Alberto Perez v. Jo Anne B Barnhart

Case 2:05-cv-04083-MLG Document 18 Filed 03/15/06 Page 1 of 11 Page ID #:43 “O” 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT O...

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Case 2:05-cv-04083-MLG Document 18 Filed 03/15/06 Page 1 of 11 Page ID #:43

“O”

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UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION

10 11 12

ALBERTO PEREZ,

13

Plaintiff,

14 15 16

v. JO ANNE B. BARNHART, Commissioner of the Social Security Administration,

17 Defendant. 18 19

Plaintiff

Alberto

) ) ) ) ) ) ) ) ) ) ) ) ) Perez

Case No. CV 05-4083-MLG MEMORANDUM OPINION AND ORDER

(“Plaintiff”)

seeks

review

of

the

20

Commissioner’s final decision denying his applications for Childhood

21

Disability Benefits (“CDB”) and Supplemental Security Income Benefits

22

(“SSI”) pursuant to Titles II and XVI of the Social Security Act.

23

the reasons stated below, the Commissioner’s decision shall be affirmed

24

and this action shall be dismissed with prejudice.

For

25 26 27 28

I.

Factual and Procedural Background Plaintiff was born on August 11, 1984.

(“AR”) at 52, 150).

(Administrative Record

He has more than a high school education, but no

Case 2:05-cv-04083-MLG Document 18 Filed 03/15/06 Page 2 of 11 Page ID #:44

1

past relevant work experience.

(AR at 25).

2

Plaintiff filed applications for CDB and SSI on March 14, 2003,

3

alleging that he had been disabled since August 1, 1986, due to autism.1

4

(AR at 18, 54, 52-53, 150-52).

5

denied these applications at the initial and reconsideration levels.

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(AR at 18, 33-36, 39-43).

The Social Security Administration

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At Plaintiff’s request, an administrative hearing was held before

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Administrative Law Judge Stanley R. Hogg (the “ALJ”) on August 24, 2004.

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(AR at 213-33). Plaintiff, who was represented by counsel, testified at

10

the hearing.

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decision finding that Plaintiff was not under a disability, as defined

12

in the Social Security Act.

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Plaintiff had not engaged in substantial gainful activity since his

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alleged

15

impairments

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disorder, but that Plaintiff’s impairments did not meet or equal one of

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the of the listed impairments in Appendix 1, Subpart P, Regulations No.

18

4 (“the Listings”).

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residual functional capacity to perform unskilled work with minimal

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contact with the public, occasional interaction with co-workers and

21

supervisors, and jobs not requiring frequent changes in routine. (AR at

22

23).

23

Plaintiff’s age, education, and residual functional capacity, the ALJ

24

determined that Plaintiff has the capacity to perform work that exists

(AR at 216-33).

onset of

Relying

date

and

(AR at 18-26).

that

depressive

on

On October 29, 2004, the ALJ issued a

Plaintiff

disorder

(AR at 21).

Vocational

NOS

The ALJ determined that

suffers and

from

the

schizoid

“severe”

personality

The ALJ assessed Plaintiff with a

Guideline

Rule

204.00

and

based

on

25 26 1

27 28

In 2000, Plaintiff was found disabled and awarded Childhood Supplemental Security Income due to autism. (AR at 207-12). These benefits were subsequently terminated based on total family income. (AR at 137). 2

Case 2:05-cv-04083-MLG Document 18 Filed 03/15/06 Page 3 of 11 Page ID #:45

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in significant numbers in the national economy. (AR at 24); 20 C.F.R.

2

Appendix 2, § 204.00.

3

review.

On April 12, 2005, the Appeals Council denied

(AR at 6-8).

4

Plaintiff then commenced this action for judicial review.

5

parties filed a Joint Stipulation of disputed issues on February 3,

6

2006.

7

The

Plaintiff raises the following arguments: 1.

The ALJ failed to properly consider Plaintiff’s

8

mental impairment.

