(SS) Thomas v. Commissioner of Social Security, No. 1:2008cv01316 - Document 23 (E.D. Cal. 2010)

Court Description: DECISION AND ORDER DENYING Plaintiff's 1 Social Security Complaint; ORDER Directing the Entry of Judgment for Defendant Michael J. Astrue, Commissioner of the Social Security, and Against Plaintiff Francine J. Thomas, signed by Magistrate Judge Sandra M. Snyder on 1/10/2010. CASE CLOSED. (Sondheim, M)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 FRANCINE J. THOMAS, 10 Plaintiff, 11 v. 12 MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL 13 SECURITY, 14 15 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) 1:08-cv-01316-SMS DECISION AND ORDER DENYING PLAINTIFF S SOCIAL SECURITY COMPLAINT (DOC. 1) ORDER DIRECTING THE ENTRY OF JUDGMENT FOR DEFENDANT MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, AND AGAINST PLAINTIFF FRANCINE J. THOMAS 16 Plaintiff is proceeding with counsel with an action seeking 17 judicial review of a final decision of the Commissioner of Social 18 Security (Commissioner) denying Plaintiff s application of April 19 21, 2006, for Supplemental Security Income benefits in which she 20 had claimed to have been disabled since September 1, 2006,1 due to 21 back problems, asthma, varicose veins, mental condition, and high 22 blood pressure. (A.R. 132, 136, 132-43, 339.) The parties have 23 consented to the jurisdiction of the United States Magistrate 24 Judge pursuant to 28 U.S.C. § 636(c)(1), and pursuant to the 25 order of Judge Lawrence J. O Neill filed September 30, 2008, the 26 27 28 1 Originally Plaintiff identified April 9, 1999, as the date her disability commenced, but she subsequently amended the date. (A.R. 8, 136.) 1 1 matter has been assigned to the Magistrate Judge to conduct all 2 further proceedings in this case, including entry of final 3 judgment. 4 The decision under review is that of Social Security 5 Administration (SSA) Administrative Law Judge (ALJ) James P. 6 Berry dated June 23, 2008 (A.R. 8-16), rendered after a hearing 7 held April 30, 2008, at which Plaintiff appeared and testified 8 with the assistance of counsel (A.R. 8, 17-49). The Appeals 9 Council denied Plaintiff s request for review on July 24, 2008 10 (A.R. 1-3), and thereafter Plaintiff filed his complaint in this 11 Court on September 5, 2008. Briefing commenced on May 19, 2009, 12 and was completed with the filing of Defendant s opposition on 13 July 16, 2009. The matter has been submitted without oral 14 argument to the undersigned Magistrate Judge. 15 I. Standard and Scope of Review 16 This Court has jurisdiction of the underlying controversy 17 pursuant to 42 U.S.C. §§ 1383(c)(3) and 405(g). 18 Congress has provided a limited scope of judicial review of 19 the Commissioner's decision to deny benefits under the Act. In 20 reviewing findings of fact with respect to such determinations, 21 the Court must determine whether the decision of the Commissioner 22 is supported by substantial evidence. 42 U.S.C. § 405(g). 23 Substantial evidence means "more than a mere scintilla," 24 Richardson v. Perales, 402 U.S. 389, 402 (1971), but less than a 25 preponderance, Sorenson v. Weinberger, 514 F.2d 1112, 1119, n. 10 26 (9th Cir. 1975). It is "such relevant evidence as a reasonable 27 mind might accept as adequate to support a conclusion." 28 Richardson, 402 U.S. at 401. The Court must consider the record 2 1 as a whole, weighing both the evidence that supports and the 2 evidence that detracts from the Commissioner's conclusion; it may 3 not simply isolate a portion of evidence that supports the 4 decision. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 5 2006); Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 6 It is immaterial that the evidence would support a finding 7 contrary to that reached by the Commissioner; the determination 8 of the Commissioner as to a factual matter will stand if 9 supported by substantial evidence because it is the 10 Commissioner s job, and not the Court s, to resolve conflicts in 11 the evidence. Sorenson v. Weinberger, 514 F.2d 1112, 1119 (9th 12 Cir. 1975). 13 In weighing the evidence and making findings, the 14 Commissioner must apply the proper legal standards. Burkhart v. 15 Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). This Court must 16 review the whole record and uphold the Commissioner's 17 determination that the claimant is not disabled if the 18 Commissioner applied the proper legal standards, and if the 19 Commissioner's findings are supported by substantial evidence. 20 See, Sanchez v. Secretary of Health and Human Services, 812 F.2d 21 509, 510 (9th Cir. 1987); Jones v. Heckler, 760 F.2d at 995. If 22 the Court concludes that the ALJ did not use the proper legal 23 standard, the matter will be remanded to permit application of 24 the appropriate standard. Cooper v. Bowen, 885 F.2d 557, 561 (9th 25 Cir. 1987). 26 27 28 II. Disability A. Legal Standards In order to qualify for benefits, a claimant must establish 3 1 that she is unable to engage in substantial gainful activity due 2 to a medically determinable physical or mental impairment which 3 has lasted or can be expected to last for a continuous period of 4 not less than twelve months. 42 U.S.C. § 1382c(a)(3)(A). A 5 claimant must demonstrate a physical or mental impairment of such 6 severity that the claimant is not only unable to do the 7 claimant s previous work, but cannot, considering age, education, 8 and work experience, engage in any other kind of substantial 9 gainful work which exists in the national economy. 42 U.S.C. 10 1382c(a)(3)(B); Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th 11 Cir. 1989). The burden of establishing a disability is initially 12 on the claimant, who must prove that the claimant is unable to 13 return to his or her former type of work; the burden then shifts 14 to the Commissioner to identify other jobs that the claimant is 15 capable of performing considering the claimant's residual 16 functional capacity, as well as her age, education and last 17 fifteen years of work experience. Terry v. Sullivan, 903 F.2d 18 1273, 1275 (9th Cir. 1990). 