(SS) Moreno v. Commissioner of Social Security ( 2021 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 LIZA MORENO, Case No. 1:19-cv-01580-SAB 11 Plaintiff, ORDER DENYING PLAINTIFF’S SOCIAL SECURITY APPEAL AND ENTERING 12 v. JUDGMENT IN FAVOR OF DEFENDANT COMMISSIONER OF SOCIAL SECURITY 13 COMMISSIONER OF SOCIAL SECURITY, (ECF Nos. 14, 17) 14 Defendant. 15 16 I. 17 INTRODUCTION 18 Liza Moreno (“Plaintiff”) seeks judicial review of a final decision of the Commissioner 19 of Social Security (“Commissioner” or “Defendant”) denying her application for disability 20 benefits pursuant to the Social Security Act. The matter is currently before the Court on the 21 parties’ briefs, which were submitted without oral argument, to Magistrate Judge Stanley A. 22 Boone.1 23 Plaintiff suffers from coronary artery disease status post myocardial infraction and 24 bypass; diabetes with retinopathy; depression; obesity; a history of umbilical hernia; 25 hypertension; and iron deficiency anemia. For the reasons set forth below, Plaintiff’s Social 26 Security appeal shall be denied. 27 1 The parties have consented to the jurisdiction of the United States magistrate judge and this action has been 1 II. 2 BACKGROUND 3 A. Procedural History 4 On April 11, 2013, Plaintiff filed a Title II application for disability insurance benefits 5 alleging a period of disability beginning on December 1, 2005. (AR 151-52.) Plaintiff’s claim 6 was initially denied on August 1, 2013, and denied upon reconsideration on October 8, 2013. 7 (AR 86-90, 91-92.) On April 1, 2014, Plaintiff submitted a request for a hearing before an 8 Administrative Law Judge, and on April 30, 2015, Plaintiff appeared before Administrative Law 9 Judge Timothy S. Snelling for the first hearing. (AR 98-99, 34-63.) On June 25, 2015, Judge 10 Snelling issued an initial decision finding that Plaintiff was not disabled. (AR 19-33.) On 11 September 2, 2016, the Appeals Council denied Plaintiff’s request for review. (AR 1-7.) 12 Plaintiff then filed a complaint in this Court, and after the parties filed moving papers, the parties 13 agreed to a stipulated voluntary remand and the matter was remanded for further administrative 14 proceedings. (AR 593-602.) 15 On remand, the Commissioner selected Administrative Law Judge Vincent A. Misenti 16 (the “ALJ”) to preside over the matter. (AR 639-667.) The ALJ conducted the second oral 17 hearing on August 6, 2018. (AR 561-584.) The ALJ issued the second unfavorable decision on 18 December 6, 2018. (AR 540-560.) The Appeals Council denied the request for review on 19 September 21, 2019. (AR 524-529.) 20 Plaintiff filed this action on November 5, 2019, and seeks judicial review of the denial of 21 her application for disability benefits. (ECF No. 1.) On June 22, 2020, Plaintiff filed an opening 22 brief. (ECF No. 14.) Following two stipulated extensions, on August 26, 2020, Defendant filed 23 a brief in opposition. (ECF No. 17.) Plaintiff did not file a reply brief. 24 B. Hearing Testimony 25 Plaintiff testified in person at the August 6, 2018 hearing with the assistance of counsel, 26 who appeared via telephone. (AR 561-584.) Plaintiff was 59 years old on the date of the 27 hearing, and was 51 years old on the date last insured. (AR 565-66.) Plaintiff was 5’4” tall, and 1 2010. (Id.) 2 Plaintiff is right-handed. (Id.) The ALJ focused his inquiry on the approximate one and 3 a half year period between June 2, 2009, the alleged onset date, and December 31, 2010, the date 4 Plaintiff was last insured. (Id.) Plaintiff was married, though her spouse is retired and disabled 5 after suffering strokes and heart problems. (AR 567-568.) Plaintiff’s spouse was working in 6 2010. (AR 568.) Plaintiff has lived in the same house for nineteen years. (Id.) 7 Plaintiff drives about twice a week. (Id.) When asked how often Plaintiff was driving in 8 2010, Plaintiff stated almost every day for work, and then Plaintiff asked whether that was the 9 time she was employed at “ESM,” and the ALJ answered not in 2010. (AR 569.) Plaintiff asked 10 when she was employed at ESM, the ALJ answered the last work record was in 2005 as material 11 handler for HP and customer service at Baskin-Robbins, and Plaintiff stated she worked at ESM 12 after Baskin-Robbins but did not remember when. (Id.) 13 Plaintiff has a high school education. (Id.) Noting the amended alleged onset date of 14 June 2, 2009, the ALJ asked if Plaintiff recalled working any job from then until December 31, 15 2010. (Id.) Plaintiff did not remember, stating she believed her last job was with ESM right 16 after Baskin-Robbins. (Id.) 17 The ALJ asked which diagnosed medical impairments Plaintiff believed were disabling 18 during the relevant period, and Plaintiff answered her obesity, her weight, diabetes, and a hernia. 19 (AR 570.) Plaintiff stated the obesity during the relevant period tired her quite a bit, movements 20 such as bending would hurt her back, and her balance was off at times. (Id.) Plaintiff tripped at 21 work a couple of times. (Id.) The ALJ asked whether the obesity affected the body organs or 22 complicated her medical condition, and Plaintiff stated it affected her heart condition and she had 23 bypass surgery in 1999. (AR 570-571.) Plaintiff stated her heart condition impacted her early 24 on, but she still continued to work. (AR 571.) Plaintiff stated the obesity impacted her knees but 25 could not remember anything else regarding the obesity’s effects. (Id.) 26 As for her diabetes mellitus, Plaintiff said she could not explain, but it affected her 27 mostly in making her fatigued during the relevant period. (AR 571-572.) During that time, 1 with diabetes control. (AR 572.) The ALJ inquired about multiple references in the record that 2 showed Plaintiff was not very compliant with taking medications and checking blood sugar 3 levels, and Plaintiff answered she “was and wasn’t,” and at the time, she kept telling the doctor 4 that the Metformin was making her sick, and after a while they put Plaintiff on insulin. (AR 5 572.) The ALJ inquired about whether the Metformin made her sick and whether she stopped 6 taking it for periods of time, and Plaintiff answered that she would take it, but for periods of time 7 she had problems with it and she kept working with her doctor to try and figure out a better way, 8 and they finally put her on insulin. (AR 572-573.) The ALJ inquired again asking: “why did the 9 doctors repeatedly state that you, or at least on multiple occasions, were non-compliant with your 10 diabetes medications?” (AR 573.) Plaintiff answered she didn’t understand why the doctor 11 would write that, and the ALJ stated the records dated May 4, 2009, March 9, 2010, and April 6, 12 2010, showed notes that Plaintiff was not compliant and was not following the doctor’s orders to 13 take her medications. (AR 573.) Plaintiff responded that she was compliant and taking 14 medications. (Id.) The ALJ asked “[s]o you just disagree with those notes?” (Id.) Plaintiff 15 responded that she does disagree with them because she would take medications unless they 16 were making her sick, and that is when she would return to the doctor, and emphasized that as 17 the records show, she was visiting the doctor quite often because she didn’t feel well. (Id.) The 18 ALJ concluded that the references were likely regarding Plaintiff not taking medications when 19 they made her not feel well, and Plaintiff said that was when she was working with the doctor to 20 try and figure out if there was a better solution. (Id.) 21 The ALJ asked if there was anything else regarding the diabetes that limited Plaintiff 22 during the relevant period, and Plaintiff stated she did not remember much as far as limitations, 23 but just remembered being very tired all the time, and her body aching all of the time. (AR 574.) 24 Plaintiff explained that it is “hard to explain – when you’re going to the doctor you try to explain 25 just how – what hurts. Sometimes it’s everything hurts. Sometimes it’s just some of the 26 medication they would put me on, I don’t remember when it was. They took me off Lipitor 27 because I was on there because of my diabetes. And they took me off because that was making – 1 The ALJ asked whether Plaintiff was regularly checking her blood sugar levels during the 2 relevant period, and Plaintiff answered yes. (Id.) The ALJ asked about records showing 3 problems with control, and Plaintiff confirmed she had such problems, and still does. (Id.) The 4 ALJ asked what Plaintiff did when she had problems with the blood sugars fluctuating beyond 5 acceptable levels, and Plaintiff answered she would take the medication again, but she then 6 figured out that because the pills were very big and she would break them in half, but didn’t 7 realize they were on a time release, the medication was making her sick because it was absorbing 8 too rapidly. (AR 575.) Plaintiff had asked the doctor if she could somehow order a pill that was 9 smaller as she could not swallow them right. (Id.) 10 Plaintiff’s hernia protrudes out of her stomach near her bellybutton, it makes her look 11 pregnant, and it hurts when it touches up against things such as when she would take clothes out 12 of the washing machine, and Plaintiff now has to do it sideways. (AR 576.) Plaintiff saw a 13 surgeon but did not have surgery because of her diabetes. (AR 576.) The ALJ asked about 14 records showing Plaintiff refused pain medication for her hernia, and Plaintiff confirmed she had 15 refused, explaining that she is on so many medications it makes her feel like she is in a fog, and 16 she would rather deal with pain than have to walk around like a zombie, and a lot of the 17 medications have side effects. (AR 576-577.) 