Marcia Augustine v. Michael J Astrue, No. 5:2009cv00974 - Document 24 (C.D. Cal. 2010)

Court Description: OPINION AND ORDER by Magistrate Judge Rosalyn M. Chapman: IT IS ORDERED that: (1) plaintiffs request for relief is denied; and (2) the Commissioners decision is affirmed, and Judgment shall be entered in favor of defendant. See order for further details. (jy)

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Marcia Augustine v. Michael J Astrue Doc. 24 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 16 MARCIA AUGUSTINE on behalf of J.R.,) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) No. EDCV 09-0974-RC OPINION AND ORDER 17 18 Plaintiff J.R., through her mother Marcia Augustine, filed a 19 complaint on June 2, 2009, seeking review of the Commissioner s 20 decision denying her application for disability benefits. 21 October 16, 2009, the Commissioner answered the complaint, and the 22 parties filed a joint stipulation on December 30, 2009. On 23 24 25 BACKGROUND The plaintiff, who was born on July 7, 1997, is now 13 years old. 26 A.R. 51, 55, 164. On May 19, 2004, plaintiff s mother filed an 27 application on plaintiff s behalf for disability benefits under the 28 Supplemental Security Income ( SSI ) program of Title XVI of the Dockets.Justia.com 1 Social Security Act, 42 U.S.C. § 1382(a), claiming plaintiff has been 2 disabled since January 1, 2002, due to attention deficit hyperactivity 3 disorder ( ADHD ) and depression. 4 Security Administration found plaintiff was not disabled, and on 5 August 16, 2006, plaintiff filed a complaint seeking review of that 6 decision, Augustine v. Astrue, EDCV 06-0903-RC ( Augustine I ).1 7 January 17, 2008, this Court granted plaintiff s request for relief 8 and Judgment was entered remanding Augustine I to the Social Security 9 Administration, pursuant to sentence four of 42 U.S.C. § 405(g). A.R. 51-54, 71. The Social On 10 Augustine v. Astrue, 536 F. Supp. 2d 1147 (C.D. Cal. 2008); A.R. 195- 11 205. 12 administrative proceedings, A.R. 206-08, and on January 7, 2009, 13 Administrative Law Judge F. Keith Varni ( ALJ ) held a new 14 administrative hearing. 15 issued a decision again finding plaintiff is not disabled, A.R. 176- 16 88, and that decision is now before this Court for review. The Appeals Council, in turn, remanded the matter for further A.R. 348-64. On March 5, 2009, the ALJ 17 18 DISCUSSION 19 I 20 The Court, pursuant to 42 U.S.C. § 405(g), has the authority to 21 review the Commissioner s decision denying plaintiff disability 22 benefits to determine if his findings are supported by substantial 23 evidence and whether the Commissioner used the proper legal standards 24 in reaching his decision. 25 Cir. 2009); Merrill v. Apfel, 224 F.3d 1083, 1084-85 (9th Cir. 2000). Vasquez v. Astrue, 572 F.3d 586, 591 (9th 26 27 28 1 Pursuant to Fed. R. Evid. 201, this Court takes judicial notice of relevant documents in Augustine I. 2 1 A minor is disabled for purposes of the SSI program if she has 2 a medically determinable physical or mental impairment, which results 3 in marked and severe functional limitations, and which can be expected 4 to result in death or which has lasted or can be expected to last for 5 a continuous period of not less than 12 months. 6 § 1382c(a)(3)(C)(i); Merrill, 224 F.3d at 1085. 7 the burden of establishing a prima facie case of disability. 8 v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995), cert. denied, 517 U.S. 9 1122 (1996); Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir. 1996). 42 U.S.C. The claimant bears Roberts 10 11 The Commissioner has promulgated regulations establishing a 12 three-step sequential evaluation process to follow when considering 13 the disability application of a minor. 14 First Step, the ALJ must determine whether the claimant is currently 15 engaged in substantial gainful activity; if so, a finding of 16 nondisability is made and the claim is denied. 17 § 416.924(b). 18 gainful activity, in the Second Step, the ALJ must determine whether 19 the claimant has a severe medically determinable impairment or 20 combination of impairments; if not, a finding of nondisability is made 21 and the claim is denied. 