19 The regulations provide that the ALJ must make specific 20 sequential determinations in the process of evaluating a 21 disability: 1) whether the applicant engaged in substantial 22 gainful activity since the alleged date of the onset of the 23 impairment, 2) whether solely on the basis of the medical 24 evidence the claimed impairment is severe, that is, of a 25 magnitude sufficient to limit significantly the individual s 26 physical or mental ability to do basic work activities; 3) 27 whether solely on the basis of medical evidence the impairment 28 equals or exceeds in severity certain impairments described in 4 1 Appendix I of the regulations; 4) whether the applicant has 2 sufficient residual functional capacity, defined as what an 3 individual can still do despite limitations, to perform the 4 applicant s past work; and 5) whether on the basis of the 5 applicant s age, education, work experience, and residual 6 functional capacity, the applicant can perform any other gainful 7 and substantial work within the economy. See 20 C.F.R. § 416.920. 8 9 B. The ALJ s Findings Here, the ALJ found that Plaintiff had severe impairments of 10 bipolar disorder, degenerative disc disease, and asthma which did 11 not meet or medically equal a listed impairment, but she retained 12 the residual functional capacity (RFC) to lift and carry twenty 13 pounds occasionally and ten pounds frequently, sit, stand and 14 walk for six hours each out of an eight-hour day, occasionally 15 climb, but should avoid concentrated exposure to pulmonary 16 irritants; she could perform simple, repetitive tasks (SRT), 17 maintain attention, concentration, persistence, and pace, relate 18 to and interact with others, adapt to usual changes in work 19 settings, and adhere to safety rules. She could not perform her 20 past relevant work, but as a younger individual (forty-six years 21 old) with a high school education and ability to communicate in 22 English, and considering Plaintiff s work experience and RFC, 23 jobs existed in significant numbers in the national economy that 24 Plaintiff could perform. Thus, Plaintiff was not under a 25 disability since April 21, 2006.2 (A.R. 10-16.) 26 27 28 2 Although a hearing before an Plaintiff had the had presented new previous decision dated September 19, 1995, issued after a ALJ and not reviewed by the Appeals Counsel, determined that RFC to perform light work and was not disabled, Plaintiff and material evidence of additional impairments warranting a 5 1 III. The Course of the ALJ s Analysis 2 Plaintiff argues that the ALJ erred in failing to evaluate 3 the claimant s mental impairment and resulting functional 4 limitations. (Brief pp. 1, 7-9.) Plaintiff argues that the ALJ 5 failed to follow the required steps of analysis of Plaintiff s 6 functional impairment, steps that are set forth in 20 C.F.R. § 7 416.920, including determining Plaintiff s impairments or a 8 combination thereof, determining the severity of those 9 impairments and whether or not they meet or medically equal a 10 listed impairment, determining Plaintiff s RFC while considering 11 all impairments (even those that are not severe), considering 12 whether the claimant can perform past relevant work, and, if not, 13 whether an adjustment can be made to other work. Further, with 14 respect to any mental impairment found, the ALJ must engage in an 15 analysis pursuant to 20 C.F.R. § 416.920a, including identifying 16 the mentally determinable impairment and specifying the signs, 17 symptoms and findings that substantiate its presence; rating the 18 degree of functional limitation in terms of four broad areas of 19 functioning (activities of daily living, social functioning, 20 concentration, persistence, and pace, and episodes of 21 decompensation); determining whether any impairment is severe and 22 whether any severe impairment meets or is equivalent in severity 23 to a listed impairment; and assessing residual functional 24 capacity (RFC). 25 Reference to the ALJ s decision shows that the ALJ followed 26 27 28 change in her RFC. Thus, in the decision under review, the ALJ expressly concluded that the presumption of continuing non-disability did not apply. (A.R. 8.) 6 1 the required analytical path. The ALJ found that Plaintiff had 2 specified severe impairments (bipolar disorder, degenerative disc 3 disease, and asthma) at step two (A.R. 10); cited to the medical 4 evidence from Drs. Kim, Bansal, and Obrocea (A.R. 10-11); 5 evaluated the severity of the impairments and Plaintiff s 6 functionality (A.R. 11-12); concluded that Plaintiff s mental 7 impairment did not cause at least two marked limitations or one 8 marked limitation and repeated episodes of decompensation (A.R. 9 11-12); determined that the evidence did not satisfy the B and 10 C criteria (A.R. 12); and assessed Plaintiff s RFC (A.R. 1211 15). 12 Contrary to Plaintiff s assertion (Brief pp. 9-10), the ALJ 13 did not merely consider limitations concerning simple repetitive 14 tasks, attention and pace, relating to and interacting with 15 others, adaption, and adherence to safety rules. The ALJ 16 expressly considered the paragraph B and paragraph C 17 criteria. (A.R. 11-12.) The ALJ concluded that Plaintiff was 18 mildly restricted in activities of daily living; moderately 19 restricted in social functioning and maintaining concentration, 20 persistence or pace; and there were no episodes of 21 decompensation. (A.R. 12.) The ALJ considered whether a listing 22 was met. The ALJ further considered the effect of the impairments 23 on Plaintiff s RFC, expressly addressing Plaintiff s daily 24 activities, rejecting the treating physician s functional 25 assessment, and putting weight on the opinions of the state 26 agency physicians concerning Plaintiff s specific abilities 27 concerning understanding, memory, sustained concentration and 28 persistence, social interaction, and adaptation. (A.R. 14-15.) 7 1 The Court therefore concludes that the ALJ followed the 2 appropriate course of analysis in evaluating Plaintiff s 3 impairments. 4 IV. Use of Inhaler and Formulation of RFC 5 In an abundance of caution, the Court will address 6 Plaintiff s assertion made in the factual background section of 7 her brief (p. 6, ll. 10-16) that the ALJ gave no consideration to 8 Plaintiff s requirement of using a nebulizer and completely 9 disregarded the functional limitations outlined by the claimant s 10 treating physician. 11 Reference to the record shows that the ALJ did not ignore 12 Plaintiff s asthma. In various parts of the decision, the ALJ 13 detailed the medical evidence concerning Plaintiff s severe 14 impairment of asthma. He noted a long history of treatment for 15 asthma (A.R. 10), with a chest x-ray taken in January 1995 16 revealing no acute cardiopulmonary disease (A.R. 10, 197 17 [costophrenic angles and lung fields clear]). He cited to 18 neurologist Dr. Kim s orthopedic evaluation of March 2005 (A.R. 19 10-11, 202-05), in which Plaintiff reported that she smoked a 20 half pack of cigarettes per day (A.R. 203) and upon examination 21 had lungs that were clear to auscultation throughout (A.R. 204). 