(SS) Lambert v. Commissioner of Social Security ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KAREN LYNETTE LAMBERT, No. 2:18-cv-02122 CKD 12 Plaintiff, 13 v. ORDER 14 ANDREW SAUL, Commissioner of Social Security, 15 Defendant. 16 17 18 Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security 19 (“Commissioner”) finding that her disability ended on January 1, 2015 under sections 223(f) and 20 1614(a)(3)(A) of the Social Security Act (“Act”). The parties have consented to Magistrate Judge 21 jurisdiction to conduct all proceedings in the case, including the entry of final judgment. For the 22 reasons discussed below, the court will deny plaintiff’s motion for summary judgment and grant 23 the Commissioner’s cross-motion for summary judgment. 24 //// 25 /// 26 /// 27 /// 28 //// 1 BACKGROUND 2 Plaintiff, born in 1965, was found disabled beginning on June 1, 2005. 1 Administrative 3 Transcript (“AT”) 17, 26. The January 25, 2008 decision finding plaintiff disabled stated that she 4 had rheumatoid arthritis. AT 19. Pursuant to a continuing disability review (“CDR”), the 5 Commissioner found that plaintiff was no longer disabled as of January 1, 20152, in response to 6 which she filed a request for reconsideration. AT 115-116, 144. Plaintiff attended a hearing 7 before a disability hearing officer on July 14, 2015 (AT 152-165), and later received a 8 1 Disability Insurance Benefits are paid to disabled persons who have contributed to the Social 9 Security program, 42 U.S.C. § 401 et seq. Supplemental Security Income is paid to disabled persons with low income. 42 U.S.C. § 1382 et seq. Both provisions define disability, in part, as 10 an “inability to engage in any substantial gainful activity” due to “a medically determinable physical or mental impairment. . . .” 42 U.S.C. §§ 423(d)(1)(a) & 1382c(a)(3)(A). A parallel 11 five-step sequential evaluation governs eligibility for benefits under both programs. See 20 12 C.F.R. §§ 404.1520, 404.1571-76, 416.920 & 416.971-76; Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 S. Ct. 2287 (1987). The following summarizes the sequential evaluation: 13 Step one: Is the claimant engaging in substantial gainful 14 activity? If so, the claimant is found not disabled. If not, proceed to step two. 15 Step two: Does the claimant have a “severe” impairment? If 16 so, proceed to step three. If not, then a finding of not disabled is appropriate. 17 Step three: Does the claimant’s impairment or combination 18 of impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App.1? If so, the claimant is automatically determined 19 disabled. If not, proceed to step four. 20 Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five. 21 Step five: Does the claimant have the residual functional 22 capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. 23 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995). 24 The claimant bears the burden of proof in the first four steps of the sequential evaluation 25 process. Bowen, 482 U.S. at 146 n.5, 107 S. Ct. at 2294 n.5. The Commissioner bears the burden if the sequential evaluation process proceeds to step five. Id. 26 27 2 See 20 C.F.R. § 416.989 (explaining that the agency must evaluate recipients of SSI benefits from time to time to determine their continuing eligibility for benefits). 28 1 reconsideration determination that she was no longer disabled. AT 166-171. Plaintiff then 2 requested and appeared for a hearing before an ALJ on November 18, 2016, and then again on 3 April 18, 2017. AT 35-73, 74-104. In a decision dated August 7, 2017, the ALJ determined that 4 plaintiff was not disabled since January 1, 2015. AT 17-27. The ALJ made the following 5 findings (citations to 20 C.F.R. omitted): 6 1. The most recent favorable medical decision finding that the claimant was disabled is the determination dated January 25, 2008. 7 This is known as the ‘comparison point decision’ or CPD. 8 2. At the time of the CPD, the claimant had the following medically determinable impairment: rheumatoid arthritis. This impairment was 9 found to result in the residual functional capacity to perform sedentary work except she is unable to perform more than occasional 10 standing or walking, use her hands to handle or her upper extremities to reach or push/pull. 11 3. Through the date of this decision, the claimant has not engaged in 12 substantial gainful activity. 