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Victor M. Olarte v. Michael J. Astrue

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


January 25, 2013

VICTOR M. OLARTE, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, DEFENDANT.

The opinion of the court was delivered by: Hon. Sheri Pym United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

On May 24, 2012, plaintiff Victor M. Olarte filed a complaint against defendant Michael J. Astrue, seeking a review of a denial of Disability Insurance Benefits ("DIB") and Social Security Income ("SSI"). Both plaintiff and defendant have consented to proceed for all purposes before the Magistrate Judge pursuant to 28 U.S.C. § 636(c). The parties' briefing is now complete, and the court deems the matter suitable for adjudication without oral argument.

Plaintiff presents two disputed issues for decision: (1) whether the Administrative Law Judge ("ALJ") failed to obtain an explanation or persuasive evidence to justify the acceptance of the testimony by the vocational expert ("VE"), which deviated from the Dictionary of Occupational Titles ("DOT"), thereby failing to demonstrate that plaintiff can perform other jobs in the national economy; and (2) whether the ALJ properly discredited plaintiff's subjective complaints and credibility. Plaintiff's Memorandum in Support of Complaint ("Pl.'s Mem.") at 10-14; Defendant's Memorandum in Support of Answer ("Def.'s Mem.") at 2-6.

Having carefully studied, inter alia, the briefs submitted by the parties and the Administrative Record ("AR"), the court finds that, as detailed herein, there is substantial evidence in the record, taken as whole, to support the ALJ's decision. First, the ALJ properly found the VE's testimony, which deviated from the DOT, as persuasive evidence demonstrating that plaintiff can perform other jobs in the regional and national economy. Second, the ALJ properly discounted plaintiff's credibility and subjective complaints. The court therefore affirms the Commissioner's decision denying benefits.

II. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff, who was 24 years old on the date of his August 23, 2010 administrative hearing, hasa high school education and a year of college education. AR at 30, 42, 186, 199, 212. His primary past relevant work was employment as a safety/security inspector, an apprentice mortician, and a caregiver to seniors. Id. at 29, 30, 46, 56-58, 183, 212-13. As a safety/security inspector, plaintiff worked at a manufacturing plant in which he was required to walk around, make observations, climb ladders, and carry weapons and notebooks. Id. at 54, 55. As part of his work as an apprentice mortician, plaintiff embalmed the deceased. Id. at 56. As part of his work as a caregiver, plaintiff awakened elderly patients, fed them, showered them, changed their diapers, carried them between their beds and wheelchairs, and transported them to and from meals. Id. at 57, 183. Each of these positions required plaintiff to use both hands. Id. at 59-63.

Plaintiff applied for DIB and SSI on December 1, 2008. Id. at 25, 162. In the application, plaintiff alleged he had been disabled since October 16, 2008, due to a severe musculoskeletal impairment of the left arm, which resulted from an injury sustained in a motorcycle accident in February 2006. Id. at 27, 46, 182, 185, 203. Plaintiff's applications were denied initially and upon reconsideration, after which he filed a request for a hearing. Id. at 25, 71-75, 80-85, 86-87.

On August 23, 2010, plaintiff, represented by counsel, appeared and testified at a hearing before the ALJ. Id. at 42-53, 54-55, 56-57. The ALJ also heard testimony from Joseph Mooney, a VE. Id. at 53-54, 55-56, 57-64. On October 8, 2010, the ALJ denied plaintiff's request for benefits. Id. at 25-31.

Applying the well-known five-step sequential evaluation process, the ALJ found, at step one, that plaintiff was not engaged in substantial gainful activity since October 16, 2008, his alleged disability onset date. Id. at 27.

At step two, the ALJ found that plaintiff suffered from a severe impairment of the musculoskeletal system. Id.

At step three, the ALJ determined that the evidence demonstrates that plaintiff does not have an impairment or a combination of impairments that meets or medically equals any listing set forth in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id.

