(SS) Woodworth v. Commissioner of Social Security ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL JOHN WOODWORTH, Case No. 1:21-cv-00159-SKO 12 Plaintiff, 13 v. ORDER ON PLAINTIFF’S SOCIAL 14 SECURITY COMPLAINT KILOLO KIJAKAZI, 15 Acting Commissioner of Social Security,1 16 Defendant. (Doc. 1) 17 _____________________________________/ 18 19 I. INTRODUCTION 20 21 Plaintiff Michael John Woodworth (“Plaintiff”) seeks judicial review of a final decision 22 of the Commissioner of Social Security (the “Commissioner” or “Defendant”) denying his 23 applications for disability insurance benefits (“DIB”) and Supplemental Security Income (SSI) 24 under the Social Security Act (the “Act”). (Doc. 1.) The matter is currently before the Court on 25 the parties’ briefs, which were submitted, without oral argument, to the Honorable Sheila K. 26 27 1 On July 9, 2021, Kilolo Kijakazi was named Acting Commissioner of the Social Security Administration. See https://www.ssa.gov/history/commissioners.html. She is therefore substituted as the defendant in this action. See 42 28 U.S.C. § 405(g) (referring to the “Commissioner’s Answer”); 20 C.F.R. § 422.210(d) (“the person holding the Office 1 Oberto, United States Magistrate Judge.2 2 II. BACKGROUND 3 Plaintiff was born on July 6, 1975, has a high school education, and can communicate in 4 English. (Administrative Record (“AR”) 38, 52, 72, 86, 243, 248, 264, 275.) On August 16, 2016, 5 Plaintiff protectively filed a claim for DIB payments, alleging disability beginning on September 6 28, 2015, due to left ankle problems and depression. (AR 27, 33, 71–72, 85, 97, 104, 201–205, 7 247.) On September 29, 2017, after filing a request for a hearing following the denial of DIB, 8 Plaintiff protectively filed a claim for SSI payments, also alleging disability beginning on 9 September 28, 2015. (AR 206–218.) Such claim was escalated to the hearing level at that time. 10 (AR 27.) 11 A. Relevant Evidence of Record3 12 1. Medical Evidence 13 In July 2015, Plaintiff reported experiencing bilateral foot and ankle pain. (AR 302.) 14 Radiologic studies showed sclerosis of the left navicular with arthritic changes of the talonavicular 15 and naviculocuneiform joints, as well as the presence of right sinus tarsi syndrome. (AR 303.) An 16 MRI performed in August 2015 of Plaintiff’s left foot similarly showed osteonecrosis of the 17 navicular with arthritis of the talonavicular joint. (AR 306.) In October 2015, Plaintiff underwent 18 surgery in his left foot performed by Heather A. Hento, D.P.M., and was thereafter advised by Dr. 19 Hento to “remain strictly nonweightbearing of the left lower extremity with crutch assist.” (AR 20 308–09, 311, 313, 317.) At a follow up appointment later that month, Dr. Hento instructed him on 21 how to use a bone stimulator daily to the left lower extremity. (AR 315.) Dorsal displacement of 22 the bone graft was noted. (AR 314.) 23 In November 2015, Plaintiff presented for a follow up appointment and told Dr. Hento that 24 “he has not been applying his bone stimulator daily to the left foot.” (AR 316.) He also indicated 25 he has “been applying small amounts of weight to the left foot with ambulating.” (AR 318.) 26 Plaintiff was instructed by Dr. Hento to “remain nonweightbearing” with the use of a walker, to ice 27 2 The parties consented to the jurisdiction of a U.S. Magistrate Judge. (See Doc. 10.) 28 3 Because the parties are familiar with the medical evidence, it is summarized here only to the extent relevant to the 1 and elevate the left lower extremity, and to apply his bone stimulator to that area daily. (AR 319.) 2 Plaintiff reported using the bone stimulator, albeit not daily, at a follow up appointment 3 with Dr. Hento in December 2015. (AR 320.) He also reported that he “continues to apply small 4 amounts of weight to the left foot while ambulating.” (AR 320.) He was permitted to begin 5 ambulating with the use of a walker and instructed to apply the bone stimulator daily. (AR 321.) 6 Later that month, Dr. Hento noted that Plaintiff “has been applying the bone stimulator to the left 7 foot but admits he does not do so daily, once again.” (AR 322.) At that appointment, Dr. Hento 8 “discussed the need to apply [the stimulator] daily” with Plaintiff. (AR 323.) In February 2016, 9 Plaintiff reported to Dr. Hento that he had missed using the stimulator three days in the past month. 10 (AR 326.) 11 In March 2016, Plaintiff reported at a follow up appointment with Dr. Hento that he “has 12 not been standing or walking much during the day [and] sits most of the day.” (AR 328.) He stated 13 that he can stand/walk for one hour before having to rest due to onset of pain. (AR 328.) Plaintiff 14 and Dr. Hento “discussed the need for him to stand conditioning himself to return to work, i.e., 15 begin standing/walking more throughout the day vs. sitting.” (AR 329.) Plaintiff reported the 16 ability to stand/walk for 4-5 hours before resting in April 2016, but in May 2016 he was back to 17 only one hour. (AR 332.) 18 At follow-up appointments with Dr. Hento in June and September 2016, Plaintiff and his 19 provider “discussed the presence of the retracted screw-type fixative and the need to remove it.” 20 (AR 335, 337.) In January 2017, Plaintiff had the screw-type fixture surgically removed. (AR 21 341–44.) Following the surgery in February 2017, Plaintiff described his pain to Dr. Hento as 22 “0/10.” (AR 352.) 23 In January 2018, Plaintiff was referred for a consultation with Inyong Hwang, M.D., a 24 vascular health specialist. (AR 439.) Dr. Hwang observed that Plaintiff was “likely to have 25 Coronary Artery Disease, Chronic Venous Insufficiency and Peripheral Artery Disease.” (AR 26 439.) Plaintiff presented for follow up appointments with Dr. Hwang in March 2019, complaining 27 of bilateral leg pain and swelling. (AR 422, 426.) He reported using leg elevation, exercise, weight 28 management measures, and compression stockings to address his chronic venous insufficiency, but 1 that leg elevation and compression stockings gave him no relief. (AR 422, 426.) Dr. Hwang noted 2 that “[t]here is a possible worsening” of chronic venous insufficiency, and recommended that he 3 continue to employ weight management measures, exercise, leg elevation, and compression 4 stockings. (AR 424, 428–29.) 