Opinion
CV-20-00403-TUC-JCH (BGM)
02-17-2022
Iris Diana Chavez, Plaintiff, v. Kilolo Kijakazi, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
HONORABLE BRUCE G. MACDONALD, UNITED STATES MAGISTRATE JUDGE
Currently pending before the Court is Plaintiff Iris Diana Chavez's Brief for Plaintiff (“Opening Brief”) (Doc. 29). Defendant filed her Answering Brief (“Response”) (Doc. 32), and Plaintiff replied (“Reply”) (Doc. 35). Plaintiff brings this cause of action for review of the final decision of the Commissioner for Social Security pursuant to 42 U.S.C. § 405(g). Compl. (Doc. 1).
Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure, this matter was referred to Magistrate Judge Macdonald for Report and Recommendation. Based upon the pleadings of the parties and the administrative record submitted to the Court, the Magistrate Judge recommends that the District Court deny Plaintiff's Opening Brief (Doc. 29).
Rules of Practice of the United States District Court for the District of Arizona.
I. BACKGROUND
A. Procedural History
On September 12, 2017, Plaintiff protectively filed a Title XVI application for Supplemental Security Income (“SSI”) alleging disability as of February 10, 2015, due to major depressive disorder with severe psychotic features, medication induced movement disorder, anxiety disorder, schizophrenia, bipolar depression, schizoaffective disorder type depressed, post-traumatic stress disorder (“PTSD”), and metabolic syndrome. See Administrative Record (“AR”) at 41, 43, 63, 100-102, 115-17, 242, 269, 273, 326, 336. The Social Security Administration (“SSA”) denied this application on October 13, 2017. Id. at 41, 100-14, 130-33. On November 15, 2017, Plaintiff filed a request for reconsideration, and on February 2, 2018, SSA denied Plaintiff's application upon reconsideration. Id. at 41, 115-29, 140-46. On March 1, 2018, Plaintiff filed her request for hearing. Id. at 41, 147-49. On June 19, 2019, an initial hearing was held before Administrative Law Judge (“ALJ”) Charles Davis, with a supplemental hearing held on November 19, 2019. Id. at 41, 59-99. On January 9, 2020, the ALJ issued an unfavorable decision. AR at 38-53. On June 29, 2020, Plaintiff requested review of the ALJ's decision by the Appeals Council, and on July 24, 2020, review was denied. Id. at 1-10. On September 22, 2020, Plaintiff filed this cause of action. Compl. (Doc. 1).
B. Factual History
Plaintiff was thirty-one (31) years old at the time of the alleged onset of her disability and thirty-six (36) years old at the time of the administrative hearings. AR at 41, 51, 62, 100-102, 115-17, 242, 269, 336. Plaintiff is a college graduate with a Bachelor of Arts degree in secondary education. Id. at 52, 62, 100, 115. Prior to her alleged disability, Plaintiff worked as a caregiver, a teacher's aide, an accountant assistant, substitute teacher, and mentor for the First Born Program. Id. at 62-63, 90-91, 274, 316-23.
1. Plaintiff's Testimony
a. Administrative Hearing
i. Initial Hearing
At the initial administrative hearing, Plaintiff testified that she received a Bachelor of Arts in secondary education. AR at 62. Plaintiff described her previous work to include a caregiver for a place called Right at Home, as an aide for special needs at an early childhood center in Sahuarita, Arizona, and as a mentor/guide for the First Born Program at Gila Regional Medical Center. Id. at 62-63. Plaintiff testified that her mental illness prevents her from working and described being delusional with hallucinations, as well as chronic anxiety and depression. Id. at 63. Plaintiff further testified that she lives in Green Valley, Arizona with her eleven (11) year old daughter who lives with her. Id. at 63-64. Plaintiff explained that her two (2) older children live with their father in Silver City, New Mexico. Id. at 64. Plaintiff described her joint custody arrangement, indicating that her two older children were with her for the month of June and all three (3) children were with their father for the month of July. AR at 69. The children also have monthly visits with the non-custodial parent. Id.
Plaintiff testified that she was currently treated at COPE behavioral health center by three (3) different doctors, including Dr. Ross, Dr. Hawkins, and a third whose name she could not remember. Id. at 64. Plaintiff indicated that Dr. Stein was a previous doctor, but that Dr. Stein had taken a different job and not treated Plaintiff for some time. Id. Plaintiff reported that she cannot hold a job for more than six (6) months and it is difficult emotionally. Id. at 67. Plaintiff further reported that she has paranoia and delusions that she is being followed, as well as auditory and visual hallucinations. AR at 67. Plaintiff testified that she and her daughter live with her parents. Id. at 68. Plaintiff confirmed that she pays $50 for rent and is responsible for chores around the house such as cleaning and cooking. Id. Plaintiff further testified that her rent money is derived from child support. Id.
Plaintiff denied doing any volunteer work because she does not want to be around people. Id. Plaintiff reported that although she used to attend church, she stopped going “years ago.” AR at 68. Plaintiff also testified that she had exercised previously but was not currently. Id. Plaintiff testified that she is not active with either her daughter's school or soccer, although her mom attends those events. Id. at 68-69. Plaintiff further testified that she drives to her doctor appointments and sees her behavioral health specialist, Dr. Hawkins, approximately once every three (3) months. Id. at 69.
Plaintiff described her sleep as improved and noted that she is no longer taken a sleep aid. Id. Plaintiff also testified that she has not been using any street drugs or marijuana in years. AR at 70. Plaintiff acknowledged that she was petitioned into the hospital that year by the Crisis Response Center (“CRC”) after her mother took her there. Id.
ii. Supplemental Hearing
At the supplemental administrative hearing, Plaintiff testified that she is compliant with her medication. AR at 80. Plaintiff described feeling like some of the voices have “calmed down”; however, although they are less frequent, they have not disappeared entirely. Id. Plaintiff indicated that the visual hallucinations are less frequent, as well, although she still sees them. Id. Plaintiff testified that the custody dispute has resolved, resulting in her two (2) older children living with their father in Silver City, New Mexico, and the youngest child residing with her. Id. at 80-81.
