James Richard Reguero v. Carolyn W. Colvin, No. 5:2016cv02408 - Document 29 (C.D. Cal. 2018)

Court Description: MEMORANDUM OPINION by Magistrate Judge Alka Sagar. The decision of the Commissioner is AFFIRMED. (See document for complete details) (afe)
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James Richard Reguero v. Carolyn W. Colvin Doc. 29 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA – EASTERN DIVISION 10 JAMES RICHARD REGUERO, ) ) ) ) ) ) ) ) ) ) ) ) 11 Plaintiff, 12 v. 13 14 15 NANCY A. BERRYHILL,1 Acting Commissioner of Social Security, Defendant. 16 Case No. ED CV 16-2408-AS MEMORANDUM OPINION 17 PROCEEDINGS 18 19 On November 21, 2016, Plaintiff filed a Complaint seeking review 20 of the denial of his applications for Disability Insurance Benefits 21 (“DIB”) and Supplemental Security Income (“SSI”). (Dkt. No. 1). The 22 parties have consented to proceed before the undersigned United 23 States Magistrate Judge. (Dkt. Nos. 11, 13). On April 17, 2017, 24 Defendant filed an Answer along with the Administrative Record 25 (“AR”). (Dkt. Nos. 16, 17). On March 13, 2018, the parties filed a 26 27 28 1 Nancy A. Berryhill is now the Acting Commissioner of Social Security and is substituted for Acting Commissioner Carolyn W. Colvin in this case. See 42 U.S.C. § 205(g). 1 Dockets.Justia.com 1 Joint Stipulation (“Joint Stip.”), setting forth their respective 2 positions regarding Plaintiff’s claims. (Dkt. No. 28). 3 4 5 The Court has taken this matter under submission without oral argument. See C.D. Cal. L.R. 7-15. 6 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 7 8 9 On January 29, 2010 and February 6, 2010, Plaintiff, formerly 10 employed as an automotive technician, (see AR 163), filed DIB and SSI 11 applications alleging an inability to work because of a disability 12 since August 11, 2009. 13 Administrative Law Judge, Marti Kirby (“ALJ”), heard testimony from a 14 vocational 15 (See AR 32-76). 16 denying 17 Council denied Plaintiff’s request to review the ALJ’s decision on 18 January 31, 2013. 19 sought review of the decision by filing a Complaint in this Court. 20 (See Reguero v. Covin, EDCV 13-0576-AS, Dkt. No. 1). 21 2014, the Court issued an order vacating the Commissioner’s decision 22 and remanding the case for further administrative proceedings. 23 Dkt. No. 26, 27). expert and (AR 135, 142). Plaintiff, who was On November 4, 2011, an represented by counsel. On December 6, 2011, the ALJ issued a decision Plaintiff’s applications. (AR 1-4, 7). (See AR 12-27). The Appeals On Marchy 28, 2013, Plaintiff On April 30, (Id., 24 25 On remand, the same ALJ held a hearing on February 10, 2015, 26 during which he heard testimony from another vocational expert, Lizet 27 Campos (“VE”), and Plaintiff, who was represented by counsel. 28 466-504). (AR On March 12, 2015, the ALJ issued a partially favorable 2 1 decision. (AR 444-60). On September 21, 2015, the ALJ issued a 2 revised decision that was “identical to the original decision except 3 for disapproval of the fee agreement, as it [was] a two-tier fee 4 agreement.” (AR 423; see AR 423-39). 5 6 The ALJ applied the five-step sequential process in evaluating 7 Plaintiff’s case. At step one, the ALJ determined that Plaintiff has 8 not engaged in substantial gainful activity since August 11, 2009, 9 the alleged onset date. (AR 426). At step two, the ALJ found that 10 Plaintiff has had the following severe impairments since the alleged 11 onset date: “chronic fatigue syndrome; fibromyalgia; osteoarthritis 12 in the shoulders and hands; obesity; and social anxiety disorder.” 13 (Id.). 14 has had the additional severe impairments of “stroke” and “left sided 15 weakness.” 16 impairments do not meet or equal a listing found in 20 C.F.R. Part 17 404, Subpart P, Appendix 1. The ALJ further found that since January 2, 2012, Plaintiff (Id.). At step three, the ALJ found that Plaintiff’s (Id.). 