22 The ALJ also cited to the report of internist Dr. Radhey Bansal s 23 consultive examination of July 2006 (A.R. 11, 260-67, 261-62) in 24 which Plaintiff denied smoking and reported a history of COPD and 25 asthma episodes intermittently, getting worse off and on, with 26 medications of Albuterol inhaler, Advair inhaler, and even 27 nebulizer treatments at home. The ALJ expressly noted that Dr. 28 Bansal reported upon examination a few scattered rhonchi, 8 1 occasional basal rales, fair air entry, and no significant 2 shortness of breath,3 and that he diagnosed a history of chronic 3 obstructive pulmonary disease and bronchial asthma fairly 4 controlled with various medications. (A.R. 11, 262.) 5 Further, in the course of considering Plaintiff s RFC, the 6 ALJ undertook an analysis of Plaintiff s subjective complaints 7 which Plaintiff does not expressly challenge but which 8 demonstrates that the ALJ rejected Plaintiff s subjective 9 complaints concerning her asthma medication. The ALJ expressly 10 found that Plaintiff s impairments could reasonably expected to 11 produce the alleged symptoms but that her statements concerning 12 the intensity, persistence, and limiting effects of the symptoms 13 were not entirely credible. (A.R. 14.) 14 Plaintiff had testified at the hearing that when her asthma 15 was really bad, she had to use a nebulizer every six hours or 16 four times a day. The nebulizer was a machine that one turned on 17 and breathed through for a breathing treatment that generally 18 took about fifteen to twenty minutes per treatment. Use of it 19 varied, but Plaintiff said she had to use it four times a day at 20 least three to four times during the course of a week. She had 21 used two different machines for six or seven years. She had used 22 an Albuterol inhaler twice a day or when needed, and at the time 23 of the hearing she had instead a new ProAir inhaler that she used 24 by inhaling a single pump, waited ten minutes, and inhaled 25 another pump; she did this four to six times a day. It all would 26 start when she would suffer allergy symptoms, which irritated her 27 28 3 The record reflects that Plaintiff was observed to be pretty comfortable at rest. (A.R. 261.) 9 1 nose; she would get a sore throat and be all clogged up, and it 2 would end up in bronchitis, asthma, or respiratory infection; but 3 if she was just normal, she would use the inhaler at least twice 4 a day. She also used a steroid inhaler, Flovent or Advair 5 depending on which worked better, and Accolate pills taken 6 twice daily. She used the steroid inhaler twice a day with the 7 Albuterol when she had to take the breathing treatments. Pollen 8 or dust or anything like that would cause Plaintiff to start 9 coughing, as did the heat. Plaintiff had suffered such symptoms 10 and participated in such treatment over the past several years, 11 and it limited her walking and physical exertion in the heat. 12 (A.R. 23-29.) 13 The ALJ adverted to Plaintiff s claims of a sedentary 14 existence virtually devoid of daily activities with limitations 15 in lifting, standing, and walking. (A.R. 13-14.) He also 16 mentioned her subjective complaints regarding her asthma. In the 17 course of his credibility analysis, the ALJ stated that he had 18 considered the extent to which Plaintiff s symptoms could 19 reasonably be accepted as consistent with the objective medical 20 evidence and other evidence, and he had considered the pertinent 21 factors for credibility determination. (A.R. 12.) The ALJ stated 22 that where statements about the intensity, persistence, or 23 functionally limiting effects of pain or other symptoms were not 24 substantiated by medical evidence, he was required to make a 25 finding on the credibility of the statement based on the entire 26 case record. (A.R. 12.) The ALJ expressly noted Plaintiff s 27 undated asthma questionnaire in which she reported that she used 28 an inhaler and nebulizer four times daily and could not be 10 1 without her medications. (A.R. 13, 144-45.) The ALJ then noted 2 the inconsistent medical record of March 2005, which reflected 3 that Plaintiff had stopped using her Albuterol and Advair 4 inhalers for two days. (A.R. 13, 259.) Further, as noted by the 5 ALJ, progress notes indicated that her throat was clear, asthma 6 was stable, and lungs were clear to auscultation with no 7 wheezing. (A.R. 13, 251-59, 255 [no wheezing or retraction on 8 asthma follow-up in November 2005], 254 [same in January 2006], 9 253 [asthma stable in May 2006], 250 [March 2006, Kern Medical 10 Center outpatient aftercare instructions, with additional follow11 up instructions Please stop smoking ), 245 [April 2006 note from 12 Kern Medical Center that medications were refilled and that 13 Plaintiff smoked one-half pack per day], 230 [instruction in 14 April 20, 2006, to please stop smoking in one week], 227 [Kern 15 Medical Center assessment of stable asthma, smoker, with plan to 16 use Albuterol for nebulizer], 226 [note from April 20, 2006, that 17 lungs were clear to auscultation].) 18 In addition to the inconsistency with the medical record, 19 the ALJ noted Plaintiff s inconsistent statements concerning her 20 work history. (A.R. 13-14.) Substantial evidence supported the 21 ALJ s reasoning. In her application, Plaintiff had claimed to be 22 unable to work as of April 9, 1999 (A.R. 136), and she had 23 reported to Dr. Bansal in April 2006 that she was unable to work 24 since 1995 due to mainly severe back pain (A.R. 260.) 25 However, she inconsistently admitted in an undated work 26 history report that she worked from September 1999 through June 27 2005 as a babysitter and child care provider for three and one28 half hours a day, five days a week, walking for fifteen hours, 11 1 standing five hours, sitting one and one-half to two hours, and 2 supervising three people (interpreted as a reference to three 3 children). (A.R. 149, 146-49.) She reported to Dr. Kim in March 4 2005 that she was employed at providing childcare in her home. 5 (A.R. 203.) A Kern County Mental Health progress note from April 6 2006 reflected that Plaintiff stated that she could take care of 7 her autistic grandson ( can t sit down ). (A.R. 302.) In July 8 2007, she reported that she was taking care of all of her 9 grandchildren; in a work history report of April 2008 she 10 reported that she babysat her grandchildren from April 2007 11 through April 2008. (A.R. 184.) A letter from Dr. Obrocea of 12 April 2008 reflected that in brief periods of remission, 13 Plaintiff was able to care for her home and her grandchildren. 14 (A.R. 321.) 