Plaintiff confirmed that she had been hospitalized at Sonora in March of 2019. Id. at 84-85. Plaintiff further testified that at that time, she was seeing a demon who was speaking to her and went to the Crisis Response Center (“CRC”) where she was involuntarily admitted to the hospital. AR at 85-86.
Plaintiff testified that her work for the Gila Regional Medical Center was for a program called the First Born Program. Id. at 90. Plaintiff described the work as similar to being a social worker to first time parents and their families. Id. at 90-91. Plaintiff estimated that she held that position for six (6) months, at which point she quit because she was living in Silver City, New Mexico, a small town, and was uncomfortable seeing clients in town after social services had been called. Id. at 91. Plaintiff testified that was the longest job that she has held. Id. Plaintiff further testified that she cannot handle her psychosis and that prevents her from working now. AR at 91. Plaintiff indicated that even on medication she sees a shadow man daily, although the voices had subsided. Id. Plaintiff testified that the shadow man scares her and is a distraction, which prevents her from working. Id.
Plaintiff opined that she would be unable to perform a job such as housekeeping, because she would be distracted by something that she should not see or hear and that would not look good to an employer. Id. at 94. Plaintiff described trying to work for her stepdad doing data entry at home, but she could not do it because she would get distracted and make mistakes. Id. at 94-95.
b. Administrative Forms
i. Function Report-Adult
On October 2, 2017, Plaintiff completed a Function Report-Adult. AR at 307315. Plaintiff reported that she lived in a house. Id. at 307. Plaintiff described the limitations of her medical conditions as: “Extreme paranoia and social anxiety limits my ability to work. Taking certain medications make me very drowsy during the day as well.” Id. Plaintiff described her usual day to include waking up early; taking her daughter to school; keeping her room clean; and cooking dinner, so that it is ready by the time she picks up her daughter from the bus stop. Id. at 308. Plaintiff indicated that in addition to caring for her nine (9) year old daughter, she cares for a small dog, and she is able to care for both independently. Id.
Plaintiff noted that prior to her illness, she was more sociable and outgoing, and could handle seeing other people. AR at 308. Plaintiff stated that her illness causes her to have “high levels of drowsiness” which causes concentration issues. Id. Plaintiff reported that she does not have any problems with personal care; however, she does require assistance from her mother to take her medications. Id. at 309. Plaintiff further reported that she prepares her own meals every day and that her cooking abilities have been unaffected by her illnesses. Id. Plaintiff also reported being able to do basic housework, each task takes about an hour, and she does not require help or encouragement. Id. at 310.
Plaintiff indicated that she goes out daily to take her children to school and can drive. AR at 310. Plaintiff also indicated that she shops in stores for groceries or clothing. Id. Plaintiff reported that she shops once per week for approximately thirty (30) minutes to an hour. Id. Plaintiff's interests include spending time with her daughter, reading, and cooking. Id. at 311. Plaintiff stated that she spends time daily with her daughter and although her doctor encourages her to go out, she tries not to. Id. Plaintiff does spend time with others, having coffee and talking. AR at 311. Plaintiff estimated that she does this once every two (2) weeks. Id. Plaintiff reported that she does not go anywhere regularly, except to counseling once per week. Id. Although she can go alone, she needs reminding. Id. Plaintiff further reported that since her illnesses began, she only visits people she knows, and they usually do not go out. Id. at 312. Plaintiff noted that she can count change and handle a savings account; however, she cannot pay bills or use a checkbook or money orders because she does not have any money. AR at 311. Plaintiff reported that her ability to handle money has changed since the onset of her illness because she does not make enough money to make ends meet. Id.
Plaintiff reported that her illnesses impact her memory, concentration, understanding, and ability to follow instructions. Id. at 312. Plaintiff further reported needing to be reminded of what she needs to do. Id. Plaintiff indicated that she can sustain attention for “a long while” but does not finish what she starts. Id. Plaintiff noted that she is able to follow written instructions well but sometimes needs reminding regarding spoken instructions. AR at 312. Plaintiff has never been fired from a job because of problems getting along with people. Id. at 313. Plaintiff reported that her anti-depressants help with her ability to handle stress, but it “doesn't always do the job.” Id. Plaintiff further reported that she can handle changes in routine and has not noticed any unusual behavior or fears. Id. Plaintiff listed her medications that cause side effects to include lamotrigine, olanzapine, clonazepam, Benztropine, Trazadone, and Metformin. Id. at 314.
ii. Work History Report
On October 2, 2017, Plaintiff completed a Work History Report. AR at 316-23. Plaintiff listed her prior work to include teacher aid for health assistant teacher; accountant assistant-data entry; substitute teaching; and First Born Program. Id. at 316. Plaintiff described the teacher aid position as fulltime-approximately seven (7) hours per day, five (5) days per week. Id. at 317. Plaintiff reported that the position required her to use technical knowledge or skills, as well as writing and completing reports, but did not require her to use machines, tools, or equipment. Id. Plaintiff further reported that while working she walked, kneeled, sat, and crawled for thirty (30) minutes per day; stood for seven (7) hours per day; and stooped for six (6) hours per day. Id. Plaintiff described lifting and carrying small children during her workday. AR at 317. Plaintiff also reported that she would frequently lift twenty-five (25) pounds, and the heaviest weight she lifted was approximately fifty (50) pounds. Id. Plaintiff indicated that she was not a supervisor or lead worker, and she was not responsible for hiring or firing. Id.
Plaintiff described the accountant assistant position as parttime-approximately three (3) hours per day four (4) days per week-and included assisting the accountant by performing data entry. Id. at 318. Plaintiff reported that the position required her to use technical knowledge or skills but did not require her to use machines, tools, or equipment; write; or complete reports. Id. Plaintiff further reported that while working she sat for three (3) hours per day. AR at 318. Plaintiff indicated “other” without further specification as the heaviest weight that she lifted, as well as the weight she frequently lifted. Id. Additionally, Plaintiff noted that she did not supervise other people, was not a lead worker, and did not hire or fire employees. Id.
