David Frost v. Michael J Astrue, No. 5:2012cv00212 - Document 15 (C.D. Cal. 2012)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Marc L. Goldman: For the reasons set forth below, the decision of the Commissioner is affirmed. (See document for details.) For the reasons stated above, it is ORDERED that the decision of the Commissioner be affirmed and this case be dismissed with prejudice. (rla)
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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 CENTRAL DISTRICT OF CALIFORNIA 7 EASTERN DIVISION 8 9 DAVID FROST, 10 Plaintiff, 11 12 13 v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 14 Defendant. 15 ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. EDCV 12-00212-MLG MEMORANDUM OPINION AND ORDER 16 17 Plaintiff David Frost seeks judicial review of the Commissioner s 18 final decision denying his application for Supplemental Security Income 19 ( SSI ) benefits under Title XVI of the Social Security Act. 42 U.S.C. 20 § 1381 et seq. For the reasons set forth below, the decision of the 21 Commissioner is affirmed. 22 23 I. Background 24 Plaintiff was born on December 14, 1956. (Administrative Record 25 ( AR ) at 117.) He has a high school education and has work experience 26 as a hydraulic technician and clerk. (AR at 123, 127.) Plaintiff filed 27 his 28 disability since April 12, 2008 due to depression. (AR at 10, application for SSI benefits on November 18, 2008, alleging 1 51.) 2 Plaintiff s application was denied initially on March 4, 2009, and 3 upon reconsideration on 4 administrative 5 Administrative Law Judge ( ALJ ) Joseph Schloss. Plaintiff, represented 6 by counsel, testified, as did a Vocational Expert ( VE ). (AR at 25-38.) 7 On October 18, 2010, ALJ Schloss issued an unfavorable decision. 8 (AR at 10-19.) The ALJ found that the Plaintiff had not engaged in 9 substantial gainful activity since the alleged onset date. (AR at 13.) 10 The ALJ further found that pursuant to 20 C.F.R. 416.920(c), the medical 11 evidence established that Plaintiff suffered from the severe impairment 12 of a depressive disorder with anxiety features. (Id.) However, the ALJ 13 concluded that Plaintiff s impairments did not meet nor equal, one of 14 the listed impairments in 20 C.F.R., Part 404, Subpart P, Appendix 1. 15 (Id.) hearing June was 4, 2009. held on (AR at September 52-56, 1, 57-61.) 2010, An before 16 The ALJ found that Plaintiff retained the residual functional 17 capacity ( RFC ) to perform a full range of work at all exertional 18 levels with the following limitations: the claimant is precluded from 19 work that requires safety operation, responsibility for the safety of 20 others, and hypervigilance. (AR at 14.) 21 the VE s testimony that there were a significant number of jobs in the 22 national economy that Plaintiff could perform, such as industrial 23 cleaner, hand packager, and bench assembler. (AR at 18-19.) The ALJ 24 found that Plaintiff was not disabled within the meaning of the Social 25 Security Act. See 20 C.F.R. § 416.920(f). (AR at 19.) The ALJ concluded, based on 26 On January 6, 2012, the Appeals Council denied review (AR at 1-3). 27 Plaintiff timely commenced this action for judicial review. On August 28 13, 2012, the parties filed a Joint Stipulation ( Joint Stip. ) of 2 1 disputed facts and issues. Plaintiff contends that the ALJ erred in 2 failing to: (1) properly consider the treating physician s opinion; (2) 3 consider the side effects of Plaintiff s medication; (3) provide a 4 complete assessment of Plaintiff s RFC; (4) pose a complete hypothetical 5 question to the VE; and (5) properly consider lay witness testimony. 6 (Joint Stip. at 2-3.) Plaintiff seeks reversal of the Commissioner s 7 denial 8 alternative, remand for a new administrative hearing. (Joint Stip. at 9 27.) The Commissioner requests that the ALJ s decision be affirmed. 10 of his application and payment of benefits or, in the (Id.) 11 12 13 II. Standard of Review Under 42 U.S.C. § 405(g), a district court may review the 14 Commissioner s decision to deny benefits. The Commissioner s or ALJ s 15 decision must be upheld unless the ALJ s findings are based on legal 16 error or are not supported by substantial evidence in the record as a 17 whole. 