Samantha Cox Erigio v. Michael J Astrue, No. 5:2012cv02215 - Document 16 (C.D. Cal. 2013)

Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal. For theIT IS ORDERED that Judgment be entered AFFIRMING the decision of the Commissioner. (See document for further details). (mr)

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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA 11 12 SAMANTHA COX ERIGIO, 13 Plaintiff, 14 15 16 v. CAROLYN W. COLVIN, Commissioner of the Social Security Administration, 17 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) NO. EDCV 12-02215 SS MEMORANDUM DECISION AND ORDER 18 19 I. 20 INTRODUCTION 21 22 Samantha Cox Erigio1 ( Plaintiff ) seeks review of the final 23 decision of the Commissioner of the Social Security Administration (the 24 Commissioner 25 benefits. 26 jurisdiction of the undersigned United States Magistrate Judge. For the 27 reasons stated below, the decision of the Commissioner is AFFIRMED. or the Agency ) denying her disability insurance The parties consented, pursuant to 28 U.S.C. § 636(c), to the 28 1 Plaintiff s name before her marriage was Samantha Jean Cox. 1 II. 2 PROCEDURAL HISTORY 3 4 Plaintiff filed an application for Title II Disability Insurance 5 Benefits on September 18, 2009. (Administrative Record ( AR ) 129). 6 Plaintiff alleged a disability onset date of July 13, 2009. (AR 143). 7 Plaintiff s date last insured was June 30, 2011. 8 denied Plaintiff s application on January 12, 2010. (AR 60). Plaintiff 9 requested reconsideration on February 1, 2010. (Id.). (AR 65). The Agency The Agency 10 denied Plaintiff s application again upon reconsideration on May 28, 11 2010. 12 Law Judge ( ALJ ) on June 20, 2010. 13 hearing held before ALJ Nancy Lisewski on June 22, 2011. 14 October 28, 2011, the ALJ issued a decision denying benefits. (AR 30). 15 Plaintiff requested a review of the ALJ s decision on December 5, 2011. 16 (AR 12). 17 October 18, 2012. 18 January 2, 2013. (AR 66). Plaintiff requested a hearing before an Administrative (AR 78). Plaintiff testified at a (AR 36). On The Appeals Council denied Plaintiff s request for review on (AR 1-4). Plaintiff then filed the instant action on 19 20 III. 21 FACTUAL BACKGROUND 22 23 Plaintiff was born on June 8, 1990.2 (AR 129). Plaintiff last 24 worked in July 2009 as a classified advertising representative for a 25 magazine. 26 associate for two different retail stores; as a dresser for a fashion (AR 40, 146). Plaintiff previously worked as a sales 27 28 2 At the time Plaintiff initially filed for disability benefits, she was nineteen years old. At the time of the hearing before the ALJ, Plaintiff was twenty-one years old. 2 1 show company; as a contributing writer for another magazine; and as an 2 assistant carrier for a newspaper.3 3 claims she stopped working due to [her] back pain. 4 4 January 2008 until July 2011, Plaintiff has seen multiple doctors for 5 her back pain. (AR 146-159, 178-185). Plaintiff (AR 40). From (AR 246-744). 6 7 A. Plaintiff s Testimony 8 9 At her June 22, 2011 administrative hearing, Plaintiff testified 10 that she is in constant pain every day, which keeps her from being able 11 to work. (AR 40). 12 a week. (Id.). 13 every three months for the pain. 14 pain is on the lower left side of [her] back, and it radiates up the 15 left side and down the left leg to the foot. 16 worse when she sits for more than thirty minutes, stands for more than 17 ten minutes, or engages in any type of activity, such as walking. 18 (Id.). Plaintiff claimed she goes to physical therapy twice She receives epidural injections in her spine once (Id.). According to Plaintiff, her (AR 41). Her pain is One of the only things that makes Plaintiff feel better is 19 20 21 22 23 24 25 26 27 28 3 In the Administrative Record, there are two different work history reports with several inconsistencies. For example, one report provides that Plaintiff was an assistant carrier for a newspaper from May 2005 - September 2005, (AR 146), whereas another report provides that Plaintiff was an assistant carrier for the same newspaper from November 2004 - May 2005. (AR 178). More importantly, in one report Plaintiff stated that as a classified advertising representative for a magazine, she stood for 3 hours, sat for 5 hours, stooped for 4 hours, and lifted a maximum weight of 40 lbs, (AR 148-49), whereas in another report Plaintiff stated that she stood for 2 hours, sat for 6-8 hours, stooped for only 30 minutes, and lifted a maximum weight of 20 lbs for the same job. (AR 179). 4 Plaintiff s typical day now consists of watching television, going online, and going to school part-time. (AR 43). 3 1 laying down every thirty minutes, but even then she has to constantly 2 switch positions to make the pain go away. (AR 41, 51). 3 4 Plaintiff claimed she can lift only small things, probably about 5 less than five pounds or so. (AR 45). When Plaintiff does lift 6 something, the pain gets worse in her back and spreads to her shoulders. 7 (AR 45-46). 8 couple of days, and they typically last anywhere from five minutes to 9 several hours. Plaintiff testified that she has hand tremors once every (AR 47). 10 11 Plaintiff testified that she drives to physical therapy twice a 12 week, although the driving is difficult. 13 Plaintiff can drive before having to pull over and get out is about 14 twenty minutes. 15 (AR 42). 16 has to get up every few hours to find a comfortable position to sleep 17 in. 18 day, usually because of the pain gets [sic] to a certain where [sic] 19 it s overwhelming. (Id.). (AR 49). The maximum time Plaintiff claims to have fatigue every day. Plaintiff s sleep at night is pretty terrible because she (AR 51). Plaintiff also gets nausea a couple times throughout the (AR 42). 20 21 Plaintiff claimed that she takes several different medications. 22 (AR 51). She was prescribed Norco, which she takes every couple of 23 weeks. 24 daily, about one to two times a day. 25 Tylenol daily. 26 she was diagnosed with a heart condition. (Id.). She was also prescribed Ibuprofen, which she takes (AR 51). (AR 51-52). Plaintiff takes Plaintiff also takes heart medication because 27 28 4 (AR 52). 1 Plaintiff has had L5-S1 disc replacement surgery. (AR 53). 