Plaintiff described the substitute teaching position as parttime-seven (7) hours per day, one (1) to two (2) days per week-and included educational duties assigned by teacher. Id. at 319. Plaintiff reported that while working she would stand for approximately eight (8) hours per day; sit for three (3) hours per day; and kneel and write, type, or handle small objects for one (1) hour per day. Id. Plaintiff noted that the job required that she supervised a maximum of thirty (30) students for the entire day. AR at 319.
Plaintiff described the First Born Program position as fulltime and included helping first time parents with their newborn and following their development according to a curriculum. Id. at 320. Plaintiff reported that the position required her to write and complete reports, but did not require the use of machines, tools, or equipment, or use technical knowledge or skills. Id. Plaintiff further reported that while working she would walk and kneel for one (1) hour per day; stand for two (2) hours per day; and sit for three (3) hours per day. Id. Plaintiff described the heaviest weight she lifted as less than ten (10) pounds and noted that this was also the weight she frequently lifted. Id. Plaintiff did not supervise people, was not a lead worker, and did not hire or fire employees. AR at 320.
2. Plaintiff's Medical Records
Although the Court has reviewed the entirety of Plaintiff's medical records, its summary is generally limited to records from Plaintiff's alleged onset date of February 10, 2015, forward.
Throughout 2015 and part of 2016 Plaintiff received regular services at La Frontera Arizona, including individual therapy and medication management. AR at 396669, 796-1002. Plaintiff was a victim of domestic violence perpetrated by her now exhusband. See AR at 1383-84, 1393-94. Plaintiff filed for divorce on January 5, 2015, which was finalized September 12, 2016. Chavez v. Chavez, No. D20150014, Docket (Pima Cnty. Super. Ct.). Plaintiff and her mother routinely expressed to Plaintiff's care teams that the stress of the divorce and custody battle had negative effects on Plaintiff's mental health. AR at 396, 410, 416, 421, 427, 450, 455, 468, 474, 498, 517, 550, 587, 626, 629, 635, 677, 680, 686, 689, 696, 730, 791, 804, 832, 902, 956. Plaintiff was hospitalized several times in 2015 due to suicidal ideation or attempt. See id. at 368-73, 386-88, 450, 677-82, 686-91, 694-97, 726-38, 759-61, 791-93, 800-801, 804, 897905, 1253-58. These attempts were generally triggered by an event related to her divorce. See id. Plaintiff's mother, Mercedes, observed that Plaintiff “often experiences her symptoms once her child's father takes the kids away or tell them that he will fight for them in court.” Id. at 468. In August 2015, Plaintiff called La Frontera en route to the hospital, telling her therapist that she was “feeling overwhelmed by family/relational issues related to her divorce and need[ed] a break.” AR at 626. Subsequently, during her individual therapy, she was “encouraged . . . to identify what the hospital does for her and how she can refrain from frequent hospital visits (if they are not necessary).” Id. at 635; see also AR at 816.
“The court may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed.R.Evid. 201(b). Arizona state court orders and proceedings are proper material for judicial notice. See Dawson v. Mahoney, 451 F.3d 550, 551 n.1 (9th Cir. 2006) (taking judicial notice of orders and proceedings before another tribunal).
In 2016, Plaintiff transitioned her care to Pasadera Behavioral Health in Green Valley which became Community Health Associates (“CHA”). AR at 855-56, 1037. From the end of 2016 until the beginning of 2018, Plaintiff received mental health care through CHA. Id. at 1027-1128. On January 19, 2016, Diane C. Stein, M.D., Behavioral Health Medical Provider at Pasadera Behavioral Health, provided a letter report. Id. at 1194-95. Dr. Stein listed Plaintiff's primary diagnoses as Substance-Induced Psychotic Disorder, now in full remission, Major Depressive Disorder in partial remission, and Anxiety Disorder. Id. at 1194. Dr. Stein opined that Plaintiff's records are not consistent with schizoaffective disorder, bipolar type, or bipolar disorder. Id. at 1194. Dr. Stein noted that psychotic symptoms, followed by depressed mood with suicidal ideation and behavior, began in the context of taking the synthetic marijuana drug known as Spice in approximately 2012. AR at 1194. Dr. Stein indicated that Plaintiff was well stabilized on ziprasidone, benztropine, clonazepam, buspirone, sertraline, and trazodone. Id. at 1194-95. Dr. Stein also observed that Plaintiff's ongoing custody conflict precipitates symptoms. Id. at 1195. Dr. Stein noted that Plaintiff was “cognitively intact and is no longer manifesting any psychotic symptoms such as paranoia, other delusional beliefs or hallucinations; nor has she had suicidal thoughts or urges to harm herself in any way.” Id. at 1195.
On September 12, 2017, Plaintiff met with Jami Remien, BHMP and denied suicidal ideation but admitted homicidal ideation approximately three (3) times per week toward “random people that make her angry.” Id. at 1047, 1120. On October 3, 2017, Plaintiff saw NP Remien and again expressed homicidal ideation against unknown people when she goes out but denied audio and visual hallucinations. AR at 1121. She continued to express worry about her kids and seeing her ex-husband. Id. On October 17, 2017, Plaintiff reported that she had not experienced any audio or visual hallucinations but had suicidal ideations without a plan or intent. Id. at 1117. NP Remien noted that custody issues and having to see her ex-husband at drop-offs continued to upset Plaintiff. Id. On November 28, 2017, Plaintiff returned to see NP Remien and denied audio or visual hallucinations, as well as homicidal or suicidal ideations. Id. at 1097. Plaintiff indicated that suicidal ideations “pop[] up and she puts it aside but it is getting easier to handle.” AR at 1097. On January 23, 2018, Plaintiff saw NP Remien and denied suicidal and homicidal ideations, as well as visual hallucinations and paranoid delusions, but indicated that “[v]oices [were] saying negative things.” Id. at 1093.
