Robison v. Commissioner of Social Security, No. 1:2017cv03030 - Document 15 (E.D. Wash. 2017)
Court Description: ORDER GRANTING 13 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT denying 12 Motion for Summary Judgment. File CLOSED. Signed by Magistrate Judge John T. Rodgers. (JW, Operations Clk)
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Robison v. Commissioner of Social Security Doc. 15 1 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 2 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF WASHINGTON Dec 08, 2017 SEAN F. MCAVOY, CLERK 5 6 7 8 9 10 11 12 TARA ROBISON, No. 1:17-CV-3030-JTR Plaintiff, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT v. COMMISSIONER OF SOCIAL SECURITY, Defendant. 13 14 BEFORE THE COURT are cross-motions for summary judgment. ECF 15 No. 12, 13. Attorney D. James Tree represents Tara Robison (Plaintiff); Special 16 Assistant United States Attorney Leisa A. Wolf represents the Commissioner of 17 Social Security (Defendant). The parties have consented to proceed before a 18 magistrate judge. ECF No. 5. After reviewing the administrative record and briefs 19 filed by the parties, the Court GRANTS Defendant’s Motion for Summary 20 Judgment and DENIES Plaintiff’s Motion for Summary Judgment. 21 JURISDICTION 22 Plaintiff filed applications for Disability Insurance Benefits (DIB) and 23 Supplemental Security Income (SSI) in February 2013, alleging disability since 24 March 31, 2012, due to mold exposure related illness; severe and chronic fatigue; 25 gastrointestinal problems; severe sinusitis; multiple system issues; shortness of 26 breath; chronic nausea; chronic stomach and body pain; thyroid was removed; and 27 unable to sit or stand for long periods (fatigue related). Tr. 200, 207, 229. 28 Plaintiff’s applications were denied initially and upon reconsideration. ORDER GRANTING DEFENDANT’S MOTION . . . - 1 Dockets.Justia.com 1 Administrative Law Judge (ALJ) Virginia M. Robinson held a hearing on 2 August 6, 2015, Tr. 45-95, and issued an unfavorable decision on August 12, 2015, 3 Tr. 25-37. The Appeals Council denied review on December 13, 2016. Tr. 1-6. 4 The ALJ’s August 2015 decision thus became the final decision of the 5 Commissioner, which is appealable to the district court pursuant to 42 U.S.C. § 6 405(g). Plaintiff filed this action for judicial review on February 14, 2017. STATEMENT OF FACTS 7 The facts of the case are set forth in the administrative hearing transcript, the 8 9 10 11 ALJ’s decision, and the briefs of the parties. They are only briefly summarized here. Plaintiff was born on August 7, 1979, and was 32 years old on the alleged 12 onset date, March 31, 2012. Tr. 207. She completed college in 2005 and 13 thereafter worked as an elementary school teacher. Tr. 240. Plaintiff testified at 14 the administrative hearing that she last worked in a co-teaching position from 15 August/September 2013 to April 2014. Tr. 55-56. Her disability report indicates 16 she stopped working in 2012 because of her condition(s). Tr. 229. Plaintiff 17 testified she believed she was no longer able to work because she has a lot of 18 physical limitations. Tr. 59-61. 19 Plaintiff stated she has constant exhaustion/chronic fatigue as a result of 20 mold exposure. Tr. 62. She also indicated she has memory issues or brain fog, 21 stomach pain, a chronically infected lingual tonsil, severe back pain, and an 22 inability to sleep from the mold exposure. Tr. 62-63. She stated that an August 23 2013 car accident exacerbated her symptoms, Tr. 63, 71-72, and she has needed to 24 go to a chiropractor twice a week, every week, since the accident, Tr. 87-88. 25 Plaintiff testified that in the previous six months, her best week resulted in 26 only two hours of energy for the week; the rest of the time she was not able to be 27 on her feet. Tr. 64. She indicated if she attempts to push herself to do more, it 28 results in her being bedridden. Tr. 64. However, she further testified that during ORDER GRANTING DEFENDANT’S MOTION . . . - 2 1 the last month, she had been healthier with close to two hours of energy each day. 2 Tr. 65. She stated that, consistent with her pattern, she believed something would 3 likely happen (i.e. exposure to a germ or her lingual tonsil would fare up) and she 4 would then be ill for the next six, eight or 12 months. Tr. 65. 5 With regard to her lingual tonsils, Plaintiff described the issue as an ongoing 6 ears, nose and throat infection. Tr. 68. She indicated Dr. Gross told her it is an 7 issue she will battle for the rest of her life. Tr. 68. Plaintiff reported that when she 8 has an episode related to her lingual tonsils, it causes severe fatigue and results in 9 her being bedridden for a few days and then having flulike symptoms for several 10 11 12 weeks or months. Tr. 69. STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 13 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 14 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with 15 deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel, 16 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 17 only if it is not supported by substantial evidence or if it is based on legal error. 18 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 19 defined as being more than a mere scintilla, but less than a preponderance. Id. at 20 1098. Put another way, substantial evidence is such relevant evidence as a 21 reasonable mind might accept as adequate to support a conclusion. Richardson v. 22 Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one 23 rational interpretation, the Court may not substitute its judgment for that of the 24 ALJ. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 25 169 F.3d 595, 599 (9th Cir. 1999). If substantial evidence supports the 26 administrative findings, or if conflicting evidence supports a finding of either 27 disability or non-disability, the ALJ’s determination is conclusive. Sprague v. 28 Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). Nevertheless, a decision ORDER GRANTING DEFENDANT’S MOTION . . . - 3 1 supported by substantial evidence will be set aside if the proper legal standards 2 were not applied in weighing the evidence and making the decision. Brawner v. 3 Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). 