(SS) Watson v. Commissioner of Social Security ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KRISTIN WATSON, Case No. 1:21-cv-01717-ADA-HBK 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFF’S MOTION FOR 13 v. SUMMARY JUDGMENT, GRANT DEFENDANT’S CROSS-MOTION FOR 14 KILOLO KIJAKAZI, ACTING SUMMARY JUDGMENT, AND AFFIRM COMMISSIONER OF SOCIAL THE DECISION OF THE COMMISSIONER 15 SECURITY, OF SOCIAL SECURITY1 16 Defendant. (Doc. Nos. 17, 18) 17 FOURTEEN-DAY OBJECTION DEADLINE 18 19 Kristin Watson (“Plaintiff”), seeks judicial review of a final decision of the Commissioner 20 of Social Security (“Commissioner” or “Defendant”) denying her application for supplemental 21 security income under the Social Security Act. (Doc. No. 1). The matter is currently before the 22 undersigned on the parties’ briefs, which were submitted without oral argument. (Doc. Nos. 17- 23 19). For the reasons stated, the undersigned RECOMMENDS denying Plaintiff’s motion for 24 summary judgment, granting the Commissioner’s cross-motion for summary judgment, and 25 affirming the Commissioner’s decision. 26 //// 27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 28 302(c)(15) (E.D. Cal. 2022). 1 I. JURISDICTION 2 Plaintiff protectively filed for supplemental security income on January 29, 2019, alleging 3 an onset date of August 15, 2007. (AR 161-67). At the hearing, the alleged onset date of 4 disability was amended to January 29, 2019. (AR 38). Benefits were denied initially (AR 93-98) 5 and upon reconsideration (AR 102-07). Plaintiff appeared for a hearing before an administrative 6 law judge (“ALJ”) on September 17, 2020. (AR 32-65). Plaintiff testified at the hearing and was 7 represented by counsel. (Id.). The ALJ denied benefits (AR 10-27) and the Appeals Council 8 denied review (AR 1-6). The matter is before the Court under 42 U.S.C. § 1383(c)(3). 9 II. BACKGROUND 10 The facts of the case are set forth in the administrative hearing and transcripts, the ALJ’s 11 decision, and the briefs of Plaintiff and Commissioner. Only the most pertinent facts are 12 summarized here. 13 Plaintiff was 40 years old at the time of the hearing. (See AR 39). She graduated from 14 high school. (AR 43). Plaintiff lives with her husband and two sons. (AR 40). She has work 15 history as a childcare attendant. (AR 58). Plaintiff testified that she had a “psychotic break” in 16 2006, and since then she hears voices “maybe once a week.” (AR 41, 43, 48). She reported that 17 she has paranoia, mood swings, depression, panics and has social anxiety around people she 18 doesn’t know, cannot go to the grocery store alone, and several times a week needs help taking 19 care of her kids when her anxiety is bad. (AR 41-42, 46-51). Plaintiff testified that she has 20 trouble with concentration and multi-tasking, and her ability to take care of herself is 21 compromised when she is depressed. (AR 52-53). She reported that she still experiences side- 22 effects from her medications. (AR 54). 23 III. STANDARD OF REVIEW 24 A district court’s review of a final decision of the Commissioner of Social Security is 25 governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is limited; the 26 Commissioner’s decision will be disturbed “only if it is not supported by substantial evidence or 27 is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). “Substantial 28 evidence” means “relevant evidence that a reasonable mind might accept as adequate to support a 1 conclusion.” Id. at 1159 (quotation and citation omitted). Stated differently, substantial evidence 2 equates to “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 3 citation omitted). In determining whether the standard has been satisfied, a reviewing court must 4 consider the entire record as a whole rather than searching for supporting evidence in isolation. 5 Id. 6 In reviewing a denial of benefits, a district court may not substitute its judgment for that of 7 the Commissioner. “The court will uphold the ALJ’s conclusion when the evidence is susceptible 8 to more than one rational interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 9 2008). Further, a district court will not reverse an ALJ’s decision on account of an error that is 10 harmless. Id. An error is harmless where it is “inconsequential to the [ALJ’s] ultimate 11 nondisability determination.” Id. (quotation and citation omitted). The party appealing the ALJ’s 12 decision generally bears the burden of establishing that it was harmed. Shinseki v. Sanders, 556 13 U.S. 396, 409-10 (2009). 