Sandra Cortez v. Nancy A. Berryhill, No. 5:2017cv01379 - Document 29 (C.D. Cal. 2019)
Court Description: MEMORANDUM AND OPINION by Magistrate Judge Jean P. Rosenbluth. IT IS ORDERED that judgment be entered AFFIRMING the Commissioner's decision, DENYING Plaintiff's request for reversal or remand, and DISMISSING this action with prejudice. (sbou)
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Sandra Cortez v. Nancy A. Berryhill Doc. 29 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 SANDRA C.,1 Plaintiff, 12 13 v. 14 15 NANCY A. BERRYHILL, Acting Commissioner of Social Security, 16 Defendant. ) Case No. EDCV 17-1379-JPR ) ) ) MEMORANDUM DECISION AND ORDER ) AFFIRMING COMMISSIONER ) ) ) ) ) ) ) 17 18 19 I. PROCEEDINGS Plaintiff seeks review of the Commissioner’s final decision 20 denying her applications for Social Security disability insurance 21 benefits (“DIB”) and supplemental security income benefits 22 (“SSI”). 23 undersigned U.S. Magistrate Judge under 28 U.S.C. § 636(c). 24 matter is before the Court on the parties’ Joint Stipulation, The parties consented to the jurisdiction of the The 25 26 1 27 28 Plaintiff’s name is partially redacted in compliance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case Management of the Judicial Conference of the United States. 1 Dockets.Justia.com 1 filed June 11, 2018, which the Court has taken under submission 2 without oral argument. 3 Commissioner’s decision is affirmed. 4 II. 5 For the reasons stated below, the BACKGROUND Plaintiff was born in 1963. (Administrative Record (“AR”) 6 43.) 7 handler, assembler, recovery clerk, and childcare provider (AR 8 45-47). 9 She completed high school (AR 44) and worked as a mail On August 30, 2013, Plaintiff applied for DIB, alleging that 10 she had been disabled since October 15, 2011, the day after an 11 earlier final decision finding her not disabled. 12 also AR 76-77, 83.) 13 that she had been disabled since January 1, 2012. 14 see also AR 95.) 15 tinnitus, ankylosing spondylitis, [and] obesity” as well as type- 16 2 diabetes, high blood pressure, Bell’s Palsy, back injury, 17 asthma, hypothyroidism, and sleep apnea. 18 applications were denied initially (AR 93, 105) and the DIB 19 application was denied on reconsideration (AR 119, 127-31), she 20 requested a hearing before an Administrative Law Judge (AR 135- 21 36). 22 who was represented by an attorney, testified, as did a 23 vocational expert. 24 April 19, 2016, the ALJ found Plaintiff not disabled. 25 33.) 26 19), which denied it on May 12, 2017 (AR 3-5). 27 followed. (AR 179-82; see She applied for SSI the same day, alleging (AR 183-91; She claimed disability from “[f]ibromyalgia, (AR 227.) After her A hearing was held on December 3, 2015, at which Plaintiff, (AR 39-62.) In a written decision issued (AR 23- Plaintiff requested review from the Appeals Council (AR 28 2 This action 1 2 III. STANDARD OF REVIEW 3 Under 42 U.S.C. § 405(g), a district court may review the 4 Commissioner’s decision to deny benefits. 5 decision should be upheld if they are free of legal error and 6 supported by substantial evidence based on the record as a whole. 7 See Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. 8 Astrue, 481 F.3d 742, 746 (9th Cir. 2007). 9 means such evidence as a reasonable person might accept as The ALJ’s findings and Substantial evidence 10 adequate to support a conclusion. 11 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 12 is more than a scintilla but less than a preponderance. 13 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 14 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). 15 substantial evidence supports a finding, the reviewing court 16 “must review the administrative record as a whole, weighing both 17 the evidence that supports and the evidence that detracts from 18 the Commissioner’s conclusion.” 19 720 (9th Cir. 1998). 20 either affirming or reversing,” the reviewing court “may not 21 substitute its judgment” for the Commissioner’s. 22 IV. 23 Richardson, 402 U.S. at 401; It To determine whether Reddick v. Chater, 157 F.3d 715, “If the evidence can reasonably support Id. at 720-21. THE EVALUATION OF DISABILITY People are “disabled” for purposes of receiving Social 24 Security benefits if they are unable to engage in any substantial 25 gainful activity owing to a physical or mental impairment that is 26 expected to result in death or has lasted, or is expected to 27 last, for a continuous period of at least 12 months. 