18 When asked what a typical day was like for Plaintiff during the relevant period, Plaintiff 19 first stated she could not remember, and then stated she felt like she was “functional to a certain 20 point.” (AR 577.) Plaintiff did not recall how long she was able to sit at one time, and did not 21 recall how long she could stand at one time during the relevant period. (Id.) 22 Plaintiff’s counsel then examined Plaintiff. (AR 578.) Counsel asked about problems 23 with fatigue, and Plaintiff answered she felt fatigued or tired all of the time. (Id.) Plaintiff 24 confirmed she would have to take a break after starting activities. (Id.) Plaintiff stated it varied 25 day to day, but there were points where she would want to sleep all day, and she would get up 26 and then half an hour later she was so exhausted and would just want to lay down again. (Id.) It 27 wasn’t every day, but Plaintiff would be exhausted a lot of the time, and her “fatigue was 1 function as much as she could, but she was so tired to the point where she just couldn’t function 2 like a normal person. (Id.) Plaintiff estimated she was below a 30 or 40 percent level of 3 functioning, and was not sure if it was from diabetes, or her heart. (Id.) 4 The ALJ then asked if Plaintiff could recall how much weight she could lift, and Plaintiff 5 could not recall. (AR 579.) 6 The Vocational Expert Lorian I. Hyatt (the “VE”) then testified. (Id.) The VE testified 7 that Plaintiff’s previous work included: (1) ice cream server classified as light, with an SVP of 2; 8 (2) an electronics worker, light, with an SVP of 2; and (3) a food service worker, light, with an 9 SVP of 3. (AR 580.) The VE stated these positions were performed at a medium level 10 according to the record. (Id.) 11 The ALJ’s first hypothetical presented an individual with the past work described, 12 possessing a high school education, and capable of performing a light range of work with the 13 following limitations: occasional climbing ramps and stairs; no climbing ladders and scaffolds; 14 frequent balancing, occasional stooping, and occasional crouching; frequent kneeling, and 15 occasional crawling; occasional balancing; no working around unprotected heights; and need to 16 avoid concentrated exposure to moving mechanical parts. (AR 580-581.) The VE testified that 17 such person could perform the past jobs described as generally performed, but could not perform 18 the food service worker job as it is typically performed. (AR 581.) The VE also testified such 19 person could perform other jobs in the national economy, including: assembler, light with an 20 SVP of 2; inspector, light, with an SVP of 2; and office helper, light, with an SVP of 2. (Id.) 21 The ALJ then presented a second hypothetical with the same limitations as the first, 22 however, inquired whether such an individual would have any transferable skills to sedentary 23 work. (AR 581-582.) The VE testified that the ice cream server and electronic worker jobs are 24 both SVP of 2, and would thus have no transferable skills, and also believed the food service 25 worker position did not have any transferable skills either. (AR 582.) 26 Counsel then examined the VE. (Id.) Counsel presented the first hypothetical with an 27 added limitation that after an hour’s worth of work such person would need to take a ten minute 1 unemployable. (Id.) 2 Counsel made a closing statement that this is a court remand case, that Plaintiff testified 3 consistently at both hearings with the medical records demonstrating that prior to the date of last 4 insured she had severe impairments that limited her capacity to perform work on a consistent 5 basis, and such resulted in an inability to perform past or other work. (AR 583.) 6 C. The ALJ’s Findings of Fact and Conclusions of Law 7 The ALJ made the following findings of fact and conclusions of law: 8 • Plaintiff last met the insured status requirements of the Social Security Act on December 9 31, 2010. 10 • Plaintiff did not engage in substantial gainful activity during the period from her alleged 11 onset date of December 1, 2005 through the date last insured of December 31, 2010. 12 • Through the date last insured, and period adjudicated, Plaintiff had the following severe 13 impairments: coronary artery disease status post myocardial infraction and bypass; 14 diabetes with retinopathy; depression; obesity; a history of umbilical hernia; 15 hypertension; and iron deficiency anemia. 16 • Through the date last insured, Plaintiff did not have an impairment or combination of 17 impairments that met or medically equaled the severity of one of the listed impairments 18 in 20 CFR Part 404, Subpart P, Appendix 1. 19 • Plaintiff had the residual functional capacity to perform a wide range of light work, 20 specifically: can lift and carry 20 pounds occasionally and 10 pounds frequently; can 21 stand or walk or sit for approximately 6 hours each per 8 hour work day with normal 22 breaks; cannot climb ladders, ropes, or scaffolds, but can occasionally stoop and crouch, 23 and can frequently balance, kneel, crawl, and climb ramps and stairs. 24 • Through the date last insured, Plaintiff was unable to perform any past relevant work. 25 • Plaintiff was born on June 2, 1959, and was 51 years old, which is defined as a younger 26 individual aged 18-49, on the date last insured. Plaintiff subsequently changed age 27 category to closely approaching advanced age. 1 • Transferability of job skills is not material to the determination of disability because 2 using the Medical-Vocational Rules as a framework supports a finding that the claimant 3 is “not disabled,” whether or not the claimant has transferable job skills. 4 • Through the date last insured, considering Plaintiff’s age, education, work experience, 5 and residual functional capacity, there were jobs that existed in significant numbers in the 6 national economy that Plaintiff could have performed. 7 • Plaintiff was not under a disability, as defined in the Social Security Act, at any time 8 from December 1, 2005, the alleged onset date, through December 31, 2010, the date last 9 insured. 10 (AR 24-29.) 11 III. 12 LEGAL STANDARD 13 To qualify for disability insurance benefits under the Social Security Act, the claimant 14 must show that she is unable “to engage in any substantial gainful activity by reason of any 15 medically determinable physical or mental impairment which can be expected to result in death 16 or which has lasted or can be expected to last for a continuous period of not less than 12 17 months.” 42 U.S.C. § 423(d)(1)(A). The Social Security Regulations set out a five-step 18 sequential evaluation process to be used in determining if a claimant is disabled. 20 C.F.R. § 19 404.1520;2 Batson v. Commissioner of Social Security Administration, 359 F.3d 1190, 1194 (9th 20 Cir. 2004). The five steps in the sequential evaluation in assessing whether the claimant is 21 disabled are: 22 Step one: Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two. 23 Step two: Is the claimant’s alleged impairment sufficiently severe to limit his or 24 her ability to work? If so, proceed to step three. If not, the claimant is not disabled. 25 Step three: Does the claimant’s impairment, or combination of impairments, meet 26 2 The cases generally cited herein reference the regulations which apply to disability insurance benefits, 20 C.F.R. § 27 404.1501 et seq., and Plaintiff is also seeking supplemental security income, 20 C.F.R. § 416.901 et seq. The regulations are generally the same for both types of benefits. Further references are to the disability insurance 1 or equal an impairment listed in 20 C.F.R., pt. 404, subpt. P, app. 1? If so, the claimant is disabled. If not, proceed to step four. 2 Step four: Does the claimant possess the residual functional capacity (“RFC”) to 3 perform his or her past relevant work? If so, the claimant is not disabled. If not, proceed to step five. 4 Step five: Does the claimant’s RFC, when considered with the claimant’s age, 5 education, and work experience, allow him or her to adjust to other work that exists in significant numbers in the national economy? If so, the claimant is not 6 disabled. If not, the claimant is disabled. 7 Stout v. Commissioner, Social Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006). 8 Congress has provided that an individual may obtain judicial review of any final decision 9 of the Commissioner of Social Security regarding entitlement to benefits. 42 U.S.C. § 405(g). 10 In reviewing findings of fact in respect to the denial of benefits, this court “reviews the 11 Commissioner’s final decision for substantial evidence, and the Commissioner’s decision will be 12 disturbed only if it is not supported by substantial evidence or is based on legal error.” Hill v. 13 Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). “Substantial evidence” means more than a 14 scintilla, but less than a preponderance. Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) 15 (internal quotations and citations omitted). “Substantial evidence is relevant evidence which, 16 considering the record as a whole, a reasonable person might accept as adequate to support a 17 conclusion.” Thomas v. Barnhart, 278 F.3d 947, 955 (9th Cir. 2002) (quoting Flaten v. Sec’y of 18 Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995)). 19 “[A] reviewing court must consider the entire record as a whole and may not affirm 20 simply by isolating a specific quantum of supporting evidence.” Hill, 698 F.3d at 1159 (quoting 21 Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 2006). However, it is not 22 this Court’s function to second guess the ALJ’s conclusions and substitute the court’s judgment 23 for the ALJ’s. See Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (“Where evidence is 24 susceptible to more than one rational interpretation, it is the ALJ’s conclusion that must be 25 upheld.”). 26 / / / 27 / / / / / / 1 IV. 2 DISCUSSION AND ANALYSIS 3 Plaintiff argues the ALJ erred by failing to provide a sufficiently articulated rationale for 4 rejecting Plaintiff’s testimony of disabling impairments. (Pl.’s Opening Br. (“Br.”) 5, ECF No. 5 14.) 