Athanas v. Commissioner of Social Security Administration ( 2021 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Amanda G. Athanas, No. CV-20-02292-PHX-MTL 10 Plaintiff, ORDER 11 v. 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Plaintiff Amanda G. Athanas challenges the Social Security Administration’s 16 (“SSA”) determination that she did not qualify for Disability Insurance Benefits (“DIB”) 17 under Title II of the Social Security Act (“Act”) because she is not disabled. 18 (Doc. 13 at 12–31, 42–68.) Athanas filed a Complaint with this Court seeking judicial 19 review of that determination. (Doc. 1.) The Court has reviewed the briefs and the 20 Administrative Record (Doc. 13, “AR”) and now affirms the administrative law judge’s 21 (“ALJ“) decision (AR at 12–31). 22 I. BACKGROUND 23 On October 29, 2014, Athanas filed her application for DIB, alleging that she had 24 been disabled since February 17, 2010. (AR at 139, 303.) The Commissioner denied 25 Athanas’ application initially and on reconsideration. (AR at 171–74, 178–81.) Athanas 26 appeared at a hearing on September 15, 2017, before an ALJ, Carla Waters, who considered 27 whether Athanas has been disabled since February 17, 2010. (AR at 69–98.) On March 5, 28 2018, Waters issued a written decision finding Athanas not disabled. (AR at 136–63.) 1 Athanas requested review of her claim and on December 10, 2019, the Appeals Council 2 remanded the claim. (AR at 164–68.) A second hearing was held before a different ALJ, 3 Guy Fletcher, on March 24, 2020. (AR at 42–68.) In a decision dated May 28, 2020, 4 Fletcher found Athanas not disabled. (AR at 12–31.) Athanas again requested review of 5 her claim, but this time the Appeals Council denied review, making the ALJ’s decision 6 final and ripe for this Court’s review. (AR at 1–6, 294–302.) Athanas now seeks judicial 7 review of the Commissioner’s decision pursuant to 42 U.S.C. § 405(g). 8 After reviewing and considering the medical opinions and records, the ALJ 9 evaluated Athanas’ disability based on the following severe impairments: morbid obesity, 10 hypothyroidism, fibromyalgia, degenerative disc disease, aneurysm, status post right 11 hemicolectomy, right foot osteoarthritis, obstructive sleep apnea, and polycystic ovary 12 syndrome. (AR at 19–22.) In making this determination, the ALJ reviewed the entire 13 record, including medical records and opinions and statements from Athanas. (AR at 18– 14 25.) The ALJ also evaluated Athanas’ “medically determinable mental impairments of 15 depression and attention deficit disorder, considered singly and in combination” and 16 determined that they “did not cause more than minimal limitation in the claimant’s ability 17 to perform basic mental work activities and were, therefore, non-severe.” (AR at 22; 18 see AR at 22–25.) When making the mental health determination, the ALJ reviewed the 19 entire record, including medical records and statements from Athanas, opinion evidence, 20 and “the four functional areas defined within disability regulations for evaluating mental 21 disorders.” (Id.) The ALJ found that “[t]he severity of the [Athanas’] physical impairments, 22 considered singly and in combination, did not meet or medically equal the criteria of any 23 impairment listed in Appendix 1 of the Regulations (20 CFR, Subpart P, Appendix 1).” 24 (AR at 25.) 25 Next, the ALJ calculated Athanas’ residual functional capacity (“RFC”). The ALJ 26 determined that Athanas had the RFC to perform light work with the additional 27 accommodation that she be provided access to a restroom that is at most a 10-min walk 28 from her workstation given her colorectal surgeries and irritable bowel syndrome. 1 (AR at 26.) When determining Athanas’ RFC, the ALJ analyzed conflicting medical and 2 opinion evidence. (AR at 25–30.) Nevertheless, the ALJ found that the medical record 3 demonstrates functional abilities and behaviors inconsistent with the duration, frequency, 4 and severity of Athanas’ alleged limitations. (Id.) Based on Athanas’ RFC, the ALJ 5 determined that she could perform past relevant work as a legal secretary. (AR at 30–31.) 6 Accordingly, the ALJ found that Athanas was not disabled during the relevant period. 7 (AR at 31.) 8 II. STANDARD OF REVIEW 9 In determining whether to reverse an ALJ’s decision, the district court reviews only 10 those issues raised by the party challenging the decision. See Lewis v. Apfel, 236 F.3d 503, 11 517 n.13 (9th Cir. 2001). The Court may set aside the Commissioner’s disability 12 determination only if it is not supported by substantial evidence or is based on legal error. 13 Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is more than a 14 scintilla, but less than a preponderance; it is relevant evidence that a reasonable person 15 might accept as adequate to support a conclusion considering the record as a whole. Id. To 16 determine whether substantial evidence supports a decision, the Court must consider the 17 record as a whole and may not affirm simply by isolating a “specific quantum of supporting 18 evidence.” Id. Generally, “[w]here the evidence is susceptible to more than one rational 19 interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be 20 upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citation omitted). Finally, 21 the Court may not reverse an ALJ’s decision on account of an error that is harmless. Stout 22 v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1055–56 (9th Cir. 2006). “The burden of 23 showing that an error is harmful normally falls upon the party attacking the agency’s 24 determination.” Molina v. Astrue, 674 F.3d 1104, 1119 n.11 (9th Cir. 2012) (quoting 25 Shinseki v. Sanders, 556 U.S. 396, 409 (2009)). “An error is harmless if it is 26 inconsequential to the ultimate nondisability determination, or if the agency’s path may 27 reasonably be discerned, even if the agency explains its decision with less than ideal 28 clarity.” Treichler v. Comm’r of Soc. Sec., 775 F.3d 1090, 1099 (9th Cir. 2014) (citations 1 and internal quotation marks omitted). 2 To determine whether a claimant is disabled, the ALJ follows a five-step process. 