5 In April 2019, Plaintiff reported to his primary care physician that he had “no acute 6 concerns,” he was “working on diet and weight loss since last encounter,” and “improved in quality 7 of food and portion control.” (AR 397.) 8 2. Opinion Evidence 9 In October 2016, G. Bugg, M.D., a state agency physician, reviewed the record and assessed 10 Plaintiff’s residual functional capacity (RFC).4 (AR 78–80.) Dr. Bugg found that Plaintiff could 11 occasionally lift and/or carry 20 pounds and frequently 10 pounds; stand and/or walk for about 12 three hours in an eight-hour workday; sit for about six hours in an eight-hour workday; perform 13 unlimited pushing and pulling, subject to the lift-and-carry restrictions; occasionally climb; and 14 frequently balance, stoop, kneel, crouch, and crawl. (AR 79–80.) Upon reconsideration in May 15 2017, another state agency physician, H.M. Estrin, M.D., reviewed the record and found that 16 Plaintiff could occasionally lift and/or carry 20 pounds and frequently 10 pounds; stand and/or walk 17 for about two hours in an eight-hour workday; sit for about six hours in an eight-hour workday; 18 occasionally perform bilateral extremity pushing and pulling; occasionally climb ramps and stairs, 19 balance, stoop, kneel, crouch, and crawl; never climb ladders, ropes, and scaffolds; and avoid 20 concentrated exposure to hazards. (AR 90–92.) 21 B. Administrative Proceedings 22 The Commissioner denied Plaintiff’s application for DIB initially on January 4, 2017, and 23 again on reconsideration on April 3, 2017. (AR 97–100, 104–110.) Consequently, Plaintiff 24 25 4 RFC is an assessment of an individual’s ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis of 8 hours a day, for 5 days a week, or an equivalent work schedule. TITLES 26 II & XVI: ASSESSING RESIDUAL FUNCTIONAL CAPACITY IN INITIAL CLAIMS, Social Security Ruling (“SSR”) 96-8p (S.S.A. July 2, 1996). The RFC assessment considers only functional limitations and restrictions that result from an 27 individual’s medically determinable impairment or combination of impairments. Id. “In determining a claimant’s RFC, an ALJ must consider all relevant evidence in the record including, inter alia, medical records, lay evidence, and 28 ‘the effects of symptoms, including pain, that are reasonably attributed to a medically determinable impairment.’” 1 requested a hearing before an Administrative Law Judge (“ALJ”). (AR 111–112.) The ALJ 2 conducted a hearing on May 10, 2019. (AR 46–70.) Plaintiff appeared at the hearing with his non- 3 attorney representative and testified as to his alleged disabling conditions. (AR 51–63.) 4 1. Plaintiff’s Testimony 5 Plaintiff testified that he was terminated from his job as a forklift operator because he did 6 not supply certain information his employer requested from his medical service providers. (AR 7 53.) He received unemployment benefits for nine months following his termination. (AR 54– 8 55.) 9 Plaintiff testified that he lives in a house with his girlfriend and shares custody of his 10- 10 year-old son. (AR 52, 55.) He sees his son every weekend and can drive to pick him up from 11 school and to take him home after visits, which totals about “four or five miles.” (AR 52, 62.) 12 According to Plaintiff, he and his son watch television and play video and board games. (AR 57– 13 58.) He also will occasionally throw a ball with his son or play a round of “HORSE” basketball. 14 (AR 62.) 15 Plaintiff testified he can perform his personal hygiene such as brush his teeth and take a 16 shower. (AR 55.) He can occasionally shop for groceries and wash dishes. (AR 56–57, 63.) 17 Plaintiff stated he can only walk for five minutes and stand for seven minutes without 18 experiencing pain in his legs. (AR 58.) He can only sit for ten minutes until experiencing cramps 19 and numbness. (AR 58–59.) According to Plaintiff, he can lift and carry between 10 and 15 20 pounds. (AR 59.) He testified it is difficult for him to stand or sit in one spot, and that he must 21 elevate his legs due to pain. (AR 61.) 22 2. The VE’s Testimony 23 A VE also testified at the hearing (AR 63–70.) He testified that Plaintiff had past relevant 24 work as an inventory control clerk, Dictionary of Operational Titles (“DOT”) code 219.387-030, 25 with a light exertional level as generally performed and a specific vocational preparation (SVP)5 26 5 Specific vocational preparation, as defined in DOT, App. C, is the amount of lapsed time required by a typical worker 27 to learn the techniques, acquire the information, and develop the facility needed for average performance in a specific job-worker situation. DOT, Appendix C – Components of the Definition Trailer, 1991 WL 688702 (1991). Jobs in 28 the DOT are assigned SVP levels ranging from 1 (the lowest level – “short demonstration only”) to 9 (the highest level 1 of 5. (AR 64.) Plaintiff also had past relevant work as a warehouse worker, DOT code 922.687 2 058, SVP of 2; a forklift driver, DOT code 921.683-050, medium exertion and SVP of 3; a 3 housecleaner, DOT code 301.474-010, medium exertion and SVP of 3; and a stocking clerk, DOT 4 code 299.367-014, heavy exertion and SVP of 4. (AR 64–65.) 5 The ALJ asked the VE a hypothetical question in which the VE was to consider a person 6 of Plaintiff’s age, education, and work experience, who is limited to the sedentary exertional level 7 and with the following additional limitations: a maximum of two hours of standing and walking 8 in an eight-hour workday; a maximum of six hours of sitting in an eight-hour workday; occasional 9 climbing of stairs and ramps, but never climbing ladders or scaffolds; frequent balancing, 10 stooping, kneeling, crouching, and crawling; occasional use of foot pedals with the bilateral lower 11 extremities; avoidance of all exposure from dangerous moving mechanical parts and unprotected 12 heights; and would need to use a cane to ambulate. (AR 65.) The VE testified that such a person 13 could not perform Plaintiff’s past relevant work. (AR 65.) The VE further testified that such a 14 person could perform other, sedentary positions under the DOT in the national economy, such as 15 a call-out operator, DOT code 237.367-014 and SVP 2, with “roughly 20,700 plus jobs” in the 16 national economy; addresser, DOT code 209.587-010 and SVP 2, with “roughly 20,300 plus jobs” 17 in the national economy; and document assembler, DOT code 249.587-018 and SVP 2, with 18 “35,030 plus employers” in the national economy. (AR 65–66.) 