Eric Auston Kintzer v. Carolyn W Colvin, No. 5:2016cv00279 - Document 18 (C.D. Cal. 2016)
Court Description: MEMORANDUM OPINION by Magistrate Judge Alka Sagar. The decision of the Administrative Law Judge is AFFIRMED. (mz)
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Eric Auston Kintzer v. Carolyn W Colvin Doc. 18 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA 11 12 ERIC AUSTON KINTZER, 13 Plaintiff, v. 14 15 16 CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. 17 ) No. ED CV 16-0279 AS ) ) ) MEMORANDUM OPINION ) ) ) ) ) ) ) ) 18 I. PROCEEDINGS 19 20 21 On February 5, 2010, Plaintiff Eric Auston Kintzer (“Plaintiff”) 22 applied for disability insurance benefits and supplemental security 23 income alleging a disabling condition beginning July 22, 2009. 24 106-112). 25 M. Dostal examined the records and heard testimony from Plaintiff and 26 vocational expert (“V.E.”) Lewis Moss. 27 2011, ALJ Dostal denied Plaintiff benefits. 28 Council denied review of ALJ Dostal’s decision. (AR On August 11, 2011, Administrative Law Judge (“ALJ”) Milan (AR 49-83). On October 3, (AR 11-18). The Appeals (AR 1-3). 1 Dockets.Justia.com 1 On August 10, 2013, Plaintiff lodged a Complaint in this Court 2 seeking review of ALJ Dostal’s decision. 3 EDCV 13-1411 AN, Docket Entry No. 1). 4 approved the parties’ stipulation to voluntarily remand the case for 5 further administrative proceedings. (Kintzer v. Colvin, EDCV 13-1411 6 AN, Docket Entry Nos. 14, 16, 17). Upon remand, the Appeals Council 7 assigned the case to a different ALJ for further development of the 8 record. (See Kintzer v. Colvin, On January 8, 2014, the Court (AR 354-55). 9 10 On May 5, 2015, ALJ John Kays examined the records and heard 11 testimony from Plaintiff and V.E. Alan Boroskin. 12 September 8, 2015, ALJ Kays heard further testimony from Plaintiff, 13 V.E. Boroskin, and medical expert (“M.E.”) John Morse. 14 On October 8, 2015, ALJ Kays issued a partially favorable decision, 15 ruling 16 birthday on June 26, 2014, but was disabled from that date until the 17 date of ALJ Kays’s order. 18 review ALJ Kays’s order, and the order therefore became the final 19 decision of the Agency. 20 § 404.984, § 416.1484. that Plaintiff was not disabled (AR 276-85). prior (AR 290-313). to On (AR 314-331). his fifty-fifth The Appeals Council did not (Joint Stip. at 4); see also 20 C.F.R. 21 22 On February 15, 2016, Plaintiff filed a Complaint pursuant to 23 42 U.S.C. § 405(g) alleging that the Social Security Administration 24 erred to the extent that it denied benefits for the entire alleged 25 disability 26 Defendant filed an Answer to the Complaint, (Docket Entry No. 14), 27 and the Certified Administrative Record (“AR”), (Docket Entry No. 28 15). period. (Docket Entry No. 1). On June 20, 2016, The parties have consented to proceed before a United States 2 1 Magistrate Judge. 2 the parties filed a Joint Stipulation (“Joint Stip.”) setting forth 3 their respective positions on Plaintiff’s claims. 4 16). (Docket Entry Nos. 11, 12). On August 22, 2016, (Docket Entry No. 5 6 II. SUMMARY OF ALJ KAYS’S DECISION 7 ALJ Kays applied the five-step process in evaluating Plaintiff’s 8 9 case. (AR 277-78). At step one, ALJ Kays determined that Plaintiff 10 had not engaged in substantial gainful activity after the alleged 11 onset date. 12 severe 13 hypertension, 14 inflammatory disease. 15 Plaintiff’s impairments did not meet or equal a listing found in 20 16 C.F.R. Part 404, Subpart P, Appendix 1. (AR 278). impairments and At step two, ALJ Kays found that Plaintiff’s included diffuse insulin-dependent arthralgias (AR 278). but no diabetes mellitus, arthritis or other At step three, ALJ Kays found that (AR 279). 17 18 Before proceeding to step four, ALJ Kays found that Plaintiff 19 had the residual functional capacity (“RFC”) to perform less than a 20 full range of light work as defined in 20 C.F.R. § 404.1567(b) and 21 § 416.967(b). 