2 Plaintiff experienced the same type of pain before and after the 3 surgery, but the pain is just much worse now after surgery. (Id.). 4 5 Plaintiff no longer works, but is attending school part-time, 6 taking one class a day, no more than a little over an hour. (AR 43). 7 The school accommodates her by giving her a large chair and desk, more 8 time for test-taking, and breaks every thirty minutes. (Id.). 9 10 B. Vocational Expert s Testimony 11 12 Corinne Porter, a Vocational Expert ( VE ), also testified at 13 Plaintiff s administrative hearing. (AR 36). The ALJ gave the VE two 14 hypotheticals and asked if any of Plaintiff s past work would be 15 available given each hypothetical. (AR 55). In the first hypothetical, 16 the ALJ posited an individual with the same age, education, work 17 background, limited to light work, all posturals occasional. 18 The VE concluded that an individual with those limitations would be able 19 to perform Plaintiff s past work as a classified ad rep, a sales 20 associate on both occasions, a magazine writer, and a newspaper carrier. 21 (Id.). 22 the same age, education, work background, limited to sitting for two 23 hours, standing and walking for two hours, and would miss four or more 24 days of work per month. 25 additional limitations [t]here would not be any work. (Id.). In the second hypothetical, the ALJ posited an individual with (Id.). The VE found that with those (Id.). 26 27 28 Plaintiff s attorney also gave the VE a hypothetical, which was a variant of the ALJ s second hypothetical. 5 (AR 56). Plaintiff s 1 attorney posited, And in addition I m going to be adding to that as 2 well, which is standing and walking for two out of eight hour day, 3 sitting limited to six out of an eight hour day, lifting 10 pounds 4 occasionally, less than 10 pounds frequently with occasional bending and 5 stooping, 6 reaching 7 manipulation, fingering and so forth, and also missing at least three 8 days of work due to pain. Is there any past work? 9 replied, There would not be any past work or any other work. kneeling, at crouching, frequent, less crawling than also occasional occasional, for use of overhead hands (Id.). for The VE (Id.). 10 11 C. Plaintiff s Pain Questionnaire and Function Report 12 13 Plaintiff filled out a pain questionnaire5 in which she claimed that 14 her pain began in September 2007. 15 the pain is located in the lower left lumbar and it radiates down her 16 left leg. 17 Plaintiff takes Hydrocodone as needed. 18 out the pain questionnaire, she had been taking Hydrocodone for seven 19 months. 20 Plaintiff s pain. 21 watching television, reading, playing board games, and talking on the 22 telephone. 23 run, lift, walk long distances, or push or pull any weighted objects. 24 (Id.). 25 thirty feet, stand for only five minutes at a time, and sit for only (Id.). (Id.). (AR 204). The pain is sharp, aching, and constant. (Id.). (Id.). (AR 205). At the time she filled Plaintiff s daily activities include Plaintiff asserts she can no longer work, dance, According to her questionnaire, Plaintiff is able to walk only 27 5 (Id.). Heating pads, baths, and laying in bed tend to relieve 26 28 Plaintiff indicated that The pain questionnaire is not dated. 6 1 five minutes at a time. 2 (AR 206). For errands, Plaintiff s parents and fiancé drive her around. (Id.). 3 4 Plaintiff also filled out an adult function report, dated March 26, 5 2010. (AR 207). 6 until the time she goes to bed, she showers, brushes her teeth, watches 7 television, uses the computer, reads, plays board games, and goes to 8 physical therapy. 9 and bathing them, with assistance. her with Plaintiff indicated that from the time she wakes up (Id.). Plaintiff takes care of her dogs by feeding helps 11 extremely difficult to find a comfortable position when she wants to 12 sleep. 13 stand for a period of time. 14 next to the question, Do you drive? 6 15 either rides in a car or walks, but she can only walk fifteen to thirty 16 feet. 17 (AR 211). Plaintiff goes to physical therapy and doctor appointments on 18 a regular basis. 19 her inability to be pain free. 20 pounds max. (Id.). (Id.). Plaintiff s fiancé 10 (Id.). everything. (AR 208). Plaintiff s pain makes it Plaintiff cannot cook because it is difficult to bend or (AR 209). Plaintiff checked the No box (AR 210). To travel, Plaintiff Plaintiff finds it difficult to focus and concentrate. (Id.). Plaintiff rarely sees her friends because of (AR 212). Plaintiff can lift only 2 (Id.). 21 22 D. Plaintiff s Mother s Third Party Function Report 23 24 On March 26, 2010, Plaintiff s mother, Kathy Cox, filled out a 25 function report. (AR 216). Ms. Cox indicated that she spends ten to 26 twelve hours per day with Plaintiff. (Id.). Ms. Cox takes care of 27 28 6 Other evidence in the record, including Plaintiff s testimony at the hearing, indicates that she does, in fact, drive. (AR 24, 49). 7 1 Plaintiff, watches television with her, and talks to her. 2 Cox also indicated that from the time Plaintiff wakes up until she goes 3 to bed, Plaintiff watches television, showers, uses the computer, reads, 4 plays board games, and goes to physical therapy. 5 Plaintiff feed her dogs and bathe them. 6 Plaintiff travels by riding in a car and she cannot go out alone because 7 she needs a wheelchair. 8 activities have completely stopped since her surgery - her friends at 9 19 [years of age] can fully function and she can t be doing the 10 (AR 219). (Id.). (AR 217). (Id.). Ms. Ms. Cox helps Ms. Cox claimed that According to Ms. Cox, Plaintiff s activities normally associated with this age. (AR 221). 11 12 E. Plaintiff s Medical History 13 14 On January 24, 2008, Plaintiff had an MRI at Healthcare Imaging 15 Center in which Dr. Allie Blackburn noted a [m]ild disc desiccation at 16 L5-S1, but otherwise a normal MRI of the lumbar spine with no evidence 17 for 18 spondylolisthesis. 19 Bergey diagnosed Plaintiff with an L5-S1 disc herniation. disc protrusion/extrusion, vertebral (AR 247-48). endplate defect, or On January 25, 2008, Dr. Darren (AR 251). 20 21 On February 29, 2008, Plaintiff received a lumbar epidural steroid 22 injection to help with her back pain. 23 Plaintiff received an L5-S1 discogram and an L5-S1 intradiscal injection 24 of antibiotic. 25 S1. (AR 268). (AR 253-54). On March 10, 2008, The outcome was a positive discogram at L5- (Id.). 