3 20 C.F.R. § 404.1520(a). The claimant bears the burden of proof on the first four steps, but 4 the burden shifts to the Commissioner at step five. Tackett v. Apfel, 180 F.3d 1094, 1098 5 (9th Cir. 1999). At the first step, the ALJ determines whether the claimant is presently 6 engaging in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant 7 is not disabled, and the inquiry ends. Id. At step two, the ALJ determines whether the 8 claimant has a “severe” medically determinable physical or mental impairment. Id. 9 § 404.1520(a)(4)(ii). If not, the claimant is not disabled, and the inquiry ends. Id. At step 10 three, the ALJ considers whether the claimant’s impairment or combination of impairments 11 meets or medically equals an impairment listed in Appendix 1 to Subpart P of 20 C.F.R. 12 Part 404. Id. § 404.1520(a)(4)(iii). If so, the claimant is automatically found to be disabled. 13 Id. If not, the ALJ proceeds to step four. Id. At step four, the ALJ assesses the claimant’s 14 RFC and determines whether the claimant is still capable of performing past relevant work. 15 Id. § 404.1520(a)(4)(iv). If so, the claimant is not disabled, and the inquiry ends. Id. If not, 16 the ALJ proceeds to the fifth and final step, where the ALJ determines whether the claimant 17 can perform any other work in the national economy based on the claimant’s RFC, age, 18 education, and work experience. Id. § 404.1520(a)(4)(v). If so, the claimant is not disabled. 19 Id. If not, the claimant is disabled. Id. 20 III. DISCUSSION 21 Athanas raises three arguments. First, she argues that the ALJ failed to properly 22 weigh the medical opinion evidence and failed to properly determine her RFC. 23 (Doc. 18 at 24–32.) Second, the ALJ erred by finding her mental impairments non-severe. 24 (Id. at 33–39.) Third, she argues the ALJ failed to properly evaluate her subjective 25 statements. (Id. at 39–42.) As addressed below, the Court disagrees with Athanas on all 26 three challenges and affirms the ALJ’s decision. 27 A. Medical Opinion Evidence and RFC 28 Although an ALJ must consider all the medical evidence in the record, medical 1 opinion sources are separated into three types: (1) treating physicians (who treat a 2 claimant), (2) examining physicians (who examine but do not treat a claimant), and 3 (3) non-examining physicians (who do not examine or treat a claimant). Lester v. Chater, 4 81 F.3d 821, 830 (9th Cir. 1995) (superseded by statute on other grounds). For disability 5 benefit applications filed prior to March 27, 2017, treating medical sources are generally 6 given more weight than non-examining sources due to a treating physician’s heightened 7 familiarity with a claimant’s condition. 20 C.F.R. § 404.1527(a)(2). If the ALJ declines to 8 give controlling weight to a treating source’s opinion, the ALJ must consider several 9 factors—including the examining relationship, treatment relationship, the length and 10 nature of treatment, supportability, consistency, and specialization, among other factors— 11 in deciding how to weigh the source’s opinion. 20 C.F.R. § 404.1527(c). The ALJ must 12 thereafter provide an explanation for the weight given to each medical source. 20 C.F.R. 13 § 404.1527(f)(2). If certain evidence contradicts a treating physician’s opinion, the ALJ 14 must provide “specific and legitimate reasons supported by substantial evidence” for 15 rejecting that physician’s opinion. Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) 16 (citing Lester, 81 F.3d at 830) (internal citation marks omitted). 17 Despite the deference generally afforded to treating physicians, the ALJ is not 18 required to rely on them. If a treating physician’s opinion is not “well-supported by 19 medically acceptable clinical and laboratory diagnostic techniques” or is “inconsistent with 20 the other substantial evidence in [the] case record,” the ALJ need not give it controlling 21 weight. Id. § 404.1527(c)(2); see also Tonapetyan v. Halter, 242 F.3d 1144, 1149 22 (9th Cir. 2001) (an ALJ may discredit treating physicians’ opinions that are conclusory, 23 brief, and unsupported by the record as a whole or by objective medical findings). If a 24 treating physician’s opinion is not given controlling weight, the ALJ must consider the 25 factors listed in 20 C.F.R. § 404.1527(c) in assigning its relative weight. When rejecting a 26 treating physician’s testimony, “the ALJ must do more than offer his conclusions. He must 27 set forth his own interpretations and explain why they, rather than the doctors’, are correct.” 28 Orn, 495 F.3d at 631 (citing Embrey v. Bowen, 849 F.2d 418, 421–22 (9th Cir. 1988)). 1 In laymen’s terms, RFC is what the claimant can do in a work environment in spite 2 of their disabilities or limitations. See 20 C.F.R. §§ 404.1545(a), 416.945(a). The Social 3 Security regulations define RFC as the “maximum degree to which the individual retains 4 the capacity for sustained performance of the physical-mental requirements of jobs.” 5 20 C.F.R. Part 404, Subpt. P, App. 2, § 200.00(c). “The ALJ assesses a claimant’s RFC 6 based on all the relevant evidence in [the] case record,” to determine the claimant’s 7 capacity for work. Laborin v. Berryhill, 867 F.3d 1151, 1153 (9th Cir. 2017) (quotation 8 marks and citation omitted); see 20 C.F.R. §§ 404.1545(a), 416.945(a). The ALJ should 9 consider a claimant’s ability to meet physical and mental demands, sensory requirements, 10 and other functions. See 20 C.F.R. §§ 404.1545(b)–(d), 416.945(b)–(d). “[I]n assessing 11 RFC, the adjudicator must consider limitations and restrictions imposed by all of an 12 individual’s impairments, even those that are not ‘severe.’ The RFC therefore should be 13 exactly the same regardless of whether certain impairments are considered ‘severe’ or not.” 14 Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017) (cleaned up). Additionally, 15 The RFC assessment must contain a thorough discussion and 16 analysis of the objective medical and other evidence, including 17 the individual’s complaints of pain and other symptoms and the adjudicator’s personal observations, if appropriate. In other 18 words, the ALJ must take the claimant’s subjective experiences 19 of pain into account when determining the RFC. 20 21 Laborin, 867 F.3d at 1153 (cleaned up). 22 “At step four, a claimant has the burden to prove that he cannot perform his past 23 relevant work ‘either as actually performed or as generally performed in the national 24 economy.’” Stacy v. Colvin, 825 F.3d 563, 569 (9th Cir. 2016) (quoting Lewis v. Barnhart, 25 281 F.3d 1081, 1083 (9th Cir. 2002)). “An individual shall be determined to be under a 26 disability only if his physical or mental impairment or impairments are of such severity 27 that he is not only unable to do his previous work but cannot, considering his age, 28 education, and work experience, engage in any other kind of substantial gainful work which 1 exists in the national economy . . . .” 