22 has a severe impairment, in the Third Step, the ALJ must determine 23 whether the claimant s impairment meets or medically or functionally 24 equals an impairment in the Listing of Impairments ( Listing ), 25 20 C.F.R. § 404, Subpart P, App. 1, and if the claimant s impairment 26 meets or equals an impairment in the Listing, and meets the durational 27 requirement, disability is presumed and benefits are awarded; 28 otherwise, a finding of nondisability is made and the claim is denied. 20 C.F.R. § 416.924. In the 20 C.F.R. If the claimant is not currently engaged in substantial 20 C.F.R. § 416.924(c). 3 If the claimant 1 20 C.F.R. § 416.924(d). 2 3 Applying the three-step sequential evaluation process, the ALJ 4 found plaintiff has not engaged in substantial gainful activity at any 5 relevant time. 6 an unspecified depressive disorder, which are severe impairments. 7 (Step Two). 8 impairment or combination of impairments that meets or equals a 9 Listing; therefore, plaintiff is not disabled. (Step One). The ALJ then found plaintiff has ADHD and Finally, the ALJ concluded plaintiff does not have an (Step Three). 10 11 II 12 The mere diagnosis of a listed impairment is insufficient, in 13 itself, to support a finding of disability; rather, the claimant also 14 must have the findings shown or symptoms detailed in the listing of 15 that impairment. 16 180, 183 (9th Cir. 1990); Key v. Heckler, 754 F.2d 1545, 1549 (9th 17 Cir. 1985). 18 symptoms, signs and laboratory findings at least equal in severity 19 and duration to the characteristics of a relevant listed impairment, 20 or, if a claimant s impairment is not listed, then to the listed 21 impairment most like the claimant s impairment. 22 180 F.3d 1094, 1099 (9th Cir. 1999) (citation omitted); Howard v. 23 Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003). 20 C.F.R. § 416.925(d); Young v. Sullivan, 911 F.2d To equal a listed impairment, a claimant must establish Tackett v. Apfel, 24 25 Even if an impairment does not meet the requirements of, or is 26 not medically equal to, a listed impairment, the claimant may be 27 disabled if her impairment or combination of impairments is 28 functionally equivalent to a listed impairment. 4 20 C.F.R. § 416.926a; 1 Augustine, 536 F. Supp. 2d at 1151; Smith v. Massanari, 139 F. Supp. 2 2d 1128, 1135 (C.D. Cal. 2001). 3 assessing the claimant s ability to function in terms of the following 4 six domains, which are broad areas of functioning intended to capture 5 all of what a child can or cannot do : 6 information; (ii) attending and completing tasks; (iii) interacting 7 and relating with others; (iv) moving about and manipulating objects; 8 (v) caring for oneself; and (vi) health and physical well-being. 9 C.F.R. § 416.926a(b)(1)(i-vi). Functional equivalence is measured by (i) Acquiring and using 20 An impairment or combination of 10 impairments functionally equals a Listing if it results in marked 11 limitations in two domains of functioning or an extreme limitation 12 in one domain[.] 2 13 claimant s ability to function in each domain, the ALJ should answer 14 the following questions about whether the claimant s impairments 15 affect her functioning, and whether the claimant s activities are 16 typical of other children [of the same] age who do not have 17 impairments : 18 activities is the claimant unable to perform? (3) which of the 19 claimant s activities are limited or restricted compared to other 20 C.F.R. § 416.926a(a), (d). In evaluating a (1) What activities can the claimant perform? (2) what 20 2 21 22 23 24 25 26 27 28 A limitation is marked if it interferes seriously with [the claimant s] ability to independently initiate, sustain, or complete activities[,] which is the equivalent of the functioning [the Commissioner] would expect to find on standardized testing with scores that are at least two, but less than three, standard deviations below the mean. 20 C.F.R. § 416.926a(e)(2)(i). A limitation is extreme if it interferes very seriously with [the claimant s] ability to independently initiate, sustain, or complete activities ; however, it does not necessarily mean a total lack or loss of ability to function[;] rather, [i]t is the equivalent of the functioning [the Commissioner] would expect to find on standardized testing with scores that are at least three standard deviations below the mean. 20 C.F.R. § 416.926a(e)(3)(i). 