David Sanchez v. Carolyn W. Colvin, No. 5:2016cv02067 - Document 30 (C.D. Cal. 2018)
Court Description: MEMORANDUM DECISION AND ORDER AFFIRMING COMMISSIONER by Magistrate Judge Jean P. Rosenbluth. IT IS ORDERED that judgment be entered AFFIRMING the Commissioner's decision, DENYING Plaintiff's request for remand, and DISMISSING this action with prejudice. (See Order for details) (bem)
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David Sanchez v. Carolyn W. Colvin Doc. 30 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 DAVID SANCHEZ, Plaintiff, 12 13 v. 14 15 NANCY A. BERRYHILL, Acting Commissioner of Social Security,1 16 Defendant. ) Case No. EDCV 16-2067-JPR ) ) ) MEMORANDUM DECISION AND ORDER ) AFFIRMING COMMISSIONER ) ) ) ) ) ) ) 17 18 I. PROCEEDINGS 19 Plaintiff seeks review of the Commissioner’s final decision 20 denying his application for Social Security disability insurance 21 benefits (“DIB”). 22 the undersigned U.S. Magistrate Judge under 28 U.S.C. § 636(c). 23 The matter is before the Court on the parties’ Joint Stipulation, 24 filed October 27, 2017, which the Court has taken under 25 submission without oral argument. 26 the Commissioner’s decision is affirmed. The parties consented to the jurisdiction of For the reasons stated below, 27 1 28 Nancy A. Berryhill is substituted in as the correct Defendant. See Fed. R. Civ. P. 25(d). 1 Dockets.Justia.com 1 2 II. BACKGROUND Plaintiff was born in 1963. (Administrative Record (“AR”) 3 166, 180.) He completed the 11th grade (AR 40, 287) and last 4 worked in a warehouse (see AR 39, 293). 5 In August 2013, Plaintiff filed an application for DIB (see 6 AR 267-68), alleging that he had been disabled since November 5, 7 2007, because of deterioration of the spine, hips, and knees; 8 muscle spasms; high blood pressure; numbness in the hands, back, 9 legs, and feet; and severe anxiety (AR 166-67, 180-81). After 10 his application was denied initially (AR 197-201) and on 11 reconsideration (AR 204-08), he requested a hearing before an 12 Administrative Law Judge (AR 210-11). 13 February 5, 2015 (see AR 24), at which Plaintiff, who was 14 represented by counsel, testified, as did a vocational expert.2 15 (AR 36-53.) 16 found Plaintiff not disabled. 17 review from the Appeals Council (AR 17), and on July 25, 2016, it 18 denied review (AR 2-8). A hearing was held on In a written decision issued March 19, 2015, the ALJ (AR 24-35.) Plaintiff requested This action followed. 19 20 21 22 23 24 25 26 27 28 2 Plaintiff had two prior applications, both of which were denied in final decisions. (See AR 146-60.) The hearing for the latter of those apparently also took place on February 5, but in 2012. (See AR 83-142 (hearing date of Feb. 5, but marked as 2015). But see AR 146 (prior ALJ noting hearing date of Mar. 8, 2012).) During the hearing that is marked on the transcript as having taken place in February 2012, the ALJ and claimant clearly discuss, in the past tense, things from April 2012 through “the late part” of that year. (E.g., AR 41.) Moreover, the hearing in the transcript that is marked as having taken place in February 2015 was presided over by ALJ Lynn Ginsberg, who issued the 2012 decision. (See AR 83-160.) Thus, it appears that the February 2015 hearing transcript was inadvertently marked as 2012, and the one from 2012 was mistakenly marked as 2015. The parties do not contend otherwise. (See, e.g., J. Stip. at 17 n.7.) 2 1 III. STANDARD OF REVIEW 2 Under 42 U.S.C. § 405(g), a district court may review the 3 Commissioner’s decision to deny benefits. The ALJ’s findings and 4 decision should be upheld if they are free of legal error and 5 supported by substantial evidence based on the record as a whole. 6 See id.; Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra 7 v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). 8 evidence means such evidence as a reasonable person might accept 9 as adequate to support a conclusion. Substantial Richardson, 402 U.S. at 10 401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 11 It is more than a scintilla but less than a preponderance. 12 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 13 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). 14 substantial evidence supports a finding, the reviewing court 15 “must review the administrative record as a whole, weighing both 16 the evidence that supports and the evidence that detracts from 17 the Commissioner’s conclusion.” 18 720 (9th Cir. 1998). 19 either affirming or reversing,” the reviewing court “may not 20 substitute its judgment” for the Commissioner’s. 21 IV. To determine whether Reddick v. Chater, 157 F.3d 715, “If the evidence can reasonably support Id. at 720-21. THE EVALUATION OF DISABILITY 22 People are “disabled” for purposes of receiving Social 23 Security benefits if they are unable to engage in any substantial 24 gainful activity owing to a physical or mental impairment that is 25 expected to result in death or has lasted, or is expected to 26 last, for a continuous period of at least 12 months. 27 § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 28 1992). 3 42 U.S.C. 1 A. The Five-Step Evaluation Process 2 The ALJ follows a five-step sequential evaluation process to 3 assess whether a claimant is disabled. 4 § 404.1520(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th 5 Cir. 1995) (as amended Apr. 9, 1996). 6 Commissioner must determine whether the claimant is currently 7 engaged in substantial gainful activity; if so, the claimant is 8 not disabled and the claim must be denied. 9 20 C.F.R. In the first step, the § 404.1520(a)(4)(i). If the claimant is not engaged in substantial gainful 10 activity, the second step requires the Commissioner to determine 11 whether the claimant has a “severe” impairment or combination of 12 impairments significantly limiting his ability to do basic work 13 activities; if not, the claimant is not disabled and his claim 14 must be denied. 15 § 404.1520(a)(4)(ii). If the claimant has a “severe” impairment or combination of 16 impairments, the third step requires the Commissioner to 17 determine whether the impairment or combination of impairments 18 meets or equals an impairment in the Listing of Impairments set 19 forth at 20 C.F.R. part 404, subpart P, appendix 1; if so, 20 disability is conclusively presumed. § 404.1520(a)(4)(iii). 