4 5 SEQUENTIAL EVALUATION PROCESS The Commissioner has established a five-step sequential evaluation process 6 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 7 416.920(a); Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through 8 four, the burden of proof rests upon the claimant to establish a prima facie case of 9 entitlement to disability benefits. Tackett, 180 F.3d at 1098-1099. This burden is 10 met once the claimant establishes that a physical or mental impairment prevents 11 the claimant from engaging in past relevant work. 20 C.F.R. §§ 404.1520(a)(4), 12 416.920(a)(4). If the claimant cannot perform past relevant work, the ALJ 13 proceeds to step five, and the burden shifts to the Commissioner to show that (1) 14 the claimant can make an adjustment to other work; and (2) specific jobs exist in 15 the national economy which the claimant can perform. Batson v. Commissioner of 16 Social Sec. Admin., 359 F.3d 1190, 1193-1194 (2004). If the claimant cannot 17 make an adjustment to other work in the national economy, a finding of “disabled” 18 is made. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 19 ADMINISTRATIVE DECISION 20 On August 12, 2015, the ALJ issued a decision finding Plaintiff was not 21 22 23 24 disabled as defined in the Social Security Act. At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since the alleged onset date, March 31, 2012. Tr. 27. At step two, the ALJ determined Plaintiff had the following severe 25 impairments: chronic fatigue syndrome, recurring sinusitis, and hypothyroidism. 26 Tr. 27. At step three, the ALJ found Plaintiff did not have an impairment or 27 combination of impairments that meets or medically equals the severity of one of 28 the listed impairments. Tr. 28. ORDER GRANTING DEFENDANT’S MOTION . . . - 4 The ALJ assessed Plaintiff’s Residual Functional Capacity (RFC) and 1 2 determined she could perform a range of light exertion level work with the 3 following additional limitations: she can lift or carry up to twenty pounds 4 occasionally and up to ten pounds frequently; she can stand/walk or sit for 5 approximately six hours in an eight-hour workday with normal breaks; she must 6 avoid moderate exposure to extreme cold, extreme heat, pulmonary irritants such 7 as fumes and gases, and workplace hazards such as dangerous machinery or 8 working at unprotected heights; and she must avoid exposure to toxic molds. Tr. 9 28. 10 At step four, the ALJ concluded Plaintiff was capable of performing her past 11 relevant work as an elementary school teacher as actually and generally performed. 12 Tr. 35. Alternatively, at step five, the ALJ determined that based on the testimony 13 of the vocational expert, and considering Plaintiff’s age, education, work 14 experience and RFC, Plaintiff could perform other jobs present in significant 15 numbers in the national economy, including the jobs of telephone information 16 clerk, document preparer, escort vehicle driver, and assembler. Tr. 35-37. The 17 ALJ thus concluded Plaintiff was not under a disability within the meaning of the 18 Social Security Act at any time from March 31, 2012, the alleged disability onset 19 date, through the date of the ALJ’s decision, August 12, 2015. Tr. 36-37. ISSUES 20 21 The question presented is whether substantial evidence supports the ALJ’s 22 decision denying benefits and, if so, whether that decision is based on proper legal 23 standards. 24 Plaintiff contends the ALJ erred by (1) improperly weighing the medical 25 opinion evidence of record; (2) improperly discounting the statements of 14 lay 26 witnesses; (3) failing to find Plaintiff’s lingual tonsillitis was a medically- 27 determinable, severe impairment; and (4) failing to provide legally sufficient 28 reasons for discrediting Plaintiff’s symptom testimony. ORDER GRANTING DEFENDANT’S MOTION . . . - 5 1 2 3 4 5 DISCUSSION A. Step Two Plaintiff asserts the ALJ erred by failing to find her chronic lingual tonsillitis was a medically-determinable, severe impairment. ECF No. 12 at 16-18. Plaintiff bears the burden of proving she has a severe impairment at step two 6 of the sequential evaluation process. 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 7 416.912. In order to meet this burden, Plaintiff must furnish medical and other 8 evidence that shows she has a severe impairment. 20 C.F.R. § 416.912(a). The 9 regulations, 20 C.F.R. §§ 404.1520(c), 416.920(c), provide that an impairment is 10 severe if it significantly limits one’s ability to perform basic work activities. An 11 impairment is considered non-severe if it “does not significantly limit your 12 physical or mental ability to do basic work activities.” 20 C.F.R. §§ 404.1521, 13 416.921. “Basic work activities” are defined as the abilities and aptitudes 14 necessary to do most jobs. See 20 C.F.R. §§ 404.1521(b), 416.921(b). 15 Step two is “a de minimis screening device [utilized] to dispose of 16 groundless claims,” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996), and an 17 ALJ may find that a claimant lacks a medically determinable severe impairment or 18 combination of impairments only when this conclusion is “clearly established by 19 medical evidence,” S.S.R. 85-28; see Webb v. Barnhart, 433 F.3d 683, 686-687 20 (9th Cir. 2005). Applying the normal standard of review to the requirements of 21 step two, the Court must determine whether the ALJ had substantial evidence to 22 find that the medical evidence clearly established that Plaintiff did not have a 23 medically severe impairment. Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988) 24 (“Despite the deference usually accorded to the Secretary’s application of 25 regulations, numerous appellate courts have imposed a narrow construction upon 26 the severity regulation applied here.”); Webb, 433 F.3d at 687. 27 28 In this case, the ALJ concluded that Plaintiff has the severe impairments of chronic fatigue syndrome, recurring sinusitis, and hypothyroidism. Tr. 27. The ORDER GRANTING DEFENDANT’S MOTION . . . - 6 1 ALJ evaluated the evidence of record and concluded that Plaintiff did not have a 2 medically determinable severe impairment related to issues with her lingual tonsils. 3 Tr. 27-28. 