42 U.S.C. § 423(d)(2)(A). An ALJ is free to consider 2 any activities that “may be seen as inconsistent with the presence of a condition which 3 would preclude all work activity.” Curry v. Sullivan, 925 F.2d 1127, 1130 (9th Cir. 1990). 4 It is well established that an ALJ is also empowered to note a claimant’s daily activities 5 that “‘involv[e] the performance of physical functions that are transferable to a work 6 setting.’” Orn, 495 F.3d at 639 (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). 7 Athanas argues the ALJ erred by giving minimal weight to the opinions of Dr. 8 Nolan, Dr. Crincoli, and Dr. Ramsey. (Doc. 18 at 25.) Athanas asserts the ALJ’s label was 9 “erroneous” because “[h]e grossly mischaracterized the record by concluding that their 10 opinions are unexplained and unsupported.” (Id. at 25–26.) She supports this assertion by 11 highlighting the evidence on which each doctor relied when making their findings. 12 (Id. at 26.) Athanas then explains the unique nature of fibromyalgia and how diagnosing it 13 is unlike other diseases. (See id. at 26–27.) 14 After that, Athanas argues that the ALJ focused on the wrong evidence. (Id. at 28.) 15 Rather than focusing on “the evidence relevant to Ms. Athanas’ fibromyalgia,” she argues, 16 the ALJ “focused on [her] ‘conservative’ treatment that provided some modest 17 improvement of [her] symptoms.” (Id.) In particular, Athanas argues that whether a 18 claimant has improved “must be viewed in light of the overall diagnostic record” because 19 “there can be a great distance between a patient who responds to treatment and one who is 20 able to enter the workforce.” (Id.) Athanas asserts that the ALJ failed to rely on evidence 21 that her treatment “resulted in significant improvement to a degree that conflicts with the 22 opinions form the treating medical sources.” (Id.) Athanas also argues that this failure is 23 particularly significant in cases involving fibromyalgia because “an individual’s statements 24 ‘cannot be discredited for failing to pursue non-conservative treatment options’ when ‘none 25 exist’ for the condition, such as for fibromyalgia.” (Id.) 26 Athanas argues that the ALJ did not properly weigh the evidence regarding her daily 27 activities. (Id. at 29.) Athanas asserts that there was insufficient evidence for the ALJ to 28 determine that she regularly engages in activities that contradict the opinions of her doctors. 1 (Id.) She also argues that the ALJ failed to identify substantial evidence contradicting Dr. 2 Nolan, Dr. Crincoli, and Dr. Ramsey’s opinions. (Id. at 30.) Thus, she argues, the doctors’ 3 assessments of Athanas’ should be controlling. (Id.) 4 Finally, Athanas argues that, even if the doctor’s opinions should not be controlling, 5 they should be entitled to deference and “weighed using all of the factors provided in 6 20 C.F.R. § 404.1527.” (Id. at 31.) Athanas notes that, sometimes, “a treating source’s 7 medical opinion will be entitled to the greatest weight and adopted, even if it does not meet 8 the test for controlling weight.” (Id.) Athanas asserts that the ALJ’s analysis of Dr. Crincoli, 9 Dr. Nolan, and Dr. Ramsey’s opinions was not in-depth enough and ignored many of the 10 factors it should have considered. (Id.) Failure to recognize these factors, Athanas argues, 11 requires a remand. (Id.) 12 Regarding Athanas’ RFC, she also argues that the ALJ incorrectly concluded she 13 could perform light work because the ALJ did not properly weight the opinions of her 14 doctors. (Id. at 32.) Additionally, Athanas argues that the ALJ “failed to explain what 15 evidence” supported his conclusion that she could perform light work. (Id.) Specifically, 16 Athanas highlights that RFC assessments must “include a narrative discussion describing 17 how the evidence supports each conclusion, citing” specific medical facts and nonmedical 18 evidence. (Id.) She asserts that the ALJ failed to identify medical facts or persuasive 19 nonmedical facts that support his conclusion. (Id.) Thus, for this independent reason, 20 Athanas argues this case should be remanded. (Id.) 21 The Commissioner argues that the ALJ “properly discounted Dr. Nolan’s, Dr. 22 Crincoli’s, and Dr. Ramsey’s” medical opinions by finding “that their conclusions merited 23 no significant weight” because they “simply set forth their conclusions in a form with 24 practically no explanation.” (Doc. 21 at 5, 8.) The Commissioner asserts that all three 25 doctors “completed questionnaires that largely limited [Athanas] to the same functional 26 limitations,” but the ALJ was correct to conclude that “the objective medical evidence did 27 not corroborate their conclusions regarding the extent of [Athanas’] physical limitations.” 28 (Id. at 7.) The Commissioner argues that the ALJ correctly noted that Athanas presented a 1 normal range of motion, strength, and stability in her extremities during examinations and 2 that there “was no objective medical evidence supporting limitations related to [her] 3 hands.” (Id.) 4 Next, the Commissioner argues that the ALJ was correct to discount these three 5 doctor’s opinions because the opinions did not provide explanations for the “extreme 6 limitations” they proposed. (Id.) The ALJ was entitled to do this, the Commissioner argues, 7 because ALJs are empowered “to reject an opinion that [does] not explain the basis for the 8 opinion.” (Id.) The Commissioner also argues that the questionnaires did not support 9 clinical findings or provide objective proof of the limitations the doctors proposed. (Id.) 10 Instead, the Commissioner asserts that the questionnaires merely generically referenced 11 fibromyalgia and pain. (Id.) The Commissioner then highlights contradictory results that 12 the questionnaires yielded in support of this argument. (Id. at 8.) For example, all three 13 doctors noted that Athanas could never, rarely, or only occasionally grasp or finger, yet 14 none of them reported that Athanas felt pain in her hands or lower arm. (Id.) What is more, 15 the Commissioner notes that the doctors failed to discuss “how the severity, frequency, or 16 duration of Plaintiff’s symptoms might cause the disabling functional limitations they 17 proposed.” (Id.) The Commissioner asserts that none of the doctors reconcile this apparent 18 discrepancy. (Id.) The Commissioner also notes that Dr. Ramsey “failed to explain why he 19 initially opined that he had ‘no idea not my specialty’ in response to Plaintiff’s functional 20 limitations, but then changed his opinion to the disabling limitations” in his report. (Id.) 21 The Commissioner further argues that it was reasonable for the ALJ to conclude 22 that the medical opinions “were heavily influenced by [Athanas’] subjective allegations.” 