motion ) and ( Defendant s Motion ). The Court has taken both motions under submission without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15; December 12, 2011 Case Management Order ¶ 5. /// 1 1 Based on the record as a whole and the applicable law, the decision of the 2 Commissioner is AFFIRMED. The findings of the Administrative Law Judge 3 ( ALJ ) are supported by substantial evidence and are free from material error.1 4 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE 5 DECISION 6 On December 23, 2008, plaintiff filed an application for Disability 7 Insurance Benefits. (Administrative Record ( AR ) 82). Plaintiff asserted that 8 she became disabled on December 6, 2008, due to inability to focus and rest, pain 9 in shoulder and neck, irritable bowel, headache, stress, high blood pressure, 10 diabetes, high cholesterol, and depression. (AR 113). The ALJ examined the 11 medical record and heard testimony from plaintiff (who was represented by 12 counsel) on June 15, 2010. (AR 24-37). 13 On August 27, 2010, the ALJ determined that plaintiff was not disabled 14 through the date of the decision. (AR 10-19). Specifically, the ALJ found: 15 (1) plaintiff suffered from the following severe impairment: bipolar affective 16 disorder (AR 12); (2) plaintiff s impairments, considered singly or in combination, 17 did not meet or medically equal a listed impairment (AR 12-13); (3) plaintiff 18 retained the residual functional capacity to perform a full range of work at all 19 exertional levels, but could not perform work as a security guard around persons 20 that are mostly under the age of 18, such as in primary schools or high schools 21 (AR 13); (4) plaintiff could not perform her past relevant work (AR 18); (5) there 22 are jobs that exist in significant numbers in the national economy that plaintiff can 23 perform (AR 18-19); and (6) plaintiff s allegations regarding her limitations were 24 25 1 The harmless error rule applies to the review of administrative decisions regarding 26 disability. See Batson v. Commissioner of Social Security Administration, 359 F.3d 1190, 1196 27 (9th Cir. 2004) (applying harmless error standard); see also Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1054-56 (9th Cir. 2006) (discussing contours of 28 application of harmless error standard in social security cases). 2 1 not credible to the extent they were inconsistent with the ALJ s residual functional 2 capacity assessment (AR 16). 3 The Appeals Council denied plaintiff s application for review. (AR 1). 4 III. APPLICABLE LEGAL STANDARDS 5 A. 6 To qualify for disability benefits, a claimant must show that the claimant is Sequential Evaluation Process 7 unable to engage in any substantial gainful activity by reason of a medically 8 determinable physical or mental impairment which can be expected to result in 9 death or which has lasted or can be expected to last for a continuous period of at 10 least twelve months. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citing 11 42 U.S.C. § 423(d)(1)(A)). The impairment must render the claimant incapable of 12 performing the work claimant previously performed and incapable of performing 13 any other substantial gainful employment that exists in the national economy. 14 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. 15 § 423(d)(2)(A)). 16 In assessing whether a claimant is disabled, an ALJ is to follow a five-step 17 sequential evaluation process: 18 (1) 19 20 Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two. (2) Is the claimant s alleged impairment sufficiently severe to limit 21 the claimant s ability to work? If not, the claimant is not 22 disabled. If so, proceed to step three. 23 (3) Does the claimant s impairment, or combination of 24 impairments, meet or equal an impairment listed in 20 C.F.R. 25 Part 404, Subpart P, Appendix 1? If so, the claimant is 26 disabled. If not, proceed to step four. 27 /// 28 /// 3 1 (4) Does the claimant possess the residual functional capacity to 2 perform claimant s past relevant work? If so, the claimant is 3 not disabled. If not, proceed to step five. 4 (5) Does the claimant s residual functional capacity, when 5 considered with the claimant s age, education, and work 6 experience, allow the claimant to adjust to other work that 7 exists in significant numbers in the national economy? If so, 8 the claimant is not disabled. If not, the claimant is disabled. 9 Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th 10 Cir. 2006) (citing 20 C.F.R. §§ 404.1520, 416.920). 11 The claimant has the burden of proof at steps one through four, and the 12 Commissioner has the burden of proof at step five. Bustamante v. Massanari, 262 13 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1098); see also 14 Burch, 400 F.3d at 679 (claimant carries initial burden of proving disability). 