6 A. The Clear and Convincing Standard for Weighing Credibility 7 “An ALJ is not required to believe every allegation of disabling pain or other non- 8 exertional impairment.” Orn v. Astrue, 495 F.3d 625, 635 (9th Cir. 2007) (internal punctuation 9 and citations omitted). Determining whether a claimant’s testimony regarding subjective pain or 10 symptoms is credible requires the ALJ to engage in a two-step analysis. Molina v. Astrue, 674 11 F.3d 1104, 1112 (9th Cir. 2012). The ALJ must first determine if “the claimant has presented 12 objective medical evidence of an underlying impairment which could reasonably be expected to 13 produce the pain or other symptoms alleged.” Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th 14 Cir. 2007) (internal punctuation and citations omitted). This does not require the claimant to 15 show that her impairment could be expected to cause the severity of the symptoms that are 16 alleged, but only that it reasonably could have caused some degree of symptoms. Smolen, 80 17 F.3d at 1282. 18 Second, if the first test is met and there is no evidence of malingering, the ALJ can only 19 reject the claimant’s testimony regarding the severity of her symptoms by offering “clear and 20 convincing reasons” for the adverse credibility finding. Carmickle v. Commissioner of Social 21 Security, 533 F.3d 1155, 1160 (9th Cir. 2008). The ALJ must specifically make findings that 22 support this conclusion and the findings must be sufficiently specific to allow a reviewing court 23 to conclude the ALJ rejected the claimant’s testimony on permissible grounds and did not 24 arbitrarily discredit the claimant’s testimony. Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 25 2004). 26 Factors that may be considered in assessing a claimant’s subjective pain and symptom 27 testimony include the claimant’s daily activities; the location, duration, intensity and frequency 1 effectiveness or side effects of any medication; other measures or treatment used for relief; 2 functional restrictions; and other relevant factors. Lingenfelter, 504 F.3d at 1040; Thomas, 278 3 F.3d at 958. In assessing the claimant’s credibility, the ALJ may also consider “(1) ordinary 4 techniques of credibility evaluation, such as the claimant’s reputation for lying, prior inconsistent 5 statements concerning the symptoms, and other testimony by the claimant that appears less than 6 candid; [and] (2) unexplained or inadequately explained failure to seek treatment or to follow a 7 prescribed course of treatment.” Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) 8 (quoting Smolen, 80 F.3d at 1284). 9 B. Plaintiff’s Primary Arguments 10 Plaintiff first highlights the ALJ’s use of boilerplate language that is usually included in 11 every opinion, which Plaintiff argues is deficient if taken alone. Plaintiff argues it is not the 12 generic language that is error, but the failure to provide specific clear and convincing reasons for 13 the credibility determination. (Br. 8.) 14 More specifically, Plaintiff contends the ALJ “appears to articulate the rationale that the 15 objective evidence of record is not consistent with the allegations,” where the ALJ finds that the 16 subjective statements regarding the impairments and limitations were not entirely consistent with 17 the evidence. (Br. 8; AR 553.) Plaintiff argues this reasoning “in and of itself is insufficient to 18 reject the testimony,” as the Ninth Circuit requires consideration of “excess pain” and not simply 19 the degree of pain limitation established by objective evidence. (Br. 8.) Plaintiff emphasizes the 20 regulations and precedent prohibit rejecting subjective pain testimony solely on the basis of 21 objective medical evidence, Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005). (Br. 8-9.) 22 Plaintiff argues that the ALJ’s attempt to reject the testimony due to poor compliance 23 with treatment is not based on substantial evidence (AR 553), as the record demonstrates that any 24 compliance issues are due to Plaintiff not being able to afford treatment. Plaintiff concedes the 25 ALJ noted Plaintiff’s issues with cost of the treatment (AR 553), though emphasizes the Ninth 26 Circuit has proscribed the rejection of pain testimony for lack of treatment where there record 27 establishes that the claimant could not afford it, and Plaintiff argues the record is replete with 1 Finally, Plaintiff notes that as the ALJ did not use Plaintiff’s daily activities as a reason to 2 reject the testimony, any argument of such by Defendant must not apply as the Court can only 3 review the rationales articulated in the ALJ’s decision, and even if the ALJ had mentioned daily 4 activities, Plaintiff argues that nothing in her descriptions of her limitations or as summarized by 5 the ALJ demonstrate that she is capable of maintaining substantial gainful activity. (Br. 11.)3 6 C. The ALJ Provided Clear and Convincing Reasons for Discounting Plaintiff’s Testimony 7 8 Defendant highlights the following of Plaintiff’s testimony that was noted by the ALJ: 9 Plaintiff alleged she was unable to work due to diabetes, depression, hernia, obesity, a heart 10 condition, high blood pressure, high cholesterol, back pain, and knee pain; (AR 180, 550); 11 Plaintiff testified that she stopped working in 2005 because she fell on the job and her employer 12 terminated her (AR 43-45, 550); Plaintiff alleged that her hernia was bothering her in 2009 (AR 13 50, 550); Plaintiff testified that she could not do her job in 2009 from the bending and brushing 14 up against her, that bending hurt her stomach, that touch was painful to the stomach, and her 15 stomach swelled (AR 55-56, 550); Plaintiff alleged “being very tired” or “so tired” “all the time” 16 and was at 30 to 40 percent functioning prior to the date last insured (AR 550, 574, 578). (Opp’n 17 13.) 18 Defendant argues the ALJ provided at least four compelling reasons, supported by 19 substantial evidence, for finding Plaintiff’s subjective allegations of disabling symptoms 20 inconsistent with the record overall (AR 546-553). (Opp’n 13.) Plaintiff submitted no reply 21 brief specifically addressing these four reasons argued by Defendant. The Court now turns to 22 each of these arguments. 23 1. The ALJ Properly Found a Lack of Objective Medical Evidence 24 Plaintiff is correct that a lack of objective medical evidence cannot form the sole basis 25 presented by the ALJ for rejecting pain testimony, however, it is clearly a proper factor the ALJ 26 27 3 Defendant responds that given that the ALJ did not articulate Plaintiff’s activities as a factor against her claim, this is a non-issue. Furthermore, the ALJ has articulated other valid reasons for discounting Plaintiff’s statements of 1 may consider in weighing a claimant’s testimony. See Vertigan v. Halter, 260 F.3d 1044, 1049 2 (9th Cir. 2001) (“The fact that a claimant’s testimony is not fully corroborated by the objective 3 medical findings, in and of itself, is not a clear and convincing reason for rejecting it.”); Burch, 4 400 F.3d at 680-81 (“Although lack of medical evidence cannot form the sole basis for 5 discounting pain testimony, it is a factor that the ALJ can consider in his credibility analysis . . . 6 Contrary to Burch’s argument, the ALJ did not solely rely on the minimal objective evidence and 7 Burch’s daily activities in discrediting her testimony. Indeed, these factors were among those he 8 relied on, however, the ALJ made additional specific findings to support his credibility 9 determination.”). 10 Defendant argues that the ALJ provided numerous examples of objective findings, “or 11 more precisely, an utter lack of any objective findings,” that contradicted Plaintiff’s claims of 12 disabling or severe impairments. (Opp’n 14.) 13 First, as for allegedly disabling back pain, knee pain, and musculoskeletal issues, the ALJ 14 found insufficient evidence to find Plaintiff’s alleged back and knee conditions were severe 15 impairments prior to the date last insured. (AR 546.) Specifically, as highlighted by Defendant, 16 the ALJ cited a number records in support of this finding, noting the following aspects: on 17 August 17, 2007, review of symptoms were negative for neurological or musculoskeletal 18 complaints, Plaintiff had no musculoskeletal tenderness, and range of motion was normal (AR 19 268); on August 22, 2007, Plaintiff reported a three day history of back pain, but denied joint or 20 muscle pain, the exam showed no acute distress, and there was no diagnosis related to a 21 musculoskeletal disorder (AR 356-357)4; on October 26, 2007, Plaintiff had normal gait and 22 sensation, no atrophy, and normal strength in all extremities (AR 348-351)5; then “[a]fter a gap 23 in treatment of 18 months, chart notes dated April 15, 2009 indicated” Plaintiff presented with 24 normal range of musculoskeletal motion and denied joint pain on review of symptoms (AR 342- 25 4 The date of the visit appears to be August 21, 2007, though it was signed on August 22, 2007. (AR 355-56.) 26 Plaintiff presented after not having “any medical care” for three years, started having chest pain, and reported lower back pain three days prior. (AR 356.) 27 5 The October 26, 2007 record also showed 5/5 motor strength (AR 348-351.) This record was also cited in regards 1 343)6; on May 4, 2009, Plaintiff denied myalgia (AR 336)7 and on June 30, 2010, Plaintiff 2 denied musculoskeletal or neurologic symptoms (AR 243). (AR 546, 552.) The ALJ concluded 3 that there was “insufficient evidence to suggest that the claimant had a musculoskeletal 4 impairment that had more than a minimal impact on the claimant’s ability to perform work 5 related activities [and thus] [h]er alleged back and knee impairments [we]re therefore non- 6 severe.” (AR 546.) 