18 19 Before proceeding to step four, the ALJ found that in the period 20 between August 11, 2009, the alleged onset date, and January 2, 2012, 21 Plaintiff had the following Residual Functional Capacity (“RFC”)2: 22 23 [Plaintiff could] perform light work . . . except [he 24 could] lift, carry, push and/or pull 20 pounds occasionally 25 and 10 pounds frequently; he [could] sit, stand and/or walk 26 2 27 28 A Residual Functional Capacity is what a claimant can still do despite existing exertional and non-exertional limitations. See 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). 3 1 for six hours out of an eight-hour workday, but only one 2 hour at a time and would need to alternate positions every 3 15 minutes for a brief 1-3 minutes; he [could] perform 4 occasional 5 crawling, 6 ramps and stairs, but [could not] climb ropes, ladders, or 7 scaffolds; 8 reaching bilaterally; he [was] precluded from working at 9 unprotected bending, and he stooping, balancing; [could] heights or he squatting, [could] occasionally occasionally around kneeling, perform hazardous or climb overhead moving 10 machinery; he [was] limited to a non-public working setting 11 with 12 indirect interaction with co-workers; and he [was] limited 13 to simple routine repetitive tasks. only occasional interaction with supervisors and 14 15 (AR 427). The ALJ found that beginning on January 2, 2012, Plaintiff 16 has had the following RFC: 17 18 [Plaintiff can] perform light work . . . except [he] can 19 lift no more than 10 pounds; he can stand and/or walk for 20 four hours out of an eight-hour workday, but no more than 21 15 minutes at a time; he can sit for 6 hours in an 8-hour 22 workday with brief position changes after 30-45 minutes for 23 3-5 minutes at a time; he can perform occasional bending, 24 stooping, squatting, kneeling, crawling, and balancing; he 25 can occasionally climb ramps and stairs, but cannot climb 26 ropes, ladders, or scaffolds; he is precluded from working 27 at unprotected heights, moving machinery, or other hazards; 28 he must avoid concentrated exposure to walking on uneven 4 1 terrain, 2 noises; 3 occasional non-intense interaction with supervisors or co- 4 workers; he cannot perform jobs requiring teamwork, but can 5 perform object-oriented work; he can occasionally perform 6 overhead reaching bilaterally; he can frequently perform 7 fine and gross manipulation; he cannot perform jobs that 8 require 9 repetitively push and/or pull with the lower extremities, as extreme he is temperatures, limited forceful the use to foot crowds, non-public gripping of large or pedals, grasping; with loud with work and only he the left cannot 10 such lower 11 extremity; and he would require an additional 20-30 minute 12 break in addition to regular work breaks any time during 13 the regular workday. 14 15 (AR 434-35). 16 At step four, the ALJ noted that Plaintiff has been unable to 17 18 perform any past relevant work since August 11, 2009. (AR 435). 19 20 Relying on the VE’s testimony at step five, the ALJ found that 21 before January 2, 2012, Plaintiff, with his age, education, work 22 experience, and RFC, could perform the following representative jobs 23 existing 24 folder (Dictionary of Occupational Titles (“DOT”) 789.687-066); table 25 worker (DOT 783.687-030); and dowel inspector (DOT 669.687-014). 26 437). in significant numbers in 27 28 5 the national economy: garment (AR 1 The ALJ found that beginning on January 2, 2012, Plaintiff has 2 not been able to perform any jobs existing in significant numbers in 3 the national economy. (AR 438). 4 5 Accordingly, the ALJ concluded that Plaintiff “was not disabled 6 prior to January 2, 2012, but became disabled on that date and has 7 continued to be disabled through the date of th[e] decision.” (Id.). 8 9 On September 28, 2016, the Appeals Council denied Plaintiff’s 10 request to review 11 Plaintiff 12 stands as the final decision of the Commissioner. 13 405(g), 1383(c). now seeks the ALJ’s judicial decision review of (AR 398-400, 412, 414). the ALJ’s decision which See 42 U.S.C. §§ 14 STANDARD OF REVIEW 15 16 17 This Court reviews the Administration’s decision to determine if 18 it is free of legal error and supported by substantial evidence. 19 Brewes v. Comm’r, 682 F.3d 1157, 1161 (9th Cir. 2012). 20 evidence” 21 preponderance. 22 2014). 