13 4. The medical evidence establishes that, since January 1, 2015, the claimant has had the following medically determinable impairments: 14 rheumatoid arthritis; bilateral calcaneal spurs and right Achilles tendinopathy; and degenerative disc disease of the cervical spine and 15 lumbar spine. These are the claimant’s current impairments. 16 5. Since January 1, 2015 the claimant has not had an impairment or combination of impairments that meets or medically equals one of 17 the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. 18 6. Medical improvement occurred on January 1, 2015. 19 7. The claimant’s medical improvement is related to the ability to work because it resulted in an increase in the claimant’s residual 20 functional capacity. 21 8. Since January 1, 2015, the claimant has continued to have a severe impairment or combination of impairments. 22 9. Since January 1, 2015, based on the current impairments, the 23 claimant has had the residual functional capacity to perform light work except: only occasional stooping, kneeling, crouching, and 24 climbing; avoid hazards such as unprotected heights and dangerous moving machinery; must avoid cold; and she is limited to only 25 occasional handling and fingering. 26 10. Since January 1, 2015, the claimant has been unable to perform past relevant work. 27 11. On January 1, 2015, the claimant was a younger individual 18- 28 49. 1 12. The claimant has at least a high-school education and is able to communicate in English. 2 13. Since January 1, 2015, transferability of job skills is not material 3 to the determination of disability because using the Medical- Vocational Rules as a framework supports a finding that the claimant 4 is ‘not disabled,’ whether or not the claimant has transferable job skills. 5 14. Since January 1, 2015, considering the claimant’s age, education, 6 work experience, and residual functional capacity based on the current impairments, the claimant has been able to perform a 7 significant number of jobs in the national economy. 8 15. The claimant’s disability ended on January 1, 2015, and the claimant has not become disabled again since that date. 9 10 AT 19-27. 11 On June 18, 2018, the Appeals Council denied plaintiff’s request for review on the 12 grounds that the new medical evidence submitted by plaintiff’s counsel did not provide a basis for 13 changing the ALJ’s decision. AT 1-5. 14 ISSUES PRESENTED 15 Plaintiff argues that the ALJ committed the following errors in finding plaintiff not 16 disabled: (1) the ALJ erred by not further developing the record; (2) the ALJ improperly 17 discounted plaintiff’s subjective complaints; (3) the RFC finding is not supported by substantial 18 evidence; (4) the ALJ’s hypothetical questions to the vocational expert did not include all her 19 limitations; and (5) the Appeals Council erred by denying plaintiff’s request for review of 20 additional records. 21 LEGAL STANDARDS 22 The court reviews the Commissioner’s decision to determine whether (1) it is based on 23 proper legal standards pursuant to 42 U.S.C. § 405(g), and (2) substantial evidence in the record 24 as a whole supports it. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). “The ALJ is 25 responsible for determining credibility, resolving conflicts in medical testimony, and resolving 26 ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citations omitted). 27 “The court will uphold the ALJ’s conclusion when the evidence is susceptible to more than one 28 rational interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). 1 The record as a whole must be considered, Howard v. Heckler, 782 F.2d 1484, 1487 (9th 2 Cir. 1986), and both the evidence that supports and the evidence that detracts from the ALJ’s 3 conclusion weighed. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The court may not 4 affirm the ALJ’s decision simply by isolating a specific quantum of supporting evidence. Id.; see 5 also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the 6 administrative findings, or if there is conflicting evidence supporting a finding of either disability 7 or nondisability, the finding of the ALJ is conclusive, see Sprague v. Bowen, 812 F.2d 1226, 8 1229-30 (9th Cir. 1987), and may be set aside only if an improper legal standard was applied in 9 weighing the evidence. See Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). 