23 (Id.) The Commissioner notes that Dr. Nolan spent the entirety of the fifteen-minute visit 24 in December 2014 filling out the questionnaire, Dr. Crincoli has only seen Athanas twice 25 with a large part of those visits spent filling out disability paperwork, and Dr. Ramsey had 26 not seen Athanas in about a year and a half when completing the January 2015 27 questionnaire. (Id.) The Commissioner also highlights that the visits on the dates when the 28 questionnaires were filled out “completely lacked significant physical findings that 1 supported the extreme limitations they proposed.” (Id.) 2 The Commissioner maintains that the ALJ correctly discounted the medical 3 opinions because, in stark contrast to the severe limitations the doctors diagnosed, the 4 prescribed treatments were conservative. (Id. at 9.) This evidence, Commissioner argues, 5 could allow the ALJ to reasonably find that Athanas required more aggressive treatment 6 than that which she was prescribed. (Id.) 7 Finally, the Commissioner argues that the ALJ reasonably found that the medical 8 opinions were “at odds with [Athanas’] own admission about her level of activity.” (Id.) 9 For example, although all three doctors opined that Athanas “had extreme limitations in 10 sitting, standing, grasping, fingering, reaching, and maintaining attention and 11 concentration,” she “used an elliptical, walked up to six miles per week, went to the gym, 12 swam, lifted weights, traveled extensively, drove, shopped in stores, prepared simple 13 meals, mopped, and performed other household chores.” (Id. (citing (AR at 27, 59, 367– 14 70, 1333, 1345, 1395, 1469, and 2250))) Because “this Court is precluded from reweighing 15 the evidence and is obliged to uphold the ALJ’s own reasonable interpretation of the 16 evidence,” the Commissioner argues, “this Court should affirm.” (Id. at 10.) 17 It was reasonable for the ALJ to find that Dr. Nolan, Dr. Crincoli, and Dr. Ramsey’s 18 medical opinions were not well supported, to not give them controlling weight, and to 19 assign them minimal weight. Given the limited persuasive value of these medical opinions, 20 the ALJ’s RFC determination was reasonable and the ALJ’s decision should be affirmed. 21 1. Dr. Ramsey’s Medical Opinion 22 The ALJ gave one of Dr. Ramsey’s opinions, a summary of her care for Athanas, 23 “partial weight” where Dr. Ramsey “noted that pain, weight, and fatigue limited her 24 activities.” (AR at 28, 2050.) The ALJ could not give that opinion more weight because 25 Dr. Ramsey had a lengthy gap in treatment, about a year and a half, during the relevant 26 time period of Athanas’ disability claim. (AR at 28, 2223–37.) Dr. Ramsey also noted on 27 this form that she was not currently treating Athanas. (Id.) This reduced the weight assigned 28 by the ALJ. (Id.) What is more, the treatment notes that were taken lacked objective 1 medical information that could support Dr. Ramsey’s medical opinion regarding the 2 severity of Athanas’ disability. (See id.) 3 It was also reasonable for the ALJ to assign minimal weight to Dr. Ramsey’s other 4 opinions. First, the ALJ’s conclusion that the September 2006 letter Dr. Ramsey wrote is 5 not relevant was reasonable because, as the ALJ notes, it “was provided prior to the period 6 at issue and provides no insight to the claimant’s conditions during the period of review.” 7 (AR. at 28, 2271.) Second, the ALJ’s decision to assign minimal weight to Dr. Ramsey’s 8 January 2015 Disability Impairment Questionnaire was reasonable. (AR. at 28, 2223–29.) 9 As the ALJ explained, “[Ramsey] advised that [Athanas’] primary symptom was the 10 inability to lose weight,” but Dr. Ramsey “declined to answer questions regarding 11 functional capacity, likelihood of absences, or contributing factors to symptoms and 12 limitations, writing that she had ‘no idea’ as they were not her specialty.” (AR at 28.) The 13 ALJ also correctly noted that Dr. Ramsey “did indicate [Athanas] had no significant 14 limitations in reaching, handling, or fingering,” but “the opinion [was] generally 15 incomplete, nonspecific, and insufficient to assess further functional limitations.” 16 (AR at 28.) 17 Finally, Dr. Ramsey completed two Multiple Impairment Questionnaires in January 18 2019 and April 2020. (AR at 28, 2324–29, 2535–40.) Based on these questionnaires, Dr. 19 Ramsey determined that Athanas could sit for one hour and stand or walk less than one 20 hour in an 8-hour work day; would need to get up from a seated position every 45 minutes 21 and not return to a seated position for at least 20 minutes; could occasionally lift and carry 22 up to 20 pounds; would miss work at least three times a month; could never use her right 23 extremity for reaching, handling, or fingering; and could occasionally use her right 24 extremity for reaching, handling, or fingering. (AR at 28, 2324–29, 2535–40.) But, as the 25 ALJ rightly noted, Dr. Ramsey provided no explanation on the form to support these 26 conclusions. (AR at 28.) The ALJ also correctly noted that Athanas’ medical record does 27 not support the reaching, handling, or finger limitations. (AR at 28–29.) Finally, the ALJ 28 correctly noted that these restrictions are not consistent with Athanas’ activities or her 1 treatment regimen. (AR at 29.) The ALJ properly noted that, during this period, Athanas 2 used an elliptical, walked up to six miles per week, went to the gym, swam, lifted weights, 3 traveled extensively, drove, shopped in stores, prepared simple meals, mopped, and 4 performed household chores. (AR at 27, 59, 367–70, 691, 1333, 1345, 1395, 1469, 2250.) 5 She also applied to at least 100 jobs and had 20 interviews. (AR at 50.) Even when 6 considering a rare and relatively unknown disease like fibromyalgia, ALJs need not accept 7 medical conclusions without an explanation beyond, “because I said so.” Thus, the ALJ’s 8 analysis of Dr. Ramsey’s medical opinions was reasonable and will be affirmed. 