15 The ALJ s determination proceeded pursuant to correct legal 16 standards. Unless there is affirmative evidence that the 17 applicant is malingering, then where the record includes 18 objective medical evidence establishing that the claimant suffers 19 from an impairment that could reasonably produce the symptoms of 20 which the applicant complains, an adverse credibility finding 21 must be based on clear and convincing reasons. Carmickle v. 22 Commissioner, Social Security Administration,, 533 F.3d 1155, 23 1160 (9th Cir. 2008). Inconsistent statements are matters 24 generally considered in evaluating credibility and are properly 25 factored in evaluating the credibility of a claimant with respect 26 to subjective complaints. In rejecting testimony regarding 27 subjective symptoms, permissible grounds include a reputation for 28 dishonesty, conflicts or inconsistencies between the claimant s 12 1 testimony and his conduct or work record, or internal 2 contradictions in the testimony; and testimony from physicians 3 and third parties concerning the nature, severity, and effect of 4 the symptoms of which the claimant complains. Moisa v. Barnhart, 5 367 F.3d 882, 885 (9th Cir. 2004); Thomas v. Barnhart, 278 F.3d 6 947, 958-59 (9th Cir. 2002). The ALJ may consider whether the 7 Plaintiff s testimony is believable or not. Verduzco v. Apfel, 8 188 F.3d 1087, 1090 (9th Cir. 1999). 9 Although the inconsistency of objective findings with 10 subjective claims may not be the sole reason for rejecting 11 subjective complaints of pain, Light v. Chater, 119 F.3d 789, 792 12 (9th Cir. 1997), it is one factor which may be considered with 13 others, Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004); 14 Morgan v. Commissioner 169 F.3d 595, 600 (9th Cir. 1999). 15 Further, it was appropriate for the ALJ to consider the lack 16 of objective indicia of Plaintiff s impairments, including lack 17 of objective clinical findings, inconsistent activities of daily 18 living, use of conservative treatment, and effectiveness of 19 medications in controlling the symptoms. Soc. Sec. Ruling 96-7p 20 and 20 C.F.R. § 416.929(c)(4)(1)(vii); Smolen v. Chater, 80 F.3d 21 1273, 1284 (9th Cir. 1996); Bunnell v. Sullivan, 947 F.2d at 346 22 (9th Cir. 1991); Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 23 1995). 24 In the circumstances of the present case, Plaintiff s 25 inconsistent statements and the medical record constituted clear 26 and convincing reasons, supported by substantial evidence, for 27 the ALJ s credibility findings. The Court concludes that the ALJ 28 cited clear and convincing reasons for rejecting Plaintiff s 13 1 subjective complaints concerning her asthma and medications to 2 the extent alleged, and that the ALJ s reasons were properly 3 supported by the record and sufficiently specific to allow this 4 Court to conclude that the ALJ rejected the claimant's testimony 5 on permissible grounds and did not arbitrarily discredit 6 Plaintiff s testimony. 7 The ALJ thus was not required to include Plaintiff s claimed 8 limitations in her RFC or in the hypothetical questions 9 propounded to the vocational expert (VE). A hypothetical question 10 posed to a VE must be based on medical assumptions supported by 11 substantial evidence that reflects all the claimant s 12 limitations. Osenbrock v. Apfel, 240 F.3d 1157, 1164-65 (9th Cir. 13 2001) (citing Roberts v. Shalala, 66 F.3d at 184)). An ALJ may 14 accept or reject restrictions in a hypothetical question that are 15 not supported by substantial evidence. Osenbrock, 240 F.3d 1157, 16 1164-65. 17 V. Consideration of Expert Opinions relating to Plaintiff s RFC 18 A. Background Contentions 19 Plaintiff correctly contends that in determining a 20 claimant s RFC, it is necessary to consider all the claimant s 21 impairments. Social Security regulations define residual 22 functional capacity as the "maximum degree to which the 23 individual retains the capacity for sustained performance of the 24 physical-mental requirements of jobs." Reddick v. Chater, 157 25 F.3d 715, 724 (9th Cir. 1998) (citing 20 C.F.R. 404, Subpt. P, 26 App. 2 § 200.00(c) and Lester v. Chater, 81 F.3d 821, 833 (9th 27 Cir. 1995)). The Commissioner must evaluate the claimant's 28 14 1 "ability to work on a sustained basis." Id. (citing 20 C.F.R. § 2 404.1512(a)); Lester, 81 F.3d at 833); see 20 C.F.R. § 416.945. 3 In assessing a claimant s RFC, it is necessary to consider the 4 limiting effects of all the claimants impairments, even those 5 that are not severe. 20 C.F.R. § 416.945(a), (e); Soc. Sec. 6 Ruling 96-8p at 4; Reddick v. Chater, 157 F. 3d 715, 724 (9th Cir. 7 1998). 8 Likewise, Plaintiff is correct in asserting that the ALJ is 9 required to evaluate medical opinions. An ALJ need not discuss 10 evidence that is neither significant nor probative. Howard v. 11 Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003). However, with 12 respect to significant, probative evidence, such as an expert 13 opinion, an ALJ must explicitly reject the opinion and set forth 14 specific reasons of the requisite force for doing so. Nguyen v. 15 Chater, 100 F.3d 1462, 1464 (9th Cir. 1996). The district court 16 cannot make findings for the ALJ. Id. A district court cannot 17 affirm the judgment of an agency on a ground the agency did not 18 invoke in making its decision. Pinto v. Massanari, 249 F.3d 840, 19 847-48 (9th Cir. 2001). 20 21 B. Rejection of Dr. Obrocea s Opinion Plaintiff s specific contention is that the ALJ failed to 22 evaluate or explain the weight accorded to the evidence of 23 record from treating psychiatrist Dr. Gabriela Obrocea. (Pltf. s 24 Brief p. 1.) The Court understands this argument as asserting 25 that the ALJ failed to state specific and legitimate reasons, 26 supported by substantial evidence, for rejecting the opinion of 27 Dr. Obrocea. 28 1. Medical Record of Treatment by Dr. Obrocea 15 1 The ALJ noted the treating records of Plaintiff s 2 psychiatric evaluation and treatment in March 2006 and follow-up 3 treatment through January 2008. (A.R. 11, 290-308, 313-20.) 