26 27 28 In March 2008, Plaintiff had an L5-S1 disk replacement. The surgery yielded good results 8 initially. (Id.). (AR 353). After 1 approximately four to six months, however, Plaintiff claimed that her 2 back pain returned and was significantly worse than before. 3 353). (AR 312, 4 5 On February 20, 2009, Plaintiff saw Dr. David Fish for an initial 6 evaluation and consultation for treatment options related 7 [Plaintiff s] left lower back pain and left leg pain. 8 Fish recommended: (1) no new medication, (2) physical therapy, and (3) 9 steroid injections. (AR 312). to Dr. (AR 313-14). 10 11 On June 15, 2009, Plaintiff visited Dr. Randall Hawkins for a 12 consultation. (AR 333). Dr. Hawkins assessment was that Plaintiff s 13 primary pain is due to myofascial pain syndrome. 14 recommended more 15 exercises. (Id.). physical therapy, ice (AR 334). rubbing, and Dr. Hawkins stretching 16 17 On July 6, 2009, Plaintiff visited the Loma Linda University Health 18 Care facility, where Dr. John Owens examined her. (AR 360-62). 19 Owens diagnosed Plaintiff with: (1) chronic low back pain, (2) left SI 20 joint dysfunction, (3) degenerative disk disease with history of disk 21 replacement, L5-S1, (4) spinal stenosis in the lumbar spine, and (5) 22 fibromyalgia versus myofascial pain syndrome. 23 recommended that Plaintiff continue with neuropsychology, continue 24 taking Ibuprofen, and continue physical therapy. (AR 361). Dr. Dr. Owens (Id.). 25 26 On July 16, 2009, Plaintiff visited Dr. Darren Bergey for a follow 27 up from seven months before. (AR 348). 28 constant leg pain and left buttocks pain. 9 Plaintiff complained of (Id.). Dr. Bergey noted that 1 Plaintiff did not have the transforaminal steroid or selective nerve 2 block which [he] requested. 3 Plaintiff should have a left L5-S1 selective nerve block. (Id.). Dr. Bergey recommended that (AR 349). 4 5 On July 21, 2009, Plaintiff visited Dr. Farbod Asgarzadie, Chief of 6 Spinal Surgery at Loma Linda University Health Care, for a neurosurgical 7 spine consult. 8 of the lumbar spine shows good placement of artificial disk on CT scan 9 with no evidence of any significant facet arthropathy on CT scan (AR 353). (AR 354). Dr. Asgarzadie noted that Plaintiff s CT scan 10 imaging. Dr. Asgarzadie also noted that there is no 11 evidence of significant degeneration. 12 Asgarzadie drafted a final report for his consultation with Plaintiff. 13 (AR 409). 14 episodes of hemibody numbness and the feeling of subjective weakness in 15 the legs. 16 scanning of the whole neuro axis including brain, cervical, thoracic, 17 and lumbar spine did not show any significant abnormalities. 18 Dr. Asgarzadie concluded, I do not think that there is any significant 19 evidence of tethered cord or Chiari. 20 recommend any surgical intervention. (Id.). On October 13, 2009, Dr. Plaintiff had complained to Dr. Asgarzadie that she had (Id.). Dr. Asgarzadie noted that Plaintiff s recent MRI (Id.). (Id.). Dr. Asgarzadie did not (Id.). 21 22 On October 16, 2009, Plaintiff 23 neurological 24 examination revealed a tall, attractive, pleasant, young female in no 25 acute distress. 26 imaging of her brain and spinal column have failed to demonstrate a 27 pathology to correlate with her symptoms, particularly her left lower 28 extremity pain. consultation. (AR (AR 467). (AR 469). 465). saw Dr. Dr. Reza Nazemi Nazemi s for a neurological Dr. Nazemi noted: Thus far, extensive On November 17, 2009, Plaintiff visited Dr. 10 1 Nazemi for a follow-up. 2 [Plaintiff] 3 conclusion that she has an unusual form of multiple sclerosis or some 4 other neurological disease that nobody is able to diagnos[e]. 5 to tell her that in view of her negative neurodiagnostic workup the 6 possibility of an organic pathology would be quite remote. . . . I 7 strongly very resistant 8 functional cause for her unrelenting symptoms. (AR 472). has feel (AR 470). searched that the Dr. Nazemi s conclusion was that Internet [Plaintiff] has a and has come up with the I tried underlying 9 10 On October 26, 2009, Plaintiff visited Dr. Gowriharan Thaiyananthan 11 for consideration and review of her lumbar images, to see if she has a 12 spinal etiology of her symptoms. (AR 428-29). Dr. Thaiyananthan noted 13 that Plaintiff s lower extremity strength reflexes were normal and she 14 had no perceptible focal abnormalities on exam. 15 Thaiyananthan concluded that he does not believe Plaintiff has a spinal 16 etiology for her symptoms. (AR 429). Dr. (Id.). 17 18 On January 26, 2010, Plaintiff visited Dr. Jeffrey Deckey at the 19 Orthopaedic Specialty Institute for a consultation. 20 Deckey noted that he would not recommend another surgery because he is 21 not sure exactly as to the etiology of [Plaintiff s] pain. 22 she was treated for an anular tear with positive diskography, her 23 preoperative MRI demonstrated minimal degenerative changes. 24 Dr. Deckey recommended that Plaintiff have a selective S1 nerve root 25 block on the left side to help relieve her pain. 26 2010, Plaintiff saw Dr. Deckey again for a follow up, after undergoing 27 an L5-S1 transforaminal injection. 28 transforminal injection significantly helped Plaintiff s pain and made (AR 578). 11 (AR 493). (Id.). Dr. Although (AR 495). On March 9, Dr. Deckey noted that the 1 Plaintiff feel better than she has in years. She started physical 2 therapy (Id.). 3 concluded, 4 improved range of motion. 5 examination is unchanged. and has really turned [Plaintiff s] the physical corner. examination today She has a normal gait. Dr. Deckey demonstrates Her motor and sensory (Id.). 6 7 On February 19, 2010, Plaintiff visited Dr. Jerry Fralick for a 8 consultation. (AR 574-77). Dr. Fralick noted that Plaintiff appears 9 calm and pleasant but hypervigilant. (AR 575). He then noted that 10 Plaintiff appears to have an exaggerated response to pain. 11 Dr. Fralick also noted: [Plaintiff] has assumed a sedentary lifestyle 12 and has not moved forward. . . . [I]n my opinion she is really not doing 13 anything to move herself forward. . . . I think there is a psychologic 14 component to her pain. 15 her that in my opinion she has made herself more disabled than she 16 should be. 17 be able to perform at least sedentary duty work and that long term 18 disability would be a mistake for this young individual. (AR 576). (Id.). I told [Plaintiff] and her mother who was with Dr. Fralick also believes that Plaintiff should (AR 577). 