28 § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 3 42 U.S.C. 1 1992). 2 A. The Five-Step Evaluation Process 3 The ALJ follows a five-step sequential evaluation process to 4 assess whether a claimant is disabled. 5 §§ 404.1520(a)(4), 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 6 828 n.5 (9th Cir. 1995) (as amended Apr. 9, 1996). 7 step, the Commissioner must determine whether the claimant is 8 currently engaged in substantial gainful activity; if so, the 9 claimant is not disabled and the claim must be denied. 10 11 20 C.F.R. In the first §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is not engaged in substantial gainful 12 activity, the second step requires the Commissioner to determine 13 whether the claimant has a “severe” impairment or combination of 14 impairments significantly limiting her ability to do basic work 15 activities; if not, the claimant is not disabled and her claim 16 must be denied. 17 §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a “severe” impairment or combination of 18 impairments, the third step requires the Commissioner to 19 determine whether the impairment or combination of impairments 20 meets or equals an impairment in the Listing of Impairments set 21 forth at 20 C.F.R. part 404, subpart P, appendix 1; if so, 22 disability is conclusively presumed. 23 416.920(a)(4)(iii). §§ 404.1520(a)(4)(iii), 24 If the claimant’s impairment or combination of impairments 25 does not meet or equal an impairment in the Listing, the fourth 26 step requires the Commissioner to determine whether the claimant 27 28 4 1 has sufficient residual functional capacity (“RFC”)2 to perform 2 her past work; if so, she is not disabled and the claim must be 3 denied. 4 has the burden of proving she is unable to perform past relevant 5 work. 6 burden, a prima facie case of disability is established. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). Drouin, 966 F.2d at 1257. The claimant If the claimant meets that Id. 7 If that happens or if the claimant has no past relevant 8 work, the Commissioner then bears the burden of establishing that 9 the claimant is not disabled because she can perform other 10 substantial gainful work available in the national economy. 11 §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Drouin, 966 F.2d at 1257. 12 That determination comprises the fifth and final step in the 13 sequential analysis. 14 Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); 15 B. The ALJ’s Application of the Five-Step Process 16 The ALJ found that Plaintiff had not shown “changed 17 circumstances material to the determination of disability” since 18 her last denial and thus had not rebutted the presumption of 19 continuing disability. 20 judicata applied and adopted the findings of the prior decision. 21 (Id.) 22 23 (AR 24.) He therefore found that res He then nonetheless applied the five-step process. At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since October 15, 2011, the alleged 24 25 26 27 28 2 RFC is what a claimant can do despite existing exertional and nonexertional limitations. §§ 404.1545, 416.945; 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) (citing § 416.920(a)(4)). 5 1 disability onset date.3 2 she had the following severe impairments: “fibromyalgia; obesity; 3 Bell’s Palsy; and asthma[.]” 4 she did not have an impairment or combination of impairments that 5 met or equaled a Listing. 6 7 (AR 26.) At step two, he concluded that (Id.) At step three, he found that (AR 28.) At step four, the ALJ found that Plaintiff had the RFC to perform modified light work: 8 [She can] lift and carry 20 pounds occasionally and 10 9 pounds frequently; and sit, stand, and walk for six hours 10 each in an eight-hour workday. 11 positions every hour for one to three minutes but remain 12 at the workstation. 13 but never ladders, ropes, or scaffolds. [She] is able to 14 occasionally balance, stoop, kneel, crouch, and crawl. 