22 additional limitations as: “lift/carry 20 pounds occasionally and 10 23 pounds frequently; sit six hours in an eight-hour workday; stand/walk 24 six hours in an eight-hour workday; push/pull unlimited other than 25 shown for lift and carry; never climb ladders, ropes, or scaffolds; 26 occasionally 27 kneel, crouch, and crawl; and avoid concentrated exposure to extreme 28 cold and extreme heat and hazards (machinery, heights, etc.).” (AR climb 279). ramps ALJ and Kays stairs; 3 characterized frequently Plaintiff’s balance, stoop, (AR 1 279). 2 subjective 3 limiting effects of his symptoms were not entirely credible. 4 280). In making his RFC finding, ALJ Kays ruled that Plaintiff’s statements concerning the intensity, persistence, and (AR 5 At step four, ALJ Kays determined that Plaintiff was unable to 6 7 perform any past relevant work. 8 first determined that, prior to Plaintiff’s fifty-fifth birthday on 9 June 26, 2014, Plaintiff was (AR 283). an At step five, ALJ Kays “individual closely approaching 10 advanced age,” but, on and after that date, he was an “individual of 11 advanced 12 § 416.963. 13 Guidelines appearing in 20 C.F.R. Pt. 404, Subpt. P, App. 2, (“the 14 Grids”) and concluded that, prior to June 26, 2014, Plaintiff could 15 have adjusted to other work, but after that date there were no jobs 16 existing 17 Plaintiff could 18 finding, ALJ 19 limitations “had little or no effect on the occupational base of 20 unskilled light work.” 21 that Plaintiff was not disabled within the meaning of the Social 22 Security Act before June 26, 2014, but he became disabled on that 23 date and the disability continued through the date of ALJ Kays’s 24 decision. 25 \\ 26 \\ 27 \\ age” within (AR 283). in the Kays of 20 C.F.R. § 404.1563 and ALJ Kays then applied the Medical-Vocational significant have meaning numbers in performed. concluded the (AR that (AR 284). (AR 284-85). 28 4 national 283-84). Plaintiff’s economy In that making this non-exertional ALJ Kays therefore determined 1 III. STANDARD OF REVIEW 2 3 This court reviews the Administration’s decision to determine if 4 the decision is free of legal error and supported by substantial 5 evidence. 6 1157, 1161 (9th Cir. 2012). 7 mere scintilla, but less than a preponderance. 8 759 F.3d 995, 1009 (9th Cir. 2014). 9 evidence supports a finding, “a court must consider the record as a See Brewes v. Commissioner of Soc. Sec. Admin., 682 F.3d weighing To determine whether substantial whole, 11 detracts 12 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (internal quotation 13 omitted). 14 affirming 15 substitute [its] judgment for that of the ALJ.” 16 Admin., 466 F.3d 880, 882 (9th Cir. 2006). the As or a evidence Garrison v. Colvin, 10 from both “Substantial evidence” is more than a that supports [Commissioner’s] result, reversing “[i]f the the ALJ’s and conclusion.” evidence conclusion, can [a evidence that Aukland support court] v. either may not Robbins v. Soc. Sec. 17 IV. 18 PLAINTIFF’S CONTENTIONS 19 20 Plaintiff raises two grounds for relief. First, Plaintiff 21 claims that ALJ Kays failed to provide clear and convincing reasons 22 for rejecting his testimony as not fully credible. 23 5-10). 24 failing to (1) provide substantial evidence for the conclusion that 25 Plaintiff’s non-exertional limitations did not meaningfully limit the 26 work available to Plaintiff; and (2) properly account for Plaintiff’s 27 limited literacy. (Joint Stip. at Second, Plaintiff claims that ALJ Kays erred at step five by (Id. at 15-17). 28 5 1 V. DISCUSSION 2 3 4 After reviewing the record, the Court finds that ALJ Kays did not materially err in evaluating Plaintiff’s case. 5 6 A. The ALJ Did Not Materially Err In Rejecting Plaintiff’s Excess 7 Pain Testimony 8 9 A claimant initially must produce objective medical evidence 10 establishing a medical impairment reasonably likely to be the cause 11 of his subjective symptoms. 12 (9th Cir. 1996); Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 13 1991). Once a claimant produces objective medical evidence of an 14 underlying impairment that could reasonably be expected to produce 15 pain 16 malingering, the ALJ may reject the claimant’s testimony regarding 17 the severity of his pain and symptoms only by articulating specific, 18 clear and convincing reasons for doing so. 19 806 F.3d 487, 492-93 (9th Cir. 2015) (citing Lingenfelter v. Astrue, 20 504 F.3d 1028, 1036 (9th Cir. 2007)). 