4 It is significant to note at the outset that while Plaintiff described recurring 5 issues with her lingual tonsils at the administrative hearing, Tr. 68-70, Plaintiff’s 6 disability report identifies 10 different medical conditions, including chronic 7 fatigue, sinusitis and a thyroid issue, impairments the ALJ found were severe, but 8 fails to mention lingual tonsillitis as a condition that limited her ability to work, Tr. 9 229. In any event, although the record reflects Plaintiff experienced lingual 10 tonsillitis, see e.g. Tr. 390-391 (December 13, 2011, pre-onset date medical 11 report), on October 21, 2014, Plaintiff’s treating physician, Rick Gross, M.D., 12 indicated Plaintiff had a tonsillectomy in 2007, recommended against current 13 surgical intervention, and opined there were many other overlying factors 14 surrounding her symptomatology that surgery would not help. Tr. 613. On April 15 28, 2015, Dr. Gross explained to Plaintiff that her lingual tonsils had completely 16 regressed and were not likely to be the cause of her symptoms. Tr. 1065; see 42 17 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A) (an individual shall only be considered 18 disabled if she has an impairment which can be expected to result in death or 19 which has lasted or can be expected to last for a continuous period of not less than 20 12 months). Plaintiff did not met her burden at step two to show that any issue she had 21 22 with her lingual tonsils significantly limited her ability to perform basic work 23 activities. Accordingly, the ALJ did not err by failing to identify lingual tonsillitis 24 as a medically-determinable, severe impairment in this case. 25 B. Plaintiff’s Symptom Testimony Plaintiff additionally contends the ALJ erred by failing to provide valid 26 27 reasons for finding her not fully credible in this case. ECF No. 12 at 18-20. 28 /// ORDER GRANTING DEFENDANT’S MOTION . . . - 7 1 It is the province of the ALJ to make credibility determinations. Andrews, 2 53 F.3d at 1039. However, the ALJ’s findings must be supported by specific 3 cogent reasons. Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Absent 4 affirmative evidence of malingering, the ALJ’s reasons for rejecting the claimant’s 5 testimony must be “specific, clear and convincing.” Smolen, 80 F.3d at 1281; 6 Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). “General findings are 7 insufficient: rather the ALJ must identify what testimony is not credible and what 8 evidence undermines the claimant’s complaints.” Lester, 81 F.3d at 834; Dodrill v. 9 Shalala, 12 F.3d 915, 918 (9th Cir. 1993). 10 In this case, the ALJ found Plaintiff’s medically determinable impairments 11 could reasonably be expected to cause some of the alleged symptoms; however, 12 Plaintiff’s statements concerning the intensity, persistence and limiting effects of 13 these symptoms were not entirely credible. Tr. 29. 14 1. Inconsistencies 15 The ALJ described a number of inconsistencies in Plaintiff’s statements. Tr. 16 29-31. In assessing the weight accorded to a claimant’s statements, an ALJ may 17 engage in ordinary techniques of credibility evaluation, such as considering 18 claimant’s reputation for truthfulness and inconsistencies in claimant’s testimony. 19 Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005); Tonapetyan v. Halter, 242 20 F.3d 1144, 1148 (9th Cir. 2001). When a claimant fails to be a reliable historian, 21 “this lack of candor carries over” to other portions of her testimony. Thomas v. 22 Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). 23 The first inconsistent statement noted by the ALJ was Plaintiff’s May 2013 24 claim of extreme fatigue after working three afternoons a week during the 2010- 25 2011 school year, Tr. 428, versus her January 2011 claim of fatigue related solely 26 to antibiotics, Tr. 402. Tr. 29. Contrary to Plaintiff’s assertion, ECF No. 12 at 18, 27 the ALJ does not base this inconsistency on a failure to mention mold exposure in 28 the January 2011 report. Although mold on the exterior walls of Plaintiff’s ORDER GRANTING DEFENDANT’S MOTION . . . - 8 1 classroom was discovered in the summer of 2011, Tr. 428, the inconsistency noted 2 by the ALJ concerns the fact that the fatigue claimed in January 2011 was alleged 3 to be caused by antibiotics “without mention of work related stress or fatigue,” Tr. 4 29. Nevertheless, Plaintiff has consistently alleged fatigue during the relevant time 5 period in this case, and the Court finds that giving two different reasons for feeling 6 fatigued on two different dates is not per se inconsistent. Accordingly, the first 7 inconsistent statement noted by the ALJ is not compelling. However, the Court 8 finds the error harmless. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 9 1155, 1163 (9th Cir. 2008) (upholding adverse credibility finding where ALJ 10 provided four reasons to discredit claimant, two of which were invalid); Batson, 11 359 F.3d at 1197 (affirming credibility finding where one of several reasons was 12 unsupported by the record); Tommasetti, 533 F.3d at 1038 (An error is harmless 13 when “it is clear from the record that the . . . error was inconsequential to the 14 ultimate nondisability determination.”). 15 The next inconsistent statement noted by the ALJ was with respect to 16 Plaintiff’s initial testimony that she did not undergo the recommended pulmonary 17 function test because she was told it would cost between $10,000 and $20,000, Tr. 18 50-51, compared to her subsequent testimony that she had been approved for 19 “charity care” and did not consider whether the pulmonary function test would be 20 covered as a result, Tr. 51. Tr. 30. The administrative hearing evidence supports 21 the ALJ’s interpretation that Plaintiff’s testimony in this regard was inconsistent. 22 The ALJ’s third inconsistent statement: Plaintiff’s testimony that 23 Harborview did not advise her whether she was able to work, Tr. 58, versus 24 Harborview medical records from May 2013 which document the opinion that 25 Plaintiff was able to perform sedentary work, Tr. 431, is also supported by the 26 evidence of record. Tr. 30. 