23 “a court must consider the record as a whole, weighing both evidence 24 that supports and evidence that detracts from the [Commissioner’s] 25 conclusion.” 26 2001) (internal quotation omitted). 27 can support either affirming or reversing the ALJ’s conclusion, [a is more than a mere scintilla, but See “Substantial less than a Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. To determine whether substantial evidence supports a finding, Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 28 6 As a result, “[i]f the evidence 1 court] may not substitute [its] judgment for that of the 2 ALJ.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). 3 PLAINTIFF’S CONTENTIONS 4 5 Plaintiff 6 alleges that the ALJ erred in (1) rejecting 7 Plaintiff’s testimony and (2) relying on the VE’s testimony regarding 8 job numbers. (See Joint Stip. at 7-36). 9 DISCUSSION 10 11 12 After considering the record as a whole, the Court finds that 13 the Commissioner’s findings are supported by substantial evidence and 14 are free from material legal error.3 15 16 A. The ALJ Did Not Err in Evaluating Plaintiff’s Credibility 17 18 An ALJ’s assessment of a claimant’s credibility is entitled to 19 “great weight.” See Anderson v. Sullivan, 914 F.2d 1121, 1124 (9th 20 Cir. 1990); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985). 21 “[T]he ALJ is not required to believe every allegation of disabling 22 pain, or else disability benefits would be available for the asking, 23 a result plainly contrary to 42 U.S.C. § 423(d)(5)(A).” Molina v. 24 25 26 27 3 The harmless error rule applies to the review of administrative decisions regarding disability. See McLeod v. Astrue, 640 F.3d 881, 886-88 (9th Cir. 2011); Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (an ALJ’s decision will not be reversed for errors that are harmless). 28 7 1 Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012). In order to determine 2 whether a claimant’s testimony is credible, the ALJ engages in a two- 3 step analysis. 4 2014). Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 5 First, the claimant “must produce objective medical evidence of 6 7 an underlying 8 produce the pain or other symptoms alleged.’” 9 947 F.2d impairment 341, 344 ‘which (9th Cir. reasonably expected to Bunnell v. Sullivan, 1991) (quoting impairment, “the claimant need not produce objective medical evidence 12 of the pain or fatigue itself, or the severity thereof.” Smolen, 80 13 F.3d that 14 impairment] could reasonably have caused some degree of the symptom.” 15 Id. the claimant “need of the U.S.C. 11 Instead, evidence 42 § 423(d)(5)(A)(1988)). 1282. producing be 10 at In could only show underlying [the 16 17 Second, once the claimant has produced the requisite objective 18 medical evidence, 19 regarding 20 affirmative evidence of malingering, however, the ALJ may reject a 21 plaintiff’s 22 convincing reasons for doing so.” 23 alleged symptoms, an ALJ may consider the following: the the severity testimony “ALJ of may her only reject the symptoms.” “by Id. offering Id. claimant’s at testimony 1284. specific, Absent clear In assessing a claimant’s 24 25 (1) ordinary techniques of credibility evaluation, such as 26 claimant’s 27 statements concerning the symptoms, and other testimony by 28 the claimant reputation that for appears lying, to 8 be and prior less than inconsistent candid; (2) 1 unexplained or inadequately explained failure to seek 2 treatment or to follow a prescribed course of treatment; 3 and (3) the claimant’s daily activities. 4 5 Id. An ALJ may also consider observations of treating and examining 6 physicians and other third parties. Id. 7 Here, the ALJ found Plaintiff’s allegations “less than fully 8 9 credible.” (AR 429). of This determination was based on the ALJ’s 10 consideration Plaintiff’s daily activities, 11 work history, and the objective medical record. treatment history, (See AR 428-34). 12 13 The ALJ found that Plaintiff “has engaged in a somewhat normal 14 level of daily activity and interaction,” which included “caring for 15 his own personal hygiene, preparing simple meals, completing basic 16 household chores, driving, running errands, and grocery shopping.” 17 (AR 18 Plaintiff’s 19 maintaining employment. 