7 Next, the ALJ found Plaintiff’s medically determinable mental impairment of depression 8 did not cause more than a minimal limitation in the ability to perform basic mental work 9 activities, and was non-severe. (AR 548.) The ALJ stated that while Plaintiff claimed disability 10 due to depression when she filed her application, the evidence prior to the date last insured 11 “makes scant mention of any mental symptoms or treatment,” and rather to the “contrary, most 12 of the chart notes indicate normal mental status.” (AR 547.) In support of this determination, 13 the ALJ noted the following: on August 17, 2007, chart notes indicated Plaintiff was alert and 14 oriented, and review of symptoms were negative for psychiatric complaints (AR 267); on August 15 22, 2007, other than a note about being upset about finances, there was no diagnosis of a mental 16 impairment (AR 355); on September 18, 2007,8 and October 26, 2007, Plaintiff denied any 17 psychiatric complaints (AR 323, 348); there was a gap in treatment until April 15, 2000, when 18 Plaintiff denied depression or anxiety (AR 303, 342, 347); and on March 9, 2010, and April 6, 19 2010, Plaintiff made no mention of mental complaints (AR 327, 332, 334). (AR 547.) The ALJ 20 then also highlighted that the “only mention of any mental symptoms prior to the Date Last 21 Insured occurred on June 30, 2010, when she sought treatment for chest pain and shortness of 22 breath . . . It was noted that she became very anxious in the emergency room but her symptoms 23 disappeared with Ativan. She said that she had ‘some anxiety related to helping to take care of a 24 6 The April 15, 2009 exam also showed 5/5 motor strength, and intact sensation. (AR 343.) 25 7 On this date, the record also stated “Again, I strongly advised compliance with meds as well as exercise and diet.” (AR 336.) 26 8 This citation refers to a myocardial perfusion scan performed on September 17, 2007, not September 18, though 27 the record was signed on the September 18. (AR 323.) It is accurate that there is no reporting of a psychiatric complaint in this record, however it is not apparent that Plaintiff denied a psychiatric complaint as there is no record 1 neighbor’s newborn baby.’ She denied any prior psychiatric history. She was given a 2 prescription of Xanax to be used as needed and the discharge diagnosis included anxiety 3 disorder.” (AR 238, 547.) Based on these records and the opinion evidence,9 the ALJ concluded 4 that Plaintiff’s depression was non-severe. (AR 548.) 5 The ALJ also found Plaintiff’s cardiac condition was stable and that the RFC sufficiently 6 encompassed restrictions from the cardiac condition. (AR 551.) In support of this 7 determination, the ALJ first acknowledged that while the evidence did indicate that Plaintiff 8 suffered a heart attack due to hypertension in 1999 and underwent bypass surgery, cardiac 9 catherization and angioplasty, then noted that “subsequent findings over the next 11 years 10 indicate[d] her condition was stable.” (AR 550.) The ALJ made the following observations 11 regarding these records: on August 17, 2007, Plaintiff “presented to the emergency room 12 complaining of epigastric pain radiating to the back beginning 20 minutes after eating [AR 267] . 13 . . had been out of medication for one week . . . was discharged with a diagnosis of acute pain 14 and a prescription for pain medication and a ‘G.I. cocktail’ [AR 268] . . . [and] [n]othing in the 15 evidence suggests this pain was related to a coronary problem,”; an August 22, 2007 record 16 showed a review of symptoms was negative for cardiovascular issues, though the impression 17 included chest pain not otherwise specified and coronary atherosclerosis not otherwise specified 18 (AR 355); a September 14, 2007 myocardial perfusion exercise stress test was “entirely normal” 19 (AR 324); October 6, 2007 chart notes indicated Plaintiff was being seen for a physical exam and 20 on review of symptoms, Plaintiff denied any cardiac issues, and she had normal heart sounds 21 (AR 349, 351); April 15, 2009 chart notes indicated that a on review of symptoms, Plaintiff 22 denied chest pain, pressure, or discomfort (AR 342); on May 4, 2009, Plaintiff denied any chest 23 pain or shortness of breath (AR 336); that Plaintiff next sought treatment on March 9, 2010 for 24 an acute respiratory infection when she did not complain of symptoms of coronary artery disease 25 (AR 332-334); and on April 6, 2010, Plaintiff denied chest pain or shortness of breath, and had 26 no edema or ulcers on her bilateral lower extremities (AR 327). (AR 550-551.) 27 9 Here, the ALJ also discussed the opinion evidence relating to mental limitations, which the Court discusses 1 The ALJ then acknowledged that on June 30, 2010, Plaintiff complained of burning chest 2 pain, sweating, and shortness of breath that recurred while laying down but improved 3 immediately when sitting up. (AR 238, 551.) The ALJ noted the record reflected that stress 4 testing was completely normal, and that there was no acute coronary syndrome. (AR 551.) The 5 ALJ quoted the primary care physician’s statement that Plaintiff’s “symptoms are very unlikely 6 to be cardiac in nature given the normal cardiac workup and atypical presentation,” that Plaintiff 7 “has been doing well cardiac-wise since” her bypass 11 years before, and highlighted that “Dr. 8 Hassanein noted her symptoms were very atypical for acute coronary syndrome, and that ‘she 9 has done very well since her CABG and subsequent angioplasty and stenting.’ ” (AR 239, 243, 10 551.) The ALJ also acknowledged that the discharge diagnosis included a history of myocardial 11 infarction secondary to left anterior descending artery dissection. (AR 551.) 12 Following the summarization and review of the above records, the ALJ found: “As is 13 clear, the claimant’s heart condition remained stable through the Date Last Insured [as] 14 [o]bjective testing was normal, and a cardiologist noted that she had been doing very well 15 following her bypass surgery.” (AR 551.) Thus, “[t]he residual functional capacity 16 determination herein amply incorporates restrictions related to this condition.” (Id.) 17 The ALJ then determined that as for Plaintiff’s statements about her umbilical hernia, the 18 overall evidence was not consistent with reports of pain and limitation associated with the 19 condition. (AR 551.) In support of this determination, the ALJ made the following observations 20 regarding records relating to the hernia: after seeking treatment on August 17, 2007, for 21 epigastric pain, Plaintiff was discharged with a diagnosis of acute pain, and nothing in the 22 evidence suggested that the pain was related to a hernia (AR 267-68); on August 22, 2007, an 23 umbilical hernia was acknowledged on the record, however it was noted to be “asymptomatic” 24 (AR 355, 357); on October 26, 2007, a physical examination showed no tenderness or distention 25 in the abdomen and “no hernias,” (AR 348); there was a gap in treatment of 18 months, then a 26 record dated April 15, 2009, indicated Plaintiff complained of umbilical pain when coughing or 27 touching the area (AR 303, 341, 347); on April 6, 2010, Plaintiff reported hernia pain, but 1 examination, Dr. Lee noted a reducible umbilical hernia and that Plaintiff did not want pain 2 medication, and the doctor wrote that the hernia would be under “conservative management for 3 now,” but that Plaintiff should not do heavy lifting (AR 327); chart notes dated May 4, 2010, 4 made no mention of a hernia (AR 332); and on June 30, 2010, Plaintiff’s abdomen was “soft and 5 nontender and nondistended,” Plaintiff denied abdominal pain, and it was noted that she had an 6 “obvious umbilical hernia which is easily reducible and is nontender” (AR 238). (AR 551-552.) 7 The Court’s review has determined that the ALJ’s summary and utilization of the records 8 above is accurate and supported by substantial evidence. Other than Plaintiff’s generalized and 9 vague arguments summarized above, Plaintiff has not convincingly or specifically presented any 10 argument that the ALJ’s summary or analysis of the medical records as discussed here was 11 improper. Nor has Plaintiff presented sufficient evidence of objective medical records that 12 would counter Defendant’s arguments that the ALJ sufficiently relied in part on the absence of 13 objective medical records. Plaintiff did not file any reply brief specifically refuting the 14 Defendant’s presentation or arguments regarding the ALJ’s use of the records here. 15 Based on the foregoing, the Court finds the ALJ reasonably found Plaintiff’s allegations 16 of disabling physical or mental impairments were inconsistent with the record of objective 17 clinical evidence. The Court finds these were proper determinations supported by substantial 18 evidence, and while not sufficient standing alone, are clear and convincing determinations when 19 considered in conjunction with the ALJ’s reasoning discussed in the following subsections, 20 which provides additional support for the appropriateness of the ALJ’s credibility 21 determinations. See Vertigan, 260 F.3d at 1049 (“The fact that a claimant’s testimony is not 22 fully corroborated by the objective medical findings, in and of itself, is not a clear and 23 convincing reason for rejecting it.”) Burch, 400 F.3d at 680-81 (“Although lack of medical 24 evidence cannot form the sole basis for discounting pain testimony, it is a factor that the ALJ can 25 consider in his credibility analysis . . . Contrary to Burch’s argument, the ALJ did not solely rely 26 on the minimal objective evidence and Burch’s daily activities in discrediting her testimony.”). 27 / / / 1 2. Plaintiff’s Conduct and Inconsistent Statements 2 Defendant argues the ALJ also reasonably found Plaintiff’s conduct and statements 3 inconsistent with each other and with her allegations of disability (AR 546-553), and while 4 Plaintiff has claimed being restricted by her various impairments, the record includes many of 5 her statements to doctors denying any problems related to such impairments. (Opp’n 15.) 6 As stated above, in assessing the claimant’s credibility, the ALJ may consider: “(1) 7 ordinary techniques of credibility evaluation, such as the claimant’s reputation for lying, prior 8 inconsistent statements concerning the symptoms, and other testimony by the claimant that 9 appears less than candid; [and] (2) unexplained or inadequately explained failure to seek 10 treatment or to follow a prescribed course of treatment.” Tommasetti, 533 F.3d at 1039 (quoting 11 Smolen, 80 F.3d at 1284); see also Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997) 12 (“In weighing a claimant’s credibility, the ALJ may consider his reputation for truthfulness, 13 inconsistencies either in his testimony or between his testimony and his conduct, his daily 14 activities, his work record, and testimony from physicians and third parties concerning the 15 nature, severity, and effect of the symptoms of which he complains.”). 