14 IV. FIVE-STEP SEQUENTIAL EVALUATION PROCESS 15 A claimant must satisfy two conditions to be considered “disabled” within the meaning of 16 the Social Security Act. First, the claimant must be “unable to engage in any substantial gainful 17 activity by reason of any medically determinable physical or mental impairment which can be 18 expected to result in death or which has lasted or can be expected to last for a continuous period 19 of not less than twelve months.” 42 U.S.C. § 1382c(a)(3)(A). Second, the claimant’s impairment 20 must be “of such severity that he is not only unable to do his previous work[,] but cannot, 21 considering his age, education, and work experience, engage in any other kind of substantial 22 gainful work which exists in the national economy.” 42 U.S.C. § 1382c(a)(3)(B). 23 The Commissioner has established a five-step sequential analysis to determine whether a 24 claimant satisfies the above criteria. See 20 C.F.R. § 416.920(a)(4)(i)-(v). At step one, the 25 Commissioner considers the claimant’s work activity. 20 C.F.R. § 416.920(a)(4)(i). If the 26 claimant is engaged in “substantial gainful activity,” the Commissioner must find that the 27 claimant is not disabled. 20 C.F.R. § 416.920(b). 28 If the claimant is not engaged in substantial gainful activity, the analysis proceeds to step 1 two. At this step, the Commissioner considers the severity of the claimant’s impairment. 20 2 C.F.R. § 416.920(a)(4)(ii). If the claimant suffers from “any impairment or combination of 3 impairments which significantly limits [his or her] physical or mental ability to do basic work 4 activities,” the analysis proceeds to step three. 20 C.F.R. § 416.920(c). If the claimant’s 5 impairment does not satisfy this severity threshold, however, the Commissioner must find that the 6 claimant is not disabled. 20 C.F.R. § 416.920(c). 7 At step three, the Commissioner compares the claimant’s impairment to severe 8 impairments recognized by the Commissioner to be so severe as to preclude a person from 9 engaging in substantial gainful activity. 20 C.F.R. § 416.920(a)(4)(iii). If the impairment is as 10 severe or more severe than one of the enumerated impairments, the Commissioner must find the 11 claimant disabled and award benefits. 20 C.F.R. § 416.920(d). 12 If the severity of the claimant’s impairment does not meet or exceed the severity of the 13 enumerated impairments, the Commissioner must pause to assess the claimant’s “residual 14 functional capacity.” Residual functional capacity (RFC), defined generally as the claimant’s 15 ability to perform physical and mental work activities on a sustained basis despite his or her 16 limitations, 20 C.F.R. § 416.945(a)(1), is relevant to both the fourth and fifth steps of the analysis. 17 At step four, the Commissioner considers whether, in view of the claimant’s RFC, the 18 claimant is capable of performing work that he or she has performed in the past (past relevant 19 work). 20 C.F.R. § 416.920(a)(4)(iv). If the claimant is capable of performing past relevant 20 work, the Commissioner must find that the claimant is not disabled. 20 C.F.R. § 416.920(f). If 21 the claimant is incapable of performing such work, the analysis proceeds to step five. 22 At step five, the Commissioner considers whether, in view of the claimant’s RFC, the claimant is 23 capable of performing other work in the national economy. 20 C.F.R. § 416.920(a)(4)(v). In 24 making this determination, the Commissioner must also consider vocational factors such as the 25 claimant’s age, education and past work experience. 20 C.F.R. § 416.920(a)(4)(v). If the 26 claimant is capable of adjusting to other work, the Commissioner must find that the claimant is 27 not disabled. 20 C.F.R. § 416.920(g)(1). If the claimant is not capable of adjusting to other work, 28 analysis concludes with a finding that the claimant is disabled and is therefore entitled to benefits. 1 20 C.F.R. § 416.920(g)(1). 2 The claimant bears the burden of proof at steps one through four above. Tackett v. Apfel, 3 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to step five, the burden shifts to the 4 Commissioner to establish that (1) the claimant is capable of performing other work; and (2) such 5 work “exists in significant numbers in the national economy.” 20 C.F.R. § 416.960(c)(2); Beltran 6 v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). 