10 When the agency reviews a claimant’s continuing entitlement to benefits, it “must 11 determine if there has been any medical improvement in [the claimant’s] impairment(s) and, if so, 12 whether this medical improvement is related to [her] ability to work.” 20 C.F.R. §§ 13 404.1594.(b)(1), (b)(7). “Medical improvement” is defined as 14 any decrease in the medical severity of [the claimant's] impairment(s) which was present at the time of the most recent 15 favorable medical decision that [the claimant was] disabled or continued to be disabled.... A determination that there has been a 16 decrease in medical severity must be based on changes (improvement) in the symptoms, signs, or laboratory findings 17 associated with [claimant's] impairment(s). 18 20 C.F.R. § 416.994a(c). “In other words, the key question is not whether the claimant still 19 suffered from the same medical problem he had when benefits were awarded, but whether the 20 severity of the problem had decreased sufficiently to enable him to engage in gainful activity.” 21 Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1005 (9th Cir. 2006). 22 ANALYSIS 23 A. Duty to Develop the Record 24 Plaintiff contends that the ALJ should have further developed the medical record because 25 his decision gave little weight to the opinions of State agency physicians Dr. Bhangoo, Dr. Pham, 26 and Dr. Sohn. Plaintiff contends that the ALJ should have obtained another opinion “from a 27 medical advisor to evaluate all the medical evidence, including right Achilles tendon surgery and 28 continuing right ankle Achilles tendon enthesopathy (inflammation) that the State agency 1 consultants did not have the opportunity to review[.]” (ECF No. 13-1 at 24.) 2 In October 2014, Dr. Sarupinder Bhangoo performed a comprehensive internal medical 3 evaluation of plaintiff. AT 425-428; see AT 22 (ALJ’s summary). Plaintiff reported joint pain in 4 her feet, hands, knees, shoulders, and elbows, as well as morning stiffness and pain. AT 425. Dr. 5 Bhangoo noted that plaintiff sat and rose from a chair and climbed on and off the examination 6 table without difficulty or apparent pain, and that she had normal gait although she could not 7 tiptoe or heel walk without pain. AT 425-426. Upon physical examination, Dr. Bhangoo found 8 normal muscle bulk/tone and measured plaintiff’s motor strength at 5/5. AT 427. He diagnosed 9 plaintiff with rheumatoid arthritis and opined that she could walk for up to six hours, sit for up to 10 eight hours, and lift/carry up to 50 pounds occasionally and 25 pounds frequently. AT 428. Dr. 11 Bhangoo further opined that plaintiff had no postural limitations and could perform handling and 12 fingering for up to six hours total. AT 428. The ALJ accorded little weight to this opinion 13 “because Dr. Bhangoo did not have the benefit of reviewing the other medical reports contained 14 in the current record and this opinion is not consistent with the record in its entirety.” AT 25. 15 State agency medical consultant Dr. M. Pham reviewed plaintiff’s case file and filled out a 16 Physical Residual Functional Capacity Assessment on December 30, 2014. AT 436-444; see AT 17 25 (ALJ’s summary). Dr. Pham noted that plaintiff had been “diagnosed presumptively with 18 rheumatoid arthritis by her family doctor without confirmatory laboratory and [follow-up]” and 19 found the medical records did not support plaintiff’s claim that her condition was “aggressive.” 20 AT 422. Dr. Pham reviewed x-rays of plaintiff’s hands and feet and noted “mild erosive 21 changes” of the hands “without evidence of swelling, effusion[,] or deformities on joint exam or 22 x-rays that would support an aggressive form of rheumatoid arthritis.” AT 423. Dr. Pham also 23 found that the overall objective evidence showed that plaintiff had “significant” improvement 24 with treatment. AT 423. Dr. Pham opined that plaintiff could lift and/or carry 20 pounds 25 occasionally and 10 pounds frequently; stand and/or walk for six hours in an eight-hour workday; 26 sit for six hours in an eight-hour workday; frequently climb, balance, stoop, kneel, crouch, and 27 crawl; do frequent bilateral upper extremity handling and fingering; and should avoid 28 concentrated exposure to extreme cold and hazards. AT 423, 438, 440. 