9

2.

The

10

ALJ

failed

to

properly

assess

Plaintiff’s

subjective symptom testimony.

11

3.

The ALJ failed to properly consider all of the

12

evidence in the record.

13

Plaintiff seeks remand for a new administrative hearing and further

14

development of the record. (Joint Stipulation at 12). The Commissioner

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requests that the ALJ’s Decision be affirmed.

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12). The Joint Stipulation has been taken under submission without oral

17

argument.

(Joint Stipulation at

18 19 20

II.

Standard of Review Under

42

U.S.C.

§

405(g),

a

district

court

may

review

the

21

Commissioner’s decision to deny benefits.

The Commissioner’s or ALJ’s

22

findings and decision should be upheld if they are free from legal error

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and are supported by substantial evidence based on the record as a

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whole.

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(1971); Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001).

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Substantial evidence means such evidence as a reasonable person might

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accept as adequate to support a conclusion.

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401; Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1996).

42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401

3

Richardson, 402 U.S. at It is more

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than a scintilla, but less than a preponderance.

Reddick, 157 F.3d at

2

720.

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reviewing court “must review the administrative record as a whole,

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weighing both the evidence that supports and the evidence that detracts

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from

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reasonably support either affirming or reversing,” the reviewing court

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“may not substitute its judgment” for that of the Commissioner.

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720-721.

To determine whether substantial evidence supports a finding, the

the

Commissioner’s

conclusion.”

Id.

“If

the

evidence

can

Id. at

9 10

III.

Discussion

11

A.

12

Plaintiff contends that the ALJ improperly relied on the opinion of

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an examining physician, Norma R. Aguilar, M.D., and failed to give

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proper consideration to other relevant medical evidence in assessing his

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mental impairment.

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Plaintiff’s Mental Condition

Plaintiff’s argument is not persuasive.

An ALJ may disregard a treating physician’s opinion whether or not

17

that opinion is contradicted.

18

(9th Cir. 1995)(ALJ may credit opinion of nontreating source based on

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independent clinical findings over treating physician's opinion)(citing

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Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)).

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treating physician’s opinion is contradicted, and the opinion of a

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non-treating source is based upon independent clinical findings that

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differ

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non-treating source may itself be substantial evidence on which the ALJ

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may rely.

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non-treating

27

physician, but is not based on independent clinical findings, or rests

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on clinical findings also considered by the treating physician, the

from

those

of

the

Andrews v. Shalala, 53 F.3d 1035, 1041

treating

physician,

Andrews, 53 F.3d at 1041. source’s

opinion

opinion

of

the

Where, on the other hand, a

contradicts

4

the

If the

that

of

the

treating

Case 2:05-cv-04083-MLG Document 18 Filed 03/15/06 Page 5 of 11 Page ID #:47

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opinion of the treating physician may be rejected only if the ALJ gives

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specific, legitimate reasons for doing so that are based on substantial

3

evidence. Id.; Morgan v. Commissioner of Social Security, 169 F.3d 595,

4

600 (9th Cir. 1999).

5

In July 2000, examining physician Maria Pamaran, M.D. completed a

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pediatric evaluation of Plaintiff.

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diagnosed Plaintiff with a history of autism per psychological report,

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history of aphasia2 (improved) and ichthyosis.3

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Pamaran noted a mild to moderate deficit in cognitive abilities, no

10

deficit in communication, no deficit in motor skills, and a mild to

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moderate deficit in social/behavioral abilities.

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(AR at 197-200).

Dr. Pamaran

(AR at 199).

Dr.

(AR at 199-200).

In May 2003, examining physician Norma R. Aguilar, M.D., completed

13

a psychiatric evaluation of Plaintiff.

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diagnosed Plaintiff as suffering from depressive disorder, NOS (Axis I)

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and schizoid personality disorder (Axis II).

(AR at 125).