4 The record reveals that Kern County Mental Health 5 psychiatrist Gabriela Obrocea, M.D., completed a 6 psychiatric/medication evaluation of Plaintiff on March 7, 2006, 7 and wrote a report of the evaluation on March 21, 2006. (A.R. 8 304-07.) Plaintiff, aged forty-six, lived with two daughters aged 9 twenty-two and seventeen; she had been depressed for years, was 10 anxious, felt isolated, experienced difficulties with 11 concentration, slept poorly, and suffered nightmares from abuse 12 suffered at the hands of an ex-husband who was then incarcerated 13 for attempted murder of a neighbor. She had been more depressed 14 since her mother died in 2001, and the BuSpar and Paxil treatment 15 she had received from her primary care doctor made her somewhat 16 better, but she was only partially compliant with the Paxil 17 because it made her very sleepy, and she had gained about twenty 18 pounds from the treatment. (A.R. 305.) Mental status examination 19 revealed that Plaintiff was well-dressed and well-groomed, 20 cooperative and pleasant, with normal psychomotor activity; 21 speech showed increased latency of response but was otherwise 22 normal; mood was worried; affect was constricted but congruent 23 with mood; ideation was normal, but Plaintiff complained of 24 worries, hopelessness, and despair; thought was coherent and 25 logical, and she had auditory hallucinations with voices of her 26 daughters calling her name; and her insight and judgment were 27 fair. The diagnostic impression was post-traumatic stress 28 disorder, rule out bipolar affective disorder type II, currently 16 1 depressed, severe with psychotic features, rule out mood disorder 2 secondary to general medical condition, rule out generalized 3 anxiety disorder, with a GAF of 45. (A.R. 306.) The plan was 4 laboratory work-up and medications including Geodon for 5 depression, insomnia, and hallucinations, and Xanax for anxiety. 6 (A.R. 307.) 7 Follow-up progress notes from 2006 generally reflect that 8 Plaintiff s medications improved her condition, and mental status 9 exams revealed either an absence of symptoms or mild symptoms. A 10 psychiatric progress note from March 31, 2006, reflects that 11 Plaintiff reported that she complied with her medication, she 12 felt better, her sleep and energy were improved, and her sense of 13 joy was normal. There were no side-effects from her medication. 14 Mental status examination revealed that her mood was depressed; 15 she reported no hallucinations, sleep was all right, and appetite 16 poor. Her physical complaints were that she eats. She was 17 oriented and neatly groomed with normal speech, good eye contact, 18 unremarkable psychomotor exam, cooperative behavior, euthymic 19 mood, appropriate affect, unremarkable thought process, 20 unremarkable thought content, good insight and judgment, good 21 memory, intact concentration and attention, and average 22 intelligence. (A.R. 303.) 23 Another such progress note from April 14, 2006, reflects 24 that Plaintiff reported that her medication compliance was good, 25 she was able to take care of her autistic grandson, and 26 everything was much improved. The mental status examination 27 contained the same findings as the previous follow-up exam of 28 March 31, except that it took her only twenty minutes to fall 17 1 asleep for eight full hours, and she was still very low 2 physically. (A.R. 302.) Likewise, a progress note from April 28, 3 2006, reflects good medication compliance, reports of much 4 brighter mood and normal energy, normal sleep, a sense of joy, 5 and a much improved physical condition. Mental status examination 6 reflected the same normal and positive findings as the previous 7 notes. (A.R. 301.) 8 An undated short-form evaluation form was completed by Dr. 9 Obrocea at a time when the most recent visit had been April 28, 10 2006. (A.R. 298-300.) The diagnosis was major depressive 11 disorder, single episode, post-traumatic stress disorder, rule 12 out major depressive episode with psychotic features. (A.R. 298.) 13 The mental status exam revealed that Plaintiff was well-groomed, 14 motor activity was retarded, speech was slow, behavior was 15 cooperative, and Plaintiff was apathetic. She was oriented in all 16 spheres, had mildly impaired concentration, normal memory, 17 average intelligence, mood and affect were depressed and anxious, 18 and there were auditory and visual hallucinations; thought 19 content was nihilistic and preoccupied with suicidal and guilty 20 pessimism, judgment was intact, and as a result Plaintiff was 21 rated poor with respect to understanding, remembering, and 22 carrying out complex instructions and performing activities 23 within a schedule and maintaining regular attendance; she was 24 rated fair with respect to understanding, remembering, and 25 carrying out simple instructions, maintaining concentration, 26 attention and persistence, completing a normal workday and week 27 without interruptions from symptoms, and responding appropriately 28 to changes in a work setting. She was capable of managing funds. 18 1 (A.R. 300.) 2 On November 28, 2006, Plaintiff came in with family members 3 and reported that a week previously the father of her son was hit 4 by a truck; since then Plaintiff had been experiencing 5 forgetfulness, anxiety, and fatigue. (A.R. 296.) Her mood was sad 6 half of the time; she denied any hallucinations or negative 7 ideations; her sleep and appetite had been poor; she had slow 8 speech and intermittent eye contact, decreased psychomotor 9 activity, cooperative behavior, sad mood, appropriate affect, 10 good insight and memory, average intelligence, intact attention 11 and concentration, and she was oriented. (A.R. 296.) She was at 12 low risk for dangerous behaviors or hospitalization; with respect 13 to response to treatment, she was minimally worse. The diagnosis 14 had not changed. She was very fearful because of the accident 15 that her ex-boyfriend had and said that her nine-year-old son had 16 not yet been told. The current disability was rated as severe, 17 and Plaintiff could not work; treatment would take greater than 18 one year, and prognosis was guarded. The plan was to continue 19 current medications. (A.R. 296-97.) 20 A staff person in Dr. Obrocea s office, Patricia Pelayo 21 Arredondo, MSW, RS III, partially completed a short form 22 evaluation when the last visit had been December 12, 2006, but it 23 was unsigned and purported to be only a summary of past notes of 24 medical doctors. (A.R. 293-95.) The progress note of the visit of 25 December 12, 2006, reflected that because of the car accident of 26 the father of the son who lived with Plaintiff, Plaintiff was 27 very stressed out but denied mood swings or forgetfulness, had 28 good energy and compliance with medication, euthymic mood because 19 1 of family problems, no hallucinations, sleep was o.k., she was 2 using tobacco; grooming was neat, speech normal, eye contact 3 good, psychomotor unremarkable, behavior cooperative, mood 4 euthymic, affect appropriate, thought process and content 5 unremarkable, insight and judgment good, memory good, and 6 concentration and attention were intact. (A.R. 291.) Plaintiff s 7 response to treatment was stable, with a minor adjustment in view 8 of recent family dynamics; the diagnosis had not changed; her 9 current disability was severe, and she could not work; treatment 10 would take over a year, and prognosis was guarded. The plan was 11 to continue the current medication regimen. (A.R. 292.) 