9 2. Dr. Nolan’s Medical Opinion 10 In December 2014, August 2017, and August 2018, Dr. Nolan completed three 11 Fibromyalgia Questionnaire forms for Athanas. (AR at 29, 1322–27, 2233–37, 2319–23.) 12 Dr. Nolan noted on the 2014 form that Athanas met the American College of 13 Rheumatology’s criteria for fibromyalgia and confirmed with Robaxin treatment. 14 (AR at 29.) All three questionnaires had a nearly identical set of restrictions listed as Dr. 15 Ramsey’s questionnaire. Dr. Nolan also wrote an open letter in December 2015 explaining 16 Athanas’ treatment history with him since April 2014. (AR at 29, 1973–74.) In contrast to 17 Athanas’ own personal statements, Dr. Nolan stated in that letter that Athanas quit working 18 because of her fibromyalgia. (AR at 29, 1297, 1973–74.) Dr. Nolan also wrote a letter 19 excusing Athanas from jury duty due to her medical conditions. (AR at 29, 2027–30.) 20 The ALJ reasonably gave Dr. Nolan’s medical opinion minimal weight. At the 21 December 2014 visit, Dr. Nolan spent the entire time with Athanas filling out the form. 22 (AR at 29, 1641–48.) The December form also contained no explanation for Dr. Nolan’s 23 conclusions. (Id.) As with Dr. Ramsey’s medical opinions, the sitting and standing 24 restrictions appear plausible but have no accompanying explanation, and the reaching, 25 handling, and fingering restrictions are not supported in the medical record. (AR at 29.) 26 The ALJ also reasonably identified that Dr. Nolan’s prescribed limitations for Athanas’ 27 work environment are not consistent with her reported activities or her course of treatment. 28 (Id.) Specifically, Dr. Nolan’s reports do not explain why he did not adjust Athanas’ 1 prescription when she responded positively to medication despite her—apparently 2 debilitating—symptoms persisting. Thus, the ALJ’s analysis of Dr. Nolan’s medical 3 opinions was reasonable and will be affirmed. 4 3. Dr. Crincoli’s Medical Opinion 5 In February 2015, Dr. Crincoli completed a Disability Impairment Questionnaire 6 form. (AR at 29, 1659–63.) This form had a nearly identical medical recommendation as 7 those completed by Dr. Ramsey and Dr. Nolan. (See id.) For the same reasons that the ALJ 8 was right to give Dr. Nolan and Dr. Ramsey’s opinions minimal weight, it was reasonable 9 for the ALJ to give Dr. Crincoli’s February 2015 medical opinion minimal weight. (Id.) 10 Dr. Crincoli only saw Athanas twice and the bulk of their time together was spent filling 11 out disability paperwork. (AR at 1667–1700.) As with Dr. Nolan and Dr. Ramsey’s 12 opinions, Dr. Crincoli did not explain why Athanas was unable to sit longer than an hour 13 and use her arms, hands, or fingers at work. (AR at 29, 1659–63.) Specifically, as noted 14 above, there is no pathology, consistent complaint, or any medical evidence in the record 15 to support his conclusion that Athanas’ could not use her arms, hands, and fingers. 16 (AR at 29.) Thus, the ALJ’s analysis of Dr. Crincoli’s medical opinions was reasonable 17 and will be affirmed. 18 4. The ALJ’s RFC Determination 19 Given the medical evidence, the ALJ reasonably determined that Athanas’ disability 20 limited her to light work with the additional restriction that she requires restroom access 21 within a 10-minute walk of her workstation.1 (AR at 25.) As the ALJ’s opinion 22 demonstrates, he properly considered the medical evidence presented after appropriately 23 weighing the evidence before determining Athanas’ RFC. (See AR at 25–30.) The ALJ 24 1 “Light work involves lifting no more than 20 pounds at a time with frequent lifting or 25 carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when 26 it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have 27 the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting 28 factors such as loss of fine dexterity or inability to sit for long periods of time.” 20 C.F.R. § 404.1567(b). 1 accomplished this through not only an extensive discussion of the medical evidence, but 2 also the personalized RFC restroom parameter that he incorporated into Athanas’ RFC. 3 (Id.) For example, the ALJ reasonably determined to weigh some medical opinions less 4 than others given Athanas’ lifestyle choices and activities, and Athanas’ lifestyle was 5 considered during the RFC analysis. (Id.) The ALJ also considered the medication Athanas 6 has taken to alleviate her symptoms; her refusal to take medication and her unwillingness 7 to stick to a prescribed medication regimen; her two colorectal surgeries; her subjective 8 statements; her history of chiropractic care and back pain; her physical therapy history, 9 including the fact that her physical therapist determined “that she was fully functional and 10 able to demonstrate tasks such as squatting, climbing stairs, and ambulating on a level 11 surface;” and the medical opinions of Dr. Brown, Dr. Nolan, Dr. Ramsey, Dr. Crincoli, and 12 Dr. Goldberg. (See id.) Thus, the ALJ’s RFC determination was reasonable and will be 13 affirmed. 14 B. Mental Impairment Severity 15 When evaluating mental impairment severity, ALJs must follow a two-step 16 procedure. See 20 C.F.R. §§ 404.1520a(a), 416.920a(a). The first step requires evaluating 17 a claimant’s “pertinent symptoms, signs, and laboratory findings to determine whether 18 [claimant has] a medically determinable mental impairment[].” 20 C.F.R. 19 §§ 404.1520a(b)(1), 416.920a(b)(1). In doing so, the ALJ must also “specify the 20 symptoms, signs, and laboratory findings that substantiate the presence of [each 21 determined] impairment and document [the] findings . . . .” 20 C.F.R. §§ 404.1520a(b)(1), 22 416.920a(b)(1). 23 The second step involves the ALJ rating “the degree of functional limitation 24 resulting from [claimant’s] impairment.” 20 C.F.R. §§ 404.1520a(b)(2), 416.920a(b)(2). 25 This process varies case-by-case. For every claimant, the ALJ must consider every piece 26 of relevant evidence and determine the degree to which the claimant’s “ability to function 27 independently, appropriately, effectively, and on a sustained basis” is hindered by his or 28 her mental impairment. 