19 20 On March 22, 2010, Plaintiff saw Dr. Shahin Etebar again. (AR 21 580). Plaintiff was doing much better during this visit, with no new 22 medical problems. 23 some discomfort at the lumbosacral junction and also some pain to the 24 left of the midline at the upper lumbar area. 25 that Plaintiff denies any symptoms. (Id.). Plaintiff s main issue during this visit was (Id.). Dr. Etebar noted (AR 581). 26 27 28 On May 16, 2010, Plaintiff evaluation by Dr. Harrison. received (AR 599-604). 12 a complete psychiatric Dr. Harrison noted that 1 [f]rom a psychiatric standpoint, [Plaintiff s] prognosis is expected to 2 improve if her medical condition improves. 3 also noted that there are no mental restrictions in [Plaintiff s] daily 4 activities. (AR 604). Dr. Harrison (Id.). 5 6 On April 20, 2011, Plaintiff consulted with Dr. Jean-Jacques 7 Abitbol. (AR 639-42). Dr. Abitbol noted that [p]ostoperative studies, 8 including a myelogram-CT scan failed to show any evidence of neural 9 compression and the apparatus appears in good position. Furthermore, on 10 X-rays, there does not appear to be any loosening of the device. 11 641). 12 absolute confirmation as to the culprit causing the pain. (AR Dr. Abitbol also did not recommend surgery, unless there [was] (AR 642). 13 14 F. Impartial Medical Experts 15 16 On January 12, 17 consultant, 18 Plaintiff s alleged persisting severity since her alleged onset date is 19 not evident in the exams. reviewed 2010, Dr. Plaintiff s Spellman, medical a State history agency and medical opined that (AR 492). 20 21 On July 18, 2011, after the administrative hearing, Dr. Joseph 22 Jensen, an impartial medical expert, answered a medical interrogatory 23 pertaining to Plaintiff s medical history. (AR 742). Dr. Jensen opined 24 that Plaintiff has the following limitations: Plaintiff can lift twenty 25 pounds occasionally and ten pounds frequently; she can stand or walk for 26 four hours in an eight-hour workday; she can sit for six hours in an 27 eight-hour workday; she can occasionally climb stairs or ramps, but not 28 ladders; she can occasionally bend, stoop, kneel, crawl, or crouch; she 13 1 can occasionally pedal with the left and she can frequently pedal with 2 the right; she has no limitation in the use of her upper extremities for 3 gross or fine manipulation or feeling; she can occasionally reach 4 shoulder level; and she can frequently reach below shoulder level 5 bilaterally. (AR 744). 6 7 IV. 8 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 9 10 To qualify for disability benefits, a claimant must demonstrate a 11 medically determinable physical or mental impairment that prevents him 12 from engaging in substantial gainful activity7 and that is expected to 13 result in death or to last for a continuous period of at least twelve 14 months. 15 U.S.C. § 16 incapable of performing the work he previously performed and incapable 17 of performing any other substantial gainful employment that exists in 18 the national economy. 19 1999) (citing 42 U.S.C. § 423(d)(2)(A)). Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998) (citing 42 423(d)(1)(A)). The impairment must render the claimant Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 20 21 22 To decide if a claimant is entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. §§ 404.1520, 416.920. The steps are: 23 24 25 26 27 28 7 Substantial gainful activity means work that involves doing significant and productive physical or mental duties and is done for pay or profit. See 20 C.F.R. §§ 404.1510, 416.910. 14 1 (1) Is the claimant presently engaged in substantial 2 gainful activity? 3 disabled. 4 (2) If so, the claimant is found not If not, proceed to step two. Is the claimant s impairment severe? 5 claimant is found not disabled. 6 If not, the three. 7 (3) If so, proceed to step Does the claimant s impairment meet or equal one of the 8 specific impairments described in 20 C.F.R. Part 404, 9 Subpart P, Appendix 1? 10 disabled. 11 (4) If so, the claimant is found If not, proceed to step four. Is the claimant capable of performing his past work? 12 If so, the claimant is found not disabled. 13 proceed to step five. 14 (5) Is the claimant able to do any other work? 15 claimant is found disabled. 16 If not, If not, the If so, the claimant is found not disabled. 17 18 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 262 F.3d 19 949, 20 404.1520(b)-(g)(1) & 416.920(b)-(g)(1). 953-54 (9th Cir. 2001) (citations omitted); 20 C.F.R. §§ 21 22 The claimant has the burden of proof at steps one through four, and 23 the Commissioner has the burden of proof at step five. Bustamante, 262 24 F.3d at 953-54. 25 the claimant in developing the record at every step of the inquiry. 26 at 954. 27 an inability to perform past work, the Commissioner must show that the 28 claimant can Additionally, the ALJ has an affirmative duty to assist Id. If, at step four, the claimant meets his burden of establishing perform some other work 15 that exists in significant 1 numbers in the national economy, taking into account the claimant s 2 residual 3 experience. 4 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). 5 by the testimony of a vocational expert ( VE ) or by reference to the 6 Medical-Vocational Guidelines appearing in 20 C.F.R. Part 404, Subpart 7 P, Appendix 2 (commonly known as the Grids ). 8 F.3d 1157, 1162 (9th Cir. 2001). 9 (strength-related) functional capacity8 ( RFC ), age, education, and work Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at 721; and The Commissioner may do so Osenbrock v. Apfel, 240 When a claimant has both exertional non-exertional limitations, the Grids are 10 inapplicable and the ALJ must take the testimony of a vocational expert. 11 Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000) (citing Burkhart v. 12 Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988)). 13 14 V. 15 THE ALJ S DECISION 16 17 The ALJ employed the five-step sequential evaluation process and 18 concluded, at step one, that Plaintiff had not engaged in substantial 19 gainful activity between her alleged onset date of July 13, 2009 and her 20 date last insured of June 30, 2011. 