However,

16

Plaintiff’s

unremarkable

and

17

intellectual functions appeared to be intact. (AR at 124). Dr. Aguilar

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concluded that Plaintiff had the ability to follow and understand simple

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and complex instructions, comply with job rules such as safety and

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attendance, and respond to changes in the normal workplace setting. (AR

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at 125).

22

moderate difficulty interacting with supervisors, co-workers and the

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public, and mild difficulty maintaining persistence and pace in a normal

24

workplace setting.

mental

status

examination

(AR at 123-26).

was

Dr. Aguilar

his

Dr. Aguilar also found that Plaintiff would have mild to

(AR at 125).

The ALJ properly credited Dr.

25 26

2

Aphasia is defect or loss of the power of expression by speech, writing, or signs, or of comprehending spoken or written language.

27 3

28

Ichthyosis is a congenital skin condition that causes scaling of the skin. 5

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Aguilar’s findings over the opinion of Dr. Pamaran because Dr. Aguilar

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based her report on independent clinical findings.4 See Andrews, 53 F.3d

3

at 1041. Plaintiff criticizes the ALJ’s reliance on Dr. Aguilar’s opinion

4 5

for a number of reasons.

For example, Plaintiff asserts that Dr.

6

Aguilar

any

7

Stipulation at 4).

8

interviewed Plaintiff, reviewed his history, and administered a mental

9

status examination.

did

not

rely

on

objective

clinical

tests.

(Joint

Dr. Aguilar’s report makes clear, however, that she

(AR at 123-26).

Plaintiff also complains that Dr.

10

Aguilar was not a “board certified” psychiatrist. (Joint Stipulation at

11

4; AR at 125).

12

legitimate reason for rejecting her opinion.

13

F.3d

14

physician’s opinion as to the claimant’s mental functioning could be

15

rejected

16

specialist); Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987).

17

Moreover, Dr. Aguilar, unlike Dr. Pamaran who was a pediatrician, was a

18

specialist in psychiatry and “board eligible.”

821,

833

(9th

because

Finally,

19

Dr. Aguilar’s lack of board certification is not a

the

Cir.

1995)(rejecting

treating

Plaintiff

physician

asserts

that

Dr.

inconsistent with other opinions of record.

21

In

Plaintiff

asserts

that

Lester v. Chater, 81

argument

was

20

particular,

See

not

a

that

treating

mental

health

(AR at 125, 200). Aguilar’s

opinion

was

(Joint Stipulation at 4).

Dr.

Aguilar’s

opinion

was

22 23 24 25 26 27 28

4

Although Dr. Aguilar found that Plaintiff would have “mild” difficulty maintaining persistence and pace in a normal workplace setting, the ALJ concluded that Plaintiff had no limitations in maintaining concentration, persistence, or pace. (AR at 22). Because a “mild” restriction in concentration, persistence and pace is consistent with a non-severe mental impairment, any inaccuracy in the ALJ’s consideration of Dr. Aguilar’s opinion is inconsequential. 20 C.F.R. 404.1520a(d)(1), 416.920a(d)(1); see Curry v. Sullivan, 925 F.2d 1127, 1131 (9th Cir. 1991)(harmless error rule applies to review of administrative decisions regarding disability). 6

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inconsistent with an October 2000 Childhood Disability Evaluation, which

2

indicated that Plaintiff satisfied the criteria of Listing § 112.10 for

3

autistic disorders and other pervasive developmental disorders.

4

Stipulation at 4; AR at 200-07).

5

however,

6

benefits because it was based on his 2000 award of Children’s SSI

7

benefits, which had been terminated.

8

alleges that he has been disabled since 1986, the 2000 disability

9

determination precedes the relevant period at issue in this case.

has

minimal

relevance

(Joint

The prior finding of disability, to

Plaintiff’s

(AR at 137).

current

claims

for

Although Plaintiff

A

10

claimant found to be entitled to CDB benefits may receive retroactive

11

benefits for, at most, up to twelve months prior to the date of filing

12

of a CDB application.