18 Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means 19 such evidence as a reasonable person might accept as adequate to support 20 a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Widmark 21 v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). It is more than a 22 scintilla, but less than a preponderance. Robbins v. Soc. Sec. Admin., 23 466 F.3d 880, 882 (9th Cir. 2006). To determine whether substantial 24 evidence supports a finding, the reviewing court must review the 25 administrative record as a whole, weighing both the evidence that 26 supports 27 conclusion. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1996). If 28 the evidence can support either affirming or reversing the ALJ s Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1990); Parra v. and the evidence that detracts from the Commissioner s conclusion, the reviewing court may not substitute its judgment for that of the ALJ. Robbins, 466 F.3d at 882. 3 1 III. Discussion 2 A. 3 The ALJ Accorded Appropriate Weight to the Opinion of Plaintiff s Treating Physician 4 Plaintiff contends that the ALJ erred in failing to give 5 controlling weight to the opinion of Plaintiff s treating physician, Dr. 6 Amador. (Joint Stip. at 3.) On December 9, 2008, Dr. Amador completed an 7 assessment which concluded that Plaintiff had the following mental 8 limitations: he could not maintain a sustained level of concentration; 9 he could not sustain repetitive tasks for an extended period; he could 10 not adapt to new or stressful situations; and he could not complete a 40 11 hour work week without decompensating. (AR at 211.) 12 An ALJ should generally accord greater probative weight to a 13 treating physician s opinion than to opinions from non-treating sources. 14 See 15 legitimate reasons for rejecting a treating physician s opinion in favor 16 of a non-treating physician s contradictory opinion. Orn v. Astrue, 495 17 F.3d 625 (9th Cir. 2007); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 18 1996). However, the ALJ need not accept the opinion of any medical 19 source, including a treating medical source, if that opinion is brief, 20 conclusory, and inadequately supported by clinical findings. Thomas, 21 278 F.3d at 957; accord Tonapetyan, 242 F.3d at 1149. The factors to be 22 considered by the adjudicator in determining the weight to give a 23 medical opinion include: [l]ength of the treatment relationship and the 24 frequency of examination by the treating physician; and the nature and 25 extent of the treatment relationship between the patient and the 26 treating 27 404.1527(d)(2)(i)-(ii), 416.927(d)(2)(i)-(ii). 28 20 C.F.R. § 404.1527(d)(2). physician. Orn, 495 The F.3d // 4 ALJ at must give 631-33; 20 specific C.F.R. and §§ 1 The ALJ provided legitimate reasons for refusing to give Dr. 2 Amador s opinion controlling weight, which were supported by substantial 3 evidence in the record. The ALJ reviewed and summarized Plaintiff s 4 relevant mental health records from November 2007 to October 2009. (AR 5 at 15-17.) After discussing these records in detail, the ALJ found that 6 the December 9, 2008 one-page assessment was not reliable because there 7 were no treatment records or diagnostic findings to support the extreme 8 limitations found by Dr. Amador and because Dr. Amador s own treatment 9 records contradicted his finding of extreme limitations. (AR at 17.). In 10 summing up the treatment records, the ALJ found as follows: 11 For example, Dr. Amador reported that the claimant exhibited 12 paranoia because he said the world was out to get me, but on 13 November 20, 2008, the last time he saw the claimant before 14 completing this report, Dr. Amador attributed that statement 15 to the claimant s frustration over his inability to obtain 16 disability 17 claimant was moderately impaired in memory and judgment; there 18 was evidence of confusion and insomnia; and the claimant could 19 not maintain a sustained level of concentration, sustain 20 repetitive tasks for an extended period, adapt to new or 21 stressful situations, or complete a 40-hour week without 22 decompensating. However, on November 20, 2009, the claimant 23 had appropriate attention and concentration. The undersigned 24 declines 25 contradicted by the overall treatment notes, which reflect 26 primarily the claimant s complaints and frustration with his 27 financial status and the Social Security system, and not 28 objective findings, which would preclude all work activity. benefits. to adopt Dr. Dr. Amador Amador s 5 also indicated opinion that because it the is 1 (AR at 17.) 