12 The record contains four other progress notes from dates in 13 July, August, and October 2007 and January 2008. (A.R. 313-20.) 14 In July 2007 Plaintiff reported taking care of all of her 15 grandchildren. Aside from sad, depressed, anxious, and irritable 16 mood and marginal appetite and sleep, the mental status exam 17 reflected no abnormalities or remarkable symptoms; and insight, 18 memory, judgment, attention, and concentration were good. 19 Diagnosis was BPAD II; However, the current disability was 20 assessed as severe, and Plaintiff could not work. (A.R. 319-20.) 21 The note from August 2007 reflects that Plaintiff was seeking 22 counsel in connection with her SSI application. Plaintiff s mood 23 was euthymic. Again, there were no abnormal or remarkable 24 symptoms found on the mental status exam. The note reflected that 25 her response to treatment was much improved. Nevertheless, the 26 notation was that the disability was severe, and Plaintiff could 27 not work; prognosis was guarded. (A.R. 317-18.) In October 2007 28 Plaintiff reported that she was still looking for a lawyer and 20 1 was trying to quit smoking. Mood was sad and euthymic; Plaintiff 2 reported nightmares and auditory hallucinations, sleep was poor, 3 and appetite o.k.; again, no abnormal or remarkable symptoms were 4 noted in the exam. (A.R. 315.) The doctor described her response 5 as being in partial remission. (A.R. 316.) Nevertheless, she 6 could not work and suffered a current disability that was severe. 7 The plan was medication: Wellbutrin, Glodin, and Atavan. (A.R. 8 316.) 9 In January 2008, Plaintiff was upset because of a 10 disappointment concerning section 8. There were no abnormal or 11 remarkable indications during the exam. (A.R. 313.) Plaintiff s 12 response to treatment was very much improved. Nevertheless, the 13 doctor rated her disability as severe. The doctor s plan included 14 an entry concerning Plaintiff s section 8 issue. (A.R. 314.) 15 On April 4, 2008, Dr. Obrocea wrote in support of 16 Plaintiff s application for SSI. (A.R. 321-22.) She wrote that 17 Plaintiff suffered from bipolar affective disorder that was 18 chronic with remission and exacerbations; she had been a patient 19 for four years, was genetically predisposed, had early trauma, 20 and during a recent evaluation she was again struggling with 21 severe psychotic depression and would be unable to care for 22 herself. The doctor said that she hoped that the upcoming hearing 23 would finally bring justice to this case. (A.R. 322.) With 24 respect to Plaintiff s capacity, Dr. Obrocea wrote: 25 26 27 For the past 10 years Mrs. Thomas has been incapacitated from work and at times disabled to the point of being unable to perform her ADL s. During very brief periods of remission, the patient does not return to her functioning baseline but is able to care for her household and grandchildren. 28 21 1 (A.R. 321.) Dr. Obrocea also completed a mental RFC assessment 2 dated April 10, 2008, in which she found that Plaintiff was 3 markedly limited in the ability to remember locations and work4 like procedures; understand, remember, and carry out detailed 5 instructions; maintain concentration and attention for extended 6 periods, perform within a schedule, maintain attendance and be 7 punctual, work with others without being distracted, make simple, 8 work-related decisions, complete a normal workday and week and 9 perform consistently without unreasonable rest periods, accept 10 instructions and respond appropriately to criticism from 11 supervisors, respond appropriately to changes in the work 12 setting, be aware of normal hazards, travel in unfamiliar places 13 or use public transportation, or set realistic goals or make 14 plans independently of others. (A.R. 323-24.) 15 16 2. Additional Medical Record On July 20, 2006, H. Biala, M.D., a non-examining state 17 agency physician, completed a RFC evaluation of Plaintiff, 18 finding that Plaintiff had sufficient ability to understand and 19 remember simple instructions; sufficient ability to carry out 20 short instructions, perform activities with directions without 21 additional support, and maintain attention in two-hour 22 increments; and sufficient ability to maintain socially 23 appropriate behavior, accept instructions and respond 24 appropriately to criticism from supervisors, interact 25 appropriately with the general public, and appropriately respond 26 to changes in the work setting. (A.R. 268-72, 271.) Biala 27 concluded that Plaintiff was moderately limited in the ability to 28 understand, remember, and carry out detailed instructions but 22 1 otherwise was not significantly limited with respect to 2 understanding and memory, sustained concentration and 3 persistence, social interaction, or adaptation. (A.R. 268-69.) 4 On March 6, 2007, non-examining psychologist Charles 5 Lawrence, Ph.D., conducted a mental impairment review of 6 Plaintiff s records in connection with the reconsideration/appeal 7 application of Plaintiff, who had alleged worsening of her 8 condition. Lawrence reviewed all the evidence in the file and 9 confirmed the psychiatric review technique form and mental RFC 10 assessment of July 20, 2006. (A.R. 309.) Lawrence stated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egal Standards 26 The standards for evaluating treating source s opinions 27 are as follows: 28 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 By rule, the Social Security Administration favors the opinion of a treating physician over non-treating physicians. See 20 C.F.R. § 404.1527. If a treating physician's opinion is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record, [it will be given] controlling weight. Id. § 404.1527(d)(2). If a treating physician's opinion is not given controlling weight because it is not well-supported or because it is inconsistent with other substantial evidence in the record, the Administration considers specified factors in determining the weight it will be given. Those factors include the [l]ength of the treatment relationship and the frequency of examination by the treating physician; and the nature and extent of the treatment relationship between the patient and the treating physician. Id. § 404.1527(d)(2)(i)-(ii). Generally, the opinions of examining physicians are afforded more weight than those of non-examining physicians, and the opinions of examining non-treating physicians are afforded less weight than those of treating physicians. Id. § 404.1527(d)(1)-(2). Additional factors relevant to evaluating any medical opinion, not limited to the opinion of the treating physician, include the amount of relevant evidence that supports the opinion and the quality of the explanation provided; the consistency of the medical opinion with the record as a whole; the specialty of the physician providing the opinion; and [o]ther factors such as the degree of understanding a physician has of the Administration's disability programs and their evidentiary requirements and the degree of his or her familiarity with other information in the case record. Id. § 404.1527(d)(3)-(6). 