21 found that Plaintiff had severe impairments of status post L5-S1 disk 22 replacement and fibromyalgia. 23 Plaintiff did not have an impairment or combination of impairments that 24 met or medically equaled the severity of one of the listed impairments 25 in 20 CFR Part 404, Subpart P, Appendix 1. Id. (AR 21). At step two, the ALJ At step three, the ALJ found that (AR 22-23). 26 27 28 8 Residual functional capacity is the most [one] can still do despite [his] limitations and represents an assessment based upon all of the relevant evidence. 20 C.F.R. §§ 404.1545(a), 416.945(a). 16 1 At step four, the ALJ determined, based on the vocational expert s 2 testimony, that Plaintiff could not perform any past relevant work as 3 actually or generally performed. 4 however, that Plaintiff had the residual functional capacity to perform 5 the full range of sedentary work as defined in 20 CFR 404.1567(a). 6 23). 7 diagnostic findings, treatment records, and all medical source opinions 8 supported finding that Plaintiff can perform at least sedentary level 9 work duty. (AR 28-29). The ALJ did find, (AR Specifically, the ALJ determined that the objective clinical and (AR 28). According to the ALJ, the objective medical 10 evidence does not support more restrictive findings than assessed 11 herein. . . . [T]wo of the [Plaintiff s] own physicians, Dr. Fralick and 12 Dr. 13 [Plaintiff] has a very resistant underlying functional cause for her 14 unrelenting symptoms and she appears to have an exaggerated response to 15 her pain. 16 described took into consideration Plaintiff s subjective complaints, as 17 well as the actual clinical and diagnostic findings. (Id.). Nazemi, discussed (Id.). the negative findings and suggested that The ALJ specifically noted that the limitations 18 19 Finally, at step five, the ALJ found that through the date last 20 insured, considering the [Plaintiff s] age, education, work experience, 21 and residual functional capacity, there were jobs that existed in 22 significant numbers in the national economy that the claimant could have 23 performed. 24 disabled at any time between the alleged onset date of July 13, 2009 25 through the date last insured of June 30, 2011. (AR 29). Thus, the ALJ determined that Plaintiff was not 26 27 28 17 (AR 30). 1 VI. 2 STANDARD OF REVIEW 3 4 Under 42 U.S.C. § 405(g), a district court may review the 5 Commissioner s decision to deny benefits. The court may set aside the 6 Commissioner s decision when the ALJ s findings are based on legal error 7 or are not supported by substantial evidence in the record as a whole. 8 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (citing 9 Tackett, 180 F.3d at 1097); Smolen v. Chater, 80 F.3d 1273, 1279 (9th 10 Cir. 1996) (citing Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989)). 11 12 Substantial evidence is more than a scintilla, but less than a 13 preponderance. 14 112 F.3d 1064, 1066 (9th Cir. 1997)). 15 reasonable person might accept as adequate to support a conclusion. 16 Id. (citing Jamerson, 112 F.3d at 1066; Smolen, 80 F.3d at 1279). 17 determine whether substantial evidence supports a finding, the court 18 must consider the record as a whole, weighing both evidence that 19 supports 20 conclusion. 21 F.3d 953, 956 (9th Cir. 1993)). If the evidence can reasonably support 22 either affirming that 23 substitute its judgment for that of the Commissioner. Reddick, 157 F.3d 24 at 720-21 (citing Flaten v. Sec y, 44 F.3d 1453, 1457 (9th Cir. 1995)). and Reddick, 157 F.3d at 720 (citing Jamerson v. Chater, evidence that It is relevant evidence which a detracts from the To [Commissioner s] Aukland, 257 F.3d at 1035 (quoting Penny v. Sullivan, 2 or reversing 25 26 27 28 18 conclusion, the court may not 1 VII. 2 DISCUSSION 3 4 Plaintiff contends that the ALJ erred for two reasons. First, 5 Plaintiff argues that the ALJ improperly assessed her credibility. 6 (Memorandum in Support of Plaintiff s Complaint ( MSPC ) at 6). 7 support this contention, Plaintiff makes four specific arguments: (1) 8 the 9 inconsistent statements; (2) the ALJ improperly rejected her credibility 10 by an implicit finding of malingering; (3) the ALJ improperly rejected 11 her excess pain testimony on the ground that no medical opinion endorsed 12 it; and (4) the ALJ improperly rejected her excess pain testimony on the 13 ground that the pain she described was out of proportion to the 14 objective medical evidence. 15 that 16 regarding her functional limitations by concluding that she was not 17 disabled at any time during the relevant period. 18 Court disagrees. For the reasons discussed below, the ALJ s decision 19 must be AFFIRMED. ALJ the improperly ALJ rejected improperly her credibility (MSPC at 6-19). considered the on the ground To of Second, Plaintiff argues medical opinion evidence (MSPC at 19-21). The 20 21 A. The ALJ Properly Assessed Plaintiff s Credibility 22 23 The ALJ is responsible for determining a claimant s credibility. 24 Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009)(quoting Andrews v. 25 Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). 26 claimant s testimony regarding her subjective pain or symptoms is 27 credible, the ALJ must engage in a two-part analysis. 28 674 F.3d 1104, 1112 (9th Cir. 2012)(citing Vasquez, 572 F.3d at 591). 19 To determine whether a Molina v. Astrue, 1 First, the 2 objective medical evidence of an impairment that could reasonably be 3 expected to produce the pain or symptoms alleged. 4 does not have to show that her impairment could reasonably be expected 5 to cause the severity of the symptom[s] she has alleged; she need only 6 show 7 symptom[s]. Vasquez, 572 F.3d at 591 (quoting Lingenfelter v. Astrue, 8 504 F.3d 1028, 1036 (9th Cir. 2007))(emphasis added). 9 ALJ cannot reject a claimant s subjective pain testimony simply 10 because there is no showing that the impairment can reasonably produce 11 the degree of the symptom alleged. 12 (quoting that ALJ it must could determine reasonably whether have the claimant caused has Id. some presented The claimant degree of the Therefore, the Lingenfelter, 504 F.3d at 1036. Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996)). 