21 If the claimant’s impairment or combination of impairments 22 does not meet or equal an impairment in the Listing, the fourth 23 step requires the Commissioner to determine whether the claimant 24 has sufficient residual functional capacity (“RFC”)3 to perform 25 26 27 28 3 RFC is what a claimant can do despite existing exertional and nonexertional limitations. § 404.1545; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). The Commissioner assesses the claimant’s RFC between steps three and four. Laborin v. Berryhill, 867 F.3d 1151, 1153 (9th Cir. 2017) 4 1 his past work; if so, he is not disabled and the claim must be 2 denied. 3 proving he is unable to perform past relevant work. 4 F.2d at 1257. 5 case of disability is established. § 404.1520(a)(4)(iv). The claimant has the burden of Drouin, 966 If the claimant meets that burden, a prima facie Id. 6 If that happens or if the claimant has no past relevant 7 work, the Commissioner then bears the burden of establishing that 8 the claimant is not disabled because he can perform other 9 substantial gainful work available in the national economy. 10 § 404.1520(a)(4)(v); Drouin, 966 F.2d at 1257. 11 determination comprises the fifth and final step in the 12 sequential analysis. 13 n.5; Drouin, 966 F.2d at 1257. That § 404.1520(a)(4)(v); Lester, 81 F.3d at 828 14 B. 15 At step one, the ALJ found that Plaintiff had not engaged in The ALJ’s Application of the Five-Step Process 16 substantial gainful activity between November 5, 2007, the 17 alleged disability-onset date, and December 31, 2012, his date 18 last insured. 19 the following severe impairments: “low back pain, obesity, 20 hypertension, panic disorder with agoraphobia, anxiety, 21 obsessive-compulsive disorder, atrial fibrillation, and umbilical 22 hernia.” 23 an impairment or combination of impairments falling under a 24 Listing. 25 26 (AR 26.) (AR 27.) At step two, he concluded that he had At step three, he found that he did not have (AR 27-28.) At step four, the ALJ found that Plaintiff had the RFC to perform medium work subject to the following limitations: 27 28 (citing § 416.920(a)(4)). 5 1 lift and carry 50 pounds occasionally and 25 pounds 2 frequently; never climb ladders, ropes, or scaffolds; no 3 jobs requiring the use of moving hazardous machinery or 4 exposure 5 understanding, 6 instructions; capable of making judgments on simple work- 7 related decisions; capable of interacting appropriately 8 with 9 superficial and no direct interaction with the public; 10 and is able to respond to usual work situations and 11 changes in routine work settings. to unprotected remembering, supervisors and heights; and capable carrying coworkers, but out can of simple have only 12 (AR 28.) 13 ALJ’s decision, from April 13, 2012. 14 determined that “there [was] no new and material evidence 15 warranting a change” from those earlier findings and found that 16 the prior decision gave rise to a presumption of continuing 17 nondisability after that adjudicated period. 18 discussed in Section V, that was appropriate under Chavez v. 19 Bowen, 844 F.2d 691, 693 (9th Cir. 1988). 20 The RFC repeats the limitations assessed in a prior (AR 146-60.) The ALJ here (AR 24.) As Based on the VE’s testimony, the ALJ concluded that 21 Plaintiff could not perform his past relevant work. 22 step five, the ALJ found that given Plaintiff’s age, education, 23 work experience, and RFC, he could perform three “representative” 24 jobs in the national economy. 25 Plaintiff not disabled. 26 V. 27 28 (AR 31-32.) (AR 31.) Thus, the ALJ found (AR 32.) DISCUSSION Plaintiff argues that the ALJ erred in rejecting his subjective symptom testimony. (J. Stip. at 5-13.) 6 At The ALJ, 1 however, provided several acceptable reasons for doing so: 2 Plaintiff “appeared to exaggerate some of his symptoms” (AR 30); 3 “the medical evidence [did] not corroborate” the “alleged 4 worsening of his physical and mental impairments,” which 5 “appear[ed] to have occurred well after the date last insured” 6 (AR 29-30); he failed to “follow up” on treatment for a hernia 7 and there was “little in the way of mental status examinations” 8 (id.); and his alleged “condition [did] not keep him from 9 performing activities of daily living” during the relevant period 10 (AR 30; see also AR 27). 11 err, remand is unwarranted. 12 Accordingly, because the ALJ did not As discussed by the ALJ (AR 24), the relevant period for 13 purposes of DIB was from April 13 to December 31, 2012: a prior 14 decision finding Plaintiff not disabled was issued on April 13; 15 it apparently was not appealed and became final (see AR 146-60); 16 and Plaintiff’s date last insured was December 31 (see AR 29). 17 During that period, a presumption of continuing nondisability 18 applied under Chavez, 844 F.2d at 693, and could be rebutted by a 19 showing of “changed circumstances” indicating a “greater 20 disability,” id.; Lester, 81 F.3d at 827 (citing Taylor v. 21 Heckler, 765 F.2d 872, 875 (9th Cir. 1985)). 22 that no such showing was made (AR 24), and Plaintiff has not 23 challenged that finding (see generally J. Stip). The ALJ determined 24 A. Applicable Law 25 An ALJ’s assessment of the credibility of a claimant’s 26 allegations concerning the severity of his symptoms is entitled 27 to “great weight.” 28 Cir. 1989) (as amended); Nyman v. Heckler, 779 F.2d 528, 531 (9th See Weetman v. Sullivan, 877 F.2d 20, 22 (9th 7 1 Cir. 1985) (as amended Feb. 24, 1986). 2 ‘required to believe every allegation of disabling pain, or else 3 disability benefits would be available for the asking, a result 4 plainly contrary to 42 U.S.C. § 423(d)(5)(A).’” 5 Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (quoting Fair v. 6 Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). 7 “[T]he ALJ is not Molina v. In evaluating a claimant’s subjective symptom testimony, the 8 ALJ engages in a two-step analysis. 9 at 1035-36; see also SSR 96-7p, 1996 WL 374186 (July 2, 1996).4 See Lingenfelter, 504 F.3d 10 “First, the ALJ must determine whether the claimant has presented 11 objective medical evidence of an underlying impairment [that] 12 could reasonably be expected to produce the pain or other 13 symptoms alleged.” 14 objective medical evidence exists, the ALJ may not reject a 15 claimant’s testimony “simply because there is no showing that the 16 impairment can reasonably produce the degree of symptom alleged.” 