21 no 22 standard applies. or other evidence of symptoms Smolen v. Chater, 80 F.3d 1273, 1281 alleged, malingering, the and there is no evidence of Brown-Hunter v. Colvin, In this case, because there is “clear and convincing reasons” 23 24 During supplemental hearings, Plaintiff testified that he had 25 not taken insulin regularly because it had to be kept cold, which he 26 was unable to do because he was homeless. 27 further testified that he was taking his insulin regularly at the 28 time of the hearing because he was staying with family and was able 6 (See AR 298). Plaintiff 1 to keep his insulin cold. 2 there was never a time when his diabetes had not caused sores on his 3 feet, and he did not know why his disability had gotten worse in 4 2009, i.e., around the time of the alleged onset date. 5 Plaintiff testified that he would be unable to perform work that 6 would require him to stand at a bench or desk for eight hours. 7 303). 8 problems. 9 the five years prior to his testimony, he owned and lived in a car. 10 Plaintiff also (AR 305-06). (AR 299-300). testified that his Plaintiff reported that diabetes (AR 302). caused (AR vision Plaintiff claimed that, at some point during (AR 329-30). 11 12 On May 20, 2015, Plaintiff filed a post-hearing brief addressing 13 his homelessness. (AR 492-93). 14 he had been “essentially homeless” during “most of the duration of 15 this claim.” 16 and April 2013 when his homelessness was substantiated in medical 17 records. 18 2009, he had been homeless or unable to obtain transportation or pay 19 money necessary to visit the doctor or obtain medications. (AR 492). (AR 492). Therein, Plaintiff reiterated that Plaintiff referenced instances in April 2012 Plaintiff claimed that, at various times since (AR 493). 20 21 ALJ 22 Kays evaluated Plaintiff’s credibility in the following excerpt: 23 24 After careful consideration of the evidence, I find that 25 [Plaintiff’s] medically 26 reasonably expected 27 however, [Plaintiff’s] statements concerning the intensity, 28 persistence, and limiting effects of these symptoms are not be determinable to cause 7 the impairments alleged could symptoms; 1 entirely 2 decision. credible for the reasons explained in this 3 4 One factor undermining [Plaintiff’s] credibility is that 5 the severity of his allegations is not supported by the 6 objective medical evidence. [. . .] 7 8 The record also 9 medical advice that in turn further undermine [Plaintiff’s] A reflects failure periods 11 properly 12 [Plaintiff] 13 compliance 14 compliant 15 exacerbation due to not taking medication. 16 records 17 recommendations. 18 resolved 19 unwillingness 20 improve his condition. 21 penury 22 doctors or even making appointments without transportation 23 or even a phone to schedule them. has with with and medical conditions [Plaintiff] resulting [Plaintiff] [. . .] treatment. to do failed respond had in [sic] is to been periods of The treatment treatment hyperglycemia demonstrates which not follow [Plaintiff’s] This that, to is assessment. that treatment. insulin regimen credibility his with show the treatment with credibility. in follow noncompliance 10 considered to of a possible necessary to It is also noted that he lives in homelessness and may have difficulty seeing 24 25 I note additional 26 further undermine [Plaintiff’s] credibility. 27 did not stop working because of his medical condition but 28 because of lack of inconsistencies work in 8 in November the record 2008. that [Plaintiff] Although 1 [Plaintiff] has [diabetes] and hypertension, there is no 2 evidence of end organ damage or abnormalities. 3 [Plaintiff] 4 visual acuity in October 2014 was 20/40 and 20/70. 5 was no diabetic retinopathy found. 6 November 7 Although [Plaintiff] complained of neuropathy and numbness 8 in his feet, the examination in November 2014, noted normal 9 gait, good motor strength, and intact sensation in upper testified 2014, lower that was he 20/50 could both extremities. There not see Although well, his There His visual acuity in eyes, were without no glasses. 10 and neurological 11 deficits. 