19 Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). 20 With respect to proceedings under Title XVI, the Court notes 21 that an identical regulation has been promulgated. See, 20 C.F.R. 22 § 416.927. 23 As to the legal sufficiency of the ALJ s reasoning, the 24 governing principles have been recently restated: 25 26 27 28 The opinions of treating doctors should be given more weight than the opinions of doctors who do not treat the claimant. Lester [v. Chater, 81 F.3d 821, 830 (9th Cir.1995) (as amended).] Where the treating doctor's opinion is not contradicted by another doctor, it may be rejected only for clear and convincing reasons supported by substantial evidence in the record. Id. 24 1 2 3 4 5 6 7 8 9 (internal quotation marks omitted). Even if the treating doctor's opinion is contradicted by another doctor, the ALJ may not reject this opinion without providing specific and legitimate reasons supported by substantial evidence in the record. Id. at 830, quoting Murray v. Heckler, 722 F.2d 499, 502 (9th Cir.1983). This can be done by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings. Magallanes [v. Bowen, 881 F.2d 747, 751 (9th Cir.1989).] The ALJ must do more than offer his conclusions. He must set forth his own interpretations and explain why they, rather than the doctors', are correct. Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir.1988). Reddick v. Chater, 157 F.3d 715, 725 (9th Cir.1998); accord Thomas, 278 F.3d at 957; Lester, 81 F.3d at 830-31. 10 Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007). 11 3. Analysis 12 Here, immediately after making his credibility finding 13 concerning Plaintiff s subjective complaints, the ALJ then 14 referred to Dr. Obrocea s letter of April 2008 concerning 15 Plaintiff s incapacitation for ten years with the exception of 16 very brief periods of remission. The ALJ reasoned: 17 18 19 20 21 22 23 24 During a recent evaluation, Dr. Obrocea established that the claimant was again struggling with severe psychotic depression and would be unable to care for herself (citation omitted). This is a contradiction of fact since she noted much improved symptoms and stable condition in successive treatment notes in 2007 (citations omitted). She also indicated severe disability and the inability to work, but was at low risk of dangerous behavior (citations omitted). Dr. Obrocea also submitted a mental assessment essentially showing that the claimant met Listing 12.04 with marked limitations in 13 areas of functioning (citation omitted). It does not seem reasonable to consider a person who is psychiatrically stable to be psychiatrically disabled from work. 25 26 27 28 The claimant testified and told Dr. Obrocea that she babysat her grandson and was being paid from April 2007 to April 2008 (citation omitted). She testified she cares for her seventeen-year-old disabled daughter. She received food stamps and section 8 housing assistance. She read, sewed, and watched television (citation omitted). 25 1 2 Dr. Bansal noted that the claimant s symptoms seemed to be much worse than the clinical examination findings and radiological findings (citation omitted). 3 (A.R. 14). The ALJ then addressed the opinion evidence. He gave 4 great weight to the opinions of the state agency physicians, who 5 concluded essentially that Plaintiff could perform light work 6 with specified environmental limitations, and the ALJ noted that 7 Plaintiff s asthma seemed to be under fair control with 8 medications. (A.R. 14.) The ALJ noted the state agency 9 physicians conclusions that Plaintiff could understand, 10 remember, and carry out simple instructions, perform activities 11 with directions without additional support and maintain attention 12 in two-hour increments, maintain socially appropriate behavior, 13 accept instructions and respond appropriately to criticism from 14 supervisors, interact appropriately with the general public, and 15 appropriately respond to changes in work setting. (A.R. 14.) The 16 ALJ noted Dr. Bansal s opinion that Plaintiff should be able to 17 do normal work for any person of her age with normal sitting, 18 standing, bending, and lifting up to ten or twenty pounds of 19 weight intermittently in an eight-hour day period, with 20 intermittent breaks and rest. (A.R. 15.) Finally, the ALJ noted 21 that Dr. Kim found no objective findings to support Plaintiff s 22 subjective claims of pain in the low back, left toe, and left 23 knee; Plaintiff had full range of motion in all those joints 24 without abnormalities. The ALJ noted Dr. Kim s opinion that 25 Plaintiff could lift and carry 100 pounds occasionally and fifty 26 pounds frequently, and stand and walk for six hours in an eight27 hour workday; the ALJ stated: 28 I give great weight to the limitations of standing 26 1 2 and walking, but giving her the benefit of the doubt, I further reduce her lifting and carrying limitations as stated in the residual functional capacity. 3 (A.R. 15.) 4 Because Dr. Obrocea s opinion was contradicted, the ALJ had 5 to articulate specific and legitimate reasons for giving less 6 weight to it and for crediting the contrary opinions. The first 7 reason stated by the ALJ, namely, that Dr. Obrocea s opinion was 8 inconsistent with, or unsupported by, progress notes, was 9 specific and legitimate. It is established that it is appropriate 10 for an ALJ to consider the absence of supporting findings, and 11 the inconsistency of conclusions with the physician s own 12 findings, in rejecting a physician s opinion. Johnson v. Shalala, 13 60 F.3d 1428, 1432-33 (9th Cir. 1995); Matney v. Sullivan, 981 14 F.2d 1016, 1019 (9th Cir. 1992); Magallanes v. Bowen, 881 F.2d 15 747, 751 (9th Cir. 1989). A conclusory opinion that is 16 unsubstantiated by relevant medical documentation may be 17 rejected. See Johnson v. Shalala, 60 F.3d 1428, 1432-33 (9th Cir. 18 1995). 