17 Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996) (emphasis in 18 original). Lingenfelter, 504 F.3d at 1036. If such 19 20 21 22 23 24 25 26 27 28 4 Social Security Ruling 16-3p, 2016 WL 1119029, effective March 16, 2016, rescinded SSR 96-7p, which provided the framework for assessing the credibility of a claimant’s statements. SSR 16-3p was not in effect at the time of the ALJ’s decision in this case, however, and therefore does not apply. Still, the Ninth Circuit has clarified that SSR 16-3p “makes clear what our precedent already required: that assessments of an individual’s testimony by an ALJ are designed to ‘evaluate the intensity and persistence of symptoms after [the ALJ] find[s] that the individual has a medically determinable impairment(s) that could reasonably be expected to produce those symptoms,’ and not to delve into wide-ranging scrutiny of the claimant’s character and apparent truthfulness.” Trevizo v. Berrhill, 871 F.3d 664, 678 n.5 (9th Cir. 2017) (as amended) (alterations in original) (quoting SSR 16-3p). 8 1 If the claimant meets the first test, the ALJ may discredit 2 the claimant’s subjective symptom testimony only if he makes 3 specific findings that support the conclusion. 4 Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010). 5 affirmative evidence of malingering, the ALJ must provide “clear 6 and convincing” reasons for rejecting the claimant’s testimony. 7 Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (as 8 amended); Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 9 1102 (9th Cir. 2014). See Berry v. Absent a finding or If evidence of malingering exists, 10 however, the ALJ may reject the claimant’s symptom testimony by 11 stating why the testimony is unpersuasive. 12 464 F.3d 968, 972 (9th Cir. 2006); see also Bagoyan Sulakhyan v. 13 Astrue, 456 F. App’x 679, 682 (9th Cir. 2011) (“When there is 14 affirmative evidence of malingering, which is present in this 15 case, the ALJ is relieved of the burden of providing specific, 16 clear, and convincing reasons to discount claimant’s 17 testimony.”); Schow v. Astrue, 272 F. App’x 647, 651 (9th Cir. 18 2008) (“[T]he weight of our cases hold that the mere existence of 19 ‘affirmative evidence suggesting’ malingering vitiates the clear 20 and convincing standard of review.”) Greger v. Barnhart, 21 In assessing credibility, the ALJ may consider, among other 22 factors, (1) ordinary techniques of credibility evaluation, such 23 as the claimant’s reputation for lying, prior inconsistent 24 statements, and other testimony by the claimant that appears less 25 than candid; (2) unexplained or inadequately explained failure to 26 seek treatment or to follow a prescribed course of treatment; (3) 27 the claimant’s daily activities; (4) the claimant’s work record; 28 and (5) testimony from physicians and third parties. 9 Rounds v. 1 Comm’r Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015) (as 2 amended); Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 3 2002). 4 substantial evidence in the record, the reviewing court “may not 5 engage in second-guessing.” If the ALJ’s credibility finding is supported by Thomas, 278 F.3d at 959. 6 B. 7 In April 2012, Plaintiff was found not disabled by a prior Relevant Background 8 ALJ. (AR 146-60.) She assessed him with severe impairments of 9 “low back pain; obesity; hypertension; panic disorder with 10 agoraphobia; anxiety; obsessive-compulsive disorder; atrial 11 fibrillation; and umbilical hernia” (AR 149) but found his 12 subjective symptom testimony only “partially credible.” 13 152.) 14 [were] not actually present,” pointing to a consulting orthopedic 15 physician and a psychiatrist who noted that he was 16 “exaggerat[ing] some symptoms.” 17 that Plaintiff was at one point deemed ineligible for “narcotic 18 pain medication” because he was “accused of altering the 19 prescription.” (AR Plaintiff, she reasoned, “portray[ed] limitations that (AR 154.)5 (AR 152, 156.) The ALJ noted And despite complaints of pain in his 20 21 22 23 24 25 26 27 28 5 At his 2012 hearing, the prior ALJ asked Plaintiff about “evidence [in] the record[] showing that [his] doctor reported [him] to the police for changing prescriptions.” (AR 90-91 (referencing Mar. 23, 2011 medical note from doctor who had “called to report [Plaintiff’s] illegal activity to Riverside County dispatcher”).) Plaintiff stated that he had “no idea” what that was about and that his doctors “wouldn’t give [him] a reason” why he “couldn’t have [Vicodin] no more.” (AR 91-92.) He indicated that he was taking Ibuprofen instead. (AR 114.) Plaintiff’s counsel clarified that his Vicodin prescription had been altered in October 2010 from 30 pills to 90 and that he was never contacted by the hospital or police department regarding that change. (AR 117.) Despite having testified that he was not given any explanation for why his Vicodin prescription was 10 1 lower back, hips, and knees, his condition was “controlled” with 2 medication, and a consulting orthopedic surgeon found him to have 3 “no functional limitations.” 4 noted that Plaintiff was assessed with an umbilical hernia and 5 had been referred to a general surgeon. 6 indicated that he was diagnosed with atrial fibrillation and 7 reported shortness of breath but “no chest pain or 8 palp[it]ations.”6 9 (See AR 154-56.) The ALJ further (AR 155.) She also (Id.) Plaintiff’s first doctor’s visit after the end of the 10 adjudicated period, April 13, 2012, occurred in June 2012, when 11 he visited a Riverside county health center “to establish a 12 [doctor],” complaining of pain in his back, hip, and right knee. 13 (AR 434, 436.) 14 pain “since age 17” and that it was “constant.” 15 also reported decreased pain with medication. 16 noted as being obese, was assessed with “a. fib,” anxiety, 17 bipolar disorder, pain, and obesity, among other conditions, and 18 was prescribed Vicodin.7 He denied any injury and stated that he had had (AR 434.) (Id.) He He was (AR 434, 436.) 19 20 21 22 23 stopped, Plaintiff later testified that he “was told” that his doctors thought he was “selling” because of “the way [he] look[ed].” (AR 118-19.) Before the hearing closed, he stated that he was “messed up . . . with the police thing” and that he had “[n]ever been in juvenile hall, cuffs on me, and then they treat me like that.” (AR 141.) 6 24 25 26 Atrial fibrillation is a type of arrhythmia that involves irregular twitchings of the muscular wall and a problem with the speed or rhythm of the heartbeat. See Stedman’s Medical Dictionary 668 (27th ed. 2000); Atrial Fibrillation, MedlinePlus, https://medlineplus.gov/atrialfibrillation.html (last updated Feb. 12, 2018). 