13 14 Second, if the claimant satisfies the first part of the analysis, 15 and if there is no affirmative evidence of malingering, the ALJ can 16 reject the claimant s testimony about the severity of her symptoms only 17 by offering specific, clear and convincing reasons for doing so. 18 Molina, 674 F.3d at 1112 (quoting Vasquez, 572 F.3d at 591). 19 wants to discredit a claimant s testimony because the complaints are 20 inconsistent with clinical observations, the ALJ can satisfy the clear 21 and convincing threshold by specifying what complaints are contradicted 22 by what clinical observations. Regennitter v. Comm r of Soc. Sec. 23 Admin., 166 F.3d 1294, 1297-99 (9th Cir. 1999)). 24 consider the objective medical evidence, together with other evidence, 25 when evaluating a claimant s complaints about her pain and symptoms. 26 See 20 27 objective medical evidence and, when it is obtained, we will consider it 28 in reaching a conclusion as to whether you are disabled. C.F.R. § 404.1529(c)(2)( We 20 must If the ALJ Moreover, the ALJ must always attempt to obtain However, we 1 will not reject your statements about the intensity and persistence of 2 your pain or other symptoms or about the effect your symptoms have on 3 your ability to work solely because the available objective medical 4 evidence does not substantiate your statements. ); see also Light v. 5 Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997) (holding that an ALJ 6 may not discredit a claimant s subjective pain testimony solely on the 7 ground that no objective medical evidence supports it). 8 ALJ must discredit the claimant s subjective testimony by finding that 9 she is not credible. 10 Instead, the Rollins v. Massanari, 261 F.3d 853, 859 (9th Cir. 2001). 11 12 The ALJ may consider many factors when evaluating a claimant s 13 credibility, including 14 evaluation, 15 inconsistent statements concerning the symptoms, and other testimony by 16 the 17 inadequately 18 prescribed 19 activities. Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) 20 (quoting Smolen, 80 F.3d at 1284); see also Light, 119 F.3d at 792 21 (holding that in order to find a claimant not credible, the ALJ must 22 rely either on reasons unrelated to the subjective testimony (e.g., 23 reputation for dishonesty), on conflicts between his testimony and his 24 own conduct, or on internal contradictions in that testimony. ). If the 25 ALJ s credibility finding is supported by substantial evidence in the 26 record, the Court may not engage in second-guessing. 27 Barnhart, 278 F.3d 947, 959 (9th Cir. 2002); see also Rollins, F.3d at 28 857 (where the ALJ s interpretation of the plaintiff s testimony may not such claimant that as the appears explained course (1) of ordinary claimant s less failure reputation than to treatment; 21 techniques seek and candid; for (2) treatment (3) of the credibility lying, prior unexplained or to follow claimant s or a daily Thomas v. 1 have been the only reasonable one, but was still a reasonable 2 interpretation supported by substantial evidence; it was not the court s 3 role to second-guess it). 4 5 Here, the ALJ provided clear and convincing reasons for rejecting 6 Plaintiff s excess pain testimony and for finding Plaintiff s 7 allegations about her symptoms and limitations not fully credible. 8 Under the first part of the analysis, the ALJ considered Plaintiff s 9 testimony, the pain questionnaire and function report that Plaintiff 10 completed, and the objective medical evidence, and properly held that 11 Plaintiff s medically determinable impairments could reasonably be 12 expected to cause the alleged symptoms. 13 F.3d at 591 (Plaintiff need not show that her impairment could 14 reasonably be expected to cause the severity of the symptom[s] she has 15 alleged; she need only show that it could reasonably have caused some 16 degree of the symptom[s]. )(quoting Lingenfelter, 504 F.3d at 1036). (AR 24-25); see Vasquez, 572 17 18 Plaintiff did have an L5-S1 disk replacement surgery in March 2008. 19 (AR 353). More than a year later, on July 6, 2009, Dr. Owens diagnosed 20 Plaintiff with chronic low back pain, degenerative disk disease with 21 history of disk replacement at L5-S1, and fibromyalgia versus myofascial 22 pain syndrome. 23 that she is experiencing pain located in the lower left lumbar and the 24 pain radiates down her left leg. 25 both the pain questionnaire and a function report that she can no longer 26 walk long distances or lift heavy objects. 27 this evidence, Plaintiff s medically determinable impairments could (AR 361). In a pain questionnaire, Plaintiff indicated (AR 204). 28 22 Plaintiff also indicated in (AR 204-14). In light of 1 reasonably be expected to cause her alleged symptoms and reports of 2 pain. Thus, Plaintiff satisfied the first part of the analysis. 3 1. 4 The ALJ Properly Rejected Plaintiff s Credibility On The Ground Of Inconsistent Statements 5 6 7 Under the second part of the analysis, the ALJ properly concluded 8 that Plaintiff s statements about the intensity, persistence, 9 limiting effects of her symptoms were not fully credible. (AR 25). and In 10 making this determination, the ALJ considered Plaintiff s testimony, the 11 pain questionnaire and function report that Plaintiff completed, and the 12 objective medical evidence, which included reports by multiple doctors 13 with whom Plaintiff consulted. (AR 24-28). 14 15 The ALJ gave specific examples in the record to support her finding 16 that Plaintiff was not fully credible. 17 inconsistencies in the record where Plaintiff indicated in her function 18 report that she does not drive, but she testified [at the hearing that] 19 she is able to drive for twenty minutes at a time. 20 also noted that at the hearing, Plaintiff [testified] she could lift up 21 to five pounds, but in her function report, she said she cannot lift 22 more than two pounds. 23 might not intend to mislead, but nevertheless the inconsistencies 24 suggest that the information provided by [Plaintiff] generally may not 25 be entirely reliable. 9 (Id.). (Id.). For example, the ALJ noted (AR 24). The ALJ The ALJ acknowledged that Plaintiff Plaintiff s inability to accurately 26 27 28 9 A closer look at the record reveals that Plaintiff s work history reports also contain inconsistencies. For example, Plaintiff provided inconsistent statements regarding her job as a classified advertising 23 1 describe her prior physical abilities and limitations shows that she may 2 be 3 limitations. 