The ALJ then assessed plaintiff's residual functional capacity ("RFC") and *fn1 determined that he could perform "light" work as defined in 20 C.F.R. 404.1567(b) and 416.967(b), though limited to "only occasionally climb[ing] stairs but [not] climb[ing] ropes, ladders or scaffolds," since plaintiff "has no use of his left upper extremity . . . ." Id. at 27-28. In addition, the ALJ found that plaintiff "can occasionally balance, stoop, kneel, crouch and crawl." Id. at 28.

The ALJ found, at step four, that plaintiff was "unable to perform any past relevant work" as a safety/security inspector, apprentice mortician, and caregiver to seniors. Id. at 29.

At step five, based upon plaintiff's vocational factors and RFC, the ALJ found that "[c]onsidering [plaintiff's] age, education, work experience, and residual functional capacity, [plaintiff] has acquired work skills from past relevant work that are transferable to other occupations with jobs existing in significant numbers in the national economy." Id. at 30. The ALJ therefore concluded that plaintiff was not suffering from a disability, as defined by the Social Security Act, from October 16, 2008 through October 8, 2010, the date of the decision. Id. at 31.

Plaintiff filed a timely request for review of the ALJ's decision, which was denied by the Appeals Council on February 24, 2012. Id. at 4-9. The ALJ's decision stands as the final decision of the Commissioner.

III. STANDARD OF REVIEW

This court is empowered to review decisions by the Commissioner to deny benefits. 42 U.S.C. § 405(g) (2010). The findings and decision of the Social Security Administration must be upheld if they are free of legal error and supported by substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001). But if the court determines that the ALJ's findings are based on legal error or are not supported by substantial evidence in the record, the court may reject the findings and set aside the decision to deny benefits. Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 1144, 1147 (9th Cir. 2001).

"Substantial evidence is more than a mere scintilla, but less than a preponderance." Aukland, 257 F.3d at 1035. Substantial evidence is such "relevant evidence which a reasonable person might accept as adequate to support a conclusion." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 F.3d at 459. To determine whether substantial evidence supports the ALJ's finding, the reviewing court must review the administrative record as a whole, "weighing both the evidence that supports and the evidence that detracts from the ALJ's conclusion." Mayes, 276 F.3d at 459. The ALJ's decision "'cannot be affirmed simply by isolating a specific quantum of supporting evidence.'" Aukland, 257 F.3d at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998)). If the evidence can reasonably support either affirming or reversing the ALJ's decision, the reviewing court "'may not substitute its judgment for that of the ALJ.'" Id. (quoting Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)).

IV. DISCUSSION

A. The ALJ Properly Found the VE's Testimony, Which Deviated From the DOT, as Persuasive Evidence Demonstrating That Plaintiff Can Perform Other Jobs in the Regional and National Economy Plaintiff contends the ALJ failed to "meet his burden of proof at step five to demonstrate the existence of a significant number of jobs that [plaintiff] could perform within his given limitations." Pl.'s Mem. at 12. Specifically, plaintiff asserts the ALJ first failed to recognize that a conflicts exists between the VE's description of the jobs he identified as performable by plaintiff and the DOT's description of those jobs. Id. at 10-12. Plaintiff argues the ALJ then failed to "solicit testimony to explain the VE's divergence from the DOT," as the ALJ was required to do. Id. at 11. The court disagrees.

At step five, the burden shifts to the Commissioner to show that the claimant retains the ability to perform other gainful activity. Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). To support a step-five finding that a claimant is not disabled, the Commissioner must provide evidence demonstrating that other work exists in significant numbers in the national economy that the claimant can perform, given his or her age, education, work experience, and RFC. 20 C.F.R. §§ 404.1520(g), 416.920(g).

ALJs routinely rely on the DOT "in evaluating whether the claimant is able to perform other work in the national economy." Terry v. Sullivan, 903 F.2d 1273, 1276 (9th Cir. 1990) (citations omitted); see also 20 C.F.R. §§ 404.1566(d)(1) (DOT is source of reliable job information), 416.966(d)(1) (same). The DOT is the rebuttable presumptive authority on job classifications. Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995). An ALJ may not rely on a VE's testimony regarding the requirements of a particular job without first inquiring whether the testimony conflicts with the DOT, and if so, the reasons therefor. Massachi, 486 F.3d at 1152-53 (citing Social Security Ruling ("SSR") 00-4p). But failure to so inquire *fn2 can be deemed harmless error where there is no apparent conflict or the VE provides sufficient support to justify deviation from the DOT. Id. at 1154 n.19.