27 7 28 Vicodin is a narcotic hydrocodone combination product containing acetaminophen and is used to relieve moderate to 11 1 Plaintiff returned in July 2012 to review the results of 2 “labs” done the previous month. 3 He was again assessed with “a. fib,” anxiety, depression, 4 obesity, and chronic pain, among other conditions. 5 Later that month, he requested medication refills, including 6 Vicodin. 7 Vicodin anymore . . . and ha[d] to pay for it now.” 8 suggested a method for getting it paid for once again. 9 was noted as being obese but “s[at] comfortably.” (AR 430.) (AR 432; see also AR 460-61.) (AR 432.) He complained that he was “not getting (Id.) He (Id.) (Id.) He He was 10 assessed with lower-back pain, anxiety, and atrial fibrillation. 11 (Id.) 12 an electrocardiogram. 13 X-rays of his back were ordered, and he was referred for (Id.; see also AR 451.) By August 2012, the x-rays and EKG hadn’t been completed. 14 (AR 428.) 15 was requesting “Vicodin again,” and “bad heartburn” and was 16 assessed with “chronic [low-back pain]” and “GERD.”8 17 September 2012, the x-rays still hadn’t been completed because 18 Plaintiff didn’t “have [money] to drive to” the medical center. 19 (AR 426.) 20 at Home Depot,” and “want[ed] disab[ility] for all his 21 prob[lems].” At that time, he complained of back pain, for which he (Id.) By He stated that he had “no money,” “[couldn’t] get work (Id.) 22 23 24 25 26 27 28 severe pain. See Hydrocodone Combination Products, MedlinePlus, https://medlineplus.gov/druginfo/meds/a601006.html (last updated Jan. 25, 2018). Plaintiff’s new doctor may have been unaware that he had previously been denied any more Vicodin because he was suspected of abusing or reselling it. 8 Gastroesophageal reflux disease occurs when a muscle at the end of the esophagus does not close properly, allowing stomach contents to leak back into the esophagus and irritate it. See GERD, MedlinePlus, https://medlineplus.gov/gerd.html (last updated Oct. 17, 2017). 12 1 X-rays of his lumbar spine were completed in October 2012 2 (AR 448-50), and x-rays of his knees, feet, and hips were 3 completed in November (AR 444-47). 4 began meeting with family-medicine doctor Edward Bacho, who 5 reviewed his x-rays. 6 October, Plaintiff complained to Dr. Bacho of ongoing low-back 7 pain, knee pain, and foot pain but stated that the pain was 8 “controlled on Norco”9 and that his goal was to work as a 9 “forklift/warehouse worker [with] controlled pain.” During that time, Plaintiff (AR 448, 450, 452; see also AR 500.) In (AR 423.) 10 In November, Plaintiff noted “no change” since his October visit 11 (AR 421), and Dr. Bacho indicated that his x-rays showed no 12 problems in his feet, hips, or spine except for spurring at “L2- 13 L5” (id.; see also AR 445-50) and “mild degenerative change” in 14 his right knee, with no problems in his left (AR 421; see also AR 15 444). 16 injection” for his right knee. (AR 421.) 17 administered in December 2012. (AR 419.) 18 Dr. Bacho recommended that Plaintiff receive a “steroid That injection was Plaintiff indicated in January 2013 that his knee pain 19 “significantly improved” following the injection and that his 20 “pain [was] controlled on Norco.” 21 April 2013 and did not complain of any pain. 22 he reported “numbness in [his] back legs” and “feeling weak.” 23 (AR 409.) 24 “good results” from the December 2012 knee injection but that his (AR 417.) He was next seen in (AR 410.) In June, The next month, Plaintiff reported that he had had 25 26 27 28 9 Norco is a narcotic hydrocodone combination product containing acetaminophen and is used to relieve moderate to severe pain. See Hydrocodone Combination Products, MedlinePlus, https://medlineplus.gov/druginfo/meds/a601006.html (last updated Jan. 25, 2018). 13 1 pain was “recently slowly returning.” 2 administered another steroid injection to his right knee in 3 August 2013. 4 at that time, which showed “[a]trial fibrillation” and “moderate 5 concentric left ventricular hypertrophy” but overall “normal” 6 “left ventricular systolic function” and otherwise “normal” 7 results. 8 Plaintiff’s chest showing “no evidence of acute cardiac or 9 respiratory disease”).) (AR 414-15.) (AR 416.) Dr. Bacho An echocardiogram was also conducted (AR 405-06; see also AR 442 (Apr. 2013 medical image of In September, Plaintiff met with Dr. 10 Bacho to review his “Echo results” and had “no other complaints.” 11 (AR 412.) 12 was out of medication. 13 In November, Plaintiff reported “8/10 pain” because he (AR 407.) Plaintiff completed an Adult Function Report in September 14 2013, nine months after the relevant period had ended. 15 13.) 16 indicate how long his symptoms had lasted. 17 he was unable to work because his atrial fibrillation caused him 18 to be dizzy, light-headed, and short of breath and his back and 19 hips caused severe pain. 20 care of his dog by walking and feeding him (AR 306); had “no 21 problem with personal care” despite “sometimes” getting short of 22 breath or experiencing dizziness, severe pain, or “numbness in 23 [his] legs” (id.); prepared his own meals daily, a habit that had 24 not changed since his alleged conditions began (AR 307); washed 25 his own dishes “each day” (id.); walked, rode in cars, and went 26 out alone (AR 308); shopped in stores for food (id.); and went to 27 the “doctors” and “store” on “a regular basis” (AR 309). 28 stated that he “could use a wheel chair or a cane [or] walker” (AR 305- He answered the questions in the present tense and did not (AR 305.) 14 (Id.) He stated that He reported that he took He 1 2 but that he “d[idn’t] have any money” for one. (AR 311.) He also reported having problems getting along with family, 3 friends, neighbors, and others because of his “depression [and] 4 anxiety.” 5 because of his “anxiety.” 6 that he lived with family (AR 305; see also AR 98-101 (testifying 7 before prior ALJ that he and his fiancé lived with seven 8 friends)) and that his fiancé and grandson helped him care for 9 his dog (AR 306). (AR 310.) He stated that he “sometimes” didn’t go out (AR 308.) Plaintiff further indicated He stated that he shopped in stores regularly 10 (AR 308, 309), regularly saw doctors (AR 309), and talked with 11 his grandchildren every day (id.; see also AR 105-06 (testifying 12 in Feb. 2012 that he saw his grandchildren “once, twice a week” 13 to help babysit)). 