5 1 children the claimant s age who do not have impairments? (4) where 2 does the claimant have difficulty with her activities at home, in 3 child care, at school, or in the community? (5) does the claimant have 4 difficulty independently initiating, sustaining, or completing 5 activities? and (6) what kind of help does the claimant need to do her 6 activities, how much help is needed, and how often is help needed? 7 C.F.R. § 416.926a(b)(2)(i)-(vi). 20 8 9 The ALJ found plaintiff does not meet or medically or 10 functionally equal any listed impairment since her severe mental 11 impairment does not impose any marked or extreme limitations. 12 182-88. 13 ALJ found plaintiff has: less than a marked limitation in acquiring 14 and using information; less than a marked limitation in attending and 15 completing tasks; less than a marked limitation in interacting and 16 relating with others; no limitation in moving about and manipulating 17 objects; less than a marked limitation in the ability to care for 18 herself; and no limitation in health and physical well-being. 19 184-88. 20 supported by substantial evidence because the ALJ failed to properly 21 consider: 22 M.D., as required by the Appeals Council s remand order; (2) a 23 teacher s questionnaire; and (3) plaintiff s mother s testimony. A.R. With regard to the six functional equivalence domains, the A.R. The plaintiff, however, contends these findings are not (1) the opinions of her treating psychiatrist, M.L. Valdes, 24 25 1. Treating Psychiatrist s Opinion: 26 The medical opinions of treating physicians are entitled to 27 special weight because the treating physician is employed to cure and 28 has a greater opportunity to know and observe the patient as an 6 1 individual. Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987); 2 Morgan v. Comm r of the Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 3 1999). 4 for rejecting the uncontroverted opinion of a treating physician, Ryan 5 v. Comm r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008); Reddick 6 v. Chater, 157 F.3d 715, 725 (9th Cir. 1998), and [e]ven if [a] 7 treating doctor s opinion is contradicted by another doctor, the ALJ 8 may not reject this opinion without providing specific and legitimate 9 reasons supported by substantial evidence in the record. Therefore, the ALJ must provide clear and convincing reasons Reddick, 10 157 F.3d at 725; Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 11 2008). 12 13 14 In Augustine I, this Court summarized Dr. Valdes s medical assessment of plaintiff, as follows: 15 16 On March 16, 2005, Dr. Valdes examined plaintiff and 17 diagnosed her with ADHD, a depressive disorder, borderline 18 intellectual functioning and a learning disability, 19 determined plaintiff s Global Assessment of Functioning 20 ( GAF ) to be 45[fn4] (highest past year 55),[fn5] and 21 prescribed medication. 22 [this] assessment, Dr. Valdes noted plaintiff talks about 23 hurting herself, and plaintiff cannot get along with others, 24 cannot pay attention, cannot sit still, and cannot remember 25 things from one assignment to the next. 26 Valdes found plaintiff s insight and judgment were poor, her 27 memory was good, and she was oriented times three. 28 152. A.R. 135, 152, 155. In making A.R. 135. Dr. A.R. On April 26, 2005, Dr. Valdes reported plaintiff s 7 1 initial response to medication was poor, and found plaintiff 2 cannot process authority, is hyper all day, and runs into 3 traffic. 4 plaintiff cries a lot and does not want to go to school. 5 A.R. 151. 6 cation was now working, and plaintiff was calm and pleasant 7 and was learning to get along with other children. 8 150. 9 grandmother was dying, and plaintiff was more depressed and 10 anxious, has made statements she wants to kill herself, has 11 started hitting herself, and is again not getting along with 12 other children. 13 reported plaintiff was doing well in school, but cries in 14 the morning and when she comes home from school. A.R. 151. On May 17, 2005, Dr. Valdes also noted On July 12, 2005, Dr. Valdes opined the medi- A.R. On September 15, 2005, Dr. Valdes noted plaintiff s A.R. 142. On October 13, 2005, Dr. Valdes A.R. 145. 