1 State agency medical consultant Dr. M. Sohn reviewed plaintiff’s medical file in May 2 2015 and opined that plaintiff could lift and/or carry 20 pounds occasionally and 10 pounds 3 frequently; stand and/or walk for six hours total, and sit for six hours total. AT 477-483; see AT 4 25. Like Dr. Pham, Dr. Sohn opined that plaintiff could frequently climb, balance, stoop, kneel, 5 crouch, and crawl; do frequent bilateral handling and fingering; and should avoid concentrated 6 exposure to hazards. ATT 478-479. The ALJ accorded little weight to Dr. Pham’s and Dr. 7 Sohn’s opinions “because the medical consultants did not have the benefit of personally 8 observing and examining the claimant and these opinions are not consistent with the record as a 9 whole.” AT 25. 10 In determining RFC, the ALJ discussed the medical evidence through plaintiff’s May 11 2017 surgery on her right Achilles tendon. AT 22-24. He concluded that plaintiff “has not 12 generally received the type of medical treatment one would expect for a totally disabled 13 individual.” AT 25. The ALJ continued: 14 The record reflects significant gaps in the claimant’s history of treatment and relatively infrequent trips to the doctor for the 15 allegedly disabling symptoms. Furthermore, the claimant’s use of medications does not suggest the presence of impairments which is 16 [sic] more limiting than found in this decision. . . . [T]he medical records reveal that [plaintiff’s prescribed] medications have been 17 relatively effective in controlling the claimant’s symptoms. 18 AT 25. The resulting RFC limited plaintiff to light work with certain limitations, as set forth 19 above. AT 21. 20 Disability hearings are not adversarial. See DeLorme v. Sullivan, 924 F.2d 841, 849 (9th 21 Cir. 1991); see also Crane v. Shalala, 76 F.3d 251, 255 (9th Cir. 1996) (ALJ has duty to develop 22 the record even when claimant is represented). Evidence raising an issue requiring the ALJ to 23 investigate further depends on the case. Generally, there must be some objective evidence 24 suggesting a condition that could have a material impact on the disability decision. See Smolen 25 v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996); Wainwright v. Secretary of Health and Human 26 Services, 939 F.2d 680, 682 (9th Cir. 1991). “Ambiguous evidence . . . triggers the ALJ’s duty to 27 ‘conduct an appropriate inquiry.’” Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) 28 (quoting Smolen, 80 F.3d at 1288.) 1 Here, the ALJ discounted the State agency doctors’ opinions because he found them 2 inconsistent with the record as a whole, not because he found either the opinions or the record 3 ambiguous. See Refugia D. V. v. Berryhill, 2018 WL 4043203, *12 (C.D. Cal. Aug. 22, 2018), 4 citing Agadzhanyan v. Astrue, 357 F. App’x 148, 150 (9th Cir. 2009 ) (unpublished) (“The ALJ’s 5 independent duty to develop the record was not triggered, because he did not find any piece of 6 evidence to be ambiguous or difficult to interpret.”). The ALJ listed rheumatoid arthritis, bilateral 7 calcaneal spurs, and right Achilles tendinopathy among plaintiff’s medically determinable 8 impairments after January 1, 2015, but found that these conditions “were being managed 9 medically, and should be amenable to proper control” by treatment and medication compliance. 10 AT 19. Thus, the decision accounted for these ongoing impairments in finding plaintiff no longer 11 disabled as of January 1, 2015. 12 Plaintiff points out that no medical opinion takes into account her medical history after 13 May 2015, including her August 2016 complaints of right heel pain, an MRI showing “severe 14 focal tendinosis” in the right Achilles tendon; her March 2017 complaints of heel pain and 15 difficulty walking and her diagnosis of Achilles tendinopathy; and her May 2017 status post right 16 Achilles tendon surgery. See AT 23-34; AT 893-894. Plaintiff asserts that the ALJ had a duty to 17 obtain “testimony from a medical advisor regarding her chronic rheumatoid arthritis and chronic 18 inflammation that resulted in deformities of her right ankle and require surgical repair . . . which 19 could reasonably change the outcome of the case by limiting the capacity to perform the standing 20 and walking requirements of light exertion work.”3 (ECF No. 19 at 4.) 