14 At his February 2015 hearing, Plaintiff was asked 15 specifically about his experiences between April and December 16 2012, his date last insured. 17 the late part of 2012, he experienced problems with his lower 18 back, feet, ankles, and knee. 19 knee caused pain and “off and on” swelling. 20 received two steroid shots as treatment, and he testified that 21 the “first one” brought “a little bit” of relief, while the 22 “second one, none at all.”10 23 aching, [and pain]” in his right ankle and numbness in his left (AR 41-49.) (AR 42.) (AR 44.) He testified that in He stated that his right (AR 43-44.) He had He experienced “numbness, 24 25 26 27 28 10 As noted, Plaintiff in fact told Dr. Bacho that his pain “significantly improved” with the first shot but that after six months it was “slowly returning.” (AR 416-17.) A month after the second injection, he had “no complaints” for the doctor (AR 412), which presumably indicated that the second shot had at least temporarily relieved his pain. 15 1 thigh. 2 one “six months” before the hearing, in late 2014. 3 (Id.) He did not need a cane in 2012 but started using (AR 43.) He also testified to experiencing problems breathing “every 4 day” in late 2012 because of “AFib.” 5 down and rest to relieve the symptoms,” which included shortness 6 of breath, for “[f]ive, ten minutes.” 7 problems with a hernia. 8 9 (AR 45.) (AR 46.) He had to “lay He also had (AR 48.) Plaintiff further testified that he had anxiety and depression in late 2012. (AR 47.) When he was around “crowds of 10 people,” he stated, he would get “light headed” and have to go to 11 the car “to get some fresh air” and “just not be around people.” 12 (Id.) 13 was not “presently” getting mental-health therapy because he had 14 moved. 15 [he] needed that sort of therapy,” he responded, “Not lately.” 16 (Id.) Plaintiff stated that medication “help[ed]” and that he (Id.) When asked if his “doctors ever told [him] that 17 C. 18 Plaintiff argues that the ALJ provided “woefully 19 Analysis insufficient reasons to reject [his] testimony.”11 (J. Stip. at 20 21 22 23 24 25 26 27 28 11 Plaintiff initially argues that the ALJ discounted his testimony using “oft rejected boilerplate language.” (J. Stip. at 7-8.) Boilerplate can be problematic, such as when an ALJ finds a claimant’s statements not credible “to the extent they are inconsistent with the [RFC].” See, e.g., Laborin v. Berryhill, 867 F.3d 1151, 1154 (9th Cir. 2017); Treichler, 775 F.3d at 1102-03. But the ALJ’s finding that Plaintiff’s statements were “not entirely credible for the reasons explained in this decision” hardly fits that mold. (AR 29.) Even assuming the ALJ used some boilerplate, he specifically identified the testimony he found not credible and provided appropriate reasons supporting his finding; thus, any error was harmless. See, e.g., Laborin, 867 F.3d at 1154 (“[B]oilerplate language is not, by itself, reversible error and can be harmless.”); Treichler, 775 16 1 7.) He focuses in particular on the ALJ’s rationale that his 2 testimony “lack[ed] support in the objective medical evidence,” 3 which he argues was a “legally insufficient” reason (id. at 8 4 (citing AR 29-30)), and also briefly contends that the ALJ’s 5 highlighting of his “daily activities” was in error because he 6 “fail[ed] to adequately consider” how he performed his “sporadic 7 activities of daily living” (id. at 10-11). 8 err in either regard and provided additional acceptable reasons 9 not challenged by Plaintiff. 10 1. But the ALJ did not Malingering 11 As discussed, Plaintiff was found not disabled in a final 12 ALJ decision in April 2012, and a presumption of nondisability 13 under Chavez applied during the relevant period. 14 146-60.) 15 a showing of “changed circumstances” (AR 24), and Plaintiff has 16 not challenged that determination (see generally J. Stip.). 17 Incorporating the prior ALJ’s findings, the ALJ identified 18 evidence that Plaintiff “appeared to exaggerate some of his 19 symptoms.” 20 orthopedic doctor’s note that Plaintiff “exaggerate[d] some 21 symptoms”), 154 (prior ALJ discussing how Plaintiff “was no 22 longer eligible for narcotic pain medication refills because he 23 was accused of altering the prescription”), 156 (prior ALJ 24 discussing psychiatrist’s note that Plaintiff “exaggerate[d] some 25 of his symptoms”); see also AR 362 (mental-health-treatment (See AR 24, The ALJ found that the presumption was not rebutted by (AR 30; see AR 152 (prior ALJ discussing consulting 26 27 28 F.3d at 1103 (“After making this boilerplate statement, the ALJs typically identify what parts of the claimant’s testimony were not credible and why.”). 17 1 record stating that Plaintiff “appear[ed] to exaggerate some 2 symptoms”)). 3 providing clear and convincing reasons for discounting pain 4 testimony and is alone a sufficient basis to find a claimant not 5 credible. 6 F. App’x at 651; see also Rounds, 807 F.3d at 1006 (ALJ may rely 7 on plaintiff’s reputation for lying, prior inconsistent 8 statements, and other testimony that appears less than candid). 9 Thus, the ALJ properly rejected Plaintiff’s testimony for that Evidence of malingering relieves an ALJ of See Bagoyan Sulakhyan, 456 F. App’x at 682; Schow, 272 10 reason alone. 11 (9th Cir. 2009) (evidence of malingering, which “indicated that 12 [plaintiff] was exaggerating his symptoms,” “relieved the ALJ 13 from the burden of providing specific, clear, and convincing 14 reasons to discount [his] testimony”); Swinscoe v. Astrue, No. 15 1:10-cv-01614-AWI-BAM, 2012 WL 2317550, at *13 (E.D. Cal. June 16 18, 2012) (“ALJ noted evidence that Plaintiff was exaggerating 17 her symptoms,” and “[t]his evidence of malingering arguably 18 relieved the ALJ from the burden of providing specific, clear, 19 and convincing reasons to discount [her] testimony”). See Baghoomian v. Astrue, 319 F. App’x 563, 565 20 Even assuming the clear-and-convincing standard applied, see 21 Ghanim v. Colvin, 763 F.3d 1154, 1163 n.9 (9th Cir. 2014) (noting 22 but not resolving ambiguity in case law regarding whether clear- 23 and-convincing standard does not apply only when ALJ makes 24 “actual finding of malingering” or also when record merely 25 contains “evidence of malingering”), the ALJ articulated several 26 additional reasons for rejecting Plaintiff’s testimony, each of 27 which was proper. 