13

for SSI may not receive payments for a period predating the month in

14

which they apply for benefits.

15

did not apply for CDB or SSI until March 2003.

16

Thus, the October 2000 Childhood Disability Evaluation did not address

17

the

18

benefits.

relevant

time

20 C.F.R. § 404.621(a)(1).

period

for

Claimants applying

20 C.F.R. § 416.335.

Plaintiff’s

Here, Plaintiff

(AR at 52-53, 150-52).

current

application

for

19

Plaintiff also asserts that Dr. Aguilar’s opinion was contradicted

20

by an April 1998 opinion from a social worker at Kaiser Permanente,

21

Renee Nicholas, M.S.W.

22

from a marked social impairment and that Plaintiff has significant

23

difficulty initiating conversation with others, and does not like to

24

talk or engage with others.

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the ALJ’s reliance on Dr. Aguilar’s opinion was supported by substantial

26

evidence because it was based on independent clinical findings.

27

Andrews, 53 F.3d at 1041.

28

\\

Ms. Nicholas reported that Plaintiff suffers

(AR at 194-95).

7

As noted above, however,

See

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1

Further, although the ALJ did not discuss Ms. Nicholas’ findings in

2

the decision, her opinion pertained to the period that was not relevant

3

to Plaintiff’s current claims for benefits.

4

to address Ms. Nicholas’ opinion was inconsequential.

5

Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984)(an ALJ is not required

6

to

7

significant, probative evidence is rejected). And, because Ms. Nicholas

8

was not an “acceptable medical source,” the ALJ was not required to

9

provide specific, legitimate reasons for rejecting her opinion.

discuss

all

evidence

presented,

but

Thus, any error in failing

must

See Vincent v.

only

explain

why

See

10

Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001)(requiring the ALJ to

11

state reasons germane to lay witness testimony before rejecting such

12

testimony); see also Jamerson v. Chater, 112 F.3d 1064, 1067 (9th Cir.

13

1997)(refusing

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doctoral degree to be an “acceptable medical source”); 20 C.F.R. §§

15

404.1513(a), (d)(a social worker without a doctorate does not meet the

16

regulations’ requirements for an “acceptable medical source,” but does

17

qualify as an “other source”), 416.913(a),(d) (same).

18

the ALJ noted that Plaintiff had not been treated at Kaiser Permanente

19

since 1998.

20

rejecting Ms. Nicholas’ opinion.

to

consider

(AR at 19).

a

special

education

teacher

without

a

In the decision,

Thus, the ALJ cited an adequate basis for

21

Plaintiff also maintains that the ALJ erred by failing to consult

22

with a medical expert to resolve conflicts in the medical evidence.

23

However, “[t]he ALJ is responsible for determining credibility and

24

resolving conflicts in medical testimony.” Magallanes, 881 F.2d at 750;

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Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996)(“questions of

26

credibility and resolution of conflicts in the testimony are functions

27

solely for the Secretary”).

28

\\

Thus, Plaintiff’s claim is without merit.

8

Case 2:05-cv-04083-MLG Document 18 Filed 03/15/06 Page 9 of 11 Page ID #:51

1

B.

2

Once

Plaintiff’s Credibility a

claimant

produces

objective

medical

evidence

of

an

3

underlying impairment which could reasonably be expected to produce some

4

degree of pain or other symptoms, in the absence of any evidence of

5

malingering, the ALJ may reject subjective symptom testimony only by

6

offering specific, clear and convincing reasons for doing so. Smolen v.

7

Chater, 80 F.3d 1273, 1281 (9th Cir. 1996).

8

claimant’s testimony regarding the degree of pain and limitations is

9

unreliable, the ALJ must “specifically identify what testimony is

10

credible and what testimony undermines the claimant’s complaints.”

11

Morgan, 169 F.3d at 599; Lester, 81 F.3d at 834.

12

the testimony and determining questions of credibility are functions

13

solely of the Commissioner.