16 Here, the ALJ found Plaintiff’s “subjective statements regarding her impairments and 17 associated limitations” were not “entirely consistent with the evidence.” (AR 553.) In support 18 of this finding, the ALJ pointed to two main areas of inconsistency: (1) Plaintiff’s reasons for 19 leaving her prior work and acceptance of unemployment benefits; and (2) Plaintiff’s testimony 20 regarding fatigue. (AR 553.) The Court first turns to the ALJ’s comments regarding the fatigue 21 testimony. The ALJ stated: 22 At the hearing on August 6, 2018, the claimant said that in 2009 she remembers being very tired and fatigued all the time. She also said that her body ached all 23 the time. She said her fatigue was “through the roof.” However, she did not mention fatigue to any of her treating providers from 2007 through her Date Last 24 Insured. In fact, on June 30, 2010, she denied fatigue, malaise or lethargy (AR 247). 25 26 (AR 553.) 27 The Court summarized the entirety of the relevant August 6, 2018 hearing testimony 1 counsel examined Plaintiff, and the ALJ’s description of the testimony is accurate. (AR 578.) 2 Specifically, counsel asked about problems with fatigue, and Plaintiff answered she felt fatigued 3 or tired all of the time. (Id.) Plaintiff confirmed she would have to take a break after starting 4 activities. (Id.) Plaintiff stated it varied day to day, but there were points where Plaintiff would 5 want to sleep all day, and she would get up and then half an hour later she was so exhausted and 6 would just want to lay down again. (Id.) It wasn’t every day, but Plaintiff would be exhausted a 7 lot of the time, and her “fatigue was through the roof.” (Id.) Plaintiff would get up because she 8 still had children at home, and would function as much as she could, but she was tired to the 9 point where she just couldn’t function like a normal person. (Id.) Plaintiff estimated she was 10 below a thirty or forty percent level of functioning, and was not sure if it was from diabetes, or 11 her heart. (Id.) 12 Aside from mentioning Plaintiff’s testimony regarding fatigue and the ALJ’s summary of 13 Plaintiff’s testimony concerning such in the factual summary portion of Plaintiff’s opening brief, 14 Plaintiff’s briefing makes no mention of fatigue in the argument portion nor mention of records 15 demonstrating fatigue during this period. Plaintiff did not file a reply brief addressing 16 Defendant’s arguments regarding the ALJ’s use of the fatigue testimony and lack of records in 17 addressing Plaintiff’s credibility. Plaintiff only generally argues that the ALJ cannot reject 18 testimony solely based on a lack of objective medical evidence, but does not specifically address 19 the two specific rationales offered by the ALJ in this portion of the opinion. (Br. 7-8; AR 553.) 20 Given this absence of a specific challenge, it appears any argument that the ALJ’s reliance on the 21 fatigue testimony was error would be waived. See White v. Colvin, No. 2:14-CV-00334-MKD, 22 2016 WL 5109519, at *4 (E.D. Wash. Sept. 19, 2016) (although finding the reason to be 23 ultimately supported by substantial evidence, noting “Plaintiff ha[d] not challenged [one of 24 multiple] bas[es] for the credibility determination, meaning any objection [was] waived.”); 25 Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d at 1161 n.2 (“We do not address this finding 26 because Carmickle failed to argue this issue with any specificity in his briefing.”). 27 Nonetheless, even absent a specific challenge, given the review of the records and 1 mentioned fatigue to any of her treating providers from 2007 until the date last insured, despite 2 the fact that Plaintiff testified she felt fatigued or tired all of the time, and testified that she was 3 exhausted a lot of the time and her fatigue was “through the roof” during this same time period, 4 is a clear and convincing reason for discounting Plaintiff’s testimony. 5 Further, in this portion of Defendant’s briefing, Defendant also re-highlights the ALJ’s 6 discussion and citation to the records pertaining to Plaintiff’s denial of claims of musculoskeletal 7 issues, depression or psychiatric issues, hernia, and cardiopulmonary ailments, during the 8 relevant period. (Opp’n 16; AR 546-551.) In the previous subsection, the Court reviewed this 9 portion of the ALJ’s opinion and the records cited therein. While this discussion is in a different 10 portion of the ALJ’s opinion than the portion dealing specifically with the finding of inconsistent 11 statements, the Court agrees with Defendant that these records provide additional support for the 12 ALJ’s overall determinations that the Plaintiff’s allegations were not consistent with the evidence 13 as a whole and inconsistent with Plaintiff’s testimony. (Opp’n 16.) Plaintiff did not file a reply 14 brief and thus has again not disputed or specifically responded to these arguments. 15 The Court now turns to the ALJ’s finding that Plaintiff gave inconsistent accounts of why 16 she stopped working. The ALJ stated: 17 She testified that she stopped working in 2005 because she fell down three times and was terminated. However, in her disability report – adult, she said she denied 18 that she stopped working due to impairments, and instead indicated that she stopped working for “other reasons,” because she was laid off, on October 31, 19 2005 [AR 180-181]. She testified after she stopped working, she then received unemployment benefits for six to 12 months, and during this time she was 20 applying for jobs. The acceptance of unemployment benefits, which entails an assertion of the ability to work, is not entirely consistent with a claim of disability. 21 22 (AR 553.) 23 The disability report questionnaire referenced by the ALJ, states that Plaintiff stopped 24 working on October 31, 2005, because of the “other reason” that she was “laid off.” (AR 181.) 25 In response to the question of: “Even though you stopped working for other reasons, when do 26 you believe your conditions(s) [sic] became severe enough to keep you from working?” Plaintiff 27 answered December 1, 2005. (AR 181.) In response to the question of whether the condition 1 The hearing testimony that the ALJ refers to appears to be from the original April 30, 2 2015 hearing. (AR 34-63, 550, 553.) At the 2015 hearing before the previous ALJ (the “First 3 ALJ”), the First ALJ asked about losing her job, and Plaintiff stated it was “[b]ecause I started to 4 lose my balance and I fell like three times at my job site, so I was terminated.” (AR 45.) The 5 Plaintiff then confirmed that it was after her heart attack that she got that job. (Id.) The First 6 ALJ inquired if she had fallen before, and Plaintiff confirmed that she had balance problems, but 7 denied falling previously. (Id.) The First ALJ asked if she found out from the doctor why she 8 fell, and Plaintiff stated the doctor did not know why she fell. (AR 45-46.) The First ALJ 9 inquired further if it was due to slipping or balance, and Plaintiff stated it was because of 10 balance, that she remained conscious the whole time, and that she did not injure herself seriously 11 the times she fell. (AR 46.) The First ALJ then asked whether the employer terminated Plaintiff 12 because she was falling, and Plaintiff stated: “They terminated me. They did not give me a 13 reason.” (Id.) The First ALJ asked whether Plaintiff suspected the falling was the reason, and 14 then Plaintiff stated: “Yes, sir.” (Id.) 15 The First ALJ then asked whether Plaintiff filed for unemployment benefits after she left 16 the job, and Plaintiff answered yes, she received unemployment benefits. (AR 46-47.) Plaintiff 17 first stated she did not recall how long she received benefits, but then answered that it was maybe 18 six months to one year. (AR 47.) The First ALJ asked whether she was actively looking for 19 work during the period of time she was drawing benefits, and Plaintiff confirmed she was, and 20 when asked what types of jobs she was applying for, Plaintiff stated: “McDonald’s, any type of 21 food service work,” but she did not get any leads. (AR 47.) 22 Based on review of the questionnaire and the relevant hearing testimony, the Court finds 23 the ALJ’s statements concerning Plaintiff’s reasons for leaving work and receipt of 24 unemployment benefits to be accurate. Plaintiff did not mount a specific challenge to the ALJ’s 25 use of Plaintiff’s receipt of unemployment benefits, but the Court will now address some of the 26 law pertaining to that rationale. 27 A claimant’s seeking of employment does not necessarily equate to an adequate reason 1 (rejecting as a basis for finding a claimant not credible, the claimant’s having sought 2 employment during the relevant period as it showed “no more than that he was doing his utmost, 3 in spite of his health, to support himself.”). Nonetheless, “[c]ontinued receipt of unemployment 4 benefits does cast doubt on a claim of disability, as it shows that an applicant holds himself out 5 as capable of working.” Ghanim v. Colvin, 763 F.3d 1154, 1165 (9th Cir. 2014). However, the 6 record must establish that Plaintiff held herself out for full-time work. Carmickle, 533 F.3d at 7 1161–62 (“First, while receipt of unemployment benefits can undermine a claimant’s alleged 8 inability to work fulltime . . . the record here does not establish whether Carmickle held himself 9 out as available for full-time or part-time work [and] [o]nly the former is inconsistent with his 10 disability allegations [and] [t]hus, such basis for the ALJ’s credibility finding is not supported by 11 substantial evidence.”). 