7 V. ALJ’S FINDINGS 8 At step one, the ALJ found that Plaintiff has not engaged in substantial gainful activity 9 since January 29, 2019, the application date. (AR 15). At step two, the ALJ found that Plaintiff 10 has the following severe impairments: schizoaffective disorder and mood disorder. (AR 15). At 11 step three, the ALJ found that Plaintiff does not have an impairment or combination of 12 impairments that meets or medically equals the severity of a listed impairment. (AR 16). The 13 ALJ then found that Plaintiff has the RFC to 14 perform a full range of work at all exertional levels but with the following nonexertional limitations: the claimant can perform work 15 that is uncomplicated enough that it could be learned within 30 days; the claimant cannot perform work involving hourly quotas or 16 conveyer belts; the claimant can perform work involving no more than occasional simple workplace changes; the claimant can 17 occasionally interact with coworkers and supervisors; and the claimant cannot interact with the public. 18 19 (AR 22). At step four, the ALJ found that Plaintiff is unable to perform any past relevant work. 20 (AR 31). At step five, the ALJ found that considering Plaintiff’s age, education, work 21 experience, and RFC, there are jobs that exist in significant numbers in the national economy that 22 Plaintiff can perform, including cleaner, housekeeping; routing clerk; and laundry aid. (AR 22- 23 23). On that basis, the ALJ concluded that Plaintiff has not been under a disability, as defined in 24 the Social Security Act, since January 29, 2019, the date the application was filed. (AR 23). 25 VI. ISSUES 26 Plaintiff seeks judicial review of the Commissioner’s final decision denying her 27 supplemental security income benefits under Title XVI of the Social Security Act. (Doc. No. 1). 28 Plaintiff raises the following issue for this Court’s review: whether the ALJ properly considered 1 Plaintiff’s subjective complaints, and therefore incorporated all of Plaintiff’s work-related 2 limitations into the RFC consistent with the nature and intensity of Plaintiff’s limitations. (Doc. 3 No. 17 at 9-13). 4 VII. DISCUSSION 5 A claimant’s RFC is “the most [the claimant] can still do despite [his or her] limitations.” 6 20 C.F.R. § 404.1545(a); 20 C.F .R. § 416.945(a). The RFC assessment is an administrative 7 finding based on all relevant evidence in the record, not just medical evidence. Bayliss v. 8 Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). In determining the RFC, the ALJ must consider 9 all limitations, severe and non-severe, that are credible and supported by substantial evidence in 10 the record. (Id.) (RFC determination will be affirmed if supported by substantial evidence). 11 However, an ALJ’s RFC findings need only be consistent with relevant assessed limitations and 12 not identical to them. Turner v. Comm'r of Soc. Sec., 613 F.3d 1217, 1222-23 (9th Cir. 2010). 13 Ultimately, a claimant’s RFC is a matter for the ALJ to determine. See Vertigan v. Halter, 260 14 F.3d 1044, 1049 (9th Cir. 2001) (“It is clear that it is the responsibility of the ALJ ... to determine 15 residual functional capacity.”). 16 Plaintiff argues the ALJ erred in assessing her RFC because he failed to offer clear and 17 convincing reasons for rejecting her subjective complaints. (Doc. No. 17 at 9). An ALJ engages 18 in a two-step analysis when evaluating a claimant’s testimony regarding subjective pain or 19 symptoms. Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). The ALJ first must 20 determine whether there is “objective medical evidence of an underlying impairment which could 21 reasonably be expected to produce the pain or other symptoms alleged.” Id. (internal quotation 22 marks omitted). “The claimant is not required to show that his impairment could reasonably be 23 expected to cause the severity of the symptom he has alleged; he need only show that it could 24 reasonably have caused some degree of the symptom.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th 25 Cir. 2009) (internal quotation marks omitted). 26 Second, “[i]f the claimant meets the first test and there is no evidence of malingering, the 27 ALJ can only reject the claimant’s testimony about the severity of the symptoms if [the ALJ] 28 gives ‘specific, clear and convincing reasons’ for the rejection.” Ghanim v. Colvin, 763 F.3d 1 1154, 1163 (9th Cir. 2014) (internal citations and quotations omitted). “General findings are 2 insufficient; rather, the ALJ must identify what testimony is not credible and what evidence 3 undermines the claimant’s complaints.” Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 4 1995)); Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (“[T]he ALJ must make a 5 credibility determination with findings sufficiently specific to permit the court to conclude that 6 the ALJ did not arbitrarily discredit claimant’s testimony.”). “The clear and convincing 7 [evidence] standard is the most demanding required in Social Security cases.” Garrison v. 8 Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 9 F.3d 920, 924 (9th Cir. 2002)). 