19 In a second hypothetical, the VE was asked by the ALJ to consider the same person as in 20 the first, but with the additional limitations that the individual (1) would be likely to be off task 21 15 percent of the workday in order to rest and (2) would be likely to miss more than two days of 22 work per month. (AR 66.) The VE testified that no work would be available . (AR 66–67.) 23 In a third hypothetical, Plaintiff’s representative asked the VE to consider the person 24 presented in the first hypothetical, but who would need to elevate his right leg “almost at a heart 25 level, at least one-to-two hours” out of the workday. (AR 68.) The VE responded there would 26 be no work such a person could perform. (AR 68.) 27 C. The ALJ’s Decision 28 In a decision dated June 6, 2019, the ALJ found that Plaintiff was not disabled, as defined 1 by the Act. (AR 27–40.) The ALJ conducted the five-step disability analysis set forth in 20 C.F.R. 2 §§ 404.1520, 416.920. (AR 26–38.) The ALJ decided that Plaintiff met the insured status 3 requirements of the Act through December 31, 2020, and he had not engaged in substantial gainful 4 activity since September 28, 2015, the alleged onset date (step one). (AR 30.) At step two, the 5 ALJ found Plaintiff had the following severe impairments: osteoarthrosis, dysfunction major 6 joints—bilateral feet, chronic venous insufficiency, and obesity. (AR 30–32.) Plaintiff did not 7 have an impairment or combination of impairments that met or medically equaled one of the listed 8 impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“the Listings”) (step three). (AR 32– 9 33.) 10 The ALJ then assessed Plaintiff’s RFC and applied the assessment at steps four and five. 11 See 20 C.F.R. § 404.1520(a)(4) (“Before we go from step three to step four, we assess your residual 12 functional capacity . . . . We use this residual functional capacity assessment at both step four and 13 step five when we evaluate your claim at these steps.”); see also 20 C.F.R.§ 416.920(a)(4). The 14 ALJ determined Plaintiff had the RFC: 15 to perform sedentary work as defined in 20 C.F.R [§§] 404.1567(a) and 416.967(a) except: [Plaintiff] can stand and walk for two hours of an eight-hour workday, and 16 sit for six hours of an eight-hour workday. He can never climb ladders or scaffolds, 17 occasionally climb stairs or ramps, and frequently perform all other postural activities. [Plaintiff] can occasionally operate foot pedals with his bilateral lower 18 extremities. He must avoid all exposure to dangerous moving mechanical parts and unprotected heights. [Plaintiff] requires a cane for ambulation. 19 20 (AR 33–37.) Although the ALJ recognized that Plaintiff’s impairments “could reasonably be 21 expected to cause some of the alleged symptoms[,]” they rejected Plaintiff’s subjective testimony 22 as “not entirely consistent with the medical evidence and other evidence in the record . . . .” (AR 23 34.) The ALJ determined that Plaintiff was unable to perform his past relevant work (step 4), but 24 was not disabled because, given his RFC, he could perform a significant number of other jobs in 25 the national economy, specifically call out operator, addresser, and document preparer (step 5). 26 (AR 37–39.) The ALJ concluded Plaintiff was not disabled at any time from September 28, 2015, 27 through the date of their decision. (AR 39.) 28 Plaintiff sought review of this decision before the Appeals Council, which denied review 1 on February 28, 2020. (AR 13–18.) Therefore, the ALJ’s decision became the final decision of 2 the Commissioner. 20 C.F.R. §§ 404.981, 416.1481. 3 III. LEGAL STANDARD 4 A. Applicable Law 5 An individual is considered “disabled” for purposes of disability benefits if he or she is 6 unable “to engage in any substantial gainful activity by reason of any medically determinable 7 physical or mental impairment which can be expected to result in death or which has lasted or can 8 be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). 9 However, “[a]n individual shall be determined to be under a disability only if [their] physical or 10 mental impairment or impairments are of such severity that he is not only unable to do [their] 11 previous work but cannot, considering [their] age, education, and work experience, engage in any 12 other kind of substantial gainful work which exists in the national economy.” Id. § 423(d)(2)(A). 13 “The Social Security Regulations set out a five-step sequential process for determining 14 whether a claimant is disabled within the meaning of the Social Security Act.” Tackett v. Apfel, 180 15 F.3d 1094, 1098 (9th Cir. 1999) (citing 20 C.F.R. § 404.1520); see also 20 C.F.R. § 416.920. The 16 Ninth Circuit has provided the following description of the sequential evaluation analysis: 17 In step one, the ALJ determines whether a claimant is currently engaged in 18 substantial gainful activity. If so, the claimant is not disabled. If not, the ALJ proceeds to step two and evaluates whether the claimant has a medically severe 19 impairment or combination of impairments. If not, the claimant is not disabled. If so, the ALJ proceeds to step three and considers whether the impairment or 20 combination of impairments meets or equals a listed impairment under 20 C.F.R. pt. 404, subpt. P, [a]pp. 1. If so, the claimant is automatically presumed disabled. If 21 not, the ALJ proceeds to step four and assesses whether the claimant is capable of 22 performing [their] past relevant work. If so, the claimant is not disabled. If not, the ALJ proceeds to step five and examines whether the claimant has the [RFC] . . . to 23 perform any other substantial gainful activity in the national economy. If so, the claimant is not disabled. If not, the claimant is disabled. 24 25 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005); see, e.g., 20 C.F.R. § 416.920(a)(4) (providing 26 the “five-step sequential evaluation process” for SSI claimants). “If a claimant is found to be 27 ‘disabled’ or ‘not disabled’ at any step in the sequence, there is no need to consider subsequent 28 steps.” Tackett, 180 F.3d at 1098 (citing 20 C.F.R. § 404.1520); 20 C.F.R. § 416.920. 