12 emergency room due to complaint of whole body pain. 13 reported being compliant with medications, and then later 14 admitted 15 Therefore, 16 diminish [Plaintiff’s] credibility. In August 2014, [Plaintiff] presented to the that he I was find missing that several these days of He insulin. inconsistencies further 17 18 (AR 280-82 (citations omitted)). 19 Plaintiff claims that ALJ Kays erred in rejecting his subjective 20 21 complaints as not 22 Specifically, Plaintiff argues that the “inconsistencies” identified 23 by ALJ Kays were not “legitimate inconsistenc[ies],” (id. at 6), 24 Plaintiff’s failure to comply with his medication regimen was due to 25 his 26 deficiencies, 27 complaints based on insufficient objective medical support, (id. at 28 9). homelessness ALJ fully and Kays credible. poverty, was (id. not (Joint at 6-8), permitted 9 to Stip. and, reject at given 5-10). these Plaintiff’s 1 Preliminarily, the Court agrees that, because several months 2 passed between November 2008, when Plaintiff stopped working (for 3 reasons unrelated to his disability), and his alleged onset date of 4 July 22, 2009, the fact that Plaintiff left his most recent job for 5 reasons other than disability does not meaningfully undermine his 6 credibility. 7 (C.D. 8 sixteen months passed between Plaintiff’s termination from her last 9 job and alleged onset date); McGowan v. Astrue, 2012 WL 5390337 at *5 10 (W.D. Wash. 2012) (same finding for gap of over a year); Shehan v. 11 Astrue, 2009 WL 2524573 at *3 (C.D. Cal. 2009) (same finding for gap 12 of over a year); see also Bruton v. Massanari, 268 F.3d 824, 826, 828 13 (9th 14 termination date and alleged onset date were identical). Cal. Cir. See, e.g., Quezada v. Colvin, 2013 WL 5743568 at *3 2013) 2001) (adverse (adverse credibility finding credibility finding unwarranted warranted where where 15 16 The Court is more skeptical of Plaintiff’s other contentions. 17 An ALJ may properly rely on an “unexplained or inadequately explained 18 failure 19 treatment” to discredit a claimant’s subjective symptom testimony. 20 Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (internal 21 quotation marks and citation omitted). 22 any inferences about an individual’s symptoms and their functional 23 effects from a failure to seek regular medical treatment without 24 first considering any explanations that the individual may provide, 25 or other information in the case record, that may explain infrequent 26 or irregular medical visits or failure to seek medical treatment. 27 SSR 96–07p, 1996 WL 374186, at *7. to seek treatment or to 28 10 follow a prescribed course of However, an ALJ must not draw 1 As Plaintiff correctly notes, a claimant’s subjective complaints 2 may 3 establishes 4 Regennitter v. Commissioner of Social Sec. Admin., 166 F.3d 1294, 5 1296-97 (9th Cir. 1999). 6 noted 7 demonstrated a “possible unwillingness” to take steps to improve his 8 condition, 9 homelessness and may have difficulty seeing doctors or even making not be rejected that both that but for the lack claimant cannot where afford the the record treatment. showed failure that to take Plaintiff Plaintiff’s testimony and treatment history, ALJ Kays determined that 13 although 14 attributable to his homelessness and poverty, it evinced Plaintiff’s 15 reluctance to take steps necessary to control his disabilities. 16 ruling is consistent with record evidence that Plaintiff’s compliance 17 was mixed even when he had access to medication. (See, e.g., AR 240 18 (Plaintiff did not check his blood glucose and did not know how much 19 insulin he had injected)). Plaintiff’s failure to seek phone that, treatment to and 12 appears a penury them.” therefore even in only 11 It or “lives not appointments 282). transportation medication 10 (AR without treatment In this case, however, ALJ Kays expressly Plaintiff’s also of after was schedule evaluating partially This 20 21 Although Plaintiff consistently maintained that homelessness and 22 poverty were the cause of his failure to follow a treatment plan, 23 (Joint Stip. at 7-8), Plaintiff has not established that ALJ Kays was 24 required to credit only that explanation in light of Plaintiff’s 25 treatment history. 