27 28 The ALJ next determined Plaintiff’s August 2013 statement to her nutritionist, Richard Forish, that she had great fatigue after taking vitamin ORDER GRANTING DEFENDANT’S MOTION . . . - 9 1 supplements that resulted in her needing to take a long nap, Tr. 381, contrasted 2 with Plaintiff’s allegations that she sleeps through much of the day, every day, Tr. 3 67-68. It was not error for the ALJ to find this instance of Plaintiff alleging 4 vitamins, not an underlying impairment, caused her fatigue as an inconsistency. 5 The ALJ also indicated that although Plaintiff testified that in the previous 6 six months her best week resulted in a total of only two hours of energy for the 7 week and the rest of the time she was not able to be on her feet, Tr. 64, this 8 testimony conflicted with her testimony describing her ability to drive to her 9 chiropractor appointments twice a week, have treatment, and drive home, Tr. 87- 10 88, 93-94 (Plaintiff testified the roundtrip drive to the chiropractor would take her 11 a total of 40 to 50 minutes, she would spend on average 20 to 30 minutes in the 12 waiting room of the chiropractor, and the treatment would last about 10 minutes), 13 as well as her appearance during physical examinations noted in the record. Tr. 31. 14 Again, the ALJ’s interpretation of the record that Plaintiff’s testimony was 15 inconsistent in this regard is supported by the evidence of record. 16 Finally, the ALJ noted Plaintiff’s inconsistent reports of her limitations. Tr. 17 31. The ALJ noted that despite Plaintiff’s testimony which depicted severely 18 limiting symptoms, she reported in June 2014 that the prior year, on a really good 19 day, she was able to walk one to two miles at a time, Tr. 596, and, in July 2014, 20 she indicated she was able to be on her feet for four to six hours straight and 21 perform light chores and light walking, Tr. 598. Tr. 31. These inconsistencies are 22 likewise supported by the record. 23 With the exception of the ALJ’s determination that Plaintiff’s assertions of 24 fatigue were inconsistent, it was entirely proper for the ALJ to note the foregoing 25 inconsistencies in finding Plaintiff’s subjective complaints less than fully credible. 26 2. 27 The ALJ also found that the objective medical evidence of record did not 28 Objective Medical Evidence substantiate Plaintiff’s allegations of disabling limitations. Tr. 29-30. ORDER GRANTING DEFENDANT’S MOTION . . . - 10 1 A lack of supporting objective medical evidence is a factor which may be 2 considered in evaluating an individual’s credibility, provided it is not the sole 3 factor. Bunnell v. Sullivan, 347 F.2d 341, 345 (9th Cir. 1991); Carmickle, 533 4 F.3d at 1161 (“Contradiction with the medical record is a sufficient basis for 5 rejecting the claimant’s subjective testimony.”); Lingenfelter v. Astrue, 504 F.3d 6 1028, 1040 (9th Cir. 2007) (in determining credibility, the ALJ may consider 7 “whether the alleged symptoms are consistent with the medical evidence”). As noted by the ALJ, Plaintiff was evaluated by Stanley Kimball, DO, an 8 9 occupational medicine specialist, on May 22, 2013. Tr. 29, 428-432. Dr. Kimball 10 indicated the causative nature of Plaintiff’s symptoms was “not clear,” and advised 11 Plaintiff to obtain a pulmonary function test in order to assess the presence of any 12 undiagnosed asthma, which may be the cause for her respiratory complaints and 13 fatigue. Tr. 29-30, 431. Plaintiff was also advised to contact the school to 14 determine if there was exposure documents surrounding the time of remediation or 15 at the time of the HVAC cleaning. Tr. 30, 431. There is no such exposure 16 documentation of record, and, as discussed above, Plaintiff did not follow up with 17 obtaining a pulmonary function test. Tr. 30. As indicated by the ALJ, Dr. Kimball observed that Plaintiff presented as 18 19 pleasant and cooperative, in no apparent distress, and without any significant 20 physical examination findings. Tr. 31, 430-431. He observed Plaintiff 21 demonstrated normal respiratory patterns without any appearance of being winded 22 during the examination; noted Plaintiff had normal gait, normal range of motion, 23 normal strength in her extremities, and normal grip strength; and noted a normal 24 chest examination. Tr. 31, 430-431. The report concluded Plaintiff would be able 25 to perform a sedentary type job, but she should avoid exposure to molds. Tr. 30, 26 431. 27 28 William Drenguis, M.D., examined Plaintiff on June 19, 2013. Tr. 355-358. Dr. Drenguis noted that Plaintiff demonstrated only very minimal findings during ORDER GRANTING DEFENDANT’S MOTION . . . - 11 1 the physical examination and had normal coordination and gait, normal range of 2 motion, normal strength in her extremities, and normal grip strength. Tr. 31, 357. 3 On August 13, 2013, Plaintiff’s treating naturopath, John Sherman, N.D., 4 wrote that Plaintiff had been a patient at his clinic since 2011 and had “gradually 5 improved her health to a point she will be able to return to work as of 8/26/13.” 6 Tr. 361. 7 Treating physician Gross routinely indicated Plaintiff only demonstrated 8 minimal findings on exam and determined in December 2014 that Plaintiff’s “over- 9 the-top malaise” was of unknown etiology. Tr. 30, 31, 610, 611-612, 614-615, 10 11 617-618, 1036-1037. As determined by the ALJ, the objective medical evidence of record does 12 not support the disabling symptoms and limitations alleged by Plaintiff in this case. 13 It was proper for the ALJ to conclude Plaintiff was not entirely credible because 14 Plaintiff’s alleged level of limitation was not consistent with the medical evidence 15 which reflects Plaintiff’s impairments did not cause completely disabling 16 functional limitations. 17 3. 18 The ALJ also indicated that Plaintiff reported an improvement of her 19 20 Effectiveness of Treatment symptoms during the relevant time period. Tr. 30, 31. An ALJ may rely on the effectiveness of treatment to find a plaintiff’s 21 testimony unpersuasive. See e.g. Morgan v. Comm’r of Social Sec. Admin., 169 22 F.3d 595, 600 (9th Cir. 1999) (an ALJ may properly rely on a report that a 23 plaintiff’s mental symptoms improved with the use of medication); Odle v. 24 Heckler, 707 F.2d 439, 440 (9th Cir. 1983) (noting impairments that are controlled 25 by treatment cannot be considered disabling). 