21 Importantly, however, the ALJ’s nondisability finding was based on plaintiff’s ability to 22 perform light jobs that only require “standing and walking two hours maximum in an eight-hour 23 day” (AT 94), specifically, the jobs of counter clerk and investigator of dealer accounts. AT 27, 24 97. In his hypothetical questions to the VE, the ALJ acknowledged that plaintiff’s conditions 25 limited standing, walking, handling, and fingering. Plaintiff has not shown that her post-2015 26 3 Light work can involve “a good deal or walking or standing, or . . . involve[] sitting most of the 27 time with some pushing and pulling of leg or arm controls.” 20 C.F.R. sections 404.1567(b), 416.967(b). 28 1 conditions could have a material impact on the disability determination such as would require 2 further development of the record. 3 B. Credibility 4 Plaintiff next argues that the ALJ erred in discounting plaintiff’s subjective statements. 5 The ALJ found that “[t]he evidence of record does not fully support the claimant’s allegations.” 6 AT 22, 24. As noted above, the ALJ explained: 7 I find the claimant’s allegations less than fully consistent with the evidence. The claimant has not generally received the type of 8 medical treatment one would expect for a totally disabled individual. The record reflects significant gaps in the claimant’s history of 9 treatment and relatively infrequent trips to the doctor for the allegedly disabling symptoms. Furthermore, the claimant’s use of 10 medications does not suggest the presence of impairments which is [sic] more limiting than found in this decision. . . . [T]he medical 11 records reveal that [plaintiff’s prescribed] medications have been relatively effective in controlling the claimant’s symptoms. 12 13 AT 25. 14 The ALJ first considered the objective medical evidence, summarized in the decision as to 15 plaintiff’s history of Graves’ disease, dyslipidemia, reactive airway disease; however, “no 16 aggressive treatment was recommended or anticipated for these conditions.” AT 19. The ALJ 17 also noted a history of obesity and rheumatoid arthritis. AT 19-20. Despite being diagnosed with 18 rheumatoid arthritis in 2005, plaintiff did not seek regular care for this condition until 2014, when 19 she requested a rheumatology referral. AT 22, 414. 20 The ALJ discussed plaintiff’s responses to prescribed treatment for arthritis, depression, 21 and right heel pain in 2015, 2016, and 2017. The decision noted that plaintiff “appeared to have 22 responded well to” prescribed medication for arthritis in 2015, and that in 2016, plaintiff reported 23 that prescribed medication had “helped to control her pain and stiffness.” AT 23; see also AT 24 518, 697 (noting improvements in mental health). The decision further noted that in September 25 2016, she had “great pain relief after a cervical epidural steroid injection” and “was very pleased 26 with the course of treatment.” AT 23-24. The ALJ also discussed plaintiff’s status in May 2017, 27 post right Achilles tendon surgery. AT 24. 28 1 The ALJ also noted plaintiff’s ability to perform daily activities including shopping, 2 performing household chores, managing money, reading, personal care, and operating a motor 3 vehicle. AT 20; see AT 52, 55-59, 81, 87-88, 101, 305. The undersigned concludes that the ALJ 4 provided legally sufficient reasons to find plaintiff’s subjective complaints less than fully 5 credible. 6 C. Residual Functional Capacity & Post-Decision Records 7 Plaintiff asserts that the RFC is not supported by substantial evidence because it did not 8 incorporate two instructions that plaintiff elevate her right foot (AT 804, 821), chronic fatigue, 9 and anxiety that allegedly limited interpersonal interactions. 10 Residual functional capacity is what a person “can still do despite [the individual’s] 11 limitations.” 20 C.F.R. §§ 404.1545(a), 416.945(a) (2003); see also Valencia v. Heckler, 751 F.2d 12 1082, 1085 (9th Cir. 1985) (residual functional capacity reflects current “physical and mental 13 capabilities”). RFC is assessed based on the relevant evidence in the case record, including the 14 medical history, medical source statements, and subjective descriptions and observations made by 15 the claimant, family, neighbors, friends, or other persons. 