On January 24, 2018, NP Remien completed a Medical Assessment of the Patient's Ability to Perform Work Related Activity. Id. at 1052-55. Regarding Understanding and Memory, NP Remien opined that Plaintiff had moderately severe limits on her ability to remember locations and work-like procedures; mild limits on the ability to understand and remember simple instructions; and severe limits on the ability to understand and remember detailed instructions. Id. at 1052. NP Remien further opined that in the area of Sustained Concentration and Persistence, Plaintiff had severe limits in her ability to carry out detailed instructions; perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerance; sustain ordinary routine without supervision; work in coordination with or proximity to others without being distracted by them; and complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods. Id. at 1053. NP Remien further expressed that Plaintiff had moderately severe limits in her ability carry out simple one or two-step instructions and maintain attention and concentration without interruptions from psychologically based symptoms, and moderate limits on making simple work related decisions. AR at 1053. Regarding social interactions, NP Remien found Plaintiff to have severe limitations on her ability to interact appropriately with the general public; accept-instructions and respond appropriately to criticism from supervisors; get along with co-workers or peers without distracting them of exhibiting behavioral extremes; and maintain socially appropriate behavior and adhere to basic standards of neatness and cleanliness. Id. at 1054. NP Remien opined that Plaintiff had moderate limits on her ability to ask simple questions or request assistance and maintain socially appropriate behavior and adhere to basic standards of neatness and cleanliness. Id. Regarding Adaptation, NP Remien noted that Plaintiff had severe limits in her ability to respond appropriately to changes in the work setting; travel to unfamiliar places or use public transportation; and set realistic goals or make plans independently of others. Id. In Plaintiff's ability to be aware of normal hazards and take appropriate precautions, NP Remien noted moderate limitation. Id. NP Remien opined that Plaintiff is likely to miss work because of her impairments, and this would occur more than three (3) times a month. AR at 1055. Finally, NP Remien indicated that these limitations were expected to last 12 months or longer. Id.
In 2018, Plaintiff began receiving services through COPE Community Services. Id. at 1265-1371, 1398-1443. On September 14, 2018, Plaintiff saw Robin Ross, M.D. for an office visit due to side effects from her medication. Id. at 1303-1305. Dr. Ross noted that Plaintiff “does appear [sic] psychotic today nor the last time I saw her, however she reports seeing and hearing things and Dr. Reid endorses psychosis.” Id. at 1303. Dr. Ross's examination was generally unremarkable, and Plaintiff denied suicidal and homicidal ideations, as well as audio or visual hallucinations. AR at 1303-1304. On October 2, 2018, Plaintiff returned to Dr. Ross on a walk-in basis with her mother seeking an antidepressant. Id. at 1300. Dr. Ross's examination was unremarkable. Id. Plaintiff reported no suicidal or homicidal ideation but confirmed audio and visual hallucinations. Id. Plaintiff and her mother saw Dr. Ross seeking another psychological evaluation for her attorney. Id. at 1293. Dr. Ross's notes indicate that “[P]atient states anxiety is high, states seeing shadow man more[;] states this contributes to anxiety[;] patent never appears psychotic when in appointment with me[;] never appears to be responding to internal stimuli, never has a thought disorder that is displayed in her communication with me.” AR at 1293. Dr. Ross further indicated, “I am unclear if she has a personality disorder, or actual psychotic disorder[, ] the fact that no medication seems to make a difference other than clonazepam, has me wondering if true psychosis.” Id. Dr. Ross also observed that Plaintiff “states [she is] too anxious to leave house, but does no appear anxious here and does take daughter to school by herself.” Id. at 1294. Plaintiff denied suicidal and homicidal ideation but confirmed audio and visual hallucinations. Id. Dr. Ross's examination was otherwise unremarkable. Id. at 1293-94. On April 11, 2019, Plaintiff returned to Dr. Ross. AR at 1270-74. Plaintiff denied suicidal and homicidal ideation and Dr. Ross's examination was unremarkable. Id. at 1270-71, 1273.
On June 3, 2019, Dr. Ross completed Medical Assessment of the Patient's Ability to Perform Work Related Activity. Id. at 1190-93. Dr. Ross opined that in the area of understanding and memory, Plaintiff had moderate limitations on her ability to remember locations and work-like procedures and understand and remember detailed instructions. Id. at 1190. Dr. Ross noted mild limitation on Plaintiff's ability to understand and remember simple instructions. Id. Dr. Ross further opined that regarding Sustained Concentration and Persistence, Plaintiff had moderately severe limits on her ability to work in coordination with or proximity to others without being distracted by them and complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods. AR at 1191. Dr. Ross also opined that Plaintiff was moderately limited on her ability to carry out detailed instructions; maintain attention and concentration without interruptions from psychologically-based symptoms; perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerance; sustain ordinary routine without supervision; and make simple work-related decisions. Id. Dr. Ross found Plaintiff had mild limitation in ability to carry out a simple one or two-step instruction. Id. Regarding social interactions, Dr. Ross opined that Plaintiff had severe limitations on her ability to interact appropriately with the general public and moderately severe limits on her ability to accept instructions and respond appropriately to criticism from supervisors and get along with co-workers or peers without distracting them or exhibiting behavioral extremes. Id. at 1192. Dr. Ross further opined that Plaintiff had moderate limits on her ability to ask simple questions or request assistance, and mild limits on her ability to maintain socially appropriate behavior and to adhere to basic standards of neatness and cleanliness. Id. Dr. Ross also opined that in the area of adaptation, Plaintiff had moderately severe limits on her ability to travel to unfamiliar places or use public transportation; moderate limits on her ability to respond appropriately to changes in the work setting and set realistic goals or make plans independently of others; and mild limits on her ability to be aware of normal hazards and take appropriate precautions. AR at 1192. Dr. Ross opined that Plaintiff would be likely to miss work as a result of impairment and estimated this would occur more than three (3) times a month. Id. at 1193. Dr. Ross also expected her limitations to last for twelve (12) months or longer. Id.