12 On one hand, on the face of the record the Court has reviewed, it is not absolutely clear 13 whether or not Plaintiff held herself out for full time work. See Thomas v. Colvin, No. CV 15- 14 01451-RAO, 2016 WL 1733418, at *5 (C.D. Cal. Apr. 29, 2016) (“It is unclear, however, 15 whether she held herself out as available for full-time or part-time work. Thus, the Court finds 16 that this reason for discounting Plaintiff’s credibility is not supported by substantial evidence.”); 17 Rys v. Berryhill, No. CV 16-8391-JPR, 2018 WL 507207, at *14 (C.D. Cal. Jan. 19, 2018) (“The 18 record here does not indicate how or under what circumstances Plaintiff received his 19 unemployment benefits, including whether it was for full-time or part-time work . . . Thus, 20 without more, the ALJ’s reliance on Plaintiff’s apparent receipt of unemployment benefits was 21 neither a clear nor convincing reason for discounting his statements’ credibility.”); Henderson v. 22 Comm’r, Soc. Sec. Admin., No. 6:17-CV-00481-HZ, 2018 WL 2102401, at *6 (D. Or. May 4, 23 2018) (“As Plaintiff correctly points out, the record does not provide any additional information 24 on whether he applied for full-or part-time work. The Commissioner argues that Plaintiff's 25 applications for truck-driving jobs and the fact that he lost his job for reasons unrelated to his 26 disability create the reasonable inference that Plaintiff’s unemployment applications were for 27 full-time work . . . but the Court finds this argument unpersuasive.”). 1 herself out as available for full time work, given she confirmed she was “actively looking” for 2 employment, and testified she was applying for “any” type of food-service employment. (AR 3 47.) Further, the period of time of receiving unemployment benefits being six to twelve months 4 (AR 47), is a significant period of time to receive such benefits. Lozano v. Colvin, No. EDCV 5 15-2579-KS, 2016 WL 7227879, at *6 (C.D. Cal. Dec. 12, 2016) (“Another factor the ALJ 6 considered in discounting Plaintiff credibility was Plaintiff’s earnings record, which showed that 7 she had received unemployment benefits from first quarter 2012 through the second quarter of 8 2013 . . . Plaintiff’s continued receipt of unemployment benefits long after her alleged disability 9 onset date of May 23, 2011 is a clear and convincing reason for discounting Plaintiff’s testimony 10 because, as the ALJ pointed out, to obtain unemployment benefits, Plaintiff had to certify that 11 she was ‘willing and able to engage in work activity’ and this is inconsistent with her claim of 12 disability.”); c.f. Ghanim, 763 F.3d at 1165 (“But here, Ghanim actually declined unemployment 13 benefits within about a month of his onset date; rather than undercut his claim of disability, this 14 prompt refusal of unemployment benefits supports it.”). 15 Given the record the Court has reviewed, the Court would be more inclined to find the 16 ALJ did not err in utilizing the receipt of unemployment benefits for this length of time, 17 particularly considering this determination by the ALJ was an additional or bolstering factor 18 considered in relation to what the ALJ found to be inconsistent statements concerning Plaintiff’s 19 reasons for leaving her employment. See Copeland v. Bowen, 861 F.2d 536, 542 (9th Cir. 1988) 20 (affirming ALJ’s credibility determination where ALJ “did not find the claimant’s testimony or 21 allegations of disability to be fully credible in light of the fact that he left work because he was 22 laid off (although allegedly because of medical reasons); received unemployment insurance 23 benefits thereafter (apparently considering himself capable of work and holding himself out as 24 available for work); his allegations of disability were not supported by the medical records for 25 the period prior to September 1985; and his testimony at the hearing appeared to be somewhat 26 exaggerated (he testified that the reason he had not brought his cane to the first administrative 27 hearing was because he left it in the car) and appeared somewhat self-serving.”). 1 the receipt of unemployment benefits, and thus Defendant was not put on notice to find and 2 direct the Court to support in the record that further establishes Plaintiff was seeking full-time 3 work. White, 2016 WL 5109519, at *4 (“Plaintiff has not challenged this basis for the credibility 4 determination, meaning any objection is waived.”); Carmickle, 533 F.3d at 1161, n.2. Similar to 5 the fatigue issue discussed above, aside from mentioning Plaintiff’s hearing testimony regarding 6 her proffered reason for leaving her job, namely falling three times and being terminated (Br. 4), 7 and the ALJ’s summary of Plaintiff’s hearing testimony concerning such in the factual summary 8 portion of Plaintiff’s opening brief (Br. 5), there is no specific challenge or refutation of the 9 ALJ’s use of the inconsistent reasons for leaving work or the receipt of unemployment benefits 10 in the argument portion, and Plaintiff did not file a reply brief addressing Defendant’s arguments 11 regarding the ALJ’s use of this reason. Plaintiff only generally argues that the ALJ cannot reject 12 testimony solely based on objective medical evidence, but does not specifically address the two 13 rationales offered by the ALJ here. (Br. 7-8; AR 553.) 14 Finally, even if the particular aspect of reliance on the receipt of unemployment benefits 15 was not based on substantial evidence in record not establishing Plaintiff was seeking full-time 16 work, any error would be harmless as “the ALJ’s remaining reasoning and ultimate credibility 17 determination were adequately supported by substantial evidence in the record.” Carmickle, 533 18 F.3d at 1162 (emphasis in original) (“On this record, the ALJ's error in relying on Carmickle’s 19 receipt of unemployment benefits and on his relatively conservative pain treatment regime does 20 not ‘negate the validity’ of the ALJ’s adverse credibility finding.”); White, 2016 WL 5109519, at 21 *5 (“The ALJ’s reliance on Plaintiff’s receipt of unemployment benefits, on this record, was 22 harmless error. Here, the ALJ cited other properly supported reasons for discrediting Plaintiff.”). 23 3. Course of Treatment and Plaintiff’s Non-Compliance 24 Defendant next argues that the ALJ properly found that Plaintiff’s course of treatment, 25 gaps in treatment, and lack of compliance with treatment, belied her claims of disabling 26 symptoms (AR 546-553). (Opp’n 17.) Defendant argues the ALJ properly noted a significant 27 gap in treatment of eighteen (18) months between October of 2007 and April of 2009, during 1 psychiatric complaints, or cardiac issues. (AR 546, 547.) Defendant contends that even though 2 this gap is before the alleged onset date of June 2, 2009, it demonstrates that Plaintiff was not 3 experiencing any severe symptoms immediately before the relevant period, which further 4 supports the ALJ’s finding that her overall treatment, when she did finally seek it out, was 5 benign. 6 Defendant emphasizes the ALJ’s findings regarding Plaintiff’s medical records once she 7 did receive treatment following the eighteen (18) month gap in treatment. (Opp’n 18.) 8 Specifically, in reviewing records relating to hypertension and finding the condition non-severe, 9 the ALJ noted that after Plaintiff resumed treatment on April 15, 2009, chart notes indicated 10 Plaintiff “was not taking cholesterol medication and that it was not under good control . . . blood 11 pressure was elevated and she had been out of her hypertension medication for a week . . . but 12 she denied headache or blurred vision [and] [h]er physician noted, ‘the current medical regiment 13 is effective’ with respect to hypertension.” (AR 546.) The ALJ cited a May 4, 2009 record, that 14 reflected Plaintiff’s “blood pressure control was suboptimal, but she denied headache or blurred 15 vision, and the doctor ‘strongly advised compliance.’ ” (Id.) The ALJ also cited: an April 6, 16 2010 record, wherein Plaintiff denied headache or blurry vision, was tolerating blood pressure 17 medication, and her hypertension was stable; a March 9, 2010 record wherein blood pressure was 18 elevated, but Plaintiff had not taken her medication that day; and “[c]hart notes subsequent to her 19 Date Last Insured dated January 28, 2011, [that] indicate[d] that the claimant did not take her 20 hypertension medication regularly.” (AR 546.) Based on these records, the ALJ concluded: 21 Thus, there is no evidence that these conditions have result[ed] in significant and ancillary effects, such as end organ damage. Nor is there evidence that they are 22 uncontrollable and compliance appears to be an issue, as the claimant admitted not taking her medication on occasion. There is simply no evidence to suggest 23 that these conditions had more than a minimal impact on her ability to perform work-related activities for any consecutive 12-month period and the undersigned 24 finds them non-severe. 25 (AR 546.) The ALJ additionally noted the eighteen (18) month gap in treatment and minimal 26 course of treatment in regards to musculoskeletal issues and mental impairments in this section, 27 finding such alleged ailments to be non-severe. (AR 547-548.) 1 inadequately explained, failure to seek treatment or follow a prescribed course of treatment. Fair 2 v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). “While there are any number of good reasons for 3 not doing so . . . a claimant’s failure to assert one, or a finding by the ALJ that the proffer[]ed 4 reason is not believable, can cast doubt on the sincerity of the claimant’s pain testimony.” Id. 5 Plaintiff argues that the ALJ’s attempt to reject the testimony due to poor compliance 6 with treatment is not based on substantial evidence, as the record demonstrates that any 7 compliance issues are due to Plaintiff not being able to afford treatment. (Br. 10.) Plaintiff is 8 correct that “[d]isability benefits may not be denied because of the claimant’s failure to obtain 9 treatment he cannot obtain for lack of funds.” Trevizo v. Berryhill, 871 F.3d 664, 680–81 (9th 10 Cir. 2017) (quoting Gamble v. Chater, 68 F.3d 319, 321 (9th Cir. 1995)); Warre v. Comm’r of 11 Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (“It is true that benefits may not be 12 denied to a disabled claimant because of a failure to obtain treatment that the claimant cannot 13 afford . . . This rule implements the agency’s official policy: Social Security Ruling (“SSR”) 82– 14 59 provides that an individual’s failure to follow prescribed treatment is justifiable if the 15 individual is unable to afford such treatment.”). 