20 various 21 Plaintiff’s credibility. 22 (9th 23 discredited where claimant was able to care for her own personal 24 needs, cook, clean, shop, interact with her boyfriend, and manage 25 finances). 26 unimpaired, the ALJ reasonably found them inconsistent with the level 27 of impairment that Plaintiff alleges. 28 at 1113 (“Even where [claimant’s] activities suggest some difficulty 429; see AR activities everyday Cir. 172-74, 2005) 283). require The abilities (AR 429). activities is ALJ a remarked that are that some needed of for Plaintiff’s ability to perform legitimate basis to discount See Burch v. Barnhart, 400 F.3d 676, 680-81 (claimant’s allegations of disability properly Even if Plaintiff’s activities do not show that he was 9 See Molina v. Astrue, 674 F.3d 1 functioning, they may be grounds for discrediting the claimant’s 2 testimony to the extent that they contradict claims of a totally 3 debilitating impairment.”). 4 The ALJ noted that Plaintiff “had gone on several vacations 5 6 since the alleged onset date, including gambling in Laughlin.” (AR 7 429; ALJ 8 mischaracterized the evidence because there were only two vacations, 9 in the summers of 2010 and 2011, and “[b]oth were for a brief few see AR 48-49, 280, 304). Plaintiff contends that the 10 days which [Plaintiff] did not enjoy.” 11 hearing in 2011, Plaintiff testified that during his camping trip 12 with his wife that summer, he “pretty much stayed in the RV” and 13 “felt anxious and sick to his stomach,” but he also stated that the 14 trip was “kind of nice, because [he and his wife] were able to go on 15 a walk together.” 16 previous summer “just wasn’t as fun” as trips in the past “because 17 [he] wasn’t drinking” anymore. 18 2010 that he “won money” in Laughlin, suggesting that he was able to 19 participate 20 Plaintiff testified at the 2011 hearing that the chief cause of his 21 inability 22 Therefore, notwithstanding Plaintiff’s contentions, it was reasonable 23 for the ALJ to find that Plaintiff’s “decision to go on vacation, 24 particularly a vacation that placed him [in] a likely crowded casino, 25 tends to suggest that [his] symptoms and limitations may have been 26 somewhat overstated.” to in (AR 49, 68). casino work his At the He stated that his camping trip the (AR 68). gambling. was (Joint Stip. at 16). (AR “fear (AR 429). 27 28 10 of Plaintiff reported in May 280, coming 304). In outside.” contrast, (AR 42). The ALJ also found that Plaintiff’s treatment history has not 1 2 reflected 3 remarked that Plaintiff has made “relatively infrequent” trips to the 4 doctor, with “significant gaps in treatment.” 5 the 6 routine and 7 (Id.). Plaintiff contends that the ALJ did not “point to the record 8 to 9 [Plaintiff] to do.” ALJ the existence noted that of that debilitating Plaintiff’s conservative, demonstrate a treatment primarily there was in (Joint Stip. at 14). (AR 429). “has the anything condition. been form more of the The ALJ Moreover, essentially medications.” doctors wanted To the contrary, the ALJ 10 gave examples, including Plaintiff’s failure to follow through with 11 his treating doctor’s referral to physical therapy, as well as his 12 decision to discontinue mental health treatment in 2010. 13 30). 14 October 2009 states, for example, that when Plaintiff presented with 15 shoulder pain, he “opted for conservative measures but was offered 16 Specialist 17 Plaintiff has stated that cost was the reason why he has not done 18 physical therapy (at $40 per session) and why he stopped his mental 19 health treatment in 2010. 20 this explanation but discredited, noting that Plaintiff nonetheless 21 affords a pack of cigarettes a day, as well as vacations and a 22 gambling trip in 2010, thus indicating that Plaintiff’s “symptoms 23 were not as severe or as limiting as he purports.” 24 485). The record and supports [doctors] this urged finding. Physical A treatment Therapy.” (See AR 56, 482-84). (AR 429note (AR from 210). The ALJ acknowledged (AR 430; see AR 25 26 The ALJ also noted that Plaintiff “stopped working due to a 27 business-related layoff rather than 28 disabling impairments,” and Plaintiff suggested that he would have 11 because of the allegedly 1 kept working but for the layoff. 