1 “The claimant carries the initial burden of proving a disability in steps one through four of 2 the analysis.” Burch, 400 F.3d at 679 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989)). 3 “However, if a claimant establishes an inability to continue [their] past work, the burden shifts to 4 the Commissioner in step five to show that the claimant can perform other substantial gainful work.” 5 Id. (citing Swenson, 876 F.2d at 687). 6 B. Scope of Review 7 “This court may set aside the Commissioner’s denial of [social security] benefits [only] 8 when the ALJ’s findings are based on legal error or are not supported by substantial evidence in 9 the record as a whole.” Tackett, 180 F.3d at 1097 (citation omitted). “Substantial evidence . . . is 10 ‘more than a mere scintilla,’” and means only “such relevant evidence as a reasonable mind might 11 accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) 12 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). See also Ford v. Saul, 950 F.3d 13 1141, 1154 (9th Cir. 2020). 14 “This is a highly deferential standard of review . . . .” Valentine v. Comm’r of Soc. Sec. 15 Admin., 574 F.3d 685, 690 (9th Cir. 2009). “The ALJ’s findings will be upheld if supported by 16 inferences reasonably drawn from the record.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th 17 Cir. 2008) (citation omitted). Additionally, “[t]he court will uphold the ALJ’s conclusion when 18 the evidence is susceptible to more than one rational interpretation.” Id.; see, e.g., Edlund v. 19 Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (“If the evidence is susceptible to more than one 20 rational interpretation, the court may not substitute its judgment for that of the Commissioner.” 21 (citations omitted)). 22 Nonetheless, “the Commissioner’s decision ‘cannot be affirmed simply by isolating a 23 specific quantum of supporting evidence.’” Tackett, 180 F.3d at 1098 (quoting Sousa v. Callahan, 24 143 F.3d 1240, 1243 (9th Cir. 1998)). “Rather, a court must ‘consider the record as a whole, 25 weighing both evidence that supports and evidence that detracts from the [Commissioner’s] 26 conclusion.’” Id. (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). 27 Finally, courts “may not reverse an ALJ’s decision on account of an error that is harmless.” 28 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citing Stout v. Comm’r, Soc. Sec. Admin., 1 454 F.3d 1050, 1055–56 (9th Cir. 2006)). Harmless error “exists when it is clear from the record 2 that ‘the ALJ’s error was inconsequential to the ultimate nondisability determination.’” 3 Tommasetti, 533 F.3d at 1038 (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 4 2006)). “[T]he burden of showing that an error is harmful normally falls upon the party attacking 5 the agency’s determination.” Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (citations omitted). 6 IV. DISCUSSION 7 8 Plaintiff contends that the ALJ erred by (1) improperly relying on the VE’s testimony at 9 step five of the sequential evaluation; (2) failing to weigh functional limitations by treating 10 physician Dr. Hwang; (3) failing to consider limitations caused by Plaintiff’s chronic venous 11 insufficiency; and (4) improperly rejecting Plaintiff’s testimony. 12 A. The ALJ Did Not Err At Step Five 13 Plaintiff asserts that the jobs of addresser and document preparer identified by the VE are 14 “obsolete” and do not exist in significant numbers in the national economy. (See Doc. 17 at 9–11; 15 Doc. 25 at 1–2.) As an initial matter, Plaintiff did not question the job numbers at the hearing or 16 otherwise object to the VE’s testimony. Bayliss, 427 F.3d at 1218 (finding that an ALJ “may take 17 administrative notice of any reliable job information, including information provided by a VE” and 18 noting that a VE’s “recognized expertise provides the necessary foundation for his or her testimony 19 . . . no additional foundation is required”); see Shaibi v. Berryhill, 883 F.3d 1102, 1108–09 (9th 20 Cir. 2018) (holding that a claimant who does not raise challenges to the “evidentiary basis” of 21 vocational expert testimony about job numbers at the hearing forfeits the right to do so in court). 22 The ALJ was therefore entitled to rely on the job numbers identified by the VE. See Rivota v. Saul, 23 No. 1:18-CV-01342-BAM, 2020 WL 1306985, at *8 (E.D. Cal. Mar. 19, 2020). 24 Even if the ALJ’s reliance was erroneous, it was not harmful. Plaintiff is correct that some 25 courts in the Ninth Circuit have found that the occupations of “addresser” and “document preparer” 26 do not exist in significant numbers in the national economy. See, e g., Sandra M. H. v. Saul, No. 27 SA CV 18-1933-PLA, 2019 WL 5209245, at *3 (C.D. Cal. Oct. 16, 2019) (“noting that certain 28 courts had found occupations of ‘addressing clerk’ and ‘document preparer’ to be obsolete.”); 1 Bazan v. Berryhill, No. 18-cv-01224-KAW, 2019 WL 4751874, at *8 (N.D. Cal. Sept. 30, 2019) 2 (finding that per the Social Security Administration’s own findings, the addresser job is obsolete.); 3 Skinner v. Berryhill, No. CV 17-3795-PLA, 2018 WL 1631275, at *8 (C.D. Cal. Apr. 2, 2018) (“As 4 other courts have found, common sense (bolstered here by the information presented in the Study 5 and on the SSA website itself), casts doubt on the reliability and credibility of the VE’s testimony 6 and on the ALJ’s reliance on that testimony to conclude that the occupation of ‘addresser’ currently 7 exists in significant numbers.”); Wood v. Berryhill, No. 3:17-CV-5430-RJB-BAT, 2017 WL 8 6419313, at *2 (W.D. Wash. Nov. 17, 2017), report and recommendation adopted, No. 3:17-CV- 9 5430-RJB-BAT, 2017 WL 6372590 (W.D. Wash. Dec. 13, 2017) (“[T]he positions of document 10 preparer and nut sorter do not exist in significant numbers in the national economy.”). This Court 11 need not determine whether these jobs are obsolete, however, because the remaining job that ALJ 12 found Plaintiff could perform, call out operator with 20,700 jobs in the national economy, exists in 13 sufficient number to render Plaintiff not disabled. 14 Importantly, there is no “bright-line rule for what constitutes a ‘significant number’ of 15 jobs.” Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012); accord Young v. Astrue, 591 F. App’x 16 769, 772 (3rd Cir. 2013) (noting “there is no precise estimate for what constitutes ‘significant 17 numbers’ of jobs under the Social Security Act”). Nationwide figures necessarily require a greater 18 total to constitute a “significant” number, as the jobs exist across “several regions” of the country. 19 See Beltran, 700 F.3d at 389-90. The Ninth Circuit has determined 25,000 jobs in the national 20 economy was sufficient to meet this standard, see Gutierrez v. Comm’r, 740 F.3d 519, 523 (9th 21 Cir. 2014), but that number is not a “baseline.” Acuna v. Colvin, No. EDCV 14-2404 AGR, 2015 22 WL 7566624 at *3 (C.D. Cal. Nov. 24, 2015) (rejecting the argument that Gutierrez established a 23 “baseline” number and finding 24,000 jobs in the national economy was a significant number). 24 This Court and others in this Circuit have also determined that 14,000 or more jobs are a 25 “significant number” in the national economy. See, e.g., Kimberly T. v. Kijakazi, No. 3:20-CV- 26 1543-SI, 2022 WL 910083, at *8 (D. Or. Mar. 29, 2022) (concluding that 15,000 national jobs 27 “constitutes a significant number of jobs.”); Mark M. v. Comm’r, No. 3:19-CV-00495-MC, 2020 28 WL 7695848, at *4 (D. Or. Dec. 28, 2020) (“[T]he 855 counter-clerk jobs in addition to the 13,500 1 call-out operator jobs are a significant number.”); Davis v. Comm’r, No. 1:17–cv–00621–SAB, 2 2018 WL 1779341, at *6 (E.D. Cal. Apr. 12, 2018) (finding 15,000 national jobs to be significant 3 number), overruled on other grounds, 846 F. App’x 549 (9th Cir. 2021); Jeter v. Berryhill, No. 4 EDCV 17–1930 AGR, 2018 WL 2121831, at *3 (C.D. Cal. May 8, 2018) (“Although at the low 5 end, the ALJ’s finding as to [20,000] national jobs meets the legal standard”); Montalbo v. Colvin, 6 231 F. Supp. 3d 846, 863 (D. Haw. 2017) (finding 12,300 jobs are a significant number); Peck v. 7 Colvin, No. CV 12–577 AGR, 2013 WL 3121280, at *5 (C.D. Cal. June 19, 2013) (concluding that 8 14,000 is a significant number of jobs). 9 Thus, the Court finds that the 20,700 call out operator positions establishes a significant 10 number of jobs in the national economy. See Mark M., 2020 WL 7695848, at *4; Torres v. Astrue, 11 No. EDCV 11-315 AGR, 2012 WL 1032897, at *3 n.3 (C.D. Cal. Mar. 27, 2012) (rejecting 12 argument that call our operator position, with 18,201 jobs nationally, did not constitute a significant 13 number of positions to support the ALJ’s finding). And, because the record establishes that 14 Plaintiff can perform work existing in significant numbers in the national economy, any error 15 concerning the address or document preparer positions was necessary harmless. See, e.g., Buck v. 16 Berryhill, 869 F.3d 1040, 1051 & n.2 (9th Cir. 2017) (finding that error in concluding that plaintiff 17 could work in three particular jobs would be harmless as long as three other jobs VE identified 18 existed in sufficient numbers); Berry v. Colvin, 657 F. App’x 650, 652 (9th Cir. 2016) (finding that 19 error in concluding that plaintiff could perform past work as courier driver was harmless because 20 ALJ correctly found that plaintiff could perform other jobs). 21 B. The ALJ Did Not Err in Formulating Plaintiff’s RFC 22 An RFC “is the most [one] can still do despite [their] limitations” and it is “based on all the 23 relevant evidence in [one’s] case record,” rather than a single medical opinion or piece of evidence. 24 20 C.F.R. § 416.945(a)(1); Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001) (“It is clear that 25 it is the responsibility of the ALJ, not the claimant’s physician, to determine residual functional 26 capacity.”). Further, an ALJ’s RFC determination need not precisely reflect any particular 27 physician’s assessment. See, e.g., Turner v. Comm’r Soc. Sec. Admin., 613 F.3d 1217, 1222–23 28 (9th Cir. 2010) (the ALJ properly incorporated physician’s observations in the RFC determination 1 while, at the same time, rejecting the implication that plaintiff was unable to “perform simple, 2 repetitive tasks in an environment without public contact or background activity”). 3 In making the RFC determination, the ALJ considers those limitations for which there is 4 record support that does not depend on properly rejected evidence and subjective complaints. See 5 Batson v. Comm’r of Soc. Sec., 359 F.3d 1190, 1197 (9th Cir. 2004). A reviewing court “will 6 affirm the ALJ’s determination of [a claimant’s] RFC if the ALJ applied the proper legal standard 7 and his decision is supported by substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1217 8 (9th Cir. 2005). 9 1. Leg Elevation 10 Plaintiff contends that the ALJ’s RFC determination is unsupported by substantial evidence 11 first because the ALJ failed to “address the functional restriction that Plaintiff must elevate his legs 12 as part of his treatment for this condition,” which Plaintiff attributes to Dr. Hwang. (Doc. 17 at 13 11–12. See also Doc. 25 at 3–4.) Plaintiff mischaracterizes the record. The only statement that 14 could arguably be construed as a medical opinion given by Dr. Hwang was that Plaintiff “is likely 15 to have Coronary Artery Disease, Chronic Venous Insufficiency, and Peripheral Artery Disease,” 16 to which the ALJ gave “partial weight” (and with which Plaintiff takes no issue). 6 (AR 27. See 17 also AR 439.) Leg elevation, however, was not a limitation that was opined by Dr. Hwang, but 18 instead a treatment that was recommended during his visits with Plaintiff.7 (See AR 424, 428– 19 29.) 20 “Where a treating physician’s opinion does not contain any functional limitations, the ALJ 21 is not required to provide reasons for rejecting that opinion.” Benear v. Comm’r of Soc. Sec. 22 Admin., No. CV-17-04160-PHX-JAT, 2019 WL 258345, at *15 (D. Ariz. Jan. 18, 2019); see also 23 Smith v. Berryhill, 708 F. App’x 402, 403 (9th Cir. 2017) (“The ALJ did not err by not providing 24 reasons to reject Dr. Ashcraft’s letter because the letter contained no opinions as to [the claimant’s] 25 functional limitations.”); Turner, 613 F.3d at 1223 (“[T]he ALJ did not need to provide ‘clear and 26 convincing reasons’ for rejecting [the physician’s] report because the ALJ did not reject any of [the 27 6 Plaintiff filed his DIB claim before March 27, 2017, so Section 404.1527, not Section 404.1520c, governs the ALJ’s 28 evaluation of medical opinions. See 20 C.F.R. § 404.1520c; 82 Fed. Reg. 5844-01, 2017 WL 168819 (Jan. 18, 2017). 