4 certainly falls within the realm of ordinary techniques of credibility 5 evaluation. 6 1284); see also Light, 119 F.3d at 792 (holding that the ALJ can rely on 7 internal contradictions in a Plaintiff s testimony when assessing her 8 credibility). 9 that the ALJ offer specific, clear and convincing reasons for rejecting providing inaccurate information about her current functional The ALJ s finding of these inconsistencies in the record Tommasetti, 533 F.3d at 1039 (citing Smolen, 80 F.3d at Moreover, the ALJ s findings satisfy the requirement 10 Plaintiff s testimony about the severity of her symptoms. 11 See Molina, 674 F.3d at 1112 (citing Vasquez, 572 F.3d at 591). 12 13 The ALJ also properly discredited Plaintiff s testimony and 14 satisfied the clear and convincing threshold by identifying specific 15 complaints by Plaintiff that were contradicted by objective medical 16 evidence. 17 noted that Plaintiff had a neurological examination on October 16, 2009 18 with Dr. Nazemi, where Plaintiff complained of numbness of the right 19 hand, loss of dexterity of her hand, numbness of the last 2 toes of the 20 right 21 neurological 22 essentially normal. 23 (holding that the ALJ can satisfy the clear and convincing threshold by 24 specifying Regennitter, 166 F.3d at 1297-99. foot, [and] neck, examination what shoulder, by Dr. and Nazemi low For example, the ALJ back yielded pain, results but that the were (AR 26); see Regennitter, 166 F.3d at 1297 complaints are contradicted by what clinical 25 26 27 28 representative for a magazine, contending in one report that she lifted a maximum weight of forty pounds, while contending in another report that she lifted a maximum weight of only twenty pounds. (AR 148-49, 179). 24 1 observations ). 2 consultation with Dr. Deckey, where Plaintiff continued her complaints 3 of pain, but again, her physical exam revealed subjective tenderness 4 with 5 examination was grossly within normal limits, an x-ray demonstrated a 6 well 7 demonstrated no significant facet arthrosis. 8 properly considered the inconsistencies between Plaintiff s reports of 9 pain and her doctor s observations when she deemed Plaintiff not fully 10 limitation positioned Another example the ALJ noted was a January 26, 2010 in range disk of motion, replacement at but her L5-S1, motor and her and sensory CT myelogram (AR 27). The ALJ credible. 11 12 2. The ALJ Properly Rejected Plaintiff s Credibility, But Not By An Implicit Finding Of Malingering 13 14 15 Plaintiff contends that the ALJ erred because she improperly 16 rejected Plaintiff s credibility by an implicit finding of malingering. 17 (MSPC 15). 18 reasoning, where she stated, Moreover, two of the claimant s own 19 physicians 20 exaggeration of pain. 21 malingering here, but rather considered the Plaintiff s pain allegations 22 in light of the objective medical evidence and found that Plaintiff s 23 excess pain testimony should be rejected because no medical opinion 24 endorsed it and it was out of proportion to the objective medical 25 evidence. To support her argument, Plaintiff points to the ALJ s have questioned her pain (AR 24). response, one even noting an The ALJ did not implicitly find 26 27 When a claimant satisfies the first part of the analysis, which 28 Plaintiff did, and if there is no affirmative evidence of malingering, 25 1 the ALJ can reject the claimant s testimony about the severity of her 2 symptoms only by offering specific, clear and convincing reasons for 3 doing so. 4 591). 5 testimony by finding that she is not credible. 6 859. 7 credibility, such as claimant s prior inconsistent statements concerning 8 her symptoms. Molina, 674 F.3d at 1112 (quoting Vasquez, 572 F.3d at Specifically, the ALJ must discredit the claimant s subjective Rollins, 261 F.3d at The ALJ can consider many factors when evaluating a claimant s Tommasetti, 533 F.3d at 1039. 9 10 As already discussed in detail above, because there was no 11 affirmative evidence of malingering in the record, the ALJ had to assess 12 Plaintiff s credibility and then consider Plaintiff s pain allegations 13 in light of the objective medical evidence. 14 859. 15 Plaintiff s 16 inconsistent and by finding Plaintiff s testimony to be contradicted by 17 the objective medical evidence. This is precisely what the ALJ did. credibility, by finding her See Rollins, 261 F.3d at The ALJ properly rejected own statements to be 18 19 20 3. The ALJ Properly Rejected Plaintiff s Excess Pain Testimony On The Ground That No Medical Opinion Endorsed It 21 22 Generally, an ALJ cannot reject a claimant s subjective pain 23 testimony solely on the ground that no objective medical evidence 24 supports it. 25 claimant s subjective pain testimony by finding claimant not credible. 26 Rollins, 261 F.3d at 859. 27 claimant s testimony about the severity of her symptoms only by offering Light, 119 F.3d at 792. An ALJ can, however, discredit a Furthermore, an ALJ can reject the 28 26 1 specific, clear and convincing reasons for doing so. Molina, 674 F.3d 2 at 1112 (quoting Vasquez, 572 F.3d at 591). 3 4 Here, the ALJ properly discredited Plaintiff s subjective pain 5 testimony by finding her not fully credible, as discussed above. 6 ALJ then considered the objective medical evidence and compared it to 7 Plaintiff s subjective pain testimony, which was given very little 8 weight in light of the ALJ s credibility findings. 9 not reject Plaintiff s subjective pain testimony solely on the ground no objective that 11 determined that Plaintiff was not fully credible because of Plaintiff s 12 inconsistent statements, as discussed above. 13 Plaintiff s subjective pain testimony in light of the objective medical 14 evidence 15 rejecting Plaintiff s excess pain testimony. provided evidence specific, supported Thus, the ALJ did 10 and medical The clear and it. The ALJ first She then considered convincing reasons for 16 17 The ALJ noted the findings of several doctors whom Plaintiff 18 consulted with, and found that Plaintiff s allegations of symptoms and 19 pain are greater than expected in light of the objective evidence . . 20 . . (AR 25-26). 