2 with the other factors, this was a persuasive basis on which to 3 discount the credibility of Plaintiff’s complaints. 4 Comm’r of Soc. Sec. Admin., 468 F. App’x 754, 755 (9th Cir. 2012) 5 (ALJ 6 partly because claimant stopped working only when he was laid off due 7 to a plant closure); Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 8 2001) 9 complaints where claimant “stated at the administrative hearing and 10 to at least one of his doctors that he left his job because he was 11 laid off, rather than because he was injured”); Drouin v. Sullivan, 12 966 13 rejecting credibility partly on the basis that claimant was laid off 14 for business reasons, not impairments). permissibly (ALJ F.2d did 1255, discounted not 1256, err 1258 (AR 430; see AR 71, 283). claimant’s in (9th Cir. See Brackett v. subjective discrediting 1992) pain claimant’s (ALJ Along did testimony subjective not err in 15 16 In addition, the ALJ provided a detailed review of the medical 17 evidence, (see AR 431-33), noting that, among other evidence, in 18 August 19 control, and his Norco medication helped alleviate his pain, (AR 359- 20 60, 431), and that examining doctors described Plaintiff as alert and 21 oriented, 22 (See, e.g., AR 284, 347, 350, 354). 23 such evidence in determining that the record did not support the 24 severity of Plaintiff’s complaints. 25 (“Although lack of medical evidence cannot form the sole basis for 26 discounting pain testimony, it is a factor that the ALJ can consider 27 in his credibility analysis.”). 2010, not Plaintiff’s agitated or myalgia anxious, 28 12 and and myositis in no were under apparent fair distress. The ALJ appropriately considered See Burch, 400 F.3d at 681 1 Accordingly, the ALJ properly discounted Plaintiff’s credibility 2 by giving specific, clear, and convincing reasons that are supported 3 by substantial evidence in the record. 4 5 B. The ALJ Did Not Err in Relying on the VE’s Testimony at Step Five 6 7 Plaintiff contends that the ALJ erred by relying on the VE’s 8 testimony to conclude that there are a significant number of jobs 9 that Plaintiff can perform during the period between August 11, 2009 10 and January 2, 2012. 11 that 12 aggregates of various occupations, not simply the jobs that the ALJ 13 found Plaintiff can perform – garment folder (DOT 789.687-066706.684- 14 022); 15 669.687-014). the job table (See Joint Stip. at 24-31). numbers worker that (DOT the VE provided 783.687-030); and Plaintiff contends actually dowel represented inspector (DOT (See id.; AR 437). 16 17 The ALJ bears the burden at step five to establish that work 18 exists in significant numbers in the national economy that Plaintiff 19 can perform. 20 An ALJ may properly rely on the testimony of a VE regarding job 21 numbers in the national economy to make this showing. 22 Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005). 23 expertise provides the necessary foundation for his or her testimony. 24 Thus, no additional foundation is required.” 25 F.3d 1040, 1051 (9th Cir. 2017) (quoting Bayliss, 427 F.3d at 1218). Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). Bayliss v. “A VE’s recognized Buck v. Berryhill, 869 26 At the hearing on February 10, 2015, the VE testified that there 27 28 are approximately 427,000 garment 13 folder jobs in the national 1 economy; approximately 426,000 table worker jobs; and approximately 2 472,000 dowel inspector jobs. 3 job numbers “are based on occupational employment statistics,” which 4 the VE obtained from “Skill Tran,” apparently referring to the Skill 5 Tran source “Job Browser Pro.” 6 also 7 individuals 8 information to bring it in here [to the hearing] to compare it, no.” 9 (Id.). collects information that she Plaintiff’s (AR 491). (AR 496). about counsels, counsel The VE stated that these job but asked The VE explained that she numbers she as does the VE, she not “Does meets with “utilize that that [number] 10 represent the number of jobs that exist for those DOT individual 11 codes 12 aggregate group of occupations?” 13 aggregate number.” 