1 physician’s] conclusions.”). Because Dr. Hwang’s treatment records contained no “opinion” that 2 Plaintiff was required to elevate his legs, the Court finds the ALJ did not err in failing to consider 3 such limitation in their RFC assessment. 4 2. Chronic Venous Insufficiency 5 Plaintiff next asserts that the ALJ’s RFC assessment is erroneous because it lacks functional 6 restrictions resulting from his severe impairment of chronic venous insufficiency. (See Doc. 17 at 7 12–13.) Not so. 8 The nature of the ALJ’s responsibility is to interpret the evidence of record, including 9 medical evidence. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). Such a responsibility 10 does not result in the ALJ committing legal error when they assess an RFC that is consistent with 11 the record. See Mills v. Comm’r of Soc. Sec., No. 2:13-CV-0899-KJN, 2014 WL 4195012, at *4 12 (E.D. Cal. Aug. 22, 2014) (“[I]t is the ALJ’s responsibility to formulate an RFC that is based on 13 the record as a whole, and thus the RFC need not exactly match the opinion or findings of any 14 particular medical source.”) (citing Magallanes v. Bowen, 881 F.2d 747, 753 (9th Cir. 1989)). 15 According to the record, the only expert medical opinions regarding Plaintiff’s impairments 16 are those of State agency physicians Drs. Bugg (AR 79–80) and Estrin (AR 90–92). The ALJ 17 considered the weight of these opinions, as the ALJ is charged to do, and rejected a limitation to 18 “sedentary” exertional activity, finding instead that the opinions—as well as the “evidence of 19 record” that post-dated the opinions that showed Plaintiff’s “severe left lower extremity impairment 20 worsened before it improved”—demonstrated that Plaintiff is “capable of less than the full range 21 of work at the sedentary level.” (AR 36 (emphasis added).) The ALJ then formulated Plaintiff’s 22 RFC, which included additional physical limitations beyond those found by the opining physicians. 23 (Compare AR 79–80 and 90–92 with AR 33.)8 See Mills, 2014 WL 4195012, at *4 (finding 24 argument that the ALJ erred in formulating an RFC lacked merit where the ALJ “carefully analyzed 25 the various medical opinions, treatment records, and plaintiff’s own testimony in formulating an 26 RFC.”). See also 20 C.F.R. § 404.1527(d)(2) (“the final responsibility for deciding [RFC] is 27 28 8 The ALJ’s RFC assessment is also based on consideration of the subjective complaint testimony, which, as set forth 1 reserved to the Commissioner), § 404.1545(a)(1) (“We will assess your residual functional capacity 2 based on all the relevant evidence in your case record.”). See also id. §§ 416.927(d)(2); 3 416.945(a)(1). 4 In contrast to the lone case cited by Plaintiff, Bazzle v. Saul, No. 1:19-CV-01565-EPG, 5 2021 WL 53183 (E.D. Cal. Jan. 6, 2021), this is not a situation where the ALJ failed to consider, 6 and include, limitations resulting from a diagnosis made after a medical opinion was given. Here, 7 the ALJ expressly considered the medical record subsequent to the State agency physician’s 8 opinions that supported Plaintiff’s chronic venous insufficiency (see AR 35, 37), and found that it 9 supported a more restrictive RFC than a sedentary exertional activity level, including, for example, 10 the use of a cane to ambulate. (AR 33.) Plaintiff does not specify what additional functional 11 limitations resulting from his chronic venous insufficiency that were not accounted for in the ALJ’s 12 RFC assessment (other than the above-discussed “leg elevation” limitation). Nor does he otherwise 13 show any inconsistency between the medical record and his RFC. Plaintiff may disagree with the 14 RFC, but the Court must nevertheless uphold the ALJ’s determination because it is a rational 15 interpretation of the evidence. See Ford, 950 F.3d at 1159 (“Our review of an ALJ’s fact-finding 16 for substantial evidence is deferential”); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). 17 3. Subjective Complaints 18 Finally, Plaintiff criticizes the ALJ’s RFC assessment on grounds that it “failed to include 19 work-related limitations in the RFC that correspond to Plaintiff’s symptoms.” (Doc. 17 at 14–17.) 20 The Court finds that ALJ properly discredited Plaintiff’s subjective symptom testimony. 21 a. Legal Standard 22 In evaluating the credibility of a claimant’s testimony regarding subjective pain, an ALJ 23 must engage in a two-step analysis. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). First, 24 the ALJ must determine whether the claimant has presented objective medical evidence of an 25 underlying impairment that could reasonably be expected to produce the pain or other symptoms 26 alleged. Id. The claimant is not required to show his impairment “could reasonably be expected 27 to cause the severity of the symptom [he] has alleged; [he] need only show that it could reasonably 28 have caused some degree of the symptom.” Id. (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1 1036 (9th Cir. 2007)). If the claimant meets the first test and there is no evidence of malingering, 2 the ALJ can only reject the claimant’s testimony about the severity of the symptoms if he gives 3 “specific, clear and convincing reasons” for the rejection.9 Id. As the Ninth Circuit has explained: 4 The ALJ may consider many factors in weighing a claimant’s credibility, including (1) ordinary techniques of credibility evaluation, such as the claimant’s 5 reputation for lying, prior inconsistent statements concerning the symptoms, and 6 other testimony by the claimant that appears less than candid; (2) unexplained or inadequately explained failure to seek treatment or to follow a prescribed course 7 of treatment; and (3) the claimant’s daily activities. If the ALJ’s finding is supported by substantial evidence, the court may not engage in second-guessing. 8 9 Tommasetti, 533 F.3d at 1039 (citations and internal quotation marks omitted); see also Bray v. 10 Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1226–27 (9th Cir. 2009). Other factors the ALJ may 11 consider include a claimant’s work record and testimony from physicians and third parties 12 concerning the nature, severity, and effect of the symptoms of which he complains. Light v. Social 13 Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). 