If the ALJ finds that a

Resolving conflicts in

Morgan, 169 F.3d at 599.

14

In this case, the ALJ provided specific, clear, and convincing

15

reasons for discounting Plaintiff’s testimony, with citations to the

16

evidence.

17

support limitations in social activities, the ALJ found that Plaintiff’s

18

claim that he was disabled and unable to perform even unskilled work on

19

a sustained basis to be not credible.

20

ALJ found that Plaintiff’s admitted daily activities were inconsistent

21

with his claim of disability.

22

some household activities is not indicative of ability to work, most of

23

Plaintiff’s daily activities are done without help and are done more

24

than occasionally.

25

attending college each day and carrying a full schedule, which includes

26

courses in sign language, biology, philosophy, theater arts, accounting

27

and two physical education classes.

28

properly relied on the inconsistencies between Plaintiff’s claim of

Although Plaintiff produced objective medical evidence to

(AR at 23).

(AR at 23).

In particular, the

While the ability to perform

Significantly, Plaintiff testified that he was

9

(AR at 217).

Thus, the ALJ

Case 2:05-cv-04083-MLG Document 18 Filed 03/15/06 Page 10 of 11 Page ID #:52

1

disability and his admissions about things that he is still able to do

2

despite his impairment.

3

(9th Cir. 2001)(holding that daily activities may be sufficient to

4

discredit a claimant’s allegations where the claimant performed those

5

activities “with no significant assistance”); Light v. Social Security

6

Admin., 119 F.3d 789, 792 (9th Cir. 1997)(inconsistencies between

7

testimony and conduct may be considered in weighing a claimant's

8

credibility).

9

C.

10

See Rollins v. Massanari, 261 F.3d 853, 856

Consideration of the Evidence

Plaintiff

asserts

that

the

ALJ

may

not

have

considered

the

11

following medical records that were submitted to the Appeals Council:

12

Dr. Pamaran’s consultative examination report dated July 11, 2000; the

13

2000 Childhood Disability Evaluation; records from Kaiser Permanente

14

dated February 22, 1988 through August 21, 1998; and a psychological

15

evaluation completed by Victor Sanchez, Ph.D., dated June 11, 1998. (AR

16

at 9, 156-212).

17

Pamaran’s report in the decision and noted that records from Kaiser

18

Permanente reflected that he had not received treatment there since

19

1998.

20

records cited by Plaintiff, but determined that they did not provide a

21

basis for changing the ALJ’s decision.

22

records submitted to the Appeals Council pertained to the relevant

23

period of time for Plaintiff’s current claims for benefits and Plaintiff

24

has not shown that there was a “reasonable possibility” that the records

25

would have changed the outcome of the administrative proceedings.

26

v. Secretary of Health and Human Serv., 734 F.2d 1378, 1380 (9th Cir.

27

1984)(new evidence submitted to the Appeals Council is material if there

28

is a “reasonable possibility” that it would have changed the outcome of

Contrary to Plaintiff’s claim, the ALJ addressed Dr.

(AR at 19, 92-94).

Moreover, the Appeals Council considered the

10

(AR at 6).

Indeed, none of the

Booz

Case 2:05-cv-04083-MLG Document 18 Filed 03/15/06 Page 11 of 11 Page ID #:53

1

the administrative proceedings). Accordingly, any alleged error by the

2

ALJ in failing to review the cited records was harmless.

3

F.2d at 1394-95.

Vincent, 739

4 5

IV.

Conclusion

6

Based upon the applicable legal standards, the Court finds that the

7

decision of the Commissioner is supported by substantial evidence and

8

that the Commissioner applied the proper legal standards.

9 ORDER

10 11 12 13 14

Accordingly,

IT

IS

HEREBY

ORDERED

that

the

decision

of

Commissioner is AFFIRMED. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel.

15 16 17 18

the

DATED:

March 15, 2006

/S/ Marc L. Goldman ______________________________ MARC L. GOLDMAN United States Magistrate Judge

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English