10 Here, the ALJ found that Plaintiff’s medically determinable impairments could reasonably 11 be expected to cause some of the alleged symptoms; however, Plaintiff’s “statements concerning 12 the intensity, persistence, and limiting effects of these symptoms are not entirely consistent with 13 the medical evidence and other evidence in the record” for several reasons.2 (AR 18). 14 A. Medical Evidence 15 First, the ALJ found that 16 a review of [Plaintiff’s] treatment records over time indicate that beginning in November 2019 and through approximately July 7, 17 2020, there were some significant mental status examinations and findings. However, by July 21, 2020, less than two months prior to 18 [Plaintiff’s] hearing, and less than a year after the significant findings began in November 2019, [Plaintiff’s] findings were much less 19 severe, and did not reflect more than moderate impairment. 20 (AR 18). Medical evidence is a relevant factor in determining the severity of a claimant’s pain 21 and its disabling effects. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001)(an ALJ may 22 2 In addition to the arguments addressed below, Plaintiff contends that “the ALJ’s assertion that Plaintiffs 23 allegations are not supported because symptoms were ‘only moderately problematic’ is disingenuous.” (Doc. No. 17 at 10-11(citing AR 21)). In support of this argument, Plaintiff cites a portion of 20 C.F.R. Pt. 24 404, Subpt. P, App. 1 as follows: “The medical evidence may include descriptors regarding the diagnostic state of level of your disorder, such as ‘mild’ or ‘moderate.’ Clinicians may use these terms to characterize 25 your medical condition. However, these terms will not always be the same as the degree of your limitation in a paragraph B area of mental functioning.” However, the regulation cited by Plaintiff pertains to the 26 ALJ’s consideration of “paragraph B” criteria at step three of the sequential analysis, a finding that is not challenged by Plaintiff in her opening brief. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 27 1161 n.2 (9th Cir. 2008) (court may decline to address issue not raised with specificity in Plaintiff’s briefing). Plaintiff cites no legal authority to support a finding that the ALJ erred in discounting Plaintiff’s 28 symptom claims on this basis. Thus, the Court finds no error. 1 not discredit a claimant’s pain testimony and deny benefits solely because the degree of pain is 2 not supported by objective medical evidence). Moreover, a favorable response to treatment can 3 undermine a claimant’s complaints of debilitating pain or other severe limitations. See 4 Tommasetti, 533 F.3d at 1040; Warre v. Comm'r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th 5 Cir. 2006) (conditions effectively controlled with medication are not disabling for purposes of 6 determining eligibility for benefits). In support of this finding, the ALJ set out, in detail, medical 7 evidence documenting the overall decrease in severity of Plaintiff’s symptom claims across the 8 relevant adjudicatory period, in contradiction to Plaintiff’s claims of disabling mental limitations. 9 (AR 19-21). 10 For example, the ALJ cited mental status examination findings in April 2019 that Plaintiff 11 was in a stable mood; not experiencing hallucinations, paranoia or delusions; had no suicidal 12 ideation; had congruent affect; had fair insight and judgment; and her memory and orientation 13 were intact. (AR 19, 277). In July 2019, Plaintiff reported that she was experiencing mood 14 swings and drowsiness, but denied hallucinations or suicidal/homicidal ideation, memory and 15 orientation were intact, and “judgment, insight, and sleep were all fair.” (AR 19, 280). A week 16 later Plaintiff reported no suicidal thoughts or hallucinations, and her medical provider reduced 17 her medication believing it was overstimulating Plaintiff based on her reports of increased 18 anxiety. (AR 19-20, 282). In August 2019, as cited by the ALJ, Plaintiff reported she was stable 19 and “ok,” denied mood swings or hallucinations, and was noted on mental status examination to 20 have fair insight and judgment, congruent affect, intact memory, and fair sleep. (AR 20, 283). In 21 August 2019, Plaintiff was noted to be alert and oriented, and normal in terms of mood, affect, 22 and behavior. (AR 20, 309). In November 2019, the ALJ acknowledged mental status 23 examination results noting Plaintiff was paranoid, guarded, responding to internal stimuli, 24 distracted, and had anxious mood and affect; however, the examination also noted that Plaintiff 25 had normal speech with normal thought processes, had capacity