26 guess ALJ Kays’s evaluation of the evidence. 27 must defer to ALJ Kays. 28 v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (ALJ may engage in Instead, Plaintiff asks this Court to secondThe Court, however, See Robbins, 466 F.3d at 882; see also Burch 11 1 ordinary techniques of credibility evaluation, including observation 2 of inconsistencies in the claimant's testimony); Batson v. Comm’r of 3 Soc. Sec’y Admin., 359 F.3d 1190, 1193 (9th Cir. 2004) (ALJ may make 4 reasonable inferences from the evidence). 5 Because ALJ Kays provided at least one legitimate reason for 6 7 rejecting Plaintiff’s 8 consider 9 Plaintiff’s alleged degree of impairment. the lack of testimony, ALJ objective Kays medical was also evidence entitled to support of in Burch, 400 F.3d at 681 10 (the ALJ may consider lack of medical evidence as “a factor” in 11 discounting pain testimony). 12 reasons 13 Court cannot conclude that ALJ Kays “arbitrarily discredit[ed]” this 14 testimony. 15 see also Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1163 16 (9th Cir. 2008) (this standard applies even if some of an ALJ’s 17 grounds for discrediting a claimant’s testimony were improper). for discrediting Because ALJ Kays provided legitimate Plaintiff’s “excess pain” testimony, the Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002); 18 19 B. The ALJ Did Not Materially Err At Step Five 20 21 At step five of the sequential evaluation process, the burden 22 shifts to the Commissioner to show that “the claimant can perform a 23 significant number of other jobs in the national economy,” taking 24 into 25 experience. 26 (quoting Thomas v. Barnhart, 278 F.3d 947, 955 (9th Cir. 2002)). 27 Commissioner can show that there are a significant number of other 28 jobs in the national economy that the claimant can perform by relying consideration a claimant’s RFC, age, education and work Hoopai v. Astrue, 499 F.3d 1071, 1074-75 (9th Cir. 2007) 12 The 1 upon the testimony of a V.E. or by using the Grids. 2 Apfel, 180 F.3d 1094, 1101 (9th Cir. 1999) (citation omitted). 3 Grids “consist of a matrix of [the four factors] and set forth rules 4 that identify whether jobs requiring a specific combination of these 5 factors 6 Hoopai, 499 F.3d at 1075 (alteration in original) (quoting Heckler v. 7 Campbell, 461 U.S. 458, 461-62 (1983)). exist in significant numbers in the Tackett v. national The economy.” 8 Where 9 a claimant’s qualifications correspond to the job 10 requirements indicated by the Grids, the Grids “direct a conclusion 11 as 12 (quoting Heckler, 461 U.S. at 462). 13 claimant alleges a non-exertional limitation, but “the [G]rids are 14 inapplicable 15 sufficiently severe so as to significantly limit the range of work 16 permitted by the claimant’s exertional limitations.” 17 Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 1998)). to whether work when exists a that the claimant’s claimant could perform.” Id. An ALJ can use the Grids when a non-exertional limitations are Id. (quoting 18 19 However, when non-exertional limitations exist that are not 20 sufficiently severe to limit the claimant’s range of work, reliance 21 on the Grids is appropriate. 22 moderate 23 Grids); Razey v. Heckler, 785 F.2d 1426, 1430 (9th Cir.), modified, 24 794 F.2d 1348 (1986) (use of Grids acceptable where limitations from 25 claimant’s 26 affect the range of sedentary work otherwise available); Angulo v. 27 Colvin, 577 F. App’x 686, 687 (9th Cir. 2014) (claimant’s postural 28 and environmental limitations were not sufficiently severe to prevent depression not “generalized See Hoopai, 499 F.3d at 1076 (mild or sufficiently anxiety severe disorder” 13 to did preclude not use of significantly 1 reliance on Grids); Landa v. Astrue, 283 F. App’x 556, 558 (9th Cir. 2 2008) (claimant’s depression, which did not prevent claimant from 3 housework, personal care, and shopping, was not sufficiently severe 4 to prevent reliance on Grids). 