20 C.F.R. §§ 404.1520a(c), 416.920a(c). The ALJ does this by 1 rating the claimant’s degree of functional limitation in four areas: “Understand, remember, 2 or apply information; interact with others; concentrate, persist, or maintain pace; and adapt 3 or manage oneself.” Id. The rating system is based on a five-point scale: “None, mild, 4 moderate, marked, and extreme.” Id. Beyond this determination, an “ALJ [is] not required 5 to make any more specific findings of the claimant’s functional limitations.” Hoopai v. 6 Astrue, 499 F.3d 1071, 1077–78 (9th Cir. 2007). Next, the ALJ determines the severity of 7 the mental impairment. See 20 C.F.R. §§ 404.1520a(d), 416.920a(d). During this process, 8 to explain and record his or her administrative review, an ALJ must provide the proper 9 documentation including a standard document accounting how the technique was applied. 10 See 20 C.F.R. §§ 404.1520a(e), 416.920a(e). Later reviews by written decision must also 11 “document application of the technique.” See id. 12 Athanas argues that the ALJ erred when determining that her depression and 13 attention deficit disorder (ADD) were non-severe. (Doc. 18 at 33.) She takes issue with the 14 ALJ’s decision to give little weight to Dr. Steingard’s medical opinion because it was 15 “vague and unsupported by the examination and Ms Athanas’ ‘conservative’ course of 16 mental health.” (Id. at 33–34.) Additionally, Athanas argues that the ALJ’s decision to give 17 greater weight to the “non-examining state agency medical consultant who found 18 [Athanas’] mental impairments non-severe” was a mistake. (Id. at 34.) Specifically, 19 Athanas argues that Steingard’s opinions, which list a number of mental limitations, do not 20 support the ALJ’s conclusion that Athanas has no mental limitations that affect her work. 21 (See id.) Athanas’ also highlights that these conclusions lead “the government’s vocational 22 expert to testify that similar restrictions would preclude Ms. Athanas from working.” (Id.) 23 Alternatively, Athanas argues that the ALJ should have requested clarification regarding 24 the extent of her impairments rather than ignoring the vocational expert’s analysis. 25 (Id. at 34–35.) 26 Athanas also argues that the ALJ erred when she concluded that Steingard’s 27 opinions were not supported by her own findings. (Id. at 35.) The ALJ’s evaluation found 28 that Athanas presented “significant abnormalities, including variable facial expression, 1 limited attention span with problems focusing, a dramatic style, she was verbose, 2 overinclusive, tangential, and exhibited circumstantial thinking, limited insight,” and “she 3 lost focus when given directions for two tasks at the same time.” (Id.) Athanas claims 4 “[s]uch findings are the gold standard” when an ALJ evaluates “the severity of a patient’s 5 mental impairments.” (Id.) Athanas also highlights that these findings were confirmed by 6 Athanas’ treatment records that confirmed depression and ADD. (Id.) Athanas also asserts 7 that the ALJ’s emphasis on Athanas’ “conservative” treatment for her mental health was 8 misguided. (Id. at 37.) Athanas argues that individuals do not require hospitalization to be 9 disabled and that her treatment regimen of psychotropic medications was not conservative. 10 (Id. at 37–38.) Athanas also argues that the ALJ erred by relying on the opinion of a non- 11 examining state agency psychologist because greater deference is due to the opinions of 12 examining medical sources. (See id. at 38.) Athanas emphasizes that “[r]eliance on non- 13 examining consultants is particularly inappropriate in the context of mental impairments, 14 which are properly assessed only by personal interview of a patient.” (See id.) This is 15 particularly true, Athanas argues, in cases such as hers “where the examining specialist was 16 hired by the government.” (Id.) 17 The Commissioner disputes Athanas’ position on severe mental impairment. 18 (Doc. 21 at 14.) The Commissioner argues that the ALJ properly considered Dr. 19 Steingard’s opinion and properly discounted Steingard’s opinion given its limitations. (Id.) 20 The Commissioner also asserts that Athanas failed to meet her burden of establishing her 21 mental impairments were severe because the record in this case contains hardly any 22 objective findings and treatment related to her mental impairment. (Id. at 15.) The 23 Commissioner then emphasizes that “[w]hether an impairment ‘significantly limits the 24 claimant’s physical or mental ability to do basic work activities’ is a finding that falls 25 within the purview of the ALJ, not a physician. (See id.) 26 The Commissioner also argues that the ALJ correctly found that Athanas’ mental 27 examination findings and her conservative treatment regimen did not support functional 28 accommodations. (See Id. at 16.) Additionally, the Commissioner argues that Athanas fails 1 to establish what limitation should have been included in the RFC. (Id.) The ALJ’s 2 findings, the Commissioner argues, were also supported by the State agency medical 3 consultant opinions. (Id.) The Commissioner argues that the SSA recognizes these 4 consultants are highly qualified at evaluating disability claims. (Id.) In the alternative, the 5 Commissioner asserts that because the ALJ continued the sequential analysis and 6 considered all of Athanas’ impairments, even the non-severe ones, when evaluating her 7 claim, any error the ALJ committed was, at best, harmless. (Id. at 14, 17.) 8 There is sufficient evidence to support the ALJ’s determination regarding the 9 severity of Athanas’ mental impairments. The ALJ properly assessed and considered the 10 medical opinions of Dr. Steingard and the state agency psychological consultant. 11 (AR at 23.) It was reasonable for the ALJ to afford Steingard’s opinion little medical 12 weight. Steingard’s conclusions that Athanas would require “some” instructions and that 13 her mental condition presented “some limitations” are too vague. (Id. at 1921–28.). What 14 is more, when considering Athanas’ documented improvement on Wellbutrin, the ALJ was 15 correct to afford Steingard’s vague medical opinion about the severity of Athanas’ 16 conditions little weight. (Id. at 23.) Because the meaning, extent, and degree of “some” 17 instructions and “some limitations” Athanas’ ADD and depression require, the ALJ was 18 reasonable in affording Steingard’s opinion little weight. 