15 [She] 16 manipulation. 17 noise, vibration, pulmonary irritants, and hazards. 18 19 can [She] must alternate [She] is able to occasionally climb frequently [perform] fine and gross [She] should avoid extreme cold, extreme (Id.) Based on the VE’s testimony, the ALJ concluded that 20 Plaintiff could perform her past relevant work as a “[m]ail 21 handler,” DOT 209.687-014, 1991 WL 671810 (Jan. 1, 2016), and as 22 a “[s]ales attendant (recovery clerk),” DOT 299.677-010, 1991 WL 23 672643 (Jan. 1, 2016). 24 disabled. (AR 31.) Thus, he found Plaintiff not (AR 32.) 25 26 3 27 28 Plaintiff’s SSI application lists January 1, 2012, as the disability onset date. (AR 183.) The ALJ apparently used the onset date listed on her DIB application to analyze both claims. (AR 23, 26.) 6 1 2 V. DISCUSSION4 Plaintiff argues that the ALJ erred by failing to articulate 3 appropriate reasons for rejecting her subjective symptom 4 testimony. 5 remand is not warranted. 6 A. (J. Stip. at 5-14.) For the reasons discussed below, Plaintiff Has Forfeited Her Appeal by Never Contesting 7 the ALJ’s Chavez Ruling 8 1. 9 10 Applicable law a. Chavez When an ALJ has issued a final decision finding a claimant 11 not disabled, an ALJ considering a subsequent claim regarding an 12 unadjudicated period must “apply a presumption of continuing 13 nondisability and determine that the claimant is not disabled, 14 unless the claimant rebuts the presumption.” 15 WL 742758, at *3 (Dec. 3, 1997); see also Chavez v. Bowen, 844 16 F.2d 691, 693 (9th Cir. 1988) (“The principles of res judicata 17 apply to administrative decisions, although the doctrine is 18 applied less rigidly to administrative proceedings than to 19 judicial proceedings.”). SSAR 97-4(9), 1997 A claimant may rebut the presumption of 20 21 4 22 23 24 25 26 27 28 In Lucia v. SEC, 138 S. Ct. 2044, 2055 (2018), the Supreme Court held that ALJs of the Securities and Exchange Commission are “Officers of the United States” and thus subject to the Appointments Clause. To the extent Lucia applies to Social Security ALJs, Plaintiff has forfeited the issue by failing to raise it during her administrative proceedings. (See AR 37-62, 135-36.); Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999) (as amended) (plaintiff forfeits issues not raised before ALJ or Appeals Council); see also generally Kabani & Co. v. SEC, 733 F. App’x 918, 919 (9th Cir. 2018) (rejecting Lucia challenge because plaintiff did not raise it during administrative proceedings), pet. for cert. filed, __ U.S.L.W. __ (U.S. Feb. 22, 2019) (No. 18-1117). 7 1 nondisability by showing “‘changed circumstances’ indicating a 2 greater disability.” 3 Heckler, 765 F.2d 872, 875 (9th Cir. 1985)); Lester, 81 F.3d at 4 827 (same). 5 severity of a previously existing impairment, a change in age 6 category, and any new issue, “such as the existence of an 7 impairment not considered in the previous application.” 8 81 F.3d at 827. 9 10 Chavez, 844 F.3d at 693 (quoting Taylor v. Changed circumstances include an increase in the b. Lester, Forfeiture In Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999) (as 11 amended), the Ninth Circuit held that “at least when claimants 12 are represented by counsel, they must raise all issues and 13 evidence at their administrative hearings in order to preserve 14 them on appeal” or those issues are forfeited. 15 claimant fails entirely to raise an issue before both the ALJ and 16 the Appeals Council, she “forfeits such a challenge on appeal, at 17 least when that claimant is represented by counsel.” 18 Berryhill, 883 F.3d 1102, 1109 (9th Cir. 2017) (as amended Feb. 19 28, 2018); see also Phillips v. Colvin, 593 F. App’x 683, 684 20 (9th Cir. 2015) (finding that “issue was waived5 by [claimant]’s 21 failure to raise it at the administrative level when he was 22 represented by counsel”). 23 Indeed, when a Shaibi v. Similarly, claims not raised in the district court are 24 25 26 27 28 5 Some of the cases refer to “waiver,” although the issue is actually forfeiture. See United States v. Scott, 705 F.3d 410, 415 (9th Cir. 2012) (“Waiver is the intentional relinquishment or abandonment of a known right, whereas forfeiture is the failure to make the timely assertion of that right.” (citation and alterations omitted)). 