15 B. 16 Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of Standard of Review 17 benefits only if it is not supported by substantial evidence or if it is based on legal 18 error. Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 19 2006) (citing Flaten v. Secretary of Health & Human Services, 44 F.3d 1453, 1457 20 (9th Cir. 1995)). Substantial evidence is such relevant evidence as a reasonable 21 mind might accept as adequate to support a conclusion. Richardson v. Perales, 22 402 U.S. 389, 401 (1971) (citations and quotations omitted). It is more than a 23 mere scintilla but less than a preponderance. Robbins, 466 F.3d at 882 (citing 24 Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)). 25 To determine whether substantial evidence supports a finding, a court must 26 consider the record as a whole, weighing both evidence that supports and 27 evidence that detracts from the [Commissioner s] conclusion. Aukland v. 28 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (quoting Penny v. Sullivan, 2 F.3d 4 1 953, 956 (9th Cir. 1993)). If the evidence can reasonably support either affirming 2 or reversing the ALJ s conclusion, a court may not substitute its judgment for that 3 of the ALJ. Robbins, 466 F.3d at 882 (citing Flaten, 44 F.3d at 1457). 4 IV. DISCUSSION 5 A. 6 7 The ALJ Properly Considered Lay Witness Evidence From Plaintiff s Husband Plaintiff contends that the ALJ failed to provide sufficient reasons for 8 discounting the lay witness statements regarding plaintiff s mental limitations 9 provided by plaintiff s husband, Billy Henderson. (Plaintiff s Motion a 5-14) 10 (citing AR 166-73). The Court disagrees. 11 12 1. Pertinent Law Lay testimony as to a claimant s symptoms is competent evidence that an 13 ALJ must take into account, unless he expressly determines to disregard such 14 testimony and gives reasons germane to each witness for doing so. Stout, 454 15 F.3d at 1056 (citations omitted); Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 16 2001); see also Robbins, 466 F.3d at 885 (ALJ required to account for all lay 17 witness testimony in discussion of findings) (citation omitted); Regennitter v. 18 Commissioner of Social Security Administration, 166 F.3d 1294, 1298 (9th Cir. 19 1999) (testimony by lay witness who has observed claimant is important source of 20 information about claimant s impairments); Nguyen v. Chater, 100 F.3d 1462, 21 1467 (9th Cir. 1996) (lay witness testimony as to claimant s symptoms or how 22 impairment affects ability to work is competent evidence and therefore cannot be 23 disregarded without comment) (citations omitted); Sprague v. Bowen, 812 F.2d 24 1226, 1232 (9th Cir. 1987) (ALJ must consider observations of non-medical 25 sources, e.g., lay witnesses, as to how impairment affects claimant s ability to 26 work). 27 In cases in which the ALJ s error lies in a failure to properly discuss 28 competent lay testimony favorable to the claimant, a reviewing court cannot 5 1 consider the error harmless unless it can confidently conclude that no reasonable 2 ALJ, when fully crediting the testimony, could have reached a different disability 3 determination. Robbins, 466 F.3d at 885 (quoting Stout, 454 F.3d at 1055-56). 4 5 2. Pertinent Background In a Third Party Function Report dated April 13, 2009, plaintiff s husband, 6 Billy Henderson, stated, in pertinent part, that plaintiff (1) is unable to complete 7 most household tasks or personal grooming without reminders from her husband; 8 (2) sleeps most of the day; (3) is unable to sleep for days if she does not take her 9 medication; (4) leaves doors unlocked and leaves the stove on if her husband does 10 not monitor her; (5) is unable to pay bills, handle a savings account or use a 11 checkbook/money orders; (6) has difficulty concentrating, focusing, understanding 12 general conversation, and needs constant reminders; (7) has difficulty getting 13 along with others, but can engage in general conversation with limited 14 socialization, and attends church most Sundays ; (8) can pay attention for 15 to 15 20 minutes; (9) does not finish what she starts; (10) is unable to follow written 16 instructions, but can follow spoken instructions fairly well ; (11) does not handle 17 stress or changes in routine well; and (12) is short fused and grows angry rapidly 18 and does not trust anyone. (AR 166-73). 