19 The ALJ also properly went through the second step by rating Athanas’ degree of 20 function limitation in the four functional areas. (Id. at 23–24.) In understanding, 21 remembering, or applying information; the ALJ was correct to consider Athanas’ testimony 22 where she “reported no difficulties in this area.” (Id. at 23, 366–74.) The ALJ also properly 23 relied on the fact that Athanas reportedly stopped working due to a layoff, not mental health 24 problems. (Id. at 23, 366–74, 1297.) Finally, the ALJ properly noted that “no objective 25 mental status examination findings indicate[d] deficits in this area.” (Id. at 23.) In fact, Dr. 26 Steingard noted unimpaired memory during the evaluation. (Id. at 23, 1921–28.) And so, 27 it was reasonable for the ALJ to find that Athanas’ limitation in this area was, at worst, 28 mild. 1 In the second area, the ALJ properly found that Athanas “had no limitation in 2 interacting with others.” (Id. at 24.) Dr. Steingard’s opinion that Athanas could have 3 “some” degree of social interaction limitations due to her ADD and struggling to stay on 4 topic is minimally persuasive, at best. (Id. at 24, 1921–28.) The ALJ was correct to consider 5 the remaining medical record in this case, including Athanas’ own report that she had little 6 to no difficulties in this area, and determine that Athanas’ limitation was no more than 7 mild. (Id. at 24, 366–74.) 8 In the third area, the ALJ reasonably found that Athanas presented no limitation in 9 concentrating, persisting, or maintaining pace. As the ALJ noted, the record reflects “no 10 depression-related deficits in concentration or attention noted in the claimant’s reports or 11 according to the limited medical evidence.” (Id. at 24, 366–74.) The ALJ was also 12 reasonable to deduce that Athanas’ problems with fatigue are more likely tied to her 13 untreated sleep apnea and hypothyroidism. (Id. at 24.) Steingard’s opinion was that 14 Athanas struggled to stay on task, which the ALJ observed “might affect persistence or 15 pace.” (Id. at 1921–28.) But Athanas’ mini mental status exam was normal and the ALJ 16 found “no deficits in the claimant’s reported functioning to support limitations in this area.” 17 (Id. at 24.) Thus, it was reasonable for the ALJ to find Athanas’ limitation in this area was 18 no more than mild. (Id.) 19 The ALJ also reasonably found that the fourth and final area, adapting or managing 20 oneself, was not a limitation for Athanas. She required minor mental health treatment in 21 the form of antidepressant pills and reported poor stress management in her function report. 22 (Id. at 24, 366–74.) But she also managed to perform a plethora of daily activities limited 23 only by her physical ailments while writing and visiting family for personal enjoyment. 24 (Id at 24, 366–74, 1286–1315.) Additionally, Athanas reported that antidepressant 25 medication was helpful. (Id. at 24, 1332–1462.) In sum, Athanas had never undergone 26 serious mental health treatment like inpatient, acute, or specialized psychiatric care. 27 (Id. at 24.) It was reasonable for the ALJ to find Athanas’ limitation in this area was mild 28 at worst. (Id.) Therefore, the ALJ did not err in its mental impairment determination. 1 Because the ALJ did not err, the Court refrains from engaging in a harmless error analysis. 2 C. ALJ’s Evaluation of Athanas’ Subjective Statements 3 An ALJ is not “required to believe every allegation of disabling pain, or else 4 disability benefits would be available for the asking, a result plainly contrary to [the Act].” 5 Molina, 674 F.3d at 1112 (citing Fair, 885 F.2d at 603). Thus, “the ALJ ‘is responsible for 6 determining credibility, resolving conflicts in medical testimony, and for resolving 7 ambiguities.’” Ford v. Saul, 950 F.3d 1141, 1149 (9th Cir. 2020) (quoting Andrews v. 8 Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). But the ALJ’s findings regarding the 9 credibility of subjective statements must be supported by specific, cogent reasons. 10 See Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006). 11 To evaluate “the credibility of a claimant’s testimony regarding subjective pain, an 12 ALJ must engage in a two-step analysis.” Vasquez v. Astrue, 572 F.3d 586, 591 13 (9th Cir. 2009). “First, the ALJ must determine whether the claimant has presented 14 objective medical evidence of an underlying impairment which could reasonably be 15 expected to produce the pain or other symptoms alleged.” Lingenfelter v. Astrue, 16 504 F.3d 1028, 1036 (9th Cir. 2007). “Second, if the claimant meets this first test, and there 17 is no evidence of malingering, the ALJ can reject the claimant’s testimony about the 18 severity of her symptoms only by offering specific, clear and convincing reasons for doing 19 so.” Lingenfelter, 504 F.3d at 1036 (cleaned up). “General findings are insufficient; rather, 20 the ALJ must identify what testimony is not credible and what evidence undermines the 21 claimant’s complaints.” Berry v. Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010) (cleaned up). 22 This is to ensure that the ALJ has not “arbitrarily discredit[ed]” the claimant’s subjective 23 testimony. Thomas, 278 F.3d at 957. That said, an ALJ’s determination of the credibility 24 of Plaintiff’s subjective complaint is “entitled to great weight.” See Weetman v. Sullivan, 25 877 F.2d 20, 22 (9th Cir. 1989) (citation omitted). 26 Athanas argues that substantial evidence does not support the ALJ’s evaluation of 27 her subjective statements. (Id. at 40.) She asserts that, as with the ALJ’s dismissal of 28 medical opinions, the ALJ erred when he dismissed her subjective statements because they 1 are inconsistent with her daily activities. (Id. at 40–41.) Athanas also argues that the ALJ 2 erred when he concluded that she stopped working for reasons unrelated to her disability 3 because there is clear evidence in the record that she “was having significant struggles 4 maintaining her job prior to” her statement that she was “laid off”. (See id. at 41.) Athanas 5 asserts that her disability has not improved since she was laid off, that there is no evidence 6 that she could maintain a job, and that her inability to work does not mean she lacks a desire 7 to work. (Id.) Additionally, Athanas argues that her prior work history of 27 years before 8 her disability indicates that she does have the desire to work but simply cannot. (Id.) This 9 work history, she argues, makes her claims that she is unable to work due to her disability 10 more credible. (Id.) 11 The Commissioner argues that the ALJ correctly found that Athanas’ subjective 12 symptom testimony was not supported by the objective medical evidence, her lifestyle and 13 day-to-day activities, and her treatment history. (Doc. 21 at 10.) The Commissioner first 14 argues that the ALJ’s finding that “the objective medical evidence did not corroborate 15 [Athanas’] claims of disabling symptoms and functional limitations” was proper. 