8 1 forfeited. See Greger v. Barnhart, 464 F.3d 968, 973 (9th Cir. 2 2006). 3 rule when necessary to avoid a manifest injustice.” 4 Meanel, 172 F.3d at 1115). 5 error in the trial court that is direct, obvious, and 6 observable[.]” 7 WL 1709326, at *3 (E.D. Cal. May 3, 2017) (citation omitted); see 8 also Goodman v. Colvin, No. CV–15–00807–PHX–JAT, 2016 WL 4190738, 9 at *17–18 (D. Ariz. Aug. 9, 2016) (no manifest injustice in Courts “will only excuse a failure to comply with this Id. (citing “A manifest injustice is . . . an Sanchez v. Berryhill, No. 1:15-cv-00510-EPG, 2017 10 forfeiture of claim when plaintiff failed to question VE about 11 conflicts between RFC limitations and DOT); Hinkley v. Colvin, 12 No. CV-15-00633-PHX-ESW, 2016 WL 3563663, at *10 n.7 (D. Ariz. 13 July 1, 2016) (no manifest injustice in forfeiture of claim when 14 plaintiff failed to challenge weight ALJ gave to medical 15 assessment); cf. Jones v. Colvin, No.: 2:15–cv–09489 KS, 2016 WL 16 4059624, at *3 & n.2 (C.D. Cal. July 27, 2016) (finding manifest 17 injustice when ALJ failed to reconcile RFC with DOT job 18 description because Ninth Circuit had previously found “an 19 apparent conflict between the [RFC] to perform simple, repetitive 20 tasks and the demands of Level Three Reasoning” (citation 21 omitted)). 22 In Oberg v. Astrue, 472 F. App’x 488 (9th Cir. 2012), the 23 Ninth Circuit considered whether a plaintiff had overcome the 24 continuing presumption of nondisability from a prior decision. 25 It rejected the plaintiff’s arguments that the Chavez presumption 26 did not apply because the ALJ had reopened the prior decision and 27 because there had been a substantial change in her condition and 28 the ALJ had improperly discredited her related testimony. 9 Id. at 1 489-90. 2 which would generally constitute a “waiver” of it, id. at 490 3 n.8, the court remanded for consideration of whether the 4 plaintiff’s changed age category had rebutted the presumption of 5 continuing disability under Chavez given that Defendant had 6 himself raised the issue in his answering brief. 7 Although the plaintiff had failed to raise the issue, 2. Analysis Because the ALJ applied Chavez, Plaintiff bore the burden of 8 9 Id. at 490-91. showing a changed circumstance to rebut the presumption of 10 continuing nondisability. See 844 F.2d at 693; Taylor, 765 F.2d 11 at 875. 12 the ALJ (see AR 135-36 (request for hearing), 39-62 (hearing 13 transcript)), although he confirmed at the hearing that her 14 counsel had “explained the impact of [the prior] decision to her” 15 (AR 41). 16 (AR 374-75), or in the Joint Stipulation submitted to this Court 17 (see J. Stip. at 4-14). 18 argument in the Joint Stipulation that res judicata precludes her 19 claim. 20 forfeiture argument, id. at 14-16).) She has not done so. She failed to raise the issue with She did not raise it with the Appeals Council, either Nor did she respond to Defendant’s (See id. at 20 (failing to reply to Defendant’s 21 Unlike in Oberg, 472 F. App’x at 489-90, in which the 22 plaintiff’s arguments on appeal centered on rebutting the Chavez 23 presumption, Plaintiff’s lone claim here — that the ALJ failed to 24 credit her testimony — is not framed in any terms related to 25 Chavez or the continuing presumption of nondisability. 26 Stip. at 4-14.) 27 id.) 28 ALJ reopened the prior decision or that he erred in rejecting her Indeed, she mentions neither. (See J. (See generally She does not argue, as did the plaintiff in Oberg, that the 10 1 testimony that one of her conditions had worsened and was a 2 changed circumstance. 3 contrary, her credibility claim is the garden-variety sort that 4 the Court sees frequently, alleging simply that the ALJ did not 5 give sufficient reasons for rejecting her testimony. 6 Stip. at 4-14.) 7 Greger, 464 F.3d at 973. 8 B. 9 See 472 F. App’x at 489-90. To the Accordingly, her claim is forfeited.6 (See J. See In Any Event, the ALJ Did Not Plainly Err in Partially Rejecting Plaintiff’s Subjective Symptom Statements, 10 and No Manifest Injustice Requires Reversal 11 As an initial matter, the ALJ afforded some weight to 12 Plaintiff’s subjective complaints of significant pain: he limited 13 her to light work with various restrictions, including that she 14 alternate positions every hour and only occasionally engage in 15 such activities as climbing, balancing, and stooping. 