3. Psychological Medical Expert Kent B. Layton, Psy.D.'s Testimony
Dr. Layton testified as psychological medical expert at the administrative hearing. AR at 41, 77-80. Dr. Layton noted diagnoses of post-traumatic stress disorder (“PTSD”), schizoaffective bipolar type, generalized anxiety disorder, delusional disorder, and polysubstance abuse history. Id. at 77. Regarding the PTSD diagnosis, Dr. Layton commented that he “didn't see it backed up very much.” Id. Dr. Layton reviewed Plaintiff's medical records and noted that her substance induced psychotic disorder seemed to be associated with a January 19, 2016, spice incident. Id. at 78. Dr. Layton noted that the same record indicated that Plaintiff showed substantial improvement on medication but was having problems with a custody conflict. Id. Dr. Layton further testified that Plaintiff's records indicated that she was “quite stable, no psychotic symptoms, mostly resilient, denies attention, concentration problems” but also said that she would “be marked, but distracted by psych symptoms with co-workers, and public transportation.” AR at 78. Dr. Layton also indicated that Plaintiff's records show that she was overwhelmed and thinking about hanging herself. Id. Dr. Layton's additional review of Plaintiff's records showed periods of improvement and periods of increased symptoms or difficulty. Id. at 78-79. Dr. Layton testified that is “look[ed] like she's off and on medicine and that her custody battle causes her to have increased symptoms.” Id. at 79. Dr. Layton further testified that an April 11, 2019, note indicated that Plaintiff had “partial medicine compliance” which he interpreted as Plaintiff going on and off her medication. Id. Dr. Layton testified that when Plaintiff is off her medication and under stress, “her understanding, remembering, and applying information is moderate[;] [interacting with others is marked[;] [concentration, persistence and pace is moderate[;] [and] [a]daptation is marked[.]” AR at 79-80. Dr. Layton further testified that when Plaintiff is on her medication she would be moderate in all areas. Id. at 80. Dr. Layton opined that Plaintiff “has more resilience than tolerance[.]” Id.
Dr. Layton also testified that he would expect functional limitations, but that Plaintiff could do simple, repetitive, routine, or complex routine, like childcare-the kind of things that she does taking care of her child. Id. at 81. Dr. Layton placed limitations on Plaintiff including no high stress environments, no deadlines; occasional direct public contact, just superficial; not working as a team; and simple, repetitive routine. Id. Dr. Layton further opined that the severe limitations noted by Plaintiff's nurse practitioner were inconsistent with someone capable of caring for a child. AR at 82.
Dr. Layton acknowledged that Plaintiff had auditory and precursor visual hallucinations while compliant with her medication. Id. at 82-83. Dr. Layton further acknowledged that Plaintiff was hospitalized on March 31, 2019, on a 5150 hold. Id. at 83-84. Dr. Layton opined that Plaintiff's family helping her with childcare did not impact his previous opinion regarding her ability to work in a low stress environment. Id. at 86-87. Dr. Layton further opined that an individual with Plaintiff's diagnoses would likely be non-compliant with their medication approximately fifty (50) percent of the time. AR at 87-88. Dr. Layton indicated that most individuals that are non-compliant do so because of the side-effects of their medication but also noted that the newer medications have fewer side-effects. Id. at 89-90.
Dr. Layton described a 5150 hold to include 5150(a), a threat to yourself or someone else, and 5150(b), where you cannot provide food, shelter, and clothing. AR at 84.
4. Vocational Expert Kathleen McAlpine's Testimony
Ms. McAlpine testified as a vocational expert at the administrative hearing. AR at 41, 92-94. Ms. McAlpine described Plaintiff's past relevant work for the First Born Program as a teacher, Dictionary of Occupational Titles (“DOT”) number 092.227-010, as having a Specific Vocational Preparation (“SVP”) of 7, and exertional level of light. Id. at 92-93. The ALJ asked Ms. McAlpine to consider a hypothetical individual of Plaintiff's age, education, and work history; who was limited to simple, routine, repetitive tasks; employment that did not involve high stress such as production quotas or factory type of stress and deadlines; who could only occasionally interact with the public; and jobs where the individual could work relatively independently and not required to be a part of a team. Id. at 93. Ms. McAlpine opined that such an individual would not be able to perform Plaintiff's past work of teacher or social work. Id. Ms. McAlpine further opined that such an individual would be able to perform the job of housekeeping, cleaner, DOT 323.687-014, light exertional level, an SVP of 2, and which has approximately 133, 108 jobs in the national economy. Id. at 93. Ms. McAlpine indicated that such a job would give someone the ability to work independently with only occasional public contact and would be simple, repetitive, and routine. AR at 93-94.
Plaintiff's counsel asked about employment opportunities for a similar hypothetical individual, but someone who would have severe limits-an impairment that precludes the performance of work-related functions twenty-one (21) percent or more of an eight (8) hour day-on their ability to work. Id. at 95. Counsel stated the severe limitations to be in the ability to understand and remember detailed instructions and carry them out; perform activities within a schedule; maintain regular attendance; be punctual within customary tolerances; sustained ordinary routine without supervision; work in coordination with or proximity to others without being distracted by them; complete a normal workday and work week with interruptions from psychologically-based symptoms; and to perform at a consistent pace without an unreasonable number and length of rest periods. Id. at 95-96. Ms. McAlpine opined that competitive work would be eliminated for such an individual. Id. at 96. Counsel also asked about employment opportunities for a similar hypothetical individual, but with moderately severe limits-an impairment that precludes the performance of work-related functions between eleven (11) and twenty (20) percent of an eight (8) hour day-on their ability to work. Id. at 95-96. Plaintiff's counsel described these moderately severe limitations as on the ability to work in coordination with or proximity to others without being distracted by them; complete a normal workday and work week with interruptions from psychologically-based symptoms; and to perform at a consistent pace without an unreasonable number and length of rest periods; accept instructions and respond appropriately to criticism from supervisors; and to get along with co-workers or peers without distracting them or exhibiting behavioral extremes. AR at 96. Ms. McAlpine opined that such limitations in combination would eliminate competitive work. Id. Ms. McAlpine testified that an individual can miss ten (10) to twelve (12) days per year, depending on the policies of the employer, and still maintain employment. Id. at 96-97. Ms. McAlpine confirmed that three (3) absences per month would be excessive and would result in termination. Id. at 97.