2 An ALJ may properly discredit a treating physician s opinion if it 3 is conclusory, brief, and unsupported by the record as a whole or by 4 objective medical findings. Batson v. Comm r, 359 F.3d 1190, 1195 (9th 5 Cir. 2004); Tonapetyan, 242 F.3d at 1149. The ALS s determination was 6 appropriate under this standard. 7 Finally, Plaintiff s contention that the ALJ should have re- 8 contacted Dr. Amador for clarification or additional evidence is not 9 persuasive. An ALJ has a duty to recontact a treating source only where 10 the record is ambiguous or inadequate. See 20 C.F.R. § 404.1513(b)(6); 11 Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001) (explaining 12 that the ALJ s duty to develop the record is triggered if the record is 13 ambiguous or undeveloped). However, this is not a case where the 14 evidence was inadequate to assess Dr. Amador s opinion or make a 15 disability determination. As noted above, neither the overall record nor 16 Dr. Amador s own treatment notes support his conclusion that Plaintiff 17 could not work. The fact that the medical records do not support Dr. 18 Amador s opinion does not render the records ambiguous such that the 19 ALJ s duty to supplement the record was triggered. Instead, Dr. Amador s 20 opinion on the ultimate issue of disability was simply not supported by 21 the record. Accordingly, the ALJ did not err in rejecting Dr. Amador s 22 opinion without recontacting him for clarification. 23 24 B. The ALJ Properly Considered the Type, Dosage, and Side Effects of Plaintiff s Medication 25 Plaintiff asserts that the ALJ erred by failing to specifically 26 discuss the type, dosage, and side effects of Plaintiff s medications in 27 his unfavorable decision. (Joint Stip. at 11.) In support of this 28 argument, Plaintiff notes (1) that he was taking the prescription 6 1 medications Effexor and Tramadol;1 and (2) that he testified at the 2 administrative hearing that the medications gave him headaches and dry 3 mouth and made him vomit. 4 The ALJ must consider all factors that might have a significant 5 impact on an individual s ability to work. Erickson v. Shalala, 9 F.3d 6 813, 817 (9th Cir. 1993) (emphasis in original) (quoting Varney v. 7 Secretary of Health & Human Serv., 846 F.2d 581, 585 (9th Cir. 1987)), 8 relief modified, 859 F.2d 1396 (1988)). Such factors may include side 9 effects of medications as well as subjective evidence of pain. 10 Erickson, 9 F.3d at 818; Varney, 846 F.3d at 585 ( [S]ide effects can be 11 a highly idiosyncratic phenomenon and a claimant s testimony as to 12 their limiting effects should not be trivialized. ) (citation omitted). 13 However, Plaintiff bears the burden of producing medical evidence to 14 show that any claimed side effects from medication are severe enough to 15 interfere with his ability to work. See Osenbrock v. Apfel, 240 F.3d 16 1157, 1164 (9th Cir. 2001). 17 Here, a review of Plaintiff s medical records reveals no objective 18 evidence of disabling side effects from medications that would prevent 19 Plaintiff from working. Plaintiff was prescribed Trazodone for insomnia 20 and there were no reports of any side effects. (See, e.g., AR at 126, 21 156, 165, 199, 227, 228, 247, 23, 254.) Similarly, there was only one 22 mention in November 2006 that the Effexor was giving Plaintiff an upset 23 stomach. (AR at 207.) Plaintiff s dosage of Effexor was then reduced 24 from 150 milligrams to 75 milligrams, a dosage which he took for many 25 26 1 27 28 It appears that Plaintiff was actually prescribed Trazadone, not Tramadol. Trazadone is used to treat depression and insomnia, while Tramadol is used to relieve moderate to moderately severe pain. http://www.nlm.nih.gov. 7 1 years without any apparent serious side effects. (AR at 201, 217, 226, 2 232, 233, 234, 242, 248, 263.) Furthermore, the treatment notes reflect 3 that Plaintiff complained of chronic vomiting, but it was repeatedly 4 attributed to an unknown etiology, rather than to his medications. (AR 5 at 218, 219, 221, 248, 255, 256.) 