In order for an ALJ to accept a VE's testimony that contradicts the DOT, the record must contain "persuasive evidence to support the deviation." Id. at 1153 (citing Johnson, 60 F.3d at 1435). Evidence sufficient to permit such a deviation may be either specific findings of fact regarding the claimant's residual functionality, inferences drawn from the context of the VE's testimony, or a reasonable explanation provided by the VE. Light v. Soc. Sec. Admin., 119 F.3d 789, 793 (9th Cir. 1997) (citations omitted); Massachi, 486 F.3d at 1153. SSR 00-4p, which the Ninth Circuit has used as a persuasive authority, gives examples of several reasonable explanations for deviating from the DOT. SSR 00-4p; Massachi, 486 F.3d at 1153 n.19. The examples include statements by the VE that: "the [DOT] does not provide information about all occupations; information about a particular job not listed in the [DOT] may be available elsewhere; and the general descriptions in the [DOT] may not apply to specific situations." SSR 00-4p.

Here, the VE testified that a hypothetical person with plaintiff's RFC could work in jobs such as observation and report security monitor, security clerk, outside deliverer, and storage rental clerk. AR at 30, 59-60. The VE testified that the DOT classifies these jobs as "generally" requiring the use of both arms. Id. at 30, 58-59, 63. This testimony by the VE, that plaintiff -- whom the ALJ found "has no use of his left upper extremity" and "is not able to perform fine and gross manipulative movements with the left hand" (see id. at 27, 29) -- could perform the stated jobs, is in apparent conflict with the DOT's classification of the jobs as bilateral.

Without the ALJ's prompting, however, the VE explained that despite the "bilateral capacity" requirement, the positions of security monitor and security clerk, which are light, semiskilled positions, "would be performable from a practical point of view with the one armed ability . . . ." Id. at 59. The VE explained that with these two positions, "there may be notes [that] have to be taken for the purpose of writing incident reports, but otherwise [the job requirements would be] walking and standing to check various locations, and to make sure there's no problems or monitor an area within a warehouse or a manufacturing facility[,] . . . [and to] observe and report . . . ." Id. Moreover, the VE stated that the positions would not require "carrying a weapon or making arrests." Id. He then reported that more than 2,000 of these jobs are available in the regional economy. Id. at 60. As for the positions of storage rental clerk and outside deliverer, which are light, unskilled jobs, the VE testified that an individual with plaintiff's RFC would be able to perform them because, for the storage rental clerk position, "[i]t involves a combination of security, observation, and report[ing] as well as someone [being] present in the office to take telephone calls, [and] provid[ing] entrance to rental holders," and for the outside deliverer position, it is "commonly known to be . . . performable with one arm . . . ." Id. at 60. The VE also reported that more than 2,000 of the two latter jobs are available in the regional economy. Id.

The court finds the VE provided a reasonable explanation for deviating from the DOT, and the ALJ properly determined the VE's explanation to be sufficiently persuasive evidence that justifies the deviation. See id. at 30-31; Massachi, 486 F.3d at 1153; SSR 00-4p. The VE offered a reasonable explanation for the discrepancy between the DOT and his testimony by indicating with sufficient clarity that the DOT's general requirement of bilateral capacity may not apply in specific job situations such as those he identified as performable by persons with plaintiff's RFC. See AR at 59-60; SSR 00-4p. The ALJ explicitly referenced this explanation for the discrepancy, noting the VE testified to the difference between the DOT's listing of "all jobs as bimanual" and the jobs as they exist in significant numbers "in the real world." AR at 30. Moreover, the ALJ found further support for the VE's testimony in state agency reports, which found other similarly performable jobs. Id. at 30, 199-201, 212-13.

As plaintiff correctly asserts and defendant concedes in their briefing, the ALJ did not specifically inquire as to whether the VE's testimony conflicts with the DOT and what the VE's reasons were. Pl's Mem. at 11; Def.'s Mem. at 3. This error was, however, harmless because the VE provided, without being asked, reasons sufficient to justify deviation from the DOT. AR at 58-60; see Massachi, 486 F.3d at 1154 n.19.