14 further questions were asked about the VE’s job numbers. that [the VE] identified (Id.). or does (AR 498). that represent like an The VE replied, “It’s an The VE did not elaborate further, and no 15 16 Plaintiff contends that it is clear that the VE “did not 17 testify that each of the three occupations had approximately 426,000- 18 427,000 each; rather the 426,000-427,000 number for each occupation 19 represents . . . 20 unidentified occupations.” 21 claims that the ALJ erred by relying on a mischaracterization of the 22 VE’s testimony to find that the respective job numbers applied to the 23 three particular occupations. 24 Skill Tran actually groups each of these three jobs with hundreds of 25 other occupations, and the VE’s “aggregate” job numbers should be 26 understood to apply to these larger groups. 27 example, Plaintiff states that Skill Tran groups the garment folder 28 occupation with 553 other occupations in the category “Helpers – the total aggregate number for (Joint Stip. at 26-27). (Id. at 27). 14 a group of Thus, Plaintiff Plaintiff asserts that (See id. at 28-30). For (Id. at 28).4 1 Production Workers.” Plaintiff points out that if the 2 VE’s “aggregate” number of 427,000 jobs were divided evenly among 3 each of the 553 occupations, it would result in only 770 garment 4 folder jobs and claims that “Skill Tran demonstrates that in fact 5 only 63 full time jobs are available for the specific DOT code of 6 garment sorter.” (Id.). 7 Plaintiff 8 9 never raised this issue before the Commissioner. Though he was represented by counsel, Plaintiff did not challenge the 10 basis or accuracy of the VE’s job numbers during administrative 11 proceedings. 12 v. Berryhill, 883 F.3d 1102, 1109 (9th Cir. 2017) (“We now hold that 13 when a claimant fails entirely to challenge a vocational expert’s job 14 numbers 15 claimant 16 claimant is represented by counsel.”); see also Meanel v. Apfel, 172 17 F.3d 1111 (9th Cir. 1999) (holding that claimants represented by 18 counsel “must raise all issues and evidence at their administrative 19 hearings in order to preserve them on appeal”). Plaintiff, therefore, has waived the issue. during waives administrative such a proceedings challenge on before appeal, at the See Shaibi agency, least when the that 20 Regardless of waiver, however, Plaintiff has failed to establish 21 22 any error in the ALJ’s step-five finding. Notwithstanding 23 Plaintiff’s contentions, the ALJ was entitled to rely on the VE’s 24 testimony on job numbers, which constitutes substantial evidence. 25 26 27 28 4 Plaintiff cites “Exhibit 1,” but no such exhibit has been filed in this action. Regardless, the absence of the referenced exhibit – which presumably contains the Skill Tran data – does not affect the Court’s analysis. There is no indication that Plaintiff ever presented such information to the ALJ or the Appeals Council. 15 1 See Bayliss, 427 F.3d at 1218. 2 ALJ’s finding in this 3 misinterpreted or mischaracterized 4 explicitly 5 folder 6 worker jobs; and approximately 472,000 dowel inspector jobs. 7 491). 8 response to Plaintiff’s counsel’s question, that the number given for 9 each job is “an aggregate number.” stated jobs in that the The record does not contradict the respect, there national nor are does the it VE’s show that testimony. “approximately the The 427,000” ALJ VE garment economy; approximately 426,000 table (AR The VE did not undermine this testimony when stating, in is ambiguous. (See AR 498). This statement, at 10 best, 11 in relying on the VE’s testimony to find that there are significant 12 numbers of jobs in the national economy that Plaintiff can perform. 13 The 14 Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (“Where the evidence is 15 susceptible to more than one rational interpretation, one of which 16 supports the ALJ's decision, the ALJ's conclusion must be upheld.”). Court must The ALJ appropriately exercised his discretion uphold that reasonable finding. See Thomas v. 17 ORDER 18 19 20 21 For the foregoing reasons, the decision of the Commissioner is AFFIRMED. 22 23 LET JUDGMENT BE ENTERED ACCORDINGLY. 24 25 DATED: April 13, 2018 26 27 /s/ ALKA SAGAR UNITED STATES MAGISTRATE JUDGE 28 16