for abstraction, associations were 26 normal and goal-directed, her insight and judgment were intact, her fund of knowledge was intact, 27 and she was fully alert and oriented. (AR 20, 428-29). In June 2020, Plaintiff endorsed issues 28 with depression, mania, sleep, and memory; but she denied suicidal or homicidal ideation or 1 psychosis, had congruent but anxious effect, had normal rate of speech and thought process, had 2 linear associations, and was alert and oriented. (AR 20-21, 374-75). In July 2020, as cited by the 3 ALJ, Plaintiff still reported fatigue and anxiety, but also indicated her mood was stable, 4 medication was helping her anxiety, she had improved energy, and she was not experiencing 5 psychosis; and mental status examinations noted no evidence of medication side effects, normal 6 speech and psychomotor activity, generally euthymic mood and affect, and intact judgment and 7 insight. (AR 21, 364-65). 8 First, Plaintiff argues the ALJ’s reasoning “fails to identify any basis for discounting 9 Plaintiff’s subjective complaints, or explain how the waxing and waning of symptoms or relative 10 improvement is inconsistent with her alleged limitations.” (Doc. No. 17 at 11). In support of this 11 argument, Plaintiff cites mental status examination results in the record “throughout 2020,” 12 including findings of preoccupied thoughts, partial insight and judgment, problems with 13 orientation, impaired memory, and sad, anxious, and irritable mood. (Id. (citing 368-69, 374-75, 14 380-81, 386-87, 391-92, 389-99). However, the ALJ explicitly recognized evidence in the record 15 that could be considered more favorable to Plaintiff, including evidence from the precise 16 treatment records cited by Plaintiff here, and nonetheless found the severity of her symptom 17 claims were not consistent with the decrease in severity of mental status examinations by late July 18 2020. (See AR 18-21). “[W]here evidence is susceptible to more than one rational interpretation, 19 it is the [Commissioner’s] conclusion that must be upheld.” Burch v. Barnhart, 400 F.3d 676, 20 679 (9th Cir. 2005). 21 Second, Plaintiff argues that “abnormalities” in mental status examinations “persisted 22 throughout the relevant period, but are simply better documented as of 2019 because Plaintiff 23 changed medical providers”; thus, “[t]he ALJ’s mischaracterization of the severity of Plaintiff’s 24 symptoms based on the format of her earlier medical records is not a clear and convincing reason 25 for finding her impairments ‘less severe’ prior to changing medical providers.” (Doc. No. 17 at 26 12). This argument is not well-taken. Plaintiff does not cite, nor does the Court discern, legal 27 authority to support the argument that an ALJ is required to compare the formatting of medical 28 records in evaluating the consistency of a claimant’s symptom claims with the objective medical 1 evidence. Rather, as detailed above, the ALJ considered the Plaintiff’s subjective complaints and 2 mental status examinations across the longitudinal record including evidence that could be 3 considered more favorable to Plaintiff. (Compare Doc. No. 17 at 12, with AR 18-21). 4 Finally, Plaintiff is correct that “it is error to reject a claimant’s testimony merely because 5 symptoms wax and wane in the course of treatment. Cycles of improvement and debilitating 6 symptoms are a common occurrence, and in such circumstances it is error for an ALJ to pick out 7 a few isolated instances of improvement over a period of months or years and to treat them as a 8 basis for concluding a claimant is capable of working.” Garrison, 795 F.3d at 1017. However, as 9 discussed in detail above, the ALJ in this case gave a thorough summary of mental status 10 examination findings chronologically through the relevant adjudicatory period and “the record is 11 consistent with the ALJ’s interpretation that Plaintiff experienced an exacerbation of symptoms in 12 November 2019. Whether it was due to non-compliance or taking time to find the right 13 treatment, Plaintiff stabilized and then, by the most recent treatment note, “was doing much 14 better.” (Doc. No. 18 at 13). Thus, based on the longitudinal record, it was reasonable for the 15 ALJ to find the severity of Plaintiff’s symptom claims was inconsistent with objective findings 16 from the longitudinal record. See Burch, 400 F.3d at 679. This was a clear and convincing 17 reason, supported by substantial evidence, to discount Plaintiff’s symptom claims. 