28 18 1 2 2. Objective medical evidence The ALJ found that Plaintiff’s allegations that his 3 impairments had worsened during the relevant eight-month period 4 were not corroborated by the objective medical evidence because 5 any worsening “appear[ed] to have occurred well after the date 6 last insured.” 7 medical record is a “sufficient basis” for rejecting a claimant’s 8 subjective symptom testimony. 9 Admin., 533 F.3d 1155, 1161 (9th Cir. 2008); see Morgan v. Comm’r 10 of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999) (upholding 11 “conflict between [plaintiff’s] testimony of subjective 12 complaints and the objective medical evidence in the record” as 13 “specific and substantial” reason undermining credibility). 14 Although a lack of medical evidence “cannot form the sole basis 15 for discounting pain testimony, it is a factor that the ALJ can 16 consider in his credibility analysis.” 17 F.3d 676, 681 (9th Cir. 2005); Rollins v. Massanari, 261 F.3d 18 853, 857 (9th Cir. 2001) (citing § 404.1529(c)(2)).12 19 did the ALJ properly consider the medical evidence, but it was 20 not his sole basis for discrediting Plaintiff’s testimony. 21 (AR 29-30.) Contradiction with evidence in the Carmickle v. Comm’r, Soc. Sec. Burch v. Barnhart, 400 Not only Plaintiff stated that he was unable to work between April 22 and December 2012 because of “severe pain” in his back, hips, 23 right knee, and ankles (AR 42, 305) and atrial fibrillation, 24 25 26 27 28 12 Though Plaintiff challenges the ALJ’s reliance on objective medical evidence to discount his testimony, he does so primarily as a matter of law and provides no argument demonstrating that the medical record in this case in fact supported a finding of changed circumstances or worsened symptoms. (See generally J. Stip.) 19 1 which caused shortness of breath (AR 45, 305). The ALJ 2 acknowledged similar complaints alleged during the prior period 3 (see AR 29 (noting that Plaintiff previously complained of “low 4 back pain,” “pain in the hips and knees,” and “atrial 5 fibrillation”)), at the end of which Plaintiff was found not 6 disabled, and discussed medical records demonstrating no 7 worsening of those symptoms during the relevant eight-month 8 period (id.). 9 evidence. His analysis was supported by substantial 10 Plaintiff’s medical records from the relevant period mostly 11 involved complaints of pain in his back, hips, knee, and ankles. 12 (See, e.g., AR 434, 436, 430, 432.) 13 narcotic medication for that pain (AR 421, 423, 428, 430, 432, 14 434), which he repeatedly described as “controll[ing]” or 15 “decreas[ing]” it (AR 434 (June 2012), 423 (Oct. 2012), 421 (Nov. 16 2012: no change since previous month); see also AR 417 (Jan. 17 2013); 410 (Apr. 2013: no pain alleged), 412 (Sept. 2013: no 18 complaints), 528 (Jan. 2014), 516 (Aug. 2014), 508 (Oct. 2014), 19 504 (Nov. 2014)). 20 injection in his right knee (AR 419), which he reported as 21 “significantly improv[ing]” his pain (AR 417; see also AR 416). 22 Those treatment records failed to demonstrate that his symptoms, 23 which had been previously considered and deemed nondisabling, 24 worsened in any way. 25 that Plaintiff’s back and hip pain were “controlled” with 26 medication and that he had “no functional limitations” despite 27 complaints of pain in his low back, hips, and “right knee”); see 28 also Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 He was prescribed and took In December 2012, he received a steroid (See AR 154-56 (prior ALJ noting findings 20 1 (9th Cir. 2006) (“Impairments that can be controlled effectively 2 with medication are not disabling[.]”); Rodriguez v. Berryhill, 3 __ F. App’x __, No. 16-15252, 2017 WL 4118371, at *2 (9th Cir. 4 Sept. 14, 2017) (upholding fact that “condition and pain were 5 controlled with medication” as “specific, clear, and convincing” 6 reason to reject plaintiff’s symptom testimony). 7 After the relevant period, Plaintiff required another knee 8 injection (AR 414-15 (Aug. 2013)) and continued to report knee, 9 back, and ankle pain (see, e.g., AR 502 (Dec. 2014), 504 (Nov. 10 2014), 508-11 (Oct. 2014), 512-15 (Sept. 2014), 518 (July 2014), 11 520 (June 2014), 532 (Jan. 2014)). 12 from during and after the relevant period consistently indicated 13 that his impairments were mild or unsubstantiated, as mentioned 14 by the ALJ. 15 “mild” or “unremarkable” findings); see also AR 444-50 (2012 x- 16 rays showing “normal” left knee, “mild degenerative joint 17 disease” in right knee, “no acute pathology” in right foot, 18 “normal” and “unremarkable” left foot, “unremarkable” hips, and 19 “[m]ild” spurring in spine).)13 But medical-imaging reports (See AR 29 (ALJ describing x-rays from 2012 with 20 21 22 23 24 25 26 27 28 13 Even more than a year after the relevant time period, diagnostic imaging showed only “mild degenerative changes without significant spinal stenosis or neural foraminal narrowing” in Plaintiff’s back (AR 539) and “mild soft tissue swelling with no acute fracture” in his left ankle, an “unremarkable” left knee, and “normal” hips (AR 474-76). The ALJ also relied on the fact that Plaintiff began using a cane only six months before the February 2015 hearing, which was “well after the date last insured.” (AR 30.) But Plaintiff testified at the hearing that he wore a “brace” on his right knee during the relevant period (AR 43; cf. AR 95 (testifying before prior ALJ on Feb. 5, 2012, that he didn’t wear brace at that time)) and stated in his function report that he didn’t use a 21 1 Moreover, contrary to Plaintiff’s assertions of debilitating 2 atrial fibrillation, that condition apparently required little 3 treatment during the relevant period, as Plaintiff received only 4 an EKG referral, in July 2012. 5 was completed at that time, but as identified by the ALJ, an 6 echocardiogram conducted in August 2013 indicated that 7 Plaintiff’s atrial fibrillation remained stable, if not improved 8 (compare AR 405-06 (Aug. 2013 echo report indicating “moderate 9 concentric left ventricular hypertrophy” but “[o]verall left (See AR 430.) No medical imaging 10 ventricular systolic function is normal with an [ejection 11 fraction] between 65-70%”), with AR 371-72 (Oct. 2011 echo report 12 indicating “[o]verall left ventricular systolic function . . . 