6 In support of his claim, Plaintiff cites to WebMD2 for a myriad of 7 possible side effects caused by the medications Effexor and Tramadol. 8 (Joint Stp. at 13). The Court notes that the Social Security regulations 9 do not require an ALJ to consider a claimant s medications as part of 10 every disability determination. The mere fact that a claimant takes a 11 certain medication, in and of itself, is not evidence that the claimant 12 also 13 medication. Further, a simple recitation of potential side effects from 14 a 15 experiences these side effects, which prevents him or her from working 16 because of those side effects. experiences particular any one medication of the does possible not side establish effects that this from that claimant 17 Accordingly, because there was no evidence in the medical record 18 regarding any serious side effects from Plaintiff s medication, the 19 ALJ s failure to discuss these alleged side effects was not error. See 20 Osenbrock, 240 F.3d at 1164 (finding that passing mentions of the side 21 effects 22 insufficient evidence); Bayliss v. Barnhart, 427 F.3d 1211, 1217-18 (9th 23 Cir. 2005) (finding no error in ALJ s lack of discussion regarding 24 drowsiness from medication where the only evidence of side effects came 25 through the claimant s subjective testimony); Miller v. Heckler, 770 26 F.2d 845, 849 (9th Cir. 1985) (finding no error where medical evidence of ... medication in some of the medical 27 28 2 http://www.webmd.com/drugs/index-drugs.aspx 8 records was 1 did not show that claimant s prescribed narcotics limited his ability to 2 care for himself or relate to others). 3 C. The ALJ Properly Assessed Plaintiff s RFC 4 Plaintiff contends that the ALJ erred in determining Plaintiff s 5 RFC because the ALJ did not take into account the limitations found in 6 Dr. Amador s December 9, 2008 assessment, or those found by Dr. Kim on 7 March 23, 2010, who opined that Plaintiff was experiencing paranoid 8 delusions and had poor concentration and slightly impaired long-term 9 memory. (Joint Stip. at 15, citing AR at 211, 243.) As noted, the ALJ 10 determined that Plaintiff retained the RFC to perform all work except 11 for that involving safety operation, responsibility for the safety of 12 others, and hypervigilance. (AR at 14.) Plaintiff argues that if the ALJ 13 had included the opinions of Drs. Amador and Kim in his RFC assessment, 14 he would have been found disabled. (Joint Stip. at 16-17.) 15 A claimant s RFC is what he is capable of doing despite his 16 physical and mental limitations. 20 C.F.R. § 404.1545(a)(1); Cooper v. 17 Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). RFC is an assessment 18 of an individual s ability to do sustained work-related physical and 19 mental activities in a work setting on a regular and continuing basis. 20 SSR 9608p, 1996 WL 374184, at *1 (S.S.A. July 2, 1996). An RFC 21 assessment is ultimately an administrative finding reserved to the 22 Commissioner, based on all of the relevant evidence, including the 23 diagnoses, treatment, observations, and opinions of medical sources, 24 such as treating and examining physicians. 20 C.F.R. § 404.1527(e)(2). 25 Substantial evidence supported the ALJ s determination of 26 Plaintiff s RFC. First, as discussed in detail above, the ALJ gave 27 appropriate weight to Dr. Amador s unsupported and conclusory December 28 8, 2008 assessment. Similarly, Dr. Kim s March 23, 2010 report was 9 1 merely a check-the-box form without any supporting clinical or 2 laboratory findings or any explanation for Dr. Kim s opinions. (AR at 3 243.) See Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995) 4 (holding that ALJ properly rejected physician s determination where it 5 was conclusory and unsubstantiated by relevant medical documentation ); 6 Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996) (ALJ permissibly 7 rejected check-off reports that did not contain any explanation of the 8 bases of their conclusions ). Aside from these two opinions, there was 9 no other medical evidence in the record to support a more restrictive 10 RFC. Thus, the ALJ was not obligated to include these limitations in his 11 assessment of Plaintiff s RFC. 12 Further, the ALJ properly relied on the opinion of the state agency 13 reviewing psychiatrists, who determined that the claimant s mental 14 