21 show 22 significant 23 degeneration. 24 twenty pounds occasionally and ten pounds frequently, (AR 744), whereas 25 Plaintiff alleges she can only lift 2 pounds max. 26 assessed Plaintiff s complaints and each medical report separately and 27 as a whole, she gave more weight to treating physicians, and ultimately 28 held that Plaintiff s excess pain testimony had to be rejected. good Dr. Asgarzadie noted that Plaintiff s imaging results placement facet of artificial arthropathy (AR 354). and disk no with no evidence evidence of any of any significant Dr. Jensen noted that Plaintiff can lift 27 (AR 212). The ALJ 4. 1 The ALJ Properly Rejected Plaintiff s Excess Pain Testimony On 2 The Ground That The Pain She Described Was Out Of Proportion 3 To The Objective Medical Evidence 4 5 Plaintiff argues that the ALJ s ground, i.e., that the pain 6 Plaintiff described was out of proportion to the objective medical 7 evidence, was improper. 8 properly rejected Plaintiff s excess pain testimony. 9 discredited Plaintiff s subjective pain testimony by finding her not For the same reasons stated above, the ALJ The ALJ properly 10 credible because of inconsistent statements, as discussed above. 11 ALJ then considered Plaintiff s subjective pain testimony in light of 12 the objective medical evidence and found that Plaintiff s allegations of 13 symptoms and pain are greater than expected in light of the objective 14 [medical] evidence . . . . 15 specific, clear and convincing reasons for rejecting Plaintiff s pain 16 testimony, also discussed above. 17 Vasquez, 572 F.3d at 591). Thus, the ALJ properly rejected Plaintiff s 18 excess the 19 disproportionate to the objective medical evidence. pain testimony on (AR 25-26). The Moreover, the ALJ provided See Molina, 674 F.3d at 1112 (citing ground that the pain described was 20 21 B. The ALJ Properly Considered The Medical Opinion Evidence Regarding 22 Plaintiff s Functional Limitations When She Concluded That 23 Plaintiff Was Not Disabled At Any Time Between Her Alleged Onset 24 Date And Her Date Last Insured 25 26 Plaintiff finally argues that the ALJ failed to properly consider 27 the medical opinion evidence regarding 28 limitations by concluding that Plaintiff was not disabled at any time 28 Plaintiff s functional 1 during the relevant period. 2 the ALJ found that there was no medical source in the record from an 3 examining 4 [Plaintiff s] alleged functional limitations. (AR 25). When an ALJ is 5 considering objective medical evidence, she must give controlling weight 6 to a treating physician s opinion if it is well-supported and not 7 inconsistent the record. 8 Lingenfelter, 504 F.3d at 1038; see also 20 C.F.R. § 404.1527. Here, in 9 reaching her conclusions about Plaintiff s functional limitations, the 10 or treating with Upon examining the Administrative Record, physician the other that substantial endorses evidence the in extent of ALJ properly gave great weight to the treating physicians opinions. 11 12 The ALJ discussed in depth the weight she gave to several of the 13 doctors Plaintiff consulted with. 14 weight to the opinion of [Plaintiff s] pain management physician, Dr. 15 Jerry Fralick. 16 appeared 17 Lingenfelter, 504 F.3d at 1038. 18 Plaintiff and opined that Plaintiff should be able to perform at least 19 sedentary duty work. 20 Plaintiff appears to have an exaggerated response to pain, is really not 21 doing anything to move herself forward, and has made herself more 22 disabled than she should be. 23 weight 24 physicians. 25 correlate with Plaintiff s symptoms and Plaintiff has a very resistant 26 underlying functional cause for her unrelenting symptoms. (AR 469-72). 27 The ALJ properly gave these doctors great weight in considering their 28 medical reports to determine Plaintiff s functional limitations because to to be Dr. (AR 28). one of (AR 28). This is appropriate because Dr. Fralick Plaintiff s (AR 28). Nazemi, For example, the ALJ gave great who treating physicians. See Dr. Fralick observed and examined In fact, Dr. Fralick opined that (AR 575-76). was another The ALJ also gave great of Plaintiff s treating Dr. Nazemi opined that there is no pathology to 29 1 they were both Plaintiff s treating physicians, they worked closely with 2 the 3 inconsistent 4 Lingenfelter, 504 F.3d at 1038. Plaintiff, and with their the opinions other were substantial well-supported evidence in the and not record. 5 6 The ALJ also considered medical reports by impartial medical 7 experts. For example, the ALJ gave some, but not significant, weight 8 to the opinion of Dr. Jensen. 9 among other things, stand or walk for four hours in an eight-hour Dr. Jensen opined that Plaintiff could, 10 workday and sit for six hours in an eight-hour workday. (AR 744). The 11 ALJ, however, adopted a more restrictive residual functional capacity 12 for Plaintiff than Dr. Jensen did. (AR 27). 13 14 Lastly, the ALJ gave little weight to the State agency medical 15 consultant after reconsideration, Dr. Spellman, because although the 16 consultant affirmed the residual functional capacity during initial 17 review, he later opined that Plaintiff could perform light level work 18 duty. 19 initially affirming that Plaintiff could do sedentary level work, but 20 later stating that Plaintiff could perform light level work duty), the 21 ALJ properly gave him less weight. Because of the medical consultant s inconsistent opinions (i.e. (AR 28). 22 23 The ALJ considered the objective medical evidence as a whole and 24 held that Plaintiff could perform at least sedentary level work, a 25 finding consistent with several treating doctors as well as State Agency 26 medical consultants. (AR 28). No remand is required. 27 28 30 1 VIII. 2 CONCLUSION 3 4 Consistent with the foregoing, IT IS ORDERED that Judgment be 5 entered AFFIRMING the decision of the Commissioner. The Clerk of the 6 Court shall serve copies of this Order and the Judgment on counsel for 7 both parties. 8 9 DATED: October 10, 2013 10 11 12 ___________/S/________________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 13 14 THIS MEMORANDUM IS NOT INTENDED FOR PUBLICATION IN WESTLAW, 15 LEXIS OR ANY OTHER ONLINE DATABASE. 16 17 18 19 20 21 22 23 24 25 26 27 28 31

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