13 moderately impaired with an [ejection fraction] between 35- 14 40%”)).14 Moreover, as pointed out by the ALJ, a chest x-ray 15 16 17 18 19 20 21 22 23 24 25 26 27 28 cane, wheelchair, or walker because he “d[idn’t] have any money” for it (AR 311). See Smolen, 80 F.3d at 1284 (recognizing inability to “afford treatment” as “good reason” for lack of treatment and invalidating such lack of treatment as “clear and convincing reason for discrediting . . . symptom testimony”). As discussed above, however, despite Plaintiff’s possible use of a brace during the relevant period, the ALJ properly discounted his testimony because the severity of his right-knee pain was not supported by the medical evidence, which showed that his condition was mild and that the pain was controlled with treatment. Thus, even if the ALJ erred, he provided other clear and convincing reasons for his adverse credibility assessment, and any error was harmless. See Larkins v. Colvin, 674 F. App’x 632, 633 (9th Cir. 2017) (citing Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004)). 14 Left ventricular ejection fractions measure how much blood is pumped from the left ventricle of the heart. See Ejection Fraction, Cleveland Clinic, https:// my.clevelandclinic.org/health/diseases/17069-heart-failureunderstanding-heart-failure/ejection-fraction (last updated Oct. 2016). An ejection fraction of “55% to 70%” indicates normal pumping ability and heart function; an ejection fraction of “35% 22 1 from April 2013 “showed no evidence of acute cardiac or 2 respiratory disease.” 3 ALJ’s rejection of Plaintiff’s symptom testimony because it 4 lacked medical evidentiary support was proper and based on 5 substantial evidence. 6 3. (AR 29; see AR 442.) Accordingly, the Failure to seek treatment 7 An “unexplained, or inadequately explained, failure to seek 8 treatment or follow a prescribed course of treatment” is a clear 9 and convincing reason for discounting the credibility of a 10 claimant’s subjective symptom statements. 11 947 F.2d 341, 346-47 (9th Cir. 1991) (en banc); accord Molina, 12 674 F.3d at 1113. 13 “stomach” hernia during the relevant period. 14 ALJ discussed, repeating the unrebutted findings of the prior 15 ALJ, Plaintiff was “diagnosed with an umbilical hernia and was 16 referred for surgical consultation,” but he apparently did not 17 “follow up.” 18 medical records indicate that on September 30, 2011, he 19 complained of an umbilical hernia but refused a physical exam. 20 (AR 375.) 21 alleged hernia, and Plaintiff offers no explanation for his 22 evident lack of follow-up. 23 Plaintiff’s failure to seek treatment in discounting his 24 credibility. 25 Colvin, No. EDCV 14-1925 AGR, 2015 WL 4873559, at *7 (C.D. Cal. 26 Aug. 12, 2015) (upholding ALJ’s finding that plaintiff’s failure Bunnell v. Sullivan, At his hearing, Plaintiff complained of a (AR 29; see also AR 155.) (AR 48-49.) As the Indeed, Plaintiff’s The record contains no further treatment for his The ALJ therefore properly relied on See Bunnell, 947 F.2d at 346-47; see also Hite v. 27 28 to 39%” indicates moderately below normal pumping ability and mild heart failure. Id. 23 1 to seek hernia treatment for over 16 months supported adverse 2 credibility assessment). 3 Plaintiff stated that he was also unable to work because of 4 severe anxiety. (AR 47.) 5 medical evidence d[id] not substantiate [his] alleged severe 6 anxiety” and that “there [was] little in the way of mental status 7 examinations.” 8 mental-health records are from before the relevant period. 9 e.g., AR 337 (Mar. 2012), 361-62 (Jan. 2012), 360 (Dec. 2011), (AR 30.) The ALJ found that the “available Indeed, Plaintiff’s only available (See, 10 346 (Nov. 2011), 355 (Oct. 2011).) 11 Plaintiff was noted as being “very upset” regarding a recent 12 “hearing for disability” in which “the judge noted an incident 13 where [he] reportedly altered a prescription for Vicodin.” 14 AR 337, 363; see also AR 90-92, 117-20, 154.) 15 “homework” to complete and return at his next appointment (AR 16 338), but no further appointment notes are in the record. 17 Plaintiff testified at his February 2015 hearing that he stopped 18 receiving mental-health therapy because he moved “from Menifee to 19 M[ore]no Valley” and “lately” no doctor “told [him] that [he] 20 needed that sort of therapy.” 21 At his last appointment, (See He was given (AR 47.) Though Plaintiff attempted to explain his failure to seek 22 mental-health treatment by attributing it to his move to Moreno 23 Valley, see Trevino v. Colvin, No. CV 12-7740 JC, 2013 WL 24 1191803, at *4 (C.D. Cal. Mar. 22, 2013) (plaintiff’s failure to 25 obtain mental-health treatment was “not caused by lack of effort” 26 but instead in part by her “mov[ing away] to Santa Barbara” and 27 “inability to locate affordable treatment”), the record indicates 28 that the mental-health treatment he did receive was in fact in 24 1 Moreno Valley (see AR 337, 346, 355, 360-63), where he also 2 received at least some treatment for his physical impairments 3 (see, e.g., AR 444-50). 4 explanation, the record supports the ALJ’s credibility 5 determination, as Plaintiff was evidently more than capable of 6 obtaining both physical- and mental-health treatment in the 7 Moreno Valley area but simply did not do so during the relevant 8 period. 9 Cir. 2009) (upholding as clear and convincing reason for Accordingly, without additional See Burkstrand v. Astrue, 346 F. App’x 177, 179 (9th 10 discrediting mental-health testimony that plaintiff “did not seek 11 treatment for depression during the relevant period”); Judge v. 12 Astrue, No. CV 09-4743-PJW, 2010 WL 3245813, at *4 (C.D. Cal. 13 Aug. 16, 2010) (“[The claimant’s] failure to get treatment after 14 1997 seems more a function of the fact that she did not need it, 15 as opposed to her inability to comprehend that she needed 16 it.”).15 17 18 Thus, substantial evidence supports the ALJ’s finding that the severity of Plaintiff’s allegations was undermined by his 19 20 21 22 23 24 25 26 27 28 15 It is sometimes “questionable practice to chastise one with a mental impairment for the exercise of poor judgment in seeking rehabilitation.” Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996) (citation omitted); see also Rosas v. Colvin, No. CV 13-2756-SP, 2014 WL 3736531, at *11 (C.D. Cal. July 28, 2014) (finding that failure to attend therapy sessions was “not necessarily a clear and convincing reason to discount [a claimant’s] testimony”). Nguyen, however, is distinguishable. It dealt with an ALJ who discredited a psychologist’s diagnosis of depression based on lack of a treatment record, whereas here the ALJ relied on Plaintiff’s unexplained lack of mental-health treatment during the relevant period, despite regular treatment in the six months prior, to discredit the severity of his alleged symptoms. Moreover, Plaintiff’s explanation for why he did not seek mental-health treatment during that time appears to have been demonstrably false. 