impairment was not severe and that the claimant had mild limitations in 15 activities of daily living, mild limitations in social functioning, mild 16 limitations in concentration, persistence or pace; and no episodes of 17 decompensation. (AR at 17, citing AR at 190-192, 193-197, 235-238.) The 18 ALJ properly included in his RFC determination only those limitations 19 that were supported by the medical evidence of record. See Bayliss, 427 20 F.3d at 1217 (finding RFC determination proper where the ALJ took into 21 account those limitations for which there was record support that did 22 not depend on [the claimant s] subjective complaints ). Plaintiff is 23 therefore not entitled to relief as to this claim of error. 24 D. 25 Plaintiff The ALJ Posed a Complete Hypothetical Question to the VE contends failed VE because pose did not a complete limitations found by Drs. Amador or Kim. (Joint Stip. at 19.) administrative hearing, 10 the it to 27 the the ALJ hypothetical At to the 26 28 question that ALJ posed include the the following 1 2 hypothetical question to the VE: Q: So we are going to assume an individual of fifty-four 3 years of age with no relevant past work. He has no 4 exertional limitations of any sort. This person s only 5 limitations are that he should not have a job where he is 6 responsible for the safety of others. He should not have 7 hypervigilance. Would there be jobs for that type of 8 person please? 9 10 A: Yes. (AR at 33-34.) 11 One way for the Commissioner to show that a Social Security 12 claimant can engage in substantial gainful activity is to pose a 13 hypothetical to a VE that reflects all of the claimant s limitations. 14 The ALJ is not required to include in the hypothetical to the VE 15 limitations that he did not find to exist. See Rollins v. Massanari, 261 16 F.3d 853, 857 (9th Cir. 2001) ( Because the ALJ included all of the 17 limitations that he found to exist, and because his findings were 18 supported by substantial evidence, the ALJ did not err in omitting the 19 other limitations that [Plaintiff] had claimed, but had failed to 20 prove. ); see also Osenbrock v. Apfel, 240 F.3d 1157, 1164-1165 (9th 21 Cir. 2001) ( An ALJ is free to accept or reject restrictions in a 22 hypothetical question that are not supported by substantial evidence. ). 23 Here the ALJ included all of the limitations that he found to 24 exist, each of which was supported by the opinions of the state agency 25 physicians. See Magallanes v. Bowen, 881 F.2d 747, 757 (9th Cir. 1989) 26 ( The limitation of evidence in a hypothetical is objectionable only if 27 the assumed facts could not be supported by the record. ) (quoting 28 Sample v. Schweiker, 694 F.2d 639, 644 (9th Cir. 1982)). The ALJ was not 11 1 required to include in Plaintiff s RFC the limitations found by Drs. 2 Amador and Kim because, as discussed in detail above, they were not 3 supported by the medical record as a whole or by the treatment notes. 4 There was no error in the hypothetical question the ALJ posed to the VE, 5 and Plaintiff is not entitled to relief on this claim. 6 E. 7 Plaintiff The ALJ Properly Considered the Lay Witness Testimony contends that the ALJ improperly discounted the 8 statements of lay witness Richard DeForest. (Joint Stip. at 22.) On 9 December 1, 2008, Mr. DeForest, a friend of Plaintiff with whom 10 Plaintiff lives, completed a Third Party Function Report, detailing his 11 observations of Plaintiff s abilities and daily activities. (AR at 139- 12 146.) The ALJ did not give great weight to Mr. DeForest s opinion: 13 Mr. DeForest stated when he met the claimant, the claimant was 14 homeless; the claimant now rents a room from Mr. DeForest so 15 there is a motive for secondary gain because the claimant has 16 no income other than general relief. More importantly, Mr. 17 DeForest s opinion is not supported by the evidence. There is 18 no evidence the claimant has significant memory problems such 19 that he needs reminders to shower, eat, or take medicine. 20 There is no evidence the claimant has significant depression 21 which confines him to bed. Mr. DeForest indicated the claimant 22 has several exertional limitations, but there is no evidence 23 the claimant is limited in lifting, squatting, standing, 24 walking, kneeling, or stair climbing; nor is there evidence 25 the claimant has significant mental impairments which limit 26 his memory, completing tasks or concentrating. 