It was thus proper for the ALJ to rely on the VE's testimony to conclude that positions such as those identified by the VE -- with the specific examples the ALJ cited being storage rental clerk and deliveryman -- were available in significant numbers to individuals with plaintiff's characteristics. See AR at 30. Accordingly, the ALJ met his burden of proof at step five to demonstrate that plaintiff can perform other jobs in the national economy.

B. The ALJ Properly Discredited Plaintiff's Credibility and Subjective Complaints Plaintiff argues that the ALJ improperly discredited plaintiff's testimony.

Pl.'s Mem. at 12-14. Specifically, plaintiff maintains that four of the ALJ's stated reasons for finding plaintiff's claims of functional limitations not fully credible are "legally and factually insufficient" because: (1) although the ALJ pointed to the fact that plaintiff worked for a year after the accident, "[t]he ALJ cited no reasons for disbelieving [plaintiff's] testimony" that his condition deteriorated over that period such that he thereafter "could no longer work with the 'phantom pain' in his left arm, his right shoulder pain, and the concentration difficulties that his pain causes";

(2) "the ALJ provided no rationale for his apparent inference that [plaintiff] must not be in as much pain as he alleges simply because of his reluctance to take pain medications" that cause side effects; (3) the ALJ's assertion that plaintiff would not testify to his activities of daily living is "simply untrue," as plaintiff did testify about reading, using the internet, and watching TV; and (4) the ALJ does not explain why plaintiff's "lack of resources and non-reliance upon public assistance" hurts plaintiff's credibility. Pl.'s Mem. at 13-14; see AR at 28-29. Thus, plaintiff argues, the ALJ's "adverse credibility ruling should not be upheld." Pl.'s Mem. at 14.

A plaintiff claiming DIB or SSI carries the burden of producing objective medical evidence of his or her impairments and showing that the impairments could reasonably be expected to produce some degree of the alleged symptoms. Benton ex rel. Benton v. Barnhart, 331 F.3d 1030, 1040 (9th Cir. 2003). But once the claimant meets that burden, medical findings are not required to support the alleged severity of pain. Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) (en banc); see also Light, 119 F.3d at 792 ("claimant need not present clinical or diagnostic evidence to support the severity of his pain" (citation omitted)).

Instead, once the claimant has met the burden of producing objective medical evidence, an ALJ can reject the claimant's subjective complaint "only upon (1) finding evidence of malingering, or (2) expressing clear and convincing reasons for doing so." Benton, 331 F.3d at 1040. The ALJ may consider the following factors in weighing the claimant's credibility: (1) his or her reputation for truthfulness; (2) inconsistencies either in the claimant's testimony or between the claimant's testimony and his or her conduct; (3) his or her daily activities; (4) his or her work record; and (5) testimony from physicians and third parties concerning the nature, severity, and effect of the symptoms of which the claimant complains. Thomas v. Barnhart, 278 F.3d at 947, 958-59 (9th Cir. 2002). Although a lack of medical evidence supporting a plaintiff's alleged symptoms cannot be the sole reason for rejecting his or her testimony, it can be one of several factors used in evaluating the credibility of his or her subjective complaints. See Rollins v. Massanari, 261 F.3d 853, 856-57 (9th Cir. 2001).

Here, the ALJ did not find evidence of malingering. See generally AR at 25-31. Thus, in rejecting plaintiff's credibility the ALJ was required to articulate clear and convincing reasons. See Benton, 331 F.3d at 1040. The court is persuaded that the ALJ provided clear and convincing reasons for his conclusion that "[plaintiff's] statements concerning the intensity, persistence and limiting effects of [his] symptoms are not credible to the extent that they are inconsistent with" the ALJ's RFC finding. AR at 28.