26 The ALJ noted Plaintiff testified she felt the supplements provided by her 27 nutritionist, Mr. Forish, were bringing about significant improvement in her 28 symptoms and that she preferred to pursue that form of treatment as opposed to the ORDER GRANTING DEFENDANT’S MOTION . . . - 12 1 medical care suggested by Harborview physicians. Tr. 30, 50-52. As stated by the 2 ALJ, Plaintiff worked with Mr. Forish continuously for two years and consistently 3 reported an improvement of her symptoms. Tr. 31. For example, Mr. Sherman 4 reported on August 13, 2013, that Plaintiff’s treatments from Mr. Forish had been 5 “very beneficial” and that Plaintiff felt “almost 90-100% better over the last four 6 weeks.” Tr. 362. Plaintiff indicated she had started the treatment with Mr. Forish 7 in March of 2013, she felt better within a month, and her improved health persisted 8 for the last five months. Tr. 362. She stated she “feels quite good.” Tr. 362. 9 It was proper for the ALJ to note the effectiveness of Plaintiff’s treatment in 10 alleviating her symptoms as a relevant factor in considering the credibility of 11 Plaintiff’s subjective complaints. 12 4. Embellishment of Condition 13 The ALJ further noted there was evidence of record that Plaintiff 14 embellished her symptoms. Tr. 30. An ALJ’s decision to discredit a claimant’s 15 statements may be supported by the claimant’s tendency to exaggerate. 16 Tonapetyan, 242 F.3d at 1148. 17 The ALJ indicated Dr. Gross described Plaintiff’s reports of fatigue as 18 “over-the-top malaise of unknown etiology,” Tr. 610, Plaintiff indicated in July 19 2014 that she had chronic fatigue syndrome “due to neurotoxin,” Tr. 546, but the 20 record reflects the causation of her symptoms had not been established, Tr. 431, 21 and Plaintiff acknowledged at the administrative hearing that some of her 22 statements regarding her medical condition were based on her own personal 23 opinion, Tr. 62-63. Tr. 30. 24 25 The ALJ did not error by finding Plaintiff’s embellishment of symptoms relevant to her credibility determination. 26 5. Motivation 27 The ALJ additionally mentioned the record reflected Plaintiff lacked 28 motivation to work, which negatively affected her credibility in this case. Tr. 31. ORDER GRANTING DEFENDANT’S MOTION . . . - 13 1 The Ninth Circuit has recognized that the ALJ may properly consider the 2 issue of motivation in assessing credibility. Matney v. Sullivan, 981 F.2d 1016, 3 1020 (9th Cir. 1992). 4 The ALJ indicated that because Plaintiff requested a job share in order to 5 work half-time long before her exposure to mold, Tr. 327, it suggested Plaintiff 6 lacked motivation. Tr. 31. The record cited by the ALJ, a lay witness statement by 7 Plaintiff’s former principal, noted the job-share position as a positive example of 8 Plaintiff’s work attributes. Tr. 327. Furthermore, there is other evidence of record 9 which reflects Plaintiff had a strong work ethic. Tr. 314, 320-321, 327. In any 10 event, the Court finds the ALJ’s reasoning in this instance, that Plaintiff’s request 11 for a job-share position implies she lacked motivation to work, is not convincing.1 12 The ALJ is responsible for reviewing the evidence and resolving conflicts or 13 ambiguities in testimony. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 14 1989). It is the role of the trier of fact, not this Court, to resolve conflicts in 15 evidence. Richardson, 402 U.S. at 400. The Court has a limited role in 16 determining whether the ALJ’s decision is supported by substantial evidence and 17 may not substitute its own judgment for that of the ALJ even if it might justifiably 18 have reached a different result upon de novo review. 42 U.S.C. § 405(g). After 19 reviewing the record, the Court finds that the ALJ provided clear and convincing 20 21 1 Given the ALJ’s other supported reasons for finding Plaintiff less than 22 credible, the Court finds this error harmless. See Carmickle, 533 F.3d at 1163 23 (upholding adverse credibility finding where ALJ provided four reasons to 24 discredit claimant, two of which were invalid); Batson, 359 F.3d at 1197 (affirming 25 credibility finding where one of several reasons was unsupported by the record); 26 Tommasetti, 533 F.3d at 1038 (An error is harmless when “it is clear from the 27 record that the . . . error was inconsequential to the ultimate nondisability 28 determination.”). ORDER GRANTING DEFENDANT’S MOTION . . . - 14 1 reasons, which are fully supported by the record, for discounting Plaintiff’s 2 subjective complaints. Accordingly, the ALJ did not err by finding Plaintiff’s 3 allegations were not entirely credible in this case. 4 C. Plaintiff contends the ALJ further erred by improperly discounting the 5 6 Lay Witness Statements statements of 14 lay witnesses. ECF No. 12 at 13-16. The ALJ shall “consider observations by non-medical sources as to how an 7 8 impairment affects a claimant’s ability to work.” Sprague, 812 F.2d at 1232, citing 9 20 C.F.R. § 404.1513(e)(2). “Descriptions by friends and family members in a 10 position to observe a claimant’s symptoms and daily activities have routinely been 11 treated as competent evidence.” Sprague, 812 F.2d at 1232. The ALJ may not 12 ignore or improperly reject the probative testimony of a lay witness without giving 13 reasons that are germane to each witness. Dodrill, 12 F.3d at 919. The ALJ indicated the testimony of Plaintiff’s husband was not persuasive 14 15 because it was inconsistent with the minimal and mild physical examination 16 findings, the lack of objective evidence and Plaintiff’s inconsistent statements; the 17 ALJ found the statement of Plaintiff’s parents unpersuasive because it was 18 inconsistent with the minimal and mild physical examination findings, the lack of 19 objective evidence and Plaintiff’s inconsistent statements; and the ALJ gave 20 limited weight to “the letters submitted by Plaintiff’s family, friends, former 21 coworkers and pastors” because they were inconsistent with the observations of 22 Plaintiff’s health care providers and the minimal and mild physical examination 23 findings, there was a lack of objective evidence to support the letters, and the 24 opinions were contrary to Plaintiff’s reported activities. Tr. 32. The Court finds the ALJ properly addressed the numerous lay witnesses of 25 26 record, Tr. 32, and provided germane reasons for discounting their statements. 