19 20 3. Analysis First, the ALJ discounted the credibility of plaintiff s complaints regarding 21 her mental limitations in part because (1) such subjective complaints were 22 inconsistent with plaintiff s testimony regarding her daily activities; (2) plaintiff 23 had not been fully compliant with her prescribed treatment; and (3) the objective 24 medical evidence did not support the severity of plaintiff s alleged mental 25 limitations. (AR 16). Plaintiff does not dispute that these were clear and 26 convincing reasons for rejecting plaintiff s subjective complaints. See, e.g., 27 Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002) (inconsistency between 28 the claimant s testimony and the claimant s conduct supported rejection of the 6 1 claimant s credibility); Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) 2 ( While subjective pain testimony cannot be rejected on the sole ground that it is 3 not fully corroborated by objective medical evidence, the medical evidence is still 4 a relevant factor in determining the severity of the claimant s pain and its 5 disabling effects. ) (citation omitted); Verduzco v. Apfel,188 F.3d 1087, 1090 (9th 6 Cir. 1999) (inconsistencies between claimant s testimony and actions cited as a 7 clear and convincing reason for rejecting the claimant s testimony); Smolen v. 8 Chater, 80 F.3d 1273, 1284 (9th Cir. 1996) (ALJ may properly consider a 9 plaintiff s failure to seek treatment or to follow a prescribed course of treatment 10 in assessing her credibility). 11 Second, plaintiff s husband s statements regarding plaintiff s mental 12 abilities were essentially the same as plaintiff s statements in her own function 13 report. (Compare AR 121-28 [plaintiff s function report] with AR 166-73 14 [plaintiff s husband s function report]). Since, as discussed above, the ALJ 15 provided clear and convincing reasons for rejecting plaintiff s own subjective 16 complaints, it follows that the ALJ also gave germane reasons for rejecting 17 plaintiff s husband s similar statements. See Valentine v. Commissioner of Social 18 Security Administration, 574 F.3d 685, 693-94 (9th Cir. 2009) (ALJ properly 19 discounted wife s testimony for same reasons used to discredit claimant s 20 complaints which were similar). 21 Therefore, since the ALJ expressly considered and rejected plaintiff s 22 husband s similar statements based upon germane reasons which are supported by 23 the record, a remand or reversal on this basis is not warranted. 24 25 26 B. The ALJ Properly Evaluated the Medical Opinion Evidence 1. Pertinent Law In Social Security cases, courts employ a hierarchy of deference to medical 27 opinions depending on the nature of the services provided. Courts distinguish 28 among the opinions of three types of physicians: those who treat the claimant 7 1 ( treating physicians ) and two categories of nontreating physicians, namely 2 those who examine but do not treat the claimant ( examining physicians ) and 3 those who neither examine nor treat the claimant ( nonexamining physicians ). 4 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996) (footnote reference omitted). A 5 treating physician s opinion is entitled to more weight than an examining 6 physician s opinion, and an examining physician s opinion is entitled to more 7 weight than a nonexamining physician s opinion.2 See id. In general, the opinion 8 of a treating physician is entitled to greater weight than that of a non-treating 9 physician because the treating physician is employed to cure and has a greater 10 opportunity to know and observe the patient as an individual. Morgan v. 11 Commissioner of Social Security Administration, 169 F.3d 595, 600 (9th Cir. 12 1999) (citing Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987)). 13 The treating physician s opinion is not, however, necessarily conclusive as 14 to either a physical condition or the ultimate issue of disability. Magallanes v. 15 Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (citing Rodriguez v. Bowen, 876 F.2d 16 759, 761-62 & n.7 (9th Cir. 1989)). Where a treating physician s opinion is not 17 contradicted by another doctor, it may be rejected only for clear and convincing 18 reasons. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (citation and internal 19 quotations omitted). The ALJ can reject the opinion of a treating physician in 20 favor of another conflicting medical opinion, if the ALJ makes findings setting 21 forth specific, legitimate reasons for doing so that are based on substantial 22 evidence in the record. Id. (citation and internal quotations omitted); Thomas v. 23 Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (ALJ can meet burden by setting out 24 detailed and thorough summary of facts and conflicting clinical evidence, stating 25 26 2 Cf. Le v. Astrue, 529 F.3d 1200, 1201-02 (9th Cir. 2008) (not necessary or practical to 27 draw bright line distinguishing treating physicians from non-treating physicians; relationship is better viewed as series of points on a continuum reflecting the duration of the treatment 28 relationship and frequency and nature of the contact) (citation omitted). 8 1 his interpretation thereof, and making findings) (citations and quotations omitted); 2 Magallanes, 881 F.2d at 751, 755 (same; ALJ need not recite magic words to 3 reject a treating physician opinion court may draw specific and legitimate 4 inferences from ALJ s opinion). The ALJ must do more than offer his 5 conclusions. Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988). He must 6 set forth his own interpretations and explain why they, rather than the 7 [physician s], are correct. Id. Broad and vague reasons for rejecting the 8 treating physician s opinion do not suffice. McAllister v. Sullivan, 888 F.2d 599, 9 602 (9th Cir. 1989). 10 11 2. Dr. Christopher A. Marsey Plaintiff contends that a remand or reversal is warranted because the ALJ 12 improperly rejected the opinions of Dr. Christopher A. Marsey, an examining 13 psychiatrist. (Plaintiffs Motion at 14-16) (citing AR 462-64). The Court 14 disagrees. 15 In the report of a psychiatric outpatient consultation dated March 25, 2009, 16 Dr. Marsey opined, in pertinent part, that (1) plaintiff exhibited quite significant 17 scatter in the neuropsychological test data ; (2) plaintiff was quite emotional 18 during the examination which likely . . . affected her performance ; (3) the results 19 of psychological testing of plaintiff were quite difficult to interpret due to 20 significant inconsistencies in the test data ; and (4) due to such inconsistent data, 21 Dr. Marsey was unable to determine if [plaintiff] [was] exhibiting any true 22 memory dysfunction, although emotional factors were at least playing a part in 23 [plaintiff s] dysfunction (collectively Dr. Marsey s Opinions ). (AR 464). 24 Here, the ALJ properly rejected Dr. Marsey s Opinions because they did not 25 meet the durational requirement i.e., they [did] not establish an inability to 26 perform work activity for any twelve month period of time. (AR 16) (citing, inter 27 alia, Exhibit 12F [AR 464]); see 42 U.S.C. § 423(d)(1)(A); Burch, 400 F.3d at 28 679; Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 1993) (in upholding the 9 1 Commissioner s decision, the Court emphasized: None of the doctors who 2 examined [claimant] expressed the opinion that he was totally disabled ); accord 3 Curry v. Sullivan, 925 F.2d 1127, 1130 n.1 (9th Cir. 1990) (upholding 4 Commissioner and noting that after surgery, no doctor suggested claimant was 5 disabled). The ALJ was not required to provide any further explanation for 6 rejecting Dr. Marsey s Opinions. See Vincent v. Heckler, 739 F.2d 1393, 1394-95 7 (9th Cir. 1984) (An ALJ must provide an explanation only when he rejects 8 significant probative evidence. ) (citation omitted). Even so, plaintiff fails to 9 demonstrate that Dr. Marsey s Opinions which essentially state no more than 10 that plaintiff has memory dysfunction due to emotional factors (AR 464) 11 reflect mental limitations that were not already accounted for in the ALJ s residual 12 functional capacity assessment. While plaintiff suggests that the medical evidence 13 shows otherwise (Plaintiff s Motion at 16), this Court will not second-guess the 14 ALJ s reasonable interpretation of the medical evidence, even if such evidence 15 could give rise to inferences more favorable to plaintiff. See Rollins, 261 F.3d at 16 857 (not court s role to second-guess ALJ s reasonable interpretation of the 17 evidence) (citation omitted). 18 19 20 21 Accordingly, a remand or reversal on this basis is not warranted. 3. Letter From Dr. Mohammed Haqqani and Dan Siegel, LCSW Plaintiff contends that a remand or reversal is warranted because the ALJ 22 improperly rejected the opinions expressed in a July 19, 2010 letter ( July Letter ) 23 signed by Dr. Mohammed Haqqani, plaintiff s treating psychiatrist, and Dan 24 Siegel, a licensed clinical social worker. (Plaintiff s Motion at 19-27) (citing AR 25 929-30). The Court disagrees. 26 First, the ALJ was not required to provide any explanation for rejecting the 27 conclusory statement we believe that you are presently disabled and probably 28 have been since shortly after the [January 2009] incident at work. (AR 929); see 10 1 Vincent, 739 F.2d at 1394-95. Such a non-medical opinion that plaintiff is entitled 2 to benefits is not binding on the Commissioner. See Boardman v. Astrue, 286 3 Fed. Appx. 397, 399 (9th Cir. 2008)3 ( [The] determination of a claimant s 4 ultimate disability is reserved to the Commissioner . . . a physician s opinion on 5 the matter is not entitled to special significance. ); Ukolov v. Barnhart, 420 F.3d 6 1002, 1004 (9th Cir. 2005) ( Although a treating physician s opinion is generally 7 afforded the greatest weight in disability cases, it is not binding on an ALJ with 8 respect to the existence of an impairment or the ultimate determination of 9 disability. ) (citation omitted); 20 C.F.R. § 404.1527(d)(1) ( We are responsible 10 for making the determination or decision about whether you meet the statutory 11 definition of disability. . . . A statement by a medical source that you are 12 disabled or unable to work does not mean that we will determine that you are 13 disabled. ). 