First, the ALJ properly found problems in the disability determination made by Chao-Hsiung Hsu, M.D., as a factor discrediting plaintiff's credibility. Id. at 28, 248-55, 262. Dr. Hsu has been plaintiff's treating physician since March 2009. Id. at 248. In the "Multiple Impairment Questionnaire" he completed on April 12, 2010, Dr. Hsu indicated that, in an eight-hour workday, plaintiff could sit or stand/walk no more than two hours each, and that the use of his left arm and hand would be markedly limited in competitive eight-hour workday settings, though he would face no limitation in using his right hands and fingers for fine manipulation and minimal limitation in using his right arm for reaching. Id. at 250-52. Despite the relatively minimal to no limitation he found for plaintiff's right arm and hand, Dr. Hsu determined, without explanation, that plantiff could not lift or carry any weight. Id. at 251. Additionally, Dr. Hsu indicated that plaintiff was in "constant" pain, but he prescribed only Paxil (an anti-depression drug) and herbs (without specifying which herbs and for what purpose) and did not report or recommend any other treatments for pain. Id. at 252. In a letter dated July 10, 2010, Dr. Hsu opined that plaintiff was "totally disabled due to [left] cervical injury" and was "not capable of working due to his debilitating condition." After reviewing these two documents completed by Dr. Hsu, the ALJ determined that they "are of no persuasive value," as "they are egregiously indulgent, accommodative, exaggerated and unsupported by anything of record," including Dr. Hsu's own records. Id. at 28. The court agrees with the ALJ that Dr. Hsu's finding of total disability is not supported by the physician's own record. Thus, as plaintiff relies significantly on Dr. Hsu's opinion to establish his disability claim, the court finds plaintiff's credibility is undermined in part by the inconsistencies in Dr. Hsu's disability determination, as properly identified by the ALJ in his decision.

Second, the ALJ properly concluded that plaintiff's credibility is further undermined by plaintiff's refusal to take pain medications and sole reliance on "natural medicine" for pain management. Id. at 28, 47-48. Plaintiff testified at the hearing that he was "constantly in pain," but he indicated that he was "not taking any medications," because he did not "believe in medicine" and he did not want to "sleep all day" and "die numb." Id. at 46, 47. Plaintiff indicated that he only took "natural medicine" such as "Lacosomin for [his] joints" (plaintiff seems to have intended to say "glucosamine"), "shark oil for . . . joints," "Nutricom . . . for [his] nerves," and "Noni" (which plaintiff described as "like a bunch of vitamins"). Id. at 47, 48. He stated that Nutricom, a dietary supplement, "helps [him] calm down" and the other "natural medicines" (all of which are also dietary supplements) help "keep [his] joints healthy." Id. at 48. Despite his apparent philosophical opposition to prescription medicine, however, he testified (as the ALJ noted) that he did take Paxil, an anti-depression prescription medication. Id. at 29, 49, 252. And despite his complaint of constant pain, plaintiff never identified any type of pain management regimen he was under or any evidence of past use of pain medicine that caused negative side effects such as drowsiness and numbness. Id. at 46.

Plaintiff's decision to avoid to any type of medical treatment for pain may be sufficient to discount his credibility unless he offers a good reason for doing so. See Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007) (stating that the failure to seek treatment may be a basis for an adverse credibility finding unless there was a good reason for not doing so); Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007) ("[E]vidence of 'conservative treatment' is sufficient to discount a claimant's testimony regarding severity of an impairment."); Burch v. Barnhart, 400 F.3d 676, 680-81 (9th Cir. 2005) (the ALJ may properly rely on failure to seek treatment to discredit plaintiff's subjective complaints). Other than his brief, vague, and unsubstantiated statement that he does not want to sleep all day or die numb from drugs, plaintiff has not offered any reason for avoiding pain medication. See AR at 47. Standing by itself, this vague statement might arguably be a sufficient reason; however, it is insufficient in light of plaintiff's apparently contradictory decision to take Paxil. Id. at 47, 49, 252; see Tonapetyan, 242 F.3d at 1148 (an ALJ may engage in ordinary techniques of credibility evaluation, such as considering inconsistencies in a claimant's testimony); see also Thomas, 278 F.3d at 958-59 (inconsistency between the claimant's testimony and the claimant's conduct supported the ALJ's rejection of the claimant's credibility); Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999) (inconsistencies between the claimant's testimony and actions cited as a clear and convincing reason for rejecting the claimant's testimony). Contrary to plaintiff's argument in his briefing that "the ALJ provided no rationale" for discounting plaintiff's pain based on "his reluctance to take pain medications," the ALJ's citation of plaintiff's decision to avoid pain medicine but take Paxil is a persuasive factor that supports the ALJ's discrediting of plaintiff's credibility. Id. at 28-29; Pl.'s Mem. at 13.