20 C.F.R. §§ 404.1545(a)(1), 16 404.1545(a)(3). In Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008), the Ninth 17 Circuit held that an RFC adequately captures restrictions related to concentration, persistence, or 18 pace when the assessment is consistent with restrictions identified in the medical testimony. See 19 also, e.g., Schmidt v. Colvin, No. 2:12-cv-00016 KJN, 2013 WL 5372845, at *17 (E.D. Cal. Sept. 20 25, 2013) (“‘Moderate’ mental limitations are not necessarily inconsistent with an RFC for 21 ‘simple’ tasks, as long as such assessment is generally consistent with the concrete restrictions 22 identified in the medical evidence.”), citing Stubbs-Danielson, 539 F.3d at 1174. 23 As defendant points out, no physician opined that plaintiff was functionally limited by a 24 recommendation that she elevate her right foot “as much as possible” and/or the post-operative 25 order that she keep her foot raised after surgery. No doctor opined that plaintiff had limits due to 26 chronic fatigue, an alleged condition based on self-reports which the ALJ found not fully 27 credible, as discussed above. There is no evidence that plaintiff had difficulty interacting with 28 medical staff at her appointments. Treatment providers regularly found her to have normal mood 1 and affect, see, e.g., AT 540, 553, 556, 684, 810, 812, and in the functional area “interacting with 2 others,” the ALJ found her to have no limitation. AT 20. Moreover, plaintiff does not clearly 3 explain what limitations should have been included in the RFC based on these alleged 4 impairments. 5 In a second argument related to RFC, plaintiff asserts that the Appeals Council erred in 6 upholding the ALJ’s August 7, 2017 decision in light of post-decision medical records she 7 submitted. The new records consisted of September 2017 x-rays of plaintiff’s feet and ankles, 8 and a brief letter, dated October 4, 2017, by physician’s assistant Tou Xiong stating that plaintiff 9 could not walk or ambulate for three hours. AT 1, 899-903. In a June 18, 2018 decision, the 10 Appeals Council stated that it had considered this evidence but “found that [it] does not provide a 11 basis for changing the Administrative Law Judge’s decision.” AT 1. 12 District courts “do not have jurisdiction to review a decision of the Appeals Council 13 denying a request for review of an ALJ’s decision, because the Appeals Council decision is a 14 non-final agency action.” Brewes v. Comm’r, 682 F.3d 1157, 1161 (9th Cir. 2012). “When the 15 Appeals Council declines review, the ALJ's decision becomes the final decision of the 16 Commissioner . . . and the district court reviews that decision for substantial evidence, based on 17 the record as a whole.” Id. at 1161–62 (citation and quotation marks omitted). Following 18 Ramirez v. Shalala, 8 F.3d 1449 (9th Cir. 1993), the Ninth Circuit has “routinely considered 19 evidence submitted for the first time to the Appeals Council to determine whether, in light of the 20 record as a whole, the ALJ’s decision was supported by substantial evidence.” Id. at 1163 21 (collecting cases). 22 The new x-rays submitted by plaintiff were taken weeks after the ALJ submitted his 23 decision, and the note from Dr. Xiong that plaintiff could not “walk or ambulate for 3 hours” is 24 not supported by any explanation. See Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999) 25 (treating physician’s conclusory, minimally supported opinion rejected). (In any event, the 26 ultimate finding of nondisability is based on available jobs that only require up to two hours’ 27 standing and walking, as discussed above.) Moreover, the x-rays document mild or normal 28 findings consistent with the RFC for light work with limited standing and walking. For the 1 | reasons discussed above, the court finds that the assessed RFC was adequately explained and 2 | grounded in substantial evidence. 3 | D. Vocational Expert 4 Plaintiff contends that the VE’s testimony does not constitute substantial evidence because 5 | the ALJ’s hypothetical questions did not include all plaintiffs limitations. As this argument is 6 | derivative of the arguments discussed above, the court finds it to be without merit. 7 | CONCLUSION 8 For the reasons stated herein, IT IS HEREBY ORDERED that: 9 1. Plaintiff's motion for summary judgment (ECF No. 13) is denied; 10 2. The Commissioner’s cross-motion for summary judgment (ECF No. 18) is granted; 11 | and 12 3. Judgment is entered for the Commissioner. 13 | Dated: September 26, 2019 CA rd ht / (g—, CAROLYN K DELANEY 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 || 2Aambert2122.ssi.ckd 21 22 23 24 25 26 27 28 12