14 Second, the ALJ was entitled to disregard any opinion expressed in the July 15 Letter by Mr. Dan Siegel. To establish that she has a medical impairment, it was 16 incumbent upon plaintiff to submit evidence from an acceptable medical 17 source[]. See 20 C.F.R. § 404.1513(a). A licensed clinical social worker, such as 18 Mr. Siegel, is not an acceptable medical source. Id. 19 Third, substantial evidence supported the ALJ s decision to afford little 20 weight to Dr. Haqqani s opinions, since such opinions were not supported by the 21 treating physician s own notes or the record as a whole. See Bayliss v. Barnhart, 22 427 F.3d 1211, 1217 (9th Cir. 2005) ( The ALJ need not accept the opinion of any 23 physician, including a treating physician, if that opinion is brief, conclusory, and 24 inadequately supported by clinical findings. ) (citation and internal quotation 25 marks omitted); Connett v. Barnhart, 340 F.3d 871, 875 (9th Cir. 2003) (treating 26 27 3 Courts may cite unpublished Ninth Circuit opinions issued on or after January 1, 2007. 28 See U.S. Ct. App. 9th Cir. Rule 36-3(b); Fed. R. App. P. 32.1(a). 11 1 physician s opinion properly rejected where treating physician s treatment notes 2 provide no basis for the functional restrictions he opined should be imposed on 3 [the claimant] ). For example, as the ALJ noted, Dr. Haqqani s treatment records 4 for plaintiff reflect mental status examinations that were, on the whole, within 5 normal limits when plaintiff was compliant with prescribed medication. (AR 166 18, 514-17, 557-59, 594-96, 612-14, 654-56, 672-74, 850-51, 855-56, 861-62, 7 868-73, 884-85, 889-90, 898-900, 913-15, 927-28). Although, as plaintiff points 8 out, plaintiff was hospitalized from June 4 to June 7, 2009, for suicidal and 9 homicidal ideation, as the ALJ suggests, the medical records of such 10 hospitalization do not reflect any severe mental impairment that was not otherwise 11 accounted for in the ALJ s residual capacity assessment. (AR 16) (citing AR 69012 832). Although plaintiff suggests that the medical evidence reflects more 13 significant mental limitations (Plaintiff s Motion at 23-27), the Court will not 14 second guess the ALJ s reasonable determination that it does not. See Rollins, 15 261 F.3d at 857. 16 Fourth, as the ALJ suggested, in light of such overall unremarkable 17 objective findings, any opinions expressed in the July Letter appear to be based 18 solely on plaintiff s subjective complaints noted in plaintiff s treatment records. 19 (AR at 17, 927-28; see AR 514-17, 557-59, 594-96, 612-14, 654-56, 672-74, 85020 51, 855-56, 861-62, 868-73, 884-85, 889-90, 898-900, 913-15). The ALJ properly 21 discounted Dr. Haqqani s opinions to the extent they were based on plaintiff s 22 subjective complaints which, as noted above, the ALJ discredited. See, e.g., 23 Bayliss, 427 F.3d at 1217 (ALJ properly rejected opinion of treating physician 24 which was based solely on subjective complaints of claimant and information 25 submitted by claimant s family and friends). 26 Finally, the ALJ supported his conclusions based on the conflicting 27 opinions of the state-agency reviewing physicians who found no severe mental 28 impairment that was expected to last at least 12 months. (AR 324-37). Such 12 1 opinions were consistent with the other medical evidence of record, and therefore 2 constitute substantial evidence supporting the ALJ s decision. See Tonapetyan v. 3 Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (opinions of nontreating or 4 nonexamining doctors may serve as substantial evidence when consistent with 5 independent clinical findings or other evidence in the record); Andrews v. Shalala, 6 53 F.3d 1035, 1041 (9th Cir. 1995) ( reports of the nonexamining advisor need 7 not be discounted and may serve as substantial evidence when they are supported 8 by other evidence in the record and are consistent with it ). To the extent plaintiff 9 argues that such opinions are not substantial evidence because they fail to account 10 for approximately 500 pages of plaintiff s medical records that were added to 11 the administrative record after the state-agency physicians reviewed plaintiff s 12 case (Plaintiff s Motion at 17-19), her argument lacks merit. Plaintiff points to no 13 significant probative evidence in such records from an acceptable medical source 14 that was inconsistent with the findings of the reviewing physicians and which 15 reflects any functional limitation that would last for a continuous twelve-month 16 period or that was not already accounted for in the ALJ s residual functional 17 capacity assessment. 18 Accordingly, a remand or reversal on this basis is not warranted. 19 V. CONCLUSION 20 For the foregoing reasons, the decision of the Commissioner of Social 21 Security is affirmed. 22 LET JUDGMENT BE ENTERED ACCORDINGLY. 23 DATED: May 30, 2012 24 25 26 ______________/s/___________________ Honorable Jacqueline Chooljian UNITED STATES MAGISTRATE JUDGE 27 28 13

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