14 The clear and convincing standard is “not an easy requirement to meet,” as it is “‘the most 15 demanding required in Social Security cases.’” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 16 2014) (quoting Moore v. Comm’r of Social Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). 17 General findings are not enough to satisfy this standard; the ALJ “‘must identify what testimony is 18 not credible and what evidence undermines the claimant’s complaints.’” Burrell v. Colvin, 775 19 F.3d 1133, 1138 (9th Cir. 2014) (quoting Lester, 81 F.3d at 834). 20 b. Analysis 21 As set forth above, the ALJ found Plaintiff’s “medically determinable impairments could 22 reasonably be expected to cause some of the alleged symptoms.” (AR 34.) The ALJ also found 23 that “[Plaintiff’s] statements concerning the intensity, persistence and limiting effects of these 24 symptoms are not entirely consistent with the medical evidence and other evidence in the record.” 25 (AR 34.) Since the ALJ found Plaintiff’s “medically determinable impairments could reasonably 26 be expected to cause some of the alleged symptoms,” the only remaining issue is whether the ALJ 27 provided “specific, clear and convincing reasons” for Plaintiff’s adverse credibility finding. See 28 1 Vasquez, 572 F.3d at 591. Here, the ALJ found Plaintiff’s statements not credible because they are 2 inconsistent with his treatment history, the objective medical record, his activities of daily living, 3 and his receipt of unemployment benefits. (AR 34, 36.) The Court takes each in turn and finds 4 that there are several grounds on which the ALJ’s credibility determination will be upheld. 5 i. Treatment History 6 The ALJ first determined that Plaintiff “consistently failed to follow his prescribed 7 treatments for recovery” following his left ankle surgery. (AR 34.) Consistent with this finding, 8 the record demonstrates that although Plaintiff was directed by his surgeon Dr. Hento to “remain 9 strictly nonweightbearing” and use a bone stimulator “daily,” he repeatedly did not comply with 10 these directives. (See AR 308–09, 311, 313, 315, 316, 317, 318, 319, 320, 322, 323, 326.) 11 In evaluating a claimant’s claimed symptoms, an ALJ may consider a claimant’s failure to 12 follow a prescribed course of treatment when weighing a claimant’s credibility. See Tommasetti, 13 533 F.3d at 1039–40; Johnson v. Shalala, 60 F.3d 1482, 1434 (9th Cir. 1995). In so doing, 14 however, an ALJ must consider a claimant’s explanation for failing to undergo the recommended 15 treatment. See Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). As the Ninth Circuit 16 explained in Fair v. Bowen, it is the claimant’s burden to adequately explain his or her failure to 17 follow a prescribed course of treatment. 885 F.2d at 603 (claimant’s failure to explain failure to 18 seek treatment or follow a prescribed course of treatment can “cast doubt” on the sincerity of their 19 testimony); see also Smolen, 80 F.3d at 1293. An ALJ may discount a claimant’s credibility due 20 to an “unexplained or inadequately explained failure to seek treatment or to follow a prescribed 21 course of treatment.” Tommasetti, 533 F.3d at 1039. 22 Here, Plaintiff does not explain his lack of compliance with treatment, instead asserting that 23 the “record does not show significant non-compliance, as he reported missing only 3 days in a 24 month for applying the bone stimulator.” (Doc. 17 at 15.) But the record shows at least three more 25 failures to use the bone stimulator as instructed (see AR 316, 320, 322) as well as several instances 26 of Plaintiff applying weight to his left foot while ambulating after being directed to “remain strictly 27 nonweightbearing” (see AR 313, 317, 318, 319, 320). Plaintiff does not address this evidence in 28 his briefing. 1 Because Plaintiff proffers no explanation for his failure to follow his prescribed course of 2 treatment, he has not met his burden of adequately explaining his failure to follow her treatment 3 regimen. See Fair, 885 F.2d at 603. Viewing the record as a whole, the Court finds that ALJ’s 4 conclusion that Plaintiff was non-compliant with Dr. Hento’s recommended course of treatment is 5 supported by substantial evidence. The ALJ’s determination that Plaintiff was non-compliant with 6 treatment is therefore a clear and convincing reason for discounting Plaintiff’s subjective symptom 7 testimony. Tommasetti, 533 F.3d at 1039. 8 In addition, the ALJ determined that, when Plaintiff did follow his recommended treatment 9 regimen of diet and exercise, his symptoms improved. (AR 35.) The record shows that following 10 Dr. Hwang’s recommended treatment of weight management measures, exercise, leg elevation, 11 and compression stockings in March 2019 (AR 424, 428–29), Plaintiff reported to his primary care 12 physician that he had “no acute concerns,” he was “working on diet and weight loss since last 13 encounter,” and “improved in quality of food and portion control.” (AR 397.) 14 In evaluating a claimant’s claimed symptoms, an ALJ may find a plaintiff less credible 15 when their symptoms can be controlled by treatment. See 20 C.F.R. §§ 404.1529(c)(3)(iv)–(v), 16 416.929(c)(3)(iv)–(v); see also Warre v. Comm’r, 439 F.3d 1001, 1006 (9th Cir. 2006) 17 (“Impairments that can be controlled effectively with medication are not disabling for purposes of 18 determining eligibility for [disability] benefits.”). As there is substantial evidence of Plaintiff’s 19 improvement with treatment, this is yet another clear and convincing reason for discounting his 20 subjective symptom testimony. See Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 599 21 (9th Cir. 1999) (ALJ’s adverse credibility determination properly accounted for physician’s report 22 of improvement with medication); Odle v. Heckler, 707 F.2d 439, 440 (9th Cir. 1983) (affirming 23 denial of benefits and noting that claimant’s impairments were responsive to treatment). 