27 /// 28 /// ORDER GRANTING DEFENDANT’S MOTION . . . - 15 1 D. Medical Source Opinions 2 Plaintiff contends that the ALJ erred by failing to accord proper weight to 3 the opinions of certain medical sources of record. ECF No. 12 at 3-13. Plaintiff 4 specifically argues the ALJ erred by discounting the opinions of Rick Gross, M.D., 5 Richard Wilkinson, M.D., William Drenguis, M.D., chiropractor James Martin, 6 D.C., Naturopath John Sherman, N.D., and certified nutritional consultant Richard 7 Forish. Id. 8 In this case, the ALJ found that although Plaintiff had severe impairments 9 (chronic fatigue syndrome, recurring sinusitis, and hypothyroidism), the medical 10 evidence did not support the degree of limitation alleged by Plaintiff. Instead, the 11 ALJ determined Plaintiff retained the RFC to perform a range of light exertion 12 level work with the following additional limitations: she can lift or carry up to 13 twenty pounds occasionally and up to ten pounds frequently; she can stand/walk or 14 sit for approximately six hours in an eight-hour workday with normal breaks; she 15 must avoid moderate exposure to extreme cold, extreme heat, pulmonary irritants 16 such as fumes and gases, and workplace hazards such as dangerous machinery or 17 working at unprotected heights; and she must avoid exposure to toxic molds. Tr. 18 28. The Court finds the ALJ’s interpretation of the medical evidence of record is 19 supported by substantial evidence. See infra. 20 1. Dr. Gross 21 Plaintiff asserts the ALJ erred by according no weight to the disabled 22 parking application form completed by Dr. Gross on December 22, 2014, that 23 indicated Plaintiff was not able to walk 200 feet without stopping to rest, Tr. 621, 24 and little weight to a “Medical Report” form filled out by Dr. Gross on February 25 23, 2015, which opined that Plaintiff needed to lie down during the day for two to 26 four hours and would miss four or more days of work per month, Tr. 622-623. 27 ECF No. 12 at 3-6. 28 /// ORDER GRANTING DEFENDANT’S MOTION . . . - 16 1 If the opinion of a treating or examining physician is not contradicted, it can 2 only be rejected with clear and convincing reasons. Lester, 81 F.3d at 830. If 3 contradicted, the opinion can only be rejected for “specific” and “legitimate” 4 reasons that are supported by substantial evidence in the record. Andrews, 53 F.3d 5 at 1043. Historically, the courts have recognized conflicting medical evidence, the 6 absence of regular medical treatment during the alleged period of disability, and 7 the lack of medical support for doctors’ reports based substantially on a claimant’s 8 subjective complaints of pain as specific, legitimate reasons for disregarding an 9 examining physician’s opinion. Flaten v. Secretary of Health and Human Servs., 10 11 44 F.3d 1453, 1463-1464 (9th Cir. 1995); Fair, 885 F.2d at 604. Here, the foregoing opinions of Dr. Gross were contradicted by other 12 medical sources, including a state agency reviewing physician2 and examining 13 physician Dr. Kimball;3 therefore, the ALJ needed to only provide specific and 14 legitimate reasons for rejecting Dr. Gross’ opinions expressed on the forms. 15 16 17 2 State agency consultant, Charles Wolfe, M.D., indicated Plaintiff was 18 capable of performing all work, but must avoid even moderate exposure to extreme 19 heat and cold, pulmonary irritants such as fumes, odors, dusts, gases, and poor 20 ventilation, and hazards such as machinery and heights. Tr. 124-125. The ALJ 21 accorded this state agency assessment significant weight. Tr. 33. 22 3 Dr. Kimball observed that Plaintiff presented as pleasant and cooperative, 23 in no apparent distress, and without any significant physical examination findings. 24 Tr. 31, 430-431. Dr. Kimball indicated Plaintiff demonstrated normal respiratory 25 patterns without any appearance of being winded during the examination; noted 26 Plaintiff had normal gait, normal range of motion, normal strength in her 27 extremities, and normal grip strength; and noted a normal chest examination. Tr. 28 31, 430-431. The report concluded Plaintiff would be able to perform a sedentary ORDER GRANTING DEFENDANT’S MOTION . . . - 17 1 As indicated by the ALJ, inconsistent with the extreme findings on the 2 forms, Dr. Gross routinely indicated Plaintiff demonstrated only minimal findings 3 on examination and determined in December 2014 that Plaintiff’s “over-the-top 4 malaise” was of unknown etiology. Tr. 30, 31, 34, 610, 611-612, 614-615, 617- 5 618, 1036-1037. The ALJ further noted that the opinions on the forms did not 6 describe any basis or support, such as clinical findings, for the assessed extreme 7 limitations. Tr. 34; see Tonapetyan, 242 F.3d at 1149 (an ALJ may discredit a 8 treating physician’s opinion that is unsupported by rationale or treatment notes and 9 offers no objective medical findings to support the existence of alleged conditions). 10 The extreme limitations are also inconsistent with Plaintiff’s report in June 2014 11 that the prior year, on a really good day, she was able to walk one to two miles at a 12 time, Tr. 596, and, in July 2014, that she was able to be on her feet for four to six 13 hours straight and perform light chores and light walking, Tr. 598. Tr. 31. Finally, 14 the ALJ found that because Dr. Gross only referenced Plaintiff’s reported 15 symptoms and did not include any clinical findings, it suggested Dr. Gross relied 16 heavily on Plaintiff’s subjective statements, which, as discussed above, were 17 appropriately found not entirely credible. See Tonapetyan, 242 F.3d at 1149 (9th 18 Cir. 2001) (a physician’s opinion premised primarily on a claimant’s subjective 19 complaints may be discounted where the record supports the ALJ’s discounting of 20 the claimant’s credibility); Morgan, 169 F.3d at 602 (the opinion of a physician 21 premised to a large extent on a claimant’s own account of symptoms and 22 limitations may be disregarded where they have been properly discounted). 