5 ALJ 6 Kays limited Plaintiff to light work with the further 7 restrictions that Plaintiff was unable to climb ladders, ropes, and 8 scaffolds; was limited to “occasional[]” climbing of ramps or stairs; 9 was limited to “frequent[]” balancing, stooping, kneeling, crouching, 10 or crawling; and was required to avoid 11 extreme hazards such as machinery and heights. 12 contends that ALJ Kays erred in concluding that Plaintiff’s non- 13 exertional limitations did not meaningfully limit the work available 14 to Plaintiff. 15 Kays erred in failing to include literacy limitations in the RFC and 16 in applying the Grids. (Joint Stip. at 16). concentrated exposure (AR 279). to Plaintiff Plaintiff also claims that ALJ (Id. at 17). 17 18 In an undated Adult Disability Report, Plaintiff reported that 19 he had completed the twelfth grade with no special education classes, 20 could “read and understand English,” and could write “more than [his] 21 name” in English. 22 hearing, Plaintiff’s attorney argued that Plaintiff did not know how 23 to read or write, “other than probably very, very basic words.” 24 294). 25 school, but his wrestling coach “got [him] all of [his] grades.” 26 306). 27 driver’s license and would have difficulty reading a grocery list, 28 although Plaintiff (AR 132, 134). testified that During the first supplemental he had “almost” completed (AR high (AR Plaintiff stated that he had completed an audio exam to get a he recognized the words 14 “milk” and “eggs.” (AR 306). 1 During both supplemental hearings, ALJ Kays twice asked V.E. Boroskin 2 whether 3 illiteracy would be able to perform Plaintiff’s past work, although 4 this limitation was omitted from a third hypothetical. 5 326). a hypothetical individual whose limitations included (AR 311, 6 7 Plaintiff’s argument regarding his non-exertional limitations is 8 conclusory and is largely belied by Agency rulings. 9 (1983) (light work generally limits a claimant to “occasional bending 10 of the stooping type” and “there are nonexertional limitations or 11 restrictions which have very little or no effect on the unskilled 12 light occupational base. Examples are inability to ascend or descend 13 scaffolding, poles, and ropes; inability to crawl on hands and knees; 14 and inability to use the finger tips to sense the temperature or 15 texture of an object. Environmental restrictions, such as the need to 16 avoid exposure to feathers, would also not significantly affect the 17 potential 18 (limitation 19 occupational base “virtually intact,” and limitations on ability to 20 crawl or kneel are “of little significance in the broad world or 21 work.”). 22 failing 23 exertional limitations. unskilled to light occasional occupational stooping base.”); leaves SSR See SSR 83-14 85-15 sedentary (1985) and light The Court cannot conclude that ALJ Kays materially erred in to erode the occupational base due Plaintiff’s alleged to Plaintiff’s non- 24 25 With respect to literacy limitations, 26 Plaintiff’s statements about his literacy were inconsistent, and the 27 precise scope of his literacy was unproven. 28 Plaintiff has therefore not demonstrated that ALJ Kays was required 15 (See AR 132, 134, 306). 1 to include literacy limitations in the RFC or his step five analysis. 2 Although ALJ Kays might have more clearly explained his reasons for 3 not including literacy limitations in his RFC finding, the Court 4 concludes 5 Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (citing Stout v. Comm’r 6 Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) (“[H]armless 7 error principles apply in the Social Security . . . context.”)). 8 inclusion of literacy limitations in ALJ Kays’s hypotheticals to the 9 V.E. is also not dispositive. that any such failure was harmless error. Molina v. The See Osenbrock v. Apfel, 240 F.3d 1157, 10 1164-65 (9th Cir. 2001) (ALJ is not bound to accept restrictions set 11 forth in a hypothetical question if the restrictions are unsupported 12 by substantial evidence). 13 VI. 14 CONCLUSION 15 16 17 For the foregoing reasons, the decision of the Administrative Law Judge is AFFIRMED. LET JUDGMENT BE ENTERED ACCORDINGLY. 18 19 20 21 Dated: October 3, 2016 _____________/s/______________ ALKA SAGAR UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 16
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