16 (Id. at 11.) The Commissioner highlights that the ALJ properly noted that Athanas claimed 17 her ability to stand, sit, lift, walk, concentrate, and focus was severely inhibited by the pain 18 her disability caused. (Id.) But, in contrast to these claims, the ALJ also recognized that 19 Athanas’ had normal physical examinations. (Id.) Prior to 2014, there was little evidence 20 of fibromyalgia and her physical examinations were normal; she “had limited mental health 21 treatment showing positive mental status findings;” and “during a consultative 22 examination, [her] mental status examination was unremarkable, and she scored a 29/30 23 on a mini mental state exam.” (Id.) 24 Second, the Commissioner argues that the ALJ did not err by rejecting Athanas’ 25 disability claims given her daily activities. (Id. at 11–12.) Specifically, the Commissioner 26 argues that the ALJ “reasonably determined that Plaintiff’s allegations about her limitations 27 were at odds with his admissions about her daily activities.” (Id. at 12.) The Commissioner 28 notes that the ALJ observed that Athanas “reported that she could sit for thirty minutes, 1 stand for ten minutes, occasionally lift eight to ten pounds, and had significant difficulties 2 with fatigue.” (Id.) Yet, as the ALJ noted, Athanas “used an elliptical, walked up to six 3 miles per week, went to the gym, swam, lifted weights, traveled extensively, drove, 4 shopped in stores, prepared simple meals, mopped, and performed other household 5 chores.” (Id.) Thus, the Commissioner argues, “[e]ven if [Athanas’] capacity to engage in 6 the above activities were susceptible to a different interpretation, this Court must still 7 uphold the ALJ’s reasonable discounting of Plaintiff’s claims of disabling symptoms and 8 functional limitations.” (Id.) 9 Third, the Commissioner argues that it was reasonable for the ALJ to discount 10 Athanas’ subjective complaints given the ALJ’s review of Athanas’ treatment history. 11 (Id at 13.) The Commissioner asserts that the ALJ properly weighed the fact that Athanas 12 was, at times, not compliant with her medication regimen despite it proving effective. (Id.) 13 Thus, the Commissioner argues, the ALJ was right to use that fact when considering 14 Athanas’ subjective complaints. (See id.) 15 Finally, the Commissioner asserts that the ALJ correctly concluded that Athanas 16 stopped working for reasons unrelated to her disability. (Id.) The ALJ was correct, the 17 Commissioner argues, to focus on Athanas’ February 2010 report to her treatment provider 18 in which she explained that filing a complaint against her employer, not her limitations 19 stemming from her disability, lead to her being laid off. (Id.) What is more, the 20 Commissioner argues that “this contemporaneous statement contradicts her hearing 21 testimony where she reported that she was laid off because she called in sick too many 22 times.” (Id.) And so, the Commissioner argues that the ALJ’s decision to discount Athanas’ 23 subjective testimony was supported by substantial evidence and should be affirmed. 24 (Id. at 14.) 25 The Court holds that the ALJ had sufficient evidence to support her rejection of 26 Athanas’ subjective statements. In the first step of the analysis, the ALJ properly 27 determined that Athanas’ “impairments could reasonably be expected to have caused the 28 alleged” subjective symptoms. (AR at 26.) Morbid obesity, hypothyroidism, fibromyalgia, 1 degenerative disc disease, aneurysm, a status post right hemicolectomy, right foot 2 osteoarthritis, obstructive sleep apnea, and polycystic ovary syndrome could cause 3 Athanas’ alleged subjective feelings of pain. And so, the Court affirms the ALJ’s decision 4 in step one. 5 The ALJ also did not err in the second step of the analysis because the ALJ’s 6 analysis of evidence was reasonable. First, the objective medical evidence casts doubt on 7 Athanas’ claims of pain. There was little evidence of fibromyalgia prior to 2014, her 8 physical examinations were normal, and she showed no signs of a negative metal status. 9 (AR at 22, 27, 1353, 1371, 1358–60, 1362–65, 1368–70, 1924.) Second, in light of 10 Athanas’ alleged levels of pain, her daily activities are inapposite. The ALJ properly noted 11 that Athanas used an elliptical, walked up to six miles per week, went to the gym, swam, 12 lifted weights, traveled extensively, drove, shopped in stores, prepared simple meals, 13 mopped, and performed household chores. (AR at 27, 59, 367–70, 691, 1333, 1345, 1395, 14 1469, 2250.) She also applied to at least 100 jobs and had 20 interviews. (AR at 50.) Third, 15 the ALJ properly considered Athanas’ treatment history when rejecting her claims. 16 Athanas’ Robaxin prescription helped her pain, but she did not comply with her treatment 17 plan. (AR at 27, 373, 1319, 1353, 1362–63, 1469, 1813–14, 2028, 2030, 2061–63, 2075, 18 2239–40.) Thus, it was reasonable for the ALJ to reject her claims of subjective pain when 19 she actively refused to take medication that she herself reported helped with her symptoms. 20 Finally, the ALJ correctly noted that Athanas did not stop because of her disability. Athanas 21 herself informed her treatment provider that she was laid off because she filed a complaint 22 against her employer, not because of her limitations stemming from her disability. 23 (AR at 1297.) Thus, “it is unclear when or if the claimant would have stopped working due 24 to difficulties with her conditions.” (AR at 26.) And so, the ALJ offered sufficient evidence 25 and explanations to reject Athanas’ testimony regarding the severity of her symptoms. 26 Therefore, the Court affirms the ALJ’s decision to reject Athanas’ subjective testimony. 27 IV. CONCLUSION 28 Accordingly, 1 IT IS ORDERED affirming the May 28, 2020 ALJ decision (AR at 12-31). 2 IT IS FURTHER ORDERED directing the Clerk to enter final judgment 3 || consistent with this Order and close this case. 4 Dated this 29th day of November, 2021. 5 Wichal T. Hburde Michael T. Liburdi 8 United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -23-