23 Based on the foregoing, the Court finds that the ALJ provided specific, 24 legitimate reasons that are supported by substantial evidence for according little 25 weight to the disabled parking application form completed by Dr. Gross on 26 27 type job, but should avoid exposure to molds. Tr. 30, 431. The ALJ gave weight 28 to the evaluation and opinion of Dr. Kimball. Tr. 33. ORDER GRANTING DEFENDANT’S MOTION . . . - 18 1 December 22, 2014, Tr. 621, and the “Medical Report” form filled out by Dr. 2 Gross on February 23, 2015, Tr. 622-623. Accordingly, the ALJ did not err with 3 respect to his findings regarding Dr. Gross’ form reports. 4 2. Richard Wilkinson, M.D. 5 Plaintiff contends the ALJ erred by giving no weight to the disabled parking 6 application form completed by Dr. Wilkinson on July 10, 2015, that indicated 7 Plaintiff was not able to walk 200 feet without stopping to rest, Tr. 1093, and little 8 weight to a “Medical Report” form filled out by Dr. Wilkinson on July 13, 2015, 9 which opined that Plaintiff needed to lie down much of the day due to exhaustion 10 and would miss four or more days of work per month, Tr. 1097-1098. ECF No. 12 11 at 6-7. 12 Dr. Wilkinson’s opinions were contradicted by state agency consultant 13 Wolfe and examining physician Kimball; consequently, the ALJ needed to only 14 provide specific and legitimate reasons for rejecting the foregoing opinions. 15 Like with Dr. Gross, the ALJ determined the extreme findings on the forms 16 were inconsistent with Plaintiff’s minimal and mild examination findings 17 throughout the record. Tr. 34. The ALJ also noted that the opinions on the forms 18 did not describe any basis or support for the assessed extreme limitations. Tr. 34; 19 see Tonapetyan, 242 F.3d at 1149. Again, the extreme limitations contrast with 20 Plaintiff’s report in June 2014 that the prior year, on a really good day, that she 21 was able to walk one to two miles at a time, Tr. 596, and, in July 2014, she was 22 able to be on her feet for four to six hours straight and perform light chores and 23 light walking, Tr. 598. Tr. 31. Finally, the ALJ found that because there was no 24 support for the finding, it suggested Dr. Wilkinson relied heavily on Plaintiff’s 25 subjective statements. See Tonapetyan, 242 F.3d at 1149. 26 The Court finds the ALJ provided specific, legitimate reasons that are 27 supported by substantial evidence for according little weight to Dr. Wilkinson’s 28 opinions expressed on the form reports. ORDER GRANTING DEFENDANT’S MOTION . . . - 19 1 3. William Drenguis, M.D. 2 Plaintiff next contends the ALJ erred by accordingly “very little weight” to 3 the June 19, 2013, opinion of consultative examiner William Drenguis, M.D.4 4 ECF No. 12 at 7-9; Tr. 355-358. The ALJ determined Dr. Drenguis’ suggestion that Plaintiff was incapable of 5 6 performing even a full range of sedentary work, Tr. 358, was internally 7 inconsistent with his minimal examination findings. Tr. 33. Since a review of Dr. 8 Drenguis’ examination findings reveals Plaintiff had only very minimal findings 9 during the physical examination and had normal coordination and gait, normal 10 range of motion, normal strength in her extremities, and normal grip strength, this 11 determination is fully supported. Tr. 31, 357. As with Dr. Gross and Dr. Wilkinson, the ALJ also properly determined Dr. 12 13 Drenguis’ assessment of limitations was inconsistent with Plaintiff’s history of 14 performance on examination; therefore, it was apparent Dr. Drenguis relied on 15 Plaintiff’s subjective statements, which were not entirely credible. Tr. 33. This 16 was also a specific and legitimate reason to discount the assessed significant 17 limitations. See supra. Finally, the ALJ noted Dr. Drenguis did not address the possibility that some 18 19 of his clinical findings (see Tr. 358 noting Plaintiff doubled her pulse rate, 20 increased her respiratory rate, and admitted to fatigue after the minimal activity of 21 a range of motion exam) were simply a result of deconditioning. Tr. 33. With 22 respect to this notation, the Court determines that even if these findings were the 23 result of deconditioning, it would still be a physical limitation relevant to the 24 /// 25 26 4 Like with Dr. Gross and Dr. Wilkinson, Dr. Drenguis’ opinions were 27 contradicted by Drs. Wolfe and Kimball. The ALJ thus needed to only provide 28 specific and legitimate reasons for rejecting Dr. Drenguis’ opinions. ORDER GRANTING DEFENDANT’S MOTION . . . - 20 1 assessment of Plaintiff’s overall condition. This was not a specific and legitimate 2 reason to discount Dr. Drenguis’ opinion. 3 Nevertheless, the Court concludes the ALJ properly evaluated the evidence 4 of record and provided sufficient specific, legitimate reasons, supported by 5 substantial evidence, for according very little weight to Dr. Drenguis’ opinion 6 assessing significant limitations. 7 4. 8 Plaintiff next contends the ALJ failed to provide germane reasons for 9 according little weight to the treatment notes, records, and suggested limitations of 10 Chiropractor James Martin, D.C. chiropractor James Martin, D.C. ECF No. 12 at 9-11. 11 As a chiropractor, Mr. Martin’s opinion is not the opinion of an acceptable 12 medical source. 20 C.F.R. §§ 404.1513(d)(1), 416.913(d)(1). The opinion of an 13 acceptable medical source is given more weight than that of an “other source.” 20 14 C.F.R. §§ 404.1527, 416.927; Gomez v. Chater, 74 F.3d 967, 970-971 (9th Cir. 15 1996). “Other sources” include nurse practitioners, physicians’ assistants, 16 naturopaths, chiropractors, audiologist and therapists. 20 C.F.R. §§ 17 404.1513(d)(1), 416.913(d)(1) (2016). The ALJ is required to “consider 18 observations by non-medical sources as to how an impairment affects a claimant’s 19 ability to work,” Sprague, 812 F.2d at 1232; however, “other source” opinions may 20 be discounted with reasons germane to each source, Molina v. Astrue, 674 F.3d 21 1104, 1111 (9th Cir. 2012) (cited cases omitted). 