II. STANDARD OF REVIEW
The factual findings of the Commissioner shall be conclusive so long as they are based upon substantial evidence and there is no legal error. 42 U.S.C. §§ 405(g), 1383(c)(3); Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). This Court may “set aside the Commissioner's denial of disability insurance benefits when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole.” Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999) (citations omitted); see also Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014).
Substantial evidence is “‘more than a mere scintilla[, ] but not necessarily a preponderance.'” Tommasetti, 533 F.3d at 1038 (quoting Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003)); see also Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). Further, substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Where “the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ.” Tackett, 180 F.3d at 1098 (citing Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992)); see also Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007). Moreover, the court may not focus on an isolated piece of supporting evidence, rather it must consider the entirety of the record weighing both evidence that supports as well as that which detracts from the Secretary's conclusion. Tackett, 180 F.3d at 1098 (citations omitted).
III. ANALYSIS
A. The Five-Step Evaluation
The Commissioner follows a five-step sequential evaluation process to assess whether a claimant is disabled. 20 C.F.R. § 404.1520(a)(4). This process is defined as follows: Step One asks is the claimant “doing substantial gainful activity[?]” 20 C.F.R. § 404.1520(a)(4)(i). If yes, the claimant is not disabled. Step Two considers if the claimant has a “severe medically determinable physical or mental impairment[.]” 20 C.F.R. § 404.1520(a)(4)(ii). If not, the claimant is not disabled. Step Three determines whether the claimant's impairments or combination thereof meet or equal an impairment listed in 20 C.F.R. Pt. 404, Subpt. P, App.1. 20 C.F.R. § 404.1520(a)(4)(iii). If not, the claimant is not disabled. Step Four considers the claimant's residual functional capacity and past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). If claimant can still do past relevant work, then he or she is not disabled. Step Five assesses the claimant's residual functional capacity, age, education, and work experience. 20 C.F.R. § 404.1520(a)(4)(v). If it is determined that the claimant can make an adjustment to other work, then he or she is not disabled. Id.
In the instant case, the ALJ found that Plaintiff had not engaged in substantial gainful activity since her application date of September 12, 2017. AR at 43. At step two of the sequential evaluation, the ALJ found that “the claimant has the following severe impairments: schizoaffective disorder, generalized anxiety disorder, delusional disorder (20 CFR 416.920(c)).” Id. At step three, the ALJ further found that “[t]he claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926).” Id. at 44. Prior to step four and “[a]fter careful consideration of the entire record, ” the ALJ determined that “the claimant has the residual functional capacity to perform a full range of work at all exertional levels but with the following nonexertional limitations: the claimant is limited to simple, routine, repetitive tasks[;] [s]he can work in jobs that do not have high stress, such as production quotas or factory-type of stress, and deadlines[;] [s]he can have occasional interaction with the public[;] [and] [s]he is capable of working in jobs where she could work relatively independently and not part of a team.” Id. at 46. At step four, the ALJ found that “[t]he claimant is unable to perform any past relevant work (20 CFR 416.965).” Id. at 51. At step five, the ALJ found that after “[considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 416.969 and 416.969(a)).” AR at 52. Accordingly, the ALJ determined that Plaintiff was not disabled. Id. at 53.
B. Treating Physician Testimony
Plaintiff asserts that the ALJ “committed materially harmful error by rejecting the treating providers' assessments in the absence of specific and legitimate reasons based on substantial evidence in the record as a whole.” Pl's Opening Br. (Doc. 29) at 17. Plaintiff argues that the ALJ's reasons for discounting the opinions of NP Remien and Dr. Ross were insufficient, and therefore not legitimate. Id. at 22-27. Defendant urges that the new regulations for cases filed on or after March 27, 2017, require a new approach to judicial review. Response (Doc. 32) at 10-13. Defendant further urges that the ALJ's evaluation of NP Remien's and Dr. Ross's opinions was reasonable. Id. at 1417.
1. Legal standards
In 1991, the Commissioner promulgated regulations setting standards for reviewing medical evidence. 56 Fed. Reg. 36932-01, 1991 WL 142361 (Aug. 1, 1991). Since that time, the Ninth Circuit Court of Appeals has observed that “[a]s a general rule, more weight should be given to the opinion of a treating source than to the opinion of doctors who do not treat the claimant.” Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996) (citing Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987)); see also Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). This is known as the “treating physician rule.” See Edlund v. Massanari, 253 F.3d 1152, 1158 (9th Cir. 2001) as amended on reh'g (Aug. 9, 2001). “The opinion of a treating physician is given deference because ‘he is employed to cure and has a greater opportunity to know and observe the patient as an individual.'” Morgan v. Comm'r of the SSA, 169 F.3d 595, 600 (9th Cir. 1999) (quoting Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987) (citations omitted)). “The ALJ may not reject the opinion of a treating physician, even if it is contradicted by the opinions of other doctors, without providing ‘specific and legitimate reasons' supported by substantial evidence in the record.” Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001) (citing Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)); see also Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007); Embrey v. Bowen, 849 F.2d 418, 421 (9th Cir. 1988). “The ALJ can meet this burden by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings.” Embrey, 849 F.2d at 421 (quoting Cotton v. Bowen, 799 F.2d 1403, 1408 (9th Cir. 1986)). Additionally, “[a] physician's opinion of disability ‘premised to a large extent upon the claimant's own account of his symptoms and limitations' may be disregarded where those complaints have been ‘properly discounted.'” Morgan, 169 F.3d at 602 (quoting Fair v. Bowen, 885 F.2d 597, 605 (9th Cir. 1989) (citations omitted)). Similarly, “[a] physician's opinion can be discredited based on contradictions between the opinion and the physician's own notes.” Buck v. Berryhill, 869 F.3d 1040, 1050 (9th Cir. 2017) (citing Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005)). “[T]he more consistent an opinion is with the record as a whole, the more weight we will give to that opinion.” 20 C.F.R. § 404.1527(c)(4).