16 Plaintiff cites the following records in support of her argument that any non-compliance 17 issues were due to not being able to afford treatment: AR 327 (cannot afford medical insurance 18 copay); AR 759-760 (cannot afford medicine); AR 994 (difficulty affording syringes to treat 19 diabetes); AR 1016 (unable to afford doctor appointment); AR 1331 (unable to afford physical 20 therapy); AR 2334 (unable to afford test strips to test blood sugar); AR 3088 (declined to go into 21 medical office due to high co-pay); AR 3493 (cannot afford to make doctor appointment); AR 22 4374, 4377 (unable to afford insulin). (Br. 9.) Plaintiff concedes the ALJ acknowledged 23 Plaintiff’s issues with the cost of the treatment (AR 553), and while the ALJ acknowledged such, 24 argues the rejection of the testimony due to non-compliance despite the clear inability to afford 25 the treatment was error and not supported by substantial evidence. (Br. 10.) 26 Defendant first responds that the records cited, aside from one, which the ALJ 27 acknowledged, are after her date last insured. (Opp’n 18.) Defendant further highlights that in 1 medical secretary for financial help.” (Opp’n 19.) 2 Defendant is correct that aside from one record which the ALJ acknowledges in the 3 decision, each record cited by Plaintiff is from the time period after the date last insured. 4 Plaintiff did not file a reply brief addressing this fact, and thus did not provide the Court with 5 additional evidentiary support. The Court has reviewed and will now provide a summary of each 6 of the relevant portions of the records cited by Plaintiff for the argument that the medical record 7 is “replete with notations that [Plaintiff] has difficulty affording treatment.” (Opp’n 19.) 8 First, the only record from a date prior to the date last insured is the April 6, 2010 record 9 that the ALJ did mention in the opinion. (AR 553.) On April 6, 2010, under the notes relating to 10 diabetes, the record states Plaintiff “didn’t follow up and didn’t do blood work because she 11 couldn’t afford the copay.” (AR 327.) The record also notes that Plaintiff was “discouraged to 12 know that Dr. Davis thinks she is high risk for hernia repair,” that she does not want pain meds at 13 this time, and that she is willing to go through gastric bypass surgery. (AR 327.) This record 14 was cited by the ALJ as part of numerous records regarding Plaintiff’s compliance with 15 recommended treatments, cited in support of the ALJ’s finding that “despite poor compliance, 16 Plaintiff has not suffered from serious consequences of uncontrolled diabetes, such as ulcers, 17 neuropathy, nephropathy, ketoacidosis, or similar complications.” (AR 553.) Specifically, the 18 ALJ cited that in May of 2009, Plaintiff’s doctor strongly advised compliance, then the next 19 record cited is the April 6, 2010 record and the ALJ noted that “[u]pon follow up with Dr. Lee on 20 April 6, 2010, she said she did not follow up with blood work for diabetes due to the cost . . . 21 [t]he impression was that her diabetes was uncontrolled.” (AR 552-553.)10 22 The other records fall on dates after the date last insured. On December 19, 2013, 23 Plaintiff presented by telephone for urgent care relating to chest wall pain, and the record states 24 Plaintiff had “ran out [of] her pills, do[es]n’t have money to purchase any more medicines . . . 25 10 Defendant argues that as for this record that was acknowledged by the ALJ, this claim appeared less than genuine 26 given that at the same visit, Plaintiff indicated that she did not want to take pain medication for her hernia and was willing to proceed with a gastric bypass surgical procedure (AR 327). Defendant argues this indicates that Plaintiff 27 did not lack financial resources. (Opp’n 18-19.) The Curt will not address this argument as it was not clearly stated by the ALJ. 1 spent 34 minutes on the phone explaining her current condition . . . [w]ith her pain description 2 sounds like neuropathy from shingles . . . [a]dvised to get an EKG and examination for the lump 3 . . . Patient declined to come in due to high co-pay . . . Requesting a call from primary care 4 physician tomorrow . . . Eats all fast food, snacks and easy to buy foods . . . fruits and veg are 5 expensive . . . Needs to be compliant with diet and exercises, keep checking blood sugars before 6 breakfast, scheduled appointments with physician.” (AR 759-760.)11 On July 2, 2014, Plaintiff 7 identified the following as her primary barrier to lowering blood sugar and improving health: 8 “[diabetes] for 4yrs, insurance does not cover medications so fills at outside pharmacy, did not 9 qualify [for] financial assistance this year so may not be able to afford syringes, husband ill . . . 10 so busy and overwhelmed since he is not working and 30k less income . . . advised that without 11 exact glucometer information I have limited ability to effectively work with her on managing 12 diabetes today. Pt agrees to monitor and record results.” (AR 994.) On October 6, 2014, 13 Plaintiff presented by telephone for a yeast infection, asked for a prescription, stated she could 14 not afford to make an appointment to be seen, and stated she would like the prescription called in 15 to the pharmacy. (AR 1016.)12 On September 16, 2015, Plaintiff presented for back pain, she 16 reported she had not received physical therapy, and the record notes Plaintiff declined physical 17 therapy “due to cost,” and that she wanted to know about alternative means to address back pain 18 other than taking pills, such as acupuncture. (AR 1331.) On February 15, 2017, Plaintiff called 19 the provider stating she could not afford blood sugar test strips and inquired about other options. 20 (AR 2334.) On June 25, 2018, Plaintiff presented by telephone and Plaintiff stated there were “a 21 lot of other health issues going on which has been causing her financial stress. She has not 22 started the Humulin R before lunch as she is not able to afford it.” (AR 4374.) 23 Given these records, the Court finds the ALJ’s discounting of Plaintiff’s testimony due to 24 her course of treatment, including a significant gap of eighteen months in treatment, and issues 25 of Plaintiff’s compliance with treatment, were clear and convincing reasons, and Plaintiff’s 26 11 Plaintiff cites to duplicate records in briefing stating: “AR 3088 (declined to go into medical office due to high co-pay),” however the citation is to the same December 19, 2013 record. (Br. 9; AR 759-760, 3088.) 27 12 Plaintiff again cites a duplicative record, stating: “AR 3493 (cannot afford to make doctor appointment),” 1 sporadic records demonstrating some complaints regarding paying for treatment, mainly after the 2 relevant period, do not critically undermine the ALJ’s determination in this area. The ALJ’s 3 findings as to issues of compliance in relation to hypertension (AR 546), and in relation to 4 diabetes (AR 553), are supported by substantial evidence, and the Plaintiff’s reference to the 5 records concerning issues of affording treatment are not persuasive, given the repeated issues of 6 noncompliance, and the fact that the only record cited by Plaintiff that was on a date during the 7 relevant period, was in fact acknowledged by the ALJ (AR 553). See Trevizo, 871 F.3d at 680– 8 81 (“At a handful of other medical visits, treating doctors expressed concerns with Trevizo’s 9 compliance without giving any explanation as to why Trevizo might be noncompliant [and] 10 [t]hese instances of noncompliance may properly be weighed against finding Trevizo’s 11 testimony to be believable.”); Spittle v. Astrue, No. 3:11-CV-00711-AA, 2012 WL 4508003, at 12 *5 (D. Or. Sept. 25, 2012) (“The record is unclear as to whether plaintiff could afford additional 13 mental health treatment. However, the ALJ’s finding was not irrational given the other treatment 14 plaintiff was able to obtain . . . Accordingly, I do not find that there is sufficient evidence in the 15 record to suggest that the plaintiff was unable to afford any mental health treatment so as to 16 render the ALJ’s findings erroneous.”).13 This is not a case like Gamble where the claimant 17 would have been found disabled under a listing but for the inability to afford treatment. See 18 Reyes v. Comm’r of Soc. Sec., No. C 10-04571 JSW, 2012 WL 1094337, at *8–9 (N.D. Cal. 19 Mar. 29, 2012) (“Reyes cites Gamble for the simple proposition that claimants cannot be denied 20 benefits because they have failed to obtain medical treatment that they cannot afford . . . Unlike 21 22 13 See also Rams v. Astrue, No. 1:11-CV-02059 GSA, 2013 WL 85298, at *8 (E.D. Cal. Jan. 8, 2013) (“However, unlike Gamble where the medical record clearly established a severe impairment and the claimant’s inability to 23 afford the medical care necessary to treat his condition, here, there is little to no evidence of a severe back impairment prior to 2008. This coupled with evidence that Plaintiff had medical insurance coverage through Kaiser 24 distinguishes this matter from Gamble. Thus, to the degree the ALJ relies upon a lack of MRI or CT scans that would constitute objective evidence of Plaintiff's back impairments, that finding is not irrational given the lack of 25 medical evidence regarding a severe back impairment prior to 2008 and the fact Plaintiff was able to obtain other medical treatment during the same period. Accordingly, the Court finds there is insufficient evidence in the record to suggest that the Plaintiff was unable to afford any medical treatment regarding her back complaints so as to render 26 the ALJ's findings in this regard erroneous.”); Allen v. Colvin, No. 1:13-CV-01523-AA, 2014 WL 5167305, at *3 (D. Or. Oct. 8, 2014) (“Here, the record reveals that plaintiff declined counseling, not because she could not afford 27 it, but instead because she felt that medications alone would help with her symptoms. As such, this Court finds that the ALJ did not err by factoring plaintiff’s failure to seek treatment into her adverse credibility finding.”). 