27 (AR at 17-18.) 28 // 12 1 A lay witness can provide testimony about Plaintiff s symptoms and 2 limitations. See Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996). 3 Lay testimony as to a claimant s symptoms is competent evidence that an 4 ALJ must take into account, unless he or she expressly determines to 5 disregard such testimony and gives reasons germane to each witness for 6 doing so. Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001); see also 7 Dodrill v. Shalala, 12 F.3d 915, 918-19 (9th Cir. 1993). Appropriate 8 reasons include testimony unsupported by the medical record or other 9 evidence and inconsistent testimony. Lewis, 236 F.3d at 512. 10 It was improper for the ALJ to discredit the report on the ground 11 that Mr. DeForest has a motive for secondary gain. (AR at 18). While 12 some courts have held that an ALJ may consider a witness financial 13 interest in the award of benefits in evaluating their credibility,3 the 14 Ninth Circuit has consistently held that bias cannot be presumed from a 15 familial or personal relationship. See, e.g., Regennitter v. Comm r of 16 Soc. Sec. Admin., 166 F.3d 1294, 1298 (9th Cir. 1999). This is because 17 a personal relationship is a necessity for lay witness testimony since 18 it is provided by people in a position to observe a claimant s symptoms 19 and daily activities. Dodrill, 12 F.3d at 918. The ALJ s reasoning that 20 witnesses who live with or support a claimant are not credible for 21 reasons of bias cannot be considered legally proper, since the same 22 rationale could be used to reject lay witness testimony in almost every 23 case. 24 Where one of the ALJ s several reasons supporting an adverse 25 credibility finding is invalid, the Court applies a harmless error 26 standard. See Carmickle v. Comm r of Soc. Sec. Admin., 533 F.3d 1155, 27 28 3 See Buckner v. Apfel, 213 F.3d 1006, 1013 (8th Cir. 2000); Rautio v. Bowen, 862 F.2d 176, 180 (8th Cir. 1988). 13 1 1162 (9th Cir. 2008) (citing Batson v. Comm r of Soc. Sec. Admin., 359 2 F.3d 3 substantial 4 credibility and the error does not negate the validity of the ALJ's 5 ultimate [credibility] conclusion, the error is deemed harmless and 6 does not warrant reversal. Id. at 1197; see also Stout v. Comm r of Soc. 7 Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006)(defining harmless error 8 as such error that is irrelevant to the ALJ s ultimate disability 9 conclusion ). 1190, 1195-1197 evidence (9th Cir. 2004)). supporting the As long ALJ s as there conclusions remains on ... 10 Although the ALJ improperly rejected the report on the basis of Mr. 11 DeForest s alleged financial interest in Plaintiff s obtaining SSI 12 benefits, the ALJ also provided a legitimate reason for his credibility 13 determination. The ALJ noted that Mr. DeForest s statements regarding 14 Plaintiff s alleged mental and physical limitations were unsupported by 15 the medical record. (AR at 17-18.) As discussed in detail above, there 16 was no credible evidence in the record which showed that Plaintiff s 17 depression was disabling. Inconsistency with the medical evidence is a 18 germane reason for discrediting the testimony of a lay witness. Bayliss, 19 427 F.3d at 1218. Accordingly, despite the ALJ s improper reliance upon 20 Mr. DeForest s alleged financial interest in Plaintiff obtaining SSI 21 benefits, any error was harmless as the ALJ provided a proper and 22 legitimate reason for rejecting Mr. DeForest s written statement. 23 In addition, unlike lay testimony, there is no controlling 24 precedent requiring an ALJ to explicitly address written statements, 25 such as the Third Party Function Report in this case. Indeed, it is 26 clear that an ALJ is not required to discuss all evidence in the record 27 in detail. Howard v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003). 28 Accordingly, Plaintiff s claim is without merit. 14 1 2 3 IV. Conclusion For the reasons stated above, it is ORDERED that the decision of the Commissioner be affirmed and this case be dismissed with prejudice. 4 5 DATED: August 24, 2012 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
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