In 2017, the Commissioner revised its regulations which included “redefining several key terms related to evidence, revising [the] rules about acceptable medical sources (AMS), revising how we consider and articulate [the] consideration of medical opinions and prior administrative medical findings, revising [the] rules about medical consultants (MC) and psychological consultants (PC), revising [the] rules about treating sources, and reorganizing [the] evidence regulations for ease of use.” 82 Fed. Reg. 584401, 2017 WL 168819, at *5844 (Jan. 18, 2017). These rules became effective for cases filed on or after March 27, 2017. Id. Under the new regulations, the Commissioner “will not defer or give any specific evidentiary weight . . . to any medical opinion(s) . . . including those from [the claimant's] medical sources.” 20 C.F.R. §§ 404.1520c(a), 416.920c(a). The regulations direct an ALJ to consider medical opinions and prior administrative medical findings using the following factors: (1) supportability; (2) consistency; (3) relationship with the claimant (this includes the length of the treatment relationship, frequency of examinations, purpose of the treatment relationship, extent of the treatment relationship, and examining relationship); (4) specialization; and (5) other factors including but not limited to a medical source's familiarity with other evidence in the claim or an understanding of the disability program's policies and evidentiary requirements. 20 C.F.R. §§ 404.1520c(c), 416.920c(c). The most important factors are supportability and consistency. 20 C.F.R. §§ 404.1520c(a), 416.920c(a). Moreover, ALJ's must articulate how persuasive he or she finds the medical opinions and explain their reasoning. 20 CFR §§ 404.1520c(a)-(b), 416.920c(a)-(b). The Ninth Circuit has not yet considered whether the 2017 regulations will change the standards for reviewing medical opinions.
2. Analysis
The Court finds that it need not address the effect of the new regulations in this case. The ALJ's assessments gave specific and legitimate reasons for his findings and properly summarized the facts, opinions, and medical evidence in this case. AR at 4451.
a. Jami Remien, PMHNP-BC
The ALJ indicated that “Nurse Practitioner Remien's opinion is not fully supported by treatment records.” AR at 49. The ALJ observed that at her appointment the day prior to NP Remien's opinion, “the claimant was calm and cooperative[, ] [m]ood was euthymic[, ] [s]tream of thought was unremarkable.” Id. These attributes are generally consistent in Plaintiff's other encounters with NP Remien. See id. at 1097-99, 1117-19, 1121-25. The ALJ also observed that “psychological expert Dr. Kent Layton pointed out in his testimony that he did not think an individual with the severity of symptoms reported by Nurse Practitioner Remien could care for a child.” Id. at 49. The ALJ further noted that Plaintiff “testified that one of her children still lives with her.” Id.
Other records confirm that Plaintiff takes her daughter to school by herself and cares for her independently. AR at 308, 310, 1294. The ALJ's findings are consistent with the medical records in this case.
Historically, the Social Security Administration gave “more weight to opinions from [a claimant's] treating sources, since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the claimant's] medical impairment(s)[.]” 20 C.F.R. § 404.1527(c)(2) (prior to March 27, 2017). Further, “[w]hen the treating source has seen you a number of times and long enough to have obtained a longitudinal picture of your impairment, we will give the source's opinion more weight than we would give it if it were from a nontreating source.” 20 C.F.R. § 404.1527(c)(2)(i) (prior to March 27, 2017). Here, as the ALJ observed, Plaintiff's relationship with NP Remien was of a short duration at the time of the opinion. AR at 49. As such, she did not have a relationship with Plaintiff that could provide a longitudinal picture through her alleged onset date and to the present. Additionally, NP Remien's opinion was not consistent with the observations in her treatment notes. See Buck v. Berryhill, 869 F.3d 1040, 1050 (9th Cir. 2017) (citing Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005)). Ultimately, “[t]he ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (citations omitted). Here, the ALJ provided legitimate reasons to discount NP Remien's opinion. See Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001). Accordingly, he did not err.
b. Robin Ross, M.D.
The ALJ found that the “[s]everity of symptoms is not fully supported by contemporaneous treatment notes.” AR at 50. The ALJ accurately reviewed Dr. Ross's notes which indicated that Plaintiff never appeared psychotic during appointments with her, never appeared to be responding to internal stimuli, and never had a thought disorder that was displayed during her communication with Dr. Ross. AR at 50; see also AR at 1293. “A physician's opinion can be discredited based on contradictions between the opinion and the physician's own notes.” See Buck v. Berryhill, 869 F.3d 1040, 1050 (9th Cir. 2017) (citing Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005)). The ALJ also found that Dr. Ross's questioning of the nature of Plaintiff's diagnoses was consistent with findings of one of Plaintiff's previous providers. AR at 50. The ALJ met his burden and properly provided legitimate reasons to discount Dr. Ross's opinion. See Embrey v. Bowen, 849 F.2d 418, 421 (9th Cir. 1988) (“The ALJ can meet [the specific and legitimate reasons] burden by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings.”).
C. Plaintiff's Symptoms
Plaintiff asserts that “[t]he ALJ committed materially harmful error by discounting Chavez's symptom testimony in the absence of specific, clear, and convincing reasons supported by substantial evidence in this record as a whole, because the limitations in Chavez's symptom testimony would make it impossible to perform any sustained work.” Opening Br. (Doc. 29) at 27. Defendant counters that the ALJ relied on “legally valid factors supported by substantial evidence” in discounting Plaintiff's subjective complaints, including the lack of supporting objective medical evidence, the opinion evidence, and Plaintiff's activities of daily living. Response (Doc. 32) at 18. The Court agrees with Respondent.