25 1 failure to seek treatment. 2 4. 3 Daily activities An ALJ may also properly discount the credibility of a 4 plaintiff’s subjective symptom statements when they are 5 inconsistent with his daily activities. 6 1112. 7 difficulty functioning, they may be grounds for discrediting the 8 claimant’s testimony to the extent that they contradict claims of 9 a totally debilitating impairment.” See Molina, 674 F.3d at “Even where those [daily] activities suggest some Id. at 1113. The ALJ here 10 found that Plaintiff’s function report, in which he alleged that 11 his activities of daily living were “mostly [limited] due to his 12 physical impairments,” was completed “almost ten months after the 13 date last insured” and further found that his “psychiatric 14 condition d[id] not keep him from performing activities of daily 15 living.” 16 alleged limitations, Plaintiff was “capable of performing 17 personal care, preparing simple meals, cleaning up after himself, 18 going out alone sometimes, driving sometimes, and shopping in 19 stores.” 20 attend[ed] medical appointments, [went] to the store, and g[ot] 21 along with authority figures.” 22 (AR 30.) (AR 27.) He specifically noted that despite his He also “socialize[d] with his grandchildren, (Id.) Indeed, “[a]ssuming [his] activities of daily living during 23 the relevant period were the same as described in [his function 24 report],” see Stevens v. Colvin, No. CV 15-1259-SP, 2016 WL 25 3390753, at *5 (C.D. Cal. June 14, 2016), they were inconsistent 26 with the alleged severity of his symptoms. 27 example, alleged having severe pain in his back, hips, and right 28 knee and experiencing shortness of breath related to atrial 26 Plaintiff, for 1 fibrillation. (AR 42, 305.) 2 fed his dog, had no problem with personal care despite his 3 symptoms, prepared his own meals daily, washed dishes daily, 4 walked, drove, went out alone, shopped in stores, and went to the 5 doctor. 6 prior ALJ, who noted that his described activities of daily 7 living were “not limited to the extent one would expect[] given 8 the complaints of disabling symptoms and limitations.” 9 (noting that “he could manage his own finances, drive, do light (AR 306-09.) But he reported that he walked and Similar activities were reported to the (AR 152 10 household chores, take care of his grandchild, walk his dog, and 11 perform personal care independently”). 12 evidence supported the ALJ’s adverse credibility determination. 13 See Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th 14 Cir. 2009) (upholding ALJ’s adverse credibility determination in 15 part because ALJ found that plaintiff “le[d] an active lifestyle, 16 including cleaning, cooking, walking her dogs, and driving to 17 appointments”); Sharp v. Colvin, No. 1:13-cv-02028-BAM, 2015 WL 18 1274727, at *5 (E.D. Cal. Mar. 19, 2015) (finding that ALJ 19 properly discounted plaintiff’s testimony as inconsistent with 20 daily activities when plaintiff cleaned his room, swept carpet, 21 washed dishes, did laundry, cooked occasionally, went grocery 22 shopping with his mother, cared for his dog, and walked around 23 block). 24 Thus, substantial Moreover, to the extent Plaintiff alleged an inability to be 25 around others, including family and friends, because of his 26 severe anxiety and depression, he demonstrated otherwise. 27 ALJ noted (AR 27), he was capable of living with family, spoke 28 with his grandchildren every day, and regularly saw doctors and 27 As the 1 shopped in stores (AR 305-09). To the extent he also allegedly 2 could not “go out” because of his anxiety, he reported taking his 3 dog out for walks, walking, driving, going out alone, shopping in 4 stores, and seeing doctors. 5 reported activities just before the relevant period were more of 6 the same: he lived with friends and regularly saw his 7 grandchildren to help babysit. 8 Accordingly, substantial evidence in the record supports the 9 ALJ’s conclusion that Plaintiff’s activities were neither limited (AR 305-10.) Further still, his (See, e.g., AR 98-101, 105-06.) 10 by nor consistent with his allegedly debilitating psychiatric 11 condition. 12 (9th Cir. 2017) (upholding ALJ’s discounting of plaintiff’s 13 credibility in part because his activities of daily living “were 14 not entirely consistent with his claimed inability to engage in 15 social interactions”). 16 See Womeldorf v. Berryhill, 685 F. App’x 620, 621 Finally, Plaintiff’s contention that the ALJ “fail[ed] to 17 adequately consider” how he performed his daily activities is 18 unconvincing. 19 activities suggest some difficulty functioning, they may be 20 grounds for discrediting the claimant’s testimony to the extent 21 that they contradict claims of a totally debilitating 22 impairment.” 23 activities demonstrated that both his physical and mental 24 impairments were not totally debilitating, as he was able to 25 function and interact successfully with people despite any 26 alleged limitation. 27 allegations and reported daily activities was a clear and 28 convincing reason to reject his testimony. As discussed, “[e]ven where [a claimant’s daily] Molina, 674 F.3d at 1113. Indeed, Plaintiff’s Thus, the inconsistency between Plaintiff’s 28 See Valentine v. 1 Comm’r Soc. Sec. Admin., 574 F.3d 685, 693 (9th Cir. 2009) 2 (evidence that plaintiff’s daily activities “contradicted [his] 3 contentions about how debilitating his fatigue was” constituted 4 “clear and convincing reason to reject [his] subjective 5 testimony” even though that evidence “did not suggest [plaintiff] 6 could return to his old job”). 7 VI. 8 9 CONCLUSION Consistent with the foregoing and under sentence four of 42 U.S.C. § 405(g),16 IT IS ORDERED that judgment be entered 10 AFFIRMING the Commissioner’s decision, DENYING Plaintiff’s 11 request for remand, and DISMISSING this action with prejudice. 12 13 DATED: February 15, 2018 14 ______________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16 That sentence provides: “The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 29
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