22 The ALJ noted Mr. Martin based his evaluations and assessments on 23 Plaintiff’s subjective statements, which were not entirely credible. Tr. 34, citing 24 Tr. 1111 (stating Plaintiff had a very fragile and easily broken down immune 25 system and had experienced torn muscles and ligaments, but did not identify any 26 objective basis for such assertions). The ALJ further indicated Mr. Martin opined, 27 without objective support, that Plaintiff was unable to be gainfully employed, Tr. 28 1111, but a determination of whether a claimant is “disabled” within the meaning ORDER GRANTING DEFENDANT’S MOTION . . . - 21 1 of the Social Security Act is reserved to the Commissioner. Hill v. Astrue, 698 2 F.3d 1153, 1159-1160 (9th Cir. 2012); 20 C.F.R. § 404.1527(d)(1) (“A statement 3 by a medical source that you are ‘disabled’ or ‘unable to work’ does not mean that 4 we will determine that you are disabled.”). While the ALJ must still consider the 5 medical source’s opinion, here, the ALJ correctly determined Mr. Martin’s letter 6 simply concluded Plaintiff could not be gainfully employed, without describing 7 any specific functional limitations. Tr. 34. 8 9 The foregoing reasons provided by the ALJ for discounting Mr. Martin’s opinions are germane and fully supported by the evidence of record. 10 5. 11 Plaintiff argues the ALJ erred by giving little weight to the statements of 12 13 Naturopath John Sherman, N.D. naturopath John Sherman, N.D. ECF No. 12 at 11-12. Naturopaths, like Mr. Sherman, are considered “other sources.” 20 C.F.R. 14 §§ 404.1513(d)(1), 416.913(d)(1). As such, the ALJ may properly discount his 15 opinions by providing germane reasons. Molina, 674 F.3d at 1111. 16 The ALJ accorded “little weight” to Mr. Sherman’s suggestion that Plaintiff 17 needed to be off of work due to multiple conditions during the relevant period and 18 had severe workplace limitations. Tr. 33. The ALJ found Mr. Sherman’s opinions 19 were inconsistent with the minimal and mild examination findings of record and 20 that Mr. Sherman relied heavily on Plaintiff’s subjective statements. Tr. 33. 21 On August 13, 2013, Mr. Sherman indicated that Plaintiff’s treatments from 22 Mr. Forish had been “very beneficial” and that Plaintiff had felt “almost 90-100% 23 better.” Tr. 362. Plaintiff indicated she had started the treatment with Mr. Forish 24 in March of 2013, she felt better within a month, and her improved health had 25 persisted for the last five months. Tr. 362. Therefore, Mr. Sherman wrote a work 26 release letter that indicated Plaintiff had “gradually improved her health to a point 27 she will be able to return to work as of 8/26/13” without noting any additional 28 work-related restrictions. Tr. 361. However, a separate letter drafted by Mr. ORDER GRANTING DEFENDANT’S MOTION . . . - 22 1 Sherman on the same date recommended Plaintiff be released to work, but that she 2 start with limited hours, and gradually increase her work load over a full month, 3 eventually working up to 24 hours weekly. Tr. 360. The record supports the 4 ALJ’s conclusion that Mr. Sherman drafted a work release letter to match 5 Plaintiff’s stated preference. Tr. 33, 362. 6 The ALJ further noted that Mr. Sherman’s limitations assessed in a February 7 25, 2015 “Medical Report” form, Tr. 1020-1022, “parrot” the allegations of 8 Plaintiff as viewed elsewhere in the record, Tr. 1025-1029 (description of sleep 9 records and subjective pain levels). The ALJ found this demonstrated that Mr. 10 Sherman relied on Plaintiff’s non-credible subjective reports of symptoms. See 11 Morgan, 169 F.3d at 602 (the opinion of a physician premised to a large extent on 12 a claimant’s own account of symptoms and limitations may be disregarded where 13 they have been properly discounted). 14 15 The foregoing germane reasons provided by the ALJ for discounting Mr. Sherman’s opinions are substantiated by the evidence of record. 16 6. Nutritional Consultant Richard Forish 17 Plaintiff additionally asserts the ALJ erred by according no weight to the 18 notes, records and suggested limitations of Richard Forish. Mr. Forish, a certified 19 nutritional consultant, is an “other source,” and, as discussed above, “other source” 20 opinions may be discounted with reasons germane to each source. Molina, 674 21 F.3d at 1111. 22 The ALJ accorded Mr. Forish’s opinions no weight. Tr. 34. The ALJ 23 indicated Mr. Forish never examined Plaintiff and only sold her supplements based 24 on their email correspondence. Tr. 34. The ALJ thus found that Mr. Forish relied 25 on Plaintiff’s subjective statements, which were appropriately deemed not entirely 26 credible by the ALJ. See supra. The ALJ additionally noted Mr. Forish’s April 27 12, 2014, statement did not reference any objective findings. See Tonapetyan, 242 28 F.3d at 1149. Finally, the ALJ found Mr. Forish’s opinions inconsistent with ORDER GRANTING DEFENDANT’S MOTION . . . - 23 1 Plaintiff’s minimal and mild examination findings. Tr. 34. As indicated above, the 2 objective medical evidence of record does not support the extensive limitations 3 averred by Plaintiff in this case. Supra. 4 5 The Court finds the ALJ provided germane reasons for assigning no weight to the opinions of Mr. Forish in this case. 6 It is the responsibility of the ALJ to determine credibility, resolve conflicts 7 in medical testimony and resolve ambiguities, Saelee v. Chater, 94 F.3d 520, 522 8 (9th Cir. 1996), and this Court may not substitute its own judgment for that of the 9 ALJ, 42 U.S.C. § 405(g). Where, as here, the ALJ has made specific findings 10 justifying a decision, and those findings are supported by substantial evidence in 11 the record, this Court’s role is not to second-guess that decision. Fair, 885 F.2d at 12 604. Based on the foregoing, the Court finds the ALJ’s interpretation of the 13 medical record is supported by the weight of the evidence of record. 14 CONCLUSION 15 Having reviewed the record and the ALJ’s findings, the Court finds the 16 ALJ’s decision is supported by substantial evidence and free of legal error. 17 Accordingly, IT IS ORDERED: 18 19 1. Defendant’s Motion for Summary Judgment, ECF No. 13, is GRANTED. Plaintiff’s Motion for Summary Judgment, ECF No. 12, is DENIED. 20 2. 21 The District Court Executive is directed to file this Order and provide a copy 22 to counsel for Plaintiff and Defendant. Judgment shall be entered for Defendant 23 and the file shall be CLOSED. 24 DATED December 8, 2017. 25 26 27 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 28 ORDER GRANTING DEFENDANT’S MOTION . . . - 24
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