1. Legal Standard
An ALJ must engage in a two-step analysis to evaluate a claimant's subjective symptom testimony. Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). First, “a claimant who alleges disability based on subjective symptoms ‘must produce objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain or other symptoms alleged[.]'” Smolen v. Chater, 80 F.3d 1273, 1281-82 (9th Cir. 1996) (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc) (internal quotations omitted)); see also Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014). Further, “the claimant need not show that her impairment could reasonably be expected to cause the severity of the symptom she has alleged; she need only show that it could reasonably have caused some degree of the symptom.” Smolen, 80 F.3d at 1282 (citations omitted); see also Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017). “Nor must a claimant produce ‘objective medical evidence of the pain or fatigue itself, or the severity thereof.'” Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014) (quoting Smolen, 80 F.3d at 1282). “[I]f the claimant meets this first test, and there is no evidence of malingering, ‘the ALJ can reject the claimant's testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so.'” Lingenfelter, 504 F.3d at 1036 (quoting Smolen, 80 F.3d at 1281); see also Burrell v. Colvin, 775 F.3d 1133, 1137 (9th Cir. 2014) (rejecting the contention that the “clear and convincing” requirement had been excised by prior Ninth Circuit case law). “This is not an easy requirement to meet: ‘The clear and convincing standard is the most demanding required in Social Security cases.'” Garrison, 759 F.3d at 1015 (quoting Moore v. Comm'r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)).
2. ALJ findings
The ALJ acknowledged the two-step process for assessing Plaintiff's symptom testimony. AR at 47. The ALJ found that Plaintiff had the severe impairments of schizoaffective disorder, generalized anxiety disorder, and delusional disorder. Id. at 43. The ALJ found “the claimant's statements about the intensity, persistence, and limiting effects of [her] symptoms . . . [were] inconsistent because the allegations are not fully supported by objective or opinion evidence.” Id. at 47. The ALJ specifically delineated the resolution of Plaintiff's contentious divorce and custody battle; the questioning of the origins and ongoing symptoms of psychosis by Plaintiff's psychiatrists; and medication noncompliance. Id. The ALJ went on to review the medical records, contemplate Plaintiff's noncompliance, and weigh the opinion testimony of certain medical professionals. See id. at 47-51.
The ALJ is allowed to consider whether a “claimant's statements concerning the intensity, persistence and limiting effects of [her] symptoms are not entirely consistent with the medical evidence and other evidence in the record.” Mitchell v. Saul, 2021 WL 3032667, at *8 (D. Nev. July 16, 2021) (alteration in original). “[T]he ALJ is not ‘required to believe every allegation of disabling pain, or else disability benefits would be available for the asking, a result plainly contrary to 42 U.S.C. § 423(d)(5)(A).'” Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012), superseded by regulation on other grounds (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). “A claimant's subjective symptom testimony may be undermined by ‘an unexplained, or inadequately explained, failure to . . . follow a prescribed course of treatment. While there are any number of good reasons for not doing so, a claimant's failure to assert one, or a finding by the ALJ that the profferred [sic] reason is not believable, can cast doubt on the sincerity of the claimant's [symptom] testimony.'” Trevizo v. Berryhill, 871 F.3d 664, 679 (9th Cir. 2017) (alteration in original) (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)).
Here, the ALJ provided a rational interpretation of the objective medical evidence and notes of treatment providers, which were inconsistent with Plaintiff's subjective complaints. See Mitchell, 2021 WL 3032667, at *8. Plaintiff “bears the burden of proving that an impairment is disabling.” Miller v. Heckler, 779 F.2d 845, 849 (9th Cir. 1985) (citations omitted). “[E]vidence of medical treatment successfully relieving symptoms can undermine a claim of disability.” Wellington v. Berryhill, 878 F.3d 867, 876 (9th Cir. 2017) (citing 20 C.F.R. §§ 404.1520a(c)(1), 416.920a(c)(1)). Here, as the ALJ noted, Plaintiff showed improvement upon obtaining behavioral health care. AR at 48; see also AR at 1194-95. Moreover, “[impairments that can be controlled effectively with medication are not disabling[.]” Warre v. Comm'r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (citations omitted). The ALJ noted Plaintiff's testimony that her current medications reduced her symptoms. AR at 47. The ALJ also properly considered Plaintiff's activities of daily living. AR at 51; see also Lingenfelter v. Astrue, 504 F.3d 1028, 1040 (9th Cir. 2007) (an ALJ is entitled to consider “whether the claimant engages in daily activities inconsistent with the alleged symptoms”). Plaintiff's testimony in the Adult Function Report indicates that among other activities, she was able to care for her young daughter independently, cook, clean, and drive. AR at 307-15. The Court finds that the ALJ's symptom “finding is supported by substantial evidence in the record, [and as such, ] we may not engage in second-guessing.” Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (citations omitted).
IV. CONCLUSION
Based on the foregoing, the Court finds the ALJ did not err, and his decision should be affirmed.
V. RECOMMENDATION
For the reasons delineated above, the Magistrate Judge recommends that the District Judge enter an order DENYING Plaintiff's Opening Brief (Doc. 29) and AFFIRMING the Commissioner's decision.
Pursuant to 28 U.S.C. § 636(b) and Rule 72(b)(2), Federal Rules of Civil Procedure, any party may serve and file written objections within fourteen (14) days after being served with a copy of this Report and Recommendation. Objections shall be filed on or before March 4, 2022. Any response to an objection shall be filed on or before March 14, 2022. No replies shall be filed unless leave is granted from the District Judge. If objections are filed, the parties should use the following case number: CV-20-0403-TUC-JCH.
Failure to file timely objections to any factual or legal determination of the Magistrate Judge may result in waiver of the right of review.