16 But to the extent the ALJ did reject her subjective complaints, 17 he provided two clear and convincing reasons for doing so. (AR 28.) 18 19 20 21 22 23 24 25 26 27 28 6 Because the ALJ found two new severe impairments since Plaintiff’s earlier denial (compare AR 68 (ALJ listing severe impairments of fibromyalgia, sleep apnea, hypertension, hearing loss, and asthma in Oct. 2011), with AR 26 (ALJ adding severe impairments of obesity and Bell’s Palsy in Apr. 2016, although eliminating others), he was likely wrong in finding that the rebuttable presumption of continuing nondisability applied — a point never raised or conceded by Defendant here, unlike in Oberg, 472 F. App’x at 490. See Lester, 81 F.3d at 827-28 (new impairment is changed circumstance rebutting presumption). Forfeiture nonetheless applies because the analysis of whether a claim is forfeited is separate from whether the underlying claim has merit. See, e.g., United States v. Drayton, No. PWG-130251., 2014 WL 2919792, at *11 (D. Md. June 26, 2014) (noting that claim “may have had merit” but nonetheless refusing to consider it because Defendant had not raised it at trial or on appeal). 11 1 First, he noted Plaintiff’s failure to follow prescribed 2 courses of treatment, explaining that she “reportedly stopped 3 taking all of her medications despite being encouraged to 4 continue taking them, because she was convinced they were making 5 her worse.” 6 visit indicating that Plaintiff had discontinued all 7 medications).) 8 therapy. 9 therapy); see also AR 54 (plaintiff testifying at hearing that (AR 30 (citing AR 391 (notes from May 2013 office He also noted her failure to pursue physical (AR 29 (citing AR 463 (Mar. 2015 referral to physical 10 she went to physical therapy only once because it “hurt too 11 much”).) 12 That Plaintiff failed to follow prescribed courses of 13 treatment was a clear and convincing reason for discrediting her 14 allegations of disabling pain. 15 F.3d 1035, 1039 (9th Cir. 2008) (ALJ may discount claimant’s 16 testimony in light of “unexplained or inadequately explained 17 failure to seek treatment or to follow a prescribed course of 18 treatment” (citation omitted)); see also SSR 16-3p, 2016 WL 19 1119029, at *8 (Mar. 16, 2016)7 (“[I]f the individual fails to See Tommasetti v. Astrue, 533 20 21 22 23 24 25 26 7 The Commissioner applies SSR 16-3p, which went into effect a few weeks before the ALJ issued his decision, to all “determinations and decisions on or after March 28, 2016.” Soc. Sec. Admin., Policy Interpretation Ruling, SSR 16-3p n.27, https://www.ssa.gov/OPHome/rulings/di/01/SSR2016-03-di-01.html (last visited Mar. 22, 2019). Though the new ruling eliminates the term “credibility” and focuses on “consistency” instead, Plaintiff refers to weighing “credibility” (J. Stip. at 5), and much of the relevant case law uses that language too (see, e.g., id. at 5-6, 8-9 (discussing applicable case law)). As the Ninth Circuit has clarified, SSR 16-3p 27 28 makes clear what our precedent already required: that assessments of an individual’s testimony by an ALJ are 12 1 follow prescribed treatment that might improve symptoms, we may 2 find the alleged intensity and persistence of an individual’s 3 symptoms are inconsistent with the overall evidence of record.”); 4 see also Donathan v. Astrue, 264 F. App’x 556, 558 (9th Cir. 5 2008) (finding that ALJ provided clear and convincing reasons for 6 rejecting claimant’s subjective allegations regarding 7 fibromyalgia pain, including “unwillingness to seriously pursue 8 prescribed physical and medical therapies” and inconsistencies 9 regarding his need to use cane or scooter).8 10 Second, the ALJ properly discounted some of Plaintiff’s 11 statements by identifying inconsistencies concerning them. (See 12 AR 29-31); Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 13 1161 (9th Cir. 2008); see also Smith v. Berryhill, 752 F. App’x 14 473, 475 (9th Cir. 2019) (ALJ properly discredited claimant’s 15 testimony of fibromyalgia symptoms based on inconsistencies in 16 testimony, inconsistencies with activities of daily living, and 17 contradictory medical evidence); Haislip v. Astrue, 316 F. App’x 18 19 20 21 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. 