18 B. Failure to Comply with Treatment 19 Second, and perhaps more notably, the ALJ found “there are compliance issues impeding 20 [Plaintiff’s] progress. For example, she often does not follow up when advised to, and moreover 21 will decide on her own without professional input that it is time for her to change medications and 22 dosages, or take psychiatric medications prescribed to a family member.” (AR 18). Unexplained, 23 or inadequately explained, failure to seek treatment or follow a prescribed course of treatment 24 may be the basis for rejection of Plaintiff’s symptom claims unless there is a showing of a good 25 reason for the failure. Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007). However, an ALJ “will 26 not find an individual’s symptoms inconsistent with the evidence in the record on this basis 27 without considering possible reasons he or she may not comply with treatment or seek treatment 28 consistent with the degree of his or her complaints.” Social Security Ruling (“SSR”) 16-3p at *8- 1 *9 (March 16, 2016), available at 2016 WL 1119029. 2 Plaintiff argues that this was not a clear and convincing reason to discount her subjective 3 symptoms because the ALJ “failed to acknowledge that Plaintiff’s noncompliance with 4 medication was the result of adverse side effects, which records document were severe and 5 intolerable.” (Doc. No. 17 at 10) (citing Trevizo v. Berryhill, 871 F.3d 664, 680 (9th Cir. 2011)). 6 This argument is unavailing for several reasons. First, as required under SSR 16-3p, the ALJ did 7 consider Plaintiff’s reported side effects, along with reports that she was not experiencing side 8 effects. (AR 19-21 (citing 277, 280, 282, 291, 283, 364-66, 372, 426). Second, the ALJ 9 supported this finding with additional evidence of non-compliance by Plaintiff, including 10 observations by treating medical sources that Plaintiff had a history of taking her mother’s 11 medication and changing her dose of medication without input from a medical provider, refused 12 to undergo a sleep study because she did not like the people at the clinic, binge watched television 13 and stayed up late at night despite claiming sleep disturbances, and repeatedly resisted taking 14 medication because she did not think it was working. (AR 277, 280 (also noting Plaintiff failed to 15 make a follow up appointment), 283 (“VERY resistant to taking medications”)). Personal 16 preference is not a sufficient reason to not comply with treatment recommendations. See, e.g., 17 Molina, 674 F.3d at 1113-14 (affirming an ALJ’s discounting a claimant’s testimony based on a 18 resistance to treatment, where there was no evidence that the resistance was based on her 19 impairments rather than her personal preference). 20 Based on the foregoing, Plaintiff’s documented failure to comply with treatment 21 recommendations was a clear and convincing reason, supported by substantial evidence, to 22 discount her symptom claims. See Carmickle, 533 F.3d at 1162-63. Thus, the Court concludes 23 that the ALJ properly incorporated limitations into the RFC that the ALJ found credible and 24 supported by substantial evidence in the record. Bayliss, 427 F.3d at 1217. 25 VIII. CONCLUSION 26 A reviewing court should not substitute its assessment of the evidence for the ALJ’s. 27 Tackett, 180 F.3d at 1098. To the contrary, a reviewing court must defer to an ALJ’s assessment 28 as long as it is supported by substantial evidence. 42 U.S.C. § 405(g). As discussed in detail 1 | above, the ALJ properly considered Plaintiff's symptom claims and the assessed the RFC. After 2 | review, the Court finds the ALJ’s decision is supported by substantial evidence and free of 3 | harmful legal error. 4 Accordingly, it is RECOMMENDED: 5 1. Plaintiff's Motion for Summary Judgment (Doc. No. 17) be DENIED. 6 2. Defendant’s Cross Motion for Summary Judgment (Doc. No. 18) be GRANTED. 7 3. The district court AFFIRM the decision of the Commissioner of Social Security 8 for the reasons set forth above. 9 4. The district court direct the Clerk to enter judgment in favor of the Commissioner 10 of Social Security, terminate any pending motions/deadlines, and close this case. 11 NOTICE TO PARTIES 12 These findings and recommendations will be submitted to the United States district judge 13 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 14 | days after being served with these findings and recommendations, a party may file written 15 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 16 | Findings and Recommendations.” Parties are advised that failure to file objections within the 17 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 18 | 838-39 (Oth Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 19 20 Dated: _ January 9, 2023 law ZA. foareh Zackte 2] HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 12