Third, the ALJ properly discounted plaintiff's credibility based on plaintiff's evasiveness in answering questions about his activities of daily living and financial status. AR at 28. In his decision, the ALJ indicated that at the hearing, plaintiff "simply would not relate any of his activities of daily living" and "[h]e denied income, even Food Stamps." Id. at 29. Plaintiff is correct to note in his briefing that he did testify elsewhere in his testimony about "try[ing] to study things," "go[ing] on the internet," "reading, [and] watching TV" on a daily basis. Id. at 47; Pl.'s Mem. at 13. But when the ALJ tried to elicit details about plaintiff's daily activities, plaintiff did not reveal anything, testifying that "there is nothing much" he does, that he does not go out, and that he does not want to work anymore. AR at 52. Although the ALJ's statement in his decision that plaintiff "simply would not relate any of his activities of daily living" is not completely accurate, the ALJ properly found that plaintiff's evasiveness in describing his daily activities undermined his credibility. Id. at 29; see Anderson v. Sullivan, 914 F.2d 1121, 1123-24 (9th Cir. 1990) ("the ALJ had substantial evidence on which to find a lack of credibility based on [plaintiff's] evasiveness"). Similarly, the ALJ found plaintiff to be evasive in discussing the source of his financial support. AR at 29, 52-53. Despite the ALJ's repeated questioning, plaintiff offered no substantive response but insisted only that he had no money, was staying with a friend, was not receiving food stamps, and did not want to work anymore. Id. at 52-53. Contrary to what plaintiff asserts in his briefing, it was this evasiveness -- not his "lack of resources and non-reliance upon public assistance" per se -- that the ALJ properly found as an additional factor that hurt plaintiff's credibility. Pl.'s Mem. at 14; see Anderson, 914 F.2d at 1123-24.

As for plaintiff's assertion that "the ALJ cited no reasons for disbelieving [plaintiff's] testimony" of being no longer able to work as a security guard in November 2008 due to "the 'phantom pain' in his left arm, his right shoulder pain, and the concentration difficulties that his pain causes," the court agrees with plaintiff. In his decision, the ALJ appears to find plaintiff's engagement in substantial gainful activity in 2007-2008 (well after the 2006 motorcycle accident that caused injury to plaintiff's left arm) as a factor that discredits plaintiff's claim of the onset of disability in October 2008. AR at 28, 45-46, 182. But substantial gainful activity after the injury-producing incident cannot by itself be used to discredit plaintiff's credibility. As plaintiff testified, he may well have experienced deterioration of his physical condition between 2006 and 2008, until plaintiff was no longer able to work in late 2008. Id. at 46. Therefore, it was improper for the ALJ to discount plaintiff's credibility based on plaintiff's engagement in substantial gainful activity in 2007-2008.

Nevertheless, the ALJ's improper reliance on plaintiff's substantial gainful activity to discount his credibility was harmless. See Batson v. Comm'r, 359 F.3d 1190, 1195-97 (9th Cir. 2004) (the ALJ erred in relying on one of several reasons in support of an adverse credibility determination, but such error was harmless because the ALJ's remaining reasons and ultimate credibility determination were adequately supported by substantial evidence in the record). The ALJ's error does not "negate the validity" of his ultimate credibility finding, and the ALJ's decision remains "legally valid, despite such error." See Carmickle v. Comm'r, 533 F.3d 1155, 1162 (9th Cir. 2008) (internal quotation marks and citation omitted).

Accordingly, the court finds that the ALJ provided clear and convincing reasons, supported by substantial evidence, for discounting plaintiff's credibility and subjective complaints.

V. CONCLUSION

IT IS THEREFORE ORDERED that Judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits and dismissing this action with prejudice.


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