22 23 24 25 26 27 28 Trevizo v. Berryhill, 871 F.3d 664, 678 n.5 (9th Cir. 2017) (as amended) (alterations in original) (quoting SSR 16-3p). 8 Plaintiff argues that all treatment for fibromyalgia is conservative in nature, and thus the ALJ improperly relied on her purportedly conservative treatment to discredit her subjective symptom testimony. (J. Stip. at 11-12.) As explained above, however, he found her not credible based in part on her failure to follow her doctors’ prescribed courses of treatment — medication and physical therapy — not because such treatment was conservative in nature. (See AR 29-30.) 13 1 538, 539 (9th Cir. 2008) (ALJ properly discounted claimant’s 2 subjective symptoms relating to fibromyalgia and migraines by 3 noting lack of objective medical evidence to support them, 4 inconsistencies between allegations and medical record, and 5 conflicts between alleged symptoms and activities of daily 6 living). 7 her statements that she had problems walking and needed a cane. 8 (See AR 30 (citing AR 537 (no cane at Aug. 2013 emergency-room 9 visit) & 559 (doctor at hospital noting that Plaintiff was For example, the ALJ noted that evidence contradicted 10 ambulatory, with steady gait).) 11 testimony about difficulty breathing while walking. 12 As the ALJ noted, her treatment records from August 2013 13 indicated normal breathing, with the last asthma attack more than 14 a year before then. 15 record contained no evidence of any subsequent asthma attacks 16 (id.) and that diagnostic images of her chest from 2012 and 2014 17 revealed negative findings (id. (citing AR 410 (May 2012), 431 18 (Jan. 2012), 619 (Jan. 2014))). The record also contradicted her (Id. (citing AR 550).) (See AR 31.) He noted that the 19 Plaintiff claims that the ALJ rejected her symptom testimony 20 based on the “legally insufficient” “belief that the testimony is 21 not credible because it lacks objective support in the record.”9 22 (J. Stip. at 9.) 23 rejected on the sole ground that it is not fully corroborated by 24 objective medical evidence, the medical evidence is still a “While subjective pain testimony cannot be 25 26 27 28 9 She also claims that the ALJ merely recited “boilerplate” language and provided “no clue” as to what weight he gave her testimony. (J. Stip. at 8-9.) This argument is disingenuous, as the “boilerplate” is followed by the ALJ’s lengthy evaluation of her testimony and the evidence of record. (See AR 30-31.) 14 1 relevant factor in determining the severity of the claimant's 2 pain and its disabling effects.” 3 853, 857 (9th Cir. 2001) (holding that ALJ properly relied on 4 lack of objective medical evidence and other factors in 5 discrediting plaintiff’s testimony about fibromyalgia symptoms 6 (citing 20 C.F.R. § 404.1529(c)(2))). 7 above, the ALJ gave two valid reasons to support his partially 8 discrediting her testimony that she suffered from disabling pain: 9 her failure to follow prescribed courses of treatment and Rollins v. Massanari, 261 F.3d In any event, as explained 10 specific inconsistencies between her complaints and the evidence 11 of record. (AR 30.) 12 Accordingly, the ALJ appears to have provided clear and 13 convincing reasons, supported by substantial evidence in the 14 record, to support his discounting of Plaintiff’s subjective 15 symptom testimony, and no manifest injustice will result from not 16 considering her appeal because it has been forfeited. 17 VI. 18 19 CONCLUSION Consistent with the foregoing and under sentence four of 42 U.S.C. § 405(g),10 IT IS ORDERED that judgment be entered 20 21 22 23 24 25 26 27 28 10 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.” 15 1 AFFIRMING the Commissioner’s decision, DENYING Plaintiff’s 2 request for reversal or remand, and DISMISSING this action with 3 prejudice. 4 5 6 7 DATED: March 25, 2019 ______________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16
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