15 16 [fn4] 17 symptoms (e.g., suicidal ideation, severe obsessional 18 rituals, frequent shoplifting) or any serious impairment in 19 social, occupational, or school functioning (e.g. no 20 friends, unable to keep a job). 21 Ass n, Diagnostic and Statistical Manual of Mental 22 Disorders, 34 (4th ed. (Text Revision) 2000). A GAF of 45 means the individual exhibits [s]erious American Psychiatric 23 24 [fn5] 25 affect and circumstantial speech, occasional panic attacks) 26 or moderate difficulty in social, occupational, or school 27 functioning (e.g., few friends, conflicts with peers or co- 28 workers). A GAF of 55 indicates [m]oderate symptoms (e.g., flat 8 1 Augustine, 536 F. Supp. 2d at 1152-53 n.4-5. 2 determined the ALJ s Step Three conclusion [was] not supported by 3 substantial evidence because the ALJ failed to discuss any of Dr. 4 Valdes s findings or opinions in his decision, and implicitly rejected 5 many of Dr. Valdes s opinions. This Court then Id. at 1153. 6 7 Following remand, Dr. Valdes provided further medical records and 8 assessments. A.R. 306-14, 324-38. Among other things, these records 9 show that on August 31, 2007, Dr. Valdes examined plaintiff, who was 10 having tantrums once or twice a day, but less severe, and noted that 11 although she had a short attention and concentration span, her 12 appearance, mood, affect and speech were appropriate, her sleep and 13 appetite were okay, and she has responded well to medication. 14 335. 15 occasionally, but was behaving better at home, her attention and 16 concentration were better with medication, and her appearance, affect 17 and speech were appropriate. 18 Valdes opined plaintiff was doing fair, she still had a short and 19 impaired attention and concentration span, and her appearance, mood, 20 affect and speech were still appropriate. 21 2008, Dr. Valdes diagnosed plaintiff as chronically learning disabled, 22 noted she has disorganized and ruminative thoughts, and found evidence 23 of depression, anxiety, inappropriate affect, compulsive behavior, 24 destructiveness, aggressiveness, and self-abuse, and Dr. Valdes opined 25 plaintiff s attitude was hostile, fearful and anxious; however, he 26 further found there is no psychosis, developmental delays or 27 abnormalities. 28 maintain a sustained level of concentration, follow and understand A.R. On November 5, 2007, Dr. Valdes noted plaintiff gets depressed A.R. 325. A.R. 333. On January 15, 2008, Dr. A.R. 328. On February 28, Dr. Valdes also opined plaintiff cannot 9 1 simple instructions, adapt to new or stressful situations, or engage 2 in an age appropriate level of skills in self-care. Id. 3 4 The ALJ rejected Dr. Valdes s opinions, stating: 5 6 I find the opinions of Dr. Valdes . . . are unpersuasive. 7 First of all they are unsupported by any mental status 8 examination which he has reported in his records or by any 9 testing which he has done or ordered, and they are based 10 solely on parent report. The financial motivation for such 11 reports is obvious since the parent does not work and is 12 supported on SSI herself for what she said was a heart 13 condition. 14 which clearly show improvement and good response to 15 medications when properly adjusted. 16 thoroughly rebutted by the opinions of the State Agency 17 Board certified psychiatrists in both the initial case and 18 the interim filing, and by the actual findings and 19 conclusions of the psychological consultative examiner. 20 . . . The opinions are contrary to Dr. Valdes records Those opinions are also 21 22 A.R. 183. 23 24 An ALJ may properly reject a treating or examining physician s 25 report that is inconsistent with the medical record. Batson v. Comm r 26 of the Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004); Morgan, 27 169 F.3d at 602. 28 contrary to that of examining psychologist Shirley Simmons, Ph.D., who Here, as the ALJ noted, Dr. Valdes s opinions are 10 1 examined plaintiff on September 15, 2008, diagnosed her with an 2 unspecified depressive disorder, and opined plaintiff was mildly 3 limited in her ability to understand and remember simple or complex 4 instructions, carry out complex instructions, and make judgments on 5 simple or complex work-related decisions, but was otherwise not 6 limited. 