1 in Gamble, there is no evidence in the record that the ALJ found that Reyes did not have a 2 disability because she could not afford treatment.”).14 3 Defendant additionally argues that the ALJ reasonably found Plaintiff’s conservative 4 treatment of her hernia undermined her claim of disabling symptoms. (Opp’n 19.) As the ALJ 5 noted, Plaintiff’s doctor instructed Plaintiff to treat her hernia conservatively by avoiding heavy 6 lifting. (AR 327, 552). The ALJ found the overall evidence consistent with the RFC, “in light of 7 the numerous occasions the claimant made no mention of complaints related to her hernia, the 8 fact she declined medication, and the fact her doctor precluded only heavy lifting.” (AR 552.) 9 This provides additional support for the ALJ’s findings regarding conservative treatment that are 10 not undermined by any claim of inability to pay. See Saul v. Berryhill, No. 1:17-CV-01744- 11 BAM, 2019 WL 1367802, at *7 (E.D. Cal. Mar. 26, 2019) (“The ALJ did not discount Dr. 12 Wolney’s opinion because Plaintiff failed to obtain treatment, conservative or otherwise, that 13 was recommended by her providers. Instead, the ALJ discounted Dr. Wolney’s opinion because 14 the treatments that Plaintiff’s providers prescribed were conservative in nature and therefore 15 inconsistent with the severity of the limitations described in Dr. Wolney’s report. Whether 16 Plaintiff was able to afford treatment was immaterial to this finding because the ALJ’s inquiry 17 was the type of treatment prescribed, not Plaintiff's failure to obtain the recommended 18 treatment.”). Although a declination of treatment due to side effects may be a proper basis for a 19 claimant’s conservative treatment,15 the ALJ also addressed Plaintiff’s declination of medication 20 14 See also Chavarin v. Berryhill, No. 317CV00104MMDVPC, 2018 WL 992060, at *7 (D. Nev. Jan. 10, 2018) 21 (finding Gamble v. Charter to be “inapposite as it holds solely that a disability claimant may not be denied benefits where his or her condition is remediable but the remedy, such as a prosthetic, is unaffordable . . . The record does 22 not demonstrate that more aggressive treatment options were unavailable to plaintiff for purely financial reasons. In fact, the ALJ points out that plaintiff had the opportunity to elect surgery or additional epidurals, but refused to do so 23 because of his fear of invasive treatment, not because of poverty . . . In any event, the ALJ did not take issue with plaintiff’s failure to seek out more aggressive, and expensive, treatment options. Rather, the ALJ focused on 24 plaintiff’s failure to continue treatment that he had previously engaged in, and his subsequent failure to immediately report his second back injury to a medical professional. (AR 36.) By eventually resuming treatment, plaintiff 25 established that poverty was not a bar to timely and consistently seeking out that treatment. The ALJ was not required to inquire as to why plaintiff paused his medical treatment because it did not appear related to plaintiff’s financial state.”), report and recommendation adopted, No. 317CV00104MMDVPC, 2018 WL 988064 (D. Nev. 26 Feb. 20, 2018). 27 15 Carmickle, 533 F.3d at 1162 (“[A]lthough a conservative course of treatment can undermine allegations of debilitating pain, such fact is not a proper basis for rejecting the claimant’s credibility where the claimant has a good 1 for her hernia, stating “[w]hile the claimant testified that she did not want medication due to side 2 effects, there is no indication that she in fact experienced side effects or that she requested 3 alternatives.” (AR 552.) Plaintiff does not address this aspect of the ALJ’s opinion, and the 4 Court finds the reasoning provides additional to support to the ALJ’s discounting of Plaintiff’s 5 testimony based on a conservative course of treatment. 6 4. Inconsistency with Medical Opinions 7 Defendant argues the ALJ reasonably found Plaintiff’s allegations of disability 8 inconsistent with various medical opinions and assessments (AR 546-553). (Opp’n 19.) First, as 9 the ALJ discussed, “no treating provider ha[d] indicated that she had any mental limitations prior 10 to her Date Last Insured,” and non-examining state agency reviewing physician Dr. Funkenstein 11 and state agency psychologist Dr. Hawkins, found no severe mental impairment with only mild 12 difficulties in maintaining social functioning. (AR 547.) The ALJ assigned significant weight to 13 the state opinions to the extent they found no severe mental impairment, but the ALJ found no 14 limitation in social interaction, with a mild limitation in understanding, remembering and 15 applying information. (Id.) 16 The ALJ considered the opinions of non-examining State agency physicians Dr. Narabadi 17 and Dr. Taylor, and assigned a more restrictive RFC than opined, finding such to be more 18 consistent with Plaintiff’s treating doctor’s recommendation to avoid heavy lifting due to the 19 hernia: 20 As for the opinion evidence not otherwise discussed above, Dr. Nasrabadi and Dr. Taylor the non-examining State agency physicians who reviewed the 21 documentary evidence on July 31, 2013 and October 1, 2014, felt that the claimant could perform medium work (Exhibit 1A; 3A). These opinions are 22 afforded reduced weight, and a more restrictive residual functional capacity determination has been adopted herein, in order to accommodate all of the severe 23 and nonsevere impairments that existed prior to her Date Last Insured, including her obesity and hernia. Per her treating doctor, the claimant was instructed to 24 avoid heavy lifting, and thus a light residual functional capacity is appropriate. 25 (AR 553.) 26 because of adverse side effects. In 2003, he also indicated that he would prefer to take Relafen, which was prescribed by Dr. Patton, but his insurance does not cover this medication. Both of these assertions are supported by 27 Dr. Patton's treatment notes . . . On this record, Carmickle’s minimal treatment regime is not a proper basis for finding him non-credible.”). 1 The ALJ also summarized treatment records from June of 2010 relating to Plaintiff’s 2 cardiac condition: 3 On June 30, 2010, she complained of burning chest pain, sweating, and shortness of breath while lying down that improved immediately when sitting up but 4 recurred when lying down . . . Stress testing was completely normal, and there was no acute coronary syndrome. Her primary care physician, Dr. Lee, noted, 5 “[h]er symptoms are very unlikely to be cardiac in nature given the normal cardiac workup and atypical presentation.” In fact, “[s]he has been doing well 6 cardiac-wise since” her bypass 11 years earlier . . . Dr. Hassanein noted her symptoms were very atypical for acute coronary syndrome, and that “she has 7 done very well since her CABG and subsequent angioplasty and stenting.” 8 (AR 551.)16 The ALJ concluded that “[a]s is clear, the claimant’s heart condition remained 9 stable through the Date Last Insured. Objective testing was normal, and a cardiologist noted that 10 she had been doing very well following her bypass surgery. The residual functional capacity 11 determination herein amply incorporates restrictions related to this condition.” (AR 551.) 12 When considered with the reasons discussed in the previous subsections, the Court finds 13 the inconsistency with the state agency medical opinions and other medical opinions are clear 14 and convincing reasons for rejecting the claimant’s testimony. See Kallenbach v. Berryhill, 766 15 F. App’x 518, 521 (9th Cir. 2019) (“The ALJ provided specific, clear, and convincing reasons 16 for discounting Kallenbach’s testimony, including inconsistencies between Kallenbach’s 17 allegations of impairment and his medical treatment records, inconsistencies between the 18 medical opinion evidence and Kallenbach’s testimony, and Kallenbach’s failure to seek and 19 adhere to prescribed treatment.”); Lake v. Colvin, 633 F. App’x 414, 415 (9th Cir. 2016) (“The 20 ALJ provided specific, clear, and convincing reasons for the credibility assessment, including 21 inconsistencies between Lake’s testimony regarding his limitations and the medical opinions and 22 documentary evidence.”); White v. Colvin, 622 F. App’x 639 (9th Cir. 2015) (“The ALJ 23 provided specific, clear, and convincing reasons for the credibility assessment, including 24 inconsistencies between White’s testimony regarding her limitations and the medical opinions 25 and record.”); Moncada v. Chater, 60 F.3d 521, 524 (9th Cir. 1995) (holding the ALJ gave valid 26 specific reasons where a doctor “believed that Moncada could do sedentary work, that Moncada 27 16 It appears these records may have all been dictated by Dr. Hassanein, and only signify that Plaintiff’s treating 1 | said that he uses pain medication infrequently, and that Moncada’s testimony about his daily 2 | living activities were much more limited than those reported in a disability report completed by 3 | him prior to his testimony.”). 4 V. 5 CONCLUSION AND ORDER 6 Based on the foregoing, the Court finds that the ALJ provided clear and convincing 7 reasons for discounting Plaintiff's testimony. The Court finds the ALJ’s decision to be 8 | supported by substantial evidence in the administrative record, and free from remandable legal 9 | error. 10 Accordingly, IT IS HEREBY ORDERED that Plaintiff's appeal from the decision of the 11 | Commissioner of Social Security is DENIED. It is FURTHER ORDERED that judgment be 12 | entered in favor of Defendant Commissioner of Social Security and against Plaintiff Liza 13 | Moreno. The Clerk of the Court is DIRECTED to CLOSE this action. 14 15 IT IS SO ORDERED. OF. nf ae 16 | Dated: _January 11, 2021 _ OO 4 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28