19 As the previous summary of Dr. Obrocea s treatment notes 20 reveals, the record of improvement in symptoms and normal or mild 21 clinical findings was inconsistent with the conclusion of severe 22 disability. Likewise, Dr. Obrocea s conclusion regarding 23 disability was inconsistent with the conclusion that Plaintiff 24 was at low risk for dangerous behavior. 25 To the extent that medical evidence is inconsistent, 26 conflicting, or ambiguous, it is the responsibility of the ALJ to 27 resolve any conflicts and ambiguity. Morgan v. Commissioner, 169 28 F.3d 595, 603 (9th Cir. 1999). Where evidence is susceptible to 27 1 more than one rational interpretation, it is the ALJ s conclusion 2 that must be upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th 3 Cir. 2005). 4 The ALJ also stated another reason that was specific and 5 legitimate, and supported by substantial evidence in the record, 6 namely, that disability was inconsistent with Plaintiff s 7 activities of daily living and work history. It is permissible to 8 rely on the Plaintiff s testimony regarding her impairments in 9 discrediting a treating physician s opinion. Fisher v. Schweiker, 10 568 F.Supp. 900, 903 (N.D.Cal. 1983). Plaintiff s activities of 11 daily living have been used as a basis for rejecting the opinion 12 of a treating physician. Nguyen v. Commissioner of Social 13 Security, 2008 WL 859425, *8 (E.D.CA March 28, 2008). 14 The record contains substantial evidence that supports the 15 ALJ s reasoning, including Plaintiff s testimony and reports to 16 Dr. Obrocea that she babysat her grandson and was being paid from 17 April 2007 through April 2008, her report in July 2007 that she 18 took care of all her grandchildren and her youngest daughter, her 19 testimony that she cared for her seventeen-year-old disabled 20 daughter, and her report in 2005 to Dr. Kim that she performed 21 childcare in her home as her employment and occupied her time by 22 watching television, reading, and sewing. In addition, the record 23 contains the undated work history report by Plaintiff indicating 24 that she worked part-time as a childcare provider and babysitter 25 from September 1999 to June 2005. (A.R. 147-48, 319.) 26 The ALJ also relied on the fact that Dr. Bansal had noted 27 that Plaintiff s symptoms were much worse than the findings on 28 clinical exam and radiological findings. The fact that an opinion 28 1 is based primarily on the patient s subjective complaints may be 2 properly considered. Matney on Behalf of Matney v. Sullivan, 981 3 F.2d 1016, 1020 (9th Cir. 1992). Where a treating source s opinion 4 is based largely on the Plaintiff s own subjective description of 5 his or her symptoms, and the ALJ has discredited the Plaintiff s 6 claim as to those subjective symptoms, the ALJ may reject the 7 treating source s opinion. Fair v. Bowen, 885 F.2d 597, 605 (9th 8 Cir. 1989). Here, the ALJ had concluded that Plaintiff s 9 subjective complaints were not entirely credible with respect to 10 the intensity, persistence, and limiting effects of Plaintiff s 11 symptoms. (A.R. 14.) The Court concludes that the internal 12 examiner s conclusion that Plaintiff s complaints exceeded the 13 radiological and other clinical, objective findings was pertinent 14 to the weight put on Dr. Obrocea s opinion and to the RFC 15 finding, and it was supported by substantial evidence. 16 Plaintiff argues that the ALJ s conclusions cannot be upheld 17 because of the ALJ s statement concerning the unreasonableness of 18 a psychiatrically stable person s being psychiatrically disabled 19 from work. (A.R. 14.)4 20 It seems logically possible to the Court that a person 21 whose psychiatric condition is stable might nevertheless be 22 completely disabled. However, the Court understands the ALJ s 23 statement not primarily as one concerning the general subject of 24 the relationship between psychiatric stability and psychiatric 25 26 27 28 4 Plaintiff also asserts that it was Plaintiff s response to treatment that was stable or improved, not Plaintiff s level of disability. However, reference to the treatment notes reflects that there is much additional information indicating improved or mild objective factors in addition to the entries concerning responses to treatment. 29 1 disability, but rather as a reference to Dr. Lawrence s 2 statement, which in turn addressed whether Plaintiff s mood 3 disorder had worsened. Dr. Lawrence s main point was the 4 inconsistency of the treatment record, which reflected relative 5 stability and improvement of symptoms, with Dr. Obrocea s 6 ultimate conclusion of total disability. Dr. Lawrence had 7 emphasized that Dr. Obrocea had not explained her conclusions, 8 and that in light of her findings, it did not seem reasonable to 9 consider Plaintiff psychiatrically disabled. 10 However, even if the ALJ s statement concerning stability 11 and disability is considered to be other than a specific, 12 legitimate reason supported by substantial evidence in the 13 record, any error would nevertheless be harmless. It is 14 established that an ALJ s error may be considered harmless where 15 it relates to only one of a number of legally sufficient, record16 supported reasons, such as where only one of a few reasons for 17 discrediting testimony was erroneous. Stout v Commissioner, 454 18 F.3d 1050, 1054-55 (9th Cir. 2006). Here, any reasoning concerning 19 stability and disability does not detract from the other 20 specific, legitimate, record-supported reasons for the ALJ s 21 conclusions, including the inconsistency of Dr. Obrocea s 22 treatment notes with her conclusions, the inconsistency of 23 Plaintiff s work history and daily activities with the opinion, 24 and the absence of objective findings. The Court thus concludes 25 that if any error occurred with respect to the statement 26 concerning stability and disability, any such error was harmless. 27 VI. Disposition 28 Based on the foregoing, the Court concludes that the ALJ s 30 1 decision was supported by substantial evidence in the record as a 2 whole and was based on the application of correct legal 3 standards. 4 Accordingly, the Court AFFIRMS the administrative decision 5 of the Defendant Commissioner of Social Security and DENIES 6 Plaintiff s Social Security complaint. 7 The Clerk of the Court IS DIRECTED to enter judgment for 8 Defendant Michael J. Astrue, Commissioner of Social Security, 9 and against Plaintiff Francine J. Thomas. 10 11 IT IS SO ORDERED. 12 Dated: icido3 13 January 10, 2010 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 31

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