7 contrary to those of nonexamining psychiatrists M. Becraft, M.D., 8 Michael Skopec, M.D., K.D. Gregg, M.D., and N. Haroun, M.D. 9 17, 119-24, 301-05, 317-22. A.R. 339-47. Additionally, Dr. Valdes s opinions are A.R. 112- The contrary opinions of [the examining 10 and nonexamining physicians] serve as . . . specific and legitimate 11 reasons for rejecting the opinion[] of [the claimant s treating 12 physician], Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 13 2001); see also Morgan, 169 F.3d at 602 ( Inconsistencies between 14 [treating and examining physicians ] conclusions provided the ALJ 15 additional justification for rejecting [treating physician s] 16 opinion. ), and support the ALJ s determination that plaintiff is not 17 disabled. 18 Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007); Thomas v. 19 20 Moreover, to the extent Dr. Valdes opined plaintiff cannot 21 maintain a sustained level of concentration, follow and understand 22 simple instructions, adapt to new or stressful situations, or engage 23 in an age appropriate level of skills in self-care, A.R. 325, these 24 opinions are contrary to Dr. Valdes s treatment notes, which indicate 25 plaintiff was improving and her mental status was generally 26 appropriate. 27 was also a specific and legitimate reason for rejecting Dr. Valdes s 28 // A.R. 148, 150, 314, 328, 333, 335-36. 11 Therefore, this 1 opinions.3 2 F.3d 871, 875 (9th Cir. 2003). Tommasetti, 533 F.3d at 1041; Connett v. Barnhart, 340 3 4 2. Teacher: 5 Lay testimony as to a claimant s symptoms is competent evidence 6 that an ALJ must take into account, unless he or she expressly 7 determines to disregard such testimony and gives reasons germane to 8 each witness for doing so. 9 Cir. 2001); Valentine v. Comm r, Soc. Sec. Admin., 574 F.3d 685, 694 Lewis v. Apfel, 236 F.3d 503, 511 (9th 10 (9th Cir. 2009). Thus, third party statements are competent evidence, 11 and an important source of information about a claimant s 12 impairments[.] 13 F.3d 1294, 1298 (9th Cir. 1999); Schneider v. Comm r of the Soc. Sec. 14 Admin., 223 F.3d 968, 975 (9th Cir. 2000); see also Smolen, 80 F.3d at 15 1289 ( [T]estimony from lay witnesses who see the claimant every day 16 is of particular value. . . . ). Regennitter v. Comm r of the Soc. Sec. Admin., 166 17 18 On September 7, 2006, Paul Huff, plaintiff s fourth-grade teacher 19 for math, social studies, and science, completed a questionnaire 20 stating: 21 written instructions ; she has difficulty following step[-]by[-]step 22 instructions when completing math problems ; class discussions seem 23 to move to[o] quickly for her ; she seems zoned out and possibly 24 over-medicated; she struggles completing homework and it is obvious plaintiff seems to have problems processing oral and 25 26 3 27 28 Having concluded the reasons discussed herein provide a specific and legitimate basis for the ALJ s rejection of Dr. Valdes s opinions, the Court need not address the other reasons the ALJ provided for his rejection of Dr. Valdes s opinions. 12 1 she does not get much support at home; and she tries hard to complete 2 assignments in class, but assignments that are handed in on time are 3 of low quality. 4 observed problems interacting and relating with others or caring for 5 herself. A.R. 201-08. A.R. 294-96. Mr. Huff also opined plaintiff has no Mr. Huff concluded: 6 7 It is my personal and professional assessment that 8 [plaintiff] needs a more stable and nurturing home 9 environment. It is difficult to pass judgements this early 10 in the year. [Plaintiff] seems to want attention and 11 companionship from peers and myself but doesn t try and get 12 it in any negative ways. 13 around the classroom and truly tries to do her best. . . . 14 [S]he seems to be in an almost zombie [-]like state where 15 she is slow to process information and directions. 16 [Plaintiff] has great behavior and a desire to [do] well in 17 school, however[,] I think she lacks [the] basic skill to do 18 so. She constantly wants to help me 19 20 A.R. 298. 21 22 Here, the ALJ failed to discuss Mr. Huff s opinions, which was 23 legal error. Stout v. Comm r, Soc. Sec. Admin., 454 F.3d 1050, 1054 24 (9th Cir. 2006); Schneider, 223 F.3d at 975. 