24 ii. Objective Medical Evidence 25 The ALJ next found that Plaintiff’s statements that he is unable to work due to pain in his 26 lower extremities are inconsistent with the overall record showing his “pain having been brought 27 under control.” (AR 35.) Contradiction with evidence in the medical record is a “sufficient basis” 28 1 for rejecting a claimant’s subjective symptom testimony.10 Carmickle v. Comm’r, Soc. Sec. 2 Admin., 533 F.3d 1155, 1161 (9th Cir. 2008); see Morgan, 169 F.3d at 600 (upholding “conflict 3 between [plaintiff’s] testimony of subjective complaints and the objective medical evidence in the 4 record” as “specific and substantial” reason undermining credibility). 5 Plaintiff testified at the hearing that he can only walk for five minutes, stand for seven 6 minutes, and sit for ten minutes without experiencing pain in his legs. (AR 58.) Yet, as the ALJ 7 observed, the medical record shows that following his second surgery to remove the retracted 8 screw-type fixative in his left foot, Plaintiff reported to his surgeon Dr. Hento in February 2017 9 that his pain had been reduced to zero out of ten (“0/10”), where zero indicates no pain. (AR 352.) 10 Plaintiff’s reports to Dr. Hento about his pain control casts doubt on his allegations regarding his 11 condition. See Thomas, 278 F.3d at 958–59 (inconsistencies in a claimant’s testimony may be used 12 to discredit subjective complaints); Light, 119 F.3d at 792 (in weighing plaintiff’s credibility, the 13 ALJ may consider “inconsistencies either in [plaintiff’s] testimony or between his testimony and 14 his conduct”); see also Fair, 885 F.2d at 604 n.5 (an ALJ can reject pain testimony based on 15 contradictions in plaintiff’s testimony). The Court finds no legal error in the ALJ’s conclusion that 16 the objective record was inconsistent with Plaintiff’s symptom testimony. 17 iii. Activities of Daily Living 18 It is also appropriate for an ALJ to consider a claimant’s activities that undermine claims 19 of severe limitations in making the credibility determination, as was done here (see AR 35–36). 20 See Fair, 885 F.2d at 603; Morgan, 169 F.3d at 600; Rollins, 261 F.3d at 857; see also Thomas, 21 278 F.3d at 958–59 (an ALJ may support a determination that the claimant was not entirely credible 22 by identifying inconsistencies between the claimant’s complaints and the claimant’s activities.). It 23 is well-established that a claimant need not “vegetate in a dark room” to be deemed eligible for 24 benefits. Cooper v. Bowen, 815 F.2d 557, 561 (9th Cir. 1987). If a claimant, however, can spend 25 a substantial part of their day engaged in pursuits involving the performance of physical functions 26 27 10 Although a lack of medical evidence “cannot form the sole basis for discounting pain testimony, it is a factor that the ALJ can consider in his credibility analysis.” Burch, 400 F.3d at 681; Rollins v. Massanari, 261 F.3d 853, 857 (9th 28 Cir. 2001). Not only did the ALJ properly consider the medical evidence, but it was not the sole basis for discrediting 1 that are transferable to a work setting, a specific finding as to this fact may be sufficient to discredit 2 an allegation of disability. Fair, 885 F.2d at 603. “Even where [Plaintiff’s] activities suggest some 3 difficulty functioning, they may be grounds for discrediting the claimant’s testimony to the extent 4 that they contradict claims of a totally debilitating impairment.” Molina, 674 F.3d at 1113. 5 As discussed above, Plaintiff alleges an inability to work due to his lower extremity pain. 6 (AR 58–59, 61.) Despite these alleged severe limitations, the hearing testimony shows, as detailed 7 by the ALJ (see AR 35–36), that Plaintiff can drive to pick his son up from school and to take him 8 home after visits, which totals about “four or five miles.” (AR 52, 62.) According to Plaintiff, he 9 and his son watch television and play video and board games. (AR 57–58.) He also will 10 occasionally throw a ball with his son or play a round of “HORSE” basketball. (AR 62.) Plaintiff 11 testified can perform his personal hygiene such as brush his teeth and take a shower. (AR 55.) He 12 can occasionally shop for groceries and wash dishes. (AR 56–57, 63.) The Court finds that these 13 activities were reasonably considered by the ALJ to be inconsistent with Plaintiff’s alleged inability 14 to work due to constant, severe, debilitating leg pain. (AR 36.) Accordingly, the inconsistency 15 between Plaintiff’s activity level and his complaints is an additional clear and convincing reason 16 to find his statements and testimony not credible. See 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3); 17 Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175 (9th Cir. 2008). 18 iv. Receipt of Unemployment Benefits 19 Finally, the ALJ appropriately noted that Plaintiff received unemployment insurance 20 benefits for nine months following being laid-off from work and after his alleged onset date. (AR 21 36.) Though receipt of unemployment benefits is not dispositive of a person’s capacity to perform 22 work, it does conflict with assertions of an inability to work because receipt of unemployment 23 insurance benefits was premised on an individual’s attestation that he was ready, willing, and able 24 to work. See Copeland v. Bowen, 861 F.2d 536, 542 (9th Cir. 1988) (ALJ validly discounted 25 claimant’s credibility, in part, because he “received unemployment insurance benefits [after being 26 laid off] (apparently considering himself capable of work and holding himself out as available for 27 work)”). Plaintiff concedes he intended to return to work at the time he collected unemployment 28 benefits, which took place after his alleged onset date. (See Doc. 17 at 16 (“Plaintiff collected 1 unemployment benefits following his first surgery [and] he . . . intended to return to work.”).) 2 In sum, because the ALJ gave numerous clear and convincing reasons for discounting 3 Plaintiff’s subjective pain testimony, there was no error. 4 V. CONCLUSION AND ORDER 5 After consideration of Plaintiff’s and the Acting Commissioner’s briefs and a thorough 6 review of the record, the Court finds that the ALJ’s decision is supported by substantial evidence 7 and is therefore AFFIRMED. The Clerk of this Court is DIRECTED to enter judgment in favor of 8 Defendant Kilolo Kijakazi, Acting Commissioner of Social Security, and against Plaintiff. 9 IT IS SO ORDERED. 10 11 Dated: December 8, 2022 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28