25 was harmless since Mr. Huff s opinions do now show plaintiff is 26 disabled or has any limitations the ALJ did not find.4 Nevertheless, such error See 27 4 28 Indeed, nonexamining psychiatrist Dr. Haroun relied on Mr. Huff s opinions in evaluating plaintiff, and, as discussed 13 1 Tommasetti, 533 F.3d at 1038 ( The court will not reverse an ALJ s 2 decision for harmless error, which exists when it is clear from the 3 record that the ALJ s error was inconsequential to the ultimate 4 nondisability determination. ) (citations and internal quotation marks 5 omitted); Hart v. Astrue, 349 Fed. Appx. 175, 177 (9th Cir. 2009) 6 (same); Tyler v. Astrue, 2010 WL 2135360, *8 (C.D. Cal.) ( [T]o the 7 extent the ALJ failed expressly to address statements from [lay 8 witnesses] that simply corroborated limitations the ALJ already 9 accounted for in her decision, any error was harmless. ). 10 11 3. Mother: 12 The plaintiff also complains the ALJ did not properly consider 13 her mother s testimony from both administrative hearings. 14 first administrative hearing, Mrs. Augustine stated plaintiff has been 15 diagnosed with ADHD, depression, and reduced cognitive functioning, 16 plaintiff does not get along with other children, fights with them and 17 tries to hurt them when she s depressed, and plaintiff tries to hurt 18 herself by stabbing herself with a pencil, and can never be left 19 alone. 20 plaintiff had not improved since she began receiving mental health 21 treatment. 22 Augustine testified plaintiff s depression has worsened, she does not 23 get along with other children and tries to hurt them, and she 24 sometimes tries to hurt herself by stabbing herself with pencils or 25 taking extra medication. 26 plaintiff is now in special education in the sixth grade, and she has A.R. 164-75. A.R. 168. At the At the time, Mrs. Augustine also stated At the second administrative hearing, Mrs. A.R. 351-63. Mrs. Augustine also stated 27 28 above, his opinion supports the ALJ s conclusion plaintiff is not disabled. A.R. 317-22. 14 1 never been held back. A.R. 351-52, 359-60. 2 3 Plaintiff contends the ALJ failed to discuss or even mention 4 [Mrs. Augustine s] testimony[,] Jt. Stip. at 11:13-12:16, 13:9-19, 5 but this is incorrect. 6 discussed Mrs. Augustine s testimony in both of his decisions,5 7 concluding it is consistent with [the ALJ s] findings that plaintiff 8 has a severe mental impairment, but not a disabling one. 9 183. To the contrary, the ALJ specifically A.R. 16, Here, plaintiff has not shown the ALJ s assessment is in any 10 manner incorrect. Johnson v. Astrue, 303 Fed. Appx. 543, 545 (9th 11 Cir. 2008); see also Vick v. Comm r of the Soc. Sec. Admin., 57 12 F. Supp. 2d 1077, 1086 (D. Or. 1999) (ALJ properly considered lay 13 testimony, and was not required to explain his assessment of it any 14 further when he recited the testimony and the ALJ s determination 15 [was] not inconsistent with [it]. . . . ), affirmed by, 5 Fed. Appx. 16 781 (9th Cir. 2001). 17 // 18 // 19 // 20 // 21 22 23 24 25 26 27 28 5 An ALJ may, as he did here, A.R. 179, incorporate by reference an earlier decision evaluating the evidence. See, e.g., Dixon v. Massanari, 270 F.3d 1171, 1178 (7th Cir. 2001) ( Although [ALJ] Kelly did not specifically address Dr. Dawson s opinion, she incorporated by reference ALJ Bernoski s discussions of the medical evidence[,] which was supported by substantial evidence.); Banks v. Barnhart, 434 F. Supp. 2d 800, 805 n. 10 (C.D. Cal. 2006) ( The ALJ made no Step Three finding on remand, but he incorporated by reference his earlier opinion in which he found plaintiff s condition does not meet or equal a listed impairment. ). 15 For these reasons, there is no merit to plaintiff s claims, and 1 2 plaintiff s request for relief should be denied. 3 ORDER 4 5 IT IS ORDERED that: (1) plaintiff s request for relief is denied; 6 and (2) the Commissioner s decision is affirmed, and Judgment shall be 7 entered in favor of defendant. 8 9 DATE: August 2, 2010 10 11 /S/ ROSALYN M. CHAPMAN ROSALYN M. CHAPMAN UNITED STATES MAGISTRATE JUDGE R&R-MDO\09-0974.mdo 8/2/10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16

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